Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 1 of 26. PageID #: 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION ROMEL AMAYA-CRUZ, JONAS NSONGI MBONGA, ELVIRA PASCALENCO, and HECTOR MANUEL REYES CRUZ, Petitioner-Plaintiffs, - vs. REBECCA ADDUCCI, in her official capacity as Detroit District Director of U.S. Immigration & Customs Enforcement; MATTHEW T. ALBENCE, in his official capacity as Deputy Director and Senior Official Performing the Duties of the Director of the U.S. Immigration & Customs Enforcement; CHAD WOLF, in his official capacity as Acting Secretary, U.S. Department of Homeland Security; WILLIAM P. BARR, in his official capacity as Attorney General, U.S. Department of Justice; and U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Case No. ___________ Respondent-Defendants. PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 AND COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 2 of 26. PageID #: 2 INTRODUCTION 1. Petitioner-Plaintiffs (“Plaintiffs”) are immigration detainees, three of whom are being held at the Geauga County Jail (“Geauga”) and one at the Seneca County Jail (“Seneca”). Plaintiffs each have medical conditions that make them particularly vulnerable to grave illness or death if infected by COVID-19, and they each face an acute risk of contracting the virus unless they are released immediately. 2. The novel coronavirus that causes COVID-19 has led to a global pandemic. As of the time this Petition was being finalized, on April 9, 2020, over 1,600,427 people worldwide have received confirmed diagnoses of COVID-19, and over 95,699 of those people have died. The numbers are escalating and are not projected to peak in Ohio until the middle of May. There is no vaccine against COVID-19, and there is no known cure. It is highly contagious, and it is particularly virulent because even asymptomatic people can transmit it to others. No one is immune from contracting the illness. COVID-19 is most likely to cause serious illness and elevated risk of death for older adults and those with certain underlying medical conditions or disease. 3. COVID-19 can cause severe damage to lung tissue, sometimes leading to a permanent loss of respiratory capacity, and it can damage tissues in other vital organs including the heart and liver. Patients with serious cases of COVID-19 require advanced medical support, including positive pressure ventilation and extracorporeal mechanical oxygenation in intensive care. That treatment can require the use of specialized equipment, like ventilators. The pandemic has put ventilators in high demand and short supply around the world, and has led to severe shortages of personal protective equipment (“PPE”) such as face masks and gowns. Patients who do not die from serious cases of COVID-19 may face permanent damage to their health and/or 2 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 3 of 26. PageID #: 3 prolonged recovery periods, including extensive rehabilitation from neurologic damage and loss of respiratory capacity. 4. The only known effective ways to reduce the risk of serious illness or death caused by COVID-19 for vulnerable people are social distancing and improved hygiene. As a result, unprecedented public health measures to eliminate concentrations of people are being undertaken in all fifty states and around the world. 5. People in enclosed group environments—where they live, eat, and sleep in close proximity—face increased danger of contracting COVID-19, as already evidenced by the trenchant spread of the virus on cruise ships and in nursing homes. This problem is particularly acute with respect to people who are confined in jails and other correctional facilities, for whom it is impossible to engage in the necessary social distancing as well as the hygiene required to mitigate the risk of transmission. More people in confinement are testing positive for COVID-19 with each passing day, and there are increasing numbers of confirmed positive cases among prisoners and guards in Ohio’s prisons and jails, with seven state prisons already under quarantine. Regrettably, prisons and jails are effective incubators for the disease: for example, at the Rikers Island jail in New York City, the number of confirmed cases jumped from one to over 200 in roughly twelve days. 6. For this reason, leading public health experts are recommending the prompt release from custody of people, such as Plaintiffs, who are the most at risk for serious consequences of COVID-19. This both protects those with the greatest vulnerability and also ameliorates risk for all people detained and working in jails, as well as in their surrounding communities. Release of the most vulnerable people such as Plaintiffs also reduces the burden on the region’s limited health- 3 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 4 of 26. PageID #: 4 care infrastructure, as it lessens the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time and exhaust the available resources. 7. Plaintiffs all have underlying medical conditions that put them at high risk of grave or lethal illness if they contract COVID-19 infection.1 If they continue to be detained at Geauga and Seneca during the current outbreak of COVID-19, they face a danger that is “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk” and that violates their constitutional right to safety in government custody. Helling v. McKinney, 509 U.S. 25, 36 (1993). 8. Plaintiffs ask this Court to issue a Writ of Habeas Corpus and order their immediate release, subject to appropriate precautionary public health measures, such as home quarantine and confinement upon release, on the ground that their continued detention violates the Due Process Clause of the U.S. Constitution. In the alternative, Plaintiffs ask this Court to issue injunctive relief ordering Defendants to release them immediately, with appropriate precautionary public health measures, on the grounds that their continued detention violates the Due Process Clause. 1 Underlying medical conditions that create a high risk of serious COVID-19 infection include, but are not limited to: blood disorders, such as sickle cell disease or taking blood thinners; chronic kidney disease; chronic liver disease, including cirrhosis and chronic hepatitis; cancer or cancer treatments; organ or bone marrow transplant; individuals taking immunosuppressant medications; HIV or AIDS; current or recent pregnancy in the last two weeks; diabetes; inherited metabolic disorders and mitochondrial disorders; heart disease, including coronary artery disease, congenital heart disease, and heart failure; lung disease, including asthma and COPD (chronic bronchitis or emphysema); neurological and neurologic development conditions such as cerebral palsy, epilepsy (seizure disorders), stroke, intellectual disability, moderate to severe developmental delay, muscular dystrophy, or spinal cord injury; severe obesity (body mass index [BMI] of 40 or higher); and any other condition or treatment that weakens the immune response. Harvard Medical School, If you are at higher risk: How to reduce risk of infection and what to do if you get sick, Harvard Health Publishing (March 2020), https://www.health.harvard.edu/diseases-and-conditions/if-you-are-at-higher-risk. 4 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 5 of 26. PageID #: 5 PARTIES 9. Plaintiff Romel Amaya-Cruz (detained at Geauga) is a citizen of El Salvador who has been detained by ICE since December 2018. He has been in Geauga since January 2020. Mr. Amaya-Cruz is HIV-positive and suffers from many ensuing complications, such as brain lesions (bleeding on the brain), toxoplasmosis (a parasitic infection, often found in immunocompromised patients), and toxoplasmic encephalitis (swelling of the brain caused by toxoplasma infection). Since entering Geauga, Mr. Amaya-Cruz has had a heightened level of HIV present in his body, yet has been unable to see the physician who has normally managed his HIV medication regimen. Mr. Amaya-Cruz also suffers from chronic headaches, eczema, and neck pain. As a consequence, he is at high risk for severe illness or death if he contracts COVID-19. 