Jane Doe v. John Kelly ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JANE DOE, # 1; JANE DOE, # 2; Nos. 17-15381
NORLAN FLORES, on behalf of 17-15383
themselves and all others similarly
situated,
Plaintiffs-Appellants/Cross- D.C. No.
Appellees, 4:15-cv-00250-
DCB
v.
JOHN F. KELLY, Secretary, United OPINION
States Department of Homeland
Security; KEVIN K. MCALEENAN,
Acting Commissioner, United States
Customs and Border Protection;
RONALD VITIELLO, Chief, United
States Border Patrol; JEFFREY SELF,
Commander, Arizona Joint Field
Command; PAUL BEESON, Chief
Patrol Agent - Tucson Sector,
Defendants-Appellees/Cross-
Appellants.
2 DOE V. KELLY
Appeal from the United States District Court
for the District of Arizona
David C. Bury, Senior District Judge, Presiding
Argued and Submitted October 16, 2017
San Francisco, California
Filed December 22, 2017
Before: Richard C. Tallman and Consuelo M. Callahan,
Circuit Judges, and David A. Ezra,* District Judge.
Opinion by Judge Callahan
SUMMARY**
Civil Rights
The panel affirmed the district court’s preliminary
injunction in an action brought by civil detainees confined in
U.S. Customs and Border Protection facilities within the
Tucson Sector of the U.S. Border Patrol who alleged they
were subjected to inhumane and punitive treatment.
The district court granted a preliminary injunction
requiring that defendants provide detainees with mats and
*
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DOE V. KELLY 3
blankets after 12 hours. Defendants appealed, alleging that
the district court misapprehended the standard set forth in
Bell v. Wolfish, 441 U.S. 520 (1979), and that the order was
too rigid and burdensome. Plaintiffs also appealed, alleging
that the district court should have ordered defendants to
provide the detainees with beds and mattresses, allow them
access to showers, and deliver adequate medical care through
medical professionals.
The panel held that the district court carefully considered
plaintiffs’ allegations of constitutional violations, recognized
the guidance provided by the Supreme Court in Bell, and
issued a limited preliminary injunction requiring defendants
to provide detainees with mats and blankets after 12 hours.
Defendants failed to show that, in doing so, the district court
misapprehended Bell or that the preliminary injunction was
overly rigid or burdensome.
The panel found unpersuasive plaintiffs’ assertions that
the district court should have required defendants to provide
detainees with beds, showers, and medical treatment provided
by medical professionals. The panel held that the district
court recognized the unique mission of the Border Patrol and,
at least for the purposes of a preliminary injunction,
reasonably balanced the government’s interests and the
detainees’ constitutional rights.
4 DOE V. KELLY
COUNSEL
James R. Sigel (argued), Robert J. Esposito, and Elizabeth G.
Balassone, Morrison & Foerster LLP, San Francisco,
California; Deanne E. Maynard, Sophia M. Brill, Bryan J.
Leitch, and Lena H. Hughes, Morrison & Foerster LLP,
Washington, D.C.; Louise C. Stoupe and Pieter S. de Ganon,
Morrison & Foerster LLP, Tokyo, Japan; Colette Rainer
Mayer, Morrison & Foerster LLP, Palo Alto, California;
Linton Joaquin, Karen C. Tumlin, and Nora A. Preciado,
National Immigration Law Center, Los Angeles, California;
Kathleen E. Brody, Daniel J. Pochoda, and Brenda Muñoz
Furnish, ACLU Foundation of Arizona, Phoenix, Arizona;
James J. Cekola, Morrison & Foerster LLP, San Diego,
California; Mary A. Kenney, Melissa E. Crow, and Aaron
Reichlin-Melnick, American Immigration Council,
Washington, D.C.; Elisa Della-Piana and Megan Sallomi,
Lawyers’ Committee for Civil Rights of the San Francisco
Bay Area, San Francisco, California; Abigail L. Colella,
Morrison & Foerster LLP, New York, New York; for
Plaintiffs-Appellants/Cross-Appellees.
Christina Parascandola (argued), Trial Attorney; Sarah B.
Fabian, Senior Litigation Counsel; William C. Peachey,
Director; Chad A. Readler, Acting Assistant Attorney
General, Civil Division; Office of Immigration Litigation,
District Court Section, United States Department of Justice,
Washington, D.C.; for Defendants-Appellees/Cross-
Appellants.
DOE V. KELLY 5
OPINION
CALLAHAN, Circuit Judge:
The influx of detainees in the Tucson Sector of the U.S.
Border Patrol in 2015 resulted in Defendants (federal
government officials and agents) holding detainees being
processed for longer periods of time in overcrowded and
unsanitary cells at eight different stations. Plaintiffs brought
this action alleging inhumane and punitive treatment, and
seeking injunctive relief. The district court granted a
preliminary injunction requiring that Defendants provide
detainees with mats and blankets after 12 hours. Defendants
appeal, alleging that the district court misapprehended the
standard set forth in Bell v. Wolfish, 441 U.S. 520 (1979), and
that the order was too rigid and burdensome. Plaintiffs also
appeal, alleging that the district court should have ordered
Defendants to provide the detainees with beds and mattresses,
allow them access to showers, and deliver adequate medical
care through medical professionals. We hold the district
court did not abuse its discretion and properly applied
precedent such that neither side has shown that the limited
preliminary injunction is illogical, implausible, or without
support in the record. United States v. Hinkson, 585 F.3d
1247, 1262 (9th Cir. 2009) (en banc).
