STATE OF NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
No. 20CVS500110

NORTH CAROLINA STATE
CONFERENCE OF THE NAACP, et al.,
Plaintiff-Petitioners,
v.
ROY COOPER, et al.,
Defendant-Respondents.

MOTION FOR CLARIFICATION
AND REQUEST FOR HEARING
Plaintiffs respectfully move the Court to clarify its May 13, 2020 Order and to
set a hearing, pursuant to this Court’s May 1, 2020 Order for Additional
Information, regarding the adequacy of the materials submitted by Defendants on
May 8, 2020. Specifically, Plaintiffs seek clarification as to the status of their
motion for a preliminary injunction, which was not ruled upon in the Court’s May
13, 2020 Order, and request that the Court hold a hearing, as referenced in its May
1, 2020 Order, to allow Plaintiffs an opportunity to respond to the filings submitted
by Defendants on May 8, 2020, before ruling on the Motion for Preliminary
Injunction.

 In support of this Motion for Clarification and Request for Hearing, Plaintiffs
state the following:
1.

On April 20, 2020, Plaintiffs filed a Complaint and Petition for Writ of

Mandamus, challenging Defendants’ response to the COVID-19 pandemic as a
violation of Article I, Section 27 of the North Carolina Constitution because it
exposes people incarcerated in state prisons to an excessive risk of harm. On the
same date, Plaintiffs filed a motion for a temporary restraining order and
preliminary injunction.
2.

The parties briefed the issues and submitted evidence. The Court held a

hearing via WebEx on April 28, 2020.
3.

On May 1, 2020, the Court issued an Order for Additional Information. The

Court found that “exposure of incarcerated individuals to COVID-19 creates a
serious and substantial risk of harm, up to and including death[,]” and that “social
distancing is the ‘cornerstone’ procedure for preventing the spread of COVID-19[.]”
Order of May 1, 2020 at 2.
4.

The Court explained that, based on Defendants’ submissions, it could not

determine whether Defendants were complying with their statutory and
constitutional obligations to mitigate the spread of COVID-19 in state prisons. Id.
Thus, the Court ordered Defendants to provide additional information concerning
their response to COVID-19, including the extent to which incarcerated persons
could practice social distancing. Id. at 3-4. The Court also ordered Plaintiffs to
produce information concerning the availability of reentry services throughout the

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 state, and ordered both parties to confer and submit candidates to potentially serve
as a special master. Id. at 5-6.
5.

The May 1, 2020 Order further stated: “The Court will schedule a hearing as

soon as feasible upon receipt of all ordered documents on the adequacy of the
information and plan produced by Defendants and will make such further orders as
necessary at that time.” Id. at 6.
6.

On May 8, 2020, Defendants submitted their response to the Court’s Order.

7.

On May 13, 2020, the Court issued an Order denying Plaintiffs’ motion for a

temporary restraining order and petition for writ of mandamus. The Order does not
resolve Plaintiffs’ motion for a preliminary injunction and does not set a future
hearing on that motion. See Order of May 13 at 2.
8.

Plaintiffs respectfully request the Court hold the hearing that it

contemplated in its May 1, 2020 Order as to the adequacy of the information and
plan produced by Defendants and allow Plaintiffs to respond to Defendants’
submissions by written submission.
9.

Plaintiffs seek an opportunity to argue before the Court, among other issues,

the following admissions made and deficiencies contained in Defendants’ filings that
are highly pertinent to whether Defendants are violating the Constitution:
a. Despite indicating “Yes” on the adult facilities spreadsheet as to
whether each prison in Defendants’ system is in compliance with U.S.
Centers for Disease Control and Prevention (“CDC”) best practices
guidelines, the affidavits submitted by Defendants contain admissions
that directly contradict such a conclusion and are sufficient to
establish constitutional violations.

