Petition for Writ of Certiorari — Lonnie Eugene Lillard, et al., Petitioners v. DeWayne Hendrix, Warden
Supreme Court briefDec 4, 2024
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Case: 23-35049, 06/20/2024, ID: 12892572, DktEntry: 54-1, Page 1 of 3
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
JUN 20 2024
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT
LONNIE EUGENE LILLARD,
No.
Petitioner-Appellant,
v.
U.S. COURT OF APPEALS
23-35049
D.C. No. 3:22-cv-00966-SB
MEMORANDUM*
DEWAYNE HENDRIX, Warden, FCI
Sheridan,
Respondent-Appellee.
AMADOR SANCHEZ MENDOZA, AKA
Amador Sanchez,
No.
23-35059
D.C. No. 3:22-cv-00559-SB
Petitioner-Appellant,
v.
DEWAYNE HENDRIX, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Stacie F. Beckerman, Magistrate Judge, Presiding
Submitted June 6, 2024**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
Appendix A
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Case: 23-35049, 06/20/2024, ID: 12892572, DktEntry: 54-1, Page 2 of 3
Portland, Oregon
Before: RAWLINSON, FORREST, and SUNG, Circuit Judges.
Lonnie Lillard and Amador Mendoza1 appeal the magistrate judge’s denial
of the consolidated 28 U.S.C. § 2241 habeas petitions filed by current and former
individuals in custody at the Federal Correctional Institution Sheridan (“FCI
Sheridan”) (together, “Petitioners”). We have jurisdiction under 28 U.S.C. §§ 1291
and 2253, and we affirm.
The district court correctly dismissed Petitioners’ petitions for lack of
jurisdiction because their conditions of confinement claims are not cognizable in
habeas. See Pinson v. Carvajal, 69 F.4th 1059, 1068–69 (9th Cir. 2023), cert.
denied sub nom. Sands v. Bradley, 144 S. Ct. 1382 (2024). In Pinson, we
acknowledged that there may be “circumstances when a challenge to the conditions
of confinement is properly brought in a petition for writ of habeas corpus,” but
concluded that the facts alleged failed to establish that “no set of conditions exist
that would cure the constitutional violations.” Id. at 1075. The facts alleged by
Petitioners here are materially indistinguishable from those alleged in Pinson.
The district court did not err by dismissing Petitioners’ habeas petition
without assessing whether Petitioners stated viable non-habeas claims in the
without oral argument. See Fed. R. App. P. 34(a)(2).
1
Appellants concede that Mendoza’s appeal is moot because he was released from
federal custody on October 20, 2023.
2
Appendix A
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Case: 23-35049, 06/20/2024, ID: 12892572, DktEntry: 54-1, Page 3 of 3
alternative. Petitioners repeatedly disavowed bringing non-habeas claims, argued
that they need not comply with the Prison Litigation Reform Act specifically
because they were bringing their claims under habeas, and relied on the
Administrative Procedure Act and Declaratory Judgment Act solely as bases for
granting injunctive and declaratory relief “while the petition [was] pending.”
Although a district court has discretion to convert a habeas petition into a civil
rights action in certain circumstances, see id. at 1075–76, Petitioners abandon any
such argument on appeal.
AFFIRMED.
3
Appendix A
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Case 3:22-cv-00966-SB
Document 20
Filed 11/15/22
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JOHN PHILIP STIRLING,
Case No. 3:20-cv-00712-SB
Petitioner,
OPINION AND ORDER
v.
JOSIAS SALAZAR, Warden, FCI
Sheridan,
Respondent.
BECKERMAN, U.S. Magistrate Judge.
Petitioner John Philip Stirling (“Stirling”) and nearly 200 current or former individuals in
custody at Federal Correctional Institution (“FCI”) Sheridan (“Sheridan”) (together,
“Petitioners”), bring this consolidated habeas corpus proceeding pursuant to 28 U.S.C. § 2241
(“Section 2241”). Petitioners allege that the dangers presented by the unprecedented COVID-19
pandemic, combined with the Federal Bureau of Prisons’ (“BOP”) insufficient response to the
ongoing crisis, render their continued confinement unconstitutional in violation of the Eighth
Amendment. (Am. Compl. Pet. Writ Habeas Corpus (“Am. Pet.”) (ECF No. 16) at 16-22.1)
1 The Court uses the ECF-assigned pagination when citing the parties’ filings.
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Respondent2 asserts that he has taken adequate and appropriate measures to mitigate the
effects of COVID-19 at Sheridan. However, he argues that before reaching the merits of
Petitioners’ habeas claims, the Court must first resolve a threshold jurisdictional question to
determine whether a petition for writ of habeas corpus is the proper vehicle by which an
individual in custody may seek release based on an assertion that prison conditions are so unsafe
that continued incarceration violates the Eighth Amendment. (Resp. Am. Pet. (ECF No. 35) at 812, 13-16.) That question is now before the Court. (See Resp’t Renewed Resp. Am. Pet. Writ
Habeas Corpus & Renewed Request Ruling Jurisdictional Issues (ECF No. 107) (“Resp’t
Renewed Resp.”) at 2-5.)
The parties have consented to proceed before a magistrate judge under 28 U.S.C. §
636(c). (ECF No. 43.) For the reasons explained below, the Court dismisses the Amended
Complaint and Petition for Writ of Habeas Corpus (ECF No. 16) and denies as moot all pending
motions.
BACKGROUND
The rise of COVID-19 marked a “once-in-a-century public health crisis.” Wilson v.
Ponce, 465 F. Supp. 3d 1037, 1039 (C.D. Cal. 2020), appeal dismissed, No. 20-55760, 2020 WL
6293689 (9th Cir. 2020). The virus quickly found its way into jails, prisons, and other detention
facilities in the United States, and corrections officials imposed various measures to prevent and
control transmission among incarcerated populations. Although the measures Respondent
imposed at Sheridan avoided the tragic death tolls at other prisons, Petitioners allege that the
harshness of the protective measures violated the Eighth Amendment and therefore the Court
2 Josias Salazar was the acting warden at the time Stirling filed his original petition.
Sheridan’s current warden, DeWayne Hendrix, assumed responsibility for Sheridan’s operations
on December 7, 2020. (Joint Status Report dated Dec. 18, 2020 (ECF No. 54) at 1 n.1.)
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must now release Petitioners from custody. The Court provides a summary of this litigation to
explain why the Court is just now evaluating the threshold jurisdictional issue after over two
years of litigation.
On April 30, 2020, Stirling, a pretrial detainee at Sheridan, filed a pro se petition for writ
of habeas corpus in this Court, naming the BOP, Sheridan Federal Detention Center (“Sheridan
FDC”), and “Sheridan FDC Staff” as respondents. Stirling alleged in the petition that Sheridan
officials were “needlessly exposing [him] to [COVID]-19” by housing newly incarcerated or
transferred individuals in his unit without first placing them in quarantine; by refusing to wear
appropriate protective equipment such as masks and gloves; and by keeping Sheridan residents
“illegally . . . under lockdown for [nineteen] days cut of[f] from phones, showers, email and
quality food.” (Pet. (ECF No. 1) at 2-3.) Troubled by Stirling’s allegations, the Court appointed
the Federal Public Defender (“FPD”) to represent Stirling and directed the FPD to file an
amended petition naming Stirling’s current custodian as the respondent. (ECF No. 4.)
On June 30, 2020, the FPD filed an “Amended Complaint for Declaratory and Injunctive
Relief and Petition for Writ of Habeas Corpus” (the “amended petition”) on Stirling’s behalf,
who by then was serving a forty-month term of imprisonment.3 Stirling alleged in the amended
petition that the BOP had failed to “de-densify its facilities” to ensure adequate social distancing
and instead had kept Sheridan residents in their cells for up to twenty-three hours a day,
sometimes three to a cell; canceled educational and rehabilitative programs; curtailed outside
communications; served poor-quality food; reduced access to medical care; and spread
3 Stirling was sentenced to forty months in prison on May 21, 2020, after pleading guilty
to one count of violating 46 U.S.C. § 70503(a)(1) and 70506(a), and 21 U.S.C. §§ 8960(b)(1)(H)
and 962(a), Maritime Drug Law Enforcement Act and Conspiracy to Distribute
Methamphetamine. See United States v. Stirling, No. 3:19-cr-00150-MO (ECF No. 113) (D. Or.
May 21, 2020).
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misinformation about pandemic response measures. (Am. Pet. at 2.) Stirling further alleged that
the BOP had failed to establish “consistent and effective safeguards”—such as universal testing
of Sheridan residents and staff, access to personal protective equipment, effective quarantine
procedures, and heightened sanitation protocols—to protect individuals in its custody against
COVID-19. (Id. at 2.) Stirling claimed that, in light of the BOP’s decision to use lockdowns
instead of de-densifying Sheridan and the risk that he might nevertheless contract COVID-19,
there were “no conditions of confinement at Sheridan [that could] meet constitutional
requirements” and therefore the Eighth Amendment required his immediate release. (Id. at 1722.)
Stirling also requested in the amended petition interim injunctive relief in the form of a
temporary restraining order (“TRO”) and permanent injunction to “(1) prohibit the BOP from
bringing new inmates into the FDC Sheridan until the warden has demonstrated adequate testing
and safety protocols to ensure the coronavirus is not introduced through arrivals; and (2) to
prohibit [Stirling’s] transportation out of the FDC Sheridan until the Warden can demonstrate the
transportation, any place of quarantine, and the designated facility will be safe and subject him to
infection from the coronavirus.” (Id. at 23.) Stirling requested that if the court could not
immediately grant the writ, the court should enter an order of enlargement allowing him to serve
his sentence in the community “until the conditions at Sheridan can be rendered safe” and order
court-mandated fact-finding of the actual conditions at Sheridan. (Id. at 24.)
In light of Stirling’s request for immediate injunctive relief, this case was reassigned to a
district judge on July 6, 2020. (ECF No. 19.) At a hearing on July 22, 2020, 4 the district judge
4 Prior to the hearing, the parties agreed that Respondent would not transfer Stirling out
of Sheridan before July 28, 2020 and would provide the FPD and the Court with at least seven
days’ notice if he planned to transfer Stirling at any point thereafter. The district judge issued an
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noted that it was unclear whether Stirling intended to proceed with civil rights or habeas claims,
and that Stirling’s request for a TRO barring new detainees from entering Sheridan was “not the
sort of relief we would typically see in a habeas order.” (Tr. (ECF No. 44) at 7:5-15, 47:3-10.)
The FPD clarified that Stirling intended to proceed in habeas and argued that his request for
injunctive relief was proper. (Id. at 43:13-20, 48:11-51:2.) Turning to the merits of Stirling’s
request, the district judge considered the evidence in the record and determined that Stirling
failed to show “a likelihood of success or even serious questions going to the merits” on his
Eighth Amendment claims. (Id. at 52:23-53:5.) The district judge thus denied Stirling’s request
for a TRO but authorized expedited discovery concerning the conditions at Sheridan. (Id. 53:322.)
Soon thereafter, the district judge ordered Respondent to show cause why the Court
should not grant relief. (Or. Show Cause (ECF No. 34) at 1.) Respondent filed a response on
August 18, 2020, arguing that the Court should dismiss the amended petition because Stirling’s
claim is not cognizable in habeas and instead arises under the Prison Litigation Reform Act
(“PLRA”). (Resp. Am. Pet. (ECF No. 35) at 1.) Respondent further argued that even if Stirling’s
claim could proceed in habeas, Stirling is not entitled to relief because his claim is unexhausted
and lacks merit. (Id.) In support, Respondent submitted extensive documentation describing the
protocols and mitigation measures in place to prevent and control the spread of COVID-19 at
Sheridan.
order memorializing that agreement on July 8, 2020. (ECF No. 25.) Respondent also provided
the FPD and the Court with detailed information about the then-current protocols for screening
and testing for COVID-19 for individuals in custody, staff, transfers, and anyone else entering
and exiting Sheridan; the number of tests administered to individuals in custody and staff; the
rate of positive tests; and all other measures in place to mitigate the spread of COVID-19 at
Sheridan. (Status Report dated July 10, 2020 (ECF No. 26).)
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The case was reassigned to this Court on September 24, 2020, in light of the parties’ full
consent to the jurisdiction of a magistrate judge. (ECF No. 40.) Although the district judge had
set an initial briefing schedule, the parties agreed to stay further briefing pending completion of
discovery and, in the interim, to work cooperatively to address issues at Sheridan as they arose.
(Joint Status Report dated Oct. 16. 2020 (ECF No. 46) ¶ 5.) Hoping to foster cooperation that
might more quickly and effectively address the conditions at Sheridan, the Court allowed the
parties flexibility in fashioning a case management schedule to accommodate their efforts.
Thereafter, the parties relayed their progress to the Court in periodic status reports that detailed
the changing conditions at Sheridan.
Meanwhile, dozens of additional individuals in custody at Sheridan filed similar habeas
petitions “challenging the fact of . . . confinement under the circumstances of the COVID-19
pandemic and in particular the extended lockdown and the life-threatening conditions.” (See,
e.g., Bodner v. Salazar, No. 3:20-cv-01743-SB, Pet. (ECF No. 1) at 2.) Each new petition
“incorporate[d] by reference and adopt[ed] the pleadings” in Stirling, with some petitioners
submitting individualized allegations concerning their personal health risks and experiences in
lockdown. (Id. at 2, 10-13.) Many petitioners, however, simply adopted Stirling’s general
allegations without claiming that they personally were at high risk or that the conditions at
Sheridan posed a specific danger to their individual health. In response to the influx of new
petitions, and upon agreement by the parties, the Court ordered “all pending and future habeas
petitions filed by individuals in custody at Sheridan relating to modified prison operations during
the COVID-19 pandemic” to be consolidated with Stirling, and ordered that the Court will
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resolve all threshold legal and factual issues in the consolidated action.5 (Consolidation Or. (ECF
No. 50) at 2.)
By December 2020, Respondent reported that Sheridan was operating under “modified
conditions designed to ensure physical distancing . . . while maintaining institutional safety
goals.” (Joint Status Report dated Dec. 18, 2020 (ECF No. 54) ¶ 2(e).) Such operations typically
allowed for Sheridan residents to be out of their cells and in common areas for more than seven
hours per day, with lockdown conditions occurring only “on occasion” to combat an increase in
COVID-19 infections or for disciplinary purposes. (Id.) Respondent also reported that he had
created a separate COVID-19 isolation unit within Sheridan, had discontinued the use of triple
bunk cells, and had reduced the Sheridan population to 1,438 residents, down from 1,787 in
April 2020. (Id. ¶¶ 2(d), (f).)
A new wave of COVID-19 infections struck Sheridan toward the end of December 2020,
but began to recede in January 2021. (Joint Status Report dated Jan. 8, 2021 (ECF No. 57) ¶
1(a).) None of those infected had to be placed on a ventilator or died from the disease, but
Petitioners lodged “frantic complaints” with the FPD about the harsh conditions imposed to
control the outbreak. (Id. ¶ 2(a).) Specifically, Petitioners reported “[m]ental and physical
distress from prolonged lockdown in cells; fears that the coronavirus is not being adequately
controlled; physical harm from lack of medical care due to staff shortages or perceived lack of
compassion; unsafe and inhumane conditions in the gym where ill inmates are relegated; and
lack of adequate food.” (Id. ¶¶ 1(c), 2(a).) Although Respondent did not concede the veracity of
5 The Court ordered that petitions filed by post-sentencing petitioners would be
consolidated with Stirling, and that petitions filed by pretrial detainees would be consolidated
with another case filed by a petitioner in pretrial detention at the time of filing, Lander v.
Salazar, 3:20-cv-01379-SB, that incorporated the Stirling allegations.
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these complaints, he later acknowledged that “relatively harsher” conditions were necessary to
ensure physical distancing to “minimize the incidence and spread of COVID-19” in Sheridan.
(Id. ¶ 1(a) n.1; Joint Status Report dated Mar. 12, 2021 (ECF No. 66) ¶ 6.)
On February 5, 2021, Respondent reported that Sheridan had received its first allotment
of the newly released COVID-19 vaccine, and that Sheridan had already administered the first
dose to over three hundred residents and staff. (Joint Status Report dated Feb. 5, 2021 (ECF No.
62) ¶ 1(f).) Over the next five months, Sheridan received five more vaccine allotments, each of
which Respondent distributed pursuant to BOP clinical guidance. (See Decl. of Amanda Huston
(ECF No. 66-1); Resp’t Suppl. Status Report dated July 22, 2021 (ECF No. 69) ¶ 3.) By July
2021, all Sheridan residents who were “medically eligible ha[d] been offered vaccination[,]” and
1,050 residents and 197 staff members were fully vaccinated. (Id.)
Sheridan experienced another COVID-19 outbreak in August 2021. (Resp’t Suppl. Status
Report dated Aug. 12, 2021 (ECF No. 71) ¶ 1.) In a status report filed on August 12, 2021,
Respondent acknowledged that the surge in positive cases had required the imp osition of new
restrictions that included a temporary suspension of recreation and the placement of two housing
units on quarantine status. (Id. ¶ 6.) Respondent noted that despite the relative harshness of the
modified operations, Sheridan residents still had ready access to medical care, including mental
health services, and could utilize the BOP’s administrative remedy system to voice any concerns.
