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Claudia Romero-Lorenzo, Plaintiff, v. Brian Koehn, et al., Defendants. (2023)

United States District Court, D. Arizona.

Claudia Romero-Lorenzo, Plaintiff, v. Brian Koehn, et al., Defendants.

No. CV-20-00901-PHX-DJH (ESW)

Decided: May 15, 2023


This Order amends the Court's Order at Doc. 240 only insofar as it corrects the date set for the scheduled Settlement Conference from July 26, 2023, to July 17, 2023, per Doc. 235.

Defendant Kline filed a “Motion for Reconsideration of the Order Denying in Part His Motion for Summary Judgment (Doc. 231),” which Federal Defendants join. (Docs. 232, 233). The Court permitted Plaintiffs to respond, and Plaintiffs filed a Response (Doc. 237). No reply briefs were permitted.

The Court will deny Defendants’ Motion/Joinder.

I. Background

Plaintiffs, former pretrial detainees in CoreCivic's Central Arizona Florence Correctional Complex (CAFCC), initiated this class action in May 2020, early in the COVID-19 pandemic, seeking declaratory and injunctive relief on behalf of themselves and all similarly situated individuals confined at CAFCC. (Doc. 1.) Plaintiffs sued Defendant CAFCC Warden Kline and Federal Defendants Van Bayless, Acting United States Marshall for the District of Arizona, Donald Washington, Director of the U.S. Marshall's Service, and Michael Carvajal, Director of the Federal Bureau of Prisons, in their official capacities, alleging that CAFCC failed to take reasonable available measures to protect Plaintiffs from exposure to COVID-19 in violation of their Fifth Amendment due process rights. (Id.)1

On March 30, 2023, the Court granted Defendants’ Motion for Summary Judgment on most issues alleged in the Complaint but found genuine issues of material fact whether CAFCC failed to take reasonable available measures to (1) offer COVID-19 boosters to detainees at intake and use electronic health records to recommend/schedule boosters, (2) use electronic health records to identify and target at-risk/immunocompromised detainees for COVID-19 vaccinations and other protections, and (3) stock and prescribe CDC- and NIH-recommended antiviral treatments for COVID-19 positive patients. (Doc. 231.) The Court ordered the parties to engage in a settlement conference. (Id. at 46–47.) Defendants now move for reconsideration, arguing that new evidence, including updated guidance from the Centers for Disease Control and Prevention (CDC), calls for dismissal of this action in its entirety.

II. Legal Standards

A. Reconsideration

The Court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th Cir. 1992). “The Court will ordinarily deny a motion for reconsideration of an Order absent a showing of manifest error or a showing of new facts or legal authority that could not have been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g)(1). Any motion for reconsideration must specifically identify the matters that were overlooked or misapprehended by the Court. Id. If any new matters are being brought to the Court's attention for the first time, the movant must identify the reasons they were not presented earlier, and any specific modifications being sought in the Court's Order. Id. No motion for reconsideration of an Order may repeat any oral or written argument made in support of, or in opposition, to the motion that resulted in the Order. Id.

B. Fifth Amendment

The government or private entity responsible for the government function of incarcerating pre-trial detainees is found to have violated its constitutional duty under the Due Process Clause to provide a detainee “conditions of reasonable health and safety” when:

(i) [It] 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 [government or private entity] 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 ․; and

(iv) by not taking such measures, the [government or private entity] caused the plaintiff's injuries.

Roman v. Wolf, 977 F.3d 935, 943 (9th Cir. 2020) (alternations in original) (quoting Gordon v. Cnty. of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018) (discussing the “objective deliberate indifference standard”)).