I. BACKGROUND
Plaintiffs filed this action in the United States District
Court for Arizona on behalf of detainees confined in U.S.
Customs and Border Protection Facilities within the Tucson
Sector of the U.S. Border Patrol. The Border Patrol’s mission
is to detect and prevent the entry of certain
individuals—including terrorists, unauthorized aliens, drug
6 DOE V. KELLY
smugglers, and other criminals—into the United States
between ports of entry. The Tucson Sector patrols 262 miles
of the United States-Mexico border in southern Arizona, and,
according to Defendants, in fiscal year 2016, “apprehended
64,891 individuals, the second highest of any Border Patrol
sectors.” The number of individuals apprehended in the
Tucson Sector varies widely. Defendants represent that
between 2009 and 2016, apprehensions each month ranged
“from a high of 31,432 in March 2009, to a low of 4,071 in
July 2015.”
When a Border Patrol agent apprehends an individual, the
person is taken to one of eight stations in the Tucson Sector.
At the station, the Border Patrol processes the detainee,
ascertaining the individual’s identity and immigration and
criminal history. The individual is then repatriated,
transferred into the custody of another agency, referred for
prosecution in accordance with the law or, in rare
circumstances, released.
Plaintiffs alleged that the conditions in the stations were
deplorable and that it took up to three days for individuals to
be processed before transfer. Plaintiffs alleged that:
detainees are packed into overcrowded and
filthy holding cells, stripped of outer layers of
clothing, and forced to endure brutally cold
temperatures. They are denied beds, bedding,
and sleep. They are deprived of basic
sanitation and hygiene items like soap,
sufficient toilet paper, sanitary napkins,
diapers, and showers. And they are forced to
go without adequate food, water, medicine,
and medical care.
DOE V. KELLY 7
In the fall of 2016, the district court certified the case as a
class action. Plaintiffs then sought a preliminary injunction.
II. THE DISTRICT COURT’S ORDERS
A. The Standards for Reviewing Conditions of
Confinement
After setting forth the appropriate standards for issuing a
mandatory preliminary injunction, the district court
considered the standards for reviewing conditions of
confinement. It first noted that when the government takes a
person into custody, it must provide for the person’s “basic
human needs—e.g. food, clothing, shelter, medical care, and
reasonable safety.” DeShaney v. Winnebago Cnty. Dep’t of
Soc. Servs., 489 U.S. 189, 199–200 (1989); see also Farmer
v. Brennan, 511 U.S. 825, 832 (1994).
Citing Bell v. Wolfish, 441 U.S. 520, 535 (1979), among
other cases, the district court concluded that when evaluating
the constitutionality of pretrial detention conditions, it had to
determine whether the conditions amounted to punishment.
Citing Demery v. Arpaio, 378 F.3d 1020, 1030 (9th Cir.
2004), the district court explained that “[t]o constitute
punishment, the governmental action must cause harm or
disability that either significantly exceeds or is independent
of the inherent discomforts of confinement.” The court noted
that even in the absence of evidence of express intent, it may
infer an intent to punish “if the restriction or condition is not
reasonably related to a legitimate governmental objective or
is excessive in relation to the legitimate governmental
objective.” See Pierce v. Cnty. of Orange, 526 F.3d 1190,
1205 (9th Cir. 2008).
8 DOE V. KELLY
The district court noted that the Supreme Court held that
“[m]aintaining institutional security and preserving internal
order and discipline are essential goals that may require
limitation or retraction of the retained constitutional rights of
both convicted and pretrial detainees.” Bell, 441 U.S. at 546.
Indeed, the Supreme Court commented that “in the absence
of substantial evidence in the record to indicate that officials
have exaggerated their responses to these conditions, courts
should ordinarily defer to their expert judgment in such
matters.” Id. at 540 n.23 (quoting Pell v. Procunier, 417 U.S.
817, 827 (1974)).
Based on these cases, the district court opined that a
condition of confinement “violates the Fifth and Fourteenth
Amendments if it imposes some harm to the detainee that
significantly exceeds or is independent of the inherent
discomforts of confinement and is not reasonably related to
a legitimate governmental objective or is excessive in relation
to the legitimate governmental objective.” See Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2473–74 (2015). This led the
court to reason that decisions defining the constitutional
rights of prisoners establish a floor for Plaintiffs’
constitutional rights. See Padilla v. Yoo, 678 F.3d 748, 759
(9th Cir. 2012). The district court concluded that it could
presume Plaintiffs were being subjected to punishment “if
they are confined in conditions identical to, similar to, or
more restrictive than those under which the criminally
convicted are held.” See Sharp v. Weston, 233 F.3d 1166,
1172–73 (9th Cir. 2000).
The district court then observed:
This is precisely the case here. Assistant
Chief Patrol Agent for the Tucson Sector,
DOE V. KELLY 9
George Allen, admitted, when this Court
asked him to compare the conditions of
confinement at Tucson Sector Border Patrol
stations with those afforded criminal detainees
at the Santa Cruz County jail, that in jail,
detainees have a bed, with blankets, clean
clothing, showers, toothbrushes and
toothpaste, warm meals, and an opportunity
for uninterrupted sleep. Likewise, the
conditions of confinement . . . improve once
they are transferred from Border Patrol
holding cells to detention centers operated by
the United States Marshals.
The district court recognized that, in assessing the
constitutionality of the conditions of confinement in the
Border Patrol stations, due consideration had to be given to
the nature, purpose and duration of an individual’s time in the
station. The stations are 24-hour operations where many
detainees arrive in the evening and at night. The holding
rooms are not designed for sleeping and have no beds.
