Order On Motion

Case 1:21-cv-00268-JAO-KJM Document 37 Filed 07/13/21 Page 1 of 69 PageID #:
1236
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ANTHONY CHATMAN, FRANCISCO CIVIL NO. 21-00268 JAO-KJM

ALVARADO, ZACHARY
GRANADOS, TYNDALE MOBLEY, ORDER (1) GRANTING
and JOSEPH DEGUAIR, individually PLAINTIFFS’ MOTION FOR
and on behalf of all others similarly PROVISIONAL CLASS
situated, CERTIFICATION AND (2)
GRANTING IN PART AND
Plaintiffs, DENYING IN PART PLAINTIFFS’
MOTION FOR PRELIMINARY
vs. INJUNCTION AND TEMPORARY
RESTRAINING ORDER
MAX N. OTANI, Director of State of
Hawai‘i, Department of Public Safety, in
his official capacity,
Defendant.
ORDER (1) GRANTING PLAINTIFFS’ MOTION FOR PROVISIONAL

CLASS CERTIFICATION AND (2) GRANTING IN PART AND DENYING
IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
AND TEMPORARY RESTRAINING ORDER
This putative class action concerns the alleged conditions in Hawaii’s
prisons and jails that have contributed to multiple COVID-19 outbreaks. Plaintiffs
Anthony Chatman (“Chatman”), Francisco Alvarado (“Alvarado”), Zachary
Granados (“Granados”), Tyndale Mobley (“Mobley”), and Joseph Deguair
(“Deguair”) (collectively, “Plaintiffs”) contend that the Department of Public
Safety (“DPS”), headed by Defendant Max Otani (“Defendant”), has mishandled

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the pandemic and failed to implement its Pandemic Response Plan (“Response
Plan”) in violation of their Eighth and Fourteenth Amendment rights. Plaintiffs
seek provisional class certification and request a temporary restraining order and
preliminary injunction; namely, the appointment of a special master to oversee the
development and implementation of Plaintiffs’ proposed response plan. For the
following reasons, the Court GRANTS Plaintiffs’ Motion for Provisional Class
Certification (“Class Certification Motion”), ECF No. 20, and GRANTS IN PART
AND DENIES IN PART Plaintiffs’ Motion for Preliminary Injunction and
Temporary Restraining Order (“Injunction Motion”). ECF No. 6.
Defendant is ORDERED to immediately implement and adhere to DPS’s
Response Plan at all eight DPS facilities and comply with the specific conditions
outlined herein.
BACKGROUND
I. Factual History1
Hawaii’s state prisons and jails have been plagued by COVID-19 outbreaks
at five of its eight facilities, resulting in the infection of more than 50% of the
inmate population (1,532 inmates out of a population of approximately 3,000) and
272 DPS staff, and seven deaths. ECF No. 18 (“SAC”) ¶¶ 1–2, 113–14; see also

1
The facts are from the Second Amended Class Action Complaint for Injunctive
Relief and Declaratory Judgment (“SAC”), unless otherwise indicated.
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http://dps.hawaii.gov/blog/2020/03/17/coronavirus-covid-19-information-and-
resources/ (last visited July 13, 2021).
The first outbreak occurred at Oahu Community Correctional Center
(“OCCC”) in August 2020, and to date, OCCC has had 452 cases of COVID-19.
SAC ¶ 102.
In November 2020, Waiawa Correctional Facility (“Waiawa”) experienced
an outbreak, causing 90% of the inmate population to contract COVID-19. Id.
¶ 103. During the outbreak, dirty clothes from Waiawa were laundered at Halawa
Correctional Facility (“Halawa”) by inmates and staff, and Halawa staff were
forced to work at Waiawa due to staff shortages there. Id. ¶ 104. These practices
resulted in an outbreak at Halawa, where 544 inmates became infected and seven
died from COVID-19. Id. ¶ 105.
In March 2021, an outbreak at Maui Community Correctional Center
(“MCCC”) resulted in 100 inmate COVID-19 infections, which represents one-
third of MCCC’s inmate population. Id. ¶ 106.
The most recent outbreak occurred at Hawai‘i2 Community Correctional
Center (“HCCC”), beginning in late May 2021. Id. ¶ 107. Within three weeks,

2
Plaintiffs misidentify this as Hilo Correctional Community Center. SAC ¶ 4.
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two-thirds of the inmate population contracted COVID-19. Id. Twenty DPS staff
and 228 pretrial detainees tested positive for COVID-19 during this period.3 Id.
¶ 5. Plaintiffs attribute this rapid and extensive spread to the allegedly unsanitary
conditions in holding areas at HCCC, most notably a room known as the
“fishbowl.” Id. The fishbowl is approximately 31.5 feet by 35.3 feet4 and 40 to 60
pretrial detainees have been housed there, with no toilet or running water, causing
detainees to urinate and sometimes defecate in the room. Id. ¶¶ 5–6; ECF No. 22-2
¶ 38.
A. Plaintiffs
Plaintiffs are currently incarcerated or detained at DPS correctional facilities
in Hawai‘i.
1. Anthony Chatman
Chatman has been incarcerated at Halawa since July 2019. SAC ¶ 123.
While Chatman was housed in module 4A-2 in December 2020, two inmates who
tested positive for COVID-19 were placed in his quad, then-designated a COVID-
negative quad, and allowed to mingle with other inmates in the quad without
masks. Id. ¶¶ 124, 127–28. Nearly all inmates in the quad tested positive for

3
Defendant does not dispute these figures.
4
The SAC identifies the dimensions as 30 feet by 30 feet. SAC ¶ 5.
4

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COVID-19 shortly thereafter, including Chatman’s roommate. Id. ¶ 129.
Chatman’s roommate nevertheless remained in their cell, and Chatman then
contracted COVID-19. Id. ¶¶ 130–31. He too stayed in the cell, “sick as a dog,”
without receiving meaningful medical treatment. Id. ¶ 131. Chatman claims that
upon his departure from his cell, it was not cleaned before the next occupant
moved in. Id. ¶ 132.
Chatman filed a grievance after contracting COVID-19 and appealed each
denial to exhaust his administrative remedies. Id. ¶¶ 133–34. Despite the COVID-
19 outbreak at Halawa, Chatman has yet to see any social distancing practices —
during recreation and dining, or in the common areas and cells — and reports that
60 people eat shoulder to shoulder in an approximately 400 square foot room. Id.
¶¶ 135–36.
2. Francisco Alvarado
Alvarado, a 52 year old inmate with lupus, was previously incarcerated at
Halawa from 2019 to March 2021, and is currently incarcerated at Kulani
Correctional Facility (“Kulani”). Id. ¶¶ 137–40. At Halawa, Alvarado was a
module clerk who prepared paperwork for inmates’ movement within the facility
and delivered meals to cells. Id. ¶ 141. He witnessed inmates remaining in their
cells after testing positive for COVID-19, comingling of COVID-positive inmates
with asymptomatic inmates, and transfer of asymptomatic inmates into unsanitized
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cells previously occupied by COVID-positive inmates. Id. ¶ 142. During meal
deliveries, Alvarado was exposed to COVID-positive inmates, who were not
forced to wear masks, through “open screen” cell doors. Id. ¶ 143.
When Alvarado contracted COVID-19 in December 2020, he requested
medical assistance but received little to none. Id. ¶¶ 144, 146. His underlying
medical condition caused him to sustain serious damage to his kidneys. Id. ¶ 145.
Alvarado filed a grievance regarding the conditions that caused him to contract
COVID-19 but he never received a response. Id. ¶¶ 146, 148–49. He was initially
informed that the COVID-19 outbreak created a backlog of grievances and was
instructed to file another grievance. Id. ¶ 150. However, between January and
March 2021, he was repeatedly told that no grievance forms were available. Id.
¶¶ 151–53.
3. Joseph Deguair
Deguair, an asthmatic, has been incarcerated at HCCC since December 4,
2020. Id. ¶¶ 154–55. Before the May 2021 COVID-19 outbreak at HCCC,
Deguair noticed an absence of mitigation efforts to prevent the spread of COVID-
19. Id. ¶ 157. For example, he reports seeing symptomatic detainees housed with
those who had not been tested for COVID-19, and social interaction between
COVID-positive detainees and the general population during recreation time. Id.
¶¶ 157–59.
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Due to these conditions, Deguair requested an inmate grievance form almost
every day during the last two weeks of May to file a grievance. Id. ¶ 160.
Multiple Adult Corrections Officers (“ACOs”) told Deguair there were no forms
and that he could not file a grievance. Id. ¶¶ 161–62. Since testing positive for
COVID-19 on June 1, 2020, Deguair has requested a grievance form daily, only to
be told none were available. Id. ¶¶ 163–64. ACOs told Deguair that there was
nothing they could do to help him obtain a form or file a grievance. Id. ¶¶ 165,
167. Even when he attempted to file a grievance by phone, he was told during the
call that he could not file a grievance and would have to wait. ECF No. ¶ 166.
4. Tyndale Mobley
Mobley received a COVID-19 vaccine prior to his incarceration at HCCC.
Id. ¶¶ 168, 170. COVID-positive inmates were initially contained within the main
HCCC building, though staff moved freely without masks between the main
building and the unit housing Mobley. Id. ¶¶ 172–73. Mobley once confronted a
guard who returned from the main building without a mask, and she responded that
she did not want or need to wear a mask. Id. ¶ 174. This guard contracted
COVID-19. Id. ¶ 174.b.
At the beginning of June 2021, two inmates with COVID-19 were housed in
Mobley’s cell block. Id. ¶ 175. Two additional COVID-positive inmates were
moved into the cell block and the four infected inmates were instructed to stay on
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the opposite end of the room from the non-infected inmates. Id. ¶ 176. Nearly all
the inmates in the cell block then contracted COVID-19. Id. ¶ 177. Mobley and
the COVID-positive inmates shared restroom facilities and he saw no efforts by
staff to sanitize the facilities. Id. ¶¶ 178–79.
Mobley attempted to file grievances every day starting in late May or early
June 2021, but the guards said they had no grievance forms and that there was no
way to file a grievance. Id. ¶¶ 180–82, 184–85. Mobley was diagnosed with
COVID-19 on June 6, 2021. Id. ¶ 183.
5. Zachary Granados
Granados has been incarcerated at Waiawa since August 2020. Id. ¶ 186. In
November 2020, certain inmates housed in Waiawa’s building 9 displayed
COVID-19 symptoms. Id. ¶ 188. Upon testing positive in the medical unit, they
returned to building 9, where nearly every inmate later contracted COVID-19. Id.
¶ 188.a–c. Around the same time, inmate kitchen workers contracted COVID-19
so Granados, along with other inmates from building 10, filled in for the COVID-
positive kitchen workers. Id. ¶¶ 187, 189.a. The kitchen was not sanitized before
the building 10 inmates stepped in, and four days later, one of those inmates tested
positive for COVID-19. Id. ¶ 189.b–c.
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Guards in building 9 wore “hazardous materials” suits because building 9
housed the COVID-positive inmates. Id. ¶ 190. Granados saw the guards wear
these suits into building 10 to conduct head counts. Id. ¶ 191.
Approximately 30 COVID-positive inmates were transferred to building 10
from other buildings in mid-November 2020, after which Granados contracted
COVID-19. Id. ¶¶ 192–93. Granados was bedridden for one week as a result. Id.
¶ 194.
In early December 2020, Granados filed a grievance regarding Waiawa’s
conditions, followed by appeals after receiving responses. Id. ¶¶ 195–96.
B. DPS’s Management of COVID-19
In addition to the facilities housing Plaintiffs, DPS operates and manages
Kauai Community Correctional Center (“KCCC”), MCCC, OCCC, and the
Women’s Community Correctional Center (“WCCC”). Id. ¶ 43. Plaintiffs allege
that Defendant has mishandled and failed to manage outbreaks at its facilities
notwithstanding its Response Plan, which has been in place since March 2020. Id.
¶ 83. In particular, Plaintiffs identify the following deficiencies: (1) housing up to
60 residents/detainees in a single room; (2) failure to provide adequate water; (3)
failure to provide sanitary living conditions or proper hygiene; (4) failure to
separate COVID-positive inmates; (5) failure to properly quarantine new intakes;
(6) failure to communicate with DPS staff and inmates regarding proper COVID-
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19 protocols; (7) failure to protect elderly and medically vulnerable inmates; (8)
failure to allow adequate social distancing; (9) failure to provide personal
protective equipment or enforce proper mask wearing; and (10) failure to
consistently or adequately evaluate, monitor, and treat inmates with COVID-19
symptoms. Id. ¶¶ 92–122.
Plaintiffs propose the following classes and subclasses:
Post-Conviction Class: All present and future sentenced

prisoners incarcerated in a Hawai‘i prison.
Post-Conviction Medical Subclass: Includes all present and

future Post-Conviction Class members whose medical condition
renders them especially vulnerable to COVID-19 as determined
by guidelines promulgated by the CDC. See U.S. Centers for
Disease Control and Prevention, People Who Are At Higher
Risk (last viewed June 9, 2021) https://www.cdc.gov/
coronavirus/2019-ncov/need-extra-precautions/people-with-
medical-conditions.html.
Pretrial Class: All present and future pretrial detainees

incarcerated in a Hawai‘i jail.
Pretrial Medical Subclass: Includes all present and future