10. Plaintiff Jonas Nsongi Mbonga (detained at Geauga) is a citizen of the Democratic Republic of Congo who has been detained since July 18, 2018. He has been in Geauga since February 21, 2020. Mr. Nsongi Mbonga suffers from latent tuberculosis, a condition in which certain illnesses, including the flu, can trigger active tuberculosis, a serious respiratory infection. Mr. Nsongi Mbunga also suffers from lasting brain injuries, including chronic headaches, as a result of being assaulted and tortured by government agents in the Democratic Republic of Congo, his country of origin. Mr. Nsongi Mbunga further suffers from severe abdominal pain and has been diagnosed with, among other things, gastroenteritis and amebiasia, an inflammation of the lining of the intestines caused by an intestinal virus or parasite. As a consequence, he is at high risk of severe illness or death if he contracts COVID-19. 11. Plaintiff Elvira Pascalenco (detained at Geauga) is a citizen of Moldova who has been detained by ICE since January 24, 2020. Ms. Pascalenco is 52 years old and suffers from a number of serious medical conditions, including asthma, migraines, chronic bilateral low back 5 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 6 of 26. PageID #: 6 pain, high cholesterol, osteoporosis, and recurrent major depressive disorder. As a consequence, she is at high risk of severe illness or death if she contracts COVID-19. 12. Plaintiff Hector Manuel Reyes Cruz (detained at Seneca) is a citizen of Honduras who has been detained since March 28, 2019. He has been in Seneca since around January 2020. Mr. Reyes Cruz suffers from hypertension, and has had a persistent cough for which he has been unable to obtain treatment. Mr. Reyes Cruz also suffers from severely painful toothaches that continue to be left untreated, as well as anxiety and depression. As a consequence, he is at high risk of severe illness or death if he contracts COVID-19. 13. Respondent-Defendant Rebecca Adducci is the Detroit District Director of ICE. In that position, she is responsible for carrying out ICE’s immigration detention operations at Geauga and Seneca. Defendant Adducci is a legal custodian of Plaintiffs, and the proper respondent for a habeas petition. See Roman v. Ashcroft, 340 F.3d 314, 321 (6th Cir. 2003). She is sued in her official capacity. 14. Defendant Matthew T. Albence is the Deputy Director and Senior Official Performing the Duties of the Director of ICE. In that position, he is responsible for ICE’s policies, practices, and procedures, including those relating to the detention of immigrants. Defendant Albence is a legal custodian of Plaintiffs. He is sued in his official capacity. 15. Defendant Chad Wolf is Acting Secretary of the U.S. Department of Homeland Security. In that position, he is responsible for the enforcement of the immigration laws and supervises Ms. Adducci at ICE Detroit Field Operations. Defendant Wolf is a legal custodian of Plaintiffs. He is sued in his official capacity. 16. Defendant William P. Barr is Attorney General of the United States and chief officer of the U.S. Department of Justice. He is responsible for the administration of the 6 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 7 of 26. PageID #: 7 immigration laws pursuant to 8 U.S.C. § 1103, routinely does and transacts business in the Northern District of Ohio, and is a legal custodian of Plaintiff. He is sued in his official capacity. 17. Defendant ICE is a federal law enforcement agency within the U.S. Department of Homeland Security. ICE is responsible for criminal and civil enforcement of immigration laws, including the detention and removal of immigrants. Enforcement and Removal Operations, a division of ICE, manages and oversees the immigration detention system. Defendant ICE is a legal custodian of Plaintiffs. JURISDICTION AND VENUE 18. This Court has subject matter jurisdiction over this matter under 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1346 (original jurisdiction), 28 U.S.C. § 2241 (habeas jurisdiction) and Article I, Section 9, clause 2 of the United States Constitution (the Suspension Clause). 19. Venue lies in the U.S. District Court for the Northern District of Ohio, the judicial district in which Plaintiffs are currently in custody. Venue is proper in the Northern District of Ohio under 28 U.S.C. § 1391, as venue is proper in any district in which in which a substantial part of the events or omissions giving rise to the claim occurs. FACTS A. COVID-19 Poses a Grave Risk of Harm, Including Grave Illness or Death, to Persons with Certain Medical Conditions 20. COVID-19 reached pandemic status weeks ago. As of April 9, 2020, at least 395,030 people in the United States have tested positive for COVID-19, and 12,740 people in the United States have died from the disease. These numbers jump many digits each day. Transmission continues to increase exponentially and is not projected to reach its peak in Ohio until mid-May. 7 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 8 of 26. PageID #: 8 21. In many people, COVID-19 causes fever, cough, and shortness of breath. Some people suffer much more serious disease or death. Certain underlying medical conditions, as well as age, increase the risk of serious complications, disease, or death from COVID-19. 22. Moreover, COVID-19 can severely damage lung tissue, which requires an extensive period of rehabilitation, or even a permanent loss of respiratory capacity. COVID-19 may also target the heart muscle, causing a medical condition called myocarditis, or inflammation of the heart muscle, which can also affect the heart’s electrical system, reducing the heart’s ability to pump. Reduced pumping can lead to rapid or abnormal heart rhythms in the short term, and to long-term heart failure that limits exercise tolerance and the ability to work. In addition, COVID19 can trigger an over-response of the immune system, further damaging tissues in a cytokinerelease syndrome that can result in widespread damage to other organs, including permanent injury to the kidneys and neurologic injury. 23. These complications can manifest at an alarming pace. Patients can show the first symptoms of infection as soon as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner. 24. But the virus’s symptoms may take up to fourteen days to manifest. Several studies have shown that people infected with COVID-19 are most contagious one to three days before they begin to show symptoms. By some estimates, as many as twenty-five percent of people infected may not show symptoms at all. However they are nevertheless highly infectious to others. 25. Even some younger and healthier people who contract COVID-19 may require supportive care, which includes supplemental oxygen, positive pressure ventilation, and, in extreme cases, extracorporeal mechanical oxygenation. But people in higher risk categories, such as Plaintiffs, are more likely to need advanced support, which requires highly specialized 8 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 9 of 26. PageID #: 9 equipment that is in limited supply, and an entire team of care providers, including 1:1 or 1:2 nurse-to-patient ratios, respiratory therapists, and intensive care physicians. In a pandemic, the numbers of patients requiring this level of support can quickly exceed local health-care resources. 