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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
Favian Busby, Terric Edwards, Russell
Leaks, Saul Molina Martinez, Joseph
Nelson, and Mark Phillips, on their own
behalf and on behalf of those similarly
situated;
PetitionersPlaintiffs,
v.
Floyd Bonner, Jr., in his official capacity,
Shelby County Sheriff, and the Shelby
County Sheriff’s Office;
RespondentsDefendants.

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Case No. 2:20-cv-2359-SHL
[PROPOSED] SECOND
AMENDED PETITION FOR
WRIT OF HABEAS CORPUS
AND CLASS ACTION
COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF

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INTRODUCTION
1.

This action seeks urgent habeas, declaratory, and injunctive relief to

protect people in the Shelby County Jail (the “Jail”)—as well as Jail staff, their families,
and the Memphis community as a whole—from widespread infection, serious injury, and
death from COVID-19. Plaintiffs seek to represent a class of pretrial detainees held at the
Jail and request relief from this Court to limit the spread of COVID-19 and to protect
vulnerable people, in the Jail and in the community, from serious complications or death
from COVID-19 infection.
2.

COVID-19 has created a global health crisis. Across the United States and

the world, governments have implemented drastic but necessary mitigation strategies,
including canceling public events, closing schools and businesses, and issuing stay-athome orders to the general public.
3.

On March 12, 2020, Governor Bill Lee declared a state of emergency in

Tennessee in response to COVID-19, 1 which he has repeatedly extended. 2 The Tennessee
Department of Health reports that as of September 10, 2020, 166,587 Tennesseans have

1

Office of the Governor, Gov. Bill Lee Issues Executive Order Declaring State of Emergency in
Response to COVID-19 (Mar. 12, 2020), https://www.tn.gov/governor/news/2020/3/12/gov--bill-leeissues-executive-order-declaring-state-of-emergency-in-response-to-covid-19.html.

2

https://www.tn.gov/governor/news/2020/6/29/gov--lee-extends-state-of-emergencyto-aug--29--2020.html - :~:text=29%2C%202020,New%20executive%20orders&text=%E2%80%93%20Tennessee%20Governor%20B
ill%20Lee%20today,pandemic%20to%20August%2029%2C%202020.E.g., Office of
the Governor, Gov. Lee Signs Extends State of Emergency to Aug. 29, 2020 (June 29, 2020),
https://www.tn.gov/governor/news/2020/6/29/gov--lee-extends-state-of-emergency-to-aug--29-2020.html; Office of the Governor, Gov. Lee Signs Executive Orders Extending State of Emergency,
Regulatory Flexibility, Local Authority on Facial Coverings (Aug. 28, 2020),
https://www.tn.gov/governor/news/2020/8/28/gov--lee-signs-executive-orders-extending-state-ofemergency--regulatory-flexibility--local-authority-on-facial-coverings.html; see generally Office of the
Governor, COVID-19 Timeline, https://www.tn.gov/governor/covid-19/covid19timeline.html (last
visited Sept. 10, 2020).

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been infected with COVID-19, with 7,444 hospitalizations and 1,931 deaths. 3 More
deaths have occurred in Shelby County than any other county in Tennessee. 4
4.

Governments have declared states of emergency and issued stay-at-home

orders for good reason. There is no vaccine or cure for COVID-19. The only known way
to mitigate the risk of COVID-19 infections, complications, and death is prevention:
social distancing of at least six feet between people to limit exposure, and hygienic
measures, such as frequent hand-washing, wearing face masks, and sanitization of hightouch surfaces. Particularly in indoor environments, where COVID-19 can further spread
through aerosolized droplets, these measures are essential. 5
5.

It is impossible for people in jail or prison to comply with these critical

preventative measures. People in jail live in close, poorly ventilated quarters in small,
crowded cells, and cannot “socially distance” by maintaining the recommended six feet
of distance from other people. Many people in jail have limited access to soap, personal
protective equipment (“PPE”), and hand sanitizer. The pretrial detainees at the Jail are no
exception.
6.

As a result, prisons and jails have become epicenters of COVID-19. 6 As of

August 28, 2020, 231 people held in Shelby County jails had tested positive for COVID-

3

4

5

6

Tenn. Dep’t of Health, Coronavirus Disease (COVID-19), https://www.tn.gov/health/cedep/ncov.html
(last visited Sept. 10, 2020); Tenn. Dep’t of Health, Epidemiology and Surveillance Data,
https://www.tn.gov/content/tn/health/cedep/ncov/data.html (last visited Sept. 10, 2020).
Tenn. Dep’t of Health, Epidemiology and Surveillance Data,
https://www.tn.gov/content/tn/health/cedep/ncov/data.html (last visited Sept. 10, 2020).
See Linda Morawska & Donald K. Milton, It Is Time to Address Airborne Transmission of COVID-19,
Accepted Manuscript, Oxford University Press for the Infectious Diseases Society of America (July 6,
2020), https://academic.oup.com/cid/advance-article/doi/10.1093/cid/ciaa939/5867798.
See, e.g., Janet Reitman, ‘Something Is Going to Explode’: When Coronavirus Strikes a Prison, N.Y.
TIMES MAGAZINE (Apr. 18, 2020), https://www.nytimes.com/2020/04/18/magazine/oakdale-federalprison-coronavirus.html; Timothy Williams and Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as
Virus Spreads Behind Bars, N.Y. TIMES (Apr. 8, 2020),
https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jail-chicago.html; Deanna Paul and

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19, as had 162 people who work at the jails. 7 One jail employee to date has died from
COVID-19. 8
7.

Defendants are inescapably on notice of the numerous respects in which

the conditions at the Jail are unsafe and inadequate: Plaintiffs have sent a demand letter,
filed two complaints, and submitted declarations and testimony from several detainees
outlining the troubling conditions in the Jail during this pandemic. Two expert
inspectors—one appointed by the Court—have testified and issued reports expressing
alarm at the methodology employed at the Jail to contain the virus. Most recently, on
August 7, 2020, the Court itself identified multiple “grave areas of concern” regarding
the conditions at the Jail and twice urged the Shelby County Sheriff’s Office to
“improv[e]” its current practices. After expressing “doubts . . . as to whether the
conditions at the Jail are legally sufficient,” the Court urged the Jail to remedy these
“public health lapses” in short order. 9
8.

More than one month has passed since the Court issued its Order.

Regrettably, Defendants do not appear to have taken the Court’s forceful admonitions to
heart. While the Jail temporarily made improvements to certain conditions, apparently in
preparation for the inspections by court-appointed inspector Michael Brady and
Plaintiffs’ expert Dr. Homer Venters, most of those improvements lapsed shortly after the
inspections occurred. In many respects—despite the fact that Defendants have had every

7
8

9

Ben Chapman, Rikers Island Jail Guards Are Dying in One of the Worst Coronavirus Outbreaks,
WALL STREET JOURNAL (Apr. 22, 2020), wsj.com/articles/rikers-island-jail-guards-are-dying-in-oneof-the-worst-coronavirus-outbreaks-11587547801.
https://twitter.com/ShelbyTNSheriff/status/1299421926272761860.
Brandon Richard, Shelby County Sees Big Spike in COVID-19 Cases as Testing Expands, WMC
Action News (Apr. 27, 2020), https://www.wmcactionnews5.com/2020/04/27/shelby-county-sees-bigspike-covid-cases-testing-expands/.
ECF No. 124 at Pg.ID 2818, 2819, 2821.

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opportunity and incentive to provide safe conditions for those in their custody—the Jail is
no safer than it was when Plaintiffs first filed their Complaint several months ago.
9.