III. Analysis

Defendants argue that the CDC updated its COVID-19 Guidance for detention facilities on November 29, 2022, while Defendants’ Motion for Summary Judgment was still pending, leading to more relaxed standards for COVID-19 protections. (Doc. 232 at 2–4.) They also note that, on April 10, 2023, President Biden signed a congressional resolution ending the COVID-19 national emergency, and on or about March 2, 2023, the United States Department of Health and Human Services (HHS) announced it was planning for the public health emergency to expire on May 11, 2023. (Id. at 4–5.) Defendants argue that these developments and low community levels of COVID-19 nationwide, and in Arizona and Pinal County specifically, constitute new evidence that could not have been brought to the Court's attention during summary judgment briefing and call for reconsideration of the Court's partial denial of their Motion for Summary Judgment. (Id. at 5–6.) Throughout their Motion for Reconsideration, Defendants incorporate information from official government websites, including the CDC website, to show that current COVID-19 conditions do not support Plaintiffs’ claims for relief.2

A. COVID-19 Boosters

On summary judgment, the Court found that

Plaintiffs have raised a genuine issue of material fact that CAFCC does not offer COVID-19 boosters to detainees on intake, even when it is clear from the intake responses that they are eligible for a booster. (PSOF ¶ 249.) It is also undisputed that CAFCC staff do not enter notes or reminders in their electronic medical system to track detainees’ eligibility for boosters and/or schedule them for boosters and instead only provide boosters when detainees specifically request them. Expert testimony from Dr. Murray and Dr. Venters also shows that correctional healthcare systems generally make affirmative efforts to track and schedule medically recommended tests and vaccinations in other contexts and do not rely on individual detainees to do so on their own.

(Doc. 231 at 38.) The Court determined that “a reasonable fact finder could conclude that” failing to implement measures “to track and offer boosters to detainees like correctional institutions routinely use for other recommended tests and vaccinations[ ] is objectively unreasonable.” (Id.)

The CDC's November 29, 2022 “Guidance on Management of COVID-19 in ․ Detention Facilities” now recommends for vaccines: “Encourage and enable staff, volunteers, and residents to stay up to date on COVID-19 vaccination. Where possible, offer the vaccine onsite and support peer outreach to promote vaccination.” (Doc. 238 at 6.) Defendants reiterate that, at summary judgment, it was undisputed CAFCC began offering vaccines and boosters to all CAFCC detainees over age 18 in March 2021 and has never run out of doses; information about how to obtain a booster is posted and is available in a handbook; and detainees may request boosters via medical request forms. (Doc. 232 at 6–7 (citing Doc. 231 at 13–14).) Based on these facts, they argue, “Plaintiffs cannot seriously contend that CoreCivic's efforts to make vaccines and boosters available at CAFCC fail to ‘encourage and enable’ Plaintiffs to get vaccines and boosters, or that the COVID-19 vaccine and boosters are not available onsite.” (Doc. 232 at 7.) Defendants also argue that, even if Plaintiffs can show CAFCC does not offer boosters at intake, this would not show its policies on boosters are objectively unreasonable or in “reckless disregard” to detainee health. (Id.)

Plaintiffs argue that Defendants have failed to produce new evidence in support of their Motion because the CDC's November 2022 Guidance does not materially differ from the May 2022 Guidance the Court relied on at summary judgment. (Doc. 237 at 6.) The earlier Guidance similarly recommended that facilities “[c]ontinue to provide and encourage up to date COVID-19 vaccination for staff members and residents (including boosters, as well as additional doses for people with weakened immune systems and for others who are eligible for additional doses),” and did not enumerate specific steps facilities should follow to carry out these recommendations. (Doc. 192-2 at 90.) Plaintiffs argue that there are therefore no substantive changes from the CDC that call for reconsideration of the Court's denial of summary judgment on CAFCC's booster policies.

Plaintiffs also note that the Court did not rely on the CDC Guidance to find a question of fact whether CoreCivic's booster policies were objectively reasonable. (Doc. 237 at 6.) Instead, the Court cited the expert opinions of Dr. Murray and Dr. Venters that correctional institutions generally perform affirmative outreach to detainees who become eligible for recommended medical tests and vaccinations in other contexts. From this, the Court found a question of fact whether CAFCC's failure to do so for COVID-19 boosters was objectively unreasonable. (Id. at 7.)