26. The need for care, including intensive care, and the likelihood of death, are much higher from COVID-19 infection than from influenza. Sources differ, but all reports are grave: sources report fatality rates ranging from nearly 2% to over 15% for populations at high risk for complications from COVID-19, such as those, like Plaintiffs, with comorbidities. Moreover, recent studies estimate that the COVID-19 fatality rate for the general population ranges from six to thirteen times as high as a severe seasonal influenza fatality rate, even in advanced countries with highly effective healthcare systems. 27. The specific mechanism of mortality of critically ill COVID-19 patients is uncertain but may be related to virus-induced acute lung injury, inflammatory response, multiple organ damage and secondary nosocomial infections. Those who survive serious cases of COVID-19 may require long-term rehabilitation because of damage to lung tissue and possibly other organs, including the heart, kidney, and neurologic systems. 28. There is no vaccine against COVID-19, nor is there any known medication to prevent or treat infection from COVID-19. On March 26, 2020, Dr. Anthony Fauci, head of the National Institute of Allergy and Infectious Diseases (NIAID), estimated that a vaccine could be developed in 18 months. Vaccines typically take between eight and 10 years to develop. Vaccines usually must be tested in four phases before they attain regulatory approval: (1) animal testing, (2) small-group human testing to assess safety and monitor immune response, (3) medium-sized group testing to assess members of at-risk groups, and (4) large-scale testing on thousands of people. Moreover, more time is needed after approval to distribute the vaccine across the 9 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 10 of 26. PageID #: 10 country. With these long trials and distribution schedules in mind, other experts have expressed the view that the 18-month estimate given by Dr. Fauci is optimistic. 29. According to the CDC, the disease is mainly transmitted between people via respiratory droplets produced when an infected person coughs or sneezes. Experts also believe that infected people may leave the virus on surfaces or objects, allowing it to spread when another person touches that object and then touches their own mouth, nose or possibly their eyes. The main strategy to limiting the disease’s spread is social distancing, or remaining physically separated at least six feet from other individuals, and hygiene, including thoroughly washing hands with soap and water. Because individuals may be contagious while asymptomatic, these measures must be taken before individuals display symptoms. 30. Projections by the Centers for Disease Control and Prevention (“CDC”) indicate that over 200 million people in the United States could be infected with COVID-19 over the course of the pandemic without effective public health intervention, with as many as 1.7 million deaths in the United States alone. B. Plaintiffs Face an Elevated Risk of COVID-19 Infection 31. As of April 9, 2020, there were 5,512 confirmed cases of COVID-19 and 213 deaths from COVID-19 in Ohio.2 32. The COVID-19 outbreak in Ohio has resulted in unprecedented health measures to facilitate and enforce social distancing. 2 On April 2, Governor Mike DeWine extended Ohio’s NBC4 Staff, Coronavirus in Ohio Wednesday update: 5,148 cases, 193 Deaths Reported, NBC 4 (Apr. 8, 2020), https://www.nbc4i.com/community/health/coronavirus/coronavirus-inohio-wednesday-update-gov-dewine-dr-amy-acton-to-hold-daily-briefing/. 10 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 11 of 26. PageID #: 11 Stay-At-Home Order through May 1, which went into effect on April 6. 3 The new order included new regulations that restrict the number of customers allowed inside essential businesses and asks anyone traveling into Ohio to self-quarantine for two weeks with few exceptions. 4 33. At least 11 people imprisoned in Cuyahoga County Jail and one staff person have tested positive for coronavirus.5 One staff person has tested positive at the Butler County Jail, one of Ohio’s four jail-ICE detention centers. It is inevitable that COVID-19 will reach Seneca and Geauga if it is not already present. 34. Indeed, over the past two weeks, hundreds of COVID-19 diagnoses have been confirmed at local, state, and federal correctional facilities across the United States and in Ohio. Governor DeWine has authorized the Ohio National Guard to provide medical assistance at Elkton federal prison in Lisbon, Ohio due to the number and rate of coronavirus infections at that federal facility. There, at least thirty-seven people have been hospitalized due to COVID-19, seventy-one have been quarantined with symptoms, and three have died. 6 Reporting indicates that a few days prior, only seventeen people had been in isolation and twenty hospitalized. 7 35. The conditions at detention facilities such as Seneca and Geauga, which are enclosed group environments where people live, sleep, and eat in close proximity, pose a 3 4 5 6 7 NBC4 Staff, Read the Full Order: Ohio Stay-at-Home Order Extended Until May 1, NBC 4 (Apr. 2, 2020), https://www.nbc4i.com/community/health/coronavirus/gov-dewine-extendsohios-stay-at-home-order-until-may-1/. Id. Scott Noll and Kaylyn Hlavaty, 11 Cuyahoga County Jail Inmates, 1 Corrections Officer tests positive for coronavirus, WEWS (Apr. 9, 2020), https://www.news5cleveland.com/news/continuing-coverage/coronavirus/11-cuyahogacounty-jail-inmates-1-corrections-officer-tests-positive-for-coronavirus Vince Grzegorek, At Elkton Prison in Ohio, 37 Inmates Hospitalized Due to COVID-19, 3 Dead, 71 in Isolation, Cleveland Scene (Apr. 7, 2020), https://www.clevescene.com/sceneand-heard/archives/2020/04/07/at-elkton-federal-prison-in-ohio-37-inmates-hospitalized-dueto-covid-19-3-dead-71-in-isolation. Id. 11 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 12 of 26. PageID #: 12 heightened risk for the spread of COVID-19. Other enclosed group environments, such as cruise ships and nursing homes, have seen extremely high COVID-19 transmission rates. The danger is even greater at Geauga and Seneca, where people are rarely more than six feet apart at any time, scant medical resources are available, and many detainees are at high risk of serious infection. 36. At Geauga, Plaintiffs and other detainees sleep in pods of up to 60 people. These dormitories have no windows that can open, and therefore provide no ventilation. 8 In the pod for females, most sleeping areas house two people and contain just enough space for two beds, one toilet, one sink, one small desk, and two lockers. Beds are only two or three feet apart from each other. Detainees sleep close together and spend most of their days in the same room, and are rarely, if ever, more than six feet from other people. There have been no changes to cleaning or sanitation procedures since the COVID-19 pandemic began. Detainees continue to eat their meals communally, multiple times per day. Staff does not sanitize the chairs or tables before meals. Detainees do not have free access to soap and there are no paper towels available. 37. At Seneca, Plaintiffs and other detainees sleep in pods that house up to 40 people. Beds are only about 3 feet apart from each other. Detainees are only given, at most, two small bottles of soap per week for both bathing and cleaning. Detainees have to use their own personal cleaning products to clean the common areas such as bathrooms. There is no hand sanitizer available. No procedures have changed at the detention center with respect to social distancing or sanitation since the COVID-19 pandemic began. Masks have not been made available to detainees, even those who are demonstrating symptoms of COVID-19. Staff members do not always wear gloves, and only since April 8, 2020 have some of them begun wearing facemasks. 