Favian Busby, Russell Leaks, Joseph Nelson, Terric Edwards, Saul

Molina Martinez, and Mark Phillips (the “Named Plaintiffs”) are individuals held at the
Jail who seek to represent a class of all current and future persons in pretrial custody at
the Jail (the “Class”). Mr. Busby, Mr. Leaks, Mr. Nelson, Mr. Edwards, and Mr. Phillips
also seek to represent a subclass of all current and future medically vulnerable (as defined
below) pretrial detainees held at the Jail who, according to the Centers for Disease
Control and Prevention (the “CDC”), are at high risk of severe infection or death from
COVID-19 (the “Medically Vulnerable Subclass”). Mr. Busby, Mr. Leaks, Mr. Edwards,
Mr. Nelson, and Mr. Phillips also seek to represent a subclass of current and future
pretrial detainees who are medically vulnerable and at high risk of severe injury or death
from COVID-19 due to disabilities protected under the Americans with Disabilities Act
(“ADA”) and Section 504 of the Rehabilitation Act (the “Disability Subclass”).
10.

Plaintiffs bring this action because the Jail has failed to uphold its

constitutional and statutory minimum requirements, putting Plaintiffs—as well as the
Jail’s staff and the community at large—at unacceptable risk of infection from COVID19. People detained at the Jail are forced to live, sleep, and eat in close proximity to each
other, are not provided with appropriate sanitary and protective measures, and are unable
to access critical medical resources, placing them at extraordinary risk of infection with a
potentially fatal disease.

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JURISDICTION AND VENUE
11.

This Court has subject matter jurisdiction over this matter under 28 U.S.C.

§ 1331 (federal question jurisdiction), § 1343 (civil rights), and § 2201 (Declaratory
Judgment Act).
12.

Venue lies in the U.S. District Court for the Western District of

Tennessee, the judicial district in which Plaintiffs are currently in custody. Venue is
proper in the Western District of Tennessee under 28 U.S.C. § 1391, as venue is proper in
any district in which a defendant resides.
PARTIES
13.

Favian Busby is a pretrial detainee who is being held at the Jail. He has

diabetes and takes insulin. Additionally, he has developed hypertension as a result of his
diabetes. These conditions put him at high risk of serious illness or death if he contracts
COVID-19. Mr. Busby has fully exhausted the remedies available to him regarding the
conditions in the Jail. Mr. Busby is a person with a disability for purposes of the ADA
and the Rehabilitation Act.
14.

Terric Edwards is a pretrial detainee who is being held at the Jail. He has

asthma and high blood pressure. He uses an inhaler every day to treat his asthma and
takes medication to manage his blood pressure. Mr. Edwards has fully exhausted the
remedies available to him regarding the conditions in the Jail. Mr. Edwards is a person
with a disability for purposes of the ADA and the Rehabilitation Act.
15.

Russell Leaks is a pretrial detainee who is being held at the Jail. He is 65

years old and has chronic liver disease, including hepatitis. Mr. Leaks also has
hypertension, an irregular heartbeat, and he previously had a heart attack. He is at high

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risk of serious illness or death if he contracts COVID-19. Mr. Leaks has fully exhausted
the remedies available to him regarding the conditions in the Jail. Mr. Leaks is a person
with a disability for the purposes of the ADA and the Rehabilitation Act.
16.

Saul Martinez is a pretrial detainee who is being held at the Jail.

Mr. Martinez has fully exhausted the remedies available to him regarding the conditions
in the Jail.
17.

Joseph Nelson is a pretrial detainee who is being held at the Jail. He has

diabetes, which he manages with insulin and Metformin. He has also developed
hypertension as a result of diabetes. He is at high risk of serious illness or death if he
contracts COVID-19. Mr. Nelson has fully exhausted the remedies available to him
regarding the conditions in the Jail. Mr. Nelson is a person with a disability for the
purposes of the ADA and the Rehabilitation Act.
18.

Mark Phillips is a pretrial detainee who is being held at the Jail. He has

primary progressive multiple sclerosis and tachycardia. The medication he takes to
manage his multiple sclerosis is an immunosuppressant. Mr. Phillips is a person with a
disability for the purposes of the ADA and the Rehabilitation Act.
19.

Defendant Floyd Bonner, Jr. is the Sheriff of Shelby County, Tennessee

and may be served with process at 201 Poplar Avenue, 9th Floor, Memphis, Tennessee
38103. Defendant Bonner is named in this action in his official capacity as the Sheriff of
Shelby County.
20.

Defendant Shelby County Sheriff’s Department is a Tennessee

governmental department which, by virtue of its custody of Plaintiffs, is a party

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defendant to this matter. Defendant Shelby County Sheriff’s Department may be served
with process by serving Sheriff Floyd Bonner, Jr.
FACTUAL ALLEGATIONS
A. COVID-19 Is a Highly Infectious and Deadly Pandemic
21.

COVID-19 is an extremely infectious disease that is transmitted from

person-to-person. As of September 14, 2020, at least 28,918,900 people worldwide have
tested positive for the virus and 922,252 people have died. 10 In the United States, at least
6,467,481 people have contracted the virus, and 193,195 people have died from it. 11 Data
is still emerging, but as of September 13, 2020, 3% of COVID-19 diagnoses result in
death in the United States. 12 In some other countries, the mortality rate has been
substantially higher.
22.

COVID-19 can cause grave injury to multiple organ systems. In many

people, COVID-19 causes fever, cough, and shortness of breath, which can be severe. It
can severely, even fatally, damage lung tissue. COVID-19 may also target the heart
muscle, causing a life-threatening medical condition called myocarditis, or inflammation
of the heart muscle. COVID-19 can further damage tissue in a cytokine-release syndrome
that can result in death or widespread damage to other organs, including permanent injury
to the kidneys and neurologic injury.
23.

When patients experience these severe consequences of COVID-19, they

require supportive care, including scarce medical equipment and specialized care

10

11

12

World Health Organization, Coronavirus Disease (Covid-19) Pandemic (2020), https://www.who.int/
emergencies/diseases/novel-coronavirus-2019 (last visited Sept. 14, 2020)
Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): Cases and Latest
Updates, https://covid.cdc.gov/covid-data-tracker/#cases_totalcases (last visited Sept. 13, 2020).
Johns Hopkins University & Medicine, Coronavirus Research Center,
https://coronavirus.jhu.edu/data/mortality (last visited Sept. 14, 2020).

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providers, such as nurses, respiratory therapists, and intensive care physicians, to monitor
and implement this care. This level of support can exceed local health-care resources.
And even with this advanced support, many still die.
24.

Patients who survive severe complications from COVID-19 often require

extensive, long-term rehabilitation to mitigate neurologic damage and the loss of
respiratory capacity. 13 Some will likely experience lifelong limitations and disabilities as
a result of severe COVID-19.
1. Impact of COVID-19 on Certain Populations
25.

Certain groups of people are at higher risk of serious illness and death

from COVID-19 than the general population. Age is a significant risk factor for
complications and death from COVID-19: The CDC reports that 80% of those who have
died of COVID-19 in the United States have been 65 or older. 14
26.

In addition, the CDC has recognized considerable evidence that people

with the following underlying medical conditions are, or likely are, at an increased risk of
severe illness from COVID-19: cancer, chronic kidney disease; chronic lung disease,
including chronic obstructive pulmonary disease, emphysema, chronic bronchitis, and
pulmonary fibrosis; immunocompromised state from organ, blood, or bone marrow
transplant, immune deficiencies, HIV, or use of corticosteroids and other immune
weakening medicines; obesity (body mass index of 30 or higher); serious heart
conditions, including heart failure, coronary artery disease, cardiomyopathies, and

13

14

See Ed Yong, Long-Haulers Are Redefining COVID-19, THE ATLANTIC (Aug. 19, 2020),
https://www.theatlantic.com/health/archive/2020/08/long-haulers-covid-19-recognition-supportgroups-symptoms/615382/.
Centers for Disease Control and Prevention, Older Adults (updated Sept. 11, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html.

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hypertension; sickle cell disease; diabetes; moderate-to-severe asthma; cerebrovascular
disease; cystic fibrosis; hypertension or high blood pressure; neurologic conditions; liver
disease; pulmonary fibrosis; pregnancy; smoking; and thalassemia. 15
27.