Defendants previously emphasized in their summary judgment briefing that the CDC Guidance is not intended to enumerate the precise prevention measures each institution must follow to reduce the risk of COVID-19 but is “intended to provide guiding principles” that facility administrators must adapt “based on their specific populations and operational needs.” (Id.; Doc. 201-7 at 3.) The lack of specificity in the CDC Guidance for how to encourage and increase COVID-19 vaccination/booster uptake is therefore not dispositive of whether a reasonable jury could find CAFCC's failures to offer COVID-19 boosters at intake or to use its available electronic health records to track and recommend/schedule detainees for boosters is objectively unreasonable.

As noted, the Court previously relied primarily on Dr. Murray's and Dr. Venters’ expert opinions about the reasonable measures correctional facilities generally take to prevent other serious risks to detainee health, such as annual tuberculosis testing and scheduling inmates for shingles and other recommended vaccines. Dr. Venter opined that

[s]ome of the most basic functions of correctional health departments involve scheduling healthcare measures after particular time intervals, even when this healthcare might not be scheduled in this way in the community. For example, in carceral settings, tuberculosis tests are recommended on an annual interval. Correctional healthcare systems generally take affirmative efforts to schedule these tests after a year has passed, rather than waiting for individual detained people to request them. Correctional healthcare systems also generally perform affirmative outreach to people eligible for certain vaccinations, such as the pneumovax and shingles vaccine, both of which are available to a subset of the population.

(Doc. 231 at 236 (quoting Doc. 203 (Venters Decl.) ¶ 53).)

The Court also relied on facts specific to CAFCC, such as its low vaccination and booster rates, to find a question of fact whether a reasonable official under like circumstances would have appreciated the high degree of risk of not adopting such “reasonable available measures” to abate the spread of COVID-19. (Doc. 231 at 36–37.)

Defendants do not point to any new evidence that vaccination and booster rates at CAFCC have significantly increased since their summary judgment briefing or that the risks to detainees of contracting COVID-19 in the incarceration setting is any less than the risk of contracting other communicable diseases for which correctional facilities routinely track and schedule inmates for recommended tests and vaccines. The new evidence Defendants produce from the CDC also does not call for reconsideration of the Court's previous findings on this issue, and the Court will deny Defendants’ Motion for Reconsideration regarding their booster policies.

B. Tracking Immunocompromised Detainees

On summary judgment, the Court found questions of fact “whether Defendants fail to effectively track and target high risk or immunocompromised detainees for vaccinations” and “whether failure to do so constitutes reckless disregard to the heightened risk of harm to these detainees of contracting COVID-19, of which a reasonable official would know.” (Doc. 231 at 39.) As above, this finding was based, in part, on the uncontroverted evidence of low vaccination/booster rates at CAFCC. It was undisputed CAFCC has available electronic health records to track and target immunocompromised individuals for vaccines but had not developed any strategies to do so. Thus, the Court concluded that “a reasonable fact finder could determine that failing to use reasonable available measures to track and reach out to immunocompromised individuals is [in] reckless disregard to a serious risk of harm that any reasonable correctional official would appreciate.” (Id.)

Defendants acknowledge that the CDC's updated November 2022 Guidance “recommends that CoreCivic ‘[a]ssess what portion of people in the facility are more likely to get very sick from COVID-19, for example, due to underlying health conditions, older age, pregnancy, or poor access to medical care,’ ” but they argue that they are nonetheless entitled to reconsideration because the Guidance “does not specify any particular format for doing so.” (Doc. 232 at 7; see Doc. 238 at 6.) Defendants contend it is sufficient that detainees’ individual medical files contain this information, and they argue, “Plaintiffs cannot seriously contend that CoreCivic is unaware of those detainees at CAFCC who are ‘more likely to get very sick from COVID-19.’ ” (Id. at 8.)

