Malam v Rebecca Adducci et al

Filing 591

EIGHTEENTH ORDER on Bail #521 , #528 , #547 , #570 , and #573 . Signed by District Judge Judith E. Levy. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Janet Malam,
Petitioner-Plaintiff,
and
Qaid Alhalmi, et al.,

Case No. 20-10829
Judith E. Levy
United States District Judge

Plaintiff-Intervenors, Mag. Judge Anthony P. Patti
v.
Rebecca Adducci, et al.,
Respondent-Defendants.
________________________________/
EIGHTEENTH ORDER ON BAIL
[521, 528, 547, 570, 573]
Between February 8, 2021 and March 10, 2021, Plaintiffs
submitted bail applications for habeas litigation group members Andres
Zapete-Mijengos, Melchor Mata-Salazar, Imer Gashi, Badr Al-Yasiri,
and Safet Avdulahaj. (ECF Nos. 521, 528, 547, 570, 573.) Between
February 11, 2021 and March 15, 2021, Defendants filed responses. (ECF
Nos. 529, 535, 558, 575, 576.) Between February 16, 2021 and March 17,
2021, Plaintiffs filed replies. (ECF Nos. 536, 540, 563, 580, 582.)

After reviewing the application and briefing, the Court denies bail
for group members Zapete-Mijengos, Mata-Salazar, Gashi, Al-Yasiri, and
Avdulahaj.
I.

Eligibility for Bail

The Sixth Circuit has recognized the district court’s “inherent
authority” to grant a habeas petitioner release on bail pending
adjudication of the petition’s merits. Nash v. Eberlin, 437 F.3d 519, 526
n.10 (6th Cir. 2006). “The district court may release petitioners on bail if
there is a ‘substantial claim of law’ and the existence of ‘some
circumstance making [the motion for bail] exceptional and deserving of
special treatment in the interests of justice.’” Id. (citing Lee v. Jabe, 989
F.2d 869, 871 (6th Cir. 1993)).
On November 30, 2020, the Court found that “[t]he habeas
litigation group members continue to raise substantial claims of law”
because group members “continue to show a likelihood of success on the
merits of their due process claim challenging their continued detention
at [Calhoun County Correctional Facility (“CCCF”)] during the COVID19 pandemic.” (ECF No. 430, PageID.11345, 11348.) Additionally, the

2

Court found that “COVID-19 presents special circumstances making the
bail applications exceptional.” (Id. at PageID.5295.)
CCCF experienced a COVID-19 outbreak in October and November
of 2020, as well as an additional outbreak starting in March 2021. (See
ECF Nos. 365, 388, 556.) As of April 20, 2021, at least 103 detainees and
inmates, as well as 28 employees, have tested positive for COVID-19. (See
ECF No. 570, PageID.13940–13941 (reporting 99 detainees and inmates,
as well as 26 employees, who tested positive as of March 8, 2021); E-mail
from Jennifer L. Newby, Assistant U.S. Att’y, to Cassandra J. Thomson,
Law Clerk to Judge Judith E. Levy (Mar. 30, 2021 9:34 EST) (on file with
the Court) (indicating 1 new positive inmate as of March 30, 2021); Email from Jennifer L. Newby, Assistant U.S. Att’y, to Cassandra J.
Thomson, Law Clerk to Judge Judith E. Levy (Mar. 30, 2021 13:33 EST)
(on file with the Court) (1 new positive staff member as of March 30,
2021); E-mail from Jennifer L. Newby, Assistant U.S. Att’y, to Cassandra
J. Thomson, Law Clerk to Judge Judith E. Levy (Apr. 5, 2021 11:11 EST)
(on file with the Court) (1 new positive inmate as of April 5, 2021); E-mail
from Jennifer L. Newby, Assistant U.S. Att’y, to Cassandra J. Thomson,
Law Clerk to Judge Judith E. Levy (Apr. 15, 2021 10:18 EST) (on file with
3

