NAME:______1

2 CDCR#______

3 INSTITUTION:______4 ADDRESS:______5 6 ______

7 CELL:______

8

9 Superior Court of 10 ______County (Marin or conviction county) 11

12 13 In Re ______, Court No: ______If known (your name) 14 Petitioner, Petition for Writ of 15 Habeas Corpus for vs. 16 Petitioner’s Immediate Release from San Quentin 17 Ron Bloomfield, Acting Warden of San Quentin State During 18 State Prison; State of COVID-19 Outbreak 19 California, Date: ______For Court to fill

20 Time: ______Respondents. Dept: _____ 21 Petitioner ______requests this Court grant his Petition for 22 (your name) 23 24 - 1 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 Writ of Habeas Corpus and immediately release him from San Quentin 2 State Prison, where a massive outbreak of COVID-19 cases threatens his 3 health in violation of the Eighth Amendment. The issues are 4 5 1. Habeas corpus: immediate release pending decision

6 A writ of habeas corpus is the appropriate remedy for wrongful 7 imprisonment.1 Pending the outcome of habeas proceedings, the court may order Petitioner temporarily released from custody.2 If the claim 8 has merit and there is some urgency, the court may order the 9 custodian to show cause.3 Here, where Petitioner shows that continued confinement in San Quentin during the COVID-19 outbreak 10 poses dire health consequences, should he be released pending the 11 outcome of the habeas? 12 2. Eighth Amendment violation. 13 14 The State violates a ’s Eighth Amendment right by subjecting him to conditions that pose an unreasonable risk of harm and by the 15 deliberate indifference of prison officials to protect him from harm.4 16

17 1 Fay v. Noia (1963) 372 U.S. 391, 401–402. 18 2 Id.; Pen. Code, § 1476 (court may “admit [the Petitioner] to bail, if the offense is bailable”); In re William M. (1970) 3 Cal.3d 16, 22 (minor ordered released pending habeas corpus petition’s determination); In re 19 Newbern (1960) 53 Cal.2d 786, 788 (petitioner released on own recognizance pending outcome of habeas corpus proceeding). 20 3 People v. Romero (1994) 8 Cal.4th 728. 21 4 U.S. Const. Amend. 8; Brown v. Plata (2011) 563 U.S. 493, 508-09; 22 Farmer v. Brennan (1994) 511 U.S. 825, 832-33 (1994); Estelle v. Gamble (1976) 429 U.S. 97; See Helling v. McKinney (1993) 509 U.S. 25, 33 23 (“That the Eighth Amendment protects against future harm to inmates is not a novel proposition”). 24 - 2 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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Here, Respondents caused a COVID-19 outbreak by 1 transferring afflicted into the facility. Positive cases are 2 increasing daily exponentially. Does Petitioner’s Eighth Amendment 3 right require the court to immediately release him from San Quentin to protect his health? 4 Statement of Facts 5 Currently, COVID-19 has afflicted more than 10 million and killed 6 over 500,000 people worldwide.5 The has the highest 7 number of confirmed cases in the world with almost 2.5 million 8 confirmed cases and nearly 125,000 deaths.6 These numbers are ever 9 growing. If death is avoided, lifelong repercussions are likely.7 Projections 10 of the Centers for Disease Control and Prevention show that, without 11 effective public health intervention, more than 200 million people in the 12 13 14 15

16 5 Coronavirus COVID-19 Global Cases by the Center for Systems Science and Engineering at Johns Hopkins University, 17 https://gisanddata.maps.arcgis.com/apps/opsdashboard/index.html#/ bda7594740fd40299423467b48e9ecf6 18 6 World Health Org., Coronavirus Disease (COVID-2019) Situation Reports – 93, (Apr. 22, 2020 https://www.who.int/docs/default- 19 source/coronaviruse/situation-reports/20200422-sitrep-93-covid- 19.pdf?sfvrsn=35cf80d7_4 20 7 See e.g., Melinda Wenner Moyer, Can Covid Damage the Brain?, N.Y. 21 Times (June 26, 2010) https://www.nytimes.com/2020/06/26/opinion/coronavirus-brain- 22 damage-dementia.html?referringSource=articleShare; Jason Horowitz, Surviving Covid-19 May Not Feel Like Recovery for Some (May 10, 2020) 23 https://www.nytimes.com/2020/05/10/world/europe/coronavirus- italy-recovery.html?referringSource=articleShare 24 - 3 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 United States could be infected with COVID-19, with as many as 1.7

2 million deaths in the most severe projections.8 3 1. Jails and are epicenters for COVID-19. 4 Leading public health officials warned months ago that unless courts 5 act immediately, the “epicenter of the pandemic will be jails and