In addition, it is well-documented that African Americans have

experienced significantly worse outcomes following infection with coronavirus than
others. 16 Recent analysis of CDC data shows that the COVID-19 mortality rate among
African Americans is more than twice that of white Americans. 17 On any given day, the
population of the Jail is typically more than 86 percent African American. 18
2. Means of Transmission
28.

Experts agree that the virus is primarily spread through person-to-person

contact, via respiratory droplets produced when an infected person breathes out, coughs,
sneezes, speaks, or even simply clears their throat. Large droplets remain in the air for
seconds to minutes before they fall to the ground or land on other surfaces. Smaller
droplets, on the other hand, are aerosolized and can remain in the air for as long as three
hours. 19
29.

Moreover, the fact that COVID-19 droplets are aerosolized means that the

droplets travel significantly greater distances—between 7 and 16 feet from infected
15

16

17

18

19

Centers for Disease Control and Prevention, People with Certain Medical Conditions (updated Sept.
11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medicalconditions.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fneed-extra-precautions%2Fgroups-at-higher-risk.html.
E.g., Richard A. Oppel Jr. et al., The Fullest Look Yet at the Racial Inequity of Coronavirus, N.Y.
TIMES (July 5, 2020), https://www.nytimes.com/interactive/2020/07/05/us/coronavirus-latinos-africanamericans-cdc-data.html.
APM Research Lab Staff, Covid-19 Deaths by Races and Ethnicity in the U.S., APM Research Lab
(Aug. 18, 2020), https://www.apmresearchlab.org/covid/deaths-by-race.
See MacArthur Foundation, Safety + Justice Challenge, “Shelby County, TN,”
http://www.safetyandjusticechallenge.org/challenge-site/shelby-county/ (last visited Sept. 2, 2020).
See Linda Morawska & Donald K. Milton, It Is Time to Address Airborne Transmission of COVID19, Accepted Manuscript, Oxford University Press for the Infectious Diseases Society of America
(July 6, 2020), https://academic.oup.com/cid/advance-article/doi/10.1093/cid/ciaa939/5867798.

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patients, according to at least one study. 20 The potential for infection through this
mechanism is even higher when people are indoors, in light of the limited movement and
exchange of air. 21
30.

Studies from China found that individuals could be infected simply by

being in the same restaurant as a person with COVID-19, despite having had no direct or
indirect contact with the COVID-positive patron also eating there, and that airconditioned ventilation transmitted the virus and infected others in the restaurant. 22
Likewise, of the aerosol samples collected in the hospital room of infected patients,
63.2% of in-room air samples and 58.3% of hallway air samples tested positive for the
virus—even though patients had not coughed prior to collection of the samples. 23 In
short, there is little doubt that the mere exhalation of an infected person indoors can
generate aerosolized droplets that travel more than six feet, linger in the air for hours, and
have the potential to infect others.
3. The Need for Preventive Measures
31.

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—estimated that a
vaccine could be developed in 18 months. Other experts have cautioned that the 18month estimate is highly optimistic, as vaccines typically take between 8 and 10 years to

20

21

22

23

Lindsey C. Marr, Ph.D., Yes, the Coronavirus is in the Air, N.Y. TIMES (July 30, 2020),
https://www.nytimes.com/2020/07/30/opinion/coronavirus-aerosols.html.
Apoorva Mandavilli, 239 Experts with One Big Claim: The Coronavirus is Airborne, N.Y. TIMES (July
7, 2020), https://www.nytimes.com/2020/07/04/health/239-experts-with-one-big-claim-thecoronavirus-is-airborne.html.
Lindsey C. Marr, Ph.D., Yes, the Coronavirus is in the Air, N.Y. TIMES (July 30, 2020),
https://www.nytimes.com/2020/07/30/opinion/coronavirus-aerosols.html.
Id.

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develop. And, in any event, the effectiveness of any vaccine that is developed and the
ability to administer it broadly in the United States will remain significant wildcards.
32.

In the absence of a vaccine, a treatment, or a cure, the only known

measure that vulnerable people can take to reduce the risk of severe illness or death from
COVID-19 is to prevent exposure to the virus in the first place. Yet asymptomatic
carriers of COVID-19, who show no apparent signs of illness, can also transmit the virus.
The only known measure to prevent exposure to the virus is social distancing—remaining
physically separated from known or potentially infected individuals—and vigilant
hygiene, including washing hands with soap and water and cleaning and disinfecting
frequently touched surfaces. In light of the possibility of asymptomatic transmission and
in the absence of widely available testing, the only way to protect oneself from
contracting the virus is to remain distant from all other people.
33.

The world, the country, and this state have changed radically in the

months since COVID-19 was first observed, and our lives have been altered in ways that
would have been unimaginable mere months ago. These changes are the result of
attempts to implement widespread social distancing to prevent the spread of the virus.
Officials have cancelled public events, closed schools and businesses, and issued stay-athome orders to the general public.
34.

In Tennessee—where, as of August 31, 2020, there were over 153,115

confirmed cases of COVID-19 and over 1,700 deaths from COVID-19—Governor Bill
Lee issued Executive Order No. 23 in April 2020, requiring all Tennesseans to stay at
home unless they are carrying out essential activities or engaging in essential services.
The order also requires individuals who leave their home to adhere to social distancing

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measures recommended by the CDC, including “[m]aintaining a distance of at least six
(6) feet between themselves and others, except for family or household members.”
35.

In his announcement that the state’s stay-at-home order would expire

April 30, 2020, Governor Bill Lee stated, “For the good of our state, social distancing
must continue.” 24 Indeed, the August 28, 2020 Executive Order extending the state of
emergency in Tennessee provides that “[s]ocial distancing remains imperative.”
36.

Shelby County, too, affirmed on August 24, 2020 in a Public Health

Directive that “[i]ndividuals must practice social distancing” and must wear masks in
public. Social distancing is not possible in the Shelby County Jail.
B. People Detained in the Jail Face a Heightened Risk of COVID-19 Transmission
37.

The conditions at correctional facilities such as the Jail pose a heightened

risk for the spread of COVID-19. Other enclosed group environments, such as cruise
ships and nursing homes, have also seen extremely high COVID-19 transmission rates. 25
In the United States, no environments have suffered more than prisons and jails: More
than 186,000 people in jails and prisons have been infected with the coronavirus, and
more than 1,100 incarcerated people and correctional officers have died. 26 In fact, of the

24

25

26

Natalie Allison, Gov. Bill Lee Won’t Extend Tennessee Stay-at-Home Order Past April 30; Some
Businesses Expected to Reopen Next Week, TENNESSEAN (Apr. 20, 2020),
https://www.tennessean.com/story/news/politics/2020/04/20/tennessee-gov-wont-extend-coronavirushome-order/5166816002/.
See, e.g., Joshua Rhett Miller, Coronavirus deaths at US nursing homes, long-term facilities reach
over 10,000, N.Y. POST (Apr. 23, 2020), https://nypost.com/2020/04/23/coronavirus-deaths-at-usnursing-homes-reach-over-10000/; Minyvonne Burke, 10 dead, over 800 test positive in coronavirus
outbreaks on Princess cruises, CDC says, NBC NEWS (Mar. 24, 2020),
https://www.nbcnews.com/health/health-news/10-dead-over-800-test-positive-coronavirus-outbreaksprincess-cruises-n1167716.
Coronavirus in the U.S.: Latest Map and Case Count, N.Y. TIMES (last visited Sept. 3, 2020),
https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html.

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100 largest known clusters of the disease in the United States, 88 are connected to
correctional facilities, as are all of the fifteen largest clusters. 27
38.

At correctional facilities, such as the Jail, where incarcerated people are

required to live and sleep in close proximity, social distancing is typically impossible.
People at the Jail are generally confined either in small cells with at least one other
person, or in dormitory-style pods with dozens of other people. When they are permitted
into communal areas, including to receive meals, take medication, or make phone calls,
they are regularly in close proximity to others.
39.