the Court) (1 new positive inmate as of April 15, 2021); E-mail from
Jennifer L. Newby, Assistant U.S. Att’y, to Cassandra J. Thomson, Law
Clerk to Judge Judith E. Levy (Apr. 20, 2021 10:22 EST) (on file with the
Court) (1 new positive inmate and 1 new positive employee as of April 20,
2021).)
Additionally, following several status conferences regarding
whether Defendants were willing to implement a vaccination plan at
CCCF (see ECF Nos. 520, 549-551, 556, 571), Defendants reported to the
Court regarding the successful completion of vaccination clinics on March
9 and 12, 2021, as well as a plan for facility-wide vaccine administration
on an ongoing basis. (See ECF Nos. 562, 577-578.) This facility-wide plan,
made in conjunction with the Calhoun County Health Department
(“CCHD”), incorporated the provision of educational materials and
presentations to detainees, CCCF staff follow-up meetings with all
members of the habeas litigation group who did not originally sign up to
receive the vaccine, as well as changes to the medical intake process to
facilitate vaccination of new detainees at intake. (ECF No. 577,
PageID.14529–14533.) As of March 15, 2021, 69 detainees of the total 109
detainees in CCCF at that time had been vaccinated; additionally, 22 out
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of the 24 identified and previously-unvaccinated high-risk detainees were
fully vaccinated or in the process of receiving their second dose of the
COVID-19 vaccine. (Id. at PageID.14531.)
The Court appreciates Defendants’ work establishing vaccination
clinics thus far and their efforts to implement an ongoing vaccination
system for CCCF. Nevertheless, while the enactment of an initial
vaccination plan is significant, this fact alone does not end the Court’s
inquiry into whether the conditions at CCCF violate habeas litigation
group members’ Fifth Amendment rights.
Amidst a rapidly changing pandemic landscape, in addition to
concomitant changes in our collective understanding of COVID-19
science, there remain numerous questions regarding the effect of COVID19 vaccination for individuals in congregate settings. There are
unknowns concerning the effectiveness of the COVID-19 vaccine when
faced with new variants of COVID-19 as well as current COVID-19
vaccines’ interaction with existing preventive protocols and treatments.
See COVID-19 Vaccines vs Variants—Determining How Much Immunity
Is Enough, Journal of the American Medical Association (Mar. 17, 2021)
https://jamanetwork.com/journals/jama/fullarticle/2777785
5

[https://perma.cc/H3EF-KSCS]. Individuals in congregate settings have
faced a greater risk of COVID-19 infection throughout the pandemic (see
ECF No. 346, PageID.8622–8630), and these same concerns exist in
congregate settings post-vaccination: The Centers for Disease Control
and Prevention (“CDC”) advise that fully vaccinated residents of
detention facilities should nevertheless continue to quarantine and be
tested for COVID-19 following possible exposure “because residential
congregate settings may face high turnover of residents, a higher risk of
transmission, and challenges in maintaining recommended physical
distancing.”

Interim

Public

Health

Recommendations

for

Fully

Vaccinated People, Centers for Disease Control (Apr. 2, 2021)
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fullyvaccinated-guidance.html

[https://perma.cc/5VUC-L9A5].

The

CDC

further recommends that “while experts learn more about the protection
that COVID-19 vaccines provide under real-life conditions,” correctional
and detention facilities should continue to use all preventive strategies
available to stop transmission (e.g., provision of masks, social distancing
where possible, use of frequent handwashing and hand sanitizer).
COVID-19 Vaccine FAQs in Correctional and Detention Centers, Centers
6

for

Disease

Control

(Feb.

16,

2021)

https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/vaccine-faqs.html [https://perma.cc/3XBQ-BE89].
Alongside these global questions are those specific to CCCF itself.
The expert reports submitted by both parties do not address the current
conditions at CCCF, having been premised on the assumption—as
understood at that time—that COVID-19 vaccines would not be available
for staff or detainees at CCCF for several months and possibly as late as
this summer or fall. (ECF No. 483-1, PageID.12519; ECF No. 499,
PageID.12983;

ECF

No.

499-1,

PageID.13002;

ECF

No.

