Parga et al v. Tulsa County et al
OPINION AND ORDER by Judge Claire V Eagan ; denying 158 Motion for Preliminary Injunction; finding as moot 159 Motion for Temporary Restraining Order (RGG, Chambers)
Case 4:18-cv-00298-CVE-JFJ Document 191 Filed in USDC ND/OK on 05/11/20 Page 1 of 35
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
RICHARD FELTZ,1 on behalf of
himself and all others similarly situated,2
BOARD OF COUNTY COMMISSIONERS OF
THE COUNTY OF TULSA; VIC REGALADO,
Tulsa County Sheriff, in his official capacity;
TERRY H. BITTING, TAMMY BRUCE,
MARTHA RUPP CARTER, STEPHEN R.
CLARK, THERESA DREILING, OWEN
EVENS, JAMES W. KEELEY, DEBORAH
LUDI LEITCH, J. ANTHONY MILLER,
DAWN MOODY, MILLIE OTEY, KIRSTEN
PACE, APRIL SEIBERT, CLIFFORD SMITH,
AND SARAH SMITH, in their capacities as
Tulsa County Special Judges; AND WILLIAM
LAFORTUNE, in his capacity as Tulsa County
District Court Judge,3
Case No. 18-CV-0298-CVE-JFJ
When the first amended complaint was filed, there were four named plaintiffs. See Dkt. #
32. In an opinion and order dated April 24, 2020, the Court terminated the three named
plaintiffs other than Feltz because one had died, and two were no longer represented by
Plaintiff filed his motions on behalf of all putative class members. Dkt. # 158, at n.1. The
motion for class certification (Dkt. # 3) is pending. However, the Court need not certify the
class at this point to resolve the present motions. See Gooch v. Life Investors Ins. Co. of
Am., 672 F.3d 402, 433 (6th Cir. 2012) (“[T]here is nothing improper about a preliminary
injunction preceding a ruling on class certification.”); Kansas Health Care Ass’n, Inc. v.
Kansas Dept. of Social and Rehabilitation Svs., 31 F.3d 1536, 1548 (10th Cir. 1994) (“We
therefore affirm the district court’s conclusion that class certification was unnecessary in this
case [in which a preliminary injunction was granted].”).
At the time of the amended complaint (Dkt. # 32), Judge Musseman was the presiding judge
of Tulsa County District Court. However, Judge LaFortune became presiding judge on
January 1, 2020, and was automatically substituted for Judge Musseman pursuant to Federal
Rule of Civil Procedure 25(d). Neither party objected to this substitution, and the Court so
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OPINION AND ORDER
The issue presented in plaintiff’s motions for preliminary injunction and temporary
restraining order (Dkt. ## 158, 159) is whether indigent arrestees who are unable to make bail should
be released from jail, particularly now during the new coronavirus (COVID-19) pandemic because
of risk of exposure.
Courts around the country have been wrestling with this issue and,
unfortunately, the Tenth Circuit has yet to address it. It is against this backdrop that the Court
analyzes the facts and the preliminary injunctive relief standard to come to a fair result pending a
trial on the merits.
In many jails, COVID-19 has spread rapidly. In Tulsa, however, there are no confirmed cases
of the COVID-19 among inmates at the jail. There have been significant changes in bail processes
and at the jail since this lawsuit was filed. A new local criminal rule has been adopted, which
defendants allege fixes any alleged constitutional problems with the bail system. The Sheriff has
implemented a plan to combat COVID-19, which substantially follows national guidance. The
parties dispute whether these new processes are implemented as they are written, and whether they
foreclose constitutional scrutiny. Discovery is ongoing, and a motion to dismiss for lack of subject
matter jurisdiction (Dkt. # 157) remains outstanding.
In light of the progress made in the bail system and the parties involved, namely state and
local policymakers, it seems inappropriate for a federal court to interfere with state and local policy
at this time.
Moreover, the relief plaintiff seeks—a preliminary injunction against the
Sheriff—would do nothing to rectify the bail system; that is the province of the Tulsa County District
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Court.4 Thus, the Court will confine its analysis at this juncture to the COVID-19 pandemic, and
defers more in-depth consideration of the constitutional challenges to the bail system until a more
robust record is developed in discovery.
I. Factual Background
The factual record and legal arguments for these motions for preliminary injunctive relief
consist of the motions of plaintiff, briefs of the parties, including exhibits attached thereto in the
form of affidavits/declarations and other documentary evidence, supplements to the motions, and
separately filed declarations (Dkt. ## 158-159, 164, 166-168, 171, 175-181, 186-187, 190). The
Court set this matter for oral argument (see Dkt. # 182), and heard oral argument on May 11, 2020.
Although the Court is not granting a preliminary injunction for the reasons stated below, the
Court hereby enters this opinion and order as its findings of fact and conclusions of law as to risk
of COVID-19 only. See Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1245 (10th
Cir. 2001) (“Under Rule 52(a), a district court is required to make findings of fact and conclusions
of law at the time it enters a preliminary injunction.”); Fed. R. Civ. P. 52(a) (“In granting or refusing
an interlocutory injunction, the court must similarly state the findings and conclusions that support
Plaintiff argues that the Sheriff can be enjoined from detaining arrestees who cannot afford
bail, because he enforces the policy of the Tulsa County District Court. Dkt. # 187, at 6-19.
While this may be true, the Sheriff can still be held criminally liable for releasing detainees
without a state court order, which tips the balance of equities in the Sheriff’s favor. See III.A
infra. Further, this opinion and order addresses only the risk of COVID-19 in the jail.
Therefore, it is unnecessary at this point for the Court to address plaintiff’s argument that the
Sheriff is a properly named defendant.
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A. Plaintiff’s Legal Challenge to the Bail System
Persons arrested in Tulsa County on state misdemeanor or felony charges are usually brought
to the David L. Moss Criminal Justice Center (the jail). After intake, they are assigned a money bail
amount, primarily on an offense-based, secured money bail schedule promulgated by the Tulsa
County District Court. See Dkt. # 158-10. For the minority of individuals arrested on warrants, the
Sheriff uses money bail amounts assigned by the judges who approved the warrants. Those who
cannot make bail, because they are unable to afford it, wait in the jail. See Dkt. ## 158-11; 158-12.
They first wait for representation from a public defender. They then wait for opportunities to seek
release on personal bond with no up-front payment. In this putative class action lawsuit, plaintiff
alleges that putative class members are in jail solely because they are unable to pay bail, in violation
of the Equal Protection Clause.5 Plaintiff also alleges that, for those who are afforded a hearing, the
hearing is not due process compliant. These are the alleged circumstances now. At the time of the
amended complaint, however, detainees were allegedly held without bail hearings for six or more
days. See Dkt. ## 158-2; 158-4. Also, in cases where bond was reduced from the predetermined
amount, but remained unaffordable, the court would record the reduced bond amount without any
reference to evidence of dangerousness or risk of flight, or analysis of whether continued detention
was necessary. See Dkt. # 158-5. Since the lawsuit was filed, administrative orders were
implemented, and then Local Criminal Rule 2 was adopted in August 2019, to ensure that a hearing
is scheduled within 48 hours and that factors other than inability to afford bail are considered.
Plaintiff argues that Local Criminal Rule 2 is unconstitutional both on its face and as applied. He
Plaintiff alleges that the majority of detainees at the jail are putative class members. See Dkt.
# 158, at 10 (citing Dkt. # 158-6).
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argues that it is facially unconstitutional because it is allegedly wealth-based. He argues that it is
unconstitutional as applied because findings related to consideration of factors other than wealth are
allegedly not made on the record and some detainees are not afforded a hearing.
