1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 ADRIAN RODRIGUEZ ALCANTARA; Case No.: 20cv0756 DMS (AHG)

YASMANI OSORIO REYNA; MARIA

11

FLOR CALDERON LOPEZ; MARY ORDER (1) GRANTING

12 DOE; on behalf of themselves and all DEFENDANTS’ MOTION TO others similarly situated, DISMISS AND (2) DENYING AS 13

MOOT DEFENDANTS’ MOTION TO

Plaintiffs-Petitioners, 14 DECERTIFY SUBCLASS v. 15 GREGORY ARCHAMBEAULT, San 16 Diego Field Office Director, Immigration 17 and Customs Enforcement; et al., 18 Defendants-Respondents. 19 20 This case returns to the Court on Defendants’ motion to dismiss or to decertify the 21 Otay Mesa Medically Vulnerable Subclass.1 Plaintiffs filed an opposition to the motion, 22 and Defendants filed a reply. After reviewing the parties’ briefs, the relevant legal 23 authority, and the record in this case, the Court grants the motion to dismiss and denies 24 as moot Defendants’ motion to decertify the Otay Mesa Medically Vulnerable Subclass. 25 / / / 26 27 28 1 I. 2 BACKGROUND 3 This case was filed on April 21, 2020, at the beginning of the COVID-19 pandemic. 4 At that time, there was no vaccine or specific treatment for COVID-19, and the means 5 and methods of transmission were uncertain. Amidst all of the uncertainties surrounding 6 the virus, one thing was clear: The virus was spreading like wildfire in congregate 7 environments like nursing homes, cruise ships, and detention facilities. 8 One of the reasons for the rapid spread of the virus in those environments was the 9 inability of people to maintain a safe distance from one another. To remedy that problem 10 in detention facilities, individuals and groups began petitioning courts to release 11 detainees, particularly those who were at heightened risk of severe illness or death from 12 COVID-19. 13 This case was one of those cases. Indeed, the second paragraph of the Complaint 14 makes that clear. It states: 15 This action challenges U.S. Immigration and Customs Enforcement (‘ICE’)’s continued detention of Plaintiff-Petitioners (“Plaintiffs”) and similarly 16 situated people in the midst of the Coronavirus Disease 2019 pandemic, under 17 conditions and population levels that make social distancing impossible and place them at severe risk, in violation of their Fifth Amendment Due Process 18 Rights. 19 20 (Compl. ¶ 2, ECF No. 1) (emphasis added). Throughout the Complaint, Plaintiffs 21 repeatedly emphasized that the focus of their case was the immediate release of class 22 members “from ICE custody due to the urgent threat to their lives and health posed by 23 COVID-19.” (Id. ¶ 3; see also id. ¶ 146 (“When conditions of confinement in an 24 immigration detention facility lead to uniformly unsafe conditions that rise to the level of 25 a constitutional violation, the only available remedy is to reduce levels of detention unless 26 and until conditions can be brought in line with constitutional standards.”) (emphasis 27 added); id. ¶ 147 (“releasing detainees from Otay Mesa [Detention Center] and Imperial 28 [Regional Detention Facility] is the only viable remedy to ensure their safety from the 1 threat to their health that COVID-19 poses.”) (emphasis added); id. ¶ 149 (“Defendants 2 are subjecting Plaintiffs to unreasonable harm from continued detention. Release is the 3 only effective remedy.”) (emphasis added).) That focus on population reduction was also 4 made clear in Plaintiffs’ motion for a temporary restraining order (“TRO”), (see ECF No. 5 2-1 at 1 (seeking “the immediate release, … of a subclass of medically vulnerable persons 6 incarcerated at Otay Mesa [Detention Center (“Otay Mesa”)] who face heightened risk of 7 serious illness or death due to COVID-19”)), their motion for a preliminary injunction 8 directed to Otay Mesa, (see ECF No. 60 at 1 (seeking an injunction forbidding “the 9 continued detention of medically vulnerable people in U.S. Customs and Immigration 10 Enforcement (“ICE”) custody in Otay Mesa.”)), and their motion for relief from the denial 11 of their motion for preliminary injunction. (See ECF No. 112 (seeking a process to resolve 12 requests for release from medically vulnerable detainees); ECF No. 125 (stating in reply 13 brief that case “remains a challenge to unconstitutional confinement”.)) 