(Id. ¶¶ 6-7.)
The next day, on August 13, 2021, the FPD filed a supplemental status report requesting
“emergency measures to assess medical care, improve communication, acknowledge harm, and
decrease the psychic stress of . . . confinement” at Sheridan. (Pet’r’s Status Report dated Aug.
13, 2021 (ECF No. 72) at 1.) The FPD asserted that while Respondent had “actively responded”
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to individual and systemic concerns raised by Petitioners throughout the litigation, such efforts
had been limited by “the reality of the pandemic” and the need to use lockdowns to control
COVID-19 outbreaks. (Id. at 1-2.) Detailing the frequent emails received from demoralized
Sheridan residents, the FPD concluded that the “16 months of pandemic conditions ha[d] taken
their toll” and no longer could be “remedied through the incremental steps of addressing inmate
concerns one-by-one.” (Id. at 3, 7.)
Petitioners then moved, pursuant to Federal Rule of Civil Procedure 34(a)(2), to compel
Respondent to allow a team to enter Sheridan to inspect the conditions, to speak confidentially
with incarcerated individuals and staff, to review records, and to obtain evidence in support of
Petitioners’ habeas claims. (See Notice of Entry on Land (ECF No. 80-1).) Respondent objected,
arguing that the inspection would impose an undue burden in light of the pandemic; the
irrelevance of such discovery to the dispositive threshold questions of law regarding the Court’s
subject matter jurisdiction; the requests were duplicative of informal and formal discovery
already conducted and could be obtained through more convenient and less burdensome sources;
and requests to record and photograph Sheridan facilities violated BOP regulations. (Discovery
Or. (ECF No. 83) at 2.)
Following a hearing, the Court granted in part Petitioners’ motion to compel a Rule
34(a)(2) inspection, noting that the district judge had allowed Petitioners to conduct discovery on
conditions at Sheridan and that additional value could be gained from “allowing an expert or
investigator to inspect the current conditions of confinement” at Sheridan. (Id. at 5.) The Court
thus authorized a limited inspection of Sheridan’s facilities but denied as unduly burdensome
Petitioners’ request for unlimited access to Sheridan’s residents, staff, and records. (Id. at 4-5.)
///
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The limited inspection occurred on September 17, 2021. (Pet’r’s Status Report dated Oct.
8, 2021 (ECF No. 89) at 1.) After the inspection, the FPD lodged with this Court the inspection
team’s findings, which reportedly “corroborated the dismal conditions described” by Sheridan
residents. (Id. at 1-2; Suppl. Ex. 1 to Pet’r’s Status Report of Oct. 8, 2021 (ECF No. 92).) The
FPD noted that Petitioners intended to submit additional discovery requests as soon as possible
and requested that the Court set a briefing schedule after Respondent provided a response to
those requests. (ECF No. 89 at 2.) Respondent agreed to provide further discovery and noted that
the parties would work together to determine a briefing schedule as Petitioners’ o perative
petition now contained “dated information.” (Resp’t Suppl. Status Report dated Oct. 13, 2021
(ECF No. 93) ¶ 9.)
In the months that followed, in-person social and legal visitation, programming, and
recreational activities resumed at Sheridan. (Resp’t Supp. Status Report dated Oct. 27, 2021
(ECF No. 94) ¶ 6.) In addition, all housing units were removed from quarantine status and began
moving toward pre-pandemic operations. (Id.) Although the emergence of the Omicron variant in
January 2022 prompted the temporary suspension of in-person visitation, Sheridan maintained
the less restrictive modified operations during the ensuing outbreak. 6 (Resp’t Suppl. Status
Report dated Jan. 19, 2022 (ECF No. 96) ¶ 5.)
On February 4, 2022, Petitioners notified the Court that the parties’ ongoing collaborative
efforts, although “fruitful” in individual cases, fell short of achieving “systemic reform” at
Sheridan and that judicial intervention likely was needed to move this case forward. (Pet’r’s
6 Despite the unprecedented communicability of the Omicron variant, Respondent
reported that as of January 18, 2022, the outbreak consisted of only fifty-seven active cases
among Sheridan residents and ten active cases among staff. (Resp’t Suppl. Status Report dated
Jan. 19, 2022, ¶¶ 1-2.) None required placement on a ventilator or hospitalization. (Id.)
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Status Report dated Feb. 4, 2022 (ECF No. 98) at 1.) The same day, the parties discussed with
the Court the possibility of resolving Petitioners’ claims through settlement negotiations, but the
FPD later determined that it could not consent to a settlement on behalf of the many petitioners
joined to this litigation. (Joint Status Report dated Feb. 10, 2022 (ECF No. 102) at 2.) The parties
instead proposed a new case management schedule that anticipated a forthcoming motion to
dismiss by Respondent and further briefing as needed, the close of fact discovery by July 2022,
and the close of expert discovery by October 2022. (Id. at 3.)
On March 8, 2022, the FPD moved for emergency interim relief on behalf of Petitioner
Jeffrey Reed Green. (See Green v. Hendrix, No. 3:22-cv-00086-SB, Emergency Mot. Hr’g Req.
Interim Relief (ECF No. 7).) The FPD asserted that Mr. Green’s prostate cancer had gone
untreated due to the deliberate indifference of officials at Sheridan and FCI Victorville, and that
Mr. Green required immediate “release from custody for medical evaluation and treatment.” (Id.)
Respondent “strongly dispute[d] Mr. Green’s characterization of the lack of care as well as the
[FPD’s] continued characterization of ‘dire’ conditions at . . . Sheridan[,]” and argued that
release was neither appropriate nor permissible in this consolidated habeas action. (Id., Resp’t
Resp. Emergency Mot. Interim Relief (ECF No. 16) at 2-3.) After oral argument and additional
status hearings, the Court denied as moot the request for emergency interim relief because Mr.
Green’s sentencing judge in the District of Alaska had granted him compassionate release
pursuant to 18 U.S.C. § 3852(c)(1)(A). (ECF No. 27.)
On June 21, 2022, Respondent filed a renewed response to the amended petition ,
reasserting his request that the Court rule on the jurisdictional issues raised in his original
response. (Resp’t Renewed Resp. at 1-2.) Respondent noted that although he had been willing to
work with Petitioners and had provided regular information and discovery concerning the
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pandemic conditions at Sheridan, the BOP was having to “spend[] valuable resources responding
to extensive discovery requests with no end in sight.” (Id. at 2.) Because Petitioners no longer
wished to work toward improving conditions at Sheridan and instead sought only release from
custody, Respondent urged the Court to bring this litigation to a close. (Id.) The Court ordered
Petitioners to file a reply in support of the amended petition and proposed findings of fact by
July 29, 2022. (ECF No. 108.)
On July 27, 2022, Petitioners requested an extension of time to file their reply and
proposed findings of fact, which the Court granted. (ECF No. 111.) Three days later, on July 31,
2022, the FPD filed an emergency motion for an order appointing a special master to investigate
an “institutional shakedown” conducted by “BOP employees . . . brought to . . . Sheridan from
out of the District” that allegedly resulted in the destruction of personal property, harassment of
Sheridan residents, and physical injury. (Emergency Mot. App’t Special Master & Related Or.
(ECF No. 113) at 3-5.) The FPD asserted that the alleged shakedown was in retaliation for this
litigation, and argued that the communications from Sheridan residents about this event
“provide[d] an immediate basis for this Court’s investigatory and remedial action.” (Id. at 6.)
On August 4, 2022, the Court denied the emergency motion, explaining that it lacked
jurisdiction over the Petitioners’ retaliation claims because they challenged conditions of
confinement that were “separate and distinct” from the issues allegedly giving rise to habeas
jurisdiction in this case. 7 (ECF No. 121.) Petitioners then moved for reconsideration, arguing that
7 The Court denied the emergency motion without waiting for Respondent to file a
response because counsel for Respondent was unavailable during the week Petitioners filed the
emergency motion, it was clear that the Court lacked jurisdiction to consider the Petitioners’
retaliation claims, Petitioners did not cite any persuasive evidence that the “shakedown” was
related to this litigation or targeted at Petitioners aside from the assumptions of a few Sheridan
residents, and the Court wanted to ensure that any Sheridan residents who suffered loss of
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“the practical consequences” of this Court’s decision summarily to “deny petitioners a forum in
habeas corpus for retaliation based on their exercise of habeas corpus rights are dire and an
abdication of the Court’s ability to fairly adjudicate the cases before it.” (Mot. Reconsideration
Summ. Denial Emergency Mot. (ECF No. 123) at 2.)
After further briefing by both parties, the Court held oral argument on September 22,
2022 on the jurisdictional issues raised in Respondent’s renewed response, as well as Petitioners’
motion for reconsideration.8 (ECF No. 138.) The Court thereafter took the pending motions
under advisement.
DISCUSSION
Respondent moves to dismiss the amended petition for lack of jurisdiction, arguing that
Petitioners’ claims are not cognizable in habeas because they challenge the conditions of
Petitioners’ confinement rather than the legality of their convictions or sentences. (Resp. Am.
Pet. at 8-11.) Respondent asserts that Petitioners’ claims instead arise under the PLRA, and that
other remedies short of release are available to address the allegedly unconstitutional conditions
at Sheridan. (Id. at 10-12; Renewed Resp. at 8-11.)
“Federal law opens two main avenues to relief on complaints related to imprisonment” —
a petition for writ of habeas corpus and a civil rights complaint. Muhammad v. Close, 540 U.S.
749, 750 (2004). The Supreme Court has made it clear that “the essence of habeas corpus is an
attack by a person in custody upon the legality of that custody” and that “the traditional function
property or injury could timely file grievances in accordance with BOP administrative
procedures without waiting for the Court’s written opinion on the motion.
8 The Court also addressed at oral argument Respondent’s motion to stay further filings
pending decision on the jurisdictional issues (ECF No. 128) and motion to strike Petitioners’
proposing findings of fact and conclusions of law (ECF No. 135).
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of the writ is to secure . . . release[.]” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).
“Challenges to the validity of any confinement or to particulars affecting its duration are the
province of habeas corpus[.]” Muhammad, 540 U.S. at 750 (citing Preiser, 411 U.S. at 500); see
also Nelson v. Campbell, 541 US. 637, 643 (2004) (explaining that “where an inmate seeks
injunctive relief challenging the fact of his conviction or the duration of his sentence[,]” such
claims “fall within the ‘core’ of habeas corpus”). Thus, a claim should proceed in habeas only if
the petitioner’s success on that claim would “necessarily demonstrate the invalidity of [his]
confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 82 (2005).
By contrast, a civil rights action is the “proper remedy” if an individual in custody “is
making a constitutional challenge to the conditions of his prison life, but not to the fact or length
of his custody.” Preiser, 411 U.S. at 499. Conditions-of-confinement claims are those which
“allege[] unconstitutional treatment . . . while in confinement” (id.), and the remedy “usually is
an award of damages or an order for injunctive relief that requires the institution to cure the
constitutional violations.” Jackson v. Twin Falls Cnty. Jail, No. 1:21-cv-00017-DCN, 2021 WL
1202336, at *2 (D. Idaho Mar. 29, 2021). “[C]onstitutional claims that merely challenge the
conditions of . . . confinement, whether the [individual] seeks monetary or injunctive relief, fall
outside of [the] core [of habeas corpus]” and should be raised as a civil rights claim “in the first
instance.” Nelson, 541 U.S. at 643; see also Hill v. McDonough, 547 U.S. 573, 579 (2006)
(instructing that an “inmate’s challenge to the circumstances of his confinement” may be brought
in a civil rights action).
Since the start of the COVID-19 pandemic, hundreds of individuals in federal and state
custody have sought habeas-based release to escape pandemic conditions inside prisons, jails,
and detention facilities. Despite these numerous lawsuits, “[t]he question of whether . . . actions
PAGE 14 – OPINION AND ORDER
Appendix B
Page 14 of 24
Case 3:22-cv-00966-SB
Document 20
Filed 11/15/22
Page 15 of 24
[brought by individuals in custody] asserting violations of their constitutional rights based on the
COVID-19 pandemic properly may sound in habeas, versus civil rights, is an open one, with the
case law in flux.” William v. Jenkins, No. CV 21-1456-DMG (GJS), 2021 WL 765567, at *8
(C.D. Cal. Feb. 24, 2021). To date, the Supreme Court has not had occasion to consider whether
claims challenging pandemic conditions fall within the core of habeas corpus, and to date the
Ninth Circuit has declined to resolve the issue. See Roman v. Wolf, 977 F.3d 935, 941 (9th Cir.
2020) (per curiam) (declining to consider the availability of habeas review for claims challenging
conditions of confinement during the COVID-19 pandemic “because, separately from their
habeas petition, Plaintiffs brought a class action complaint for declaratory and injunctive relief
seeking to remedy allegedly unconstitutional conditions at [the detention facility]”); see also
Green v. Jenkins, 859 F. App’x 186, 187 (9th Cir. 2021) (expressing “no opinion as to whether
[petitioner] may file a [Section] 2241 habeas petition seeking his immediate release based on
conditions at FCI Terminal Island”).
Absent controlling Supreme Court or Ninth Circuit precedent, many district courts in the
Ninth Circuit have concluded that claims premised on the dangers posed by COVID-19 are not
cognizable in habeas, even when the relief sought is release. See Luna v. Engleman, No. 2:22-cv02627-JWH (GJS), 2022 WL 1211911, at *3-5 (C.D. Cal. Apr. 25, 2022) (holding that a claim
“based on the BOP’s asserted failure to provide adequate social distancing measures, adequate
testing, its adherence to a herd immunity policy, and its failure to adhere to mask and vaccine
mandates and CDC guidelines” is “a classic conditions-of-confinement claim that does not
implicate the fact or duration of Petitioner’s confinement” and therefore “may not be considered
on Section 2241 habeas review”); Miller v. Ponce, No. CV 21-06985-MCS (DFM), 2022 WL
943056, at *2 (C.D. Cal. Feb. 8, 2022) (concluding that because the petitioner did “not challenge
PAGE 15 – OPINION AND ORDER
Appendix B
Page 15 of 24
Case 3:22-cv-00966-SB
Document 20
Filed 11/15/22
Page 16 of 24
his conviction or sentence but rather [sought] release based on the ‘conditions of confinement’
created by the COVID-19 pandemic,” his allegations “sound in civil rights, not in habeas”);
Carranza v. Koehn, No. 2:20-cv-01586-GMN-DJA, 2020 WL 6119515, at *5 (D. Nev. Oct. 16,
2020) (concluding that “this does not appear to be a habeas case” where federal p retrial detainees
alleged that the conditions of their confinement placed them in “excessive danger” from COVID19); Alvarez v. Larose, 445 F. Supp. 3d 861, 865-68 (S.D. Cal. 2020) (explaining that the
plaintiffs’ claims relating to COVID-19 “would not exist but for their current conditions of
confinement” and therefore could not, “under any good faith calculus, . . . be characterized as a
habeas corpus proceeding challenging the fact or duration of confinement in prison”)
(simplified).
A few district courts, however, have held that habeas jurisdiction may be proper under
Section 2241 when a petitioner’s COVID-19 claims challenge “the fact and duration of . . .
confinement on the basis that no set of conditions of confinement under the present
circumstances could be constitutional.” Torres v. Milusnic, 472 F. Supp. 3d 713, 726 (C.D. Cal.
2020); see also Sekerke v. Gore, No. 20-CV-1998 JLS (MSB), 2021 WL 3604169, at *7 (S.D.
Cal. Aug. 13, 2021) (holding that “[i]n the specific context of the deadly COVID-19 pandemic,
when a prisoner claims his detention is unconstitutional in light of the dangers presented by
COVID-19 combined with the petitioner’s particular circumstances and that petitioner further
contends there are ‘no set of conditions’ that could possibly make his custody constitutional, a
petition for habeas corpus is the proper vehicle for challenging that custody”); Nickerson v.
Broomfield, No. 20-06326 EJD (PR), 2021 WL 3934477, at *2 (N.D. Cal. Feb. 11, 2021) (stating
that “[w]hen a[n] [individual in custody] seeks his release from custody rather than the
implementation of procedures or safeguards at the prison to ameliorate the allegedly
PAGE 16 – OPINION AND ORDER
Appendix B
Page 16 of 24
Case 3:22-cv-00966-SB
Document 20
Filed 11/15/22
Page 17 of 24
unconstitutional situation—as for example, when he seeks release because the risk of contracting
C[OVID]-19 in the prison is so great that there are no conditions sufficient to eliminate the
constitutional violation—he can proceed in a habeas action because the fact that he seeks release
puts his petition ‘at the heart of habeas corpus’”); Gutierrez-Lopez v. Figueroa, 462 F. Supp. 3d
973, 983 (D. Ariz. 2020) (concluding that “[b]ecause Petitioner claims that her continued
detention under the present conditions is unconstitutional and that her immediate release is the
only effective remedy . . . , [her] claims can be viewed as challenging the fact, not simply the
conditions of her confinement”).