Since this lawsuit was filed and Local Criminal Rule 2 was adopted, “our nation [has faced]
a public health emergency caused by the exponential spread of COVID-19 . . . .” In re Abbott, 954
F.3d 772, 779 (5th Cir. 2020). On March 13, 2020, the President of the United States declared a
national state of emergency. Id. (citing Proc. No. 9994, 85 Fed. Reg. 15,337, 2020 WL 1272563
(Mar. 13, 2020)). In Tulsa County alone, as of May 10, 2020, there have been at least 695 confirmed
positive cases of COVID-19, and at least 36 people have died. Tulsa World, May 11, 2020, at A1.
Local courts were closed, with limited videoconference hearings. See Dkt. # 158-8. In addition, the
jail is closed to visitors, including attorneys. However, detainees are able to consult with their
attorneys over the phone or through videoconferencing.
The jail holds over 1,000 detainees, and plaintiff argues that “conditions [in light of COVID19] are terrifying.” Dkt. # 168, at 2. There are no confirmed cases of COVID-19 at the jail, other
than one clerk employee who had limited access to detainees. Local authorities have worked
together to reduce the jail’s population by over 20%, and bookings are down by more than 50%. See
Dkt. # 166-1, at 2.6 In addition, defendants point out that the Sheriff has implemented a policy to
combat COVID-19, which substantially follows the Centers for Disease Control and Prevention
(CDC) guidelines for jails and prisons. However, plaintiff argues that the policy is insufficient
because social distancing at the jail is nearly impossible, and when intake detainees are admitted,
Plaintiff attached a guidance for law enforcement issued on March 30. Dkt. # 158-9. This
document recommends that consideration be given for release of low-level offenders. Id. at
2. It appears that this guidance was followed.
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they are put in “solitary confinement” (quarantine), which allegedly has negative effects on their
mental and physical well being.
After the outbreak of COVID-19 in the general public, plaintiff filed these motions for
preliminary injunctive relief (Dkt. ## 158, 159), asking the Court to release putative class members
from jail in light of COVID-19. Plaintiff asks for injunctive relief against the Sheriff only. “These
motions . . . are not directly about prison conditions or whether public health is best served by
releasing which arrestees. They are instead about the process and timing of individualized hearings
to determine whether a particular pretrial felony [or misdemeanor] arrestee can be dismissed on a
personal bond.” Russell v. Harris Cty., Texas, 2020 WL 1866835, at *1 (S.D. Tex. April 14, 2020).
All parties agree that the jail’s population must be reduced, but they disagree on the best way to
accomplish this task. “A federal district court asked to wade into polic[ies of] . . . State and County
elected officials is in risky territory.” Id. at *2; see also Rizzo v. Goode, 423 U.S. 362, 378 (1976)
(“Where, as here, the exercise of authority by state officials is attacked, federal courts must be
constantly mindful of the special delicacy of the adjustment to be preserved between federal
equitable power and State administration of its own law.”); R.R. Comm’n of Tex. v. Pullman Co.,
312 U.S. 496, 500 (1941) (“Few public interests have a higher claim upon the discretion of a federal
chancellor than the avoidance of needless friction with state policies.”). “And when, as here, these
disagreements appear to have been somewhat resolved, at least to the extent necessary to achieve a
workable, voluntary process for the safe release of appropriate pretrial, not convicted, arrestees
within the present pandemic constraints, that is a powerful reason for a federal court to decline to
intervene through the blunt instrument of a [preliminary injunction].” Russell, 2020 WL 1866835,
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i. Plaintiff’s Claims Prior to the Enactment of Local Criminal Rule 2
The original named plaintiffs were pretrial detainees in the custody of the jail at the time this
lawsuit was filed on June 6, 2018. Dkt. # 2. However, shortly after the lawsuit was filed, named
plaintiffs were released upon various terms awaiting trial in their respective criminal proceedings.
Feltz, the remaining named plaintiff, was released from detention on June 8, 2018, after posting bond
via a private surety, and he went to Florida for 90 days to obtain treatment. However, he filed this
action on behalf of similarly situated individuals who have allegedly not received due process
compliant bail hearings and are allegedly detained in violation of the Equal Protection Clause.
In his amended complaint (Dkt. # 32), plaintiff challenged the pretrial detention process in
place at the time of his arrest in Tulsa County. Plaintiff alleged that he and others similarly situated
were indigent and were or are unable to post or pay a money bond after arrest for felony and
misdemeanor charges, did not have access to counsel by or before their first court appearance, and
were therefore detained without counsel or proper process. Id.
Plaintiff originally sought prospective injunctive relief against all defendants. Specifically,
plaintiff sought “[a] declaration and permanent injunction that the [d]efendants violate [p]laintiffs’
and class members’ right to procedural due process under the Fourteenth Amendment by depriving
people who are arrested of speedy, individualized release hearings with notice, counsel, the
opportunity to be heard and to confront evidence, and findings on the record that the government met
its burden to demonstrate by clear and convincing evidence that no alternative condition or
combination of conditions would be sufficient to serve its compelling interests.” Id. at 33. Plaintiff
also sought declaratory relief against all defendants, generally requesting an order declaring that
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plaintiff’s and putative class members’ Fourteenth Amendment rights are violated through the bail
Plaintiff alleges that defendants violate: his equal protection and due process rights by jailing
putative class members because they cannot afford a monetary payment (count one); his right to
pretrial liberty by jailing putative class members without procedural due process (count two); and
his right to counsel by not providing putative class members with counsel adequate to challenge their
wealth-based pretrial detention (count three). Based on a prior order of this Court (Dkt. # 48), count
one remains pending only against Judge Musseman [now Judge LaFortune], the Sheriff, and the
Board of County Commissioners of the County of Tulsa; count two remains pending against all
defendants; and count three has been dismissed. Injunctive relief remains as an available remedy
against Judge Musseman [now Judge LaFortune] in his role as presiding judge. Declaratory relief
is the only requested remedy against the special judges.
ii. Local Criminal Rule 2
Prior to commencement of this suit, defendants allege, the bail process then in effect was
already subject to discussions of modification with community stakeholders, including
representatives from the district attorney’s and public defender’s offices and non-profit justice
reform groups. These community stakeholders and Judge Musseman were allegedly attempting to
create a process that met the concerns of the community stakeholders. Several months after the filing
of this lawsuit, a new process was implemented in Tulsa County through Administrative Orders
2018-9 and 2018-10. After the administrative orders were implemented and utilized for a period of
time, the administrative orders were repealed after a majority of the district judges and associate
judge, pursuant to Local General Rule 17 of the Tulsa County Local Rules, approved and adopted
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Local Criminal Rule 2 on August 22, 2019. Local Criminal Rule 2 expands upon the administrative
orders and states:
Per the authority vested upon the District Court of Tulsa County, State of Oklahoma;
and in accordance with the jurisdiction granted by the Oklahoma Legislature over
certain misdemeanor and felony criminal matters by [OKLA. STAT. tit. 22, § 1105];
in accordance with the applicable Oklahoma District Court Rules regarding criminal
procedure; and all other applicable rules and/or policies adopted by the District Court
of Tulsa County, State of Oklahoma, established by [OKLA. STAT. tit. 20, § 23], the
Court hereby issues the following Rule regarding a pre-established schedule for bail
pursuant to [OKLA. STAT. tit. 22, § 1105.2] and for the initial appearance for persons
arrested for certain misdemeanor and felony statutory criminal charges.
I. Rights of bail for persons accused of statutory criminal offenses.
The United States Supreme Court has established the accused is not entitled to bail
as a constitutional right. See United States v. Salerno, 481 US 739, 754 (1987)
(citing the original source for Eighth Amendment in English Bill of Rights, the
majority finds the very language of the Amendment “fails to say all arrests must be
bailable”). The accused is protected by both Article II, Sections 8 & 9 of the
Constitution of The State of Oklahoma (1988 and 1907) with regard to excessive
bail, and the Eighth Amendment, as applied to the States by virtue of the Fourteenth
Amendment of the United States Constitution.