6 prisons.”9 As the CDC explained, correctional facilities “present[] unique 7 challenges for control of COVID-19 transmission among incarcerated/

8 detained persons, staff, and visitors.”10 “Prisons are epicenters for 9 infectious diseases because of the higher background prevalence of 10 infection, the higher levels of risk factors for infection, the unavoidable 11 close contact in often overcrowded, poorly ventilated, and unsanitary 12 facilities, and the poor access to healthcare services relative to that in 13 community settings. Infections can be transmitted between prisoners, 14 staff and visitors, between prisons through transfers and staff cross- 15 deployment, and to and from the community. As such, prisons and other 16 17

18 8 Sheri Fink, Worst-Case Estimates for U.S. Coronavirus Deaths, N.Y. 19 Times (Mar. 18, 2020), https://nyti.ms/2JrLgal

20 9 Amanda Klonsky, An Epicenter of the Pandemic Will Be Jails and Prisons, if Inaction Continues, N.Y. Times (Mar. 16, 2020), 21 https://nyti.ms/3aycWX4

22 10 Centers for Disease Control & Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and 23 Detention Facilities (“CDC Guidance”) (Mar. 23, 2020), https://bit.ly/2ygqU1k 24 - 4 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 custodial settings are an integral part of the public health response to

2 coronavirus disease.”11 3 2. The San Quentin outbreak. 4 San Quentin State Prison is currently experiencing a massive

5 outbreak of the virus. The outbreak resulted from the May 3012 transfer 6 to San Quentin of 121 prisoners from the California Institution for Men 7 (CIM), which has been an early hotbed of virus cases in the state prison

8 system with 509 cases and 16 deaths.13 Before the transfer, San Quentin 9 had zero cases. The first incarcerated person at San Quentin inmate 10 tested positive on June 1, just two days after the transfer of prisoners 11 from CIM. The transferring prisoners had not been tested for two weeks

12 up to a month before the transfer.14 13 During a June 19 Case Management Conference in the Plata v. 14 Newsom COVID-19 litigation against CDCR—when the positive case 15

16 11 Stuart A Kinner, et al., Prisons and custodial settings are part of a comprehensive response to COVID-19, The Lancet, Vol 5 April 2020, p. 17 e188, www.thelancet.com/public-health. 18 12 All dates are in 2020, unless otherwise indicated. 19 13 https://www.cdcr.ca.gov/covid19/population-status-tracking/ 14 Cassidy, Megan and Fagone, Jason, 200 Chino inmates transferred to 20 San Quentin, Corcoran. Why weren’t they tested first? Chronicle, June 8, 2020. 21 https://www.sfchronicle.com/crime/article/Coronavirus-and-prisons- Prisoners-went-weeks-15325787.php ; see also Botched Outbreak of 22 Covid-19 at San Quentin was Preventable, https://www.kqed.org/news/11823976/botched-outbreak-of-covid-19- 23 at-san-quentin-was-preventable-lawmaker-says; see also https://rbgg.com/wp-content/uploads/Joint-Statement-Re-Covid-19.pdf 24 - 5 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 count at San Quentin had climbed to 59—Judge Tigar of the Northern 2 District federal court called the fateful transfer a “significant failure of

3 policy and planning” by prison officials15 and said, “some people made a

4 bad mistake.”16 5 Since June 1, the number of confirmed cases has been exponentially 6 increasing at a rapid rate from zero to over 1,000 in just one month: 7 • 48 active cases, 2 weeks later (June 14); 8 • 152 cases, 6 days later (June 20); 9 • 338 cases, 2 days later (June 22); 10 • 456 cases, 2 days more (June 24); 11 • 539 cases, 2 days later (June 26); 12 • 1106 cases, 4 days later (June 30). 13 The number of cases has more than doubled in the four days from

14 June 26 to June 30.17 Put another way, the rate of infection per 1000 in 15 the U.S. is 7.0, in California 4.7, in CDCR 42.2 and in San Quentin 16 17

18 15 Plata v. Newsom, NO. CV 01-01351-JST (U.S. Dist. Ct. N.D.Ca.) Case 19 Management Conference, June 19, 2020 at pg. 12: lines 9-14. file:///C:/Users/Clara%20Foltz/Downloads/Dkt%203362%20[PLATA]% 20 20Transcript%20of%2006.19.20%20CMC_recd%2006.24.20_0489.OVR% 20(1).PDF 21 16 Ibid. 22 17 California Department of Corrections and Rehabilitation, Population 23 Covid-19 Tracking, Accessed June 30, 2020, https://www.cdcr.ca.gov/covid19/population-status-tracking/. 24 - 6 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 297.1.18 Twenty-nine per cent of the population at San Quentin is infected 2 as of June 30; all in a single month. 3 As of June 29, 21 prisoners have died of COVID-19 in California state 4 prisons, including 16 at California Institute for Men from where positive 5 cases were transferred to San Quentin. Currently 89 staff members at

