Subject of lawsuit: Detention of federal immigration detainees at the Clay County Justice Center, shown here in a 2018 file photo, is the subject of a potential class-action lawsuit filed in U.S. District Court in Indianapolis. Tribune-Star file/Austen Leake
Subject of lawsuit: Detention of federal immigration detainees at the Clay County Justice Center, shown here in a 2018 file photo, is the subject of a potential class-action lawsuit filed in U.S. District Court in Indianapolis. Tribune-Star file/Austen Leake
Clay County and its officials are among the defendants in a potential class-action lawsuit that claims the county profits from housing federal immigration detainees in substandard conditions.

The lawsuit was filed in April in the U.S. District Court’s Southern District of Indiana. Besides Clay County as an entity, the lawsuit names Sheriff Paul Harden, the individual Clay County commissioners and County Council members, Auditor Jennifer Flater, Treasurer Debra James, and three Clay County sergeants identified in the lawsuit as ICE contract coordinators.

It also names as defendants U.S. Immigration and Customs Enforcement and the U.S. Department of Homeland Security, as well as several of those organizations’ officials.

The lawsuit contends Clay County is illegally profiting from the detention of non-citizens while ICE knowingly ignores violations of federal detention standards so as not to lose beds.

It claims the county is misusing federal funds in that the federal money is not sufficiently used for the care and custody of those being detained. Instead, it argues Clay County treats the funds like a “cash cow” for other expenses.

Lead plaintiffs are Cristhian Herrera Cardenas, 38, from Honduras; Maribel Xirum, 46, from Mexico, Javier Jaimes Jaimes, 32, from Mexico; and Biajebo Brown Toe, 37, from Liberia. They are represented by Sidley Austin LLP, which is based in Chicago, and the National Immigrant Justice Center, also based in Chicago. The lawsuit seeks class-action status on behalf of current and future individuals held by ICE in Clay County. The lawsuit asks that the court declare the federal agencies and Clay County have violated plaintiffs’ rights and find that Clay County has misallocated federal payments intended for care and custody of the detainees. Further, it seeks to enjoin ICE from using federal funds to pay for detention at the jail and from continuing to detain plaintiffs and other such detainees there.

Some of the claims

The lawsuit argues that ICE paid Clay County more than $1.4 million in 2020 and the county spent $617,000 on detainee needs and essentially took $783,000 for profit. Further, it says, the county in 2021 then used the money to purchase an air-conditioning system for its courthouse and give its employees raises and bonuses.

It also claims conditions at the jail are “grossly inadequate” and says detainees receive insufficient food and hygiene supplies; are supplied with used and dirty clothing and clothing insufficient to keep them warm; have inadequate toilets and showers that lack privacy; and are forced to use homemade concoctions to clean cells for lack of supplied items. The suit also argues detainees are routinely denied access to services such as outdoor recreation, use of a law library, mental health counseling, ministry, the ability to speak to a medical professional through an interpreter and the ability to make international calls to family who might support a legal defense.

The plaintiffs argue conditions at the jail violate the national standards that ICE detention facilities must satisfy.

Further, they argue ICE knows that the jail is not meeting standards and many of the deficiencies have not been addressed. It says the jail failed a May 2021 inspection because of poor sanitation, overcrowding, deficiencies in medical care and other shortcomings.

It also argues ICE gave the Clay County Jail a passing score on its December 2021 inspection and did so not because the jail had improved, but because ICE was trying to avoid losing bed space.

Motion to dismiss

Clay County and its officials are being represented by the Indianapolis law firm of Bose MicKinney & Evans. In a motion filed July 15, the lawyers for the county filed a motion to dismiss, citing two reasons.

First, with both the county and 19 of its officials named as defendants, the individual officials are duplicative and should be dismissed, they argued. Further, the motion says most of the county officials are not party to the agreement to hold federal detainees.

Second, the motion argues the plaintiffs lack standing — or the legal ability to bring such a lawsuit — under both federal and state law. “Where conditions warrant it, jail detainees can directly challenge the conditions of their confinement through a Constitutional challenge or they could file a grievance within the jail system itself,” the motion states. “Detainees have chosen not to follow either of these paths for whatever reason. But this choice does not entitle them to piggy- back claims on a contract to which they are neither a party nor a third-party beneficiary.”

The case is 1:22-cv-00801-TWP-DML and is before U.S. District Chief Judge Tanya Walton Pratt and U.S. Magistrate Judge Debra McVicker Lynch. A status conference was conducted July 11 by McVicker Lynch, and the court is to issue an order regarding scheduling.

Attorney Stephen Unger of Bose, MicKinney & Evans declined comment Tuesday, citing the firm’s policy regarding commenting on pending litigation.

A message seeking comment also was left Tuesday afternoon on Sheriff Paul Harden’s office voice mail.

The background

The current jail, called the Clay County Justice Center, was completed in 2006 at 176 beds. In August 2013, it first began housing ICE detainees via an intergovernmental service agreement with the U.S. Marshals Service. The agreement pays Clay County $55 per ICE inmate per day and transportation fees.

Per the agreement, the jail is allowed to house an average of 65 detainees per day. Sheriff Harden has said the jail typically only has 25 to 35 detainees on a given day but the monthly average is probably closer to 65 because of influxes and outflows.

In the program’s first full year the county was paid $849,331. In 2020, it brought in about $1.4 million.

Both the sheriff and ICE officials have said those kept in detention by ICE are usually not there for simple immigration violations but most often are held because of past criminal history, fugitive status or because they are felons.

Clay County officials have said it’s up to ICE as to how long the prisoners stay in Clay County. Detainees are regularly moved from one detention center to the next to accommodate available court dates, medical needs and for security.

The average stay in Clay County in 2017 was 10 days, Harden told the Tribune- Star in 2018. “They can be here for as little as 12 hours or as long as two or four weeks,” he said.

Clay County’s jail currently is the only Indiana county facility holding ICE detainees.

Earlier this year, Illinois stopped housing immigration detainees in private or in county-run facilities as a result of the Illinois Way Forward Act, which was passed by the Illinois legislature and signed by Gov. J.B. Pritzker in 2021.

Clay County commissioners now are considering an expansion of the county jail that would add roughly 260 beds, with cost estimates running between $20 million and $25 million.

A not-for-profit group representing a coalition of immigrant rights groups opposed to such an expansion sued the county in Clay Circuit Court in late 2021. Mariposa Legal claimed a lack of transparency regarding expansion plans and argued county officials had violated the Indiana Open Door Law and the Indiana Access to Public Records Act.

The county and Mariposa Legal settled in early 2022, with the county providing requested records. That lawsuit was then dismissed.
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