8 Noah Lanard, A Haitian Asylum-Seeker Did Everything Right. ICE Sent Him to a Windowless Jail Cell., Mother Jones (Dec. 7, 2018), https://www.motherjones.com/politics/2018/12/ahaitian-asylum-seeker-did-everything-right-ice-sent-him-to-a-windowless-jail-cell/ 12 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 13 of 26. PageID #: 13 38. Given these conditions, there are no circumstances under which Defendants can continue to detain Plaintiffs and also ensure their safety. Seneca and Geauga simply cannot adhere to the CDC’s social distancing guidelines. It is impossible for Plaintiffs to shelter in place, free from the risk of interacting with strangers who may be carriers for the disease, or to maintain distance or hygiene among themselves. 39. Given the risk of infection posed by COVID-19, and the fact that detainees cannot isolate themselves from infected residents or staff, it is only a matter of time until the virus reaches Geauga and Seneca and rapidly infects the Plaintiffs. The early evidence bears this out: for example, the rate of infection in New York City jails is more than seven times as high as the rate of infection in New York City overall. Indeed, ICE has not grappled with the fact that COVID-19 may spread asymptomatically, having instituted no protocol for testing of detainees or staff who enter the detention facility exhibiting no symptoms. It may be that the virus is already present at Seneca and Geauga and has begun to spread. 40. The staff at jails like Geauga and Seneca also have a higher likelihood of transmitting coronavirus due to the lack of protective gear and the impossibility of social distancing. Accordingly, detainees in Ohio and other Ohio facility staff are at very high risk for contracting the virus. It is only a matter of time until Geauga and Seneca face a similar crisis. 41. Other jails around the country have tried mitigation efforts to no avail. The virus continues to infiltrate and spread through correctional facilities. The top doctor at New York City’s Rikers Island jail has lamented how extensive mitigation efforts failed to slow the spread of the disease at the jail. He joins a chorus of public health experts in concluding that for such efforts to be effective, they must be paired with a reduction in the number of people incarcerated. 13 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 14 of 26. PageID #: 14 42. When correctional facilities have been unwilling to release vulnerable people to address the heightened danger of COVID-19 infection, courts have not hesitated to intervene to protect the civil liberties, health, and lives, of those most vulnerable to infection. For example, in the past week, a federal court in Michigan granted temporary restraining orders to release two ICE detainees at high risk for severe illness if they were to contract COVID-19. Malam v. Adducci, No. 5:20-cv-10829, ECF. 22, 29 (E.D.Mich., Apr. 5 2020, Apr. 9, 2020). New York judges recently ordered the release of ICE detainees who were at high risk of serious illness were they to contract COVID-19 because of an outbreak in their respective jails. Basank v. Decker, No. 20-cv2518, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020); Coronel v. Decker, __ F. Supp. 3d __, No. 20-cv-2472, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020). Similarly, on March 31, the District Court for the Middle District of Pennsylvania granted a Temporary Restraining Order releasing a group of individuals at high risk for serious illness were they to contract COVID-19 from ICE detention. Thakker v. Doll, __ F. Supp. 3d __, No. 1:20-cv-480 (M.D. Pa. Mar. 31, 2020). Likewise, two federal district courts in California have, in multiple cases, ordered the release of immigrants due to the pressing health concerns created by ICE detention. See, e.g., Bent v. Barr, No. 19-cv-06123-DMR (N.D. Cal. Apr. 9, 2020); Bahena Ortuno v. Jennings, No. 20-cv-02064MMC (N.D. Cal. Apr. 8, 2020); Castillo v. Barr, __F.3d__, 20-cv-0065, 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020); Hernandez v. Wolf, CV 20-60017-TJH (C.D. Cal. Apr. 1, 2020). C. People Most Vulnerable to COVID-19 Should Be Released from ICE Detention 43. Leading public health experts have recommended that Plaintiffs, and other high- risk detainees, be released from Seneca and Geauga and similar correctional facilities. 44. Dr. Joseph J. Amon, an infectious disease epidemiologist who has decades of experience as a public health researcher and practitioner, has declared that “while hand washing and disinfecting surfaces is advisable, the main strategy for limiting disease transmission is social 14 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 15 of 26. PageID #: 15 distancing and that for such distancing to be effective it must occur before individuals display symptoms.” He has cautioned that the risks for COVID-19 are especially great for “older people and those with cardiovascular disease, diabetes, chronic respiratory disease, and cancer.” This fact, combined with ICE’s inability to sufficiently protect its detainees, has led Dr. Amon to conclude that “the population [of detention facilities] must be reduced,” with the priority being “[t]he release of individuals who can be considered at high-risk of severe disease if infected with COVID-19.” 45. Dr. Robert Greifinger, an expert in correctional health care with more than thirty years’ experience, has declared that the “conditions of immigration detention facilities pose a heightened public health risk to the spread of COVID-19[.]” He has also reviewed Plaintiffs’ medical conditions and concluded that Plaintiffs present “personal health characteristics that put them at high risk for complications from COVID-19 should they be exposed to the virus in detention.” 46. Plaintiffs in this case are people who are particularly vulnerable to serious illness or death if infected by COVID-19 and are currently detained at Seneca and Geauga as they await the resolution of their civil immigration cases. 47. Romel Amaya-Cruz (detained at Geauga) is a citizen of El Salvador who has been detained by ICE since January 2020. Mr. Amaya-Cruz entered the United States approximately 25 years ago at the age of 15, without inspection. He was removed to El Salvador in May 2011 after nearly nine years of holding Temporary Protected Status and complying with an Order of Supervision. He re-entered the United States in 2013 and has not departed the country since then. Mr. Amaya-Cruz passed a reasonable fear interview and entered into withholding proceedings at the Cleveland Immigration Court in early 2019. His initial withholding request was denied, but 15 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 16 of 26. PageID #: 16 the Board of Immigration Appeals remanded for a new hearing. Mr. Amaya-Cruz’s remanded withholding hearing is tentatively scheduled for April 13, 2020. 48. Mr. Amaya-Cruz is HIV-positive and suffers from many ensuing complications, such as brain lesions (bleeding on the brain), toxoplasmosis (a parasitic infection, often found in immunocompromised patients), and toxoplasmic encephalitis (swelling of the brain caused by toxoplasma infection). Since entering Geauga, Mr. Amaya-Cruz has had a heightened level of HIV present in his body, yet has been unable to see the physician that has normally managed his HIV medication regimen. Mr. Amaya-Cruz also suffers from chronic headaches, eczema, and neck pain. 49. Mr. Amaya-Cruz is critically vulnerable to grave illness or death if exposed to COVID-19 due to his HIV status and other conditions. 50. If released, Mr. Amaya-Cruz will stay with his U.S. citizen sister, who lives in the Cleveland area. While staying with his sister, Mr. Amaya-Cruz would maintain a safe distance from others and/or quarantine as necessary. He will also be able to get medical treatment for his conditions from his former physician, who is an infectious disease specialist at the Cleveland Clinic. 