517,

PageID.13338; ECF No. 517-1, PageID.13391–13396.) Questions remain
regarding, for example, whether Defendants’ stated vaccination plan
would successfully account for ongoing vaccination for the fluid
population of habeas litigation group members who are often transferred
between ICE facilities nationwide. See E-mail from Miriam Aukerman,
Attorney at American Civil Liberties Union of Michigan, to Cassandra J.
Thomson, Law Clerk to Judge Judith E. Levy (Mar. 22, 2021 18:31 EST)
(on file with the Court) (indicating 18 class members had been recently
transferred out of CCCF). Additionally, Defendants’ vaccination plan
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currently estimates that incoming detainees who are not vaccinated will
receive a vaccine within ten days of their arrival at CCCF, and further
indicates that Corizon is undergoing the certification process that would
allow providers to administer the vaccine directly at intake. (ECF No.
577, PageID.14532–14533.) While awaiting Corizon’s certification,
incoming detainees may face a dangerous interim of time between arrival
and vaccination that provides an opportunity for individual infection and
greater facility spread.
Yet, despite these areas of uncertainty, it is also evident that the
state of Michigan itself continues to experience a serious surge in
infections: Michigan “has led the nation in new infections and
hospitalizations for two weeks. Infections have now risen for eight
consecutive weeks.” Michigan adds 5,259 cases, 85 deaths from COVID19,

The

Detroit

News

(Apr.

20,

2021)

https://www.detroitnews.com/story/news/local/michigan/2021/04/2
0/michigan-adds-5-259-cases-85-deaths-covid-19/7292734002/
[https://perma.cc/78QP-SB3C]. In particular, the state of Michigan has
the second highest known presence of the highly infectious B.1.1.7
variant of the states. Michigan was warned about British COVID-19
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variant, but many ignored it, Detroit Free Press (Apr. 18, 2021)
https://www.freep.com/story/news/local/michigan/2021/04/18/mich
igan-british-covid-19-variant-coronavirus/7220315002/
[https://perma.cc/FE69-3CVF].

Calhoun

County

is

no

exception,

currently considered at a “very high” risk level of infections. Calhoun
County, MI, COVID Act Now, https://covidactnow.org/us/michiganmi/county/calhoun_county/?s=1769690

[https://perma.cc/Y9WZ-

HLYW].
Further understanding of CCCF’s plan for ongoing vaccination
administration and continuation of COVID-19 prevention protocols will
inform the Court regarding what, if any, additional relief may be needed
for the class and the habeas litigation group. Considering the known
conditions at CCCF, in tandem with the renewed surge in COVID-19
cases throughout Michigan, the Court finds that habeas litigation group
members remain in conditions that may violate these members’ Fifth
Amendment rights.
Accordingly, the Court continues to find that habeas litigation
group members raise substantial claims of law and that COVID-19

9

presents special circumstances making the bail applications exceptional.
The Court will continue to evaluate individual bail applications.
II.

Individual Bail Applications

This bail order marks the first instance in which the Court is
presented with bail applicants who had access to the COVID-19 vaccine
during their detainment at CCCF. It is necessary to evaluate whether
these bail applicants remain members of the habeas litigation group in
light of the applicants having been offered, or having received, the
COVID-19 vaccine.
First, the Court will consider the impact of receipt of the COVID-19
vaccine. Zapete-Mijengos, Mata-Salazar, Al-Yasiri, and Avdulahaj all
received the Janssen/Johnson & Johnson (“J&J”) COVID-19 vaccine on
either March 9 or March 12, 2021. (ECF No. 586, PageID.14636; ECF No.
587, PageID.14642.) Because Zapete-Mijengos, Mata-Salazar, Al-Yasiri,
and Avdulahaj have received the COVID-19 vaccine, the bail applications
of all four individuals will be considered collectively.
Membership in the habeas litigation group has continually been
premised upon an individualized assessment of an individual’s medical
circumstances and whether such circumstances place them at heightened
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risk of a dire outcome in the event of COVID-19 infection. The Court
certified a habeas litigation group on July 31, 2020, and later amended
this definition on August 19, 2020, of “all noncitizens who are detained
in ICE custody in the [CCCF] or who have been released pursuant to a
preliminary injunction or bail order issued by the undersigned, and who
have one or more medical risk factors placing them at heightened risk of
severe illness or death if exposed to COVID-19.” (ECF No. 191,
PageID.5578.) In so doing, the Court’s order clarified that it would not
limit the risk factors to be used to determine an individual’s eligibility in
the habeas litigation group, instead recognizing that “whether an
individual is at heightened risk of a dire outcome requires individualized
analysis.” (ECF No. 162, PageID.5135.) Furthermore, as the Court
explained when concluding that the habeas litigation group met Federal
Rule of Civil Procedure 23(a)’s commonality requirement, “the key
question for the Court’s adjudications has been not the precise level of
risk, which exists along a spectrum, but instead whether a given Plaintiff
had heightened risk, which is a binary determination.” (ECF No. 162,
PageID.5138.)