14 After the Court granted Plaintiffs’ request for a TRO and ordered Defendants to 15 release certain members of the Otay Mesa Medically Vulnerable Subclass,2 Defendants 16 filed a motion to dismiss the case on the ground it was moot. Specifically, Defendants 17 argued the case was moot because Plaintiffs had received all of the relief sought in the 18 Complaint, i.e., release from detention, and none of the detainees that had been released 19 would be re-detained.3 In response to that motion, Plaintiffs pointed out that some 20 Subclass members remained in detention, therefore their case was not moot. (ECF No. 21 110 at 3.) Plaintiffs also explained that they were seeking other forms of injunctive relief, 22 23 24 2 The Otay Mesa Medically Vulnerable Subclass was defined as “All civil immigration 25 detainees incarcerated at the Otay Mesa Detention Center who are age 60 or over or who have medical conditions that place them at heightened risk of severe illness or death from 26 COVID-19 as determined by CDC guidelines.” (ECF No. 41 at 13.) 27 3 By the time the motion to dismiss was filed in August 2020, Defendants had released 92 of the 134 Subclass members and the COVID-19 infection rate at Otay Mesa was in 28 1 including an order requiring Defendants to provide periodic reports on the number of 2 COVID-19 cases at Otay Mesa, (id. at 4-5), and conduct universal testing at both Otay 3 Mesa and Imperial. (Id. at 4.) Because some Subclass members were still detained at 4 Otay Mesa and the Court had not yet ordered Defendants to provide periodic reports on 5 the COVID-19 outbreak, the Court denied Defendants’ motion. (ECF No. 130.) 6 Thereafter, the parties began the formal discovery process, and in April 2021, the 7 parties began settlement discussions. (ECF No. 171.) By that time, COVID-19 vaccines 8 were available and being administered to wide swaths of the population, including 9 individuals in federal custody. 10 In October 2021, the parties requested to stay the case so they could continue their 11 settlement discussions. The Court granted that request, and the case was stayed for more 12 than a year while those discussions progressed. During that time, the country continued 13 to make significant progress in its fight against COVID-19 through expanded vaccination 14 efforts and the development of specific treatments for the virus, including Paxlovid. 15 After the stay was lifted in November 2022, Defendants moved again for judgment 16 on the pleadings and/or to dismiss the case on the ground it was moot. (ECF Nos. 201, 17 202.) In that motion, Defendants argued the case was moot in light of the Supreme 18 Court’s decision in Garland v. Aleman Gonzalez, 596 U.S. 543 (2022), and because the 19 named Plaintiffs had been released from detention and their removal cases had been 20 resolved. (ECF No. 201 at 5.) In response, Plaintiffs argued the motion was premature 21 and they should first be allowed to amend their complaint to substitute in new plaintiffs 22 and “align the remedies Plaintiffs seek with the current state of the pandemic and ICE’s 23 response to it.” (ECF No. 209 at 4.) Those remedies would no longer include the release 24 of detainees at Otay Mesa. (Id. at 10.) Instead, Plaintiffs would seek to remedy 25 Defendants’ alleged failure to provide the putative class with access to Paxlovid and 26 alleged failure to provide detainees with “certain baseline protections against COVID.” 27 (Id. at 5.) The Court agreed with Defendants that the individual claims of the named 28 Plaintiffs were moot and thus those claims were dismissed. (ECF No. 221.) The claims 1 of the Otay Mesa Medically Vulnerable Subclass were not moot, however, and thus the 2 Court denied the motion to dismiss that class claim and ordered Plaintiffs to file a motion 3 to substitute a new class representative. (Id.) 4 Plaintiffs then filed their motion to substitute a new class representative, and before 5 the Court could rule on that motion, Defendants filed the present motion to dismiss. As 6 in their previous motions to dismiss, Defendants again argue this case is moot, but for 7 different reasons. Specifically, Defendants argue the case is now moot “due to the 8 existence and availability of the vaccine and the end of the COVID-19 emergency.” (ECF 9 No. 227 at 5.) Plaintiffs respond that their claims are not moot because although they “no 10 longer seek release,” they are still seeking “to remedy failures in the COVID-19 11 protection policies and procedures within the facility.” (ECF No. 244 at 7.) 