Petitioners present the same argument for habeas jurisdiction that these other district
courts in this circuit have found persuasive. Specifically, Petitioners allege that because they
seek release and allege that there are no conditions of confinement that are or could be
constitutionally sufficient to protect them from COVID-19, they challenge the fact, and not
simply the conditions, of their confinement. (Pet’r’s Br. at 3-6.) Petitioners urge the Court to
allow their claims to proceed on this theory, arguing, among other things, that doing so is not
inconsistent with the Supreme Court’s jurisprudence differentiating habeas and civil rights
actions. (Id. at 6-13.)
Although the Court is sympathetic to Petitioners’ difficult experiences at Sheridan during
the pandemic, the Court cannot conclude that merely alleging that no conditions of confinement
could satisfy the Eighth Amendment is sufficient to confer habeas jurisdiction u nder
circumstances such as those present here. See Jackson v. City of Twin Falls & Idaho Dep’t of
Corr., No. 1:21-cv-00013-BLW, 2021 WL 982307, at *3 (D. Idaho Mar. 16, 2021) (“Merely
alleging that no conditions of confinement could possibly satisfy the Eighth Amendment—an
allegation which every inmate could throw into any habeas corpus petitio n—does not magically
PAGE 17 – OPINION AND ORDER
Appendix B
Page 17 of 24
Case 3:22-cv-00966-SB
Document 20
Filed 11/15/22
Page 18 of 24
transform the nature of a conditions-of-confinement claim.”). Petitioners insist that they are
challenging the fact of their confinement, but they do not allege that their convictions or
sentences are invalid in the first instance or that they are being held in excess of a lawfully
imposed term of imprisonment. Instead, Petitioners allege that the harsh conditions at Sheridan
place them at risk of serious harm from COVID-19, allegations premised on the conditions, and
not the validity, of their confinement. See Wilson, 465 F. Supp. 3d at 1048 (holding that
petitioners’ COVID-19 claims were not cognizable in habeas because they “ultimately [were]
premised on the conditions of confinement”). Indeed, Petitioners’ claims “would not exist but for
[the] current conditions” at Sheridan. Alvarez, 445 F. Supp. 3d at 866. Petitioners’ argument that
habeas jurisdiction exists simply because they allege that nothing short of their release may
remedy the unconstitutional conditions at Sheridan thus improperly “conflates the nature of relief
with the substance of the claim.”9 Id.; see also Jackson, 2021 WL 982307, at *3 (holding that
“[r]equesting release as the remedy for unconstitutional prison conditions does not render the
substantive conditions-of-confinement claim a challenge to the fact of an inmate’s
confinement”); Acevedo v. Capra, 545 F. Supp. 3d 107, 115 (S.D.N.Y. 2021) (explaining that the
“[p]etitioners’ focus on the remedy they seek, rather than the nature of their claim, is
procedurally untenable” because “[i]t would require a court to determine, at the very outset of a
lawsuit, whether there are remedies short of release that could cure the alleged constitutional
9 Petitioners’ reliance on Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020), Cheek v.
Warden of Fed. Med. Ctr., 835 F. App’x 737 (5th Cir. 2020), and Hope v. Warden York Cnty.
Prison, 972 F.3d 310 (3d Cir. 2020)—each of which similarly emphasizes the nature of the
requested relief rather than the substance of the claim in recognizing that COVID-19 claims may
be cognizable on habeas review—is therefore misplaced. See Jackson, 2021 WL 982307, at *3
(rejecting the Sixth Circuit’s analysis in Wilson because it “improperly conflates the nature of
relief with the substance of the claim” and “ignores that a variety of orders short of release can
bring a prison into Eighth Amendment compliance with respect to the pandemic”).
PAGE 18 – OPINION AND ORDER
Appendix B
Page 18 of 24
Case 3:22-cv-00966-SB
Document 20
Filed 11/15/22
Page 19 of 24
violation”). Given the specific factual allegations on which Petitioners’ claims rely here—
allegations that exclusively concern the conditions at Sheridan—the Court concludes that this
case cannot, “under any good faith calculus,” be characterized as a habeas proceeding
challenging the fact of Petitioners’ confinement.10 Alvarez, 445 F. Supp. 3d at 866; see also
Jackson, 2021 WL 982307, at *4 (concluding that “the nature of the claim itself—not the relief
sought—ultimately determines whether a claim may be asserted in a habeas petition”).
That the Supreme Court appears to have left open the possibility that individuals in
federal custody may, in some circumstances, challenge the conditions of their confinement under
Section 2241 does not save Petitioners’ claims here.11 See Ziglar v. Abbasi, 137 S. Ct. 1843,
1862-63 (2017) (noting that for challenges to “large-scale policy decisions concerning the
conditions of confinement imposed on hundreds of prisoners[,]” the Court has “left open the
10 Petitioners alleged in the amended petition that the BOP could do more to improve
conditions to protect them from COVID-19, by establishing “consistent and effective
safeguards” to control the spread of the disease, prohibiting further transfers into Sheridan, and
mandating specific cleaning and social distancing protocols. (Am. Pet. at 2-3.) The FPD also
acknowledged at the hearing before the district judge that Stirling’s conditions could be rendered
constitutional if “the number[] [of individuals in custody at Sheridan] [is] substantially
lessened.” (Tr. 25:16-21.) Thus, even if the Court found Petitioners’ theory of habeas jurisdiction
persuasive, they do not plausibly allege in the amended petition that there are no conditions short
of release that would be constitutionally adequate to protect them from COVID-19 at Sheridan.
See Alvarez, 445 F. Supp. 3d at 867 (disagreeing with the argument that no set of conditions
would be constitutionally sufficient because, “[a]s Plaintiffs allege in their Complaint, a
significant reduction in population, an increase in sanitation, and compliance with CDC
guidelines for detention facilities would eliminate considerable risk of . . . inmates contracting
COVID-19”).
11 The Ninth Circuit similarly has declined to resolve whether habeas jurisdiction extends
to conditions-of-confinement claims by individuals in federal custody. See Nettles v. Grounds,
830 F.3d 922, 927, 931 n.6, 935 (9th Cir. 2016) (holding that a civil rights action under 42
U.S.C. § 1983 “is the exclusive vehicle for claims brought by [individuals in] state [custody] that
are not within the core of habeas corpus”—that is, claims that “would not necessarily lead to [the
individual’s] immediate or earlier release from confinement”—but declining to consider whether
the same is true for individuals in federal custody).
PAGE 19 – OPINION AND ORDER
Appendix B
Page 19 of 24
Case 3:22-cv-00966-SB
Document 20
Filed 11/15/22
Page 20 of 24
question whether [federal detainees] might be able to challenge their confinement conditions via
a petition for a writ of habeas corpus”). Other courts have recognized that COVID-19 conditions
of confinement do not rise to the level of potential habeas relief the Supreme Court anticipated in
Abbasi:
. . . Petitioners’ Eighth Amendment claims [seeking release from federal
confinement to remedy conditions created by the pandemic] sound more in the
nature of the type of habeas claim the Supreme Court in Preiser hypothesized, but
has yet to recognize: ‘[w]hen a prisoner is put under additional and
unconstitutional restraints during his lawful custody, it is arguable that habeas
corpus will lie to remove the restraints making the custody illegal.’ The Supreme
Court resurrected this idea more recently in Abbasi. Yet, although the petitioners
in Abbasi alleged [that] they were held in tiny, empty, constantly lighted cells for
over 23 hours per day without basic hygiene, and subjected to physical abuse,
including broken bones, and verbal abuse, including sexual and religious insults,
the Supreme Court did not find it was such a case for habeas relief ‘to remove the
restraints making the custody illegal.’ The Court’s decision is telling of just how
extraordinary the case must be for habeas jurisdiction to lie before a prisoner may
be released from lawful custody based on a condition of confinement.
Wragg v. Ortiz, 462 F. Supp. 3d 476, 504-05 (D.N.J. 2020) (quoting Abbasi, 137 S. Ct. at 1853).
Thus, even assuming federal conditions-of-confinement claims may properly sound in habeas
under certain extraordinary circumstances, a close reading of Abbasi suggests that “the remedy is
a narrow one that would not apply” to Petitioners’ COVID-related claims here. Luna, 2022 WL
1211911, at *5; see also Weibel v. Von Blanckensee, No. CV-20-00341-TUC-JAS (DTF), 2021
WL 5507517, at *3 (D. Ariz. Aug. 13, 2021) (acknowledging that Abbasi “neither explicitly nor
implicitly foreclosed the use of habeas corpus for conditions-of-confinement claims[,]” but
concluding that claims concerning “lack of masks, cleaning solution, laundry service, ability to
socially distance,” and other COVID-19 conditions are not cognizable in habeas); CamilloAmisano v. Ponce, No. 2:21-cv-00072-ODW-JDE, 2021 WL 3377237, at *2 (C.D. Cal. June 22,
2021) (noting that “even if it were permissible for a federal prisoner to raise a conditions of
confinement claim under Section 2241,” a case challenging pandemic conditions “is not one of
PAGE 20 – OPINION AND ORDER
Appendix B
Page 20 of 24
Case 3:22-cv-00966-SB
Document 20
Filed 11/15/22
Page 21 of 24
those ‘exceptional’ cases warranting habeas jurisdiction” and “the relief being sought is simply
not what lawyers or judges think of as habeas, even under [Section] 2241”) (simplified); Lustig
v. Warden, FCI Lompoc, No. CV 20-3708-SB (AGR), 2021 WL 1164493, at *1-2 (C.D. Cal.
Jan. 1, 2021) (finding “no reason to depart from the reasoning” of district court cases declining to
extend habeas jurisdiction to COVID-19 claims under Abbasi); Wilson, 465 F. Supp. 3d at 1049
(explaining that “[a]lthough the Supreme Court has not entirely foreclosed habeas relief [on
federal conditions-of-confinement claims], a careful reading of the Supreme Court cases suggests
that habeas cannot be stretched this far, as explained in Wragg”); Wragg, 462 F. Supp. 3d at 504
(declining to find case challenging COVID-19 conditions under Section 2241 “to be that
‘extraordinary case’ where [the district court] should expand habeas jurisdiction, more
extraordinary than even Abbasi, where the Supreme Court did not see fit to extend habeas
jurisdiction over a conditions of confinement claim involving outright alleged physical abuse of
prisoners who were not serving a sentence upon conviction of a crime”).
While the Court acknowledges that, conceptually, there could be a policy in a federal
prison that could result in no combination of conditions sufficient to render custody in that
facility constitutional such that habeas relief is appropriate under Abbasi, no court has ever
actually so found. This is not the appropriate case of first impression, especially where
Petitioners acknowledge in the amended petition that there are measures Respondent could take
short of release to improve conditions during the COVID-19 pandemic (e.g., prohibiting further
transfers into Sheridan, and mandating specific cleaning and social distancing protocols). See
Camillo-Amisano, 2021 WL 3377237, at *5 (concluding that the petitioner’s claims could not be
brought under Section 2241 because “[c]ontrary to Petitioner’s contentions, other relief is
available to address his concerns, including injunctive relief ordering the Prison to take
PAGE 21 – OPINION AND ORDER
Appendix B
Page 21 of 24
Case 3:22-cv-00966-SB
Document 20
Filed 11/15/22
Page 22 of 24
preventative measures to reduce the risk of COVID-19 spreading”); see also Adelman v. Warden
or Acting Warden, Lompoc-FCI, No. 2:21-cv-04336-JAK (GJS), 2021 WL 2379402, at *7 (C.D.
Cal. June 10, 2021) (finding persuasive those cases concluding that habeas jurisdiction is
unavailable to address COVID-19 conditions because “[i]t is possible that there is relief that
could be fashioned short of release”).
Finally, the evolution of compassionate release during the COVID-19 pandemic has
clearly demonstrated that habeas relief is not the only option available to Petitioners to remedy
the alleged deprivations they assert here. Compassionate release has provided available relief to
petitioners with special individual circumstances justifying early release from custody during the
pandemic. Indeed, the FPD has assisted over 155 individuals serving federal sentences, including
Mr. Stirling and Mr. Green, to obtain compassionate release from federal custody during the
course of this litigation. (See Maxine Bernstein, Judge Grants Compassionate Release to
Convicted Bank Robber, Calls his Time at Oregon’s Federal Prison ‘Excruciating Experience’,
OREGONLIVE (May 6, 2022, 4:48 PM), https://www.oregonlive.com/crime/2022/05/
judge-grants-compassionate-release-to-convicted-bank-robber-calls-his-time-at-oregons-federalprison-excruciating-experience.html (last visited Nov. 15, 2022); U.S. Sentencing Commission
Compassionate Release Data Report, FY2020-21, Tab. 2 (reflecting that the District of Oregon
granted 63.2% of compassionate release motions, the second highest percentage of any federal
district), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federalsentencing-statistics/compassionate-release/20220509-Compassionate- Release.pdf?
utm_medium=email& utm_source=govdelivery (last visited Nov. 15, 2022); see also United
States v. Stirling, No. 3:19-cr-00150-MO (D. Or.), ECF No. 154; United States v. Green, 3:16cr-00063-SLG (D. Alaska), ECF No. 208.
PAGE 22 – OPINION AND ORDER
Appendix B
Page 22 of 24
Case 3:22-cv-00966-SB
Document 20
Filed 11/15/22
Page 23 of 24
In addition to the compassionate release remedy, a civil rights action under the PLRA
also provides for the relief Petitioners seek here. Prospective injunctive relief is available under
the PLRA “if it ‘extend[s] no further than necessary to correct the violation of the Federal right
of a particular plaintiff or plaintiffs.’” Plata v. Newsom, 445 F. Supp. 3d 557, 561 (N.D. Cal.
2020) (quoting 18 U.S.C. § 3626(a)(1)(A)). Further, individuals in custody may obtain release
under the PLRA via a prisoner release order issued by a three-judge panel if less intrusive relief
fails to remedy the deprivation. 18 U.S.C. § 3626(a)(3)(A), (B). If individuals in federal custody
first exhaust their administrative remedies, they may challenge the same conditions of
confinement Petitioners challenge here by filing a civil rights action under the PLRA. See
Alvarez, 445 F. Supp. 3d at 866 (explaining that the plaintiffs’ COVID-19-related habeas claim
“is . . . based on confinement conditions” and therefore falls within the purview of the PLRA).
For all of these reasons, the Court agrees with the weight of authority in this circuit and
concludes that claims challenging prison conditions created by the COVID-19 pandemic are not
cognizable under Section 2241, even if the petitioner seeks release from custody. Specifically,
the allegations in the amended petition do not “support a finding that immediate release from an
existing, valid conviction and sentence imposed by another federal court is the only relief
appropriate here and that only habeas review will suffice.” Luna, 2022 WL 1211911, at *5.
Adopting Petitioners’ arguments to the contrary would “risk . . . turning [Section 2241] into a
general civil rights statute by the mere expedient of a petitioner seeking that release remedy,
among other remedies, in every habeas action in which conditions of confinement are at issue,
e.g., poor medical treatment, unsanitary conditions, overcrowding, assaultive environment, and
so forth.” Harrison v. Broomfield, No. 2:20-cv-01838, 2020 WL 5797871, at *2 (E.D. Cal. Sept.
29, 2020). Petitioners’ claims are not cognizable in habeas, and therefore this Court lacks
PAGE 23 – OPINION AND ORDER
Appendix B
Page 23 of 24
Case 3:22-cv-00966-SB
Document 20
Filed 11/15/22
Page 24 of 24
jurisdiction under Section 2241 to adjudicate Petitioners’ claims and must dismiss the amended
petition.12
CONCLUSION
For the reasons stated, the Court DISMISSES the Amended Complaint and Petition for
Writ of Habeas Corpus (ECF No. 16), with prejudice, and DENIES AS MOOT all pending
motions.13 The Court also DISMISSES all of the related petitions for writ of habeas corpus
consolidated under this case number and under Lander v. Salazar, No. 3:20-cv-01379-SB.14
IT IS SO ORDERED.
DATED this 15th day of November, 2022.
HON. STACIE F. BECKERMAN
United States Magistrate Judge
12 Although the Court does not reach the merits of Petitioners’ claims, it notes that as of
the date of this opinion, the COVID-19 vaccine and associated booster vaccines are widely
available, there is only one confirmed active COVID-19 case at Sheridan, and the facility has
returned to a Level 2 “modified” operational level. (See FED. BUREAU OF PRISONS,
https://www.bop.gov/locations/institutions/she/) (last visited Nov. 15, 2022). Regardless of the
label of the claims underlying Petitioners’ request for immediate release, it is clear that the
release of all Petitioners from federal custody at this time is not necessary to address any alleged
unconstitutional conditions of confinement related to COVID-19.
13 The Court sealed Petitioners’ proposed findings of fact and conclusions of law
(attached as Exhibit A to Petitioners’ response to Respondent’s motion to stay), pending
resolution of the motion to stay. (ECF No. 137.) Now that the Court has denied as moot
Respondent’s motion to stay, the Court unseals Exhibit A (ECF No. 134-1). The Court
authorized Petitioners to file proposed findings of fact (see ECF No. 108), and the FPD put a
great deal of work into investigating and documenting conditions at Sheridan, from Petitioners’
standpoint, over the relevant time period. Respondent has not had an opportunity to respond to
the proposed findings of fact and the Court does not adopt Petitioners’ proposed findings, but the
document is an important part of the record of this case.