The risk from the inability to safely practice social distancing is

compounded by the lack of access to hygiene products necessary to prevent the spread of
the disease and the poorly ventilated indoor environment. In previous epidemics and
pandemics, infection rates in jails and prisons have been higher than in the general
population.
40.

Notwithstanding the already difficult conditions in the Jail, Defendants

have pepper-sprayed detainees on at least two occasions during the coronavirus
pandemic. On April 29, 2020, staff at the Jail pepper-sprayed detainees in medical
isolation for COVID-19. This exacerbated the difficulty of breathing for many persons
already experiencing symptoms, including shortness of breath, nausea, vomiting,
coughing up blood, fevers, and chills.
41.

On May 19, 2020, staff at the Jail forced detainees who had been in

quarantine for having contracted or been exposed to COVID-19 back into the general
population. Those being moved from medical isolation were not retested for COVID-19

27

Id.

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prior to being moved, nor were they screened for symptoms of COVID-19. Many
detainees resisted the move because it put other people in the Jail at risk of increased
exposure to the virus: as one person in quarantined housing put it, “All we are looking for
is to be re-tested before we are re-classified and rehoused. . . [I feel] a moral obligation”
not to pass the virus to anyone else. 28 Jail staff pepper-sprayed those individuals who
refused to move out of quarantine.
C. Defendants Failed to Adopt or Amend Policies in Response to the COVID-19
Pandemic
42.

The Jail has in place a number of standard policies and operating

procedures relating to medical care for detainees, but not a single one of these policies or
procedures has been updated to reflect the impact of COVID-19. 29
43.

One of these policies, Policy 199 (“Exposure Control Plan Communicable

Disease), specifically references Tuberculosis, Hepatitis A, B, and C, and HIV, but makes
no mention of COVID-19. Several policies have not been revised in years. It is no
wonder that the Jail has been caught flat-footed in its response to COVID-19.
D. Defendants Have Utterly Failed to Remediate the Unconstitutional Conditions in
the Jail
44.

Notwithstanding the myriad ways in which the deficient conditions in the

Jail have been brought to Defendants’ attention—Plaintiffs’ demand letter, complaints,
declarations, and testimony; the reports and testimony of two expert inspectors; and the

28

29

Yolanda Jones, Inmates at 201 Poplar pepper-sprayed over move after COVID quarantine, DAILY
MEMPHIAN (May 19, 2020), https://dailymemphian.com/article/14169/covid-19-201-poplar-anthonybuckner-shelby-county-sheriffs-office.
See ECF No. 27-1 Ex. A (Inmate Medical and Mental Healthcare Policy; Inmate/Detainee Sick Call
Policy; Inmate/Detainee Grievance Process; Inmates Medical Rights Policy; Inmates/Detainees Rights;
Exposure Control Plan Communicable Disease Policy; Communicable Disease Response Policy;
Infection Control Program; Inmate Medical Screening Policy; and Inmate Clothing, Bedding, Linen
Supplies and Hair Care Policy).

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Court’s August 7, 2020 Order urging Defendants to “improv[e]” the Jail’s current
practices in light of the Court’s “grave areas of concern”—Defendants have taken little or
no corrective action.
45.

Indeed, the Court found in its Order that the inadequacies in the conditions

at the Jail were “remediable in short time” and could be “quickly cure[d].” Nevertheless,
Defendants have simply failed to remedy the unconstitutional conditions that the Court
identified.
1. Non-Testing Policy and Inadequacy of Isolation and Quarantine
46.

Despite concerns raised by the Court about the efficacy of the Jail’s so-

called “timing-out,” non-testing policy in light of blatant failures to quarantine and isolate
exposed detainees observed by both expert inspectors, the Jail persists in relying on this
flawed practice. As the Court noted, a “timing out” strategy could theoretically be
effective if the necessary steps are followed. 30 However, the Jail’s quarantine and
isolation practices are not, and have never been, sufficient to ensure the viability of this
strategy.
47.

The Jail still does not test for COVID-19 upon the intake of new arrestees.

If someone displays symptoms of COVID-19, he is booked into the Jail but is escorted to
an isolation pod. Yet so-called isolation pods regularly receive new detainees, and the
“timing-out” clock does not restart for detainees previously living in those pods. Thus,
when a detainee moves out of the isolation pod after 14 days, it is possible that he has
been newly exposed to a detainee who has just moved into the isolation pod. Timing-out

30

ECF No. 124 at Pg.ID 2805.

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cannot be an effective strategy against preventing the spread of the virus where, as here,
quarantine and isolation practices are not properly adhered to.
48.

Further, the individuals in post-booking “isolation” themselves cannot

maintain social distancing from others in their unit, as both Mr. Brady and Dr. Venters
observed. Individuals housed in the lower-level units for isolation have cellmates in close
proximity and have no choice but to be physically near others to use the phone, receive
medication, or receive meals. The CDC recommends housing people in individual cells
with solid doors, and specifically cautions against the use of cohorting of potential or
suspected cases of COVID-19 and the introduction of new people into a quarantine unit
at any point during the fourteen-day quarantine period. 31 The use of the Jail’s
“quarantine” practice—which allows for multiple people in a cell within six feet of one
another, without solid walls or a solid door—appears nowhere on the list of acceptable
quarantine practices in the CDC’s guidance: Transfer to another facility to enable
quarantining is preferred. 32
49.

In light of these shortcomings, the Jail’s poor testing response is rendered

even more damaging. In flagrant disregard of CDC guidelines, which explicitly caution
against the use of such a “symptom-based strategy,” the Jail limits its testing to
individuals whom staff members determine to be symptomatic. 33 And even when
detainees have requested tests because they suspect they have been infected, their
31

32
33

Centers for Disease Control, Interim Guidance on Management of Coronavirus Disease 2019
(COVID-19) in Correctional Detention Facilities (updated July 22, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html#Quarantine_inside.
Id.
Centers for Disease Control, Testing in Correctional & Detention Facilities (updated Aug. 22, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/testing.html
(“Accumulating evidence supports ending isolation and precautions for persons with COVID-19 using
a symptom-based strategy.”).

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requests have been denied. Infected individuals are not retested before they are moved
back into their original pod.
50.

Under these circumstances, the timing-out, non-testing policy is

fundamentally flawed and puts all detainees in the Jail at grave risk of infection.
2. Lack of Barriers to Circulation of Infected Air
51.

Critically, Dr. Venters also observed that cells used for isolation of

detainees are open-bar, meaning that air containing potentially infected droplets from
within an isolation pod mingles with air outside that cell, resulting in potential exposure
for those outside the cell. 34 In light of evidence that infected aerosolized droplets can
travel between 7 and 16 feet and linger in the air for hours indoors, this “isolation”
approach is completely ineffective at preventing infected droplets from being transmitted
through the air to people outside the isolation pod or cell. In addition, detainees on other
floors confirm based on vents in their cells that air flow circulates among different cells.
52.

In light of the reality of airborne transmission of the coronavirus, the

open-bar units used for medical isolation of COVID-19 positive detainees on the second
floor is profoundly unsafe—even more so given the detention of many medically
vulnerable detainees on the second floor near the medical unit. In this respect, too,
Defendants are evincing grave disregard to the health and safety of Plaintiffs and the
other detainees in their care.
3. Impossibility of Social Distancing
53.

Social distancing—the cornerstone of the prevention of the spread of

COVID-19—is impossible at the Jail and is in any event not encouraged or enforced by

34

ECF No. 107 ¶ 22.

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the staff. Beyond a video about COVID-19 that is played periodically, the Jail provides
no instruction on social distancing to detainees. Jail staff does not implement or enforce
social distancing practices, nor are there enough staff members to do so.
54.

The layout of the Jail is as follows:
•

In the annexes on the lower level, where new detainees are confined
during their purported isolation, there are a series of open-bar cells with
common areas.

•

The second floor has the Jail’s medical unit and several small open-bar
living units where certain medically vulnerable detainees live. There is no
common area.