The foremost consideration when fixing bail is the probability that the accused, if
free, will appear at trial, and the conditions of release are within the sole discretion
of the trial court and will not be overturned absent a clear abuse of discretion.
Bowman v. State, 585 P.2d 1373 (Okla. Crim. App. 1978), cert. denied 440 U.S. 920
(1979). Some of the other factors considered when establishing bail include the
seriousness of the crime charged against the defendant, his or her reputation and his
or her financial condition. See Brill v. Gurich, 965 P.2d 404 (Okla. Crim. App.
1998); Rule CR 10.5 of the Local Rules of Tulsa County District Court (2003);
Rule1.14, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App.
In accordance with [OKLA. STAT. tit. 22, § 1101], the trial court may only deny bail
upon the appropriate findings. See Brill, 965 P.2d at 404 and Art. II, Sec. 8 of the
Oklahoma Constitution. The Oklahoma Court of Criminal Appeals has noted that
“[b]ail is not to be deemed excessive simply because the particular person charged
cannot give the bail required.” Ex Parte McClellan, 97 P. 1019, 1020 (Okla. Crim.
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Pursuant to [OKLA. STAT. tit. 22, §§ 1105 and 1105.2] and Rule 1 of the Local Rules
of the Tulsa County District Court, the District Court of Tulsa County, State of
Oklahoma, for certain offenses hereby adopts and affirms the written and established
bail schedule found in Appendix A to these Rules. The provisions of said Appendix
are hereby incorporated by reference to this Rule as if fully set forth herein.
Any party, defendant, accused, or other person required or permitted by law to give
or post bail as surety or security in a criminal matter may discharge this requirement
by cash, surety, property, or personal recognizance depending upon the conditions of
release set forth in the bail schedule.
The purpose of the bail schedule is to permit the posting of bail without a delay
associated with the "First Appearance" within 48 hours of being confined to the [jail],
as mandated by [OKLA. STAT. tit. 20, § 55]. It is the opinion of the Court that the
employ of such a schedule, as authorized by state law, “provides speedy and
convenient release for those who have no difficulty in meeting its requirements[.]”
Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978).
In particular, this schedule, authorized by [OKLA. STAT. tit. 22, § 1105], shall apply
to certain arrests without warrants as permitted by [OKLA. STAT. tit. 22, § 196], or
other applicable code. For offenses not listed on the schedule, conditions of release
may only be determined after the individualized hearing described below.
II. Scheduling of "First Appearance" for individuals not otherwise capable of
posting bail pursuant to the schedule established in accordance with [OKLA.
STAT. tit. 22, § 1105].
For those individuals who do not obtain release pursuant to the pre-set bail schedule
as outlined above, within forty-eight (48) hours from their arrest, they shall then be
brought before the Court for a "first appearance" in accordance with [OKLA. STAT.
tit. 22, § 55]. In addition to those obligations established by this Rule, the accused
shall be represented by court appointed counsel, if he or she does not have retained
counsel for this hearing, for the limited purpose of determining the appropriate
conditions of release. At this time the accused will be given the opportunity to object
to the bail amount/conditions of release set for him or her.
The staff of the [jail] shall inform the Tulsa County Court staff of any such accused
in a timely fashion and shall additionally facilitate his/her appearance via video
transmission or teleconference at a time to be set by the Court.
To the extent an accused is claiming to be indigent and not just unable to meet the
conditions of release pursuant to the pre-set bail schedule, the Court in exercising its
discretion in setting the conditions of release as allowed by law may consider various
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factors, including but not limited to the seriousness of the charge and criminal and
To the extent an accused is claiming to be indigent and the charge is not on the
pre-set bail schedule, the Court in exercising its discretion in setting the condition of
release as allowed by law may consider various factors including but not limited to
the seriousness of the charge and criminal and appearance history.
Dkt. # 157-4.
iii. Conflicting Accounts of the Implementation of Local Criminal Rule 2
Plaintiff’s counsel, Hayley Horowitz, submitted a declaration on April 3, 2020. Dkt. # 158-3.
She states that she has periodically attended the bond docket proceedings, approximately a dozen
times, and, therefore, has observed over 100 cases. Id. at 2. This is her account:
She states that the jail proceedings are conducted via videoconference at the jail. Id.
at 2. “The judge reads the charges of arrest based on the police report or warrant
affidavit. Defendants are represented by counsel for purposes of the hearing.
Counsel is permitted to present arguments for reduced bond or PR [personal
recognizance] release.” Id. at 1-2. “An assistant district attorney sometimes, but
rarely attends to present argument.” Id. at 3.
She states that, “[i]f the defendant’s arguments or representations conflict with
information provided by other sources, such as the police report or criminal history
information, the judge routinely accepts the latter as true without providing an
evidentiary basis.” Id.; see also Dkt. # 158-1.
She states that “[t]he bond docket judge routinely imposes monetary conditions of
release without determining or articulating whether the condition will result in the
person’s detention and, if so[,] without making evidence-based findings that the
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person represents a risk of flight or dangerousness that can be addressed only by
imprisonment. Indeed, the Court routinely asks defendants how much they can
afford, and then imposes bail amounts greater than the amount stated, without finding
that detention is necessary.” Dkt. # 158-3, at 3.
She states that the court will, in many cases, impose monetary bail, sometimes in an
amount people had already declared themselves unable to afford, after explicitly or
implicitly acknowledging that they likely posed little risk to safety or of flight. Id.
She states that, sometimes, the court does implement alternative conditions to serve
the purposes of bail, but also maintains monetary bail conditions that prevent release.
Id. at 4.
She provided the Court with non-public dockets, including bond docket proceedings
for people arrested without a warrant. Id. She states that the court consistently
assigns a monetary bond condition without recording any findings concerning ability
to pay or need for detention. Id. She states that the court’s written record rarely, if
ever, reflects evidence of ability to pay, dangerousness, or risk of flight, or analyze[s]
whether detention is necessary. Id. at 5.
Tulsa County Special Judge David Guten also submitted a declaration about the bail
proceedings. Dkt. # 167-4. His account differs from Horowitz’s account:
The daily bond dockets are still occurring despite the closure of the courthouse. Id.
“No person currently being held in pretrial detention is being held ‘because they are
poor.’ The rationale for denial of a PR bond and/or imposition of any condition of
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release is announced from the bench in open court for the benefit of all participants.”
Conditions of release are set at the time of an arrestee’s appearance on the bond
docket based on all relevant factors. Id.
“As an additional post-bond-docket safeguard in light of [COVID-19], the public
defender’s office is actively monitoring the jail population and—if they have any
concerns—requesting bond modification via email. Attorneys from Still She Rises
[plaintiff’s counsel] are also seeking bond modifications via email in an effort to
expedite the process. . . The Court is considering each of those informal requests and
granting modification where appropriate.. The persons considered for modification
informally are not reflected on the daily docket sheets. This informal process does
not take the place of or prevent any arrestee from filing a formal bond-modification
motion.” Id. at 1-2.
In addition, defendants submitted an affidavit of the District Attorney for Tulsa County,
Stephen Kunzweiler. Dkt. # 167-5. His account also differs from Horowitz’s account. He states
that COVID-19, as well as “all individual factors surrounding a suspect’s case and circumstances,
[are] currently being considered when assessing bond.” Id. at 2. Defendants also submitted multiple
docket examples, one of which states the reasons for detention. Dkt. # 175-2, at 17.
B. Current Circumstances at the Jail Since COVID-19
i. The CDC’s Guidance for Jails
The CDC has issued an interim guidance for management of COVID-19 in correctional and
detention facilities (the guidance). Dkt. # 171-1. According to the guidance, “[c]orrectional and
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detention facilities can prevent introduction of COVID-19 from the community and reduce
transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained
persons, staff, and visitors (including increasing access to soap and paper towels), intensifying
cleaning/disinfection practices, and implementing social distancing strategies.” Id. at 8. The
guidance states that it “may need to be adapted based on individual facilities’ physical space,
staffing, population, operations, and other resources and conditions.” Id. at 1 (emphasis omitted).