14 See Lander Consolidation Order (ECF No. 7) (ordering that the Court will resolve all
threshold legal and factual issues in Stirling, with the exception of any issues relating only to
pretrial detainee petitioners, which the Court will address separately in Lander). The Court’s
jurisdictional analysis herein applies to both post-conviction and pretrial detainee petitioners.
PAGE 24 – OPINION AND ORDER
Appendix B
Page 24 of 24
Case: 23-35049, 09/05/2024, ID: 12905405, DktEntry: 58, Page 1 of 1
UNITED STATES COURT OF APPEALS
FILED
SEP 5 2024
FOR THE NINTH CIRCUIT
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LONNIE EUGENE LILLARD,
No.
Petitioner-Appellant,
v.
DEWAYNE HENDRIX, Warden, FCI
Sheridan,
23-35049
D.C. No. 3:22-cv-00966-SB
District of Oregon,
Portland
ORDER
Respondent-Appellee.
AMADOR SANCHEZ MENDOZA, AKA
Amador Sanchez,
No.
23-35059
D.C. No.
3:22-cv-00559-SB
PetitionerAppellant,
v.
DEWAYNE HENDRIX, Warden,
RespondentAppellee.
Before: RAWLINSON, FORREST, and SUNG, Circuit Judges.
The panel has voted to deny the petition for panel rehearing and to deny the
petition for rehearing en banc (Dkt. 57). The full court has been advised of the
petition for rehearing en banc, and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
The petition for panel rehearing and rehearing en banc is DENIED.
Appendix C
Page 1 of 1
Case 3:20-cv-00712-SB
Document 16
Filed 06/30/20
Page 1 of 25
Lisa Hay, OSB # 980628
Federal Public Defender
District of Oregon
101 SW Main Street, Suite 1700
Portland, Oregon 97204
Tel: (503) 326-2123
Fax: (503) 326-5524
Email: lisa_hay@fd.org
Attorney for Petitioner
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JOHN PHILIP STIRLING,
Case No. 3:20-cv-00712-SB
Petitioner, AMENDED COMPLAINT FOR
DECLARATORY AND INJUNCTIVE
v.
RELIEF AND PETITION FOR WRIT
OF HABEAS CORPUS
JOSIAS SALAZAR, Warden, FCI
Sheridan,
Defendant-Respondent.
Appendix D
Page 1 of 25
Case 3:20-cv-00712-SB
Document 16
Filed 06/30/20
Page 2 of 25
INTRODUCTION
Whether through indifference or incompetence, the Federal Bureau of Prisons is
endangering the lives of individuals entrusted to its care by failing to establish consistent and
effective safeguards to protect them from the coronavirus and by subjecting them to conditions of
confinement so harsh that mental and physical health are impaired. More than eighty federal
inmates have died from COVID-19, thousands others have been sickened, yet the Bureau fails to
follow the directives of the Attorney General and health authorities to de-densify its facilities in
order to allow for safe distance between prisoners and lower staff-to-inmate ratios. Instead, since
March 31, the Bureau has instituted increasingly draconian lockdown measures, confining pretrial
detainees and convicted inmates in small cells for up to 23 hours per day, and at times up to 72
hours straight; triple-bunking some inmates in two-person cells; sharply curtailing contact with
family and friends; cancelling educational and rehabilitative programs; eliminating or reducing
needed medical care; and providing misinformation that frightens, destabilizes, and demoralizes,
including quarantining inmates for transfer to home confinement, then revoking the transfers
without explanation.
The Bureau increases the risk of infection for all inmates in a number of ways: by failing
to test all current inmates for COVID-19; transporting inmates into and out of facilities without
testing for COVID-19; allowing guards to enter without being tested and to wear the same gloves,
masks and uniforms as they rotate through areas of the compound; and failing to provide sufficient
cleaning materials needed to disinfect surfaces to avoid infection. While a national emergency like
the pandemic justifies emergency measures, the Bureau’s resort to a continuing lockdown, now
more than 80 days running, and its inability to protect inmates from COVID-19 with or without
the lockdown, results in custody that violates the laws and Constitution of the United States.
PAGE 1.
AMENDED COMPLAINT
Appendix D
Page 2 of 25
Case 3:20-cv-00712-SB
Document 16
Filed 06/30/20
Page 3 of 25
Because no conditions of confinement would be constitutionally sufficient to protect Mr.
Stirling from COVID-19 within the Federal Detention Center at Sheridan, Oregon, where he is
housed, Mr. Stirling seeks a writ of habeas corpus under 28 U.S.C. § 2241 ordering his release
from unlawful custody. While the petition is pending, Mr. Stirling seeks declaratory and injunctive
relief in the form of orders (1) prohibiting the Warden from accepting further detainees to the
Federal Detention Center in Sheridan, Oregon, where he is housed, until the Warden can
demonstrate that adequate quarantining and testing of the new arrivals assures that they are not
infected with the coronavirus; (2) prohibiting Mr. Stirling’s transfer out of the Federal Detention
Center to any other BOP facility until the Warden can demonstrate that sufficient measures exist
to protect him from infection with the coronavirus during both transportation and at the new
facility; (3) mandating specific cleaning and social distancing protocols be implemented; and (3)
mandating enlargement of his custody to allow serve of his sentence in the community rather than
within the Federal Detention Center, until or if the lockdown has been lifted and safe conditions
restored. Mr. Stirling further seeks court-mandated fact-finding on the conditions at FCI Sheridan
as an interim measure to inform the decision in this case.
STATEMENT OF FACTS
I.
Background
1.1
The novel coronavirus that causes COVID-19 has led to a global pandemic. As of
June 29, 2020, more than 10 million people have been infected with the virus worldwide, and
504,936 have died.1 A quarter of those deaths have occurred within the United States. The
1
Johns Hopkins Medical Center, Coronavirus resource center,
https://coronavirus.jhu.edu/ (last accessed June 29, 2020, 9:22 p.m.)
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devastating and rapid spread of the virus in the United States is evident in graphs that show the
cumulative cases since the 50th day after the first case.2
1.2
The spread of the virus within prisons has been no less dramatic. There have been
at least 75,000 people infected in U.S. prisons and jails, and at least 657 inmates and workers have
died.3 Since the first known COVID-related death of an inmate on March 29, 2020, at least 548
prisoners in state and federal custody have died of COVID.4 The Bureau of Prisons acknowledges
2
Id. Because the epidemic began at different times in different countries, viewing each
country’s curve from the same starting point allows an easier comparison among countries. The
starting point for this chart is the day on which the 50th case was confirmed in each country,
with the trend lines following the number of days since that event.
3
The New York Times, Coronavirus in The U.S.: Latest Map and Case Count,
https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html#clusters (last accessed
June 29, 2020).
4
The Marshall Project, https://www.themarshallproject.org/2020/05/01/a-state-by-statelook-at-coronavirus-in-prisons (last accessed June 29, 2020).
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89 inmate deaths directly attributed to COVID-19, a figure that does not include either deaths at
private federal prisons or deaths of inmates after they are discharged from prison.5
1.3
According to the Centers for Disease
Control and Prevention, people who suffer
16
from certain underlying medical conditions face an elevated risk of complications if they contract
COVID-19. The conditions causing higher risk include chronic lung disease, moderate to severe
asthma, serious heart conditions, chronic kidney disease, liver disease, diabetes, compromised
immune systems, and severe obesity.6 Those aged 65 and over are also at higher risk.
1.4
In order to slow the spread of the virus and to save lives, the CDC issued a series
of guidelines recommending “social distancing” of at least six feet of distance between people,
frequent hand-washing, use of alcohol-based disinfectants, and wearing of masks.7 New reports
indicate that remaining in proximity to others, in closed indoor spaces with limited air circulation,
poses increased risk of coronavirus infection.8
5
Death total from Bureau of Prisons website, https://www.bop.gov/coronavirus/ (last
accessed June 29, 2020). The site acknowledges that private prisons are not included in the
count. For an example of an unreported death of an inmate after discharge, see
https://www.nytimes.com/2020/06/15/obituaries/alan-hurwitz-dead-coronavirus.html. The BOP
did not issue a press release to report his death. See
https://www.bop.gov/resources/press_releases.jsp
6
Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19),
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/index.html (last accessed
June 19, 2020).
7
Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19),
https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last accessed June
19, 2020) (“[K]eeping space between you and others is one of the best tools we have to avoid
being exposed to this virus and slowing its spread locally and across the country and world.”)
8
https://www.businessinsider.com/coronavirus-risk-higher-tight-indoor-spaces-withlittle-air-flow-2020-5
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Specifically relating to prisons, the CDC has noted the increased risk factors for
spread of the coronavirus:
Incarcerated/detained persons live, work, eat, study, and recreate within
congregate environments, heightening the potential for COVID-19 to
spread once introduced.
There are many opportunities for COVID-19 to be introduced into a
correctional or detention facility, including daily staff ingress and egress;
transfer of incarcerated/detained persons between facilities and systems.
Options for medical isolation of COVID-19 cases are limited and vary
depending on the type and size of facility, as well as the current level of
available capacity, which is partly based on medical isolation needs for
other conditions.
Adequate levels of custody and healthcare staffing must be maintained to
ensure safe operation of the facility, and options to practice social distancing
through work alternatives such as working from home or reduced/alternate
schedules are limited for many staff roles.
Because limited outside information is available to many
incarcerated/detained persons, unease and misinformation regarding the
potential for COVID-19 spread may be high, potentially creating security
and morale challenges.
The ability of incarcerated/detained persons to exercise disease prevention
measures (e.g., frequent handwashing) may be limited and is determined by
the supplies provided in the facility and by security considerations. Many
facilities restrict access to soap and paper towels and prohibit alcohol-based
hand sanitizer and many disinfectants.
Incarcerated/detained persons and staff may have medical conditions that
increase their risk of severe disease from COVID-19. 9
9
Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19),
https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html (last accessed June 29, 2020)
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The CDC has issued guidance urging prison administrators to take action to prevent
overcrowding of correctional and detention facilities.10 According to CDC guidelines, only two
measures are known to be effective in reducing the spread of this disease: (1) diligent “social or
physical distancing,” which involves keeping at least six feet of space between people to avoid
transmission of the virus, and (2) vigilant hygiene practices, including frequently washing hands
and regularly disinfecting surfaces. Physical distancing is a necessary predicate for hygiene
practices to have any meaningful impact.11
1.7
As the spread of the coronavirus escalated, Congress passed the Coronavirus Aid,
Relief, and Economic Security (“CARES”) Act, which modified 18 U.S.C. § 3624(c) to enable the
Bureau to allow greater use of home confinement and reduce crowding at prisons during the
COVID-19 emergency.
1.8
As the spread of the coronavirus escalated, Attorney General Barr issued memoranda
on March 26 and April 3, directing the Bureau of Prisons to decrease prison populations by
transferring medically at-risk prisoners to home confinement.12 The Attorney General
Ctrs. for Disease Control and Prevention, Interim Guidance on Management of
Coronavirus Disease 2019 (COVID-19) in CORRECTIONAL AND DETENTION FACILITIES
(CDC GUIDANCE) (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html (last accessed June
29, 2020).
10
11
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/socialdistancing.html
12
Office of the Attorney General, Prioritization of Home Confinement as Appropriate in
Response to COVID-19 Pandemic (Mar. 26, 2020),
https://www.justice.gov/file/1262731/download. Office of the Attorney General, Increasing Use
of Home Confinement as Institutions Most Affected by COVID-19 (Apr. 3, 2020),
https://www.justice.gov/file/1266661/download.
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acknowledged that “emergency conditions are materially affecting the functioning of the Bureau
of Prisons,” and that due to the rapid spread of COVID-19, “time is of the essence.” He directed
the Bureau “to move vulnerable inmates out” of specific institutions suffering from infection and
also out of facilities facing similarly serious problems.
1.9
As the spread of the coronavirus escalated, numerous public officials, doctors, and
members of Congress issued increasingly urgent calls for the Bureau of Prisons to de-densify its
facilities in order to allow adequate distance among incarcerated inmates. On March 23, 2020, a
bipartisan group of fourteen U.S. Senators sent a letter to U.S. Attorney General Barr and BOP
Director Carvajal to express their “serious concern for the health and wellbeing of federal prison
staff and prisoners . . . especially those who are most vulnerable to infection.”13 The Senators wrote
that they reviewed the BOP’s COVID-19 Action Plan and noted that it did not include any
measures to protect the most vulnerable staff and prisoners. The Senators urged the Department of
Justice and the BOP to release to home confinement certain individuals who were elderly, ill, or
incarcerated for non-violent offenses and were near release. Two hundred faculty members
associated with Johns Hopkins School of Public Health expressed “urgent concern” about the
spread of COVID-19 in prisons, jails, and juvenile detention centers.14 The doctors detailed the
13
https://www.durbin.senate.gov/imo/media/doc/Letter.%20to%20DOJ%20and%20BOP%20on%2
0COVID-19%20and%20FSA%20provisions%20%20final%20bipartisan%20text%20with%20signature%20blocks.pdf
14
https://bioethics.jhu.edu/wp-content/uploads/2019/10/Johns-Hopkins-faculty-letter-onCOVID-19-jails-and-prisons.pdf.
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many reasons that crowded detention facilities would pose serious health risks for inmates and
staff alike. 15
1.10
Despite the calls to de-densify prisons by releasing the most vulnerable, the Bureau
has not released large numbers of at-risk inmates. The Federal Correctional Institution at Sheridan,
Oregon, for example, housed 1,787 inmates in its three facilities as of April 14, 2020.16 Two and
a half months later, the population had dropped by fewer than 170 inmates, to 1,619.17
1.11
Although the CDC warned that moving inmates among facilities could spread the
coronavirus, the Bureau slowed but never halted inmate transportation.18 On May 23, 2020, despite
the exponential spread of the virus within federal prisons, the Bureau announced it would resume
greater transportation of inmates.19 The Bureau decided to transport newly-sentenced inmates to
one of three “quarantine sites” – FCC Yazoo City, Missouri; FCC Victorville, California; and FTC
Oklahoma City, Oklahoma. The proposed plan is to test inmates for coronavirus before they are
moved to their designated Bureau facility.
15
See also Declaration of Dr. Homer Venters, filed in Fraihat v. ICE, No. 19-cv-01546JGB (C.D. Cal, Mar. 24, 2020), attached as Exhibit 2 (describing requirements for safety of
detainees in federal immigration custody).
16
Of those, 1,264 inmates and detainees were at the FCI or the detention center, and 523
were at the camp. Bureau of Prisons website, https://www.bop.gov/locations/institutions/she/
(accessed April 14, 2020).
17
The camp population decreased to 456 inmates, while 1,163 inmates were in custody at
the FCI & FDC. https://www.bop.gov/locations/institutions/she/ (accessed June 29, 2020)
18
Bureau of Prisons website, https://www.bop.gov/coronavirus/covid19_status.jsp (last
accessed June 19, 2020).
19
Bureau of Prisons website,
https://www.bop.gov/resources/news/pdfs/20200527_press_release_inmate_movement.pdf (last
accessed June 19, 2020).
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Safe transportation of inmates would require a level of preparation, training, and
staffing that the Bureau has not demonstrated in its response to COVID-19. As one medical expert
opined when assessing safe transportation of immigration detainees, “transferring large numbers
of detained people between facilities to cohort symptomatic and asymptomatic people will increase
the spread of COVID-19 infection throughout geographic areas.”20
II.
Conditions for Sheridan Detainees
2.1
On March 31, 2020, the Bureau announced a 14-day lockdown of all inmates within
federal prisons.21 A press release explained that “for a 14-day period, inmates in every institution
will be secured in their assigned cells/quarters to decrease the spread of the virus.” The Bureau
pledged to review the decision to confine inmates in cells after 14 days to determine if modified
operations could be resumed.22 On April 14, 2020, the Bureau extended the lockdown order, and
it has never been lifted.23
2.2
Inmates at the Sheridan FDC report that, since the lockdown started, they have been
held in cells for 23 hours per day, and sometimes for up to 72 hours straight, without release. As
Petitioner John Stirling described on April 20, 2020 (ECF 1):
20
Ex. 2, Declaration of Dr. Homer Venters, ¶ 18, filed in Fraihat v. ICE, No. 19-cv01546-JGB (C.D. Cal, Mar. 24, 2020).
21
Bureau of Prisons website,
https://www.bop.gov/resources/news/pdfs/20200331_press_release_action_plan_5.pdf (last
accessed June 19, 2020).
22
Id.
23
Bureau of Prisons website,
https://www.bop.gov/resources/news/pdfs/20200414_press_release_action_plan_6.pdf
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We have illegally been under lockdown for 19 days. Cut off from phones, showers,
email and quality food. 4 hours out in 14 days only.
No Phones. The BOP increased phone time from 300 to 500 minutes /month. But
we are locked down and can not use it.
2.3
Other inmates at FDC Sheridan report that, for months, they have been given only
one hour out of their cell, twice a day.24 On weekends they are locked in from Friday until Monday.
they have difficulty reaching family members by phone or email because, in the limited time they
have out of their cell, the lines for the phones and computers are long.25
On May 25, an inmate reported that “management is allowing for approximately
2.4
70+ inmates to be released from their cells for 2 ½ hours per day. There are no social distancing
measures being enforced and most all inmates are in very close proximity to each other during that
2 ½ hours. The facility has issued face masks but the staff are not enforcing the wearing of them
and almost all inmates on the cell-block where I am housed do not wear them.”26
During the lockdown, conditions have become less sanitary than before.27 Inmates
2.5
report they are out of toilet paper. Trash is not collected from cells while inmates are locked down.