•

The third and fourth floors are lined with two-person open-bar cells and
feature common areas.

•

The fifth and sixth floors are dormitory-style floors, with units that contain
64 beds. 35 The pods are accessed through a sally port.

55.

Most detainees live in pods with cells lining an open communal area, as on

the third and fourth floors. Every cell has at least one person, and most have two people.
When more than one person is in a cell, it is impossible to maintain a six-foot distance
from one another. Detainees report spending up to 30 to 48 hours at a time in the same
cell with another person. Class members sleep in bunk beds, with each bed three to four
feet from one another. Each cell also has an open toilet area and a sink that is shared by

35

When asked about housing detainees in dormitory-style pods during the pandemic, Dr. Donna
Randolph, medical director at the Jail, testified, “I don’t think that would be really a good idea.” (ECF
No. 99-1, at Pg.ID 1496.) She cited the fact that “all the beds are stacked together a couple of feet
apart, and there might be, say, 40 beds in one room.” (Id.)

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both cellmates. Showers are in the communal area of the pod and are shared by all
members of the pod.
56.

Because of staff shortages in the Jail, detainees are receiving no more than

a few hours of “recreation time” per week. During recreation time, all detainees within a
pod may enter the communal area of the pod, where they can eat meals, use the phone,
shower, sit at a table, or use a touch-screen kiosk to order items from the commissary.
This limited recreation time is each detainee’s only opportunity to participate in
necessary activities, including communication with family or their lawyer, showering, or
ordering commissary items, including supplemental nutrition and hygiene items.
Detainees are not staggered in their time to attend to these needs. The jail staff have not
moved the phones, tables, or kiosks farther apart, nor have they provided additional
phones, tables, or kiosks. As a result, the only way to access showers, phones, meals, and
commissary is in close contact with dozens of other incarcerated people. It is not possible
for detainees to remain six feet away from other detainees while participating in any of
those activities. When people eat, four to five men sit at same table, and they are much
closer than six feet from one another.
57.

When detainees go to see the medical provider, others who have

appointments at the same time stand in line outside the medical unit. Those in line stand
less than six feet apart and are not instructed to, nor able to, maintain social distance.
58.

The Jail undertook certain meager measures to promote social distancing

in anticipation of the inspection by Mr. Brady. These practices have largely lapsed
following the inspection, and social distancing remains impossible in the Jail.

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59.

Some detainees in the dorm-style pods received new bunk assignments

prior to Mr. Brady’s arrival in the Jail, so that every other bunk would be left empty
(though detainees were still not sleeping six feet apart from others). The week after the
inspection, detainees were reassigned to their original bunks. Other detainees have not
observed any reassignment of bunks in order to increase spacing and have never even
received an instruction to sleep head-to-foot with their bunkmates.
60.

Tape demarcating six feet of distance was applied to the floor for the pill

call line in some pods prior to the inspection, but detainees were never instructed on its
meaning and thus did not use it to distance themselves from others. In any case, the tape
has come up from the ground and has not been replaced, and social distancing in the pill
call line is not possible.
4. Increase in Jail Population and Failure to Consider Individuals for Release
61.

In its Order, the Court found that “[r]educing the Jail’s overall population,

particularly those who are medically-vulnerable, better protects those individuals from
any spread of the virus within the Jail and allows for more social distancing among those
who remain detained.” The Court therefore asked the Jail to consider “alternatives to
confinement” and observed that “it does not appear that the unique circumstances of the
pandemic are playing the role that they should.”
62.

The Court and its independent inspector found that there was “no

concentrated and coordinated effort to assemble and present information to the courts
regarding an inmate’s medical conditions that may make him vulnerable to serious illness
or death while housed in the jail.” This remains unchanged.

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63.

Defendants represented in July 2020 that the population in the Jail had

declined since the onset of the pandemic. However, since the conclusion of the
evidentiary hearing held by the Court that concluded July 13, 2020, the population in the
Jail has increased by approximately 100 people and is currently close to 2000. Detainees
report that they have observed no reduction in the number of people living in their pod
(except for the removal of detainees who test positive for COVID-19).
64.

Several Named Plaintiffs who are medically vulnerable and disabled have

heard nothing from anyone at the Jail regarding their medical vulnerability to COVID or
any precautions that could be taken within the Jail to help prevent infection among this
population. They are aware of no housing reassignments intended to protect them from
the high risk of severe illness or death if they are infected with COVID-19, nor are they
aware of any consideration by the Jail of release or alternatives to incarceration.
65.

This inattention is unfortunately consistent with the Jail’s stated policy for

medically vulnerable people in its custody: Medical director Dr. Donna Randolph
testified that she did not treat the medically vulnerable in the Jail differently from others
in the population. Rather, she “just tr[ies] to take care of everybody the same and tr[ies]
to keep everybody safe, whether they have a chronic condition or they don’t.” 36 Dr.
Randolph likewise testified that she has had no discussions with the Jail expediter about
the potential release of any medically vulnerable detainees during the COVID-19
pandemic, because she believes her patients “are well cared for.” 37

36
37

ECF No. 99-1, at Pg.ID 1509.
Id. at Pg.ID 1540–41.

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66.

The rising population at the Jail, coupled with detainees’ reports that they

are aware of no efforts to consider release of detainees or any alternatives, or even to
meaningfully improve conditions inside the jail to limit the spread of infection, indicates
that Defendants have ignored the Court’s plea.
5. Unavailability of Video-Conferencing for Court Hearings
67.

The Court’s independent inspector made the disturbing observation that

detainees who were supposedly isolated or quarantined as part of the Jail’s timing-out
policy were routinely being transported to and from court for hearings and kept in
holding cells with dozens of other detainees with no ability to social distance. The
inspector determined that this practice “completely undermine[d] the integrity and
purpose” of the timing-out policy.
68.

In response, Defendants presented testimony at the evidentiary hearing

that, as of mid-July, they were finalizing the installation of hardware to permit court
conferences to be held by video, in order to minimize opportunities for transmission of
the virus during transport to and from court. 38 While video-conferencing for court
hearings has apparently been deployed for arraignments, detainees uniformly report that
they have never used a video-conferencing system to attend court dates and do not know
any other individual who has done so.
69.

Relatedly, detainees—who have not been adjudicated guilty of a crime,

and some of whom are medically vulnerable—have waited four to five months between
court dates while they remain confined in an environment in which they are unable to
take meaningful precautions to avoid exposure to COVID-19.

38

ECF No. 111 at Pg.ID 2237–38.

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70.

Further, jury trials are currently suspended in Shelby County. For

Plaintiffs and Class members, this reduces their avenues for release to only two: raise
enough money to post bail from a jail cell, or plead guilty to receive a plea offer without
an opportunity to exercise their right to trial or advance available defenses. This
suspension of the criminal court process will only continue to cause the population in the
jail to balloon.
6. Hygiene and Cleaning Supplies
71.

The Jail implemented certain improvements to the availability of hygiene

and cleaning supplies in preparation for Mr. Brady’s inspection. These improvements
were short-lived.
72.

For example, filled soap dispensers were placed in bathrooms prior to

Mr. Brady’s arrival. The soap dispensers sat empty and were not refilled for several
weeks. Following the evidentiary hearing before the Court, certain pods were on
“lockdown” and had no access to the commissary to purchase soap for a period of two
weeks.
73.

An “environmental team” likewise began spraying down showers and

toilets before Mr. Brady’s inspection. That practice ceased approximately one week after
the inspection.
74.

And, prior to the inspection, bleach tablets were made available to those

with janitorial responsibilities in the pod. Since the inspection, they have received Biovex
spray alone, with no materials to wipe down showers and toilets.
75.

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7. Ineffective and Inconsistent Use of PPE
76.

Detainees do not receive gloves, nor do Jail staff wear gloves. While Jail

staff wear masks, consistent with Mr. Brady’s findings in his inspection, staff frequently
lower their masks below their chins when they speak.
77.