51. Jonas Nsongi Mbonga (detained at Geauga) is a citizen of the Democratic Republic of Congo who has been detained by ICE since February 21, 2020. Mr. Nsongi Mbonga came to the United States on July 18, 2018 and has not departed the country since. He passed a credible fear interview and applied for asylum, but his asylum claim was denied on February 1, 2019 and again on appeal on September 25, 2019. Mr. Mbonga has appealed again and the appeal is pending with the Board of Immigration Appeals. 16 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 17 of 26. PageID #: 17 52. Mr. Nsongi Mbonga suffers from latent tuberculosis, a condition in which certain illnesses, including the flu, can trigger active tuberculosis, a serious respiratory infection. Mr. Nsongi Mbunga also suffers from lasting brain injuries, including chronic headaches, as a result of being assaulted and tortured by government agents in the Democratic Republic of Congo, his country of origin. Mr. Nsongi Mbunga further suffers from severe abdominal pain and has been diagnosed with, among other things, gastroenteritis and amebiasia, an inflammation of the lining of the intestines caused by an intestinal virus or parasite. In the last two years, Mr. Nsongi Mbonga went to the hospital twice for his abdominal pain. In May 2019, he went to the Cleveland Clinic where he was diagnosed with several intestinal illnesses and prescribed medication. In detention he does not receive all of the medications that he was prescribed. 53. Mr. Nsongi Mbonga is critically vulnerable to severe illness or death if exposed to COVID-19 due to his latent tuberculosis and other conditions. 54. If released, Mr. Nsongi Mbonga will stay at the home of attorney Brian Hoffman in Wooster, OH. While staying with Mr. Hoffman, Mr. Nsongi Mbonga would maintain a safe distance from others and/or quarantine as necessary. He would also have access to treatment for his medical conditions. 55. Elvira Pascalenco (detained at Geauga) is a citizen of Moldova who has been detained by ICE since January 24, 2020. Ms. Pascalenco came to the United States in 2007 and has not departed the country since then. Ms. Pascalenco entered the United States as a conditional Lawful Permanent resident and had the conditions on her LPR status removed in 2009. She was arrested by ICE on or around January 23, 2020 while she was attending a routine interview in support of her application for naturalization at the Ohio office of the United States Citizenship and Immigration Services. Ms. Pascalenco has entered removal proceedings and is contesting her 17 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 18 of 26. PageID #: 18 charges of removability before the Cleveland Immigration Court. Ms. Pascalenco attended a partial contested removal hearing by telephone on April 7, 2020, which was then continued to May 6, 2020. 56. Ms. Pascalenco is 52 years old and suffers from a number of serious medical conditions, including asthma, migraines, chronic bilateral low back pain, high cholesterol, osteoporosis, and recurrent major depressive disorder. To control her asthma, Ms. Pascalenco has been instructed by her physician to take inhaler treatments every four hours, every day, and to take the medication Singulair every day. Geauga does not provide Ms. Pascalenco with the inhaler that she requires to treat her asthma. As a result of her asthma, she is at high risk for severe illness or death if she contracts COVID-19. 57. Ms. Pascalenco is critically vulnerable to grave illness or death if exposed to COVID-19 due to her asthma. 58. If released, Ms. Pascalenco will return to the home she shared with her son in Mayfield Heights, Ohio. While at home, Ms. Pascalenco will be able to maintain safe distances from others and can quarantine as necessary. She will also be under the care of her physicians to address her numerous medical issues. 59. Hector Manuel Reyes Cruz (detained at Seneca) is a citizen of Honduras who has been detained by ICE since January 2020. Mr. Reyes Cruz entered the United States on March 28, 2019 and has not departed the country since then. Mr. Reyes Cruz sought asylum and was denied. Although he was ordered removed, he appealed. The appeal is fully briefed and pending decision. 18 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 19 of 26. PageID #: 19 60. Mr. Reyes Cruz suffers from hypertension, and has had a persistent cough for which he has been unable to obtain treatment. Mr. Reyes Cruz also suffers from severely painful toothaches that continue to be left untreated, as well as anxiety and depression. 61. Mr. Reyes Cruz is critically vulnerable to grave illness or death if exposed to COVID-19 due to his hypertension. 62. If released, Mr. Reyes Cruz will stay at a friend’s home in Charlotte, North Carolina where he would be maintain safe distances from others and self-quarantine if necessary. LEGAL BACKGROUND A. Plaintiffs Have a Constitutional Right to Reasonable Safety in Custody 63. “[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 199-200 (1989). As civil detainees, Plaintiffs’ detention is governed by the Fifth Amendment. Bell v. Wolfish, 441 U.S. 520, 539 (1979).9 Under the Fifth Amendment, civil detention may not “amount to punishment of the detainee.” Bell, 441 U.S. at 535. 64. Because of Plaintiffs’ underlying health conditions, which make them especially vulnerable to grave illness or death if they contract COVID-19, the conditions of their confinement are not “reasonably related to a legitimate governmental objective”; instead they are “arbitrary or 9 Plaintiffs’ continued detention also violates the Eighth Amendment’s prohibition of cruel and unusual punishment—a much stricter standard than the Fifth Amendment’s ban on any punishment, which applies here. This is because Defendants have ignored “a condition of confinement that is sure or very likely to cause serious illness” by crowding Plaintiffs into living quarters with others who have “infectious maladies . . . even though the possible infection might not affect all of those exposed.” Helling, 509 U.S. at 32-33. See Bell, 441 U.S. at 539; Thakker, 2020 WL 1671563, at *8 n.15 (ordering immediate release of immigration detainees due to COVID-19 under the Fifth Amendment and, citing Helling, finding that plaintiffs had also met the “more exacting Eighth Amendment standard”). 19 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 20 of 26. PageID #: 20 purposeless[.]” See Bell, 441 U.S. at 539. See also J.H. v. Williamson Cty., Tennessee, 951 F.3d 709 (6th Cir. 2020) (applying Bell test to pre-trial detainee’s conditions of confinement claim); Turner v. Stumbo, 701 F.2d 567, 572 (6th Cir. 1983) (same). 65. Plaintiffs’ detention is not “reasonably related” to its objective because it creates a serious risk of imminent illness and death. See Bell, 441 U.S. at 539. This risk is urgent, imminent, and unrelated to any legitimate governmental goal, as several federal courts have already held. See, e.g., Malam, 2020 WL 1672662, at *12; Xochihua-Jaimes v. Barr, No. 18-71460, ––––F. App’x. ––––, 2020 WL 1429877 at *1 (9th Cir. Mar. 24, 2020) (sua sponte ordering immediate release of immigrant petitioner “[i]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers”); Thakker, 2020 WL 1671563, at *8 (ordering immediate release of immigrant petitioners because “we can see no rational relationship between a legitimate government objective and keeping Petitioners detained in unsanitary, tightly-packed environments.”). 