The guidance further states, “[i]f possible, consider quarantining all new intakes for 14 days before
they enter the facility’s general population.” Id. at 14. The guidance contains a recommended verbal
Today or in the past 24 hours, have you had any of the following symptoms?
Fever, felt feverish, or had chills?
In the past 14 days, have you had contact with a person known to be infected with the
Id. at 26 (emphasis omitted). In addition, the CDC recommends:
Perform pre-intake screening and temperature checks for all new entrants. Screening
should take place in the sallyport, before beginning the intake process, . . .
If an individual has symptoms of COVID-19 (fever, cough, shortness of
Require the individual to wear a face mask.
Ensure that staff who have direct contact with the symptomatic
individual wear recommended PPE [personal protective equipment].
Place the individual under medical isolation (ideally in a room near
the screening location, rather than transporting the ill individual
through the facility), and refer to healthcare staff for further
evaluation. . . .
Facilities with onsite healthcare staff should contact their state, local,
tribal, and/or territorial health department to coordinate effective
medical isolation and necessary medical care.
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Id. at 10 (emphasis omitted). The CDC recommends that, if an inmate tests positive for COVID-19,
a plan should be in place to transfer that individual to a local hospital. Id. at 23. The CDC
recommends “ intensifying cleaning and disinfection of the facility, screening (new intakes, visitors,
and staff), continued communication with incarcerated/detained persons and staff, and social
distancing measures (increasing distance between individuals).”
Id. at 5.
The CDC also
recommends implementing social distancing strategies. Id. at 8. In sum, the guidance does not
recommend that inmates be released from jail; rather, it provides a comprehensive strategy for
combating COVID-19 in jails.
ii. The Jail’s Procedures for Preventing COVID-19 Spread
According to the affidavit of jail administrator David Parker dated April 9, 2020, beginning
in mid-February 2020, he consulted the Oklahoma Department of Corrections’ (DOC) Pandemic
Plan for H1N1. See Dkt. # 166-1, at 1. Sheriff Regalado and Parker than created a task force to
develop a COVID-19 contingency plan should the virus make its way to Oklahoma. Id. Parker
incorporated the World Health Organization’s (WHO’s) and CDC’s guidance into the Tulsa County
Sheriff’s Office’s (TCSO’s) COVID-19 response in the jail. Id. The Tulsa City-County Health
Department (THD) was an integral partner in supplying TCSO with relevant and needed information
concerning the necessary COVID-19 response in the jail. Id. An Emergency Response Plan
(COVID-19 Plan) was then drafted, and is continually updated to meet the needs of the fluid nature
of the COVID-19 pandemic. Id. From March 9 to April 7, 2020, bookings at the jail are allegedly
down by more than 50% and the total jail population has dropped more than 20%. Id. at 2.
TCSO deputies have allegedly been instructed to follow the Oklahoma governor’s best
practices for limiting COVID-19 exposure when encountering the public. Dkt. # 166-2, at 1. All
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deputies have been told to limit exposure in the field, wear protective masks and gloves when the
situation is warranted, make frequent use of hand washing and hand sanitizer, and maintain social
distancing. Id. All deputies have allegedly been told that their patrol vehicles should be cleaned and
disinfected twice every shift, and that they should disinfect their duty belt and gear after contact with
an individual. Id. All deputies have been told to mask any arrestees displaying symptoms consistent
with COVID-19, to keep the windows open during transport, and to arrange for assessment or
transport by a trained emergency medical service or emergency medical technician if the arrestee
needs medical attention. Id. The Sheriff has implemented mandatory temperature scannings of all
persons entering the jail, and has designated specific intake pods to house new persons booked into
the jail for 14 days before allowing them into other areas of the jail. Id. at 2; see also Dkt. # 166-3,
at 4. In addition to inmates, all employees at the jail are asked a series of COVID-19 screening
questions and their temperatures are taken daily. Dkt. # 166-2, at 2. Anyone with a temperature of
100 degrees or above is not permitted entry into the jail. Id. The Tulsa County District Courts, Tulsa
County District Attorney’s Office, Tulsa County Public Defender’s Office, TCSO, and other local
law enforcement officials are all working together to keep the jail population at a minimum. See
Dkt. # 166-12. Visitors, including attorneys, are prohibited from entering the jail. Dkt. # 168-2, at
All incoming inmates at the jail are allegedly given a questionnaire in which they are asked
a number of questions, including whether they have been tested for COVID-19, whether they have
been quarantined within the last month, whether they have been in close contact with anyone who
has or has been tested for COVID-19, whether they have traveled outside of the country within the
past two weeks, whether they have traveled by plane within the last month, whether they have been
Case 4:18-cv-00298-CVE-JFJ Document 191 Filed in USDC ND/OK on 05/11/20 Page 17 of 35
in a group of ten or more people within the last two weeks, and whether they have been outside of
the state of Oklahoma within the last two weeks. Dkt. # 166-4. In the COVID-19 Plan, jail staff are
“continuously trained on adequate housekeeping protocols.” Dkt. # 166-3, at 2. The jail allegedly
posts information bulletins, posters, and automatic messages on inmate tablets and kiosks giving
reminders to wash hands, use social distancing, and keep living areas clean. Id. Masks have been
purchased to be worn by medical staff, employees, and infected inmates in the event that a positive
case of COVID-19 is detected within the jail. Id. Gloves are worn by medical staff, employees, and
inmate workers throughout the jail to prevent contact with the virus. Id. On March 18, 2020, the
DOC suspended receiving inmates from county jails. Dkt. # 166-6. The jail continues to allow
telephone calls and video visitation, provides free and confidential video visitation between attorneys
and clients, and allows each inmate/detainee one free video visitation each week. Dkt. # 166-1, at
As of March 24, 2020, all new bookings were housed in two intake pods in the jail for a
minimum of 14 days prior to relocation. Dkt. # 166-3, at 5. One week later (March 31, 2020), two
new pods were prepared as intake units. Id. These housing units are locked down to prevent the
potential spread of COVID-19 or any other virus. Id. Outside of the inmates’ cells, movement is
isolated to a single detainee. Id. The COVID-19 Plan also provides:
In the event of a confirmed case of COVID-19 within the [jail], the isolation
processes within this plan should be followed. The inmate identified as possibly
being exposed to a respiratory virus will be isolated in the medical unit in a negative
air pressure cell for respiratory isolation. This isolation will occur for a fourteen-day
period (or the current CDC guideline). After immediate isolation, the Tulsa Health
Department will be notified so that they may evaluate the situation.
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The [jail] has eight negative air pressure cells that are checked daily by medical staff
when being used for respiratory isolation, weekly by medical staff when not being
used for respiratory isolation, and monthly by the agency’s Life Safety Officer.
Should the need for a mass isolation become urgent, pods F17 and F19 have been
identified and prepared to house recovering inmates. The jail’s maintenance
department has effectively reversed the air flow for these housing units to be negative
pressure. This will significantly minimize the airflow to other areas of the facility.
Should these housing units be needed for mass isolation, one pod will be used for
symptomatic inmates and the other pod will be used for asymptomatic inmates, or
one pod for males and the other for females.