6 San Quentin have also tested positive for COVID-19.19 7 On June 13, public health experts from UCSF and UC Berkeley, in a 8 memo submitted to the State, urged that the only way to control the 9 virus outbreak at San Quentin would be to reduce the prison’s

10 population by at least half.20 The memo also stated that San Quentin has 11 “profoundly inadequate resources” to deal with the surge of virus cases 12 and failure to quickly address the crisis could have dire implications for 13 the spread of the virus throughout the entire Bay Area. 14 Judge Tigar, again during the June 19 Case Management Conference 15 in Plata, stated that CDCR’s only options for minimizing the harm of the 16 virus to the incarcerated population would be to dramatically reduce the

17 population of San Quentin.21 He further prohibited CDCR from 18 18 Ibid. 19 19 California Department of Corrections and Rehabilitation, CDCR/CCHS 20 Covid-19 Employee Status, Accessed June 29, 2020, 21 https://www.cdcr.ca.gov/covid19/cdcr-cchcs-covid-19-status/ 20 https://www.documentcloud.org/documents/6956448-06-15-20-San- 22 Quentin-Urgent-Memo.html. 23 21 Plata v. Newsom, NO. CV 01-01351-JST (U.S. Dist. Ct. N.D.Ca.) Case 24 Management Conference, June 19, 2020 at 10:4-13. - 7 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 transferring any individuals from San Quentin to any other prison unless 2 CDCR identified a brand new facility to receive incarcerated individuals

3 (no such facility is known to exist)22 and until new testing and transfer

4 policies are put in place.23 He questioned whether a 7-day testing policy

5 before transfer would be good.24 Judge Tigar recommended furloughs or 6 house arrests as two possible options for immediately reducing the

7 population.25 The court found these measures were required in part 8 because of San Quentin’s architecture, which includes cell blocks 5 tiers 9 high, housing more than 800 men in unsanitary conditions and without

10 proper ventilation, creating a dangerous breeding ground for the virus.26 11 12 Additional Arguments: (Only check if the argument applies to you.) 13 o 3. Petitioner does not qualify for CDCR’s early release 14

15 file:///C:/Users/Clara%20Foltz/Downloads/Dkt%203362%20[PLATA]% 20Transcript%20of%2006.19.20%20CMC_recd%2006.24.20_0489.OVR% 16 20(1).PDF 17 Federal judge: San Quentin COVID-19 outbreak result of ‘significant failure’, June 22, 2020, 18 https://www.sfchronicle.com/crime/article/Federal-judge-San-Quentin- COVID-19-outbreak-15358348.php 19 22 Ibid. 20 23 Id., at 13:5-13. 21 24 Id., at 13:5-14:16. 22 25 Id., 10:14-16. 23 26 Id., 15:16-24. 24 - 8 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 plans. 2 On April 14, the Department of Justice issued No. 2020-DLE-05 3 Information Bulletin: “COVID-19 and Statutory Authority Under 4 Government Code Section 8658,” which would permit CDCR, in an 5 emergency, to remove or release prisoners during an

6 outbreak.27 However, there is no procedure by which an incarcerated 7 person may initiate a request that the warden exercise his discretion to

8 release under section 8658.28 9 On June 16, 2020, CDCR announced a plan to implement a 10 community supervision program, beginning July 1, 2020, for eligible 11 persons with 180 days or less to serve on their sentences and are not 12 currently serving time for domestic violence or a violent or serious crime 13 as defined by law, and are not required to register under Penal Code

14 290.29 15 16

17 27 CA Department of Justice, No. 2020-DLE-05 Information Bulletin: “COVID-19 and Statutory Authority Under Government Code Section 18 8658. https://oag.ca.gov/sites/all/files/agweb/pdfs/publications/2020- dle-05.pdf? 19 28 Govt. Code, § 8658 provides: “In any case in which an emergency endangering the lives of inmates of a state, county, or city penal or 20 correctional institution has occurred or is imminent, the person in charge of the institution may remove the inmates from the institution. He 21 shall, if possible, remove them to a safe and convenient place and there confine them as long as may be necessary to avoid the danger, or, if that 22 is not possible, may release them...”