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Here, Zapete-Mijengos, Mata-Salazar, Al-Yasiri, and Avdulahaj
each have medical risk factors (specifically, medical diagnoses) that
Defendants have conceded as placing them at risk of a dire outcome from
COVID-19 without the protections of a COVID-19 vaccine. However, the
CDC advises that the J&J vaccine is 66.3% effective1 at preventing
COVID-19 in individuals who have not previously contracted COVID-19
and has demonstrated “high” efficacy at preventing hospitalization and
death in individuals who did contract COVID-19. Johnson & Johnson’s
Janssen COVID-19 Vaccine Overview and Safety, Centers for Disease
Control

(Apr.

13,

2021)

https://www.cdc.gov/coronavirus/2019-

ncov/vaccines/different-vaccines/janssen.html [https://perma.cc/H99FRMMF]. This degree of protection increased even further after four weeks
had elapsed since receipt of the J&J vaccine: In the clinical trials relied
upon by the CDC, “[n]o one who got COVID-19 at least 4 weeks after
receiving the J&J/Janssen vaccine had to be hospitalized.” Id. There is
no doubt receipt of the J&J vaccine altered the risk profile calculus of

Efficacy was found to be even higher in the United States: J&J vaccine
efficacy was 74.4% during clinical trials. The Advisory Committee on Immunization
Practices’ Interim Recommendation for Use of Janssen COVID-19 Vaccine — United
States, February 2021, Centers for Disease Control (Mar. 5, 2021)
https://www.cdc.gov/mmwr/volumes/70/wr/mm7009e4.htm?s_cid=mm7009e4_w
[https://perma.cc/4STF-P69Y].
1

12

these four bail applicants, and there is strong evidence to suggest that
these four individuals would not face the same risk of hospitalization or
death if exposed to COVID-19 as before being fully inoculated.
The extent to which fully vaccinated individuals with certain highrisk medical circumstances face a worse clinical outcome from COVID-19
than vaccinated individuals without high-risk medical conditions is
unknown to the Court. However, the Court need not identify the precise
level of risk an individual bail applicant faces, but rather, considers the
binary question of whether such an applicant is at heightened risk of a
dire outcome. Based on the research available at this time, the Court
finds that all individuals who have received the J&J vaccine2 and have
The efficacy rates of the other COVID-19 vaccines available in the United
States— Pfizer-BioNTech (“Pfizer”) and Moderna—leads to a similar conclusion for
individuals who receive those vaccines. The CDC reports that the Pfizer vaccine
“was 95% effective at preventing laboratory-confirmed COVID-19 illness in people
without evidence of previous infection” and that people who received the vaccine
“were less likely to have more serious outcomes” than those who received a placebo.
Pfizer-BioNTech COVID-19 Vaccine Overview and Safety, Centers for Disease
Control (Apr. 16, 2021) https://www.cdc.gov/coronavirus/2019ncov/vaccines/different-vaccines/Pfizer-BioNTech.html [https://perma.cc/Q5KDYJH7]. Likewise, Moderna is reported to be “94.1% effective at preventing
laboratory-confirmed COVID-19 illness in people who received two doses who had
no evidence of being previously infected” and resulted in fewer hospitalizations
among people who received the Moderna vaccine than those who received a placebo.
Moderna COVID-19 Vaccine Overview and Safety, Centers for Disease Control (Apr.
5, 2021) https://www.cdc.gov/coronavirus/2019-ncov/vaccines/differentvaccines/Moderna.html [https://perma.cc/BX8V-X8JB]. Accordingly, all individuals
who have received at least one dose of the Pfizer or Moderna vaccine and have no
prior evidence of COVID-19 infection two weeks after receiving that dose vaccine
2