People detained in the Jail report having received masks that are several

months old, which they wash in the laundry or by hand in the sinks in their cells, using
the same bars of soap they use to wash their hands.
E. CLASS ACTION ALLEGATIONS
78.

Plaintiffs bring this action pursuant to Rule 23 of the Federal Rules of

Civil Procedures on behalf of themselves and classes of similarly situated individuals
consisting of all pre-trial detainees in the custody of the Jail (the “Plaintiff Class”) and on
behalf of two subclasses (the “Medically Vulnerable Subclass” and the “Disability
Subclass”).
79.

The Plaintiff Class is defined as follows: All current and future persons

held at the Jail in pretrial custody during the coronavirus pandemic.
80.

The Medically Vulnerable Subclass is defined as follows: All current and

future persons held at the Jail in pretrial custody during the coronavirus pandemic who
are aged 65 years and older; have cancer; have chronic kidney disease; have chronic lung
disease, including chronic obstructive pulmonary disease, emphysema, chronic
bronchitis, and pulmonary fibrosis; are in an immunocompromised state from organ,
blood, or bone marrow transplant, immune deficiencies, HIV, or use of corticosteroids
and other immune weakening medicines; are obese (body mass index of 30 or higher);
have serious heart conditions, including heart failure, coronary artery disease,
cardiomyopathies, and hypertension; have sickle cell disease; have diabetes; have

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moderate-to-severe asthma; have cerebrovascular disease; have cystic fibrosis; have
hypertension or high blood pressure; have neurologic conditions; have liver disease; have
pulmonary fibrosis; are pregnant; smoke; or have thalassemia
81.

The Disability Subclass is defined as follows: All current and future

pretrial detainees in custody at the Jail during the coronavirus pandemic who are
medically vulnerable because of a disability as defined in the ADA and the Rehabilitation
Act. The Disability Subclass includes people with all conditions listed in paragraph 80,
except those who are medically vulnerable solely because of age, uncomplicated
pregnancy, or BMI.
82.

Plaintiffs reserve the right to amend the class or subclass definition or

establish additional subclasses as appropriate if discovery or further investigation reveals
the class should be expanded or otherwise modified.
83.

This action has been brought and may properly be maintained as a class

action under Federal law. It satisfies the numerosity, commonality, typicality, and
adequacy requirements for maintaining a class action under Fed. R. Civ. P. 23(a).
84.

Joinder is impracticable because (1) the classes are numerous; (2) the

classes include future members; and (3) the class members are incarcerated, rendering
their ability to institute individual lawsuits limited, particularly in light of reduced legal
visitation and court closures in Shelby County.
85.

Numerosity: On information and belief, there are at least 1900 people in

the proposed Plaintiff Class. The proposed subclasses each include at least 400 people.
The information regarding the exact size of the Plaintiff Class and the subclasses, as well
as the identity of the members of each are in the exclusive control of the Defendants.

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86.

Commonality: Common questions of law and fact exist as to all members

of the proposed classes and subclasses, including (a) whether and to what extent the Jail
is failing to provide incarcerated people constitutionally adequate COVID-19 prevention,
testing, and treatment; (b) whether Defendants’ social distancing, health, and hygiene
policies and procedures, and actions taken in response to the COVID-19 pandemic
violate the Fourteenth Amendment to the United States Constitution; and (c) whether
Defendants’ policies and practices discriminate against people with disabilities in
violation of federal disability rights laws.
87.

Typicality: The claims of Plaintiffs are typical of those of the class as a

whole, including because (a) each Plaintiff is currently in Defendants’ custody; and (b)
Plaintiffs’ and all class members’ claims arise from the same wrongful acts, omissions,
policies and practices of Defendants, and are based on the same legal theories. 39
88.

Adequacy: Plaintiffs have the requisite personal interest in the outcome of

this action and will fairly and adequately protect the interests of the class. Plaintiffs have
no interests adverse to the interests of the proposed class. Plaintiffs retained pro bono
counsel with experience and success in the prosecution of civil rights litigation. Counsel
for Plaintiffs know of no conflicts among proposed class members or between counsel
and proposed class members.
89.

Defendants have acted on grounds generally applicable to all proposed

class members, and this action seeks declaratory and injunctive relief. Plaintiffs therefore
seek class certification under Rule 23(b)(2).

39

All Named Plaintiffs except for Mr. Martinez are medically vulnerable and disabled. Mr. Martinez
does not seek to represent the subclasses or bring claims under § 2241, the Americans with Disabilities
Act, or the Rehabilitation Act.

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90.

In the alternative, the requirements of Rule 23(b)(1) are satisfied because

prosecuting separate actions would create a risk of inconsistent or varying adjudications
with respect to individual class members that would establish incompatible standards of
contact for the party opposing the proposed classes.
CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF
Unconstitutional Punishment in Violation of the Fourteenth Amendment to the U.S.
Constitution
28 U.S.C. § 2241
The Medically Vulnerable and Disability Subclasses Against All Defendants
91.

Plaintiffs repeat and re-allege each and every allegation above, as if set

forth in full herein.
92.

Under the Fourteenth Amendment, persons in pretrial custody cannot be

punished as part of their detention. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979).
Punishment is established if the jailer’s conduct is either not rationally related to a
legitimate, nonpunitive government purpose or excessive in relation to that purpose.
93.

Under general circumstances, Defendants can hold pretrial detainees if,

after making individualized findings based on the person’s flight risk and danger to the
community, and evaluating less restrictive options than jail, it is clear that nothing short
of detention will mitigate a credible risk of flight or danger. But and as a condition of
holding persons in pretrial custody, the Jail must provide them with health care services
and a safe environment, and cannot punish them. Here, Defendants have exposed the
Named Plaintiffs and the Medically Vulnerable and Disability Subclass members to high
risk of severe infection or death from COVID-19. Continuing to detain the Named

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Plaintiffs and the Class members is punitive, not rationally related to a legitimate
purpose, and/or excessive in relation to any legitimate purpose.
SECOND CLAIM FOR RELIEF
Unconstitutional Confinement in Violation of the Fourteenth Amendment to the
U.S. Constitution
28 U.S.C. § 2241
The Medically Vulnerable and Disability Subclasses Against All Defendants
94.

Plaintiffs repeat and re-allege each and every allegation above, as if set

forth in full herein.
95.

Under the Fourteenth Amendment, corrections officials are required to

provide for the reasonable health and safety of persons in pretrial custody. Youngberg v.
Romeo, 457 U.S. 307, 315–16, 324 (1982) (referencing state’s “unquestioned duty” to
provide adequate medical care for detained persons).
96.

Corrections officials are required to provide for the reasonable health and

safety of persons in pretrial custody, including risks of future harm to their health and
safety. See Helling v. McKinney, 509 U.S. 25, 33–34 (1993) (“That the Eighth
Amendment protects against future harm to inmates is not a novel proposition. . . . [i]t
would be odd to deny an injunction to inmates who plainly proved an unsafe, lifethreatening condition in their prison on the ground that nothing yet had happened to
them”).
97.

The relevant constitutional provision for pretrial detainees is not the

Eighth Amendment but is, instead, the Due Process Clause of the Fourteenth
Amendment. “[T]he due process rights of a person [in pretrial custody] are at least as
great as the Eighth Amendment protections available to a convicted prisoner.” City of
Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (emphasis added). Indeed, in

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Kingsley v. Hendrickson, the Supreme Court applied a lower standard to a pretrial
detainee’s excessive force claim Fourteenth Amendment than that required of convicted
prisoners. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (holding that the
appropriate standard for a pretrial detainee’s excessive force claim is “solely an objective
one”). The Sixth Circuit has noted that Kingsley “calls into serious doubt” whether a
pretrial detainee must make the same showing as a convicted prisoner when raising a
Fourteenth Amendment deliberate indifference claim. See Richmond v. Huq, 885 F.3d
928, 938 n.3 (6th Cir. 2018) (recognizing the “shift in Fourteenth Amendment deliberate
indifference jurisprudence [that] calls into serious doubt whether [the plaintiff] need even
show that the individual defendant-officials were subjectively aware of her serious
medical conditions and nonetheless wantonly disregarded them”).
98.