23 29 CDCR Announces Community Supervision Program to Further Protect Inmates and Staff from the Spread of COVID-19 (June 16, 2020) 24 - 9 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 Petitioner will not benefit from the June 16 CDCR release plan 2 because [check all that apply:] 3 o [Petitioner has more than 180 days left to serve on his sentence 4 (list time remaining on your sentence______)] 5 o [Petitioner was convicted of domestic violence a violent or serious 6 offense] 7 o [Petitioner is required to register under section 290]. 8 [Check next section if applicable] 9 o [Petitioner has particular vulnerability to COVID-19.] 10 Provide the following information: 11 Age 50 or older:______12 All medical conditions that you have:______13 ______14 ______15 ______16 5. Petitioner’s re-entry plan upon release from San Quentin. 17 [List your re-entry plan when you are released, including:] 18 Housing:______19 ______20 21 Community Support: (List names and relationship with people in the 22 community who can provide financial or emotional support] 23 ______24 - 10 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 ______2 ______3 4 Healthcare: ______5 ______6 ______7 Employment options: (what marketable skills do you have; list any job 8 offers or leads; what resources do you know of that can assist you) 9 10 ______11 ______12 ______13 Communication: [If you have the means to obtain a cell phone when 14 released, please explain:______15 16 Contact who will assist you in applying for benefits like medi-cal, social 17 security, obtaining identification or a driver’s license, and in securing 18 employment as needed: 19 ______20 ______21 ______22 Other: ______23 24 - 11 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 Procedural History

2 On ______[Date of conviction or plea (if known)]

3 [Check the one that applies:]

4 o the jury returned a guilty verdict of guilty to

5 o I entered a plea of guilty to 6 [list the crimes you were convicted of or pled guilty to: 7 ______

8 On ______[sentencing date if known), the court sentenced Petitioner to 9 serve ___ years in state prison. Petitioner is currently serving his

10 sentence in San Quentin State Prison [Complete with the amount of time

11 you have left on your sentence:] and has ______to serve on that

12 sentence. 13 Memorandum of Points and Authorities 14 As discussed below, by subjecting Petitioner to the high risk of 15 contracting COVID-19 during an uncontrolled outbreak in San Quentin, 16 Respondents have shown deliberate indifference to Petitioner’s health 17 which violates his Eighth Amendment right. Thus, the court should 18 immediately release Petitioner pending the outcome of this Petition for 19 Writ of Habeas Corpus, and order Respondents to show cause why the 20 habeas petition should not be granted. 21 22 1. The court should issue an order for Respondents to show cause why the Petitioner’s relief on habeas 23 24 - 12 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 corpus should not be granted and immediately release Petitioner. 2 3 The court’s power to grant preliminary relief, explicitly recognized by 4 the state Supreme Court in its 1994 Romero decision,30 is inherent in its 5 power to grant the writ of habeas corpus. The United States Supreme 6 Court agrees, in its 1969 Harris v. Nelson case, recognizing its place in 7 the Constitution, ‘The Privilege of the Writ of Habeas Corpus shall not be 8 suspended.’ U.S. Const., Art. I, s 9, cl. 2.”31 The High Court emphasized 9 the “scope and flexibility…to reach all manner of illegal detention.” And 10 of key import here is “its ability to cut through barriers of form and 11 procedural mazes.”32 12 The writ’s “function has been to provide a prompt and efficacious 13 remedy for whatever society deems to be intolerable restraints.”33 “Its 14 root principle is that in a civilized society, government must always be 15 accountable to the judiciary for a man’s imprisonment: if the 16 imprisonment cannot be shown to conform with the fundamental 17 requirements of law, the individual is entitled to his immediate release.”34 18

19 30 People v. Romero (1994) 8 Cal.4th 728. 20 31 Harris v. Nelson (1969) 394 U.S. 286, 290–291. 21 32 Id. at 291. 22 33 Fay v. Noia (1963) 372 U.S. 391, 401–402. 23 34 Ibid. 24 - 13 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 Penal Code section 1484 grants the court broad powers and flexibility 2 to determine the writ and to fashion the appropriate remedy on the

3 Petitioner’s meritorious claim.35 It follows that this court enjoys great 4 discretion on habeas corpus to effect substantial justice by ordering the 5 preliminary relief here requested: immediate release. 6 This Court should find that Petitioner states a prima facie case for 7 relief on habeas corpus. In determining that threshold question, this 8 Court should take the petition’s factual allegations as true and consider

9 whether those facts, if proven, would entitle Petitioner to relief.36 If so, 10 issuance of an order to show cause (OSC) is “mandatory,” to ensure final