12 II. 13 DISCUSSION 14 “The doctrine of mootness, which is embedded in Article III’s case or controversy 15 requirement, requires that an actual, ongoing controversy exist at all stages of federal 16 court proceedings.” Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 2011). 17 “[W]hen the issues presented are no longer ‘live’ or the parties lack a legally cognizable 18 interest in the outcome[,]” a case is moot and must be dismissed. Powell v. McCormack, 19 395 U.S. 486, 496 (1969). “In other words, if events subsequent to the filing of the case 20 resolve the parties’ dispute, we must dismiss the case as moot, because ‘[w]e do not have 21 the constitutional authority to decide moot cases[.]’” Pitts, 653 F.3d at 1087 (citations 22 omitted). 23 “Consistent with the dictates of the Supreme Court, we approach mootness 24 cautiously and with care to ensure that the party claiming the benefit of mootness—here, 25 the government—has carried its burden of establishing that the claim is moot.” United 26 States v. Larson, 302 F.3d 1016, 1020 (9th Cir. 2002). To meet that burden, Defendants 27 must show it is absolutely clear that Plaintiffs no longer need the judicial protection 28 sought through their Complaint. Id. In considering whether Defendants have made that 1 showing, the Court must give close inspection to claims “extracted late in the day from 2 [a] general prayer for relief and asserted solely to avoid otherwise certain mootness[.]” 3 Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 71 (1997). In the Ninth Circuit, attempts 4 to bootstrap new forms of relief “into an ancillary prayer for relief” late in the litigation 5 are not permitted. Bain v. Cal. Teachers Ass’n, 891 F.3d 1206, 1212 (9th Cir. 2018). 6 Here, there is no dispute Plaintiffs are no longer seeking the primary form of relief 7 requested in their Complaint, namely release of medically vulnerable detainees from ICE 8 custody. Plaintiffs also make no mention of their request for “information regarding the 9 ongoing COVID-19 outbreak in Otay Mesa[,]” (Compl. at 42), presumably because, 10 nearly four years later, that outbreak is long over. This leaves only Plaintiffs’ request for 11 a declaration “that the conditions under which Defendants have confined Plaintiffs and 12 Otay Mesa and Imperial Class members place class members at substantial risk of serious 13 illness and death, in violation of the Due Process Clause of the Fifth Amendment[.]” (Id.) 14 However, Plaintiffs do not appear to rely on this request to refute Defendants’ mootness 15 arguments. 16 Instead, Plaintiffs rely on case law stating a case is moot only if “’there is no 17 effective relief remaining for a court to provide.’” (See Opp’n to Mot. at 3, ECF No. 244.) 18 (citations omitted). Generally, this is an accurate statement of the law, but Plaintiffs fail 19 to acknowledge that it comes with an important limitation, namely, that the relief still 20 available to the court be requested in the complaint. The availability of some form of 21 relief untethered to the complaint does not save a case from being dismissed as moot. 22 Two cases from the Ninth Circuit bear this out. The first is Seven Words LLC v. 23 Network Solutions, 260 F.3d 1089 (9th Cir. 2001). In that case, the plaintiff sought 24 injunctive relief to remedy the defendant’s failure to register certain domain names on the 25 Internet. Id. at 1091. The district court dismissed the case, and two months before 26 scheduled argument at the Ninth Circuit, all of the domain names at issue were registered 27 to third parties. Id. at 1094. The issue of mootness was raised on appeal, and the plaintiff 28 argued the case was not moot because “it may still be entitled to damages and/or 1 declaratory relief.” Id. at 1095. The court rejected that argument because the plaintiff 2 “never sought damages in this litigation” and there was no longer a live controversy 3 supporting declaratory relief, stating “[w]e will not second-guess Seven Words’s tactical 4 decisions and now conjure up a damages claim where none exists.” Id. at 1095, 1098. 