Pretrial Class members whose medical condition renders them
especially vulnerable to COVID-19 as determined by guidelines
promulgated by the CDC. See U.S. Centers for Disease Control
and Prevention, People Who Are At Higher Risk (last viewed
June 9, 2021) https://www.cdc.gov/coronavirus/2019-ncov/
need-extra-precautions/people-with-medical-conditions.html.
Id. ¶ 198.
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II. Procedural History
Plaintiffs initiated this action on April 28, 2021, in the Circuit Court of the
First Circuit, State of Hawai‘i. ECF No. 1-1. On June 8, 2021, Defendants and the
other originally named defendants removed the action. ECF No. 1. Plaintiffs
immediately filed a First Amended Class Action Complaint for Injunctive Relief
and Declaratory Judgment (“FAC”) and the Injunction Motion. ECF Nos. 5–6.
On June 18, 2021, Plaintiffs filed a Supplement to the Injunction Motion.
ECF No. 14.
On June 22, 2021, Plaintiffs filed the SAC pursuant to a stipulation entered
into by the parties and approved by Magistrate Judge Kenneth J. Mansfield. ECF
Nos. 17–18. The SAC asserts three causes of action pursuant to 42 U.S.C. § 1983
and 28 U.S.C. § 2241: unconstitutional punishment in violation of the Fourteenth
Amendment (Count One), unconstitutional conditions of confinement in violation
of the Fourteenth Amendment (Count Two), and unconstitutional conditions of
confinement in violation of the Eighth Amendment (Count Three). SAC ¶¶ 209–
44. The first claim applies to the pretrial subclass, the second claim applies to the
pretrial class, and the third claim applies to the post-conviction subclass. Id. at 53,
57, 59.
Plaintiffs request injunctive relief to require Defendant to implement the
following response plan (“Proposed Response Plan”):
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a. Physically distance all residents from one another and staff

within DPS correctional facilities, which imposes at least six
feet of distance between individuals at all times;
b. Provide all residents in DPS custody sanitary living

conditions (i.e., ensure regular access to a working toilet,
sink, and drinking water);
c. Identify residents who may be high-risk for COVID-19

complications, in accordance with guidelines from the CDC,
and prioritize these individuals for medical isolation or
housing in single cells;
d. On a daily basis, thoroughly and professionally disinfect and

sanitize the DPS correctional facilities;
e. Provide hygiene supplies that are not watered down,

including supplies to wash hands and disinfect common areas,
to inmates at all times and free of charge;
f. Implement policies and procedures requiring that common

areas be disinfected between uses;
g. Provide adequate personal protection equipment and

sanitizer, including but not limited to masks, to all staff
members and residents (and ensure that these materials are
replaced at least every third day);
h. Implement a testing procedure to identify residents who are

possibly carrying COVID-19, including testing to identify
asymptomatic carriers and those with one or more symptoms
of COVID-19;
i. Implement a quarantine and isolation procedure that is in line

with CDC guidelines for all individuals exposed to COVID-
19 and new intakes to DPS correctional facilities;
j. Take particularly heightened precautions with respect to food

handling and delivery, such as ensuring that people who come
into contact with food are not displaying any potential
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symptoms of COVID-19, have not recently been in contact

with people displaying potential symptoms of COVID-19,
and people who come into contact with food wear appropriate
personal protective equipment at all times when in contact
with food;
k. Provide regular, accurate, up-to-date educational and

informational memorandum to DPS staff and inmates
regarding the status of how COVID-19 is affecting the
facility, including what measures employees and inmates
must take in the event of an outbreak;
l. Develop comprehensive plans to educate and promote

COVID-19 vaccination for all DPS residents and staff and
ensure residents are provided regular access to vaccines; []
m. Prohibit DPS employees from restricting access to inmate

grievance forms or from preventing the submission of
grievances, and prohibit retaliation against any DPS
employee or inmate for making complaints or filing
grievances regarding conditions or practices in DPS facilities
that promote the spread of COVID-19[; and]
n. In accordance with CDC guidelines, ensure that medical

isolation of inmates with COVID-19 is distinct from punitive
solitary confinement of incarcerated/detained individuals,
both in name and in practice. This includes making efforts—
where feasible—to provide similar access to radio, TV,
reading materials, personal property, and the commissary as
would be available in regular housing units.
Id. at 61–64.
Plaintiffs pray for certification of the proposed classes and subclasses, entry
of judgment declaring Defendant’s practices and actions violated the Constitution,
entry of an order requiring Defendant to execute the Proposed Response Plan,
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appointment of a special master to oversee the development and implementation of
the Proposed Response Plan, and attorneys’ fees and costs. Id. at 65.
Defendant filed his Opposition and Plaintiffs filed their Reply to the
Injunction Motion on June 23 and 25, 2021, respectively. ECF Nos. 22, 26.
On June 28, 2021, Defendant filed his Opposition to the Class Certification
Motion. ECF No. 28. Plaintiffs filed their Reply on July 1, 2021. ECF No. 29.
The Court held a hearing on the Injunction Motion and Class Certification
Motion on July 8, 2021. ECF No. 35.
LEGAL STANDARDS
I. Class Certification
Provisional class certification may be granted for the purposes of
preliminary injunction proceedings. See Al Otro Lado v. Wolf, 952 F.3d 999, 1005
n.4 (9th Cir. 2020) (citation omitted). “Class actions are ‘an exception to the usual
rule that litigation is conducted by and on behalf of the individual named parties
only.’” Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 993 F.3d
774, 784 (9th Cir. 2021) (quoting Comcast Corp. v. Behrend, 569 U.S. 27, 33
(2013)). As such, Federal Rule of Civil Procedure (“FRCP”) 23 “imposes
‘stringent requirements’ for class certification.” Id. (quoting Am. Express Co. v.
Italian Colors Rest., 570 U.S. 228, 234 (2013)). “The party seeking class
certification has the burden of affirmatively demonstrating that the class meets the
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requirements of Federal Rule of Civil Procedure 23.” Mazza v. Am. Honda Motor
Co., 666 F.3d 581, 588 (9th Cir. 2012) (citation omitted). “[T]he failure of any one
of Rule 23’s requirements destroys the alleged class action.” Rutledge v. Elec.
Hose & Rubber Co., 511 F.2d 668, 673 (9th Cir. 1975) (citation omitted). A party
requesting class certification must first satisfy FRCP 23(a)’s numerosity,
commonality, typicality, and adequacy of representation requirements.5 See Olean,
993 F.3d at 784 (citing Leyva v. Medline Indus., 716 F.3d 510, 512 (9th Cir. 2013);
Fed. R. Civ. P. 23(a)).
If all four of these prerequisites are met, Plaintiffs must then “satisfy through
evidentiary proof at least one of the provisions of Rule 23(b).” Comcast, 569 U.S.
at 33. Pertinent here, the Court can certify an FRCP 23(b)(2) class if “the party

5
FRCP 23(a) provides:
One or more members of a class may sue or be sued as representative

parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is

impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the
claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the
interests of the class.
Fed. R. Civ. P. 23(a).

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opposing the class has acted or refused to act on grounds that apply generally to the
class, so that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
“When considering whether to certify a class, it is imperative that district
courts ‘take a close look at whether common questions predominate over
individual ones’” and “perform a ‘rigorous analysis’ to determine whether this
exacting burden has been met before certifying a class.” Olean, 993 F.3d at 784
(citations omitted). “Courts must resolve all factual and legal disputes relevant to
class certification, even if doing so overlaps with the merits.” Id. (citing Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011)). However, “Rule 23 grants courts
no license to engage in free-ranging merits inquiries at the certification stage.”
Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013). Such
inquiries “may be considered to the extent—but only to the extent—that they are
relevant to determining whether the Rule 23 prerequisites for class certification are
satisfied.” Id. (citations omitted).
II. Temporary Restraining Order/Preliminary Injunction
The standards governing temporary restraining orders (“TRO”) and
preliminary injunctions are “substantially identical.” Washington v. Trump, 847
F.3d 1151, 1159 n.3 (9th Cir. 2017) (citation omitted); see Kaiser Found. Health
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Plan, Inc. v. Queen’s Med. Ctr., Inc., 423 F. Supp. 3d 947, 951 n.1 (D. Haw.
2019).
FRCP 65(a) allows courts to issue preliminary injunctions. “[The] purpose
of a preliminary injunction . . . is to preserve the status quo and the rights of the
parties until a final judgment issues in the cause.” Ramos v. Wolf, 975 F.3d 872,
887 (9th Cir. 2020) (alterations in original) (internal quotation marks and citation
omitted).
To obtain preliminary injunctive relief, a plaintiff must establish: (1) a
likelihood of success on the merits, (2) a likelihood of irreparable harm in the
absence of preliminary relief, (3) the balance of equities tips in favor of the
plaintiff, and (4) an injunction is in the public interest. See Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). Where, as here, the
government is a party, the last two factors merge. See Drakes Bay Oyster Co. v.
Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).
Mandatory injunctions ordering affirmative action by a defendant, go “well
beyond simply maintaining the status quo . . . [and are] particularly disfavored.”
Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879
(9th Cir. 2009) (quoting Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir.
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1979), as amended (1980)).6 Mandatory injunctions, are “subject to a higher
standard than prohibitory injunctions,” but “are permissible when ‘extreme or very
serious damage will result’ that is not ‘capable of compensation in damages,’ and
the merits of the case are not ‘doubtful.’” Hernandez v. Sessions, 872 F.3d 976,
999 (9th Cir. 2017) (citation omitted). “The court’s finding of a strong likelihood
that plaintiffs would succeed on the merits of their claims also evidences a
conclusion that the law and facts clearly favor plaintiffs, meeting the requirement
for issuance of a mandatory preliminary injunction.” Katie A., ex rel. Ludin v. Los
Angeles County, 481 F.3d 1150, 1157 (9th Cir. 2007) (citation omitted).
District courts should exercise caution in issuing injunctive orders and avoid
becoming “enmeshed in the minutiae of prison operations.” Farmer v. Brennan,
511 U.S. 825, 846–47 (1994) (quoting Bell v. Wolfish, 441 U.S. 520, 562 (1979)).
Where appropriate, courts may exercise their discretion “by giving prison officials
time to rectify the situation before issuing an injunction.” Id. at 847.
DISCUSSION
I. Class Certification
Plaintiffs request provisional certification of their proposed classes and
subclasses for the purposes of their requested preliminary injunctive relief and ask

6
In contrast, a “prohibitory injunction prohibits a party from taking action and
‘preserves the status quo pending a determination of the action on the merits.’”
Marlyn Nutraceuticals, 571 F.3d at 878–79 (brackets and citations omitted).
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that they be appointed as class representative and that their counsel be appointed as
class counsel. ECF No. 20-1 at 7, 8. They argue that class certification is
appropriate because they satisfy the requirements set forth in FRCP 23(a) and
23(b)(2). Id. at 13. Defendant challenges certification for lack of commonality
and typicality,7 and he also contends that certification pursuant to FRCP 23(b)(2) is
inappropriate.8 ECF No. 28 at 10, 15–16. The Court begins with FRCP 23(a)’s
prerequisites.
A. FRCP 23(a)
1. Numerosity
Numerosity is satisfied if “the class is so numerous that joinder of all
members is impracticable.” Fed. R. Civ. P. 23(a)(1). This requirement mandates
an “examination of the specific facts of each case and imposes no absolute