13

no prior evidence of COVID-19 infection two weeks after receiving the
vaccine are no longer at sufficient risk of hospitalization or death to meet
the heightened risk threshold.
As a result of their receipt of the COVID-19 vaccine, ZapeteMijengos, Mata-Salazar, Al-Yasiri, and Avdulahaj are no longer at
heightened risk of a dire outcome from COVID-19. Accordingly, while
Zapete-Mijengos, Mata-Salazar, Al-Yasiri, and Avdulahaj continue to be
members of the class, they are no longer members of the habeas litigation
group. The bail process as instituted solely considers members of the
habeas litigation group—not class members generally—for bail. (ECF
No. 168, PageID.5293–5294.) Because Zapete-Mijengos, Mata-Salazar,
Al-Yasiri, and Avdulahaj are no longer members of the habeas litigation
group, they are no longer eligible for bail on the basis of their heightened
risk.
Second, the Court will consider the impact of an applicant having
been offered, but declining to take, the COVID-19 vaccine. Imer Gashi
was offered the vaccine, and subsequently declined it, on March 12, 2021.

are no longer at sufficient risk of hospitalization or death to meet the heightened
risk threshold.

14

(ECF No. 586, PageID.14636.) It is unclear from the record presented
why Gashi declined the vaccine.
Now as before when certifying the habeas litigation group, “[t]he
Court’s reasoning with respect to COVID-19 risk factors has developed
as the case has moved forward.” (ECF No. 162, PageID.5138.) The Court
adjudicates group membership based on a holistic, individualized
determination of whether an individual “ha[s] one or more medical risk
factors placing them at heightened risk of severe illness or death if
exposed to COVID-19.” (ECF No. 191, PageID.5578; see ECF No. 414,
PageID.11029.) The CDC broadly3 recommends that individuals with
medical conditions that make them more likely to be severely ill from
COVID-19 work with their medical providers to be vaccinated as soon as
possible. People with Certain Medical Conditions, Centers for Disease
Control

(Mar.

29,

2021)

https://www.cdc.gov/coronavirus/2019-

While the CDC indicates that “COVID-19 vaccines may be administered to
most people with underlying medical conditions once vaccine is available to them[,]”
individuals with certain medical conditions may have additional considerations to
evaluate in order to make an informed decision about receiving a COVID-19
vaccine. Vaccine Considerations for People with Underlying Medical Conditions,
Centers for Disease Control (Mar. 12, 2021)
https://www.cdc.gov/coronavirus/2019ncov/vaccines/recommendations/underlying-conditions.html
[https://perma.cc/DA4A-8UFY].
3

15

ncov/need-extra-precautions/people-with-medical-conditions.html
[https://perma.cc/DA4A-8UFY]. And, as stated previously, individuals
who have received the COVID-19 vaccine and are not infected by COVID19 within the two weeks after receiving the vaccine are no longer at
heightened risk of a dire outcome. Accordingly, a person’s individual
access to the vaccine as a preventive measure is a factor to be considered
in the holistic, individualized analysis of whether that person is at
heightened risk of a dire consequence from COVID-19.
In the absence of any evidence that he has a medical restriction that
prevents him from being vaccinated against COVID-19, Gashi can now
reasonably alleviate his risks from COVID-19 by taking the vaccine that
has been offered to him. His access to the COVID-19 vaccine mitigates
the heightened risk that he would otherwise face as a result of his
medical risk factors. Accordingly, Gashi is no longer a member of the
habeas litigation group following his denial of the opportunity to take the
COVID-19 vaccine. Because Gashi is no longer a member of the habeas
litigation group, he is no longer eligible for bail on this basis. The Court
denies Gashi’s application for bail.
III. Conclusion
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For the reasons stated above, the Court denies bail for class
members

Zapete-Mijengos,

Mata-Salazar,

Gashi,

Al-Yasiri,

and

Avdulahaj. Should new research reveal that the vaccines are not effective
against variants of COVID-19, or that the length of immunity is limited
and habeas litigation group members remain in custody beyond their
period of efficacy, these motions may be renewed.
IT IS SO ORDERED.
Dated: April 27, 2021
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on April 27, 2021.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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