“Defendants assert[ed] that providing sleeping facilities and
turning off lights would require structural changes at the
facilities, create safety risks, and impede its purpose to
provide 24-7 immigration processing.” Defendants explained
that when a detainee arrives at a station, outer-clothing is
removed for security reasons, and detainees are placed into
group-holding rooms based on age, gender, family units, or
suspected criminal status. Processing includes obtaining
biographical information and biometrics, submitting this
information through the e3Nex Generation Identification
system to determine prior criminal and immigration arrests,
preparing an arrest report, immigration processing, consular
notifications, and communication with family members and
10 DOE V. KELLY
attorneys as appropriate. Processing, if uninterrupted, absent
any remarkable criminal or immigration history, takes
between two and two and one-half hours.
But, there usually are interruptions. Discovery revealed
that between June 10, 2015, and September 28, 2015, only
about 3,000 of approximately 17,000 detainees were
processed out of detention within 12 hours. About 8,644
detainees were held at a Border Patrol station up to 23 hours;
6,807 were held for up to 47 hours; 1,207 were held up to
71 hours; and 476 were held for 72 hours or more.
The district court accepted for purposes of the preliminary
injunction that the Border Patrol’s 2008 Hold Rooms and
Short Term Custody Policy (2008 Policy) and the National
Standards on Transport, Escort, Detention and Search (TEDS
standards) provided for constitutional conditions of
confinement. Although Defendants assert that these
guidelines establish the status quo, the district court found
that Plaintiffs had presented persuasive evidence that the
basic human needs of detainees were not being met by
Defendants’ current practices.
B. Plaintiffs’ Specific Complaints
1. Sleeping. The district court recognized that other
detention facilities must provide individuals held overnight
with beds and mattresses, and, thus, the absence of either
violates the detainees’ due process rights. See Thompson v.
City of Los Angeles, 885 F.2d 1439, 1448 (9th Cir. 1989),
overruled on other grounds by Bull v. City & Cty. of San
Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc); Anela v.
City of Wildwood, 790 F.2d 1063, 1069 (3rd Cir. 1986). The
court noted that of the 16,992 detainees held between June 10
DOE V. KELLY 11
and September 28, 2015, only 122 were recorded to have
received a mat, and the others’ bedding needs were met with
only a Mylar sheet/blanket. The court found that this was
contrary to both the 2008 Policy and the TEDS standards. It
further noted:
the harshness caused by the lack of mats and
the inadequacy of the Mylar blankets is
compounded by the Defendants’ practices of
keeping holding-cells lights turned on 24-7,
feeding one of the three regular hot meals to
detainees at 4:00 a.m., moving detainees in
and out of holding cells throughout the night
for processing, overcrowding cells which
causes people to lie cramped together and
next to toilet facilities or to sit or stand up,
and because the hard concrete floors and
benches retain the cold caused by low
thermostat temperatures and make it too hard
and cold to sleep.
The district court found the holding cells to be spatially
inadequate. The district court determined that “the holding-
cell capacity numbers cannot accommodate the number of
detainees being detained longer than twelve hours because
detention of this duration requires them to lie down to sleep
rather than sit up.”
Defendants’ expert opined that the Border Patrol facilities
were on par with short-term holding cells typically used
during the booking process in jail facilities. The district court
rejected the comparison because the booking process at a jail
facility usually takes hours, instead of days. The district
court, however, accepted that the holding cells need to be
12 DOE V. KELLY
illuminated for security. On the other hand, it found no
security or administrative reason “to wake up detainees by
scheduling one of the three burrito meals at 4:00 a.m.”
The court also found that the Mylar blankets do not
provide insulation from the cold concrete, but merely prevent
evaporation and retain 80% of body heat when wrapped
around a person. In light of the sedentary nature of detention,
the district court required that Defendants continue to monitor
cell temperatures, which were maintained at temperatures
between 71 and 74 degrees. The district court concluded that
Defendants were violating Plaintiffs’ constitutional right to
sleep, and ordered that Defendants provide detainees held for
longer than 12 hours mats and Mylar blankets.
2. Sanitation. The district court explained that a sanitary
environment is a basic human need that must be met by all
penal institutions. See Keenan v. Hall, 83 F.3d 1083, 1091
(9th Cir. 1996). Plaintiffs’ expert opined that Defendants
were not complying with their own standards, noting that:
(a) all areas, including floors and toilets, were badly soiled;
(b) hold rooms lacked trash receptacles; (c) toilet stalls lacked
waste receptacles for sanitary napkins, diapers, and other
bathroom waste; (d) cleaning supplies were not segregated
from food storage; and (e) “cleaning crews did not appear to
clean and sanitize common-touch points in detainee areas.”
Although prison standards require one toilet for every
12 male prisoners and one toilet for every 8 female prisoners,
in most cases the number of toilets in each holding room was
inadequate. One large holding room with a capacity of 88
had one working toilet and one non-flushing toilet.
Moreover, many toilets were combined sink/toilet fixtures
with the sink fixture on top of the toilet creating a potential
for contamination.
DOE V. KELLY 13
Defendants responded that all but one holding cell are
cleaned twice a day, and that they had begun placing trash
receptacles in the holding cells. Defendants further asserted
that soap had been made available to detainees upon request,
and that, where water fountains were inoperable, water
coolers had been placed in the cells.