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 b. Defendants admit that incarcerated people “housed in dorms sleep in
bunks spread throughout a large room with dozens of other[s],” and
that “due to limited square footage, the bunks cannot be spaced out
any further than they already are positioned.” Ishee May 7, 2020 Aff.
¶¶65-67.
c. Defendants provide detailed and facility-specific affidavits only as to
less than half of their adult facilities. Thus, Defendants have failed to
comply with the most basic requirement of the Court’s Mary 1, 2020
Order. Moreover, not a single facility-specific affidavit states that
incarcerated people are able to maintain six feet of distance at all
times in their facility, and some affidavits from facilities with
confirmed cases of COVID-19 explicitly state that even in those
facilities, dormitory beds are placed less than six feet apart. See, e.g.,
Riddick-Taylor Second Aff. ¶7(a) (“[I]t has not been able [sic] to space
each dormitory bed six or more feet apart, as it is not feasible given the
current number of offenders housed in the dormitories and square
footage of the dormitories.”); Vaughan Second Aff. ¶7(f) (“Due to the
number of [incarcerated people] and layout of the facility, bunks
cannot be place [sic] 6 feet apart.”).
d. Defendants take the position that each of their facilities is able to
“suitably prevent the spread of COVID-19” because “more than 40 of
North Carolina’s 51 adult prison facilities have no confirmed cases of
COVID-19, and none of North Carolina’s juvenile facilities have
confirmed cases.” Defs’ Resp. to Request for Additional Information
(“Defs’ Resp.”) at 4. But at 42 of the state’s adult prisons, the
Department of Public Safety (“DPS”) has administered ten or less
COVID-19 tests, and at 18 facilities, they have administered zero
tests. 1 Indeed, except for at Neuse Correctional Institution and the
North Carolina Correctional Institution for Women, DPS’s policy
continues to be to test only those people who exhibit external
symptoms of COVID-19, despite the fact that COVID-19 is frequently
spread by people who are asymptomatic and/or pre-symptomatic.
e. Defendants represent to the Court that despite their admissions that
adequate social distancing is currently impossible in their facilities,
they are nonetheless meeting CDC guidelines because they have
“create[d] discrete cohorts of offenders,” and are making efforts to keep
those cohorts separate from each other. Ishee May 7, 2020 Aff. ¶19.
N.C. Dep’t of Public Safety (“NC DPS”), Prisons Info on COVID-19, OffenderRelated COVID-19 Data (May 15, 2020 4:30 PM), https://www.ncdps.gov/ourorganization/adult-correction/prisons/prisons-info-covid-19
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 But the CDC guidelines, which Defendants have attached to their
submissions, state that “[c]ohorting should only be practiced if there
are no other available options,” and in those cases where cohorting is
absolutely necessary, prisons should “not cohort confirmed cases with
suspected cases or case contacts.” Id., Ex. A (“Interim Guidance on
Management of Coronavirus Disease 2019 (COVID-19) in Correctional
and Detention Facilities”). In the vast majority of their adult prisons,
Defendants have no systematic testing regime in place. As noted
above, in 42 of their 51 adult prisons, they have tested ten or less
incarcerated people for COVID-19. Defendants currently have no idea
whether they are cohorting people who have the disease with those
who do not, and their submissions make clear that they have no plan
in place to figure that out.
10.

Given the gravity of the issues before the Court—which involve constitutional

and imminent bodily harm to thousands of North Carolina’s most vulnerable
people—and the Court’s previous order stating that a second hearing would be held
on the matter, Plaintiffs respectfully request clarification of the Court’s May 13,
2020 Order and an opportunity to address Defendants’ May 8, 2020 submissions.

Respectfully submitted on this 15th day of May, 2020.
/s/ Leah J. Kang
Leah J. Kang (NC Bar #51735)
Kristi L. Graunke (NC Bar #51216)
Daniel K. Siegel (NC Bar #46397)
Irena Como (NC Bar #51812)
ACLU of North Carolina
Legal Foundation, Inc.
P.O. Box 28004
Raleigh, NC 27611
(919) 354-5066
kgraunke@acluofnc.org
lkang@acluofnc.org
dsiegel@acluofnc.org
icomo@acluofnc.org

Dawn N. Blagrove (NC Bar #36630)
Elizabeth G. Simpson (NC Bar #41596)
Emancipate NC
P.O. Box 309
Durham, NC 27702
(919) 682-1149
dawn@emancipatenc.org
elizabeth@emancipatenc.org

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 Lisa Grafstein (NC Bar #22076)
Luke Woollard (NC Bar #48179)
Susan H. Pollitt (NC Bar #12648)
Disability Rights North Carolina
3724 National Drive Suite 100
Raleigh, NC 27612
(919) 856-2195
lisa.grafstein@disabilityrightsnc.org
luke.woollard@disabilityrightsnc.org
susan.pollitt@disabilityrightsnc.org

Daryl Atkinson (NC Bar #39030)
Whitley Carpenter (NC Bar #49657)
Forward Justice
400 W. Main St., Suite 203
Durham, NC 27701
(919) 323-3889
daryl@forwardjustice.org
wcarpenter@forwardjustice.org

K. Ricky Watson, Jr. (NC Bar #43889)
National Juvenile Justice Network
1734 Connecticut Avenue, NW #1
Washington, DC 20009
(202) 878-6655
watson@njjn.org

Irving Joyner (NC Bar #7830)
P.O. Box 374
Cary, NC 27512
(919) 319-8353
ijoyner@nccu.edu

Attorneys for Plaintiff-Petitioners

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 CERTIFICATE OF SERVICE
I certify that on May 15, 2020, I served the foregoing document on the
following:
Stephanie A. Brennan
Tammera S. Hill
North Carolina Department of Justice
P.O. Box 629
Raleigh, NC 27602
sbrennan@ncdoj.gov
thill@ncdoj.gov
This is the 15th day of May, 2020
/s/ Leah J. Kang
Leah J. Kang
Attorney for Plaintiff-Petitioners