Inmates are permitted a shower only every three days. Laundry has been reduced to once per week.
Inmates receive no or insufficient cleaning supplies. As petitioner Stirling described, “Cleaning
and masks is a joke. We have no bleach.” (ECF 1, p. 9).
24
Ex. 1, Declaration of Investigator Courtney Withycombe.
25
Id.
26
Id.
27
Id.
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During the lockdown, the quality of food has deteriorated. Inmates report receiving
“baloney sandwiches” day after day.28
2.7
Two weeks after the lockdown went into effect, one inmate at the Sheridan FDC
committed suicide.29 Inmates report that two other detainees engaged in acts of self-harm while
locked in their cells, one reportedly slashing his neck.30 Other inmates report they are stressed and
feel poor physically due to cramped conditions, lack of fresh air, lack of exercise, and poor food.
Some inmates reportedly contemplated or started hunger strikes.31
2.8
The Bureau does not acknowledge any COVID-19 cases at Sheridan, in any of the
three facilities. According to the BOP website, 150 inmates at Sheridan have been tested so far for
COVID-19, and none were positive. Twelve tests are pending.32
2.9
Inmates report being frightened of contracting the virus at Sheridan. As one inmate
with underlying health issues wrote:
I currently live in daily fear that if COVID-19 were to reach my unit at FCI
Sheridan, it would be a certain death sentence for me. ….
These people here refuse to help me. I’ve been very sick for the last 4 months and
still have not helped me. I sent many paper requests concerning my lungs and only
28
Ex. 1, Declaration of Investigator Courtney Withycombe.
29
https://www.oregonlive.com/coronavirus/2020/04/ors-federal-public-defenderlockdown-at-federal-prison-to-avoid-spread-of-coronavirus-is-becoming-overwhelming-forsome-inmates.html
30
Ex. 1, Declaration of Investigator Courtney Withycombe. For photos of lockdown food
in a Texas prison, see The Marshall Project, Ewww, What Is That, (May 11, 2020)
https://www.themarshallproject.org/2020/05/11/ewwwww-what-is-that
31
Id.
32
Bureau of Prisons website, https://www.bop.gov/coronavirus/ (last accessed June 29,
2020).
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one response, that said I would be seen soon. That was over a month ago and still
have not been seen. I’ve sent 7 electronic requests begging for help, and not one
response! I’ve made them aware that I’m having trouble breathing, and that I’ve
passed out because I can’t breath[e] and still they won’t help me.
2.10
Another inmate described seeing inmates with symptoms being taken away, and
having the guards imply the cause was COVID-19:
This morning an inmate who lives 10 feet from me in the next cube in the same
over-crowded wing was taken out to the hospital for shortness of breath and
coughing and we were told simply "don't touch his stuff if you want to live" by one
of the correctional officers. A number of other inmates are getting cold symptoms
the last couple of days. Everybody is afraid to report their symptoms because they
do not want to be put into isolation with no access to contact their families at all,
when they think they only have a cold. This is scary. I know that if I am exposed, I
will very likely not survive or will have permanent damage. The quarantine area
here is a joke does not provide protection at all, as the same staff walk through the
quarantine area just as regularly as they walk through the non-quarantine areas.
2.11
Inmates receive misinformation, and clear statements by the Bureau are retracted
or reversed with no explanation. One inmate was incorrectly told that, because he would be
released to home confinement, he should not file a motion for compassionate release because the
two could interfere with each other.33 He asked his attorney to withdraw his compassionate release
motion as a result.
2.12
Other inmates at Sheridan were told they were getting released, and they were sent
into quarantine, only to learn later that they would not get released. Some had already alerted their
families they were coming home. As one spouse writes:
I want you to know what is happening there. I am truly bothered by my husband’s
stories of how those who are already in quarantine at the Sheridan Camp are being
sent back to the general population after spending almost a month or so inside.
33
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Another wife has shared with me that her husband was already in quarantine for
twelve days, but was sent back for no apparent reason. Yesterday, May 26, he
shared that two other men were kicked out of quarantine. Most of them were sent
out because they found out they had no underlying conditions, one was sent back
because the Probation Officer could no longer entertain another inmate. Another
man was in quarantine for 30 days, but was sent back because they neglected to file
his papers. I am not too sure what are the other reasons for these men being sent
back to general population. It demoralizes the inmates who are all hoping to finally
be reunited with their families.
Many of them including my husband was called to sign documents for release. I
also sent the documents of the designated visitor who will be picking him up, I
waited for his Probation Officer to come and inspect our home, and my husband
was able to finish all his Release Preparation Program (RPP) classes. But until this
day, they have not been called to provide a release date or any update of some sort.
My husband had the courage to approach his Case Manager to ask for an update,
but he was told that he was not even on the list in the first place; it did not make
sense. This discouraged him to keep moving forward. I, on the other hand, will
continue fighting for my husband and for those who are significantly affected by
how things are run in the camp.34
2.13
The harmful effect of misinformation has been noted at other BOP facilities as well.
Nationally, inmates in minimum security facilities were reported to be “at the breaking point” from
the lockdown, the lack of communication, and the fear and uncertainty from changing BOP
policies.35
2.14
Communication with attorneys is also limited. Attorneys report that legal mail,
which ordinarily should be opened in the inmate’s presence, now is simply opened by prison
guards on their own and delivered to the locked-in client.36 Clients have severely limited time to
34
Ex. 1, Declaration of Investigator Courtney Withycombe.
Walter Pavlo, Minimum Security Inmates Locked In Cells For Quarantine Are At
Breaking Point, Forbes (May 6, 2020)
https://www.forbes.com/sites/walterpavlo/2020/05/06/minimum-security-inmates-locked-incells-for-quarantine-are-at-breaking-point/#247911441a66
35
36
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use the attorney phone to make calls. As a result, accurate and current information on the
conditions at Sheridan is difficult to obtain.
2.15
Inmates are worried that newly arriving inmates will bring the virus to them. As
Mr. Stirling wrote: “The prison keep putting 10 people that are from outside this prison in my unit
under what the captain says is ‘quarantine.’ Sheridan prison staff are endangering my life with
new entries.” (ECF 1, p. 2). He asked that they “keep new arrivals out. … They bring 16 new
prisoners from another prison in here.” (ECF 1, p. 8). He reported 10 new people arrived on April
16, 2020, and six more were expected. The new prisoners were “being quarantined” right in their
unit. (ECF 1, p. 6-8).
III.
Parties
3.1
Petitioner John Stirling is a 66-year old man who is detained at the Sheridan
FDC. After being sentenced on May 21, 2020, to 40 months of custody, he has not yet been
designated to another facility for service of his sentence. He fears that, as a newly-sentenced
inmate, he will be transported out of Oregon to a quarantine facility, and may be exposed during
the travel to inmates infected by the coronavirus. Mr. Stirling suffers from advanced diabetes and
requires two injections of medication daily. An x-ray notes lung scarring, and medical reports
include a tuberculosis diagnosis. He falls within the category of individuals considered at high
risk for serious complications if infected with the coronavirus.
3.2
Josias Salazar is the Warden of FCI Sheridan and is named in his official capacity
as a custodian of Mr. Stirling.
IV.
Jurisdiction and Venue
4.1
The Court has subject-matter jurisdiction over this Petition pursuant to 28 U.S.C.
§ 1331 (federal question), 5 U.S.C. §§ 702 & 706 of the Administrative Procedure Act, 28 U.S.C.
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§ 2241 (habeas corpus) and Article I, § 9, cl. 2 of the United States Constitution (Suspension
Clause). In addition, the Court has jurisdiction to grant declaratory relief pursuant to the
Declaratory Judgment Act, 28 U.S.C. § 2201.
4.2
Venue is proper in the District of Oregon pursuant to 28 U.S.C. § 1391(b)(2)
because a substantial part of the events and omissions giving rise to these claims occurred and
continues to occur in this district. This Court has personal jurisdiction over Warden Salazar
because at all times relevant to this action, he has been employed at FCI Sheridan in Sheridan,
Oregon, and all the actions and omissions at issue occurred at Sheridan.
V.
Statement of Law
A.
In Light Of The Bureau’s Decision To Use Severe Lockdown As The
Alternative To De-Densifying Its Facilities, No Conditions Of Confinement At
FCI Sheridan Would Meet Eighth Amendment And Due Process
Requirements And Mr. Stirling’s Writ of Habeas Corpus Should Be Granted.
Under 28 U.S.C. § 2241, a person in custody in violation of the laws and Constitution of
the United States is entitled to summary relief and disposition as “law and justice require” under
28 U.S.C. § 2243. The Government violates the Eighth Amendment if it confines a criminal
detainee in unsafe conditions. Helling v. McKinney, 509 U.S. 25, 32 (1993). Punishment without
full compliance with the Fifth and Sixth Amendments violates the right to due process of law. See,
e.g., Crawford v. Washington, 541 U.S. 36, 68 (2004); Apprendi v. New Jersey, 530 U.S. 466, 47677 (2000); Gideon v. Wainwright, 372 U.S. 335, 344- 45 (1963).
Mr. Stirling is unlawfully detained and should be granted summary habeas corpus relief
because his detention violates the laws and Constitution of the United States. See Boumediene
v. Bush, 549 U.S. 1328, 1330 (2007) (“the ‘province’ of the Great Writ, ‘shaped to guarantee
the most fundamental of all rights, is to provide an effective and speedy instrument by which
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judicial inquiry may be had into the legality of the detention of a person.’” (emphasis in
Boumediene) (quoting Carafas v. LaVallee, 391 U.S. 234, 238 (1968)). Because Mr. Stirling
challenges the fact of his confinement under the circumstances of the COVID pandemic and seeks
release, habeas relief is proper. See, e.g., Wilson v. Williams, No. 20-3447, 2020 WL 3056217, at
*5 (6th Cir. June 9, 2020) (petition under 2241 is proper vehicle for inmates challenging fact of
confinement in light of COVID-19); Martinez-Brooks v. Easter, No. 3:20-CV-00569, 2020 WL
2405350, at *16 (D. Conn. May 12, 2020) (“Because Petitioners contend that the Eighth
Amendment violation inheres in their incarceration at Danbury FCI and cannot be remedied unless
they are removed from that setting, Petitioners are challenging the fact—or “existence”—of their
confinement” and 2241 provides the proper vehicle for relief). A “hybrid” habeas petition may
challenge both the conditions and execution of a sentence. Muhammad v. Close, 540 U.S. 749, 751
(2004) (noting “[s]ome cases are hybrids.”)
1.
The Bureau’s Failure to Take Needed Steps to De-Densify The Prison and
To Mitigate Transmission of COVID-19 Constitutes Deliberate Indifference
to Mr. Stirling’s Serious Medical Needs In Violation Of Due Process And
The Eighth Amendment.
The respondents are violating Mr. Stirling’s Due Process and Eighth Amendment rights by
continuing to incarcerate him in conditions that place him at substantial risk of serious harm from
transmission of an infectious and deadly disease, especially considering his vulnerable medical
condition. The Due Process Clause of the Fifth Amendment forbids the government from
depriving a person of life, liberty, or property without due process of law. U.S. Const. amend. V.
The protection applies to “all ‘persons’ within the United States, including aliens, whether their
presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678,
693 (2001). Constitutional protections for individuals confined by the state, whether civilly or
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criminally, include the right to reasonable safety and medical care. See Estelle v. Gamble, 429 U.S.
97, 103 (1976); see also Youngberg v. Romeo, 457 U.S. 307, 315 (1982) (“[T]he right to personal
security constitutes a ‘historic liberty interest’ protected substantively by the Due Process Clause.”
(citation omitted)).
“The rationale for this principle is simple enough: when the State by the affirmative
exercise of its power so restrains an individual's liberty that it renders him unable to care for
himself, and at the same time fails to provide for his basic human needs—e.g., food, clothing,
shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action
set by the Eighth Amendment and the Due Process Clause.” DeShaney v. Winnebago Cty. Dep't
of Soc. Servs., 489 U.S. 189, 200 (1989). The State’s duty to protect arises “from the limitation
which it has imposed on [the detainee’s] freedom to act on his own behalf.” Id.; see also Estelle,
429 U.S. at 103 (“An inmate must rely on prison 28 authorities to treat his medical needs; if the
authorities fail to do so, those needs will not be met.”).
Although sentenced as punishment to the custody of the BOP, Mr. Stirling retains his
Eighth Amendment right to be free from cruel and unusual punishment. See Wilhelm v. Rotman,
680 F.3d 1113, 1122 (9th Cir. 2012). Given the decision of the Bureau to lock down every inmate
rather than de-densify, and because that strategy nevertheless risks exposing Mr. Stirling to
infection from the coronavirus, no conditions of confinement at Sheridan can meet constitutional
requirements.
Under the Eighth Amendment, the Government must provide criminal detainees with basic
human needs, including reasonable safety. Helling v. McKinney, 509 U.S. 25, 32 (1993). The
Government violates the Eighth Amendment if it confines a criminal detainee in unsafe conditions.
See Helling, 509 U.S. at 33.
PAGE 17.
Moreover, the Government may not “ignore a condition of
AMENDED COMPLAINT
Appendix D
Page 18 of 25
Case 3:20-cv-00712-SB
Document 16
Filed 06/30/20
Page 19 of 25
confinement that is sure or very likely to cause serious illness.” See Helling, 509 U.S. at 32. “That
the Eighth Amendment protects against future harm to inmates is not a novel proposition.” Helling,
509 U.S. at 33. The Supreme Court stated clearly: “[T]he Eighth Amendment protects [prisoners]
against sufficiently imminent dangers as well as current unnecessary and wanton infliction of pain
and suffering[.]” Helling, 509 U.S. at 33. Indeed, the Court concluded that, where prisoners in
punitive isolation were crowded into cells and some of them had infectious maladies, “the Eighth
Amendment required a remedy, even though it was not alleged that the likely harm would occur
immediately and even though the possible infection might not affect all of those exposed.” Helling,
509 U.S. at 33.
The Ninth Circuit employs a two-part test in assessing whether prison officials have
violated the Eighth Amendment by way of deliberate indifference to the medical needs of inmates:
(1) the plaintiff must show “a serious medical need by demonstrating that failure to treat a
prisoner’s condition could result in further significant injury or the unnecessary and wanton
infliction of pain”; and (2) the defendants’ “response to the need” must have been “deliberately
indifferent.” Wilhelm, 680 F.3d at 1122 (quoting Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.
2006)). Government officials act with deliberate indifference when they “ignore a condition of
confinement that is sure or very likely to cause serious illness and needless suffering the next week
or month or year,” even when “the complaining inmate shows no serious current symptoms.”
Helling, 509 U.S. at 33.
As Helling established, this Court need not “await a tragic event” at Sheridan to find that
the respondents are maintaining unconstitutional conditions of confinement. Id. at 32-33. The
tragic events are already unfolding in prisons around the country, as inmates are sickened and die
PAGE 18.
AMENDED COMPLAINT
Appendix D
Page 19 of 25
Case 3:20-cv-00712-SB
Document 16
Filed 06/30/20
Page 20 of 25
in federal care. Mr. Stirling has a constitutional right to be free from conditions of confinement
that “pose an unreasonable risk of serious damage to [his] future health.” Id. at 35.
The threat of exposure to a deadly infectious disease such as COVID-19 and subsequent
mistreatment due to lack of medical resources constitutes a serious risk to health, particularly for
someone with unique vulnerability to COVID-19. See Helling, 509 U.S. at 34 (noting with
approval Eighth Amendment claims based on exposure to serious contagious diseases); Unknown
Parties v. Johnson, No. cv-15-00250, 2016 WL 8188563, at *15 (D. Ariz. Nov. 18, 2016), aff’d
sub nom, Doe v. Kelly, 878 F.3d 710 (finding evidence of medical risks associated with . . .being
exposed to communicable diseases” adequate to establish irreparable harm under the Eighth
Amendment); Castillo v. Barr, ___ F.Supp. 3d ___, 2020 WL 1502864, at *5 (C.D. Cal. Mar. 27,
2020) (in civil detainment context, ruling that officials could not “be deliberately indifferent to the
potential exposure of civil detainees to a serious, communicable disease on the ground that the
complaining detainee shows no serious current symptoms, or ignore a condition of confinement
that is more than very likely to cause a serious illness”).
Mr. Stirling is entitled to protections from conditions of confinement that create a serious
risk to health or safety, including through release from custody when necessary. Brown v. Plata,
563 U.S. 493, 531–32 (2011) (upholding lower court’s order releasing people from state prison
even though release was based on prospect of future harm caused by prison overcrowding); see
also Farmer v. Brennan, 511 U.S. 825, 834 (1994) (correctional official violates Eighth
Amendment by consciously failing to prevent “a substantial risk of serious harm”).