66. When the government fails to meet its obligation to provide adequate medical care, courts have a responsibility to remedy the resulting constitutional violation. See Brown v. Plata, 563 U.S. 493, 511 (2011) (“When necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.”). The power to remedy constitutional violations arising from government confinement falls within the Court’s broad power to fashion equitable relief. See Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978). 67. To vindicate detainees’ due process rights in the face of the COVID-19 pandemic, federal and state courts across the country have ordered the release of detained individuals. See, e.g., Malam, 2020 WL 1672662 (ordering release of detainee in Michigan due to threat of COVID19); ); Bahena Ortuno v. Jennings, No. 20-cv-020640-MMC (N.D. Cal. Apr. 8, 2020) (same); 20 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 21 of 26. PageID #: 21 Hernandez v. Wolf, No. 20-60017-TJH (C.D. Cal. Apr. 1, 2020) (same); Thakker v. Doll, No. 1:20cv-480, –––F. Supp. 3d––––, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020) (same for 13 detainees in Pennsylvania); Coronel v. Decker, No. 20-cv-2472, ––––F. Supp. 3d––––, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020) (ordering release of four medically vulnerable immigrant plaintiffs held in New York and New Jersey detention centers due to threat of COVID-19); Basank v. Decker, No. 20-cv-2518, 2020 WL 1481503, at *1 (S.D.N.Y. Mar. 26, 2020) (same, for ten immigrant plaintiffs who “suffer[] from chronic medical conditions, and face[] an imminent risk of death or serious injury in immigration detention if exposed to COVID-19”); Calderon Jimenez v. Wolf, No. 18-10225-MLW, Dkt. 507 (D. Mass. Mar. 26, 2020) (ordering grant of bail for an immigrant detainee held in Plymouth County, Massachusetts because “being in jail enhances risk”). On March 23, 2020, the Ninth Circuit ordered, sua sponte, the release of an immigrant petitioner “[i]n light of the rapidly escalating public health crisis, which public health authorities predict will especially impact immigration detention centers.” Xochihua-Jaimes, No. 18-71460, ––––F. App’x––––, 2020 WL 1429877, at *1 (9th Cir. Mar. 23, 2020). B. ICE Has the Authority to Release Detained People in Its Custody 68. It is well within ICE’s authority to comply with constitutional requirements by releasing people who are vulnerable to severe illness or death if they contract COVID-19. For example, the regulations governing ICE’s release authority state that serious medical conditions are a reason to parole an individual, as “continued detention would not be appropriate” in such cases. 8 C.F.R. § 212.5(b)(1). 69. ICE not only has the authority to exercise its discretion to release individuals from custody, but has routinely done so for especially vulnerable detainees like Plaintiffs. 21 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 22 of 26. PageID #: 22 70. This exercise of discretion comes from a long line of agency directives explicitly instructing officers to exercise favorable discretion in cases involving severe medical concerns and other humanitarian equities militating against detention. 71. ICE’s discretion applies regardless of the statutory basis for a noncitizen’s detention. C. This Court Has the Authority to Order Plaintiffs’ Release 72. This Court’s authority to order Plaintiffs’ release to ensure their constitutional rights are protected is well established. District courts have “ample authority” to address “each element” contributing to a constitutional violation. Hutto v. Finney, 437 U.S. 678, 687 (1978). 73. Courts regularly have exercised this authority to remedy constitutional violations caused by overcrowding. See Duran v. Elrod, 713 F.2d 292, 297-98 (7th Cir. 1983) (concluding that court did not exceed its authority in directing release of low-bond pre-trial detainees as necessary to reach a population cap), cert. denied, 465 U.S. 1108 (1984). 74. Where the government fails to meet its obligations to provide for adequate medical care, courts have a responsibility to remedy the resulting constitutional violation. See Brown v. Plata, 563 U.S. 493, 511 (2011). As a result, “[w]hen necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population.” Id. 75. These constitutional principles make clear, consistent with the opinions of leading public health experts, that releasing Plaintiffs is the only viable remedy to ensure their safety from the threat to their health that COVID-19 poses. Plaintiffs are people with underlying medical conditions who are at particularly grave risk of severe illness or death if they contract COVID-19. 76. In the face of this great threat, social distancing and hygiene measures are Plaintiffs’ only defense against COVID-19. Those protective measures are impossible at Seneca and Geauga, where Plaintiffs share close sleeping quarters, toilets, sinks and showers, eat and recreate in 22 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 23 of 26. PageID #: 23 communal spaces, and are unavoidably in close contact with the many other detainees and officers around them. Because these conditions pose a heightened risk of infectious spread, Plaintiffs face unreasonable harm from continued detention. CLAIMS FOR RELIEF Violation of Fifth Amendment Right to Substantive Due Process (Unlawful Punishment) 77. Plaintiffs repeat and reallege each and every allegation above, as if set forth in full 78. The Fifth Amendment of the Constitution guarantees that civil detainees, including herein. all immigrant detainees, may not be subjected to punishment. The federal government violates this substantive due process right when it subjects civil detainees to cruel treatment and conditions of confinement that amount to punishment or does not ensure those detainees’ safety and health. 79. Defendants are subjecting Plaintiffs to heightened risk of contracting COVID-19, for which there is no vaccine, known treatment, or cure. Because of Plaintiffs’ particular vulnerabilities, they risk serious illness and death if infected with COVID-19. Defendants are subjecting Plaintiffs to a substantial risk of serious harm, in violation of Plaintiffs’ rights under the Due Process Clause. 80. Leading public health experts agree that Plaintiffs “are at grave risk of severe illness and death” if they remain at jails like Seneca and Geauga. Accordingly, Defendants’ detention of Plaintiffs amounts to punishment and fails to ensure their safety and health. 81. There is no reasonable relationship between any legitimate government objective and keeping Petitioners detained in their current conditions. 23 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 24 of 26. PageID #: 24 82. For these reasons, Defendants’ ongoing detention of Plaintiffs violates the Due Process Clause. PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that the Court grant the following relief: a. Issue a Writ of Habeas Corpus and order Plaintiffs’ immediate release, with appropriate precautionary public health measures, on the ground that their continued detention violates the Due Process Clause; b. In the alternative, issue injunctive relief ordering Defendants to immediately release Plaintiffs, with appropriate precautionary public health measures, on the ground that their continued detention violates the Due Process Clause; c. Issue a declaration that Defendants’ continued detention in civil immigration custody of individuals at increased risk for severe illness, including older individuals and persons of any age with underlying medical conditions that may increase the risk of serious COVID-19, violates the Due Process Clause; d. Award Plaintiffs their costs and reasonable attorneys’ fees in this action under the Equal Access to Justice Act, as amended, 5 U.S.C. § 504 and 28 U.S.C. § 2412, and on any other basis justified under law; and e. Grant any other and further relief that this Court may deem fit and proper. 