The Court already rejected these arguments at summary judgment, finding that the testimonial evidence Defendants produced about how at-risk detainees were tracked at CAFCC was vague, and it

[s]uggest[ed] that [at-risk] individuals are not specifically targeted for vaccines, boosters, or any other protective measures unless they seek out a medical appointment or otherwise come across the “radar” of the Medical Director or another provider, even though CAFCC clearly has an ability to track and target such individuals.

(Doc. 231 at 39.) The Court also concluded that “a question of fact remains about whether CAFCC's failure to take reasonable available measures to track and target high risk individuals for vaccines and other COVID-19 protections amounts to a due process violation.” (Id.)

The CDC's lack of specificity in both its May and November 2022 Guidance for how correctional facilities should track high risk detainees for COVID-19 protections does not call for reconsideration of the Court's conclusion that there is a triable issue of fact whether CAFCC's failure to adopt reasonable available measures to do so is objectively unreasonable. Defendants offer no new evidence about how CAFCC tracks and targets high risk detainees that would call for reconsideration of this conclusion. Instead, Defendants merely ask the Court to “rethink what it already thought” regarding its tracking efforts, which is not grounds for reconsideration. “A motion for reconsideration should not be used to ask the court ‘to rethink what the court had already thought through—rightly or wrongly.’ ” West Thomas Bldg. Enterprises v. Soetantyo, 976 F. Supp. 1298, 1302 (D. Ariz.), affirmed, 111 F.3d 138 (9th Cir. 1997). (internal quotation marks and citation omitted). Defendants’ Motion for Reconsideration is denied concerning CAFCC's tracking of immunocompromised detainees.

C. Antiviral Medications

On summary judgment, it was undisputed that the CDC recommended treating COVID-19 positive patients with antiviral medications, such as Paxlovid and Remdesivir, which were readily available to CAFCC. Yet, CAFCC did not stock these medications and “had never prescribed Paxlovid or any other antivirals to any of the hundreds of patients who ha[d] tested positive for COVID-19 at CAFCC since these medications became available.” (Doc. 200 at 5–7.) The Court found there is a question of fact that CAFCC providers either fail to evaluate patients’ eligibility for such treatments “or simply choose not to prescribe these treatments, even when the standard of care may call for them,” which, in turn, created a question of fact “that CAFCC's COVID-19 treatment practices are ․ objectively unreasonable.” (Doc. 231 at 45.)

The November 2022 CDC Guidance continues to promote the use of antivirals in the incarceration context, stating that “[e]ffective treatments are now widely available and must be started within a few days after symptoms develop to be effective. [Facilities should] support timely treatment for those eligible; facilities without onsite healthcare capacity should plan to ensure timely access to offsite care.” (Doc. 238 at 7.) CAFCC has onsite health clinics capable of administering medications, yet Defendants argue as they did previously that CAFCC's failure to stock these medications is immaterial because “[n]othing in the guidance requires a facility to keep a stock of such treatments onsite or requires that a facility provide them to a certain percentage of the population.” (Doc. 232 at 8.) The Court previously rejected similar arguments, stating,

Plaintiffs need not show that Defendants failed to comply with a specific legal requirement to demonstrate a due process violation; they need only show that Defendants “did not take reasonable available measures to abate th[e] risk” of harm to detainees under their care, “even though a reasonable official in the circumstances would have appreciated the high degree of risk involved” ․

[a] fact finder could ․ conclude that not having antiviral medications readily available to treat CAFCC COVID-19 positive detainees is not objectively reasonable.