7
Defendant does not oppose numerosity or commonality at this time but reserves
the right to do so in response to any future motion for class certification. ECF No.
28 at 10 n.2.
8
Defendant further argues that the Class Certification Motion should be denied
because the Injunction Motion is tethered to the FAC and is therefore moot. ECF
No. 28 at 7 n.1. But it is unclear how the mooting of the Injunction Motion would
necessitate denial of the Class Certification Motion, which was filed after the SAC
to correspond with the allegations in the SAC. ECF No. 13 (“Plaintiffs are
directed to file their motion for provisional class certification after filing their
second amended complaint to ensure that the request pertains to the operative
pleading.”); ECF No. 12. Although class certification is sought concurrently with
the Injunction Motion to obtain class-wide relief, class certification can be decided
independently of the present request for injunctive relief.
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limitations.” Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318, 330 (1980). “[A]s a
general rule, classes of 20 are too small, classes of 20–40 may or may not be big
enough depending on the circumstances of each case, and classes of 40 or more are
numerous enough.” Handloser v. HCL Techs. Ltd., Case No. 19-CV-01242-LHK,
2021 WL 879802, at *5 (N.D. Cal. Mar. 9, 2021) (internal quotation marks and
citation omitted).
This requirement — uncontested by Defendant — is easily satisfied, as there
are nearly 3,000 residents housed at DPS facilities, see ECF No. 20-1 at 14, and the
joinder of these class members would be impracticable. Plaintiffs have therefore
satisfied the numerosity requirement.
2. Commonality
Commonality ensures that “there are questions of law or fact common to the
class.” Fed. R. Civ. P. 23(a)(2). FRCP 23(a)(2) is permissively construed. See
Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir. 2003) (quoting Hanlon v.
Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998), overruled on other grounds
by Wal-Mart, 564 U.S. 338). It requires class members’ claims to “‘depend upon a
common contention’ and that the ‘common contention, moreover, must be of such
a nature that it is capable of classwide resolution—which means that determination
of its truth or falsity will resolve an issue that is central to the validity of each one
of the claims in one stroke.’” Vaquero v. Ashley Furniture Indus., Inc., 824 F.3d
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1150, 1153 (9th Cir. 2016) (quoting Wal-Mart, 564 U.S. at 350). Critical to
certification “is not the raising of common questions—even in droves—but rather,
the capacity of a class-wide proceeding to generate common answers apt to drive
the resolution of the litigation.” Wal-Mart, 564 U.S. at 350 (internal quotation
marks and citation omitted). “The existence of shared legal issues with divergent
factual predicates is sufficient[.]” Staton, 327 F.3d at 953 (internal quotation
marks and citation omitted). Therefore, “[s]o long as there is ‘even a single
common question,’ a would-be class can satisfy the commonality requirement of
Rule 23(a)(2).” Parsons v. Ryan, 754 F.3d 657, 675 (9th Cir. 2014) (some internal
quotation marks and citations omitted).
Defendant challenges commonality on the basis that Plaintiffs are subject to
different policies applicable at their respective facilities and that their allegations
regarding a failure to implement policies will require fact-intensive inquiries.9
ECF No. 28 at 12–14. Plaintiffs acknowledge that they have different custody

9
To support this argument, Defendant submits declarations from the warden at
each DPS facility. Ironically, the wardens’ declarations reflect the adoption of
nearly identical policies across facilities. ECF Nos. 28-2 to 28-9 (taking the
pandemic seriously; educating inmates and staff about COVID-19, vaccinations,
sanitation, and hygiene; implementing enhanced cleaning schedule, social
distancing measures; suspending family and friend visitations; screening for
COVID-19 upon admission; identifying housing units for quarantine and medical
isolation; providing cloth masks, encouraging mask wearing for inmates, and
requiring mask wearing for staff; maintaining adequate supply of PPE; testing
protocols for COVID-19; and offering COVID-19 testing and vaccines at intake).
21

1257
statuses and are housed at multiple facilities with differing policies. ECF No. 20-1
at 18. But they argue that commonality is nevertheless satisfied because they share
a common set of facts and core questions of law: (1) they are confined at DPS
correctional facilities and are therefore subject to the same policies, procedures,
and customs that resulted in more than 1,500 inmates/detainees contracting
COVID-19; (2) they are unable to adhere to social distancing practices, per the
instruction of public health officials, due to the common conditions of confinement
provided by DPS; (3) they are subject to the same conditions that actively promote
the spread of COVID-19; (4) whether conditions at DPS facilities create a
substantial risk that those in custody will be infected with COVID-19; (5) whether
conditions at DPS facilities create a substantial risk that those infected with
COVID-19 will face serious illness, long-term physical damage, or death; (6) did
Defendant know, or should he have known, of this risk; and (7) is Defendant acting
with deliberate indifference of this risk. Id. at 20–21.
Central to this lawsuit is Defendant’s alleged failure to comply with its
Response Plan, and the resulting harm to DPS inmates/detainees. “[N]umerous
courts have concluded that the commonality requirement can be satisfied by proof
of the existence of systemic policies and practices that allegedly expose inmates to
a substantial risk of harm.” See Parsons, 754 F.3d at 681 (citations omitted). The
infrastructure or population variations among the DPS correctional facilities are of
22

1258
no consequence where, as here, there are many questions of fact and law common
to the class that are capable of class-wide resolution. See id. at 678 (“The putative
class and subclass members thus all set forth numerous common contentions
whose truth or falsity can be determined in one stroke: whether the specified
statewide policies and practices to which they are all subjected by ADC expose
them to a substantial risk of harm.” (citation omitted)). Consequently, the Court
concludes that Plaintiffs satisfy FRCP 23(a)(2).
3. Typicality
Typicality requires “the claims or defenses of the representative parties [to
be] typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “The
purpose of the typicality requirement is to assure that the interest of the named
representative aligns with the interests of the class.” Wolin v. Jaguar Land Rover
N. Am., LLC, 617 F.3d 1168, 1175 (9th Cir. 2010) (internal quotation marks and
citation omitted). Typicality is a permissive requirement so representative claims
need not be substantially identical; they are “typical” as long as “they are
reasonably coextensive with those of absent class members.” Just Film, Inc. v.
Buono, 847 F.3d 1108, 1116 (9th Cir. 2017) (internal quotation marks and citation
omitted). “Measures of typicality include ‘whether other members have the same
or similar injury, whether the action is based on conduct which is not unique to the
23

1259
named plaintiffs, and whether other class members have been injured by the same
course of conduct.’” Id. (some internal quotation marks and citation omitted).
Plaintiffs argue that they satisfy this requirement because their claims are
typical of the classes and subclasses they represent; they are individuals
incarcerated or detained at DPS facilities who face a substantial risk of contracting
COVID-19 if measures are not immediately implemented and their claims concern
Defendant’s alleged failure to effectuate adequate health measures in response to
COVID-19. ECF No. 20-1 at 22. Defendant counters that Plaintiffs have also
failed to demonstrate typicality because DPS operates multiple facilities across
four islands, each managed by its own warden, with different physical
configurations, housing styles, classes and types of inmates, and capacity levels.
ECF No. 28 at 14. In short, Defendant contends that Plaintiffs cannot satisfy
typicality because they “are not subject to the same confinement under the same
allegedly unconstitutional conditions caused by the same entity.” Id. at 15. The
Court is not persuaded.
Defendant fails to apply the relevant standard. Typicality merely requires
that representative claims are reasonably coextensive with absent class members’
claims, which they are here. Considering the relevant measures — whether other
class members have experienced the same or similar injury, whether the alleged
conduct is not unique to the named plaintiffs, and whether other class members
24

1260
have suffered injury as a result of the same course of conduct — Plaintiffs satisfy
typicality. The unnamed class members have experienced the same or similar
injuries by the same alleged course of conduct. Defendant’s alleged failure to
implement and follow COVID-19 procedures has resulted in outbreaks within the
facilities and a substantial risk of contracting COVID-19. That is, Plaintiffs’
injuries “arose ‘from the same event or practice or course of conduct that gave rise
to the claims of other class members and his claims were based on the same legal
theory.’” Ramirez v. TransUnion LLC, 951 F.3d 1008, 1033 (9th Cir. 2020)
(brackets and citations omitted), rev’d on other grounds, No. 20-297, 594 U.S. __,
141 S. Ct. 2190 (2021). Thus, Plaintiffs satisfy the typicality requirement.
4. Adequacy of Representation
FRCP 23(a)(4) requires “the representative parties [to] fairly and adequately
protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). The Court must
“carefully scrutinize the adequacy of representation in all class actions.” Rutledge,
511 F.2d at 673 (internal quotation marks and citation omitted); see also Daly v.
Harris, 209 F.R.D. 180, 196 (D. Haw. 2002) (citing id.). The purpose of the
adequacy of representation requirement is to ensure that absent class members are
“afforded adequate representation before entry of a judgment which binds them.”
Hanlon, 150 F.3d at 1020 (citation omitted). Two inquiries determine whether
representation will be fair and adequate: (1) whether “the named plaintiffs and
25

1261
their counsel have any conflicts of interest with other class members” and (2)
whether “the named plaintiffs and their counsel prosecute the action vigorously on
behalf of the class.” Id. (citation omitted).
Plaintiffs submit that they do not have any conflicts with the unnamed class
members, they share a common interest in receiving adequate protection against
COVID-19, the requested relief would benefit all class members equally, and they
will vigorously prosecute the interests of the class through qualified counsel. ECF
No. 20-1 at 23. Plaintiffs also argue that their counsel have extensive experience
litigating complex class actions and civil rights litigation, including cases regarding
unconstitutional corrections systems, and will zealously advocate on behalf of
Plaintiffs and the class members. Id. at 23–24. In his Opposition, Defendant did
not refute Plaintiffs’ or counsel’s ability to adequately represent the classes. The
Court concludes that Plaintiffs and their counsel do not have conflicts with other
class members and that they will vigorously prosecute the classes’ interests, as they
have to date.
Because Plaintiffs have satisfied FRCP 23(a)’s prerequisites, the Court now
turns to FRCP 23(b)(2).
B. FRCP 23(b)(2)
Plaintiffs request certification of an injunctive relief class. FRCP 23(b)(2)
authorizes a court to certify an injunctive relief class when “the party opposing the
26

1262
class has acted or refused to act on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory relief is appropriate respecting
the class as a whole.” Fed. R. Civ. P. 23(b)(2). “[O]nly where the primary relief
sought is declaratory or injunctive” is class certification appropriate under FRCP
23(b)(2). Ellis v. Costco Wholesale Corp., 657 F.3d 970, 986 (9th Cir. 2011)
(internal quotation marks and citation omitted). “The key to the (b)(2) class is ‘the
indivisible nature of the injunctive or declaratory remedy warranted—the notion
that the conduct is such that it can be enjoined or declared unlawful only as to all
of the class members or as to none of them.’” Wal-Mart, 564 U.S. at 360 (citation
omitted). Plaintiffs can satisfy FRCP 23(b)(2) if “class members complain of a
pattern or practice that is generally applicable to the class as a whole.” Rodriguez
v. Hayes, 591 F.3d 1105, 1125 (9th Cir. 2010) (internal quotation marks and
citations omitted).
Plaintiffs argue that certification of FRCP 23(b)(2) classes is appropriate
because they request the same uniform relief due to DPS’s failure to mitigate the
spread of COVID-19 in its facilities and an injunction would accord the same relief
to all class members. ECF No. 20-1 at 25. Defendant contends that the requested
injunctive relief is not amenable to certification under FRCP 23(b)(2) due to the
variation in the implementation between facilities of DPS’s otherwise uniform
27

1263
Response Plan, attributable to the facilities’ configurations, security levels, and
populations. ECF No. 28 at 16.
Here, Plaintiffs challenge the conditions of their confinement under the
Eighth and Fourteenth Amendments and Defendant’s failure to mitigate the spread
of COVID-19 in DPS facilities. They seek injunctive relief requiring Defendant to
implement protocols and adhere to procedures to prevent COVID-19 transmission.
ECF No. 14-1 at 2–4. This relief conforms with FRCP 23(b)(2). See Parsons, 754
F.3d at 688–89. Contrary to Defendant’s assertion that an injunctive class cannot
be certified because of the differences between facilities, the class members are
allegedly suffering the same or similar injury that can be alleviated for all by
uniform changes in and/or adherence to DPS policies and practices statewide. See
id. at 689 (citations omitted). Accordingly, Plaintiffs have satisfied FRCP
23(b)(2).
C. Breadth of Class Definitions
Defendant also argues that Plaintiffs’ class definitions are overbroad
because other cases certifying classes did not involve classes of inmates at all
correctional facilities within a given state, and the classes should not include
vaccinated inmates or those who recovered from COVID-19. ECF No. 28 at 16–
19. These arguments are without merit.
28

1264
Defendant’s effort to draw a distinction based on geographic proximity or
number of facilities affected is misplaced and disregards pertinent facts, such as
class size and the impracticability of joinder when class members are
geographically separated across counties. In fact, the cases relied upon by
Defendant, see ECF No. 28 at 17, support certification here. See, e.g., Roman v.
Wolf, ED CV 20-00768 TJH (PVCx), 2020 WL 3869729, at *2, *4 (C.D. Cal. Apr.
23, 2020) (provisionally certifying class covering 1,370 detainees at Adelanto
Immigration and Customs Enforcement Processing Center); Ahlman v. Barnes, 445
F. Supp. 3d 671, 684–85 (C.D. Cal. 2020) (“Ahlman I”) (noting that there are 3,047
individuals incarcerated at the Orange County Jail and estimating that “both the
Pre-Trial and Post-Conviction classes likely have over 1,000 individuals” and
“about 1,200 inmates will be members of the Disability Subclass and at least 1,200
will be members of the Medically-Vulnerable Subclass”); Gayle v. Meade, __ F.
Supp. 3d __, 2020 WL 3041326, at *13 (S.D. Fla. June 6, 2020) (“Gayle I”)
(“Petitioners are filing on behalf of a putative class of approximately 1400
individuals. In addition to the large number of members here, the class is also
geographically dispersed across different counties in South Florida—detainees are
being held in three ICE detention centers. The size and geographical diversity of
the class renders joinder of all members impracticable.” (citation omitted)).
29