The district court preliminarily ordered “compliance
monitoring to ensure detainees have access to working toilets
and sinks, soap, toilet paper, garbage receptacles, tooth
brushes and toothpaste, feminine hygiene items, baby food,
diapers and clean drinking water.”
The district court was also critical of the lack of shower
facilities. It noted that a person who had been trudging across
the Arizona desert would likely be dirty, but only two stations
had shower facilities, and those were sparsely used, generally
for detainees who were suspected of having scabies. Only
115 detainees out of the 16,992 held between June 10 and
September 28, 2015 were given showers.
Addressing the lack of shower facilities, the district court
noted that jail standards require access to showers and
washbasins with hot and cold running water, with daily
showers available. Defendants responded that the lack of
showers was not a problem because most detainees are
transferred within 72 hours and TEDS standards only require
that reasonable efforts be made to provide showers for
detainees approaching 72 hours of detention.
The district court was critical of Defendants’ failure to
recognize the basic human need to wash during detention, but
also noted that courts are extremely reluctant to find
constitutional violations based on temporary deprivations of
14 DOE V. KELLY
personal hygiene. Accordingly, the court preliminarily ruled
that Defendants “need only provide some means or materials
for washing and/or maintaining personal hygiene when
detainees are held longer than 12 hours.”
3. Medical Care. The parties agreed that Defendants are
constitutionally required to provide ready access to medical
care, but disagreed on the contours of this right. Plaintiffs
challenged the adequacy of Defendants’ intake screening,
alleging that: (1) the screening is performed by Border Patrol
agents, not doctors, nurses, or other specially trained
personnel; (2) Defendants do not maintain a medical
treatment program capable of responding to emergencies
because they do not have medical staff on site; and (3) “the
practice of confiscating incoming detainees’ medication
creates impermissible and heightened risk that detainees will
experience a medical emergency.”
Defendants responded that TEDS standards provide a
system of ready access to adequate medical care. Before a
detainee is placed in a hold room, an agent questions the
individual and visually inspects for any sign of injury, illness,
or physical or mental health concerns. Observed or reported
injuries or illnesses are to be communicated to a supervisor
and documented in the appropriate electronic system.
Treatment plans and medication should accompany detainees
when they are transferred or discharged. Defendants asserted
they have personnel at the stations who can treat emergencies,
and routinely transfer detainees to hospitals for emergency
care.
Plaintiffs’ expert, however, claimed that there was no
evidence of any formalized screening process being carried
out by agents at the detention centers. The e3DM data system
DOE V. KELLY 15
reflected around 527 incidents of medical treatment for
approximately 17,000 detainees. The expert explained there
are two components to screening: (1) immediate medical
triage to determine whether there is any issue that would
preclude acceptance into the facility, and (2) a more thorough
medical and mental health screening. The expert was critical
of the field screening because it was not done pursuant to any
standardized protocol, and therefore did not adequately
identify urgent or emergent health care needs or potentially
communicable diseases.
The district court preliminarily required compliance with
TEDS standards, “including measures to ensure the Medical
Screening Form currently being used by Defendants at some
stations is used in all stations, and that the form ask questions
to ensure compliance with TEDS standards for screening and
delivering medical care.”
C. Preliminary Injunctive Relief
Having held that Plaintiffs were likely to succeed on the
merits, the district court considered the other criteria for
issuing a preliminary injunction. It held that Plaintiffs were
likely to suffer irreparable harm due to the deprivation of
constitutional rights in the conditions of confinement, which
cannot be adequately remedied through damages. The
balance of equities and public interest favored relief, in part,
because the “government suffers no harm from an injunction
that merely ends unconstitutional practices and/or ensures
that constitutional standards are implemented.” See
Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013).
The district court concluded that Defendants “cannot sidestep
reality by relying on the structural limitations of the Border
Patrol detention facilities.” Rather, “[i]f detainees are held
16 DOE V. KELLY
long enough to require them to sleep in these facilities, take
regular meals, need showers, etc., then the Defendants must
provide conditions of confinement to meet these human
needs.” Although it found no evidence of intent to punish,
the court found “no objectively reasonable relationship
between 24-7 immigration processing or security and the
conditions of confinement which Plaintiffs have preliminary
shown exist in the Tucson Sector Border Patrol stations
related to sleeping, sanitation, food, and medical care.”
The court ordered:
1. Clean bedding, which Defendants assert
they are providing to all detainees, must
include a mat and a Mylar blanket for all
detainees being held longer than 12 hours.
2. Personal hygiene needs of detainees held
longer than 12 hours include the need to wash
or clean themselves.
3. Defendants shall implement the universal
use of their Medical Screening Form at all
stations and ensure that the form questions
reflect the TEDS requirements for delivery of
medical care to detainees.1
1
The district court further ordered that “Defendants shall monitor for
compliance the following: availability of working sinks and toilets and/or
other materials sufficient to meet the personal hygiene needs of detainees
on a per cell per station basis; cell temperatures; cell sanitation and
cleanliness; delivery to detainees of bedding, including mats, personal
hygiene items such as toilet paper, toothbrushes and toothpaste, feminine
hygiene items, baby food, diapers, and meals.”
DOE V. KELLY 17
D. The January 3, 2017 Order
Defendants sought reconsideration and modification of
the preliminary injunction. The motion outlined the Border
Patrol’s compliance with the preliminary injunction.