11 disposition of the proceeding on a fully-developed record.37 12 The Supreme Court has sanctioned the grant of preliminary relief and 13 release on habeas corpus in appropriate cases. The Court has stressed 14 that obtaining relief through habeas corpus proceedings [need not] be 15 slow or cumbersome. “If the claim asserted in the petition has apparent 16 merit and there is some urgency because the petition… the court may 17 require the custodian or real party in interest to submit the return to the 18 19 35 See, e.g., Pen. Code, § 1484 (after issuance of order to show cause, habeas court shall “dispose of such party as the justice of the case may 20 require and have full power and authority … to do and perform all … acts and things necessary to a full and fair hearing and determination of the 21 case”).

22 36 People v. Romero, supra, 8 Cal.4th 728, 737; People v. Duvall (1995) 9 Cal.4th 464, 474-475. 23 37 Romero, supra, 8 Cal.4th at 740. 24 - 14 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 writ or order to show cause as little as 24 hours after being served with

2 the petition.”38 3 Pending the outcome of the habeas corpus proceeding, the court may

4 order Petitioner temporarily released from custody.39 Once the court 5 receives the return, it may grant relief without an evidentiary hearing if

6 there are no material contested issues of fact.40 7 Here, the court should promptly issue an order directing Respondents 8 to release Petitioner immediately to protect him from contracting COVID- 9 19 while imprisoned at San Quentin. “Habeas corpus delayed is habeas

10 corpus denied.”41

11 2. Petitioner’s Eighth Amendment right to be free from 12 cruel and unusual punishment is violated by his 13 continued confinement at San Quentin during the COVID-19 outbreak, and by Respondents’ deliberate 14 indifference in subjecting him to an unreasonable risk 15 of harm. 16 17

18 38 Id., at 744–745 [emphasis added], citing Pen. Code, § 1475; cf. In re Alcala (1990) 222 Cal.App.3d 345, 352 (preliminary relief granted by trial 19 court in prison conditions case upon filing of petition). 39 See id., Pen. Code, § 1476 (court may “admit [the Petitioner] to bail, if 20 the offense is bailable”); In re William M. (1970) 3 Cal.3d 16, 22 (minor ordered released pending habeas corpus petition’s determination); In re 21 Newbern (1960) 53 Cal.2d 786, 788 (Petitioner released on own recognizance pending outcome of habeas corpus proceeding). 22 40 In re Fields (1990) 51 Cal.3d 1063, 1070, fn. 2. 23 41 Frias v. Superior Court (1975) 51 Cal.App.3d 919, 924. 24 - 15 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 Petitioner’s continued confinement in San Quentin during the ongoing 2 COVID-19 outbreak poses dire health risks and an unreasonable risk of 3 future harm violating the constitutional protections of the Eighth 4 Amendment to be free from cruel and unusual punishment. The San 5 Quentin Warden and CDCR officials have shown deliberate indifference 6 to Petitioner’s health and safety by subjecting him to such conditions 7 and failing to take reasonable steps to abate them.

8 A. Petitioner—a prisoner at San Quentin—faces a substantial risk 9 of serious harm during the COVID-19 outbreak at the facility. 10 The United States Supreme Court has held that the Eighth 11 Amendment requires the government to provide effective medical care for 12 those in its custody.42 Conditions that pose an unreasonable risk of 13 future harm run afoul of the Eighth Amendment’s protection.43 14 This right is not hypothetical. Exposure to secondhand tobacco smoke 15 can support a claim. So in Helling, a plaintiff alleged that the prison 16 assigned him to a cell with another inmate who smoked five packs of 17 cigarettes per day.44 At issue was whether this exposure to 18 environmental tobacco smoke could constitute a valid claim under the

19 42 U.S. Const. Amend. 8; Brown v. Plata (2011) 563 U.S. 493, 508-09; 20 Farmer v. Brennan (1994) 511 U.S. 825, 832-33 (1994); Estelle v. Gamble (1976) 429 U.S. 97. 21 43 See Helling v. McKinney (1993) 509 U.S. 25, 33 (“That the Eighth 22 Amendment protects against future harm to inmates is not a novel proposition.”). 23 44 Helling, 509 U.S. at 28. 24 - 16 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 Eighth Amendment, even though the plaintiff had not yet suffered

2 harm.45 The Supreme Court upheld the lower court decision, finding that 3 the plaintiff stated “a cause of action under the Eighth Amendment by 4 alleging that Petitioners have, with deliberate indifference, exposed him 5 to levels of [tobacco smoke] that pose an unreasonable risk of serious