Mr. Stirling has demonstrated a “serious medical need” that is unmet by the BOP and that
could result in significant injury. His age and his underlying condition of advanced diabetes
indisputably place him within the category of high-risk individuals identified by the CDC as likely
PAGE 19.
AMENDED COMPLAINT
Appendix D
Page 20 of 25
Case 3:20-cv-00712-SB
Document 16
Filed 06/30/20
Page 21 of 25
to experience greater harm if infected by the coronavirus. By locking him in a unit with inmates
who have not been tested for the coronavirus and by maintaining a high population of inmates
that ensures crowding around phones, in showers, and in common areas, when released from cells,
the BOP places him at risk for exposure to a life-threatening disease. The deliberate indifference
of BOP personnel is also evident in that they have resumed transportation of newly-sentenced
inmates, regardless of health risk; they have failed to utilize authority to de-densify the Sheridan
facility in order to allow distance between inmates; and they have failed to conduct adequate
testing or to provide adequate cleaning materials to allow inmates to take precautions to remain
safe. The writ should be granted. To the extent further evidence is needed, Mr. Stirling requests an
evidentiary hearing.
2.
The Bureau’s Continuing Extension Of The 14-Day Lockdown To Now Over
80 Days Violates Due Process And The Eighth Amendment.
“The Constitution ‘does not mandate comfortable prisons,’ but neither does it permit
inhumane ones, and ... ‘the treatment a prisoner receives in prison and the conditions under which
he is confined are subject to scrutiny under the Eighth Amendment.’ ” Farmer v. Brennan, 511
U.S. 825, 832 (1994) (internal citations omitted). “A prison official’s ‘deliberate indifference’ to
a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Id. at 828.
Confining prisoners to small cells for long stretches of time; triple-bunking some inmates
within those cells; providing inadequate nutrition as a result of sack food delivery; obstructing
contact with family and the outside world; eliminating the ability to exercise; and creating
unsanitary conditions in the time of a pandemic through limited showers and laundry, results in
inhumane conditions. “When people are locked into cells alone, for most of the day, they quickly
PAGE 20.
AMENDED COMPLAINT
Appendix D
Page 21 of 25
Case 3:20-cv-00712-SB
Document 16
Filed 06/30/20
Page 22 of 25
experience psychological distress that manifests in self-harm and suicidality.” 37 Moreover, these
efforts to lock detained people into cells may worsen, not improve, Sheridan’s infection control
efforts, because the rapid response required for mental and physical health emergencies may bring
contamination into units from influx of emergency staff.
Mr. Stirling asserts he has experienced physical and mental harm as a result of the
continuing lockdown. The uncertainty of the length of the lockdown itself causes mental distress.
Moreover, placing the full prison on lockdown subjects him to potential harm because, during the
hour that inmates are released, they are more volatile in their competition for scarce phone and
shower and resources. Because a continuing lockdown appears to be the Bureau’s chosen response
the pandemic, which shows no signs of abating, Mr. Stirling asserts the indefinite lockdown
violates his rights to Due Process and under the Eighth Amendment. Release should be granted.
3.
Request For Injunctive Relief
Individuals may sue to enjoin constitutional violations, either directly under the
Constitution or under the Administrative Procedure Act. See Sierra Club v. Trump, 929 F.3d 670,
694 (9th Cir. 2019) (“Plaintiffs may bring their challenge through an equitable action to enjoin
unconstitutional official conduct, or under the judicial review provisions of the Administrative
Procedure Act (APA), 5 U.S.C. § 701 et seq., as a challenge to a final agency decision that is
alleged to violate the Constitution, or both.”); Farmer v. Brennan, 511 U.S. 825, 846 (1994) (“If
the court finds the Eighth Amendment’s subjective and objective requirements satisfied” with
regard to a federal prisoner, “it may grant appropriate injunctive relief.”).
37
PAGE 21.
Ex. 2, Declaration of Dr. Homer Venters, ¶ 10.
AMENDED COMPLAINT
Appendix D
Page 22 of 25
Case 3:20-cv-00712-SB
Document 16
Filed 06/30/20
Page 23 of 25
Mr. Stirling requests a temporary restraining order and a permanent injunction to (1)
prohibit the BOP from bringing new inmates into the FDC Sheridan until the warden has
demonstrated adequate testing and safety protocols to ensure the coronavirus is not introduced
through the arrivals; and (2) to prohibit his transportation out of the FDC Sheridan until the Warden
can demonstrate the transportation, any place of quarantine, and the designated facility will be safe
and not subject him to infection from the coronavirus.
Mr. Stirling is entitled to a temporary restraining order if he can show: (1) a likelihood of
success on the merits; (2) that he is likely to suffer irreparable harm in the absence of relief; (3)
the balance of equities tip in his favor; and (4) an injunction is in the public's interest. See Winter
v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Under the Ninth Circuit's sliding scale
approach, a stronger showing of one element may offset a weaker showing of another. See
Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012). Accordingly, Mr. Stirling is entitled to
a temporary restraining order if “serious questions going to the merits [are] raised and the balance
of hardships tips sharply in [his] favor.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,
1132 (9th Cir. 2011).
Mr. Stirling has established that there is more than a mere likelihood of success on the
merits. See Winter, 555 U.S. at 20. He has established that he is likely to suffer irreparable harm
in the absence of relief because the deprivation of constitutional rights unquestionably constitutes
irreparable injury. See Hernandez v. Sessions, 872 F.3d 976, 994 (9th Cir. 2017). The balance of
the equities tip sharply in his favor. He faces irreparable harm to constitutional rights and health.
Indeed, there is no harm to the Government when a court prevents the Government from engaging
in unlawful practices. See Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013).
PAGE 22.
AMENDED COMPLAINT
Appendix D
Page 23 of 25
Case 3:20-cv-00712-SB
Document 16
Filed 06/30/20
Page 24 of 25
Finally, the injunctive relief sought here is in the public's best interest. The public has a
critical interest in preventing the further spread of the coronavirus. An outbreak at FCI Sheridan
would require use of hospital resources in the community and create stress for the medical
infrastructure.
4.
Request For Interim Relief
To the extent the writ cannot be immediately granted, Mr. Stirling seeks an order of
enlargement, under which his sentence could be served in the community until the conditions at
Sheridan can be rendered safe. See LaDuke v. Nelson, 762 F.2d 1318, 1330-31 (9th Cir. 1985),
modified, 796 F.2d 309 (9th Cir. 1986); Martinez-Brooks v. Easter, No. 3:20-CV-00569, 2020
WL 2405350, at *16 (D. Conn. May 12, 2020) (granting order of enlargement for certain inmates
at FCI Danbury in light of pandemic).38
Further, as an interim measure, Mr. Stirling further seeks court-mandated fact-finding,
under Court supervision, of the actual conditions at FCI Sheridan. Because access to information
is restricted, Mr. Stirling experiences stress from his belief that inmates and staff are, in fact,
infected by the coronavirus and that insufficient measures have been taken to protect the health
and safety of inmates. Just as other courts have ordered inspections of federal facilities and frequent
status reports, Mr. Stirling seeks court-ordered data collection here.
See, e.g., In re
Coronavirus/COVID-19 Pandemic, Administrative Order No. 2020-14 (EDNY Apr. 2, 2020) (Ex.
4) (requiring bi-monthly status updates regarding 1) protocols for screening & testing inmates,
staff, and others enter or leaving each facility; 2) the number of inmates tested and the number of
38
The attached declaration of Professor Judith Resnik as Exhibit 3 provides historical and
legal analysis of the court’s enlargement authority.
PAGE 23.
AMENDED COMPLAINT
Appendix D
Page 24 of 25
Case 3:20-cv-00712-SB
Document 16
Filed 06/30/20
Page 25 of 25
positive tests; 3) the number of staff and other correctional workers testing positive; and 4) “[a]ll
efforts undertaken to mitigate the spread of COVID-19”); Gomes v. Department of Homeland
Security, Order, Case No. 20-cv-453, Dkt No. 123 at 56-61 (D.N.H. May 14, 2020) (Ex. 5)
(ordering report concerning detailed issues related to testing and mitigation measures in local jail
holding federal detainees); Urdaneta v. Keeton, Order, Case No. 20-cv-654, Dkt. No. 52 at 22 (Ex.
6) (D. Ariz. May 11, 2020) (soliciting proposed measures from parties to ensure adequate health
standards in federal detention facility including placement in single-occupancy cell, meals
delivered to cell; free, unlimited PPE, hygiene supplies, and disinfectant; requiring all staff to wear
PPE; and requiring testing).
CONCLUSION
For the foregoing reasons, the Court should grant the writ of habeas corpus and order
release, and if further proceedings are needed, order injunctive and interim relief.
Respectfully submitted this 29th day of June, 2020.
/s/ Lisa Hay
Lisa Hay
Federal Public Defender
PAGE 24.
AMENDED COMPLAINT
Appendix D
Page 25 of 25
Case 3:22-cv-00966-SB
Document 15-1
Filed 09/08/22
Page 1 of 106
Lisa Hay, OSB #980628
Federal Public Defender
101 S.W. Main Street, Suite 1700
Portland, Oregon 97204
Tel: (503) 326-2123
Fax: (503) 326-5524
lisa_hay@fd.org
Attorneys for Petitioners
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JOHN PHILIP STIRLING; STEVEN
WAYNE LANDER,
Petitioners,
v.
Case No. 3:20-cv-00712-SB
3:20-cv-01379-SB
PETITIONERS’ PROPOSED
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
DEWAYNE HENDRIX, Warden,
FCI Sheridan,
Respondent.
Exhibit A to Petitioner's Response to ECF 128
Page 1 of 106
Appendix E
Page 1 of 106
Case 3:22-cv-00966-SB
Document 15-1
Filed 09/08/22
Page 2 of 106
TABLE OF CONTENTS
Page
Introduction ..................................................................................................................................... 1
Procedural Background ................................................................................................................... 2
Proposed Findings of Fact .............................................................................................................. 4
I.
The Pandemic Created Emergency Conditions That Materially Affected The
Functioning Of The Federal Prisons And Resulted In Significant Restrictions On
Incarcerated People. ............................................................................................................ 4
II.
FCI Sheridan Has Been Affected By Waves Of Coronavirus Infections That Have
Caused Intense Fear And Distress Among Incarcerated People. ........................................ 6
III.
The Warden Confined People In Small Cells For Lengthy, Indeterminate Periods
Without Adequate Access To Essential Services, Resulting In Psychological and
Physical Harms. ................................................................................................................ 10
A.
The Cells at FCI Sheridan Are Small. .................................................................. 10
B.
The Warden Confined People in Small Cells for Lengthy and
Indeterminate Periods. .......................................................................................... 15
FCI Lockdown .......................................................................................... 16
Federal Detention Center Lockdown ........................................................ 19
C.
Lockdowns Took a Psychological Toll on Petitioners. ........................................ 22
D.
The Warden’s Use Of Lengthy Quarantine Cohorts Caused Harm To The
Confined Residents. .............................................................................................. 26
IV.
The Warden Housed People Ill With Covid In A Crowded Gymnasium That Was
Not Equipped To Meet The Essential Needs of People Detained There. ......................... 30
V.
The Warden Tolerated Widespread and Ongoing Deprivations of Basic
Necessities of Life For Incarcerated People. .................................................................... 35
A.
Deficiencies in The Provision of Mental Health Services .................................... 35
B.
Delays and Denial of Critical Medical Services ................................................... 44
C.
Delays and Denial of Dental and Optometry Care ............................................... 53
i
Exhibit A to Petitioner's Response to ECF 128
Page 2 of 106
Appendix E
Page 2 of 106
Case 3:22-cv-00966-SB
Document 15-1
Filed 09/08/22
Page 3 of 106
D.
Grossly Inadequate Hygiene and Sanitation ......................................................... 56
E.
Inadequate Access to Running Water and Drinking Water .................................. 58
F.
Restriction on Religious Activities ....................................................................... 61
G.
Lack of Exercise and Recreation .......................................................................... 63
FCI Recreation .......................................................................................... 63
FDC Recreation ........................................................................................ 65
Lack of Recreation and Time Outside Exacerbated the Effects of
Lockdown. ................................................................................................ 68
VI.
VII.
H.
Minimal Communication with Family.................................................................. 70
I.
Substandard Food and Inadequate Nutrition......................................................... 76
J.
Mistreatment by Prison Officials .......................................................................... 77
Deaths at Sheridan During the Pandemic ......................................................................... 77
A.
Brain Cluff ............................................................................................................ 78
B.
Kyle Batt ............................................................................................................... 78
C.
James Toms........................................................................................................... 79
D.
Chad Noziska ........................................................................................................ 79
E.
Ikaika Chung ......................................................................................................... 80
F.
Dylan Jardin .......................................................................................................... 82
The Warden Has Failed To Maintain Procedures Essential To The Protection Of
Constitutional Rights. ....................................................................................................... 83
A.
The Administrative Remedy Program Has Not Worked As Required. ................ 83
B.
Mail Service Has Been Unreliable and Disrupted, Interfering With The
Right To Counsel. ................................................................................................. 86
C.
Library Access Has Been Limited. ....................................................................... 87
Proposed Conclusions of Law ...................................................................................................... 88
ii
Exhibit A to Petitioner's Response to ECF 128
Page 3 of 106
Appendix E
Page 3 of 106
Case 3:22-cv-00966-SB
Document 15-1
Filed 09/08/22
Page 4 of 106
I.
The Warden’s Deliberate Indifference to Confinement With Extreme Deprivation
That Risks Serious Harm Violates the Eighth Amendment.............................................. 88
II.
The Warden Is Violating the Due Process Rights Of Pretrial Detainees To
Reasonably Safe Detention Without Punishment. ............................................................ 91
III.
The Remedy For Constitutonal Violations May Include Release From Custody,
Reduction Of Sentences, Transfer To Less Restrictive Custody, Or Declaratory
Judgment. .......................................................................................................................... 93
A.
Release .................................................................................................................. 93
B.
Reduction in Sentence........................................................................................... 95
C.
Transfer to Less Restrictive Confinement ............................................................ 98
D.
Declaratory Judgment ........................................................................................... 99
Conclusion .................................................................................................................................. 100
iii
Exhibit A to Petitioner's Response to ECF 128
Page 4 of 106
Appendix E
Page 4 of 106
Case 3:22-cv-00966-SB
Document 15-1
Filed 09/08/22
Page 5 of 106
Introduction
In response to the pandemic, the BOP has chosen a strategy of extensive confinement and
reduction of services that places the weight of the pandemic response on prisoners to such an extent
that overall conditions at FCI Sheridan have violated both the Eighth Amendment’s prohibition
against cruel and unusual punishment and the Fifth Amendment’s guarantees of due process. The
BOP’s pandemic response has included inhumane periods of confinement in small cells and
unresolved staffing shortages leading to grossly inadequate medical, dental, and mental health care
and severe limits on 1) time outside; 2) the provision of adequate food; 3) contact with families;
and 4) programs for rehabilitation. The effect on mental and physical health of incarcerated people
has been devastating. Repeated waves of coronavirus infections, and the long-term effects of
isolation, indeterminate confinement, and deprivation, have pushed residents at FCI Sheridan to
the breaking point. Their pleas for help, reaching even the point of a hunger strike, have been met
largely with indifference and at times violent retaliation. One person committed suicide; at least
five others have died from medical ailments. Based on the proposed findings of fact below, this
Court should conclude that the Warden has violated the Eighth Amendment rights of convicted
detainees and the Due Process rights of pretrial detainees at FCI Sheridan, and that the evidence
demonstrates that, in light of the pattern of constitutional violation over the last two years, no
conditions of confinement at Sheridan can comply with the Constitution.
Petitioners seek relief from the constitutional violations in the form of (1) release from
custody; (2) transfer to less restrictive confinement in the community; (3) reduction in the term of
imprisonment to take into consideration the harsher conditions of confinement that have prevailed
since April of 2020; and (4) declaratory judgment regarding the harsh conditions endured.
Page 1.
PETITIONERS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Exhibit A to Petitioner's Response to ECF 128
Page 5 of 106
Appendix E
Page 5 of 106
Case 3:22-cv-00966-SB
Document 15-1
Filed 09/08/22
Page 6 of 106
Procedural Background
On April 20, 2020, petitioner John Stirling filed a petition under 28 U.S.C. § 2241 for
habeas relief from unconstitutional confinement at FCI Sheridan.1 He alleged that the Warden
was endangering his life and those of others by needlessly exposing them to the coronavirus; that
he and others had been locked in their cells for 14 days straight with only 4 hours out; that they
could not reach their family and friends during the few hours of release; and that they were cut off
from phone, email, showers, and adequate food.2 He said his administrative remedy requests were
“not answered at all.” He requested release because death, “either mentally or by the corona-19”
was “inevitable” otherwise.
Mr. Stirling referred to his petition as “a class action of sorts,” and a number of incarcerated
people began filing the same petition, often with their personal experiences added. 3 The Court
appointed the Federal Public Defender to represent Mr. Stirling, and later each of the other
petitioners.4 At the time he filed his petition, Mr. Stirling was a pretrial detainee housed at the
Federal Detention Center (FDC).5 Shortly after filing, he was sentenced to the custody of the
Bureau of Prisons and moved from detainee status to prisoner.