Detainees were being provided with mats, showers were
being offered to some detainees and others were being given
body wipes to clean themselves, all stations were provided
with the current medical screening forms, and all stations had
been instructed to monitor for compliance with TEDS
standards for medical screening. Defendants, however,
sought reconsideration asserting that: (a) allowing detainees
to lie down to sleep had significantly reduced the holding cell
capacity numbers, and had interfered with their ability to
transfer individuals efficiently; (b) compliance had increased
processing time; (c) compliance had added obstacles to
Defendants’ compliance with the Prison Rape Elimination
Act, which requires separating and monitoring vulnerable
populations; and (d) compliance had resulted “in prosecutions
forfeited for lack of timely presentment.”
The district court denied the request for reconsideration.
It noted that providing detainees with mats and allowing them
to lie down to sleep would always require that Defendants
acquire more space. The district court was not persuaded by
Defendants’ assertion that due to their 24-7 operational needs,
they could not separate out detainees who approach 12 hour
detentions. The court noted that it had seen empty cells
adjacent to full cells and that Defendants admitted to
separating out at-risk vulnerable population detainees. The
court further stated that Defendants sought to suspend the 12-
hour limit “without offering any plan or time-line for full
compliance,” and the court “cannot suspend what it believes
are constitutional rights.”
18 DOE V. KELLY
The district court did clarify its order. It explained that:
(1) for detainees held more than 12 hours, “Defendants must
provide bedding, including mats and Mylar blankets and
some means to maintain personal hygiene;” (2) the court “did
not order Defendants to provide showers;” and (3) “the 12-
hours begins to run from when the detainee arrives at the
station.”2
III. ANALYSIS
A. Standard of Review
Plaintiffs are entitled to preliminary injunctive relief if
they show: (1) likely success on the merits; (2) likely
irreparable harm absent preliminary relief; (3) the balance of
equities tips in their favor; and (4) an injunction is in the
public’s interest. Pimental v. Dreyfus, 670 F.3d 1096,
1105–06 (9th Cir. 2012); Sierra Forest Legacy v. Rey,
577 F.3d 1015, 1021 (9th Cir. 2009). Under our “sliding
scale” approach, a stronger showing of one element may
offset a weaker showing of another, as long as plaintiffs
“establish that irreparable harm is likely.” All. for the Wild
Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).
A preliminary injunction should be set aside only if the
district court “abused its discretion or based its decision on an
erroneous legal standard or on clearly erroneous findings of
fact.” Puente Arizona v. Arpaio, 821 F.3d 1098, 1103 (9th
2
Out of an abundance of caution, Defendants had initially calculated
the 12 hours from the moment an individual was apprehended, rather than
the individual’s “book-in to a station.” The clarification accommodated
the Border Patrol’s concern that apprehensions often occur in remote areas
long distances from their stations.
DOE V. KELLY 19
Cir. 2016) (quotation omitted). Legal conclusions are
reviewed de novo. Pimental, 670 F.3d at 1105. A district
court “necessarily abuses its discretion when it bases its
decision on an erroneous legal standard.” Harris v. Bd. of
Supervisors of Los Angeles Cnty., 366 F.3d 754, 760 (9th Cir.
2004) (quoting Rucker v. Davis, 237 F.3d 1113, 1118 (9th
Cir. 2001) (en banc), rev’d on other grounds, Dep’t of Hous.
& Urban Dev. v. Rucker, 535 U.S. 125 (2002).
If the district court identifies the correct legal standard, “it
will not be reversed simply because the appellate court would
have arrived at a different result if it had applied the law to
the facts of the case.” Am. Trucking Ass’ns, Inc. v. City of
Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quotation
omitted). Rather, the court only abuses its discretion when its
application of the standard is “illogical, implausible, or
without support in inferences that may be drawn from the
record.” United States v. Hinkson, 585 F.3d 1247, 1262 (9th
Cir. 2009) (en banc).
Furthermore, we have held that the district court has
broad discretion to fashion remedies once constitutional
violations are found. Hoptowit v. Ray, 682 F.2d 1237, 1245
(9th Cir. 1982), overruled on other grounds by Sandin v.
Conner, 515 U.S. 472 (1995).
B. The District Court Properly Read and Applied
Bell v. Wolfish
On appeal, Defendants assert that the district court
misinterpreted and misapplied Bell. They argue that the court
disregarded the Supreme Court’s caution against courts
becoming enmeshed in the minutiae of facility operations and
20 DOE V. KELLY
“failed to take any meaningful account of the unique nature
of detention at Border Patrol facilities.”
Defendants’ arguments are not well taken. The district
court repeatedly cited Bell and recognized the Court’s
admonition to defer to legitimate governmental objectives.
However, the Supreme Court said much more. It set forth the
standard for determining whether a condition of confinement
was “imposed for the purpose of punishment or whether it is
but an incident of some other legitimate governmental
purpose.” 441 U.S. at 538. The Court noted that a condition
would not constitute punishment if it was “reasonably related
to a legitimate governmental objective.” Id. at 539. But if a
condition “is arbitrary or purposeless—a court permissibly
may infer that the purpose of the government action is
punishment that may not constitutionally be inflicted on
detainees.” Id. The district court applied this standard.
At its core, Defendants’ objection that the district court
“failed to take any meaningful account of the unique nature
of detention at Border Patrol facilities” is not a challenge to
the district court’s interpretation of Bell, but a disagreement
with the application of Bell to the facts in this case. As such,
Defendants must show an abuse of discretion—that the
district court’s order “is illogical, implausible, or without
support in inferences that may be drawn from the record.”
Hinkson, 585 F.3d at 1262.