5 The plaintiff further argued that “its general prayer for relief in its complaint 6 includes an implicit prayer for damages, pointing out that a general prayer for relief ‘may 7 include appropriate monetary relief should circumstances prohibit injunctive relief.’” Id. 8 at 1097. The court rejected this argument also, paying heed to the Supreme Court’s 9 admonition “to be wary of late-in-the-day damages claims,” and “cautioning that ‘a claim 10 for … damages, extracted late in the day from [plaintiff’s] general prayer for relief and 11 asserted solely to avoid otherwise certain mootness, [bears] close inspection.’” Id. 12 (quoting Arizonans for Off. Eng., 520 U.S. at 71). Considered through that lens, the Seven 13 Words court found the plaintiff’s attempt to fashion a new specific from of relief from a 14 general prayer for relief “would render the [notice] pleading requirements of Federal Rule 15 of Civil Procedure 8(a)(3) illusory and certainly prejudice [the defendant].” Id. at 1098. 16 The Ninth Circuit revisited these issues in Bain. There, the plaintiffs filed a 17 complaint against the public sector teachers’ Union alleging the Union was violating their 18 First Amendment rights. Bain, 891 F.3d at 1208-09. In the complaint, the plaintiffs 19 specifically sought various forms of declaratory and injunctive relief. Id. at 1210-11. The 20 district court dismissed the case and the plaintiffs appealed that ruling. While the appeal 21 was pending, the plaintiffs disassociated from the Union, raising the issue of whether the 22 appeal was moot. Id. at 1209, 1211. On that issue, the plaintiff argued the case was not 23 moot because the district court retained the ability to grant restitution. Id. at 1212. The 24 court of appeal began its discussion by pointing out that “[u]ntil now, Plaintiffs never 25 sought any type of money damages.” Id. Instead, the plaintiffs’ requests for declaratory 26 and injunctive relief “form[ed] the body, heart, and soul of Plaintiffs’ action.” Id. Given 27 those two findings, the court interpreted the plaintiffs’ attempt “to transform their lawsuit 28 from a request for prospective equitable relief into a plea for money damages to remedy 1 past wrongs” as an “eleventh hour” effort to defeat mootness, which the court rejected. 2 Id. at 1212-13. Like the Seven Words court, the Bain court reasoned that the plaintiffs 3 were simply trying “to ‘wrest a claim for [restitution] from a general prayer for relief’ 4 without prior notice to the [defendant].” Id. at 1214. 5 In this case, as in Seven Words and Bain, Plaintiffs are no longer seeking the relief 6 sought in their Complaint, namely and most importantly, the immediate release of 7 medically vulnerable detainees at Otay Mesa.4 Instead, and in response to Defendants’ 8 assertions of mootness, Plaintiffs have changed tack and now appear to be challenging 9 Defendants’ “COVID-protection policies and procedures within the facility,” (Opp’n to 10 Mot. at 7), particularly Defendants’ vaccination program and their failure to stock 11 Paxlovid. (Id. at 4-6.) Although the exact boundaries of this relief are unclear, what is 12 clear is the Complaint did not raise either the issue of a vaccination program or the 13 availability of Paxlovid. Indeed, the Complaint could not have raised those issues because 14 neither vaccines nor Paxlovid existed when the Complaint was filed. Any argument that 15 these issues were somehow contemplated by the Complaint is simply an impossibility, as 16 is any suggestion that Defendants had notice that Plaintiffs were seeking relief related to 17 these issues. Like the plaintiffs in Seven Words and Bain, Plaintiffs here are “attempt[ing] 18 to manufacture jurisdiction and avoid mootness by suddenly seeking” a different form of 19 / / / 20 / / / 21 / / / 22