6 damage to his future health.”46 7 Reasonable physical safety of an inmate is fundamental to the 8 Amendment, requiring incarcerated persons “be furnished with the basic

9 human needs, one of which is ‘reasonable safety.’”47 And the Supreme 10 Court has explicitly recognized that the risk of contracting “serious 11 contagious diseases” may constitute such an “unsafe, life-threatening

12 condition” that it threatens “reasonable safety.”48 13 “[W]hen the State takes a person into its custody and holds him there 14 against his will, the Constitution imposes upon it a corresponding duty

15 to assume some responsibility for his safety and general well-being.”49 16 And, “when the State by the affirmative exercise of its power so restrains 17

18 45 Id., at 30. 19 46 Id., at 35. 47 Id., at 33. 20 21 48 Id., at 33-34 (internal quotations omitted); see also Hutto v. Finney (1978) 437 U.S. 678, 682-685 (recognizing the need for a remedy where 22 prisoners were crowded into cells and some had infectious diseases).

23 49 DeShaney v. Winnebago County Dept. of Social Services (1989) 489 U.S. 189, 199-200. 24 - 17 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 an individual’s liberty that it renders him unable to care for himself, and 2 at the same time fails to provide for his basic human needs—e.g., food, 3 clothing, shelter, medical care, and reasonable safety—it transgresses 4 the substantive limits on state action set by the Eighth Amendment and

5 the Due Process Clause.”50 6 The Ninth Circuit, with Supreme Court approval, has intervened in 7 our state prisons because of inadequate medical care and overcrowding, 8 both of which hamper any efforts to combat COVID-19 at San Quentin. 9 In the 2011 Brown v. Plata decision, the high court approved an order 10 requiring the release of many convicted California prisoners unless the 11 state quickly relieved long-standing prison overcrowding that, among

12 other things, threatened the health of the inmates.51 Brown held that if 13 the government cannot remedy the Eighth Amendment violation, the

14 court must accord a remedy — including release, where appropriate.52 15 Courts “must not shrink from their obligation to 'enforce the 16 constitutional rights of all, including prisoners.' Courts may not allow 17 constitutional violations to continue simply because a remedy would

18 involve intrusion into the realm of prison administration.”53 19

20 50 DeShaney, supra, 489 U.S. at 200. 21 51 Brown v. Plata, supra, 563 U.S. 493. 22 52 Id., at 511. 23 53 Ibid. 24 - 18 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 Courts have found valid Eighth Amendment claims in cases like 2 Petitioner’s, involving contagious disease in carceral environments. 3 Relying on Helling, courts have found valid claims based on relatively

4 high risk of contracting Valley Fever in California prisons.54 5 Petitioner’s continued confinement at San Quentin given the COVID- 6 19 outbreak there poses dire health risks and constitutes an 7 unreasonable risk of future harm violating the constitutional protections 8 of the Eighth Amendment and the California Constitution.

9 B. Respondents have demonstrated a deliberate indifference to 10 Petitioner’s health by transferring inmates there without proper testing and other safety protocols. 11 In Estelle v. Gamble,55 the United States Supreme Court concluded 12 that “deliberate indifference to serious medical needs of prisoners” 13 violates the Amendment because it constitutes the unnecessary and 14 wanton infliction of pain contrary to contemporary standards of 15 decency.56 16 To establish an Eighth Amendment violation “based on a failure to 17 prevent harm, the [petitioner] must [first] show that he is incarcerated 18 under conditions posing a substantial risk of serious harm.”57 The 19 second prong is to establish that prison officials demonstrated a 20 54 Allen v. Kramer (E.D. Cal., 2016) 2016 WL 4613360, at 1, 11. 21 55 Estelle v. Gamble (1976) 429 U.S. 97, 103–104. 22 56 Id., at 104. 23 57 Farmer v. Brennan (1994) 511 U.S. 825, 834. 24 - 19 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 “deliberate indifference” to the health and safety of inmates.58 This 2 means that the prison official must “know that inmates face a 3 substantial risk of serious harm and disregard that risk by failing to take