The record reveals that the district court sculptured the
relief granted to reflect the unique features of Border Patrol
stations and field operations. It did so by requiring only mats
and Mylar blankets instead of beds and mattresses, by
allowing body wipes for cleaning rather than showers, and by
allowing non-medical personnel to medically screen
DOE V. KELLY 21
detainees.3 The limited injunction reflects the district court’s
careful consideration of the unique nature of Border Patrol
stations in light of Bell.
The only aspect of the preliminary injunction that
Defendants specifically challenge on appeal is the allegedly
“rigid” requirement that they provide mats to all individuals
detained for 12 hours or more. However, Defendants do not
contest that detainees may sleep while in custody, or even
that the 12-hour mandate might be workable in some cases.
Rather, they argue that the rule “ignores the purpose of
Border Patrol custody”; that it might be counterproductive if
an individual arrives at the station in the middle of the night
and is likely to be transferred in the afternoon; and, lacks a
safety valve for a “surge” or other unforeseen situations.
These arguments are not persuasive. First, it is not
unreasonable to infer that a person who has been detained in
a station for over 12 hours (after having been awake for some
period of time before his detention) has a right to lie down
and rest, even in the middle of the day. Second, it is by no
means clear that providing detainees with mats after 12 hours
is more burdensome than providing them with mats at any
other time.4 Third, there is little to no evidence that providing
detainees with mats interferes with the Border Patrol’s
identification and processing of individuals. Fourth, there is
nothing in the record to suggest that Defendants ever sought
3
In addition, the district court allowed the lights in the holding cells
to remain on all night. Plaintiffs do not challenge this on appeal.
4
At oral argument, Defendants’ counsel stated that detainees are
presently being given a blanket and mat when initially admitted to a
holding cell.
22 DOE V. KELLY
“surge” protection from the district court. Indeed, the Motion
for Clarification alleged that providing detainees with mats
would reduce the holding cells’ capacities. It did not allege
that providing mats was in itself burdensome or that there was
some need for flexibility.
In light of the deference due the district court in
fashioning preliminary relief, Hinkson, 585 F.3d at 1262,
Defendants have not shown that the district court abused its
discretion in granting the limited preliminary injunction.5
C. Plaintiffs Have Not Shown that the District Court
Abused its Discretion in Issuing Only a Limited
Preliminary Injunction
Plaintiffs have not shown that the district court’s
application of the law concerning beds, showers, and medical
care to the facts in this case is illogical, implausible, or
“without support in inferences that may be drawn from the
facts in the record.” Id.
5
Defendants’ concerns that the preliminary injunction is “a
derogation of fundamental principles of national sovereignty” or may
violate the Immigration and Nationality Act because courts are prohibited
“from fashioning class wide injunctive relief that would enjoin or restrain
the operation of the detention provisions of the Act,” overstates the
situation and the law. “Plaintiffs do not seek to prevent Defendants from
inspecting, apprehending, excluding, or removing aliens,” and do not
“challenge the government’s power to detain individuals who are
suspected of crossing the nation’s borders without proper authorization.”
Defendants have offered no case law suggesting that constitutional
obligations may not indirectly implicate the manner and means by which
the government carries out its responsibilities at the border. See
Rodriguez v. Hayes, 591 F.3d 1105, 1120–21 (9th Cir. 2010).
DOE V. KELLY 23
1. Beds. Plaintiffs argue that detainees held overnight
are entitled to beds and mattresses. See Thompson, 885 F.2d
at 1448 (noting that “a jail’s failure to provide detainees with
a mattress and bed or bunk runs afoul of the commands of the
Fourteenth Amendment”). But given the unique purpose of
Border Patrol stations and Defendants’ limited resources, the
district court reasonably limited preliminary relief to mats
and Mylar blankets. The purpose of the stations is to process
the detainees as efficiently as possible so that they may be
transferred to other facilities or released. Defendants assert
that, absent the influx of detainees in 2015, processing a
person should have taken two or three hours. Thus, were the
stations operating as intended, there would never have been
any need for a bed or a mat. Accordingly, the stations are not
set up to accommodate beds. Defendants have neither the
space for beds and mattresses, nor, presumably, beds and
mattresses that might be immediately moved to the stations.
Under these conditions, granting Plaintiffs the immediate
preliminary relief of mats and Mylar blankets was reasonable.
It provides Plaintiffs with actual relief without imposing a
huge cost on Defendants to alleviate what might be a
temporary need. Evidence as to whether the need was likely
to continue would certainly be relevant to the district court’s
determination of Plaintiffs’ request for a permanent
injunction. However, the possibility of such evidence does
not undermine the logic and reasonableness of the district
court’s preliminary injunction, which provided immediate
and effective, if limited, relief by requiring Defendants to
provide mats and blankets.
2. Showers. Plaintiffs assert that detainees have a right
of access to showers. See, e.g., Toussaint v. McCarthy,
597 F. Supp. 1388, 1399 (N.D. Cal. 1984) (holding that
“minimum standards of decency require that lockup inmates
24 DOE V. KELLY
without hot running water in their cells be accorded showers
three times per week in facilities reasonably free of standing
water, fungus, mold and mildew”), aff’d in part and rev’d in
part by Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir.
1986). However, practical considerations support the district
court’s grant of limited relief allowing Defendants to provide
Plaintiffs with body wipes to maintain a minimal level of
personal hygiene. Apparently, only two of the eight stations
even have showers. Moreover, unlike body wipes (and mats
and blankets), which can be efficiently distributed, providing
showers for thousands of detainees raises substantial security
and logistical concerns. Diverting Defendants’ limited
human resources to provide detainees with showers would
almost certainly slow down the processing of detainees,
thereby encumbering Defendants’ primary mission.