1
ECF 1. Throughout these pleadings, “FCI Sheridan” refers to the entire BOP compound
in Sheridan, Oregon, which the Warden oversees. The federal detention center is referred to as
“the FDC,” the medium security correctional institution is referred to as “the FCI,” and the federal
camp is “the Camp.”
2
ECF 1 at 2-8.
3
ECF 2 (Stirling affidavit); Pet. Ex. 8 (compilation of statements in 188 filed habeas
petitions, from July 2020 through July 2022).
2020).
Page 2.
4
ECF 4.
5
See U.S. v. Stirling, 3:19-cr-00150-MO-1 (D. OR), ECF 111 (sentencing held May 21,
PETITIONERS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Exhibit A to Petitioner's Response to ECF 128
Page 6 of 106
Appendix E
Page 6 of 106
Case 3:22-cv-00966-SB
Document 15-1
Filed 09/08/22
Page 7 of 106
At a status conference on October 2, 2020, the parties discussed a discovery schedule and
case management for the Stirling case and related cases.6 The Court had previously ordered broad
discovery, including specifics about protocols to prevent and test for the spread of COVID.7 The
parties then filed a joint status report in which they agreed to “serial discovery” to allow for faster
updates, and further agreed to consolidate responses to the cases because the petitions raised
“common legal and factual issues related to the execution of sentences under the conditions at FCI
Sheridan in light of the BOP’s modified prison operations during the COVID-19 pandemic.”8
Although Mr. Stirling had been both a pretrial detainee and an incarcerated person during the time
span of the pending petition, the parties selected another habeas case, Lander v. Cooper, 3:20-cv01379-SB, to represent pretrial detainees in the litigation.9 Although perhaps unnecessary, the joint
proposal was to file pleadings in the Stirling and Lander cases as representative of post-sentencing
petitioners and pretrial detainees.10 This pleading is filed in accordance with that agreement.
6
ECF 45 (minute order).
7
ECF 24 (minute order, Simon, J.); ECF 44, p 53 (Transcript of hearing held July 22,
8
ECF 46 (joint status report)
9
Id.
2020).
10
Page 3.
Id.
PETITIONERS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Exhibit A to Petitioner's Response to ECF 128
Page 7 of 106
Appendix E
Page 7 of 106
Case 3:22-cv-00966-SB
Document 15-1
Filed 09/08/22
Page 8 of 106
Proposed Findings of Fact
I.
The Pandemic Created Emergency Conditions That Materially Affected The
Functioning Of The Federal Prisons And Resulted In Significant Restrictions On
Incarcerated People.
On March 13, 2020, the President of the United States declared a national emergency due
to COVID-19.11 Ten days later, the Centers for Disease Control and Prevention (CDC)
acknowledged that correctional and detention facilities “present[ed] unique challenges for control
of COVID-19 transmission among incarcerated/detained persons, staff, and visitors.”12 The CDC
noted that many detention conditions created a heightened risk of danger to detainees due to
insufficient quarantine space, insufficient on-site medical capability, highly congregational
environments, and limited ability of incarcerated people to exercise effective disease prevention
measures (e.g., social distancing and frequent handwashing).13 As the transmission rate increased
exponentially and the death rate in the country soared, ordinary institutional structures were
strained to the breaking point and the word “apocalyptic” did not seem an overstatement.14 Within
11
Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus
Disease
(COVID-19)
Outbreak,
The
White
House
(Mar.
13,
2020)
(https://trumpwhitehouse.archives.gov/presidential-actions/proclamation-declaring-nationalemergency-concerning-novel-coronavirus-disease-covid-19-outbreak/).
12
Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in
Correctional and Detention Facilities, Centers for Disease Control (Mar. 23, 2020),
(https://www.ncchc.org/wp-content/uploads/CDC Correctional Facility Guidance 032720.pdf).
13
Id.
14
See, e.g., The New York Times, 13 Deaths in a Day: An ‘Apocalyptic’ Coronavirus
Surge at an N.Y.C. Hospital (Published March 25, 2020; updated April 14, 2020), available at
(available at https://www.nytimes.com/2020/03/25/nyregion/nyc-coronavirus-hospitals.html (last
viewed Sept. 3, 2022) (noting “refrigerated truck has been stationed outside to hold the bodies of
the dead”).
Page 4.
PETITIONERS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Exhibit A to Petitioner's Response to ECF 128
Page 8 of 106
Appendix E
Page 8 of 106
Case 3:22-cv-00966-SB
Document 15-1
Filed 09/08/22
Page 9 of 106
three months, there were at least 70,000 people infected in U.S. prisons and jails, and at least 627
inmates and workers had died.15
The Attorney General issued memoranda directing the Bureau of Prisons to decrease prison
populations by transferring medically at-risk prisoners to home confinement, and he acknowledged
that “emergency conditions are materially affecting the functioning of the Bureau of Prisons.”16
He directed the Bureau “to move vulnerable inmates out” of federal prisons. Id. On March 31,
2020, the Federal Bureau of Prisons issued an order securing prison residents in their assigned
cells and limited outside access to the prison for two weeks in order to stop the spread of the
virus.17 The lockdown, referred to as “enhanced modified operations,” was extended through May
18, 2020.18 Individual federal prisons were directed to allow limited group gatherings of prison
residents, “to the extent practical,” for showers, commissary, laundry, telephone, and email
15
The New York Times, Coronavirus in The U.S.: Latest Map and Case Count,
(https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html#clusters (last accessed
Sept. 3, 2022); The Marshall Project, https://www.themarshallproject.org/2020/05/01/a-state-bystate-look-at-coronavirus-in-prisons) (last accessed Sept. 3, 2022).
16
Office of the Attorney General, Prioritization of Home Confinement as Appropriate
in Response
to
COVID-19
Pandemic
(Mar.
26,
2020),
(https://www.justice.gov/file/1262731/download). Office of the Attorney General, Increasing Use
of Home Confinement as Institutions Most Affected by COVID-19 (Apr. 3, 2020),
(https://www.justice.gov/file/1266661/download).
17
Bureau
of
Prisons
website,
(https://www.bop.gov/resources/news/pdfs/20200331_press_release_action_plan_5.pdf)
(last
accessed Sept. 3, 2022).
Bureau of Prisons website, Bureau of Prisons website, (Bureau of Prisons website,
https://www.bop.gov/resources/news/pdfs/20200414 press release action plan 6.pdf)
(last
accessed June 19, 2020).
18
Page 5.
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Exhibit A to Petitioner's Response to ECF 128
Page 9 of 106
Appendix E
Page 9 of 106
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Document 15-1
Filed 09/08/22
Page 10 of 106
access.19 Some form of modified operations has continued throughout the pandemic at FCI
Sheridan.20
II.
FCI Sheridan Has Been Affected By Waves Of Coronavirus Infections That Have
Caused Intense Fear And Distress Among Incarcerated People.
After an initial four-month period when the coronavirus was feared but not detected at
Sheridan, residents and staff began to fall sick.21 People in custody expressed significant fear and
uncertainty about the virus in those first months, believing that both staff and incoming detainees
were likely carrying the deadly virus into the prison:
I have been in a corrective unit with the quarantine inmates. They are not testing
anyone, but a couple chosen few. There is no way to social distance, we all share
the same phones, computers, toilets, showers, etc. Staff pick and choose when they
were their masks and I’m afraid of getting the virus from staff constantly. We have
no ways to work because of quarantine unit is unable to work. I cannot program
school, or any type of rehabilitating programs. Only sit in a unit day in and day out
in constant fear of the facility and pandemic.22
Another person wrote: “I do not want to die here. 4 prisoners and 2 guards now have the
COVID-19 and like other prisons it will spread here rapidly. Please help me.” 23
I started to be in fear for my safety from the COVID-19 virus because of the lack
of proper medical response to the virus and the overall 3rd-world conditions here
at Sheridan. We have to beg the staff for basic human needs such as toilet paper
and hand soap. I feel like the warden here at Sheridan has put my life in danger of
Bureau
of
Prisons
website,
(https://www.bop.gov/resources/news/pdfs/20200331_press_release_action_plan_5.pdf)
(last
accessed June 19, 2020).
19
Page 6.
20
See Petitioner Ex. 9.
21
See ECF 31, p. 2 (the Warden reporting first positive Covid tests in July).
22
See Petitioner Ex. 8 (petition 20-cv-1261 filed 7/30/2020).
23
See Petitioner Ex. 8 (petition 20-cv-1257 filed 7/29/20).
PETITIONERS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Exhibit A to Petitioner's Response to ECF 128
Page 10 of 106
Appendix E
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contracting COVID-19 because of the conditions here at Sheridan federal detention
center.24
Other habeas petitioners echoed these concerns.25
Based on the BOP national website’s reported numbers and those provided by the
government in discovery, FCI Sheridan has experienced six waves of infection:
Although no Covid-related deaths have been reported by the Warden, the BOP website lists two
deaths, and the Warden acknowledges that some residents were hospitalized with Covid
infections.26 People in custody saw others in their unit being removed due to Covid and feared a
higher death toll. As an example, in May of 2020, one person in custody reported:
24
Petitioner Ex. 8 (petition 20-cv-1714 filed 10/2/2020).
25
Petitioner Ex. 8 at 1-42.
26
See https://www.bop.gov/coronavirus/ (BOP website reporting 2 inmate deaths from
Covid at FCI Sheridan) (last accessed Aug. 12, 2022); ECF 68 at 2 (inmate hospitalized).
Page 7.
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Appendix E
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This morning an inmate who lives 10 feet from me in the next cube in the same
overcrowded wing was taken out to the hospital for shortness of breath and
coughing and we were told simply ‘don’t touch his stuff if you want to live’ by one
of the correctional officers. A number of other inmates are getting cold symptoms
the last couple of days. Everybody is afraid to report their symptoms because they
do not want to be put into isolation with no access to contact their families….[t]his
is scary. I know that if I am exposed, I will very likely not survive or will have
permanent damage.27
The lack of information about how to stay safe and the possible lethal effects of the virus
affected people in custody at FCI Sheridan just as in the outside world.28 Incarcerated people
expressed fear, confusion, extreme angst, hunger, desperation for news of loved ones, and physical
and emotional stress during these early months of the lockdown. Petitioner John Stirling wrote in
his pro se habeas petition on April 17, 2020, that the FDC residents had been locked in their cells
for 14 days straight, with only a total of 4 hours out.29 He reported that 40 residents were standing
in line for the 6 available phones when they got out, and there was not sufficient time for most to
call their loved ones. He worried that unmasked prison guards and newly arriving detainees would
infect him with the virus, and that he was at risk of death. He pleaded for cleaning supplies.
27
See Petitioner Ex. 1 at 4.
28
See, e.g., New York Times, Fear of Covid-19 Leads Other Patients To Decline Needed
Treatment (May 25, 2020) (https://www.nytimes.com/2020/05/25/health/coronavirus-cancerheart-treatment.html?searchResultPosition=5), New York Times, Young Adults Report Rising
Levels
Of
Anxiety,
Depression
During
Pandemic
(August
13,
2020)
(https://www.nytimes.com/2020/08/13/health/Covid-mental-healthanxiety.html?searchResultPosition=10).
29
Page 8.
See ECF 1 at 7 (pro se habeas petition).
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The widespread alarm and despair is made vivid in the more than 200 federal habeas
petitions filed over the course of the pandemic.30 For over two years, individuals in custody at the
FCI, the Camp, and the FDC, wrote in to describe their desperation and to plea for help. As
examples, in July, petitioner B.T. wrote:
I am quarantined during these strep throat conditions. It has happened 4x in the last
130 days. I am locked up 24/7 for weeks & weeks. I was designated to Terminal
Island pre-COVID-19 but now I am on endless lockdown. I was getting 1 phone
call every 8 days. I can not talk to my family and it is horrible, depressing and
mentally unbearable. People around me have attempted suicide. 1 man cut his throat
with a razor another 2 their legs and arms. 1 hanged himself and died due to being
locked up all the time.
Pro Se habeas petition in 20-cv-01257 (July 29, 2020).31 In December, G.O. wrote:
I feel I am dying. I have been removed from the lives of my family and friends. I
cannot exercise and have not seen the sun since April 1 2020. They took 1 COVID
test mixed it up and then lost it and then threatened me until I took a second test.
They said I would be lockdown for 28 days with no showers or phone call.
Pro Se habeas petition in 20-cv-02245 (December 23, 2020).32 In August of 2021:
I’ve fought off many stressful days of suicidal thoughts, fear of death, fear that the
virus would wipe out staff and leave me stranded in my cell without food. Days
upon days of cold sandwiches (Bologna, 1 slice), food that was supposed to be
warm, ice cold, lack of shower and hygiene products, and clean laundry to name a
few.
Pro Se habeas petition in 21‐cv‐01180 (August 11, 2021).
This has been one of the hardest years in my entire life. I had very little if not
completely lost contact with my loved ones, not knowing if they’ve been all right
during this pandemic has caused severe stress and anxiety along with feelings of
hopelessness and uncertainty. I also have endured watching on two different
occasions two inmates attempt suicide one cut his writst and was just a couple pints
30
See Petitioner Ex. 8 (compilation of personal statements in 188 filed habeas petitions,
from July 2020 through July 2022).
Page 9.
31
See Petitioner Ex. 8 at 3.
32
Id. at 10.
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way from dying another actually hung himself and died. These things have left me
emotionally and mentally scared.
Pro Se habeas petition in 21-cv-1547 (October 25, 2021).
The 188 statements under oath in the filed petitions that congtained personal statements
(compiled in Petitioner’s Exhibit 8), combined with the statements made over the course of the
pandemic to the FPD investigator (Petitioner’s Exhibit 1) and in letters and responses to
questionnaires (Petitioner’s Exhibit 4), provide overwhelming evidence that people incarcerated
at FCI Sheridan experienced the pandemic as a terrifying and uncontrolled force that caused
psychological and physical distress.
III.
The Warden Confined People In Small Cells For Lengthy, Indeterminate Periods
Without Adequate Access To Essential Services, Resulting In Psychological and
Physical Harms.
The harm experienced by incarcerated people at FCI Sheridan during the pandemic was
grossly exacerbated by the Warden’s choice to use lengthy confinement in small cells as a primary
response to the virus. The reduction in essential services that the Warden authorized or tolerated
added to the harm.
A.
The Cells at FCI Sheridan Are Small.
The cells at FCI Sheridan are not designed for long-term, uninterrupted occupancy.
The size of standard cells at the FCI range from 90 square feet, to approximately 118 square feet,
although some are up to 130 square feet. 33 The cells generally contain a bunk bed, a small desk,
a sink, an uncovered toilet, and two wall lockers for storage of personnel property. 34 As the
33
See Petitioner Ex. 5 at 39.
34
Id.
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diagram and photos demonstrate, living space in the cells is tight; there are no showers; and it
would be difficult to exercise. In the following diagram of a standard cell provided by The Warden
in discovery, the fixed furnishings occupy more than one-third of the available floor space:
At the FDC, where pretrial detainees are held, the cells are even smaller. According to The
Warden, standard cells at the FDC are approximately 81 square feet, with similar furniture.35 The
Warden admits that for an eight-month period between April and November 2022, there was a
shortage of available cell space which caused the Warden to house three inmates in some cells.36
In those cells, the third bed was two mattresses stacked on the floor.37 The Warden admits the
number of these triple-bunked cells varied, never exceeded 10 per day (30 affected inmates), and
averaged 5 a day (15 affected inmates).38 When inmates were housed three to a cell, the third bed
was next to the toilet and rolled up during the day.39
35
Id.
36
Id. at 30.
37
Id.
38
Petitioner Ex. 5 at 30.
39
Petitioner Ex. 3 at 17.
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Photos of cells at FCI Sheridan. 40
As the photos make clear, the cells provide limited natural light through a narrow window,
and limited floor space for movement. These small cells may not even comply with international
human rights standards, which require a minimum of 3 square meters (32 square feet) of floor
space per detainee in multi-occupancy accommodations. See, e.g., Mursic v. Croatia, (2017) 65
E.H.R.R. 1 at 2 (noting the minimum detention standards under the European Convention on
Human Rights, article 3, which prohibits inhumane or degrading treatment of prisoners). Because
the lockers, bunkbeds, toilet and sink appear to take up over 20 square feet of floor space, the
available floor space person is less than 32 square feet in the FDC.
Images of incarcerated people at the FCI pressing their faces against the celldoors’ tiny
windows (photos below) are haunting when the context of long term confinement is understood.
During the FPD inspection of Sheridan in September of 2021, one inmate at the FCI extended a
message written on envelopes out of his cell door to the inspection team. “How many more days
until we can shower,” he wrote (photo below).
40
Three photos of cells redacted pending receipt of government approval for use.
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The isolation and cramped confinement at the FCI is powerfully demonstrated in a photo of faces
pressed into the tiny, interior window of cells:
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The undisputed evidence shows that people incarcerated at the FCI and the FDC are held
in small cells with extremely limited floor space, open toilets, and limited natural light.
B.
The Warden Confined People in Small Cells for Lengthy and Indeterminate
Periods.
The length and nature of the Covid-19 lockdowns at Sheridan have been extensive. In some
instances, the lockdowns seemed arbitrary and unrelated to the pandemic, as they did not correlate
with the spread of Covid-19 within the prison or in the community. People in custody believed the
lockdowns often reflected staffing shortages rather than a necessary step to prevent Covid-19
transmission.