If the Court concludes that pretrial detainees must make the same showing

as a convicted person, deliberate indifference to the serious risk COVID-19 poses to
members of the Class violates this right.
99.

The Medically Vulnerable and Disability Subclasses are at high risk of

severe infection from COVID-19. The Jail is rife with confirmed cases of COVID-19.
Class members, because of their medical conditions and COVID-vulnerability, cannot be
safe in the facilities in which they are housed at the Jail. The only way to ensure their
safety and protect their constitutional rights is through release. Defendants are aware of
the risk to the safety of the Named Plaintiffs and the Subclass members, but they have not
taken steps to release them. Defendants are therefore deliberately indifferent to the safety
of the Named Plaintiffs and the Subclass members.

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THIRD CLAIM FOR RELIEF
Discrimination on the Basis of Disability in Violation of Title II of the ADA
42 U.S.C. § 12131, et seq./28 U.S.C. § 2241
The Disability Subclass Against All Defendants
100.

Plaintiffs repeat and re-allege each and every allegation above, as if set

forth in full herein.
101.

Title II of the ADA requires that public entities refrain from

discriminating against qualified individuals on the basis of disability. 42 U.S.C. § 12132.
The regulations implementing Title II of the ADA require that public entities avoid
policies, practices, criteria, or methods of administration that have the effect of excluding
or discriminating against persons with disabilities in the entity’s programs, services, or
activities. 28 C.F.R. § 35.130(a), (b)(3), (8). Further, a public entity must “make
reasonable modifications in policies, practices, or procedures when the modifications are
necessary to avoid discrimination on the basis of disability, unless the public entity can
demonstrate that making the modifications would fundamentally alter the nature of the
service, program, or activity.” 28 C.F.R. § 35.130(b)(7).
102.

Plaintiffs Busby, Edwards, Leaks, Nelson, and Phillips, and members of

the Disability Subclass are individuals with disabilities for purposes of the ADA. 42
U.S.C. § 12102. They are “qualified” for the programs, services, and activities being
challenged herein. 42 U.S.C. § 12131(2).
103.

Defendants are violating Title II of the ADA by failing to make the

reasonable modifications necessary to ensure equal access to adjudication, jail services,
and release for people with disabilities who face high risk of severe infection or death
from COVID-19. Defendants are further violating the ADA by employing methods of
administration that tend to discriminate against people with disabilities.

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FOURTH CLAIM FOR RELIEF
Discrimination on the Basis of Disability in Violation of Section 504 of the
Rehabilitation Act
29 U.S.C. § 794/28 U.S.C. § 2241
The Disability Subclass Against All Defendants
104.

Plaintiffs repeat and re-allege each and every allegation above, as if set

forth in full herein.
105.

Section 504 of the Rehabilitation Act states that “no qualified individual

with disability in the United States . . . shall, solely by reason of [] disability, be excluded
from the participation in, be denied the benefits of, or be subject to discrimination under
any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The
regulations implementing Section 504 of the Rehabilitation Act require that entities
receiving federal financial assistance avoid unnecessary policies, practices, criteria, or
methods of administration that have the effect of discriminating against persons with
disabilities. 28 C.F.R. § 41.51(b)(3)(i).
106.

Defendants receive “Federal financial assistance” within the meaning of

28 U.S.C. § 794(a).
107.

Plaintiffs Busby, Leaks, Edwards, Nelson, and Phillips, and members of

the Disability Subclass are individuals with disabilities for the purposes of the
Rehabilitation Act, 42 U.S.C. § 12012, 29 U.S.C. § 705(20)(B). They are “qualified” for
the programs, services, and activities being challenged herein.
108.

Defendants are violating Section 504 of the Rehabilitation Act by failing

to make the reasonable modifications necessary to ensure equal access to adjudication,
jail services, and release for people with disabilities who are at high risk of severe
infection or death from COVID-19. Defendants are further violating the Section 504 by

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employing methods of administration that tend to discriminate against people with
disabilities.
FIFTH CLAIM FOR RELIEF
Unconstitutional Punishment in Violation of the Fourteenth Amendment to the U.S.
Constitution
All Plaintiffs Against All Defendants
42 U.S.C. § 1983
109.

Plaintiffs repeat and re-allege each and every allegation above, as if set

forth in full herein.
110.

Under the Fourteenth Amendment, persons in pretrial custody cannot be

punished as part of their detention. Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979).
Punishment is established if the jailer’s conduct is either not rationally related to a
legitimate, nonpunitive government purpose or excessive in relation to that purpose.
111.

Under normal conditions, pretrial detention may be justified in response to

an unmitigable risk of flight or danger to others, and if no less restrictive conditions of
release are able to manage said risk. Incarcerating pretrial detainees under circumstances
in which they are not reasonably safe from a life-threatening disease is excessive in
relationship to these narrow government purposes. The Jail is on notice of the deficient
conditions for its detainees but has nevertheless failed to remedy those conditions.
Continuing to detain Plaintiff Class members without making the Jail compliant with
COVID-19-specific guidance from public health experts is not rationally related to, and is
excessive in relation to, that purpose. Because these failures violate Plaintiffs’ Fourteenth
Amendment rights, Defendants should be enjoined to remedy the failures that cause
Plaintiffs’ detention to amount to impermissible punishment. To the extent these failures

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cannot be remedied, the Medically Vulnerable and Disability Subclass Members seek
habeas relief as noted in Claim One.
SIXTH CLAIM FOR RELIEF
Unconstitutional Conditions of Confinement in Violation of the Fourteenth
Amendment to the U.S. Constitution
42 U.S.C. § 1983
112.

Plaintiffs repeat and re-allege each and every allegation above, as if set

forth in full herein.
113.

Under the Fourteenth Amendment, corrections officials are required to

provide for the reasonable health and safety of persons in pretrial custody. Youngberg v.
Romeo, 457 U.S. 307, 315–16, 324 (1982) (referencing state’s “unquestioned duty” to
provide adequate medical care for detained persons).
114.

Corrections officials are required to provide for the reasonable health and

safety of persons in pretrial custody, including risks of future harm to their health and
safety. See Helling v. McKinney, 509 U.S. 25, 33–34 (1993) (“That the Eighth
Amendment protects against future harm to inmates is not a novel proposition. . . . [i]t
would be odd to deny an injunction to inmates who plainly proved an unsafe, lifethreatening condition in their prison on the ground that nothing yet had happened to
them”).
115.

The relevant constitutional provision for pretrial detainees is not the

Eighth Amendment but is, instead, the Due Process Clause of the Fourteenth
Amendment. “[T]he due process rights of a person [in pretrial custody] are at least as
great as the Eighth Amendment protections available to a convicted prisoner.” City of
Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (emphasis added). Indeed, in
Kingsley v. Hendrickson, the Supreme Court applied a lower standard to a pretrial

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detainee’s excessive force claim under the Fourteenth Amendment than that required of
convicted prisoners. Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (holding that
the appropriate standard for a pretrial detainee’s excessive force claim is “solely an
objective one”). The Sixth Circuit has noted that Kingsley “calls into serious doubt”
whether a pretrial detainee must make the same showing as a convicted prisoner when
raising a Fourteenth Amendment deliberate indifference claim. See Richmond v. Huq,
885 F.3d 928, 938 n.3 (6th Cir. 2018) (recognizing the “shift in Fourteenth Amendment
deliberate indifference jurisprudence [that] calls into serious doubt whether [the plaintiff]
need even show that the individual defendant-officials were subjectively aware of her
serious medical conditions and nonetheless wantonly disregarded them”).
116.

If the Court concludes that pretrial detainees must make the same showing

as a convicted person, deliberate indifference to the serious risk COVID-19 poses to
members of the Class violates this right.
117.