Id. at 3.
iii. Plaintiff’s Experts and Named Witness
On April 8, 2020, plaintiff filed a supplement to his motions (Dkt. # 164), with an affidavit
of Elizabeth Chiao, M.D. dated April 3, 2020. Dr. Chiao has extensive research interests focusing
on HIV-related issues. Dkt. # 164, at 2. Dr. Chiao opined that the risk posed by infectious diseases
in jails and prisons is significantly higher than in the community. Id. at 4. She opined that, because
people live in close quarters in the jail, social distancing is difficult and inmates are unlikely to
comply with local health mandates. Id. at 8. She further opined that, “because people cycle in and
out of the jail almost every day, it is virtually impossible to create stable units of people isolating
those infected from those who are uninfected, which is necessary to contain infection.” Id. She
opined that temperature checks do not work on asymptomatic carriers, “which account for nearly
13% of all transmission, and one negative airflow room for a population of over 1,000 inmates is
insufficient to maintain a quarantine.” Id. She stated that, “[b]ased on my experience working on
public health and [i]nfectious [d]iseases, and my review of the relevant literature, it is my
professional judgment that the jail is dangerously under-equipped and ill-prepared to prevent and
manage a COVID-19 outbreak . . . .” Id. at 9.
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In his reply (Dkt. # 168), plaintiff proffered a declaration of Fred Rottnek, M.D. dated April
14, 2020. Dkt. # 168-1. Dr. Rottnek opined that “the COVID-19 pandemic has the potential to
devastate the lives of both incarcerated individuals and jail personnel in Tulsa, and result in a
medical emergency that could overwhelm local medical infrastructure.” Id. at 3. He opined that
“there are no steps that administrators can take to ensure that the disease will not enter and spread
through the jail and back out to the community.” Id. Dr. Rottnek opined that the jail’s procedures
“should strictly follow CDC guidance for mitigating the risk to inmate and staff populations and the
general public.” Id. at 3-4. He further opined that, “even if CDC guidelines were strictly followed,”
the presence of a jail in a community would continue to increase the risk to all community members.
Id. at 4. Dr. Rottnek went on to recommend practices for COVID-19 prevention, and opined that
the jail “cannot [implement] and has not” implemented these best practices. Id. at 5. He opined that,
although there are no confirmed cases at the jail, it is “more likely that it has already entered the jail.”
Id. at 6. He also challenged the questionnaire given to all arrestees when they are first detained in
the jail. Id. He opined that the mental health of detainees in “solitary confinement” is ignored. Id.
at 10. Dr. Rottnek admitted that “[t]he latest guidance from the CDC suggests that jails and prisons
have a long list of hygiene supplies, cleaning supplies, PPE, and medical supplies on hand and
available.” Id. However, he opined that, in his experience, jails do not have sufficient PPE for
increasing cases of COVID-19. Id. at 11. Dr. Rottnek opined that the COVID-19 Plan places
inmates at risk because it compromises their access to healthcare for non-COVID-related conditions.
Id. at 12. He opined that a shortage of employees and backup personnel impose a serious risk to the
jail. Id. at 13. He concluded that the jail should lower its jail population. Id. at 15.
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Plaintiff also provided a declaration of Ashley Selige dated April 13, 2020, who was in the
jail, but has since been released. Dkt. # 168-3, at 2. She states that she was brought to the jail just
after her arrest on April 3, 2020. Id. At the jail, she was taken to a room where she waited for
several hours. Id. There were “approximately a dozen people” in this room, including a detention
officer. Id. No one wore a mask. Id. at 2-3. No one warned her to stay apart from the other
detainees. Id. at 3. She did not see anyone clean the chairs, telephones, or any of the other surfaces
in the room during the hours she was there. Id. She did not see any cleaning supplies in the room,
and she was not offered a mask or gloves. Id. There was nowhere for her to wash her hands other
than a single bathroom with one sink and toilet for everyone to share; she did not see soap or paper
towels in this bathroom. Id. After she had been waiting in this room for several hours, she was
taken to a room to speak with a nurse. Id. She was asked if she was taking any medication, and her
temperature was taken. Id. The nurse was wearing gloves but no face mask. Id. She was eventually
escorted out of this room and into a hallway, where she was given a jump suit to change into. Id.
She stayed in her cell for the next five days. Id. at 4. She was allowed out for solitary “rec” time for
one hour during each of the first three days, and a half hour each of her last two days. Id. She was
then given a video hearing, and her bail was set at $2,500. Id. She was unable to post the bond
amount. Id. During her “rec” time, she was permitted to shower, watch television, launder her
clothes, read books that were on a table, or walk around or sit in the common space in the pod. Id.
During her time at the jail, she did not see anyone cleaning the shared surfaces or supplies, and no
one cleaned her cell. Id. at 5. She was not given gloves or a mask. Id. She alleges that the officers
delivering her food were not keeping six feet away from her or the other officers. Id. During her
time at the jail, her temperature was taken twice, and the nurse taking her temperature was wearing
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gloves and a mask. Id. at 6. No one gave her medical attention or asked questions about her physical
or mental health. Id. She began to have nightmares, feel anxious and depressed, and experienced
suicidal thoughts. Id.
iv. Plaintiff’s Anonymous Witnesses
In a declaration submitted by Horowitz, she states that she interviewed four anonymous
witnesses who prefer to remain unnamed for fear of retaliation. Dkt. # 168-2, at 3-11. In defendant
judges’ supplemental response (Dkt. # 175), they speculate as to the identity of the anonymous
witnesses in an attempt to rebut their factual allegations, including whether the unnamed witnesses
are entitled to bail. Dkt. # 175, at 3-5. Courts typically do not allow “anonymous” witnesses,
forcing the opposition to speculate as to their identities or be unable to respond to their factual
allegations. Accordingly, the Court will not consider the testimony of these anonymous witnesses.
v. Defendants’ Affidavits and Declaration
In the Sheriff’s surreply, he submitted a declaration of William Cooper, D.O. dated April 20,
2020. Dkt. # 171-2. Dr. Cooper is the chief medical officer for Turn Key Health Clinics, LLC (Turn
Key), which contracts with the Tulsa County Board of County Commissioners to provide health care
services within the jail. Id. at 1. Dr. Cooper states that there are no suspected or confirmed COVID19 cases of detainees at the jail. Id. He strongly disagrees with plaintiff’s characterization of the
lack of medical treatment provided at the jail. Id. at 1-2. He states that medical staff will treat the
symptoms associated with COVID-19 (e.g., fever, shortness of breath, pain, diarrhea), and “[t]his
is the most that any health care provider can do, as there is no known cure for COVID-19.” Id. at
2. He states that, once Turn Key medical staff determines that an inmate may require a higher level
of care than the jail is capable of providing, medical staff will recommend that the patient be
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transferred to a local hospital. Id. Turn Key makes arrangements for off-site care and hospitalization
for inmates who require hospitalization or care beyond the capabilities available at the jail, including
any inmates who test positive for COVID-19 or develop serious symptoms. Id. Further, if a patient
shows signs or symptoms of COVID-19, Turn Key has agreements in place with private laboratories
to test the patient quickly to confirm or rule out a COVID-19 diagnosis. Id. These test results are
typically available in less than 48 hours. Id.
The Sheriff also filed an additional affidavit of Parker dated April 20, 2020. Dkt. # 171-3.
He states that there are no suspected or confirmed cases of COVID-19 of detainees at the jail.7 Id.
at 1. Three detainees at the jail have been tested for COVID-19, and all three tested negative. Id.
He states that social distancing strategies are promoted and regularly practiced in the jail. Id. The
booking area has been redesignated to incorporate social distancing guidelines. Id. In addition,
posters and kiosk messages remind detainees of the importance of social distancing. Id. Parker
provided a photograph of the jail’s booking area, which shows chairs that are either separated from
one another, presumably by six feet, or taped off. Dkt. # 171-8. He also provided an example of
posters in the jail promoting social distancing, and a screen shot from an inmate kiosk available to
all detainees. Dkt. ## 171-9; 171-10. He states that, since April 9, 2020, arrestees have been
provided with a surgical mask in pre-booking and are required to wear the mask through the booking
process. Dkt. # 171-3, at 2; see also Dkt. # 171-11. In addition, detainees are allegedly instructed
how to use and care for the mask. Dkt. # 171-3, at 2.; see also Dkt. # 171-12. He states that soap
is provided to all arrestees upon housing to wash their hands. Dkt. # 171-3, at 2. He states that
The Sheriff also filed an affidavit of George Brown dated April 20, 2020, the Undersheriff
for Tulsa County, in which he states that there are no suspected or confirmed COVID-19
cases at the jail. Dkt. # 171-4.