4 reasonable measures to abate it.”59 5 Here, on May 30, CDCR transferred 121 inmates from California 6 Institute for Men, which had been the most infected prison in California, 7 to San Quentin, without properly testing them. By all accounts, some 8 transferring inmates had been tested 2 weeks before, and most as far 9 back as one month before the transfer. Two days after the CIM inmates 10 arrived at San Quentin, the first San Quentin tested positive. Judge 11 Tigar, overseeing litigation on CDCR’s response to COVID-19, 12 acknowledged this move constituted CDCR’s significant failure in policy. 13 CDCR had no protocols in place for testing inmates prior to transfer, 14 which led to the current outbreak at San Quentin. 15 Respondents’ action in moving prisoners from CIM—knowing that 16 CIM is the facility with the highest infections of COVID-19 in the system 17 including 16 deaths—to San Quentin, without properly testing them, 18 rises to the level of “deliberate indifference” to the health of San Quentin 19 prisoners, including Petitioner. Respondents knew that “inmates face a 20 substantial risk of serious harm and disregard[ed] that risk by failing to 21 22 58 Id., at 834, quoting Wilson v. Seiter (1991) 501 U.S. 294, 302-303. 23 59 Id., at 847. 24 - 20 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 take reasonable measures to abate it.”60 It is abundantly clear that CDCR 2 did not have in place a testing policy before transferring 121 CIM 3 inmates to San Quentin. The failure of prison officials then to take 4 reasonable steps to curb the spread of the virus at San Quentin, 5 including releasing inmates, adds to the culpability of prison officials. 6 Keeping Petitioner incarcerated at San Quentin during the current 7 COVID-19 outbreak, caused by Respondents’ action showing deliberate 8 indifference to his health, violates his Eighth Amendment right to be free 9 from cruel and unusual punishment. 10 o [Check if you are 55 or older or have a serious medical 11 condition] 12 13 3. Petitioner is particularly vulnerable because [he is over the age of 55 or has a serious medical condition]. 14 15 Petitioner should be released because he is over the age of 55 and has 16 a serious medical condition. Because of his age and medical condition, 17 he is among the vulnerable population at higher risk of serious illness or 18 death. 19 “Prisons concentrate individuals who are susceptible to infection and 20 those with a higher risk of complications. COVID-19 has an increased 21 mortality in older people and in those with chronic diseases or 22 immunosuppression. Notably, multimorbidity is normative among people 23 60 Farmer v. Brennan, supra, 511 U.S. at 847. 24 - 21 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 in prison, often with earlier onset and greater severity than in the general

2 population…”61 3 The present COVID-19 outbreak in the San Quentin presents an 4 imminent threat to Petitioner’s life and safety because of his underlying 5 health issues and the extremely high risk of exposure in his current 6 environment. The COVID-19 virus is rapidly spreading among both the 7 incarcerated population and staff. Petitioner is particularly vulnerable to 8 COVID-19 because he is over 55 and/or suffers from medical condition(s) 9 which makes him vulnerable to serious illness, lifelong repercussions, or 10 death should he contract COVID-19. The court should immediately order 11 Petitioner released.

12 4. Petitioner need not exhaust administrative remedies 13 in CDCR before obtaining relief from this court. 14 Petitioner need not exhaust administrative remedies through CDCR 15 before obtaining habeas relief from this Court because available release 16 plans by CDCR do not apply to Petitioner and due to the exigencies of the 17 immediate and grave health risks presented by the COVID-19 outbreak 18 at San Quentin. 19 The general rule requires exhaustion of administrative remedies before

20 obtaining habeas relief.62 “It is also true, however, that ‘the doctrine of 21

22 61 Kinner, et al., supra, Prisons and custodial settings are part of a comprehensive response to COVID-19, at p.e188. 23 62 See In re Muszalski (1975) 52 Cal.App.3d 500, 508. 24 - 22 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 exhaustion of administrative remedies’ has not hardened into inflexible

2 dogma.”63 Three exceptions to this general rule apply to Petitioner. 3 First, “the requirement of exhaustion of administrative remedies does

4 not apply if the remedy is inadequate.”64 In Glendale, a city grievance 5 procedure was found inadequate because the requested relief fell outside 6 the scope of the city’s available administrative remedies, and the city’s 7 procedure was tailored for minor, individual grievances, not more

8 complex and serious relief.65 Here, as in Glendale, CDCR’s administrative 9 process is inadequate to address Petitioner’s request for release due to 10 the COVID-19 outbreak at San Quentin. Petitioner is ineligible 11 for CDCR’s June 16 early parole plan and unable to request release 12 under Government Code section 8658, no administrative remedy is 13 adequate to release Petitioner. 14 Second, the exhaustion doctrine does not apply if seeking an

15 administrative remedy would be futile.66 Seeking a remedy is futile when 16 the aggrieved party can positively state what the administrative agency’s 17

18 63 In re Hudson (2006) 143 Cal.App.4th 1, 7, quoting Ogo Associates v. 19 City of Torrance (1974) 37 Cal.App.3d 830, 834.