1265
Class certification in these cases did not turn on the number of facilities
affected, nor did they prohibit certification of a classes implicating all facilities
within a state. The number of inmates affected here is similar to classes certified
by other courts, whether at one facility or multiple facilities. Moreover, the
geographic separation across multiple islands, coupled with the inmates’ frequent
transfer between facilities, demonstrate that joinder is particularly impractical.10
The class definitions in other cases where certification was granted were also
equally as broad as Plaintiffs’ proposed definitions. See Roman v. Wolf, 977 F.3d
935, 944 (9th Cir. 2020) (“We further hold that the district court did not err by
provisionally certifying a class of all Adelanto detainees. The alleged due process
violations exposed all Adelanto detainees to an unnecessary risk of harm, not only
those who are uniquely vulnerable to COVID-19 or who are not subject to
mandatory detention.”); Criswell v. Boudreaux, No. 1:20-cv-01048-DAD-SAB,
2020 WL 5235675, at *5, *12, *15 (E.D. Cal. Sept. 2, 2020) (provisionally
certifying a class of “all people who are now, or in the future will be, incarcerated
in Tulare County Jails,” with approximately 1,086 people then incarcerated at three
facilities); Parsons, 754 F.3d at 678 (affirming a “class of ‘all prisoners who are

10
See Gayle I, 2020 WL 3041326, at *13 (identifying “geographic diversity of the
class members” as one of the factors to consider in deciding “whether joinder of all
members is practicable in view of the numerosity of the class”).
30

1266
now, or will in the future be, subjected to the medical, mental health, and dental
care policies and practices of the ADC’”).
The Court already rejected Defendant’s argument that the differences
between facilities precludes certification and is again unpersuaded by Defendant’s
contention that these differences render the class definitions unworkable.
Regardless of the facilities’ distinctions, all class members would obtain relief
from the issuance of the proposed injunction. See Parsons, 754 F.3d at 689
(“[C]onsidering the nature and contours of the relief sought by the plaintiffs, the
district court did not abuse its discretion in concluding that a single injunction and
declaratory judgment could provide relief to each member of the proposed class
and subclass.” (footnote omitted)).
The Court also declines to exclude vaccinated inmates and those who
previously contracted COVID-19 from the proposed classes and subclasses.11
Medical and scientific data continue to evolve, with conflicting information about
the length of protective immunity following COVID-19 infection and the efficacy

11
The Response Plan treats vaccinated individuals the same as unvaccinated
individuals for the purposes of quarantine following exposure to someone with
suspected or confirmed COVID-19, citing the “turnover of inmates, higher risk of
transmission, and challenges in maintaining recommended physical distancing in
correctional settings[.]” ECF No. 22-12 at 45. This undercuts Defendant’s request
to exclude vaccinated inmates.
31

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of vaccines against the new variants.12 For the purposes of provisional class
certification and preliminary injunctive relief, the Court certifies the classes
proposed by Plaintiffs. If circumstances change during the course of litigation, the
parties may request modification of the class definitions.
Having met FRCP 23(a)’s and 23(b)(2)’s requirements, Plaintiffs are entitled
to provisional class certification.
II. TRO/Preliminary Injunction13
A. Winter Factors
The Court now turns to the Winter factors to determine whether Plaintiffs
are entitled to a preliminary injunction. Plaintiffs urge the Court to review their
requested injunction as prohibitory, not mandatory, because they are requesting
maintenance of the status quo, defined by Defendant as DPS facilities

12
To illustrate, at least one Plaintiff contracted COVID-19 post vaccination. ECF
No. 26-10 (“Mobley Decl.”) ¶¶ 3, 15.
13
Defendant’s supposition that the Injunction Motion was mooted by the filing of
the SAC, asserted for the first time in opposition to the Class Certification Motion,
ECF No. 28 at 7 n.1, is unavailing. In assessing the Injunction Motion, the Court
evaluates the causes of action and relief requested in the SAC, which are
substantially similar to the FAC. So Defendant’s reliance on Lacey v. Maricopa
County, 693 F.3d 896 (9th Cir. 2012) (en banc), is misdirected. Given the
expedited nature of the request, judicial economy would not be served by ordering
Plaintiffs to file a renewed Injunction Motion, especially when Defendant
submitted his opposition after Plaintiffs filed the SAC and had an opportunity to
challenge a preliminary injunction based on the allegations therein.
32

1268
implementing the Response Plan. ECF No. 26-1 at 11–12. Insofar as Plaintiffs
claim that DPS is not complying with its Response Plan, and they request the
appointment of a special master to develop and implement their Proposed
Response Plan, they arguably seek a mandatory injunction, i.e., an order requiring
Defendant to take certain action. See Marlyn Nutraceuticals, 571 F.3d at 879
(citation omitted). Even though DPS claims it is compliant, the problematic
conditions identified by Plaintiff would not change if the status quo is merely
maintained, and Plaintiffs would not obtain the relief they desire. See Hernandez,
872 F.3d at 999 (“Mandatory injunctions are most likely to be appropriate when
‘the status quo . . . is exactly what will inflict the irreparable injury upon
complainant.’” (alteration in original) (citation omitted)). Assuming without
deciding that the requested injunction is mandatory, Plaintiffs meet the
corresponding stringent standard for the reasons discussed below.14 And because

14
The Ninth Circuit recognizes that its “approach to preliminary injunctions, with
separate standards for prohibitory and mandatory injunctions, is controversial,” and
has faced widespread criticism. Hernandez, 872 F.3d at 997. Other district courts
in the Ninth Circuit that addressed similar requests for preliminary injunctive relief
have applied the heighted mandatory injunction standard. See, e.g., Maney v.
Brown, Case No. 6:20-cv-00570-SB, __ F.3d __, 2021 WL 354384, at *10–16 (D.
Or. Feb. 2, 2021) (“Maney II”); Alcantara v. Archambeault, No. 20cv0756 DMS
(AHG), __ F.3d __, 2020 WL 2315777, at *7 n.5 (S.D. Cal. May 1, 2020); Doe v.
Barr, Case No. 20-cv-02263-RMI, 2020 WL 1984266, at *3–6 (N.D. Cal. Apr. 27,
2020).
33

1269
they satisfy this standard, they would easily meet the more lenient “sliding scale”
standard also employed by the Ninth Circuit.15
1. Likelihood of Success on the Merits16
Plaintiffs contend that they are likely to succeed on their claims because the
harm from COVID-19 is sufficiently serious and DPS recognizes the seriousness,
but it nevertheless continues to violate its own policies. ECF No. 6-1 at 21–28.
Defendant argues that Plaintiffs have not shown a likelihood of success on the
merits or that there are serious questions going to the merits because he has
proactively adopted and implemented measures to prevent and control the spread
of COVID-19 in DPS facilities. ECF No. 22 at 29.
a. Deliberate Indifference
Plaintiffs challenge the conditions of their confinement under the Eighth and

15
Under the “sliding scale” approach to preliminary injunctions, “the elements of
the preliminary injunction test are balanced, so that a stronger showing of one
element may offset a weaker showing of another.” All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). The issuance of a preliminary
injunction may be appropriate when there are “‘serious questions going to the
merits’ and a balance of hardships that tips sharply towards the plaintiff . . . so long
as the plaintiff also shows that there is a likelihood of irreparable injury and that
the injunction is in the public interest.” Id. at 1135.
16
Defendant does not challenge Plaintiffs’ exhaustion of administrative remedies
under the Prison Litigation Reform Act (“PLRA”). See 42 U.S.C. § 1997e(a).
34

1270
Fourteenth Amendments. “Inmates who sue prison officials for injuries suffered
while in custody may do so under the Eighth Amendment’s Cruel and Unusual
Punishment Clause or,” in the case of pretrial detainees, “under the Fourteenth
Amendment’s Due Process Clause.” Castro v. County of Los Angeles, 833 F.3d
1060, 1067–68 (9th Cir. 2016) (citation omitted). The Eighth Amendment imposes
duties on prison officials, “who must provide humane conditions of confinement”
such as “ensur[ing] that inmates receive adequate food, clothing, shelter, and
medical care” and “tak[ing] reasonable measures to guarantee the safety of the
inmates[.]” Farmer, 511 U.S. at 832–33 (internal quotation marks and citations
omitted). “[P]retrial detainees (unlike convicted prisoners) cannot be punished at
all, much less ‘maliciously and sadistically.’” Kingsley v. Hendrickson, 576 U.S.
389, 400 (2015) (citations omitted).
Both clauses require a plaintiff to “show that the prison officials acted with
‘deliberate indifference.’” Castro, 833 F.3d at 1068. Deliberate indifference
requires a showing that “prison officials were aware of a ‘substantial risk of serious
harm’ to an inmate’s health or safety” and that there was no “‘reasonable’
justification for the deprivation, in spite of that risk.” Thomas v. Ponder, 611 F.3d
1144, 1150 (9th Cir. 2010) (quoting Farmer, 511 U.S. at 837, 844) (footnotes
omitted). This requires a state of mind derived from criminal recklessness; that is,
“the official must both be aware of facts from which the inference could be drawn
35

1271
that a substantial risk of serious harm exists, and he must also draw the inference.”
Farmer, 511 U.S. at 837; see also Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir.
2009).
To succeed on an Eighth Amendment claim, a plaintiff must “‘objectively
show that he was deprived of something “sufficiently serious,” and ‘make a
subjective showing that the deprivation occurred with deliberate indifference to the
inmate’s health or safety.’” Thomas, 611 F.3d at 1150 (quoting Foster v. Runnels,
554 F.3d 807, 812 (9th Cir. 2009)). Establishing a Fourteenth Amendment
violation is less burdensome as a plaintiff need only a show objective deliberate
indifference, not subjective deliberate indifference. See Gordon v. County of
Orange, 888 F.3d 1118, 1124–25 (9th Cir. 2018).
i. Objective Deliberate Indifference
The Ninth Circuit applies the following test in evaluating objective
deliberate indifference:
(i) the defendant made an intentional decision with respect to the

conditions under which the plaintiff was confined; (ii) those
conditions put the plaintiff at substantial risk of suffering serious
harm; (iii) the defendant did not take reasonable available
measures to abate that risk, even though a reasonable official in
the circumstances would have appreciated the high degree of risk
involved—making the consequences of the defendant’s conduct
obvious; and (iv) by not taking such measures, the defendant
caused the plaintiff’s injuries.
36

1272
Id. at 1125. The third element requires the defendant’s conduct to be objectively
unreasonable, which turns on the facts and circumstances of each case. See id.
(citation omitted). An individual is not deprived of life, liberty, or property under
the Fourteenth Amendment based on a “mere lack of due care by a state official.”
Id. (internal quotation marks and citation omitted). Consequently, a plaintiff “must
‘prove more than negligence but less than subjective intent—something akin to
reckless disregard.’” Id. (footnote and citation omitted). This standard dispenses
of the need to prove “subjective elements about the officer’s actual awareness of
the level of risk.” Id. n.4. (citation omitted). Applying this standard, Plaintiffs
have shown a strong likelihood of success on their Fourteenth Amendment claim
and the objective prong of their Eighth Amendment claim.
At this point in the pandemic, the seriousness and transmissibility of
COVID-19 is well established, and it has proven uniquely problematic for prisons
and other detention facilities. DPS is no exception, having experienced outbreaks
at more than half of its facilities and inmate COVID-19 infections exceeding 50%.
If the conditions described in the declarations submitted by Plaintiffs continue, the
risk of harm to all inmates is undeniable. The Court therefore focuses on whether
Defendant has done or is doing enough to reasonably keep inmates healthy and
safe.
37