Page 15. PETITIONERS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
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Appendix E
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FCI Lockdown
Beginning in March of 2020, the FCI was locked down, subjecting each person to
conditions similar to solitary confinement. The Warden admitted that for the first 12 months of the
pandemic, “the majority of inmates at the FCI have been locked in their cells around 20 hours per
day.” 41 Additionally, a small minority were locked in their cells for more than 22 hours per day
when quarantining or infected.42 The Warden explained that in March of 2020, FCI Sheridan
implemented restrictions on individuals’ movement “to ensure physical distancing and minimize
the incidence of Covid-19.”43 These measures resulted in “conditions of confinement at FCI
Sheridan that are relatively harsher due to restrictions on inmate movement.”44
Eighteen months after the start of the pandemic, these restricted confinement measures
remained in effect, as the Warden acknowledged.45 Although there were short periods of greater
freedom, these could be abruptly terminated at any moment. For example, the FCI implemented
new restrictions in August of 2021, including a temporary suspension on recreation, and placed
two entire units in quarantine status at that time.46 Throughout the first 18 month period and the
months to follow, residents at the FCI experienced extremely harsh conditions of confinement due
41
See Petitioner Ex. 5 at 42.
42
Id.
43
See ECF 67 at 4 (Gov’t supplemental status report) (May 10, 2021).
44
Id.
45
See ECF 71 at 4 (Gov’t supplemental status report) (August 12, 2021).
46
See ECF 71 at 4 (Gov’t supplemental status report) (August 12, 2021).
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to these lockdowns.47 The erratic, indefinite, and seemingly indiscriminate nature of the
confinement contributed to the distress the lockdowns caused, as the quotes below demonstrate.
One resident, A.W. wrote:
The Sheridan administration would have you believe that they’ve been oscilating
between open and closed compound, lockdowns and normal operations, but this is
a misrepresentation. We’ve been locked down for 2 years. The only difference has
been whether and to what extent we can use the dayroom or sometimes go outside
for an hour or two.48
J.M. expressed the same sentiment:
Before the most recent covid wave, conditions here changed constantly. Sometimes
we were out 15 minutes a day a few cells at a time. Other times we were out for an
hour with 10-12 cells out at a time. If there were no active cases, we were out of
our cells half a day by tier, or both tiers were out all day together. To me, the
decision on what kind of lockdown we were on felt like it had more to do with staff
convenience … Prison is a stressful place without a pandemic and even more so
with the constant changing lockdowns, the loss of contact visits, malfunctioning
telephones, and no end in sight…I don’t think there has been a day in the last two
years where I haven’t had a moment of becoming overwhelmed and tearing up.49
Another resident, who resided in the 4B unit of the FCI, kept a log of how he experienced the
lockdowns during the first 18 months of the pandemic:
47
Petitioner Ex. 9.
48
Petitioner Ex. 4 at 71(A.W. Questionnaire).
49
Id. at 111 (Questionnaire).
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As his log demonstrates, the amount of time out of cell varied considerably and often fell below
the minimum 2 hours that the Warden implied was continually afforded.
Another example of inconsistent lockdown times at the FCI can be seen in January of 2022,
almost two years into the pandemic. During this time, the Warden claimed that the FCI units were
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not quarantined. Rather, movements were by unit and programming was still running by unit.50
However, library logs provided by the Warden from January of 2022 show many days where there
were no visitors, presumably due to lockdown. Some dates in January 2022 explicitly have “Covid
Lockdown” written on them.51
In response to discovery requests, the Warden provided memoranda that detailed planned
changes in the lockdown procedures, but declined to provide tallies or statements of the actual
time out of cells, on weekdays or weekends.52 Attached as Exhibit 9 is a summary of the planned
time out of cells as indicated by a chronological reading of the memoranda. The exhibit
demonstrates that, although custody times varied, people in custody at the FCI were repeatedly
confined to their cells for more than 20 hours per day, throughout the course of the pandemic.
Federal Detention Center Lockdown
Similar issues were experienced by pretrial detainees at the FDC in both the J1 and J2 units.
In response to a specific question about the FDC, the Warden admitted that for the first year of the
pandemic, the majority of inmates “have been locked in their cells around 20 hours per day,” but
added that, regarding even longer times in cells, the “number of inmates quarantining or in
isolation has changed daily but has never amounted to a majority of inmates at the FDC.”53 As
50
See ECF 95 at 3 (Gov’t supplemental status report) (January 11, 2022).
51
See Petitioner Ex. 5 at 335 (Library Logs).
52
See Petitioner Ex. 5 at 72 (objecting to a request for tallies and responding “inmates are
confined in their cells at various times each day, including weekends, for various reasons including
inmate counts, sleep and security incidents. Subject to and without waiving his objections,
Respondent admits that at certain times during the relevant time period, the amount of time
permitted outside of cells changed on a daily basis.”)
53
Petitioner Ex. 5 at 43 (Response to Interrogatories).
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People in custody experienced angst and isolation from both the lockdowns and the randomness
of when they would be released. Numerous individuals reported that the posted schedules were
not followed, particularly on the weekends.
In his petition T.R. wrote:
These lockdowns are horrible to say the least. I’ve been isolated to my cell for
months on end only allowed out for 15 minutes a day causing me to make a choice
whether I want to shower or use the phone and email cause its not enough time to
do all. We are let out each day at different times making it super hard to reach
family to check on their safety.57
Petitions from those detained in J1 and J2 reflect the experience: “lockdown all the time”58; “[i]n
the last five months we have been allowed outside eight times with no equipment”59; “I can’t call
my family or my attorney because we are on 23 ½ hour lockdown”60; “[l]ast week we were not
even given a shower for 8 days.”61
C.
Lockdowns Took a Psychological Toll on Petitioners.
The first person accounts of the physical and psychological effects of the lockdowns are
harrowing. Many petitioners experienced psychological distress from the isolation:
•
I suffer from PTSD, depression, and panic disorder. Every one of these
symptoms has been heightened to very high levels. It has brought me to a very
bad place in my head. I now struggle with suicide thoughts. I have been
hospitalized for this before. We have no help here and are always locked down.
I have no support group at all. This has been more than devastating to me.62
57
Petitioner Ex. 8 at 36 (petition 22-cv-0370 filed 3/7/2022).
58
Petitioner Ex. 8 at 2 (C.W.) (petition 20-cv-1242 filed 7/28/2020).
59
Id.
60
Petitioner Ex. 8 at 6 (S.C) (petition 20-cv-1671 filed 9/25/2020).
61
Id.
62
Petitioner Ex. 8 at 9 (J.W.) (petition 20-cv-2104 filed 12/3/2020).
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•
These last few months have been severely crippling in mental health issues
exacerbated by lockdowns, inability to communicate with loved ones. Stress
and anxiety due to the constant possibility of COVID‐19 contraction and
possible death as a result. I have never been so removed from my family and
friendships, until Covid protocols and lockdowns. My physical health has
deteriorated due to inability for outside reception time and or any exercise time.
Mentally it was extremely difficult due to lockdowns causing severe mental
issues such as panic attacks, anxiety attacks and severe depression.63
•
The stress and around the clock confinement are starting to play on my mental
state. I have started to have panic attacks and my asthma attacks have been more
frequent. We are being given sack lunches at all meals 3 times a day. Last week
we were not even given a shower for 8 days. I am in a constant state of panic &
stress over being infected by COVID‐19 and with my medical conditions it’s
not good. I have not even been convicted of a crime yet but I am looking at a
potential death sentence being here.64
•
This has been one of the hardest years in my entire life. I had very little if not
completely lost contact with my loved ones, not knowing if they've been all
right during this pandemic has caused severe stress and anxiety along with
feelings of hopelessness and uncertainty. I also have endured watching on two
different occasions two inmates attempt suicide one cut his writst and was just
a couple pints way from dying another actually hung himself and died. These
things have left me emotionally and mentally scared.65
One inmate reported witnessing a man slash himself “because he could not stand being locked up
this long.”66 The man who slashed himself was then allowed out of his cell for 3-4 hours a day
while everyone else remained locked up:
Everyone looking out their window see’s this and realizes you only need to cut
yourself to get out of your cell. Sure enough yesterday a much worse thing happen
and a man across from us slit his throat very bad. Blood was spurting like a fountain
out of his throat. The untrained guard yelled at his door ‘Put pressure on it’ Then
63
Petitioner Ex. 8 at 31 (H.A.) (petition 21-cv-1745 filed 12/3/2021).
64
Petitioner Ex. 8 at 6 (S.C.) (petition 20-cv-1671 filed 9/25/2020).
65
Petitioner Ex. 8 at 28 (P.K.) (petition 21-cv-1547 filed 10/25/2021).
66
Petitioner Ex. 1 at 5.
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ran away somewhere never attempting to enter his cell to stop the bleeding at all.
20 guards and such came in including captain, assistant warden, an evidence gather
team camera’s, on and on. Not one of them wearing mask and most not gloves now
contaminating the whole unit.67
This is just a small sample of the many tales of psychological distress caused by the lockdowns.
These personal experiences are consistent with well-established understanding of the effects of
solitary confinement on the human psyche.
Dr. Stewart Grassian, a M.D. psychiatrist with expertise in the psychiatric effects of
conditions of confinement, reviewed discovery and first person accounts of the lockdown durations
and procedures at FCI Sheridan.68 He also interviewed several detainees by video.69 Dr. Grassian
found that “the conditions of lockdown are basically those of solitary confinement, conditions
involving severe restriction of environmental and social stimulation.70 He explained that these
conditions “have a profoundly deleterious effect on mental functioning.”71 As Dr. Grassian details
in his declaration, solitary confinement is known to cause: impairments in thinking, concentration,
and memory; perceptual disturbances; perceptual distortions, illusions and hallucinations;
affective disturbances, depression and anxiety; disturbances of thought content; problems with
67
Id.
68
Pet. Ex. 3 at 8-30.
69
Id.
70
Petitioner Ex. 3 at 21.
71
Id.
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impulse control.72 Inmates reported to Dr. Grassian thoughts of self-harm, panic attacks, and
claustrophobia.73
That many inmates were confined along with another inmate does not alleviate these
concerns. Instead, “it is very dangerous to have two inmates share a cell” in “any situation of cell
confinement during almost the entire day.” Dr. Grassian related that “double bunking of inmates
confined to their cell for almost the entirely [sic] day has become increasingly rare in prisons.”74
The practice is rare because the typical response to such confinement is “[m]utual tension,
irritability and paranoia” which have “not uncommonly led to violence or even death.”75
Dr. Grassian provided an expert opinion that the extended and indeterminate lockdowns at
FCI Sheridan were harmful, leaving inmates feeling “helpless” with an “impaired sense of selfworth and personal agency.”76 He concluded that the “severe restriction of environmental and
social stimulation” had a “severely deleterious effect on the population.”77 The Warden has known
of the lockdowns since they began and has received reports from residents of the harmful effects.78
72
Id. at 23-28.
73
Id.
74
Petitioner Ex. 3 at 16-17.
75
Id. at 16.
76
Id. at 29.
77
Id. at 30.
78
E.g., Petitioner’s Ex. 8 at 10 (“I have attempted to communicate my concerns about the
effects of the lockdown to custody staff, line staff and executive staff, including both the main and
assistant health services administrators, our satellite operations officers, counselors, case and unit
managers, asst wardens and wardens. In nearly all cases I am told nothing could be done to change
conditions, that the restrictions are in response to the Governor's restrictions or that things are
being done in the interest of protecting my health or safety.”).
Page 25. PETITIONERS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Exhibit A to Petitioner's Response to ECF 128
Page 29 of 106
Appendix E
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Case 3:22-cv-00966-SB
D.
Document 15-1
Filed 09/08/22
Page 30 of 106
The Warden’s Use Of Lengthy Quarantine Cohorts Caused Harm To The
Confined Residents.
Restrictive lockdowns were especially difficult for those in “quarantine cohorts,” which
were used to isolate groups of people who arrived together at the facility and also those who were
scheduled to leave together.79 The required quarantine period was 14 days, after which the cohort
would be tested for Covid, but the Warden acknowledged that the length of quarantine could
“vary.”80 If someone in the cohort tested positive after the 14 days, the quarantine would be reset.81
If someone new was added to the group, or if “[a]ny inmate or contraband from another nonquarantine unit or wing . . . enter[ed] the quarantine area such as by door or window, everyone in
the group had to restart their quarantine.82 If the expected transportation out of FCI Sheridan did
not materialize (whether due to weather conditions, changed schedules, or lack of placements at
the designated facility), the quarantine was “unfortunately” prolonged.83 As a result, many people
79
See ECF 66-2 at 4-5 (Prater Declaration).
80
Id. at 3.
81
ECF 66-2 at 18 (BOP Guidance from Dec. 21, 2020 “If quarantined as a cohort, the 14day quarantine period must be reset to zero if an inmate in the cohort become symptomatic or new
inmates are added to the quarantine”).
82
Petitioner Ex. 5 at 147.
83
See ECF 66-2 at 5-6 (Supplemental Status Report by Josias Salazar, Declaration of
Daniel Prater) (“Unfortunately, a variety of circumstances has led to a number of last-minute
cancellations of scheduled inmate bus and airlift movements. In the past six months, temporary
inmate movement and designation moratoriums at multiple BOP institutions, including FCI
Sheridan, due to the COVID-19 pandemic, a national lockdown invoked due to a security situation
at the U.S. Capitol, and inclement weather, have resulted in multiple cancellations of inmate
movements. …Until recently, standard operating practice, when an inmate movement was
cancelled, was to keep the scheduled inmate on quarantine to facilitate placement on the first
available transport.).
Page 26. PETITIONERS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Exhibit A to Petitioner's Response to ECF 128
Page 30 of 106
Appendix E
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Case 3:22-cv-00966-SB
Document 15-1
Filed 09/08/22
Page 31 of 106
spent far longer than 14 days in quarantine, and the time for some groups was reported to exceed
60 days.84
One petitioner recorded that he had been quarantined five times for five and half of the last
8 months. He felt like a “dog in a cage”:
85
84
Petitioner Ex. 8 at 3 (“We have not been outside in months and some people locked up
60 days awaiting a transfer to another prison that never comes.”), 3 (“I was on a 39 day
quarantine”), 4 (“I have been designated to a California BOP facility was on quarantine for 40
days, then took off quarantine, because elevated Covid-19 cases”), 9 (“I have been in quarantine
3 times for a total of 67 days”).
85
Petitioner Ex. 1 at 28.
Page 27. PETITIONERS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Exhibit A to Petitioner's Response to ECF 128
Page 31 of 106
Appendix E
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Case 3:22-cv-00966-SB
Document 15-1
Filed 09/08/22
Page 32 of 106
The lengthy, indeterminate time in quarantine caused anguish because the quarantine
cohorts experienced the most restrictive confinement. They were locked into their cells without
any time out except a scheduled 30-minute shower every other day, or even every third day:
In other words, people were routinely locked in small cells for 72 hours straight (Friday to
Monday, or Saturday to Tuesday) or 48 hours straight, as the planned response to managing the
population in custody during the pandemic.
The cells were cramped. The quarantine cells in J3 were some of the smallest available,
with a slit for a window and sometimes three beds, as this photo shows:
Page 28. PETITIONERS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Exhibit A to Petitioner's Response to ECF 128
Page 32 of 106
Appendix E
Page 32 of 106
Case 3:22-cv-00966-SB
Document 15-1
Filed 09/08/22
Page 33 of 106
At times, between April and November of 2020, the number of people needing quarantine
at the FDC was so high that mattresses were put on the floor to accommodate a third occupant in
cells without a third bed.86 This occurred in five to ten cells at a time. For those arriving at FCI
Sheridan, quarantine time was an especially difficult introduction to the prison because, without
access to the commissary, they were unable to purchase any supplies to use while locked in. They
lacked essential items like shoes, toothpaste, toothbrush, aspirin, and soap.
Both those who experienced lengthy quarantines and those who witnessed them wrote to
the FPD in distress. Although the writers did not clearly distinguish “quarantine cohorts” from
86
See Petitioner Ex. 5 at 30 (“between April 2020 and November 2020, the Warden faced
a shortage of available cell space at the FDC. In response, the Warden used a small number of
FDC cells (approximately five) to house three inmate for a limited time.”); (“[T]he third bed
consisted of a mattress on top of another mattress that was on top of the floor.”).
Page 29. PETITIONERS’ PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW
Exhibit A to Petitioner's Response to ECF 128
Page 33 of 106
Appendix E
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Case 3:22-cv-00966-SB
Document 15-1
Filed 09/08/22
Page 34 of 106
quarantine in the gym, or even from quarantine when entire units were locked down, the clear
message was that quarantine lockdowns were harsh, dehumanizing, and physically harmful.
•
I was on a 39 day quarantine and only allowed 5 min phone, 5 min shower. I
only got that after 72 hours. Sometimes it was a week. Once I was forced by
these racists to go 8 days without a shower and told instead to use the sink. This
whole quarantine and specially the 39 days was very inhumane. I am being
murdered here by this warden and staff. Please do not let them kill me l
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