Furthermore, although Plaintiffs have a right to hygiene,
the Constitution does not requires access to a shower within
12 hours or even 24 hours. The district court in Toussaint,
held that inmates were entitled to showers three times a week.
597 F. Supp. at 1399. But case law does not compel the
conclusion that they have a constitutional right to a shower
when detained for fewer than two days.
3. Medical Care. There is no question that detainees are
entitled to “adequate medical care.” See Toussaint, 801 F.2d
at 1112 (“If plaintiffs correctly contend that unqualified
personnel regularly engage in medical practice, precedent
indicates that the prison health care delivery system may
reflect deliberate indifference to plaintiffs’ medical needs.”);
Hoptowit, 682 F.2d at 1252 (“Medical staffing is inadequate.
Medical services are provided by nurse practitioners or
physician assistants (mid-level practitioners), rather than
physicians.”); Gibson v. Cty. of Washoe, 290 F.3d 1175,
DOE V. KELLY 25
1187–89 (9th Cir. 2002). However, Plaintiffs have failed to
show that the district court’s determination is not a reasonable
application of case law to the particular facts in this case. In
particular, precedent allows considerable flexibility as to
when and how constitutionally “adequate medical care” is
provided.
The cases cited by Plaintiffs concern settings different
from those at issue here, and do not hold that all medical
screening must be done by medical professionals. First,
Hoptowit concerned medical care at the Washington State
Penitentiary. 682 F.2d at 1245. We agreed with the district
court that the existing conditions violated the Eighth
Amendment. Id. (“The Eighth Amendment requires that
prison officials provide a system of ready access to adequate
medical care.”). However, we held that remedies ordered by
the district court were overbroad, and that “the court could go
no farther than to bring the medical services up to the
constitutional minima.” Id. Although prisoners must be able
“to make their medical problems known to the medical staff,”
the referrals may be to “facilities outside the prison if there is
reasonably speedy access to these other physicians or
facilities.” Id. We were particularly critical of the district
court’s order that the penitentiary hire full time physicians,
stating that the court must first determine that the
penitentiary’s use of outside services “could not meet the
constitutional minimum.” Id. at 1254.6
6
We explained:
The district judge could find that in-prison staff was
necessary if he found that the State’s approach was
necessarily inadequate. He made no findings, however,
concerning the availability and adequacy of treatment
outside the prison. It could well be that with improved
26 DOE V. KELLY
Second, Toussaint concerned conditions of confinement
at four California prisons. 801 F.2d at 1085. Health care at
the Folsom Prison was only one of the issues the Ninth
Circuit addressed. Id. at 1111–12. We recognized that
denying prisoners medical attention may constitute a
violation of the Eighth Amendment “if the denial amounts to
deliberate indifference to serious medical needs of the
prisoners.” Id. at 1111 (citation omitted). However, we
remanded the plaintiffs’ claim that the defendants placed “an
unconstitutional degree of reliance on MTAs [medical
technical assistants], registered nurses (RNs) and inmate
workers.” Id. We explained:
Defendants respond that MTAs, RNs and
inmates are qualified to perform a number of
services. If plaintiffs correctly contend that
unqualified personnel regularly engage in
medical practice, precedent indicates that the
prison health care delivery system may reflect
deliberate indifference to plaintiffs’ medical
needs. Therefore, we must remand for entry
mid-level staffing in the prison, improved
transportation, and an adequate plan for medical
treatment in the community, the approach taken by the
State would be constitutionally permissible. Before the
district judge ordered the prison to hire in-house
physicians and effectively scrap its approach to medical
services, he should have first determined that this
approach could not meet the constitutional minimum.
Absent such a finding, the district court should have
ordered the prison officials to improve the in-house
staffing and procedures within the framework of the
penitentiary’s approach to medical services.
Hoptowit, 682 F.2d at 1254.
DOE V. KELLY 27
of explicit factual findings regarding the
nature of services performed by MTAs, RNs,
and inmates, their level of medical
qualification, and the level of qualification
required to adequately render the services that
they perform.
Id. at 1111–12 (citation omitted). Thus, not all use of
“unqualified” medical personnel is prohibited by the
Constitution. Rather, Toussaint proscribes having
“unqualified personnel regularly engage in medical practice.”
We find the third case cited by Plaintiffs, Gibson, to be so
different from the case before us as to have little application.
290 F.3d 1175. Stephen Gibson, who suffered from manic
depressive disorder, died of a heart attack while resisting
being moved to a special watch cell in the county jail. Id. at
1181–83. His wife and children filed a § 1983 due process
action against the Washoe County Sheriff’s Department
alleging excessive force, deliberate indifference to Stephen’s
serious mental health condition, and that the deputies’ actions
resulted from the practices of the Sheriff’s Department. Id.
at 1184. The district court granted summary judgment for the
defendants. Id. at 1185. We reversed in part, holding that the
County, but not the individual deputies, could be liable for
deliberate indifference. Plaintiffs cite Gibson as establishing
a right, at the intake stage, “to competent treatment
encompass[ing] a right to prompt screening by medical staff,
which is necessary to identify health emergencies, medication
needs, and contagious diseases requiring quarantine.”