1273
The parties offer somewhat differing accounts of the conditions at DPS
facilities.17 Defendant submits declarations from each DPS facility’s warden –
Cramer Mahoe (“Mahoe”), Scott Harrington (“Harrington”), Sean Ornellas
(“Ornellas”), Wanda Craig (“Craig”), Eric Tanaka (“Tanaka”), Deborah Taylor
(“Taylor”), Francis Sequeira (“Sequeira”), and Neal Wagatsuma (“Wagatsuma”);
the Deputy Director for DPS’s Corrections Division – Tommy Johnson
(“Johnson”); DPS’s Corrections Health Care Administrator – Gavin Takenaka
(“Takenaka”); and an Advanced Practice Registered Nurse and Section Health
Care Administrator for HCCC – Stephanie Higa (“Higa”), that uniformly recite
provisions from the Response Plan, while Plaintiffs share personal reports from
inmates and DPS staff at different facilities. In other words, Defendant conveys
what should happen at DPS facilities and Plaintiffs reveal what is occurring or has
occurred at the facilities.
The wardens’ declarations contain boilerplate language indicating that their
facilities have adopted the same or substantially similar policies, which are also

17
At the hearing, defense counsel argued that Plaintiffs failed to submit any
declarations concerning KCCC and WCCC and that those facilities would
therefore inappropriately be subject to an injunction. The Court is unconvinced.
Inmates are frequently moved between facilities, so outbreaks are a system-wide
concern. KCCC and WCCC should not be exempt from the injunction, as the
injunction would order relief contemplated by the Response Plan, and all facilities
are subject to the Response Plan.
38

1274
consistent with the general DPS policies identified by Johnson, Takenaka, and
Higa. See ECF Nos. 22-1 (“Takenaka Decl.”); 22-2 (“Johnson Decl.”); 22-3
(“Mahoe Decl.”); 22-4 (“Harrington Decl.”); 22-5 (“Ornellas Decl.”); 22-6 (“Craig
Decl.”); 22-7 (“Tanaka Decl.”); 22-8 (“Taylor Decl.”); 22-9 (“Sequeira Decl.”);
22-10 (“Wagatsuma Decl.”); 22-11 (“Higa Decl.”). But the mere existence of
policies is of little value if implementation and compliance are lacking.
The declarations Plaintiffs submitted offer on-the-ground descriptions of
what is actually happening at the facilities. And the reality is that the inmates have
no motivation to fabricate (they are not seeking release nor money damages), while
DPS staff have a disincentive to raise these issues concerning their employer in
such a public forum. Therefore, the Court finds credible the declarations Plaintiffs
submitted. This is not to say that the declarations supplied by Defendant are
incredible; rather, as detailed below, the declarations Plaintiffs submitted were
more compelling due to their specificity and direct perspective.
In a nutshell, Defendant defends his COVID-19 response by claiming that
DPS has proactively and vigilantly addressed COVID-19, beginning with the
adoption of a department-wide Response Plan on March 23, 2020 — consistent
with CDC guidelines that has been updated to reflect evolving CDC guidance —
and a pandemic response plan tailored to each DPS facility, based on space, unique
challenges, and population and staff needs. ECF No. 22 at 14–15; Johnson Decl.
39

1275
¶¶ 8–9. According to Defendant, the following measures have been implemented
at DPS facilities: screening, quarantine and medical isolation, medical care,
sanitation and hygiene, social distancing, personal protective equipment (“PPE”),
education and information, testing, and vaccination. ECF No. 22 at 15–20.
Screening and Testing: Defendant claims that all facilities have screening
procedures for inmates, staff, and visitors — new inmates are screened by medical
staff for COVID-19 symptoms and risk factors while staff, visitors, volunteers, and
vendors are screened for symptoms through surveys and temperature checks prior
to entry. ECF No. 22 at 16; Takenaka Decl. ¶¶ 15–16; Johnson Decl. ¶¶ 13–14;
Harrington Decl. ¶ 15; Ornellas Decl. ¶¶ 8–9; Craig Decl. ¶ 8; Tanaka Decl. ¶ 13;
Taylor Decl. ¶ 12; Sequeira Decl. ¶ 13; Wagatsuma Decl. ¶ 12; Higa Decl. ¶ 9. At
HCCC, existing inmates are also supposedly screened through self-reporting,
temperature and symptom checks for those in quarantine units, medical
assessments for older inmates and those with certain medical conditions, and upon
departure and return to the facility. Higa Decl. ¶¶ 10–12.
Defendant also represents that COVID testing is continuously conducted at
all DPS facilities and that DPS performs diagnostic and screening testing and has
expanded non-exposure asymptomatic screening testing to: (1) broad-based
testing; (2) new admission and day 14 routine intake quarantine testing; (3) pre-
medical procedure testing; (4) pre-release testing for inmates entering community
40

1276
programs; (5) pre-flight testing for inmates transferred to another facility; and (6)
surveillance testing of randomly selected inmates. Takenaka Decl. ¶¶ 19–20, 25.
Plaintiffs paint a different picture, providing declarations from inmates and
staff averring that not all new inmates are screened or tested for COVID-19, nor
are all inmates tested before transferring to another facility. ECF No. 6-4 (Decl. of
Lisa O. Jobes (“Jobes Decl.”)) ¶ 6.g; ECF No. 6-6 (Decl. of Ryan Tabar (“Tabar
Decl.”)) ¶ 6.b; ECF No. 6-7 (Decl. of Marie Ahuna (“Ahuna Decl.”)) ¶ 5.f; ECF
No. 6-10 (Decl. of Isaac Nihoa (“Nihoa Decl.”)) ¶ 11; ECF No. 6-13 (“Alvarado
Decl. I”) ¶¶ 10–11; ECF No. 6-15 (Decl. of Dustin Snedeker-Abadilla (“Snedeker-
Abadilla Decl. I”)) ¶ 6; ECF No. 26-7 (Decl. of William Napeahi (“Napeahi
Decl.”)) ¶ 9; ECF No. 26-8 (Decl. of Pokahea Lipe (“Lipe Decl.”)) ¶ 6; ECF No.
26-16 (Decl. of Todd Bertilacci (“Bertilacci Decl.”)) ¶ 8; ECF No. 26-17
(“Snedeker-Abadilla Decl. II”) ¶¶ 7–9. Mahoe, HCCC’s Warden, admits that
inmates are not tested upon arrival and are placed in a holding area separated by
chain-link fences — dubbed the “dog cages” — to be later screened by healthcare
staff.18 Mahoe Decl. ¶¶ 11–13.

18
The Court is troubled by the allegation that the HCCC administration fails to
inform staff when COVID-positive inmates are in close proximity. Rosete-
Arellano Decl. ¶ 12 (learning from DPS guards that COVID-positive inmates were
being held in the dog cages and in the hallway); Jobes Decl. ¶ 9 (learning from a
detainee in the dog cages that other detainees in the dog cages had COVID-19);
Nihoa Decl. ¶ 4 (learning from the inmates he was supervising that they had
(continued . . .)
41

1277
Quarantine and Medical Isolation: Defendant represents that DPS employs
medical and isolation strategies to contain and control COVID-19 transmission and
that each facility has units designated for quarantine and medical isolation. ECF
No. 22 at 16; Harrington Decl. ¶ 16; Ornellas Decl. ¶ 10; Craig Decl. ¶ 10; Tanaka
Decl. ¶ 14; Taylor Decl. ¶ 13; Sequeira Decl. ¶ 14; Wagatsuma Decl. ¶ 13; Johnson
Decl. ¶¶ 25–26. Defendant also offers the caveat that exceptions are sometimes
necessary due to space and security concerns. Johnson Decl. ¶¶ 15, 27.
Plaintiffs describe a “quarantine” process that involves mixing multiple
inmates with unknown COVID statuses in the HCCC dog cages, the fishbowl, or a
visitor’s room, and introducing new inmates into those spaces daily. ECF No. 6-1
at 14–15; Jobes Decl. ¶¶ 6.h–i, 7; Nihoa Decl. ¶ 13; Snedeker-Abadilla Decl. I
¶ 10; Lipe Decl. ¶ 9. This is consistent with Mahoe’s admission that HCCC
frequently lacks the physical space to completely quarantine new inmates for ten
days and instead places them in the fishbowl, a multi-purpose room, to monitor
them for COVID-19 symptoms and to separate them from the inmate population.
Mahoe Decl. ¶ 16. And while all incoming inmates are purportedly screened for
COVID-19 symptoms and exposure upon arrival at the facilities, see Takenaka

(. . . continued)
COVID-19 and testing positive for COVID-19 a few days later). While DPS staff
are not parties to this action and the Court is not factoring this into Plaintiffs’
likelihood of success, the alleged lack of notification illustrates another symptom
of the indifference.
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Decl. ¶ 16, at the hearing, Defendant’s counsel admitted that the intake process at
HCCC — which precedes any testing and involves the housing of numerous
inmates in confined spaces — can take several hours.
Plaintiffs also report multiple instances of DPS mixing COVID-positive
and/or symptomatic inmates with COVID-negative inmates, which resulted in
clusters of COVID-19 infections at different facilities. ECF No. 6-1 at 13–14; ECF
No. 26-6 (“Deguair Decl.”) ¶¶ 7, 9, 13; Napeahi Decl. ¶¶ 6–8, 11–12, 15–21, 25;
Lipe Decl. ¶¶ 16–20, 29–30; ECF No. 26-9 (“Chatman Decl.”) ¶ 6; ECF No. 26-10
(“Mobley Decl.”) ¶¶ 8–11, 15–16; ECF No. 26-11 (Decl. of Tyson Olivera-Wamar
(“Olivera-Wamar Decl.”)) ¶¶ 7–19; ECF No. 26-12 (“Granados Decl.”) ¶¶ 9–10;
ECF No. 26-15 (Decl. of Nicholas Hall (“Hall Decl.”)) ¶¶ 8–18; Bertilacci Decl.
¶¶ 9–10, 14–17; ECF No. 6-14 (Decl. of Jeffrey Parent (“Parent Decl.”)) ¶ 13.
Living Conditions/Social Distancing: Defendant asserts that DPS has
implemented social distancing strategies, adapted for each facility, including
limitation of transports and movements, suspension of visitation and certain
programs, restructured recreation and meals, bunk rearrangement so inmates sleep
head to foot, staggered pill lines, medication administration at modules, and spaced
seating in common areas.19 ECF No. 22 at 17–18; Harrington Decl. ¶¶ 13–14;

19
Defendant accuses Plaintiffs of failing to submit evidence showing that social
distancing is supported by medical evidence, see ECF No. 22 at 43, while
(continued . . .)
43

1279
Ornellas Decl. ¶¶ 15–16; Craig Decl. ¶¶ 16–17; Tanaka Decl. ¶¶ 11–12; Taylor
Decl. ¶¶ 10–11; Sequeira Decl. ¶¶ 11–12; Wagatsuma Decl. ¶¶ 10–11; Johnson
Decl. ¶ 23.
Meanwhile, Plaintiffs describe eating shoulder-to-shoulder in the chow halls
and indicate that inmates are regularly packed into small spaces — 40 to 60
inmates in the fishbowl, which measures 31.5 feet by 35.3 feet,20 where they sleep
on thin mats on the floor three to six inches apart; up to seven inmates in the dog
cages, which measure five feet by ten feet; up to ten inmates in the visitor’s room
at HCCC, which is ten feet by twelve feet; 40 to 60 inmates in a 25-foot-by-35-foot
room at Waiawa called the “pavilion.” Jobes Decl. ¶ 8; Ahuna Decl. ¶ 5.h–i; Tabar
Decl. ¶ 7.a; Parent Decl. ¶ 21; Snedeker-Abadilla Decl. I ¶¶ 8, 12. The dog cages,
fishbowl, and visitor’s room do not have bathrooms or running water, so inmates
housed there have restricted access to restrooms and water. Because guards often
deny inmates’ restroom and water requests, inmates are forced to urinate on

(. . . continued)
simultaneously claiming that DPS facilities are social distancing to the extent
possible, submitting declarations from Johnson and the wardens attesting that they
have implemented social distancing practices, and emphasizing that an inability to
social distance does not amount to deliberate indifference. See id. at 39.
20
See Johnson Decl. ¶ 38.
44

1280
themselves, on walls, or in cups. And constant toilet clogging and overflow in the
adjacent restroom causes the fishbowl to smell like urine and feces.21 Jobes Decl.
¶ 8; Tabar Decl. ¶¶ 7–8; ECF No. 6-8 (Decl. of Erin Loredo (“Loredo Decl.”))
¶¶ 10, 12–17; Snedeker-Abadilla Decl. I ¶¶ 15–17, 19–26. Inmates are unable to
wash their hands in these holding areas and they are not provided with cleaning
products. Snedeker-Abadilla Decl. I ¶ 30; Tabar Decl. ¶ 7.p. Staff have also
observed mice and rats in the area, as well as other parts of HCCC. Rosete-
Arellano Decl. ¶ 9; Loredo Decl. ¶ 19.
Mahoe represents that ACOs “do their best” to provide water to inmates in
the dog cages but may not be able to readily allow restroom access depending on
circumstances. Mahoe Decl. ¶ 15. He refutes allegations that inmates in the
fishbowl are denied restroom access or water, stating that a water jug is filled
during every meal and upon request. Id. ¶ 20. It is unclear if this is mere policy or
actual practice because staff claims that Mahoe has not performed a walk-through
of the facility since he started working at HCCC, despite DPS policy that the
warden should do two daily walk-throughs to ensure compliance with protocols.
Jobes Decl. ¶¶ 12–13.

