This case originated in the Western District of Kentucky. Plaintiff sued jail officials for the wrongful death of her father, Charles Troutman Jr., who died by suicide while being held in pretrial detention. There had been six detainee suicides in the 25 months prior to Troutman’s arrest, and both Troutman and his daughter had informed jail staff that he had attempted suicide multiple times in the past. Troutman also attempted suicide during this detention, although the jail doctor did not consider the attempt “serious.” Troutman’s daughter further informed jail staff that Troutman had suffered a severe brain injury and had been crying during phone calls with her while he was in jail, which she told them was unusual.
The trial court granted summary judgment for the defendants on the grounds that the plaintiff failed to establish that jail medical personnel had known that the detainee posed a suicide risk. The trial court concluded that because jail medical personnel testified that they did not notice the risk, they were not subjectively negligent, and thus plaintiff could not meet the “deliberate indifference” standard necessary to obtain the relief she sought under the Due Process Clause of the 14th Amendment.
The counter argument advanced by Plaintiff at trial and in this appeal is that trial courts must use an objective standard when evaluating claims of deliberate indifference asserted by pretrial detainees against prison officials.
Using an objective deliberate indifference standard as arguably mandated by the Supreme Court in Kingsley v. Hendrickson, 135 S. Ct. 2466, 2475 (2015), the trial court should have asked whether defendants disregarded an obvious risk of substantial harm to a plaintiff, irrespective of whether the defendant subjectively knew of the risk. Whether an objective or subjective standard applies to the defendants' deliberate indifference is an open question in the Sixth Circuit, and the other circuits are divided on this.
On April 24 we filed our original Complaint and Petition for Writ of Habeas Corpus along with a motion for temporary restraining order in the United States District Court for the Southern District of Ohio on behalf of three ICE detainees held at the Morrow and Butler county jails. In this case, we alleged that each Petitioner-Plaintiff had a comorbidity (asthma, immunosuppression, and hypertension) that put them at high risk of serious illness or death if they contracted the virus. The TRO was granted on April 27 after an emergency hearing, and all three Petitioner-Plaintiffs were ordered released.
On May 5 we filed an amended petition and complaint with a new TRO, adding 20 new Petitioner-Plaintiffs, this time under a theory of medical negligence that rose to the level of constitutional release, in addition to the risk theory (but still bringing the claims in habeas). The Court denied the new TRO without prejudice on May 7, on evidentiary grounds.
Respondents filed their opposition to the original Writ on May 6, and their Answer, Response, Motion to Dismiss, or Motion for Summary Judgment addressing both Writs as a single document on May 11. On May 14 the Court held an evidentiary preliminary injunction hearing by video to determine whether to release the new Petitioner-Plaintiffs, and whether to continue the release of the original Petitioner-Plaintiffs. After the hearing, on May 14, the Court ordered the release of 11 additional people, finding they were at high risk of serious long term illness or death from COVID-19 because of the jail and ICE’s inability to provide them access to the medical care they needed to survive COVID-19. The Court found that our other 7 clients were not at high risk medically and therefore they were not released. Additionally, the Court ordered that two of our original clients, Sidi Njie and Adenis Prieto Refunjol, should stay in the community, but ordered our third original client, Mory Keita, re-detained, finding he had not met his evidentiary burden to prove his medical risk. In the meantime, ICE had administratively released the remaining two of our clients.
On May 27 we moved for reconsideration regarding Mr. Keita. Respondents opposed on May 29. On June 5, the court denied our motion.
On June 25, Mr. Keita was ordered to appear at a show-cause hearing on June 30, if he had not first self-surrendered to ICE. We represented his interests at that hearing and on June 29 we moved to withdraw as his counsel. Our request was granted on July 8. Mr. Keita has now been re-detained in the Butler County Jail.
Also on July 8, the Court set a mediation conference for July 30. On July 13, Respondents filed an interlocutory appeal. However, the parties were able to reach a settlement and submitted a proposed consent order on August 5 which negated the appeal. The Consent Order was entered the next day and we jointly filed a stipulation of voluntary dismissal. The Consent Order’s terms protect our clients from being detained long-term, or indefinitely, to minimize their risk of contracting COVID-19. It provides that ICE cannot re-detain our clients until it has obtained travel documents and a final removal order for them, meaning that their deportation date can be set.
On August 7 we moved to withdraw as counsel for another of our clients, Mr. Ramirez Portillo. The motion was granted on August 11.
Following the entry of the Consent Order, we assisted our remaining clients subject to the Order in complying, including the requirement that they periodically check in with ICE. Many of our clients, due to their circumstances, were ultimately forced to voluntarily surrender to ICE under the terms of the Order. In the course of assisting our clients with this, three of our clients did not make required self-surrenders, and ICE issued Contempt Notices as to them on August 7 and August 24. Despite our best efforts to aid them in compliance, Judge Morrison found all three in contempt on September 3, 2020.
On October 18 we sent letters to all of our clients notifying them that we have terminated our representation of them. However, we continue to monitor compliance with the Consent Order.
On December 9 the Court ordered a status report which the parties jointly filed on December 11. On January 5, 2021, Respondents moved to dismiss Mr. Keita and Mr. Portillo, whom we no longer represent. We did not oppose, and the Court has not yet ruled on the motion.
Most recently, Respondents claimed they were able to re-detain another one of our clients, Mr. Njie. He did not appear at the time ICE wanted to re-detain him. On January 7, 2021, Respondents filed a Notice of Contempt as to Mr. Njie. The Court issued a Show Cause Order on January 11, setting an in-person hearing for January 21. On January 13 Respondents moved to vacate the hearing, We opposed this motion, and ICE replied. The Court has not ruled, and the hearing will proceed on January 21.
We continue to work to support our other clients’ legal needs by, for example, helping them comply with the order and helping them find immigration counsel. At this point, four of our clients remain safe and in the community for the foreseeable future. The rest of the people whom we originally helped free from the horrible conditions at Morrow Jail have either been deported, detained, or are subject to open arrest warrants.