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bathrooms with soap and water are available in the booking area for people to wash their hands as
desired. Id. He states that the jail stocks cleaning and disinfectant chemicals as well as viral
disinfectants for each pod, and these products are readily available in the pod. Id. The jail is also
thoroughly sanitized on a daily basis. Dkt. ## 171-7, at 2; 171-6, at 1. He states that washers and
dryers, along with automatic scaled soap dispenser integrated into the machines are at no cost, and
are available for self-use by all detainees. Dkt. # 171-3, at 2. Daily laundry services are also
allegedly provided in the jail. Id. Finally, he states that no “solitary confinement” is implemented
in the jail. Id.
vi. Sheriff’s Most Recent Declarations
The Sheriff filed an additional declaration of Parker dated May 4, 2020.8 Dkt. # 186. Parker
stated that, as of May 4, there are no suspected or confirmed cases of COVID-10 in the jail. Id. at
1. He also stated that the employee who had tested positive for COVID-19 offices outside the
housing or pod area of the jail. Id. The employee shared an office space with another jail employee,
who has been tested negative for COVID-19. Id. Parker stated that “[n]o close contact with any
other TCSO employees or with any inmates has been identified through inquiry or video
surveillance. The subject civilian employee maintained social distancing guidelines.” Id. In
addition, Parker stated that no other civilian employee has tested positive for COVID-19 as of May
4. Id. Any employee who calls in sick must have a doctor’s release to return to work. Id. at 2. Six
inmates had been tested as of May 4, and all tested negative for COVID-19. Id. Parker stated that
The Court directed the filing of this declaration in lieu of witness examination at the hearing.
See Dkt. ## 181, 182.
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he was not aware of any detainee who has been denied testing or has asked for testing. Id. The
medical provider tests detainees based upon their symptoms. Id.
On May 8, 2020, the Sheriff filed a declaration of George Roberts, assistant jail administrator
(Dkt. # 190), in which Roberts stated that there were no changes to the May 4, 2020 Parker
declaration, other than that one detainee was tested for COVID-19, and his or her results were
negative. Dkt. # 190, at 1.
II. Legal Standard
Although plaintiff filed motions for preliminary injunction and temporary restraining order,
their motions should be treated as a motion for preliminary injunction. Federal Rule of Civil
Procedure 65(a) governs preliminary injunctions; it requires notice and usually requires a hearing.
Rule 65(b) governs temporary restraining orders, which may be issued with no notice or hearing.
Here, the parties have been involved in this case for two years and defendants were given notice of
the motions. Moreover, both sides have fully briefed the motions and have submitted evidence.
Therefore, the Court will treat the motions as one for preliminary injunction.
“When seeking a preliminary injunction, ‘the moving party must demonstrate: (1) a
likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in
the absence of preliminary relief; (3) that the balance of equities tips in the movant's favor; and (4)
that the injunction is in the public interest.’” Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010)
(quoting Att'y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009)). “In addition,
the movant must establish ‘a relationship between the injury claimed in the party's motion and the
conduct asserted in the complaint.’” Id. (quoting Devose v. Herrington, 42 F.3d 470, 471 (8th Cir.
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The Tenth Circuit has established three disfavored types of preliminary injunctions: “(1)
preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3)
preliminary injunctions that afford the movant all the relief that it could recover at the conclusion
of a full trial on the merits.” Schrier v. Univ. of Colo., 427 F.3d 1253, 1259 (10th Cir. 2005)
(internal quotation marks and citation omitted).
Plaintiff’s argument that putative class members are being detained solely due to their
inability to pay bail falls within the third category because, were the Court to decide that issue on a
motion for preliminary injunction, it would be deciding the entire case while the parties are
conducting discovery. See Dkt. # 185. The Court lacks a full record, and the affidavits, declarations,
evidence, and arguments are vastly conflicting. Therefore, it would be imprudent for the Court to
decide the constitutionality of the bail system at this time. The Court declines to do so, and will rule
on the motion based on the risks of COVID-19 at the jail only.
Plaintiff’s argument that COVID-19 warrants a preliminary injunction is a mandatory
preliminary injunction and a preliminary injunction that alters the status quo. It is mandatory
because it would require the Sheriff to take affirmative action, and it is a preliminary injunction that
alters the status quo because it would require the release of presumably many detainees. “A
mandatory preliminary injunction—one which requires the nonmoving party to take affirmative
action–is an extraordinary remedy and is generally disfavored.” Little, 607 F.3d at 1251 (internal
quotation marks omitted). “Before a court may grant such relief, the movant must make a
heightened showing of the four factors.” Id. (internal quotation marks omitted). “To obtain a
preliminary injunction altering the status quo, as requested here, the movant ‘must make a strong
showing both with regard to the likelihood of success on the merits and with regard to the balance
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of harms.’” Brooks v. Colo. Dept. of Corrections, 730 Fed. App’x 628, 630-31 (10th Cir. 2018)9
(quoting O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975-76 (10th
Cir. 2004)) (emphasis in original).
III. Application of the Preliminary Injunction Factors
Plaintiff seeks a preliminary injunction releasing putative class members from a county
facility based on COVID-19 risks. As a general matter, it is the function of local policymakers to
determine how to address the COVID-19 health and safety issues. The only role of this Court is to
address the constitutionality of the jail’s procedures within the confines of the claims in the amended
complaint.10 The Court addresses each Little factor.
A. Balance of Equities
There is relatively little case law on the issue of release based on COVID-19 risk. However,
“federal courts that have considered arguments like [plaintiff’s] have indicated that a prisoner is not
entitled to release or transfer based solely on generalized COVID-19 fears and speculation.”11 Carter
This and all other unpublished decisions cited herein are not precedential, but they may be
cited for their persuasive value. See Fed. R. App. 32.1; 10th Cir. R. 32.1.
Plaintiff has identified no constitutional right to be free from COVID-19; he merely refers
to “liberty interests.”
It is worth noting that some federal courts have released federal inmates for generalized
COVID-19 concerns. See, e.g., Savino et al v. Hodgson et al, 20-CV-10617, Dkt. # 55 (D.
Mass. April 7, 2020) (electronic order). However, these cases involve federal courts issuing
injunctions with regard to federal inmates. See Hope v. Doll, 20-CV-562 (M.D. Penn. April
7, 2020). Here, plaintiff asks the Court for a preliminary injunction against local officials,
over an issue in which the Court has no general authority; this is the role of county and city
policymakers. See Russell v. Harris Cty., Texas, 2020 WL 1866835, at *9 (S.D. Tex. April
14, 2020) (“This case does not, like many, involve a federal-court challenge to a federal jail
or prison facility, on either the conditions of confinement (including medical care) or on the
duration of confinement and conditions of pretrial release.”).