21
These conditions are alarming, with or without COVID-19. “The Constitution
‘does not mandate comfortable prisons,’ but neither does it permit inhumane
ones[.]” Farmer, 511 U.S. at 832 (citations omitted).
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HCCC started moving inmates from the fishbowl to other housing units, and
Johnson issued a directive that inmates may not stay overnight in the dog cages.
Johnson Decl. ¶ 39; Mahoe Decl. ¶ 24. At the hearing, Plaintiffs’ counsel argued
that the new housing accommodations are equally unsuitable because not only are
they smaller and proportionately as overcrowded as the fishbowl, they similarly
have no running water or toilets.
Mask Wearing/PPE: Defendant argues that staff are always required to
wear masks unless medically or operationally excepted and that PPE is provided
for certain tasks like entering quarantine or isolation units, transporting inmates,
and interacting with an individual with suspected or confirmed COVID-19.
Defendant also supplies inmates and staff with multiple cloth masks that can be
laundered. ECF No. 22 at 18; Johnson Decl. ¶¶ 17, 18, 21. According to
Plaintiffs, mask wearing is inconsistent at best with minimal enforcement, if at all,
and masks and PPE are not necessarily provided to staff. Ahuna Decl. ¶¶ 8–9;
Rosete-Arellano Decl. ¶ 15; Loredo Decl. ¶ 8; Nihoa Decl. ¶ 4.b–c; Alvarado Decl.
I ¶ 7.e, g.
Cleaning Supplies and Protocols: According to Defendant, inmates are
provided with soap and towels in restrooms and cells; additional are supplied at the
inmates’ request, and towels are laundered twice daily. ECF No. 22 at 17; Johnson
Decl. ¶ 20. Defendant also represents that the facilities maintain an enhanced
46

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cleaning schedule for housing units; transportation vans are sanitized daily; high
touch areas are cleaned and sanitized daily; common areas and housing are
disinfected and cleaned daily; staff disinfects their work areas; and inmates receive
cleaning supplies and gloves to clean their personal areas. ECF No. 22 at 17;
Tanaka Decl. ¶ 9; Taylor Decl. ¶ 8; Sequeira Decl. ¶ 9; Wagatsuma Decl. ¶ 8;
Harrington Decl. ¶ 10; Ornellas Decl. ¶ 14; Craig Decl. ¶ 15.
The declarations submitted by Plaintiffs suggest otherwise. Plaintiffs, other
inmates, and staff claim that inmates do not receive cleaning supplies; hand
sanitizer and wipes are unavailable in housing units; soap must be purchased with
commissary money; cleaning is left to the inmates’ discretion; when provided,
cleaning products are watered down; and cells housing COVID-positive inmates
are not cleaned before new occupants move in. Chatman Decl. ¶ 18; ECF No. 26-
13 (“Alvarado Decl. II”) ¶ 4.g,i–j; Snedeker-Abadilla Decl. I ¶¶ 27, 30; Parent
Decl. ¶¶ 6.b–c, 15, 20.b; Ahuna Decl. ¶ 11; Loredo Decl. ¶ 9 (indicating that she
was not provided with cleaning supplies for her office at HCCC).
Identification of Older and Medically Vulnerable Inmates: Defendant
explains that medical staff conducts assessments within 14 days of admission,
including the identification of older adults and inmates with medical conditions
that put them at an increased risk of severe illness from COVID-19. Takenaka
Decl. ¶ 18. Both staff and inmates indicate that no assessments occur, and inmates
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1283
with medical conditions have not been isolated or identified as high risk, which
resulted in COVID-19 infections and hospitalization. Nihoa Decl. ¶ 10; Alvarado
Decl. I. ¶ 8; ECF No. 6-9 (Decl. of Jason Cummings (“Cummings Decl.”)) ¶¶ 7–
13; cf. Snedeker-Abadilla Decl. I ¶¶ 10–11, 31–34 (explaining that he was held in
the fishbowl for months, and was initially told it was for “quarantine” even though
he was housed with 40 to 50 other males and new detainees were added daily).
The evidence before the Court demonstrates that Defendant has not taken
reasonable available measures to abate the risks caused by the foregoing
conditions, knowing full well — based on multiple prior outbreaks — that serious
consequences and harm would result to the inmates. And Plaintiffs have suffered
injuries as a result. See Roman, 977 F.3d at 943 (“The Government was aware of
the risks these conditions posed, especially in light of high-profile outbreaks at
other carceral facilities that had already occurred at the time, and yet had not
remedied the conditions. Its inadequate response reflected a reckless disregard for
detainee safety.”). Defendant did not submit persuasive evidence contradicting the
detailed accounts of Plaintiffs, inmates, and DPS staff showing a failure to
implement and/or comply with the Response Plan. The declarations relied upon by
Defendant offer summaries of provisions in the Response Plan without specific
examples of compliance. Johnson provides some details about measures taken to
address the HCCC outbreak and Mahoe responds to certain allegations concerning
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1284
the fishbowl, dog cages, PPE, cleaning supplies, communications, and social
distancing during recreation time. However, they too were couched in generalities.
Policies are meaningless if they are not followed. Although Defendant
attempts to characterize the failures identified by Plaintiffs as “occasional lapses in
compliance by PSD staff,” see ECF No. 22 at 33, many of the failures — such as
the cramped housing of inmates in the fishbowl at HCCC or the need for inmates
to urinate in cups due to a lack of access to toilets — are more than simple lapses
and demonstrate objective deliberate indifference. Consequently, there is a strong
likelihood that Plaintiffs will prevail on the merits of their Fourteenth Amendment
claim and satisfy the objective prong of their Eighth Amendment Claim.
ii. Subjective Deliberate Indifference
This subjective standard applicable to Eighth Amendment claims requires an
official to “know[] of and disregard[] an excessive risk to inmate health or safety.”
Gordon, 888 F.3d at 1125 n.4. (internal quotation marks and citation omitted).
Thus, the Court must determine if Plaintiffs will be able to establish that Defendant
is aware of, but is disregarding, an excessive risk to Plaintiffs’ health or safety by
failing to take measures to prevent or mitigate the spread of COVID-19 in DPS
facilities.
Defendant cannot reasonably claim ignorance of the seriousness of COVID-
19 at this stage in the pandemic, nor the consequences that could result from a
49

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failure to take necessary steps to prevent transmission in DPS facilities.
Approximately 1,575 inmates and 240 correctional staff have contracted COVID-
19, and seven inmates died. See https://dps.hawaii.gov/blog/2020/03/17/
coronavirus-covid-19-information-and-resources/ (last visited July 13, 2021).
Prisoners have tested positive for COVID-19 at 17.4 times the rate in Hawai‘i
overall and have died at 5.1 times the rate. See https://www.themarshallproject.
org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons (last visited July 13,
2021). Halawa, MCCC, OCCC, Waiawa, and HCCC already experienced
outbreaks and given DPS’s alleged current practices (not policies), others are
inevitable. Despite this knowledge, it appears that Defendant continues to
disregard the excessive risk to inmate health and safety. The inmate populations
are in constant flux and the arrival of new inmates presents an ongoing threat of
exposure to new sources of infection, especially if new inmates are not properly
screened, tested, or quarantined. Many of the concerning facts outlined in the
preceding section support a finding of subjective deliberate indifference because
they evince Defendant’s knowing disregard of excessive risk to inmate health and
safety. However, the recent transfer of inmates best exemplifies this disregard, and
here, shows that there is a strong likelihood that Plaintiffs will establish subjective
deliberate indifference.
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1286
In an effort to alleviate overcrowding at HCCC during the middle of a
COVID-19 outbreak, Defendant chartered private flights to transport dozens of
inmates to facilities on Oahu. Johnson Decl. ¶ 36; ECF 26-14. Notwithstanding
Defendant’s public statement that only inmates who were medically cleared of
COVID-19 were considered for transfer, see ECF No. 26-14, inmates who were
symptomatic and untested, or had yet to receive test results, were among those
transferred. Hall Decl. ¶¶ 9–11; Bertilacci Decl. ¶ 8; Snedeker-Abadilla Decl. II
¶ 7; Napeahi Decl. ¶¶ 9, 11–12; Olivera-Wamar Decl. ¶¶ 7, 9–12, 14. Many of
these inmates informed staff that they felt ill. Hall Decl. ¶ 12; Napeahi Decl. ¶ 13;
Olivera-Wamar Decl. ¶¶ 8, 13. At least nine of these inmates tested positive for
COVID-19 at Halawa. ECF No. 26-1 at 6. Inmates from HCCC were grouped
with inmates from other facilities while they awaited their COVID-19 test results.
Hall Decl. ¶¶ 14–15; Bertilacci Decl. ¶ 9; Olivera-Wamar Decl. ¶¶ 15–16; Napeahi
Decl. ¶¶ 15–17. COVID-positive and COVID-negative inmates are housed in the
same open-air modules, share common spaces and devices, and are able to shake
hands through the bars of their cells. Olivera-Wamar Decl. ¶¶ 15, 19; Bertilacci
Decl. ¶¶ 9–10, 13–17; Hall Decl. ¶ 14; Napeahi Decl. ¶¶ 20, 23, 25. One of the
COVID-positive transferees has requested, but not received, medical treatment for
his symptoms. Napeahi Decl. ¶ 24.
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This is problematic on multiple levels. Defendant knowingly (1) transported
symptomatic inmates from a facility with an active COVID-19 outbreak, (2) who
told staff they were ill, (3) who were infected, (4) but whose infections were
unconfirmed due to late or no testing, (5) on an airplane, (6) to a facility with no
active COVID-19 cases that previously experienced an outbreak, and (7) then
housed those inmates with COVID-negative inmates. There is almost no clearer an
example of complete disregard for the Response Plan and abandonment of
precautionary measures to prevent the spread of COVID-19 between DPS facilities
and islands.
Creating and successfully implementing a workable policy to mitigate the
spread of COVID-19 in a carceral setting is an unenviable task. But Defendant has
had ample time to do so and the prior outbreaks should have served as cautionary
tales. The Court finds that Plaintiffs have demonstrated, through the foregoing
facts, that they have a strong likelihood of success on their Eighth Amendment
claim.
2. Irreparable Harm
Plaintiffs argue that they will suffer irreparable harm without an injunction
because DPS’s failure to meet public health standards places them at risk of serious
infection and death. ECF No. 6-1 at 28. Defendant counters that Plaintiffs have
52

1288
not presented evidence demonstrating that a COVID-19 outbreak is imminent or,
were another outbreak possible, that it is likely. ECF No. 22 at 42.
“A plaintiff seeking preliminary relief must ‘demonstrate that irreparable
injury is likely in the absence of an injunction.’” California v. Azar, 911 F.3d 558,
581 (9th Cir. 2018) (citation omitted). “At a minimum, a plaintiff seeking
preliminary injunctive relief must demonstrate that it will be exposed to irreparable
harm.” Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir.
1988) (citation omitted). As a prerequisite to injunctive relief, “a plaintiff must
demonstrate immediate threatened injury”; a speculative injury is not irreparable.
Id. (citations omitted). “Irreparable harm is . . . harm for which there is no
adequate legal remedy, such as an award of damages.” Ariz. Dream Act Coal. v.
Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014) (citation omitted). “[A]n alleged
constitutional infringement will often alone constitute irreparable harm,” Monterey
Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) (internal quotation marks
and citation omitted), but not if “the constitutional claim is too tenuous.” Goldie’s
Bookstore, Inc. v. Superior Court of Cal., 739 F.2d 466, 472 (9th Cir. 1984).
The Court already determined that Plaintiffs are likely to succeed on the
merits and “the deprivation of constitutional rights ‘unquestionably constitutes
irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)
(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). In addition, Plaintiffs clearly
53