23 4 As mentioned above, Plaintiffs do not rely on the two other forms of relief requested in 24 their Complaint, namely, (1) the request for information related to the “ongoing COVID- 25 19 outbreak in Otay Mesa” and (2) the request for a declaration “that the conditions under which Defendants have confined Plaintiffs and Otay Mesa and Imperial Class members 26 place class members at substantial risk of serious illness and death[.]” (Compl. at 42.) 27 Even if they did, the Court would find those requests do not save this case from mootness because the COVID-19 outbreak at Otay Mesa in April 2020 has ended and the conditions 28 1 relief. Bain, 891 F.3d at 1214. This Court rejects that attempt, and following the 2 reasoning of Seven Words and Bain, finds this case is moot.5 3 / / / 4 / / / 5

6 7 5 The Court notes there is case law that could support a finding, consistent with Defendants’ arguments here, that changes in the COVID-19 landscape over the past four 8 years also render this case moot. For instance, in Clark v. Governor of N.J., 53 F.4th 769, 9 781 (3d Cir. 2022), cert. denied by Clark v. Murphy, ___ U.S. ___, 143 S.Ct. 2436 (2023), the Third Circuit found that an appeal involving a challenge to state-issued COVID-19 10 restrictions was moot in light of changed circumstances. In discussing mootness, that 11 court stated “it is hard to imagine that we could once again face anything quite like what confronted us [in 2020-21]. Moreover, the public health outlook has changed 12 dramatically since the dark days of March 2020 …. Our knowledge of the virus and its 13 vectors of transmission, the rollout of the vaccines, and the availability of therapeutic responses to infection have totally changed the nature of the disease itself, our 14 understanding of it, and our response to it. The accumulation of those changed 15 circumstances thus make the return of the same pandemic … unlikely.” Id. at 778. The Eighth Circuit came to the same conclusion in Glow In One Mini Golf, LLC v. Walz, 37 16 F.4th 1365 (8th Cir. 2022), cert. denied, ___ U.S. ___, 143 S.Ct. 574 (2023), as did the 17 Ninth Circuit in Brach v. Newsom, 38 F.4th 6 (9th Cir. 2022) (en banc), cert. denied, ___ U.S. ___, 143 S.Ct. 854 (2023). This case is distinguishable from those cases because it 18 does not involve a challenge to state-issued executive orders. In those cases, the mootness 19 question is neater because the challenged action is revoked or rescinded with the stroke of a pen. Here, by contrast, the conduct at issue is the continued detention of medically 20 vulnerable individuals in a carceral setting, which presents a messier and more 21 complicated situation. What binds the cases together, however, is they are all based on the same underlying fact of an unprecedented, once-in-a-lifetime pandemic that is now 22 under control. Relying on that common thread, the Third Circuit extended the holding of 23 Clark to an appeal involving requests for release from state custody in light of the COVID-19 pandemic. See Newkirk v. Superintendent Huntingdon SCI, Nos. 21-1739, 24 21-1787 and 21-1854, 2023 WL 4861767 (3d Cir. July 31, 2023). There, the court stated 25 that “‘mootness concerns itself with … whether the same precise situation – the pandemic such as it presented itself in 2020 and 2021 – will occur again[.]’” Id. at *1 (quoting 26 Clark, 53 F.4th at 778-79). Finding that occurrence improbable, the court dismissed the 27 appeal as moot. Although the Ninth Circuit has not taken this approach to similar custody challenges, the reasoning of these cases supports Defendants’ arguments here that this 28 1 HI. 2 CONCLUSION 3 For the reasons set out above, the Court grants Defendants’ motion to dismiss this 4 ||case as moot. In light of this holding, Defendants’ alternative motion to decertify the 5 ||Otay Mesa Medically Vulnerable Subclass is denied as moot, as are Plaintiffs’ motion to 6 || substitute new class representative and motion to add new plaintiffs. The Clerk of Court 7 enter judgment accordingly and close this case. 8 IT IS SO ORDERED. 9 || Dated: March 20, 2024 > 10 4 Yn: Hon. Dana M. Sabraw, Chief Judge United States District Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28