The Jail has failed to act reasonably in response to the risk to the Plaintiff

Class posed by COVID-19. It has failed to comply with public health guidelines to
manage an outbreak of COVID-19 and cannot provide for the safety of the Plaintiff
Class. Defendants’ actions and inactions result in the confinement of members of the
Plaintiff Class in a jail where they failed to test for, prevent, or treat COVID-19
outbreaks, in violation of Plaintiffs’ rights to treatment and adequate medical care.
Because these failures violate Plaintiffs’ Fourteenth Amendment rights, Defendants
should be enjoined to remedy the failures that render Plaintiffs’ detention intolerably
unsafe. To the extent these failures cannot be remedied, the Medically Vulnerable and
Disability Subclass Members seek habeas relief as noted in Claim Two.

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REQUEST FOR RELIEF
118.

Plaintiffs and Class Members respectfully request that the Court order the

following:

40

(1)

Certification of this Petition and Complaint as a Class Action;

(2)

An injunction requiring the Jail to:
(a)

Eliminate the “critical system failure of the[] timing-out
strategy” by implementing a test-based strategy for
detecting and preventing the spread of COVID-19, pursuant
to which new detainees are tested for COVID-19 at intake
and “periodic testing” is performed throughout the Jail; 40

(b)

Address the threat of airborne transmission of COVID-19
to ensure proper quarantine and isolation of detainees who
have been exposed;

(c)

Ensure the consistent availability of cleaning supplies for
sanitizing individual and common areas;

(d)

Provide fresh masks for all detainees on at least a weekly
basis;

(e)

Provide free soap to all detainees;

(f)

Maximize social distancing, through strategies to be
outlined by a qualified expert pursuant to Federal Rule of
Evidence 706, by addressing at a minimum:
(i)

The practices, housing arrangements, and staffing
and population levels needed to allow for at least
six feet of social distancing at all times, taking into
account the dimensions of each living unit; distance
between beds; size and location of toilets, showers,
tables, and phones; size of day rooms and other
commonly used facilities; and staffing levels;

(ii)

The reconfiguration of sleeping arrangements so
that detainees sleep at least six feet from one
another, including through use of the previously
vacant sixth floor;

ECF No. 124 at Pg.ID 2816–17.

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(3)

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(iii)

The arrangement of the eating space and/or meal
schedules to permit adequate social distancing
during mealtimes and, if recommended, the use of
tape markers to show six feet of distance along with
training and oversight by Jail staff;

(iv)

Strategies to ensure social distancing in the pill call
line to address the “cruel ask” of “[r]equiring
medically-vulnerable detainees to receive their
medications by waiting in a crowded line”; 41

(v)

Whether alternate housing arrangements or
structural modifications are necessary to address the
airborne spread of COVID-19 in the Jail;

(vi)

Whether alternative practices, housing
arrangements, and staffing and population levels are
needed to ensure the safety of medically vulnerable
and disabled Subclass members during the course of
the COVID-19 pandemic;

(g)

Reduce the Jail population by establishing a systematic
process by which stakeholders, including the Jail’s
expediter, must consider release or other alternatives to
detention for each medically vulnerable detainee, and
address the Court’s “particular concern” by focusing this
analysis on “safety or flight risks in the present,” rather
than “repeat offenses in the past”;

(h)

Implement a system to ensure that disabled subclass
members have access to reasonable modifications and
nondiscriminatory methods of administration to avoid
disability discrimination;

(i)

Permit Mr. Brady to conduct ongoing unannounced
inspections of the Jail to determine the full extent to which
the facility is implementing necessary safety measures;

If, after issuing the above relief pursuant to § 1983, the ADA and
the Rehabilitation Act, the Court concludes that a violation of
Plaintiffs’ constitutional and statutory rights persists, or if the
Court concludes that issuing the above relief would not adequately

Id. at Pg.ID 2819.

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remedy a violation of the Subclass members’ constitutional and
statutory rights;
(a)

(b)

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An order pursuant to § 2241 or § 1983, the ADA, and the
Rehabilitation Act imposing a process—to be determined
by the Court—to consider the habeas corpus release and/or
enlargement of custody of all Subclass members,
considering:
(i)

the deprivation of the petitioner-plaintiff’s federal
rights posed by the COVID-19 outbreak (including
the disability discrimination for Subclass members
and the necessity of providing modifications
including release);

(ii)

any competent evidence that the individual poses a
present, serious risk of flight or danger to others;

(iii)

whether, by clear and convincing evidence, any
present risk of flight of danger outweighs the threat
to the petitioner’s health and safety posed by his
exposure to COVID-19 in the Jail, after considering
alternative conditions to manage the risk(s)
presented;

Granting a preliminary injunction, permanent injunction,
and/or writ of habeas corpus requiring continued reporting
as to the future members of the Class and Subclass, and
requiring Defendants to divert Class and Subclass members
from incarceration at the Jail, including, but not limited to,
by exercising their authority under T.C.A. §§ 8-8-221 and
40-7-120;

(4)

A declaration that the Jail’s policies violate the Fourteenth
Amendment right against cruel and unusual punishment with
respect to the Plaintiff Class;

(5)

A declaration that the Jail’s policies violate the Fourteenth
Amendment rights to be free from punishment prior to conviction
with respect to the Plaintiff Class;

(6)

A declaration that the Jail’s policies violate the ADA and
Rehabilitation Act with respect to the Disability Subclass;

(7)

An award of Plaintiffs’ attorney fees and costs under 42 U.S.C.
§ 1988 and other applicable law; and

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(8)

Any further relief this Court deems appropriate.

Dated: September 15, 2020
Respectfully submitted,
/s/ Brice Timmons
.
Brice Timmons
Brice M. Timmons (Bar No. 29582)
Black McLaren Jones Ryland & Griffee,
A Professional Corporation
530 Oak Court Dr. Suite 360
Memphis, TN 38117
Telephone: (901) 762-0535
Facsimile: (901) 762-0527
btimmons@blackmclaw.com

Andrea Woods
Amreeta S. Mathai
Jeffery P. Robinson
American Civil Liberties Union
125 Broad Street, 18th Floor
New York, NY 10004
Telephone: (212) 549-2500
awoods@aclu.org
amathai@aclu.org
jrobinson@aclu.org

Josh Spickler (Bar No. 021019)
Wesley Dozier (Bar No. 037735)
Just City
P.O. Box 41852
Memphis, TN 38174
Telephone: (901) 206-2226
josh@justcity.org

Zoe Brennan-Krohn
American Civil Liberties Union
39 Drumm Street
San Francisco, CA 94111
Telephone: (415) 343-0769
zbrennan-krohn@aclu.org

Steven John Mulroy (Bar No. 28831)
Bredesen Professor of Law
Cecil C. Humphreys School of Law,
University of Memphis
1 N. Front St.
Memphis, TN 38103
Telephone: (901) 603-8779
smulroy@memphis.edu

Maria Morris
American Civil Liberties Union
915 15th Street N.W., 7th Floor
Washington, D.C. 20005
Telephone: (202) 548-6607
mmorris@aclu.org
Thomas H. Castelli (Bar No. 24849)
Stella Yarbrough (Bar No. 33637)
ACLU Foundation of Tennessee
P.O. Box 120160
Nashville, TN 37212
Telephone: (615) 320-7142
tcastelli@aclu-tn.org
syarbrough@aclu-tn.org

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PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
Joseph Bial*
2001 K Street NW
Washington, D.C. 20006-1047
Telephone: (202) 223-7300
Fascimile: (202) 223-7420
jbial@paulweiss.com
Darren Johnson*
Meredith L. Borner
Jonathan M. Silberstein-Loeb
Edward C. Robinson, Jr.
1285 Avenue of the Americas
New York, NY 10019-6064
Telephone: (212) 373-3000
Fascimile: (212) 757-3990
djohnson@paulweiss.com
mborner@paulweiss.com
jsilberstein-loeb@paulweiss.com
erobinson@paulweiss.com
* = pro hac vice application forthcoming
Attorneys for Plaintiffs

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