20 64 Glendale City Employees' Assn., Inc. v. City of Glendale (1975) 15 Cal.3d 328, 342. 21 65 Id., at 342-343; see also In re Hudson, supra, 143 Cal.App.4th at 7-8 22 (prisoner had exhausted his administrative remedies because there was no administrative process available to grant the relief sought). 23 66 In re Thompson (1985) 172 Cal.App.3d 256, 263. 24 - 23 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 decision in his particular case would be.67 Here, the relief sought— 2 release—is not available because Petitioner is not eligible for parole 3 under the June 16 plan, nor can he initiate a request for release under 4 Government Code section 8658. So, it can positively be stated that 5 CDCR’s decision would be to deny Petitioner’s request for relief. As any 6 available administrative remedy here would be futile, Petitioner need not 7 exhaust administrative remedies. 8 Finally, the exhaustion doctrine is inapt when pursuit of an

9 administrative remedy would result in irreparable harm.68 Here, CDCR’s

10 administrative appeal process can take over 120 days to exhaust.69 11 Though the process can be expedited through an emergency appeal, it

12 can still take more than two months to exhaust remedies.70 13 The COVID-19 outbreak at San Quentin is infecting prisoners at 14 exponential rates day to day. Petitioner does not have the luxury to wait 15 two-plus months for the outcome of an administrative remedy by CDCR.

16 17 67 Ogo Associates, supra, 37 Cal.App.3d at 834. 68 Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 296-297; Ogo 18 Associates, supra, at 834.

19 69 15 CCR § 3084.8(c): After a person in prison or on parole files an administrative appeal, prison staff are supposed to respond within: 30 20 working days at the first formal level of review; 30 working days at the second level of review; and 60 working days at the third level of review. 21 70 15 CCR § 3084.9(a): If the prison decides to allow an appeal to be 22 processed as an emergency, the first level appeal is waived, the second is 23 limited to 5 working days. The emergency designation leaves the third level review in place, which still allows 60 working days. 24 - 24 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 He could contract the virus, become seriously ill, or worse, by then. He 2 could spread the virus to other prisoners and staff during the two 3 months. Because pursuing an administrative remedy through CDCR 4 could cause irreparable and potentially catastrophic harm to Petitioner’s 5 health, the court should find that this is a situation in which the 6 exhaustion of remedies rule does not apply before obtaining habeas

7 relief.71 8 Conclusion 9 Petitioner is serving a state-imposed sentence at San Quentin as 10 punishment, but that should not include an aggravated risk of COVID-19 11 infection and illness, with the possibility of a resulting serious illness, 12 lifelong complications, or death. Keeping Petitioner confined at San 13 Quentin during the current COVID-19 outbreak there violates the Eighth 14 Amendment, posing an imminent threat to his health and safety. 15 For the reasons stated, this court should issue an Order to Show 16 Cause, directing Respondents to show cause why Petitioner should not 17 be released. And pending outcome of the habeas petition, the court 18 should order Respondents to release Petitioner immediately, and grant 19 whatever further relief is appropriate and just. 20 Dated: ______Respectfully submitted,

21 ______22 Sign above

23 71 Abelleira v. District Court of Appeal, supra, 17 Cal.2d at p. 296-297; Ogo Associates, at p. 834. 24 - 25 - 25 San Quentin Habeas Petition In Re ______/ Case no. ______

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1 Declaration 2 I am the petitioner in this action. I declare under penalty of perjury 3 under the laws of the State of California that the foregoing allegations 4 and statements are true and correct, except as to matters that are stated 5 on my information and belief, and as to those matters, I believe them to 6 be true. 7 Executed on ______(today’s date) at San Quentin State 8 Prison, California. 9

10 ______11 Sign your name 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

San Quentin Habeas Petition In Re ______/ Court No ______

Proof of Service 1

2 I say: 3 I am over eighteen and not a party to this action. 4 My address is San Quentin State Prison, San Quentin, CA 94964. 5 I caused to be filed and served the attached document on 6 Rom Bloomfield, Acting Warden 7 San Quentin State Prison 8 Main Street San Quentin, CA 94964 9 10 Office of the Attorney General State of California 11 450 Golden Gate Avenue 12 San Francisco, CA 94102

13 Office of the District Attorney (Mail to District Attorney for your County of Commitment) 14 ______15 ______16 I declare under penalty of perjury that the foregoing is true and 17 correct. Executed on ______, 2020 in San Quentin, California. 18 Date 19 20 21 Sign here 22 23 24 25 26 27 28

San Quentin Habeas Petition In Re ______/ Court No ______