24 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 25 of 26. PageID #: 25 Dated: April 10, 2020 Respectfully submitted, /s/ Freda J. Levenson Freda J. Levenson (0045916) Elizabeth Bonham (0093733) Claire Chevrier* ACLU of Ohio Foundation 4506 Chester Avenue Cleveland, OH 44102 Phone: (614) 586-1972 Fax: (614) 586-1974 flevenson@acluohio.org ebonham@acluohio.org cchevrier@acluohio.org Anand V. Balakrishnan** Michael K.T. Tan** Omar C. Jadwat** American Civil Liberties Union Foundation Immigrants’ Rights Project 125 Broad Street, 18th Floor New York, New York 10004 (212) 549-2660 abalakrishnan@aclu.org mtan@aclu.org ojadwat@aclu.org *Application for admission pending David C. Fathi*** Eunice H. Cho*** American Civil Liberties Union Foundation, National Prison Project 915 15th St. N.W., 7th Floor Washington, DC 20005 Telephone: (202) 548-6616 dfathi@aclu.org echo@aclu.org My Khanh Ngo** American Civil Liberties Union Foundation Immigrants’ Rights Project 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 343-0770 mngo@aclu.org 25 Case: 1:20-cv-00789 Doc #: 1 Filed: 04/10/20 26 of 26. PageID #: 26 PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP /s/ Jeannie S. Rhee Jeannie S. Rhee** Mark F. Mendelsohn** Rachel M. Fiorill** Peter E. Jaffe** 2001 K Street NW Washington, D.C. 20006-1047 Telephone: (202) 223-7300 Facsimile: (202) 223-7420 jrhee@paulweiss.com mmendelsohn@paulweiss.com pjaffe@paulweiss.com rfiorill@paulweiss.com Robert J. O’Loughlin Jonathan M. Silberstein-Loeb** Oleg M. Shik** Katharine W. Gadsden** 1285 Avenue of the Americas New York, N.Y. 10019-6064 Telephone: (212) 373-3000 Facsimile: (212) 757-3990 roloughlin@paulweiss.com jsilberstein-loeb@paulweiss.com oshik@paulweiss.com kgadsden@paulweiss.com Attorneys for Plaintiffs ** Application for admission pro hac vice forthcoming *** Application for admission pro hac vice forthcoming; not admitted in D.C.; practice limited to federal courts 26 Case: 1:20-cv-00789 Doc #: 1-1 Filed: 04/10/20 1 of 5. PageID #: 27 (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) (EXCEPT IN U.S. PLAINTIFF CASES) (Firm Name, Address, and Telephone Number) (IN U.S. PLAINTIFF CASES ONLY) (If Known) (Place an “X” in One Box Only) (Place an “X” in One Box for Plaintiff and One Box for Defendant) (For Diversity Cases Only) (U.S. Government Not a Party) or and (Indicate Citizenship of Parties in Item III) (Place an “X” in One Box Only) (Place an “X” in One Box Only) (specify) (Do not cite jurisdictional statutes unless diversity) (See instructions): Case: 1:20-cv-00789 Doc #: 1-1 Filed: 04/10/20 2 of 5. PageID #: 28 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO I. Civil Categories: (Please check one category only). 1. 2. 3. General Civil Administrative Review/Social Security Habeas Corpus Death Penalty *If under Title 28, §2255, name the SENTENCING JUDGE: CASE NUMBER: II. RELATED OR REFILED CASES. See LR 3.1 which provides in pertinent part: "If an action is filed or removed to this Court and assigned to a District Judge after which it is discontinued, dismissed or remanded to a State court, and subsequently refiled, it shall be assigned to the same Judge who received the initial case assignment without regardfor the place of holding court in which the case was refiled. Counsel or a party without counsel shall be responsible for bringing such cases to the attention of the Court by responding to the questions included on the Civil Cover Sheet." This action RELATED to another PENDING civil case REFILED If applicable, please indicate on page 1 in section VIII, the name of the Judge and case number. III. In accordance with Local Civil Rule 3.8, actions involving counties in the Eastern Division shall be filed at any of the divisional offices therein. Actions involving counties in the Western Division shall be filed at the Toledo office. For the purpose of determining the proper division, and for statistical reasons, the following information is requested. ANSWER ONE PARAGRAPH ONLY. ANSWER PARAGRAPHS 1 THRU 3 IN ORDER. UPON FINDING WHICH PARAGRAPH APPLIES TO YOUR CASE, ANSWER IT AND STOP. (1) Resident defendant. If the defendant resides in a county within this district, please set forth the name of such county COUNTY: Corporation For the purpose of answering the above, a corporation is deemed to be a resident of that county in which it has its principal place of business in that district. (2) Non-Resident defendant. If no defendant is a resident of a county in this district, please set forth the county wherein the cause of action arose or the event complained of occurred. COUNTY: (3) Other Cases. If no defendant is a resident of this district, or if the defendant is a corporation not having a principle place of business within the district, and the cause of action arose or the event complained of occurred outside this district, please set forth the county of the plaintiff's residence. COUNTY: IV. The Counties in the Northern District of Ohio are divided into divisions as shown below. After the county is determined in Section III, please check the appropriate division. EASTERN DIVISION AKRON CLEVELAND YOUNGSTOWN (Counties: Carroll, Holmes, Portage, Stark, Summit, Tuscarawas and Wayne) (Counties: Ashland, Ashtabula, Crawford, Cuyahoga, Geauga, Lake, Lorain, Medina and Richland) (Counties: Columbiana, Mahoning and Trumbull) WESTERN DIVISION TOLEDO (Counties: Allen, Auglaize, Defiance, Erie, Fulton, Hancock, Hardin, Henry, Huron, Lucas, Marion, Mercer, Ottawa, Paulding, Putnam, Sandusky, Seneca VanWert, Williams, Wood and Wyandot) Case: 1:20-Cv-00789 Doc 1-1 Filed: 04/10/20 30f5. Page D#: 29 INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44 Authority For Civil Cover Sheet The 44 civil cover sheet and the information contained herein neither replaces nor supplements the ?lings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint ?led. The attorney ?ling a case should complete the form as follows: (C) II. IV. VI. VII. Plaintiffs-Defendants. Enter names (last, ?rst, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an of?cial within a government agency, identify ?rst the agency and then the of?cial, giving both name and title. County of Residence. For each civil case ?led, except U.S. plaintiff cases, enter the name of the county where the ?rst listed plaintiff resides at the time of ?ling. In US. plaintiff cases, enter the name of the county in which the ?rst listed defendant resides at the time of ?ling. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) Attorneys. Enter the ?rm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)". Jurisdiction. The basis of jurisdiction is set forth under Rule which requires that jurisdictions be shown in pleadings. Place an in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and of?cers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its of?cers or agencies, place an in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the US. is a party, the US. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section below; NOTE: federal question actions take precedence over diversity cases.) Residence (citizenship) of Principal Parties. This section of the 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. Nature of Suit. Place an in the appropriate box. If there are multiple nature of suit codes associated with the case, pick the nature of suit code that is most applicable. Click here for: Nature of Suit Code Descriptions. Origin. Place an in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the ?ling date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the ?ling date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation Transfer. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. Multidistrict Litigation Direct File. (8) Check this box when a multidistrict case is ?led in the same district as the Master MDL docket. PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statue. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: US. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service Requested in Complaint. Class Action. Place an in this box if you are ?ling a class action under Rule 23, Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. Related Cases. This section of the 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet. Case: 1:20-cv-00789 Doc 1-1 Filed Freda J. Levenson ACLU of Ohio Foundation 4506 Chester Avenue Cleveland, OH 44103 Phone: (614) 586-1972 Elizabeth Bonham ACLU of Ohio Foundation 4506 Chester Avenue Cleveland, OH 44103 Phone: (614) 586-1972 Claire Chevrier ACLU of Ohio Foundation 1108 City Park Ave. Ste. 203 Columbus, OH 43206 Phone: (614) 586-1972 David C. Fathi American Civil Liberties Union Foundation National Prison project 915 15th St. NW 7th Floor Washington, DC 20005 Phone: (202) 548-6616 Eunice H. Cho American Civil Liberties Union Foundation National Prison project 915 15th St. NW 7th Floor Washington, DC 20005 Phone: (202) 548-6616 Anand V. Balakrishnan American Civil Liberties union Foundation Immigrants? Rights project 125 Broad St. 18th Floor New York, NY 10004 Phone: (212) 549-2660 Michael K. T. Tan American Civil Liberties union Foundation lmmigrants? Rights project 125 Broad St. 04/10/20 4 of5. PagelD#: 30 Case: 1:20-cv-00789 Doc 1-1 Filed 18th Floor New York, NY 10004 Phone: (212) 549-2660 Omar C. Jadway American Civil Liberties union Foundation Immigrants? Rights project 125 Broad St. 18th Floor New York, NY 10004 Phone: (212) 549-2660 My Khanh Ngo American Civil Liberties union Foundation Immigrants? Rights project 39 Drumm St. San Fransisco, CA 94111 Phone: (415) 343-0770 Jeannie S. Rhee Paul, Weiss, Rifkind, Wharton Garrison, LLP 2001 St. NW Washington, DC. 20006 Phone: (202) 223-7300 Jonathan M. Silberstein-Loeb Paul, Weiss, Rifkind, Wharton Garrison, LLP 1285 Avenue of the Americas New York, NY 10019 Phone: (212) 373-3000 Oleg M. Shik Paul, Weiss, Rifkind, Wharton Garrison, LLP 1285 Avenue of the Americas New York, NY 10019 Phone: (212) 373-3000 Katharine W. Gadsden Paul, Weiss, Rifkind, Wharton Garrison, LLP 1285 Avenue of the Americas New York, NY 10019 Phone: (212) 373-3000 04/10/20 5 of5. Page D#: 31 Case: 1:20-cv-00789 Doc #: 1-2 Filed: 04/10/20 1 of 10. PageID #: 32 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the NorthernDistrict Districtofof__________ Ohio __________ ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff(s) v. Defendant(s) Civil Action No. SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case: 1:20-cv-00789 Doc #: 1-2 Filed: 04/10/20 2 of 10. PageID #: 33 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date) . I personally served the summons on the individual at (place) on (date) ; or I left the summons at the individual’s residence or usual place of abode with (name) , a person of suitable age and discretion who resides there, on (date) , and mailed a copy to the individual’s last known address; or , who is I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization) on (date) ; or I returned the summons unexecuted because ; or Other (specify): . My fees are $ for travel and $ for services, for a total of $ I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc: . Case: 1:20-cv-00789 Doc #: 1-2 Filed: 04/10/20 3 of 10. PageID #: 34 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the NorthernDistrict Districtofof__________ Ohio __________ ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff(s) v. Defendant(s) Civil Action No. SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case: 1:20-cv-00789 Doc #: 1-2 Filed: 04/10/20 4 of 10. PageID #: 35 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date) . I personally served the summons on the individual at (place) on (date) ; or I left the summons at the individual’s residence or usual place of abode with (name) , a person of suitable age and discretion who resides there, on (date) , and mailed a copy to the individual’s last known address; or , who is I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization) on (date) ; or I returned the summons unexecuted because ; or Other (specify): . My fees are $ for travel and $ for services, for a total of $ I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc: . Case: 1:20-cv-00789 Doc #: 1-2 Filed: 04/10/20 5 of 10. PageID #: 36 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the NorthernDistrict Districtofof__________ Ohio __________ ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff(s) v. Defendant(s) Civil Action No. SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case: 1:20-cv-00789 Doc #: 1-2 Filed: 04/10/20 6 of 10. PageID #: 37 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date) . I personally served the summons on the individual at (place) on (date) ; or I left the summons at the individual’s residence or usual place of abode with (name) , a person of suitable age and discretion who resides there, on (date) , and mailed a copy to the individual’s last known address; or , who is I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization) on (date) ; or I returned the summons unexecuted because ; or Other (specify): . My fees are $ for travel and $ for services, for a total of $ I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc: . Case: 1:20-cv-00789 Doc #: 1-2 Filed: 04/10/20 7 of 10. PageID #: 38 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the NorthernDistrict Districtofof__________ Ohio __________ ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff(s) v. Defendant(s) Civil Action No. SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case: 1:20-cv-00789 Doc #: 1-2 Filed: 04/10/20 8 of 10. PageID #: 39 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date) . I personally served the summons on the individual at (place) on (date) ; or I left the summons at the individual’s residence or usual place of abode with (name) , a person of suitable age and discretion who resides there, on (date) , and mailed a copy to the individual’s last known address; or , who is I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization) on (date) ; or I returned the summons unexecuted because ; or Other (specify): . My fees are $ for travel and $ for services, for a total of $ I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc: . Case: 1:20-cv-00789 Doc #: 1-2 Filed: 04/10/20 9 of 10. PageID #: 40 AO 440 (Rev. 06/12) Summons in a Civil Action UNITED STATES DISTRICT COURT for the NorthernDistrict Districtofof__________ Ohio __________ ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff(s) v. Defendant(s) Civil Action No. SUMMONS IN A CIVIL ACTION To: (Defendant’s name and address) A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are: If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. CLERK OF COURT Date: Signature of Clerk or Deputy Clerk Case: 1:20-cv-00789 Doc #: 1-2 Filed: 04/10/20 10 of 10. PageID #: 41 AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2) Civil Action No. PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l)) This summons for (name of individual and title, if any) was received by me on (date) . I personally served the summons on the individual at (place) on (date) ; or I left the summons at the individual’s residence or usual place of abode with (name) , a person of suitable age and discretion who resides there, on (date) , and mailed a copy to the individual’s last known address; or , who is I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization) on (date) ; or I returned the summons unexecuted because ; or Other (specify): . My fees are $ for travel and $ for services, for a total of $ I declare under penalty of perjury that this information is true. Date: Server’s signature Printed name and title Server’s address Additional information regarding attempted service, etc: .