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Wrongful Death Suit Against CoreCivic Gets to Proceed with Rehab Act Damages Claim Included: Romero-Garcia v. CoreCivic

June 30, 2021 (3 min read)

R. Andrew Free reports:

"Writing to report on a decision handed down Friday, June 25, by the U.S. District Court for the Middle District of Georgia in Efrain Romero de la Rosa's wrongful death lawsuit against CoreCivic's Stewart Detention Center. 

This marks the first case we're aware of in which a federal court allowed disability claims for money damages under Section 504 of the Rehabilitation Act to proceed in a wrongful death case against an ICE contractor. The U.S. District Court for the District of New Mexico rejected similar claims last year in the suit Roxsana Hernandez's estate filed against several ICE detention and transportation contractors. And while the Court may not have accepted Mr. Romero's argument that the treatment his son endured rose to the level of torture, Project South, Penn Law, and allies recently convinced the Inter-American Commission on Human Rights that torture is exactly what ICE and its contractors inflict upon people in these spaces

This decision may have significant implications for abolitionist organizers and litigators seeking to highlight and remedy violations of the Rehab Act in ICE detention: 
1. Federal Fee-Shifting Statutes: Individuals bringing damages cases against federal contractors now have a clear path to a fee-shifting statute. 
Claims against federal detention contractors are severely limited under current law. Neither Bivens nor the FTCA are available thanks to successful litigation by the companies at the Supreme Court. That leaves state tort remedies (which can be brought anywhere but almost never have a fee-shifting statute), state statutory remedies (as in the new law in California, which contractors may challenge as inapplicable to federal detention), or Section 1983 (which several courts have declined to apply to companies like CoreCivic and GEO). Friday's decision opens a new path to fee-shifting, and that should incentivize suits by private attorneys general for damages. 
2. Non-Death Class Actions for Damages Suffered by Individuals with Disabilities Due to Contractor Discrimination:  
Think: Hep C., Forced Sterilizations, Inadequate Medical Care, Refusal to Treat, Exposure of Vulnerable People to harmful chemicals, delays in care/referrals, avoidable dental removals and amputations, women's reproductive care. 
3Breaking Down Ableist Barriers to Organizing for Detention Abolition
Given the high rates of people living with disabilities in ICE custody, recognition by a court in the Deep South of a damages remedy for people who suffer discrimination and injury inside can serve as an organizing tool and truth-telling venue, and can offer additional frames to add to the existing language in favor of full detention abolition that may attract new or undersubscribed base participation in the disability rights space. 
Here are links to the original and amended complaints.
The #DetentionKills litigation team in this case is led by Kim Evans, Irene Lax, and Carlo Agbiro of Grant & Eisenhofer, with Shirley Zambrano of Zambrano and Ruiz as local counsel. 
Project South's Azadeh Shahshahani and Priyanka Bhatt, El Refugio's Amilcar Valencia, and Georgia Detention Watch's Kevin Caron provided invaluable fact development of the record of human rights abuses at Stewart by CoreCivic and ICE, and key support in the wake of Efrain's tragic passing. 
Ahilan Arulantham, Kristen Jackson, and the brilliant Franco litigation team first pioneered the Rehab Act litigation theory in the immigration court context. Liz Jordan and the Fraihat team subsequently introduced it successfully in the context of their nationwide conditions suit against ICE. Margo Schlanger has been helping us chart the path on these remedies
We are deeply grateful to everyone inside and outside DHS's cages who helped advance this case to where it stands today.
Efrain's family and the #DetentionKills team are happy to share any litigation support or documentation that may be useful to community in our collective work to defund and abolish these spaces so that systems of accountability, care, and reparations may flourish in their place. 
#DetentionKills is a Justice Catalyst-funded, fiscally sponsored project of Al Otro Lado aimed at ensuring no death in DHS custody goes uninvestigated, and that the dark truths these deaths bring to light can bring about the liberation of all humans from DHS cages, followed by their permanent elimination and replacement with community-led systems of care."