1289
identify the irreparable harm they will suffer if conditions at DPS facilities persist.
Comingling COVID-positive inmates with non-infected inmates, unsanitary living
conditions, lack of social distancing, failure to provide PPE, failure to enforce
mask wearing and proper usage, insufficient COVID-19 screening and testing, and
lack of adequate medical care, increase Plaintiffs’ risk of contracting COVID-19
and potentially suffering serious illness or death. See Maney v. Brown, 464 F.
Supp. 3d 1191, 1216 (D. Or. 2020) (“Maney I”) (citations omitted). Indeed, the
Hawai‘i Supreme Court determined that multiple DPS facilities are overcrowded
and in light of the pandemic, “they have the potential to . . . place the inmates at
risk of death or serious illness.” In re Individuals in Custody of State, No. SCPW-
20-0000509, 2020 WL 5015870, at *1 (Haw. Aug. 24, 2020) (“In re Inmates II”)
(discussing MCCC, HCCC, and KCCC); see In re Individuals in Custody of State,
No. SCPW-20-0000509, 2020 WL 4873285, at *1 (Haw. Aug. 17, 2020) (“In re
Inmates I”) (discussing OCCC). And facilities remain overcrowded. See
https://dps.hawaii.gov/wp-content/uploads/2021/07/Pop-Reports-Weekly-2021-07-
05.pdf (last visited July 13, 2021). Accordingly, Plaintiffs have established that
they are likely to suffer irreparable injury.
The Court rejects Defendant’s assertion that this determination requires
Plaintiffs to confirm the imminence of a COVID-19 outbreak at a DPS facility.
ECF No. 22 at 42. See Helling v. McKinney, 509 U.S. 25, 33 (1993) (“We have
54

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great difficulty agreeing that prison authorities may not be deliberately indifferent
to an inmate’s current health problems but may 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.”). Plaintiffs’ concerns about harm are not speculative for
the reasons explained above. As they currently exist, DPS’s practices —
exacerbated by the shared and confined spaces in carceral settings — are likely to
cause irreparable harm because they present a considerable risk of exposure to
COVID-19, with or without an outbreak. See Maney II, __ F.3d at __, 2021 WL
354384, at *15; Criswell, 2020 WL 5235675, at *23–24; Torres v. Milusnic, 472 F.
Supp. 3d 713, 740–41 (C.D. Cal. 2020); Zepeda Rivas v. Jennings, 445 F. Supp. 3d
36, 40 (N.D. Cal. 2020); Kaur v. DHS, Case No. 2:20-cv-03172-ODW (MRWx),
2020 WL 1939386, at *3 (C.D. Cal. Apr. 22, 2020). And, in any case, “a remedy
for unsafe conditions need not await a tragic event.” Helling, 509 U.S. at 33.
Regardless of whether another outbreak is imminent, the Court is
unconvinced that DPS’s recent efforts in the midst of this litigation have
eliminated the ongoing harm to Plaintiffs. On June 10, 2021 — one day after
Plaintiffs filed the Injunction Motion and the same day the Court held a status
conference on the matter — Johnson issued a directive that inmates are not to be
placed in the dog cages overnight. Mahoe Decl. ¶ 14. Then, shortly before
Defendant’s opposition deadline, DPS began relocating inmates from the fishbowl
55

1291
to other housing units at HCCC. Id. ¶ 24; Johnson Decl. ¶ 39. The timing of
DPS’s actions is suspect. And given Plaintiffs’ counsel’s allegation that DPS
actually replicated these deficient housing conditions elsewhere in the facility, any
improvement in conditions is debatable. Furthermore, improvements at HCCC do
not remedy the many other dangers identified above that promote the spread of
COVID-19 in DPS facilities. DPS’s recent efforts to remediate egregious
conditions — that should never have occurred in the first place — do not persuade
the Court that DPS can and will successfully manage the pandemic moving
forward. After all, the five severe outbreaks demonstrate otherwise. Based on
DPS’s record of handling of COVID-19 in its facilities, it is not unreasonable to
assume that issues will persist and that future outbreaks are likely, driven in part by
the inmates’ inter-facility movement and constant introduction of new inmates into
the facilities.
Defendant claims that DPS will be irreparably harmed if an injunction issues
because the Court would assume administration over its facilities.22 ECF No. 22 at
42 (citation omitted). Putting aside the fact that this is not the salient inquiry, the

22
Defendant cites Swain v. Junior, 958 F.3d 1081, 1090 (11th Cir. 2020), for this
proposition. Swain concerned a motion for stay pending appeal of a preliminary
injunction. See id. at 1085. Therefore, the defendants bore the burden of
establishing that they would be irreparably harmed absent a stay. See id. at 1088,
1090. Swain has no application under this factor, as the Court considers whether
Plaintiffs will suffer irreparable harm in the absence of an injunction, not whether
an injunction will cause Defendant to suffer irreparable harm.
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Court struggles to identify any harm to DPS, let alone irreparable harm, when the
injunction would merely require DPS to do not only what it should be doing but
what it claims it has been doing throughout the course of the pandemic. “Self-
inflicted wounds are not irreparable injury.” Al Otro Lado, 952 F.3d at 1008
(internal quotation marks, brackets, and citations omitted). “An injunction cannot
cause irreparable harm when it requires a party to do nothing more than what it
maintained, under oath, it was already doing of its own volition.” Ahlman v.
Barnes, No. 20-55568, 2020 WL 3547960, at *3 (9th Cir. June 17, 2020) (“Ahlman
II”).
For these reasons, the Court finds that Plaintiffs have demonstrated that they
will be irreparably harmed in the absence of an injunction.
3. Balance of Equities/Public Interest
Plaintiffs contend that the equities weigh in favor of protecting them, DPS
staff, and the community from the spread of COVID-19, and that any burden to
Defendant — economic or administrative — is relatively limited. ECF No. 6-1 at
30–33. Instead of addressing the applicable considerations, Defendant argues that
Plaintiffs have failed to provide the necessary evidence entitling them to relief23

23
Citing Roman v. Wolf, Defendant asserts that “an ‘injunction should, to the
extent possible, reflect the scientific evidence about COVID-19 presented to [a]
district court’ and ‘should stem from medical evidence properly before the court.’”
ECF No. 22 at 42–43 (alteration in original) (citing Roman, 977 F.3d at 946).
(continued . . .)
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and that DPS already implemented the measures that Plaintiffs request. ECF No.
22 at 42–43. Defendant also argues that injunctive relief is disfavored because of
federalism concerns and the policy against court interference with prison
administration. Id. at 43–44.
In assessing whether Plaintiffs establish that the balance of equities tip in
their favor, “the district court has a ‘duty . . . to balance the interests of all parties
and weigh the damage to each.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138
(9th Cir. 2009) (alteration in original) (citation omitted). “When the reach of an
injunction is narrow, limited only to the parties, and has no impact on non-parties,
the public interest will be ‘at most a neutral factor in the analysis rather than one
that favor[s] [granting or] denying the preliminary injunction.’” Id. at 1138–39
(alterations in original) (citation omitted). When an injunction’s impact “reaches
beyond the parties, carrying with it a potential for public consequences, the public
interest will be relevant to whether the district court grants the preliminary
injunction.” Id. at 1139 (citations omitted). “‘The public interest inquiry primarily

(. . . continued)
These principles have no bearing on Plaintiffs’ entitlement to injunctive relief. The
Roman court affirmed the issuance of a preliminary injunction but vacated and
remanded specific provisions of the injunction due to the drastic changes that
occurred after its issuance. See Roman, 977 F.3d at 945. The above references to
scientific and medical evidence were provided for the district court’s consideration
on remand. Id. at 946. They are not tied to the balancing of equities/public interest
factor.
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addresses impact on non-parties rather than parties.’” League of Wilderness
Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755, 766 (9th
Cir. 2014) (citation omitted). It also requires the Court to “‘consider whether there
exists some critical public interest that would be injured by the grant of preliminary
relief.’” Cottrell, 632 F.3d at 1138 (citation omitted).
Here, the equities tip sharply in Plaintiffs’ favor because they face
irreparable harm to their health and constitutional rights. See Castillo v. Barr, 449
F. Supp. 3d 915, 923 (C.D. Cal. 2020). The Court acknowledges that Defendant
has a strong interest in the administration of DPS facilities, see Woodford v. Ngo,
548 U.S. 81, 94 (2006), and that “separation of powers concerns counsel a policy
of judicial restraint.” Turner v. Safley, 482 U.S. 78, 85 (1987); see also 18 U.S.C.
§ 3626(a)(2) (“The court shall give substantial weight to any adverse impact on
public safety or the operation of a criminal justice system caused by the
preliminary relief and shall respect the principles of comity[.]”). And “[w]here a
state penal system is involved, federal courts have . . . additional reason to accord
deference to the appropriate prison authorities.” Turner, 482 U.S. at 85 (citation
omitted). That said, Defendant “cannot suffer harm from an injunction that merely
ends an unlawful practice . . . to avoid constitutional concerns,” Rodriguez v.
Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013) (citation and footnote omitted),
particularly when Defendant claims it is already complying with its Response Plan.
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Additionally, “while States and prisons retain discretion in how they respond to
health emergencies, federal courts do have an obligation to ensure that prisons are
not deliberately indifferent in the face of danger and death.” Valentine v. Collier,
590 U.S. __, 140 S. Ct. 1598, 1599 (2020) (statement of Sotomayor, J., joined by
Ginsburg, J.); see Brown v. Plata, 563 U.S. 493, 511 (2011) (“Courts nevertheless
must not shrink from their obligation to ‘enforce the constitutional rights of all
“persons,” including prisoners.’” (citation omitted)). “Courts may not allow
constitutional violations to continue simply because a remedy would involve
intrusion into the realm of prison administration.” Brown, 563 U.S. at 511.
It is noteworthy that the injunctive relief requested and ordered here simply
requires DPS to comply with its own policies. Defendant will not be burdened or
harmed if DPS must do what he insists it is already doing. See Ahlman II, 2020
WL 3547960, at *3. Moreover, this mitigates federalism concerns and allows the
Court to address alleged constitutional violations without becoming too “enmeshed
in the minutiae of prison operations.” Bell, 441 U.S. at 562.
The public interest would also be served by requiring DPS to adhere to
policies it formulated, which are designed to limit the spread of COVID-19,
especially when non-compliance causes the violation of constitutional rights. See
Am. Beverage Ass’n v. City & County of San Francisco, 916 F.3d 749, 758 (9th
Cir. 2019) (“[I]t is always in the public interest to prevent the violation of a party’s
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constitutional rights.” (internal quotation marks and citation omitted)). With
inmate COVID-19 infections far exceeding the general rate in Hawai‘i, and
multiple severe outbreaks in DPS facilities throughout the course of the pandemic,
Defendant has not adequately protected the health and safety of the inmates. And
the continued spread of COVID-19 in DPS facilities will impact DPS staff and
other individuals who enter DPS facilities, along with their families and
surrounding communities. See In re Inmates II, 2020 WL 5015870, at *1
(recognizing the endangerment to “the lives and well-being of staff and service
providers who work [at DPS facilities], their families, and members of the
community at large”). These considerations support the issuance of a preliminary
injunction.
In sum, Plaintiffs have demonstrated that there is a strong likelihood of
success on the merits of their claims, that they will suffer irreparable injury if relief
is not granted, and that the balance of hardships and public interest weigh heavily
in their favor.
B. Scope of Injunctive Relief
Plaintiffs request the same injunctive relief in the Injunction Motion that
they ultimately seek in this litigation — the appointment of a special master
pursuant to 18 U.S.C. § 3626(f)(1)(A) to oversee the development and
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implementation of their Proposed Response Plan.24 Compare SAC at 61–65 with
ECF No. 14-1 at 2–5. It is typically improper “to grant the moving party the full
relief to which he might be entitled if successful at the conclusion of a trial. This is
particularly true where the relief afforded, rather than preserving the status quo,
completely changes it.” Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804,
808–09 (9th Cir. 1963). But even if the injunction here is mandatory, it is mild
because it merely requires Defendant to adhere to its Response Plan and employ
practices that comport with CDC guidelines. See Hernandez, 872 F.3d at 999–
1000.
1. Appointment of a Special Master
The PLRA authorizes the Court to appoint a special master in a civil
action regarding prison conditions (1) “who shall be disinterested and objective
and who will give due regard to the public safety, to conduct hearings on the
record and prepare proposed findings of fact” (2) “during the remedial phase of
the action only upon a finding that the remedial phase will be sufficiently complex
to warrant the appointment.” 18 U.S.C. § 3626(f)(1)(A)–(B) (emphases added).