(Doc. 231 at 44 (quoting Roman, 977 F.3d at 943.) In moving for reconsideration, Defendants overlook that the Court found both that “[a] fact finder could ․ conclude that not having antiviral medications readily available to treat CAFCC COVID-19 positive detainees is not objectively reasonable” and that the record showing CAFCC had never prescribed antivirals since the CDC began recommending them, even though they were readily available, created at least a question of fact that CAFCC's COVID-19 treatment practices were not objectively reasonable. (Id. at 44–45.)

Defendants have not presented any new evidence showing that antiviral treatments are no longer medically recommended for COVID-19 positive patients, particularly those with at least one CDC-recognized risk factor, and a reasonable fact finder could conclude that this applies to at least some affected CAFCC detainees. Defendants also have not shown that CAFCC has ever prescribed any antiviral treatments since these treatments became available, and they have not shown that the number and severity of COVID-19 cases in CAFCC has decreased making antiviral treatments no longer medically indicated for any CAFCC COVID-19 patients. Accepting that CAFCC can readily obtain antiviral medications from local pharmacies when its medical staff find such treatments appropriate, questions of fact remain about why CAFCC has not done so even though the CDC and NIH have promoted them as being readily available and highly effective for treating some COVID-19 positive individuals and preventing severe health outcomes. (See Doc. 231 at 44–45.)

In summary, Defendants have not presented any newly discovered evidence or material changes in circumstances within CAFCC that would call for the Court to reconsider its prior findings. In his Motion for Reconsideration, Defendant Kline refers generally to presidential and HHS pronouncements that COVID-19 is no longer a national emergency/public health crisis, and in their Joinder, Federal Defendants cite to the World Health Organization's announcement that COVID-19 no longer constitutes an international public health emergency due to “the decreasing trend in COVID-19 deaths, the decline in COVID-19 related hospitalizations and intensive care unit admissions, and the high levels of population immunity.” (Doc. 232 at 1–2, 9; Doc. 233 at 1.) Apart from showing that the risk of COVID-19 has decreased significantly in the general population, Defendants fail to link these changes to the specific CAFCC prevention measures the Court determined a reasonable fact finder could find objectively unreasonable within the detention setting. Nor do they show that the small subset of measures discussed herein no longer apply. Essentially, Defendants rehash the same arguments they made on summary judgment which is improper grounds for reconsideration. See LRCiv 7.2(g)(1) (“No motion for reconsideration of an Order may repeat any oral or written argument made in support of ․ the motion that resulted in the Order.”) The Court will deny Defendant Kline's Motion for Reconsideration and Federal Defendants Joinder in that Motion.


(1) The reference to the Magistrate Judge is withdrawn as to Defendant Kline's Motion for Reconsideration (Doc. 232) and Federal Defendants’ Joinder (Doc. 233), and the Motion and Joinder are denied.

(2) The Settlement Conference currently set for July 17, 2023 will proceed as scheduled.

Dated this 12th day of May, 2023.


1.   A separate set of Plaintiffs representing a Post-Conviction Class brought claims under the Eighth Amendment, but the Court dismissed those claims for failure to state a claim. (Doc. 89.) The Court also dismissed Plaintiffs’ claims seeking release under 28 U.S.C. § 1331 and/or writs of habeas corpus under § 2241 for lack of subject matter jurisdiction. (Id.)

2.   The Court may take judicial notice of information posted on official government websites. See Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998–999 (9th Cir. 2010); Fed. R. Evid. 201 (allowing a court to take judicial notice of a fact “not subject to reasonable dispute in that it is ․ capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned”). Because Plaintiffs have included the CDC's November 29, 2022 Guidance as an exhibit to their Response (Doc. 238 at 5–11), the Court will cite to this exhibit instead of the more general CDC website.

Honorable Diane J. Humetewa United States District Judge

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Claudia Romero-Lorenzo, Plaintiff, v. Brian Koehn, et al., Defendants. (2023)

Docket No: No. CV-20-00901-PHX-DJH (ESW)

Decided: May 15, 2023

Court: United States District Court, D. Arizona.

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