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v. Santa Fe Adult Detention Center, 2020 WL 1550888, at *2 (D.N.M. April 1, 2020); see also
United States v. Eberhart, 2020 WL 1450745 (N.D. Cal. 2020); Jackson v. Walz, 2020 WL 1442641
(D. Minn. 2020). “Rather, the court must make an individualized determination as to whether
COVID-19 concerns present such extraordinary and compelling reasons in a particular case that
temporary release or transfer is necessary.” Carter, 2020 WL 1550888, at *2 (citing United States
v. Clark, 2020 WL 1446895, at *3 (D. Kan. March 25, 2020)). “[T]he mere existence of COVID-19
in society and the possibility that it may spread to a particular prison alone cannot independently
justify [release from jail]. . . .” United States v. Raia, 954 F.3d 594, 595 (3d Cir. 2020); see also
United States v. Clark, 2020 WL 1557397, at *4-5 (M.D. La. Apr. 1, 2020) (noting that “[d]efendant
cites no authority for the proposition that the fear of contracting a communicable disease warrants
a sentence modification” and “there is no evidence before the Court that the BOP’s plan to address
the pandemic will not adequately protect inmates”) (emphasis in original).
Plaintiff argues that the risk to putative class members absent a preliminary injunction
outweighs any risk to the Sheriff. Dkt. # 158, at 28. He argues that reducing the jail population at
this time “will save the lives” of inmates and Sheriff employees by decreasing the potential damage
that an outbreak of COVID-19 at the jail would cause. Id. Defendants argue that plaintiff will not
be injured, and there is no certified class for whom relief can be granted. Dkt. # 175, at 10.
The Court has already found that the class need not be certified in order to rule on this
motion; however, the Court finds that putative class members are not currently facing extraordinary
or compelling circumstances because there are no confirmed cases among inmates of COVID-19 at
the jail. This does not mean that inmates at the jail could not, in the future, develop COVID-19
during their time in jail. But the procedures for combating COVID-19 are extensive, and there is
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only speculation at this point that COVID-19 will be rampant at the jail. Putative class members do
have some interest in release from jail based on fear of a virus, but that interest is less on this record
than the public’s interest in deterring future offenses and ensuring that arrestees appear for trial. On
balance, the Sheriff will be more greatly harmed by a preliminary injunction because he could be
subjected to criminal liability for releasing inmates without approval of the Tulsa County District
Court, and he would create danger to the community and risk of flight were he to release arrestees.
In addition, the Court must defer to local policymakers during this time. In the absence of
Tenth Circuit precedent, the Court looks to guidance from Fifth Circuit persuasive authority that
federal district courts defer to state actions taken in times of emergency, even if they infringe on
individual constitutional rights. In re Abbott, 954 F.3d 772, 783 (5th Cir. 2020). In In re Abbott,
a federal district court temporarily restrained the Governor of Texas’s executive order GA-09, which
postponed non-essential surgeries and procedures until April 21, 2020. Id. at 777. The district court
reasoned that the executive order was a total restraint on access to abortions. Id. at 781. The Fifth
Circuit reversed, holding that the federal district court ignored the required framework governing
emergency public health measures.
Id. at 778.
The Court noted that, under Jacobson v.
Commonwealth of Massachusetts, 197 U.S. 11, 31 (1905), “constitutional rights may be reasonably
restricted ‘as the safety of the general public may demand.’” Id. (quoting Jacobson, 197 U.S. at 29).
“That settled rule allows the state to restrict, for example, one’s right to peaceably assemble, to
publicly worship, to travel, and even to leave one’s home.” Id. The court also noted that judicial
review is only available:
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if a statute purporting to have been enacted to protect the public health, the public
morals, or the public safety, has no real or substantial relation to those objects, or is,
beyond all question, a plain, palpable invasion of rights secured by the fundamental
Id. (quoting Jacobson, 197 U.S. at 31) (emphasis in original). Here, there is no statute involved,
merely a plan implemented by local authorities reasonably related to combating a public emergency.
The Court concludes that judicial review of the jail’s COVID-19 Plan is not appropriate.
The Court finds that plaintiff has not met his heavy burden of showing that the balance of
equities strongly favors plaintiff.
B. Irreparable Harm
Plaintiff makes generalized assertions that COVID-19 is “an unprecedented public health
disaster, and the county jail is a catastrophe waiting to happen.” Dkt. # 158, at 7. However, plaintiff
fails to show that any individual putative class member is at a high risk of developing COVID-19.
Defendants have provided evidence that no detainee, much less a putative class member, has been
diagnosed with COVID-19. See Dkt. # 166-10, at 1. The only person diagnosed with COVID-19
at the jail is a clerk who had limited contact with detainees. See Dkt. # 171, at 2. Plaintiff also
argues that “solitary confinement” (quarantine) during this COVID-19 pandemic constitutes an
irreparable harm.12 Dkt. # 168, at 8-10. However, plaintiff has identified no “right” not to be
distanced or quarantined during an international pandemic. See In re Abbott, 954 F.3d at 784 (“The
bottom line is this: when faced with a society-threatening epidemic, a state may implement
In support of this, plaintiff provides a declaration of Craig W. Haney, Ph. D. Dkt. # 168-7.
Dr. Haney states that “it is possible that the extraordinary added stress of social isolation
under these especially onerous conditions . . . are so extreme that the[y] will operate to
depress prisoners’ immune systems and render them even more vulnerable to [the] COVID19 virus, and less able to combat it if and when they contract it.” Id. at 5. However, this
practice of quarantine complies with the CDC’s guidance.
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emergency measures that curtail constitutional rights so long as the measures have at least some ‘real
or substantial relation’ to the public health crisis and are not ‘beyond all question, a plain, palpable
invasion of rights secured by the fundamental law.’”) (quoting Jacobson, 197 U.S. at 31). Moreover,
medical staff at the jail provide medical care and treatment for all inmates for medical and mental
health conditions, including those inmates placed in quarantine or isolation. Dkt. # 171-2, at 2.
The procedures that the TCSO has developed to combat COVID-19 are more than adequate
to protect individual inmates. Further, they are consistent with the CDC’s guidance. Upon entry into
the jail, inmates’ temperatures are taken. Dkt. # 166-2, at 2. This is consistent with the CDC’s
guidance that a jail “[p]erform pre-intake screening and temperature checks for all new entrants.”
Dkt. # 177-1, at 10. Employees’ temperatures are also taken, and they are required to stay home for
at least 14 days if they have a temperature after symptoms were initially present. The jail has
designated entire areas for inmates who might test positive for COVID-19. Dkt. # 166-2, at 2. This
is consistent with the CDC’s guidance that “an individual [who] has symptoms of COVID-19”
should be placed “under medical isolation.” Dkt. # 177-1, at 10. The jail has ordered hand sanitizer
for employees and inmates, and has ordered 40,000 bars of soap for inmates. Similarly, the CDC
recommends that proper hygiene is essential for combating COVID-19 in jails and detention
facilities. See Dkt. # 177-1, at 8. The jail has posted signs, posters, and warnings on tablets
explaining the precautions inmates should take to combat COVID-19. Most importantly, if any
inmate tests positive for COVID-19, he or she will be immediately quarantined and given medical
attention. This is consistent with the CDC’s guidance that, if an inmate tests positive for COVID-19,
a plan should be in place to transfer that individual to a local hospital. Id. at 23.
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Plaintiff argues that many of these procedures are ignored, and he provides testimony from
a named witness that inmates are still exposed to one another. See Dkt. # 168-3. However, the same
is true for the community at large. The City of Tulsa has policies for combating COVID-19 in the
general public, but these procedures are not followed absolutely. It is not this Court’s role to
mandate that county or city-wide procedures be followed strictly. Plaintiff also seems to imply that
the conditions in the jail should be such as to eliminate any possibility that an inmate could contract
COVID-19. See Dkt. # 168, at 5. This is impractical, even for the general public. Plaintiff argues
that the jail’s COVID-19 Plan and its implementation should mirror the CDC guidance. However,
the COVID-19 Plan does follow many aspects of the CDC guidance. Plaintiff argues that the
COVID-19 Plan “contradicts or omits many important CDC guidelines . . . .” Dkt. # 168, at 2.