Plaintiffs overlook that, in Gibson, we determined that the
County’s potential liability for deliberate indifference was
based on review of the County’s past practices and its
28 DOE V. KELLY
policies.7 The record before us does not contain similar
evidence of deliberate indifference by the Border Patrol to the
detainees’ medical needs.
Moreover, while Plaintiffs are entitled to adequate
medical care, our precedent does not require that all stages of
medical care be provided by trained medical staff. Rather,
our opinions in Hoptowit and Toussaint held that, before
directing an agency to retain medical personnel, a court must
first evaluate whether the government’s proposed plan
adequately meets the detainees’ medical needs.
Defendants assert that Border Patrol agents have training
as first responders, and that some have training as EMTs and
Paramedics. They also represent that agents receive “training
to identify communicable diseases and regularly interact with
and observe detainees, and any detainee presenting any
symptoms of such conditions is transferred to a hospital and
provided medical care.”
The record does not indicate that the existing system of
medical care, as directed by the district court, is inadequate.
The most that Plaintiffs have shown is a low percentage of
7
We noted that it was the County’s policy that the jail’s medical unit
be staffed 24 hours a day by licensed medical personnel and that when
arrested, a person was to be medically screened. Gibson, 290 F.3d at
1183. For many years, the County “had employed . . . a full-time clinical
mental health worker at the jail to perform mental health screening,” but
at the time of Gibson’s death the County did not have a mental health
worker “because of a soured relationship between the jail’s medical staff
and the mental hospital.” Id. at 1184. We stated that “the record suggests
that the County not only knew that it had to treat the mentally ill in order
to avoid harm, but that it had made a practice of ignoring this need.” Id.
at 1191.
 DOE V. KELLY 29
the detainees received medical treatment (3%), and a few
incidents of inappropriate action.8 Indeed, there is no
evidence of Defendants denying critical medical care to a
detainee with dire consequences. As most detainees are
released within a day or two, medical care may have been
delayed, rather than denied.
In addition, Defendants assert that complying with TEDS
standards should provide detainees with adequate access to
their prescriptions because these standards provide for
detainees’ medications to “be self-administered under the
supervision of an officer/agent,” and both parties’ experts
agreed that “referring a patient to the hospital to obtain a U.S.
prescription” is acceptable.
Plaintiffs’ reply brief reveals little or no evidence of
inadequate medical treatment of detainees. Plaintiffs
question whether Border Patrol agents really receive training
as first responders and note that very few have training as
EMTs and Paramedics. This may be true, but says nothing
about the adequacy of medical care currently delivered.
Plaintiffs argue that it cannot be true that all medical issues
are referred to the hospital when medical treatment is needed,
8
Plaintiffs relate instances where: (1) the agents withheld a pregnant
woman’s medication even though she yelled in pain, and told her not to
cry because she was just going to be deported; (2) a woman’s medication
for an ovarian cyst was confiscated and withheld for the 12 hours she was
detained; (3) the government confiscated a woman’s migraine-headache
medicine after she turned herself in to the Border Patrol; and (4) the
government ignored a man’s plea for the prescription medication he
needed to treat a painful heart condition. Accepting that these actions
were wrong, Plaintiffs have not shown that the errors were not corrected.
Moreover, they are not sufficient to establish a practice or policy that
requires preliminary injunctive relief.
30 DOE V. KELLY
because only 527 out of 17,000 detainees were referred to the
hospital. But this low number is not unreasonable given that
over half of the detainees are processed in less than 24 hours.
Plaintiffs also argue that Defendants overstate their expert’s
claims concerning their ability to identify and treat
communicable diseases. But this is not evidence that
detainees with symptoms of a communicable disease are not
identified, segregated, and treated, if necessary. Finally,
Plaintiffs challenge whether the practice of confiscating
medications at intake is an acceptable practice, and argue that
hearsay declarations concerning Plaintiffs’ medication claims
are admissible at a preliminary injunction hearing. Again,
this is not evidence that Defendants have not provided, or will
not provide, adequate medical care.
We do not question that Plaintiffs have real and
substantial concerns with the adequacy of the medical care
provided to detainees. Rather, we hold only that Plaintiffs
have not shown that the district court abused its discretion in
determining, as a preliminary matter, that Defendants, by
complying with the TEDS standards, are providing adequate
medical care. Plaintiffs have not carried their burden of
showing that the district court’s decision is “illogical,
implausible, or without support in inferences that may be
drawn from the record.” Hinkson, 585 F.3d at 1262.
IV. CONCLUSION
This litigation arises out of the influx of detainees in the
Tucson Sector of the U.S. Border Patrol in 2015. The district
court carefully considered Plaintiffs’ allegations of
constitutional violations, recognized the guidance provided
by the Supreme Court in Bell, 441 U.S. 520, and issued a
limited preliminary injunction requiring Defendants to
DOE V. KELLY 31
provide detainees with mats and blankets after 12 hours.
Defendants have failed to show that, in doing so, the district
court misapprehended Bell or that the preliminary injunction
is overly rigid or burdensome. We also find unpersuasive
Plaintiffs’ assertions that the district court should have
required Defendants to provide detainees with beds, showers,
and medical treatment provided by medical professionals.
Plaintiffs have not shown that the district court’s
determinations were “illogical, implausible, or without
support in inferences that may be drawn from the record.”
Hinkson, 585 F.3d at 1262. The district court recognized the
unique mission of the Border Patrol and, at least for the
purposes of a preliminary injunction, reasonably balanced the
government’s interests and the detainees’ constitutional
rights. The district court’s orders are AFFIRMED.