24
Plaintiffs initially requested an evaluation of whether inmates should be released
to comply with CDC guidelines. ECF No. 6-1 at 34. At the time, the FAC was the
operative pleading, and it also requested the same relief. ECF No. 5 at 75. The
SAC does not request this relief, nor is it outlined in Plaintiffs’ supplemental
memorandum regarding the specific injunctive relief sought. ECF No. 14.
62

1298
Because this case is not in the remedial phase, appointment of a special master
under § 3626(f) is improper. See McCormick v. Roberts, Civil Action No. 11-
3130-MLB, 2012 WL 1448274, at *2 (D. Kan. Apr. 26, 2012) (denying motion to
appoint special master pursuant to § 3626(f) because the case had yet to enter the
remedial phase); Roberts v. Mahoning County, 495 F. Supp. 2d 713, 714 (N.D.
Ohio 2006) (discussing work of special master appointed after a bench trial to
assist the parties with a remedial phase aimed at achieving final resolution).
Plaintiffs have not presented any cases, and the Court has found none, appointing a
special master pursuant to § 3626(f) at the preliminary injunction phase in a civil
case regarding prison conditions.
At the hearing, Plaintiffs requested that their request be considered pursuant
to FRCP 53 instead of § 3626(f). The PLRA defines a “special master” as “any
person appointed by a Federal court pursuant to Rule 53 of the Federal Rules of
Civil Procedure or pursuant to any inherent power of the court to exercise the
powers of a master, regardless of the title or description given by the court.” 18
U.S.C. § 3626(g)(8). Therefore, the Court finds that even if it were to award relief
under FRCP 53, it would still be subject to the constraints of § 3626(f).
Additional reasons support denial of the request at this time. Special masters
are ordinarily appointed after liability is established or a consent decree or
injunction issues, to assist courts with enforcement. See, e.g., Brown, 563 U.S. at
63

1299
511; Balla v. Idaho State Bd. of Corr., No. 1:81-cv-1165-BLW, 2011 WL 108727,
at *1–2 (D. Idaho Jan. 6, 2011); Plata v. Schwarzenegger, 603 F.3d 1088, 1097
(9th Cir. 2010); Hook v. Ariz. Dep’t of Corr., 107 F.3d 1397, 1399–400 (9th Cir.
1997).
Courts have contemplated the appointment of a special master in cases
involving ICE facilities when a defendant failed to comply with orders. See, e.g.,
Roman v. Wolf, ED CV 20-00768 TJH, 2020 WL 6107069, at *2 (C.D. Cal. Oct.
15, 2020); Fraihat v. ICE, Case No. EDCV 19-1546 JGB (SHKx), 2020 WL
6541994, at *13 (C.D. Cal. Oct. 7, 2020). Plaintiffs cite two cases in which special
masters were appointed. However, the appointments followed ICE’s pattern of
non-compliance and the PLRA does not apply to civil detainees.25 See ECF No.
26-19; Gayle v. Meade, Case No. 20-21553-Civ-COOKE/GOODMAN, 2020 WL
4047334, at *2 (S.D. Fla. July 17, 2020). The final case cited by Plaintiffs is a
consent order addressing class certification and appointing a special master
pursuant to FRCP 53. ECF No. 26-18.
None of the circumstances in these cases are present here. Accordingly, the
Court denies Plaintiffs’ request to appoint a special master. This does not
foreclose the possibility that a special master or another person with a similarly
contemplated role may be appointed in the future, if appropriate.

25
See Agyeman v. INS, 296 F.3d 871, 886 (9th Cir. 2002).
64

1300
2. Limitations on Relief
The PLRA also authorizes the Court to issue a preliminary injunction in a
civil action regarding prison conditions. See 18 U.S.C. § 3626(a)(2). “[I]njunctive
relief must be narrowly drawn, extend no further than necessary to correct the
harm the court finds requires preliminary relief, and be the least intrusive means
necessary to correct that harm.” Id.; see also Melendres v. Maricopa County, 897
F.3d 1217, 1221 (9th Cir. 2018) (“We have long held that injunctive relief ‘must be
tailored to remedy the specific harm alleged.’” (some internal quotation marks and
citation omitted)). Courts are required to “give substantial weight to any adverse
impact on public safety or the operation of a criminal justice system caused by the
preliminary relief and shall respect the principles of comity set out in paragraph
(1)(B) in tailoring any preliminary relief.”26 18 U.S.C. § 3626(a)(2); see also

26
Paragraph (1)(B) provides:
The court shall not order any prospective relief that requires or permits
a government official to exceed his or her authority under State or local
law or otherwise violates State or local law, unless—
(i) Federal law requires such relief to be ordered in violation of

State or local law;
(ii) the relief is necessary to correct the violation of a Federal

right; and
(iii) no other relief will correct the violation of the Federal right.
18 U.S.C. § 3626(a)(1)(B).
65

1301
Maricopa County, 897 F.3d at 1221 (“Federalism principles make tailoring
particularly important where, as here, plaintiffs seek injunctive relief against a state
or local government.” (citation omitted)). District courts nevertheless retain
“broad discretion to fashion injunctive relief” so long as the injunctive relief “is
‘aimed at eliminating a condition that does not violate the Constitution or does not
flow from such a violation.’” Maricopa County, 897 F.3d at 1221 (some internal
quotation marks and citation omitted).
Preliminary injunctive relief automatically expires “90 days after its entry,
unless the court makes the findings required under subsection (a)(1) for the entry
of prospective relief and makes the order final before the expiration of the 90-day
period.” 18 U.S.C. § 3626(a)(2).
Although Plaintiffs’ requested injunctive relief is largely appropriate, the
Court has made necessary adjustments to ensure that the relief is narrowly tailored
to correct the constitutional violations identified herein and is the least intrusive
means to correct the harm to Plaintiffs. Based on the foregoing, the Court
GRANTS the Injunction Motion and ORDERS Defendant to fully comply with the
Response Plan,27 focusing in particular on the following:

27
To be clear, the Court is referring to the State of Hawaii Department of Public
Safety Pandemic Response Plan COVID-19 (May 28, 2021 Revision). ECF No.
22-12. At the hearing, Plaintiffs’ counsel conceded that she does not take issue
(continued . . .)
66

1302
 Section 3.a (Good Health Habits).
 Section 3.b (Environmental Cleaning).
 Section 3.c (Social Distancing Measures).
 Section 3.d (Encourage the use of Masks and Other No-Contact

Barriers).
 Section 6 (New Intake Screening).
 Section 8 (Personal Protective Equipment (PPE)).
 Section 10 (Medical Isolation/Cohorting (Symptomatic Persons)).
 Section 12 (Quarantine (Asymptomatic Exposed Persons)) – with an

emphasis on the provisions concerning the (1) identification of
inmates who are at increased risk for severe illness and (2) single cell
and available housing prioritization of inmates with increased risk of
severe illness from COVID-19.
 Section 13 (Surveillance for New Cases).
Defendant is further ORDERED to:
 Provide sanitary living conditions to all inmates in DPS custody, i.e.,

regular access to a working toilet, sink, and drinking water.
 Prohibit DPS employees from restricting access to inmate grievance

forms or from preventing the submission of grievances with respect to
COVID-19 issues.

(. . . continued)
with the Response Plan itself, and indeed, the Court agrees that it is a rather
comprehensive plan that addresses the proper management of COVID-19 at DPS
facilities.
67

1303
Oversight is hereby referred to Magistrate Judge Mansfield, who is
authorized to address compliance with the preliminary injunction, engage in
factfinding procedures he deems appropriate, and issue certified factual findings to
the undersigned. The parties are directed to attend status conferences with
Magistrate Judge Mansfield once a month. One week prior to each status
conference, the parties shall file a joint status report. If they are unable to do so,
they shall file separate status reports. The parties are directed to contact Magistrate
Judge Mansfield’s chambers to schedule the first status conference during the week
of July 19, 2021. The parties need not file a status report but should be prepared to
discuss compliance with the injunction.
C. FRCP 65(c)
FRCP 65(c) permits a court to grant preliminary injunctive relief “only if the
movant gives security in an amount that the court considers proper to pay the costs
and damages sustained by any party found to have been wrongfully enjoined or
restrained.” Fed. R. Civ. P. 65(c). While this language appears to be mandatory,
“Rule 65(c) invests the district court ‘with discretion as to the amount of security
required, if any.’” Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009)
(some internal quotation marks and citation omitted). Based on the class
composition and record before it, the Court waives the bond requirement.
68

1304
CONCLUSION
In accordance with the foregoing, the Court HEREBY (1) GRANTS
Plaintiffs’ Motion for Provisional Class Certification, ECF No. 20, and (2)
GRANTS IN PART AND DENIES IN PART Plaintiffs’ Motion for Preliminary
Injunction and Temporary Restraining Order. ECF No. 6.
IT IS SO ORDERED.
DATED: Honolulu, Hawai‘i, July 13, 2021.
Jill A. Otake
United States District Judge
Civil No. 21-00268 JAO-KJM, Alvarado v. Otani; ORDER (1) GRANTING PLAINTIFFS’ MOTION FOR
PROVISIONAL CLASS CERTIFICATION AND (2) GRANTING IN PART AND DENYING IN PART
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER
69

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Case 1:21-cv-00268-JAO-KJM Document 37 Filed 07/13/21 Page 1 of 69 PageID #:

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

ANTHONY CHATMAN, FRANCISCO CIVIL NO. 21-00268 JAO-KJM

ORDER (1) GRANTING PLAINTIFFS’ MOTION FOR PROVISIONAL

This putative class action concerns the alleged conditions in Hawaii’s

Anthony Chatman (“Chatman”), Francisco Alvarado (“Alvarado”), Zachary

Granados (“Granados”), Tyndale Mobley (“Mobley”), and Joseph Deguair

(“Deguair”) (collectively, “Plaintiffs”) contend that the Department of Public

Safety (“DPS”), headed by Defendant Max Otani (“Defendant”), has mishandled

Plan”) in violation of their Eighth and Fourteenth Amendment rights. Plaintiffs

preliminary injunction; namely, the appointment of a special master to oversee the

development and implementation of Plaintiffs’ proposed response plan. For the

AND DENIES IN PART Plaintiffs’ Motion for Preliminary Injunction and

Temporary Restraining Order (“Injunction Motion”). ECF No. 6.

Defendant is ORDERED to immediately implement and adhere to DPS’s

inmate population (1,532 inmates out of a population of approximately 3,000) and

resources/ (last visited July 13, 2021).

The first outbreak occurred at Oahu Community Correctional Center

In November 2020, Waiawa Correctional Facility (“Waiawa”) experienced

an outbreak, causing 90% of the inmate population to contract COVID-19. Id.

died from COVID-19. Id. ¶ 105.

In March 2021, an outbreak at Maui Community Correctional Center

(“MCCC”) resulted in 100 inmate COVID-19 infections, which represents one-

third of MCCC’s inmate population. Id. ¶ 106.

The most recent outbreak occurred at Hawai‘i2 Community Correctional

conditions in holding areas at HCCC, most notably a room known as the

Plaintiffs are currently incarcerated or detained at DPS correctional facilities

COVID-19 shortly thereafter, including Chatman’s roommate. Id. ¶ 129.

Chatman’s roommate nevertheless remained in their cell, and Chatman then

moved in. Id. ¶ 132.

Chatman filed a grievance after contracting COVID-19 and appealed each

Alvarado, a 52 year old inmate with lupus, was previously incarcerated at

Halawa from 2019 to March 2021, and is currently incarcerated at Kulani

Correctional Facility (“Kulani”). Id. ¶¶ 137–40. At Halawa, Alvarado was a

cells after testing positive for COVID-19, comingling of COVID-positive inmates

with asymptomatic inmates, and transfer of asymptomatic inmates into unsanitized

cells previously occupied by COVID-positive inmates. Id. ¶ 142. During meal

deliveries, Alvarado was exposed to COVID-positive inmates, who were not

When Alvarado contracted COVID-19 in December 2020, he requested

Deguair, an asthmatic, has been incarcerated at HCCC since December 4,

Deguair noticed an absence of mitigation efforts to prevent the spread of COVID-

Due to these conditions, Deguair requested an inmate grievance form almost

Mobley received a COVID-19 vaccine prior to his incarceration at HCCC.

COVID-19. Id. ¶ 174.b.

the COVID-positive inmates shared restroom facilities and he saw no efforts by

staff to sanitize the facilities. Id. ¶¶ 178–79.

COVID-19 on June 6, 2021. Id. ¶ 183.

November 2020, certain inmates housed in Waiawa’s building 9 displayed

positive for COVID-19. Id. ¶ 189.b–c.

Guards in building 9 wore “hazardous materials” suits because building 9

these suits into building 10 to conduct head counts. Id. ¶ 191.

Approximately 30 COVID-positive inmates were transferred to building 10

from other buildings in mid-November 2020, after which Granados contracted

In early December 2020, Granados filed a grievance regarding Waiawa’s

conditions, followed by appeals after receiving responses. Id. ¶¶ 195–96.

B. DPS’s Management of COVID-19

In addition to the facilities housing Plaintiffs, DPS operates and manages

Kauai Community Correctional Center (“KCCC”), MCCC, OCCC, and the

Women’s Community Correctional Center (“WCCC”). Id. ¶ 43. Plaintiffs allege

¶ 83. In particular, Plaintiffs identify the following deficiencies: (1) housing up to

60 residents/detainees in a single room; (2) failure to provide adequate water; (3)

failure to provide sanitary living conditions or proper hygiene; (4) failure to