However, plaintiff does not meet his burden to show that putative class members would be safer
were they to be released into the general public. Even if the COVID-19 Plan fails to follow all CDC
guidance in its practical implementation, this Court should defer to the policy of local officials
absent a showing that the policy has no real relation to the public health or safety.
Many of plaintiff’s arguments are generalized concerns and speculations about the conditions
of the jail. Normally a detainee must exhaust administrative remedies before making a complaint
in court. See Peoples v. Gilman, 109 F. App’x. 381, 383 (10th Cir. 2004) (holding that a detainee
was required to exhaust administrative remedies because his claim “implicate[d] conditions of
confinement and the effects of actions by government officials on the lives of persons confined in
prison”). Plaintiff does not claim that putative class members are at a high risk of contracting
COVID-19 due to age or illness; his concerns are generalized and speculative. Therefore, the Court
Case 4:18-cv-00298-CVE-JFJ Document 191 Filed in USDC ND/OK on 05/11/20 Page 32 of 35
finds that plaintiff has not met his heavy burden of showing putative class members will likely suffer
irreparable harm in the absence of preliminary relief.
C. Public’s Interest
The public interest analysis somewhat overlaps with the balance of equities analysis.
Plaintiff argues that “vindication of constitutional rights is always in the public interest.” Dkt. # 158,
at 30. However, as discussed, the Court declines to rule at this time whether a constitutional right
to bail has been or is likely to be violated. Plaintiff further argues that releasing inmates is essential
to the well being of not only the individual inmates, but also to the public in general. Id. However,
there are no confirmed cases of COVID-19 at the jail among inmates. The Court finds that it is not
in the public’s interest to release numerous putative class member inmates into the general
The parties disagree as to whether comity requires the Court to defer to the Sheriff’s policy.
Defendants argue that federal courts should defer to state courts in matters of sensitive public policy.
Dkt. # 175, at 11-12.
In Dixon v. City of St. Louis, 950 F.3d 1052 (8th Cir. 2020), the Eighth Circuit reversed a
preliminary injunction issued by a federal district court where the district court did not consider the
public’s interest in a preliminary injunction. Id. at 1056. The Missouri Supreme Court, like the
Tulsa County District Court, had developed a rule modifying bail hearings. Id. at 1055. The federal
district court enjoined the state officials from setting bail without considering less restrictive
alternatives, and its only discussion of the new rule was that it was not moot. Id. at 1055-56. The
circuit court remanded for consideration of the public’s interest in light of the new rule. Id. at 1056.
Case 4:18-cv-00298-CVE-JFJ Document 191 Filed in USDC ND/OK on 05/11/20 Page 33 of 35
Plaintiff argues that this case is inapposite because, in Dixon, the court did not rule that a
preliminary injunction was improper; it held only that the district court should have given more
weight to the public interest factor in its analysis in light of the new Missouri Supreme Court rule.
Dkt. # 179, at 10. While this is true, plaintiff’s argument on comity is unpersuasive. Local Criminal
Rule 2 is a significant improvement upon the prior bail process in Tulsa County District Court. And,
although the Court is not ruling on the underlying merits of that new process at this time, it is worth
noting that state and county policymakers are working together to implement improvements to that
process. “Cooperation and comity, not competition and conflict, are essential to the federal design.”
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 586 (1999).
In addition, were the Court to issue a preliminary injunction releasing putative class
members, it would be contrary to the public’s interest in ensuring arrestees appear for trial and do
not present a risk of committing new offenses. The Court thus finds that plaintiff has not met his
heavy burden of showing that the public interest strongly favors granting a preliminary injunction.
D. Likelihood of Success on the Merits
As noted above, the Court cannot determine at this time whether plaintiff is likely to succeed
on the merits of the bail system claims. The record, at this point, is too conflicting and incomplete.
Discovery is ongoing. See Dkt. # 185.
With regard to likelihood of success on the merits, the Sheriff argues that a preliminary
injunction would have no effect because he allegedly has no authority to release detainees because
they are unable to pay bail. Dkt. # 177, at 17. He argues that, because plaintiff’s claim is based on
allegedly unconstitutional judicial procedures employed by the state court judges, and because
plaintiff has sued those judges directly, an injunction against the Sheriff is unwarranted. Id. at 24.
Case 4:18-cv-00298-CVE-JFJ Document 191 Filed in USDC ND/OK on 05/11/20 Page 34 of 35
He cites the Tenth Circuit’s opinion in Valdez v. City and County of Denver, 878 F.2d 1285, 1289
(10th Cir. 1989), as authority for this proposition. Dkt. # 177, at 27. In that case, the Tenth Circuit
held that “officials performing ministerial acts intimately related to the judicial process . . . must not
be called upon to answer for the legality of decisions which they are powerless to control.” Valdez,
878 F.2d at 1289. He also cites Buffin v. City and County of San Francisco, 2016 WL 6025486, at
*5 n.3 (N.D. Cal. Oct 14, 2016), which found that, “as a matter of law there is no county policy
where the State directs its judges to set a bail schedule, which the Sheriff’s department is required
to enforce pursuant to state law.” Id. Thus, the Sheriff argues, injunctive relief against him would
be unwarranted.13 Plaintiff counters that “[a]n insistence that state law or policy requires the Sheriff
to violate the Constitution is not a defense to [p]laintiff’s claim for injunctive relief, but rather a
basis for granting that relief.” Dkt. # 187, at 12 (citing Edwards v. Cofield, 265 F. Supp. 3d 1344,
1346 (M.D. Ala. 2017) (a sheriff “does not enjoy immunity merely because he was following orders.
Indeed, . . . Ex Parte Young assumes that the state actor has done nothing more than enforce the law
as promulgated by the State.”). Plaintiff also points out that the Court in a prior order (Dkt. # 48)
allowed his claims against the Sheriff to proceed. Dkt. # 187, at 18.
Because the Court has found that putative class members are unlikely to suffer irreparable
harm based on COVID-19, it need not address these arguments at this time because it is deferring
the merits of plaintiff’s underlying claims to a future date. See Dominion Video Satellite, Inc. v.
The Sheriff also argues that, were he to release detainees from jail, he could face criminal
liability and loss of employment. Dkt. # 177, at 16 (citing OKLA. STAT. tit. 57, § 47 (“The
sheriff . . . is hereby required to conform, in all respects, to the rules and directions . . . of the
district judge and communicated to him by the proper authority.”); OKLA. STAT. tit. 57, § 55
(stating that, if the Sheriff refuses “to comply with any of the rules and regulations
established by the district judge . . . he shall, on conviction thereof, by indictment for each
case of such failure or neglect of duty . . . pay . . . a fine . . . .”)).
Case 4:18-cv-00298-CVE-JFJ Document 191 Filed in USDC ND/OK on 05/11/20 Page 35 of 35
Echostar Satellite Corp., 356 F.3d 1256, 1260 (10th Cir. 2004) (“In examining these factors, courts
have consistently noted that because a showing of probable irreparable harm is the single most
important prerequisite for the issuance of a preliminary injunction, the moving party must first
demonstrate that such injury is likely before the other requirements for the issuance of an injunction
will be considered.”) (quotation marks and citations omitted).
A preliminary injunction is “an extraordinary and drastic remedy.” Mazurek v. Armstrong,
520 U.S. 968, 972 (1997). Plaintiff’s request for a preliminary injunction is strongly disfavored.
Plaintiff has not made a the required strong showing of the four Little factors for issuance of a
mandatory preliminary injunction or a preliminary injunction that alters the status quo. For these
reasons, the Court finds that plaintiff’s motion for a preliminary injunction (Dkt. # 158) should be
denied without prejudice.
IT IS THEREFORE ORDERED that plaintiff’s motion for a preliminary injunction (Dkt.
# 158) is denied without prejudice, and plaintiff’s motion for a temporary restraining order (Dkt.
# 159) is moot.
DATED this 11th day of May, 2020.
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