FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


KELVIN HERNANDEZ ROMAN;                     No. 20-55436
BEATRIZ ANDREA FORERO CHAVEZ;
MIGUEL AGUILAR ESTRADA, on                    D.C. No.
behalf of themselves and all others        5:20-cv-00768-
similarly situated,                           TJH-PVC
     Plaintiffs-Petitioners-Appellees,

                  v.                         OPINION

CHAD F. WOLF, Acting Secretary,
U.S. Department of Homeland
Security; TONY H. PHAM, Senior
Official Performing the Duties of the
Director, U.S. Immigration and
Customs Enforcement; DAVID
MARIN, Director of the Los Angeles
Field Office, Enforcement and
Removal Operations, U.S.
Immigration and Customs
Enforcement; JAMES JANECKA,
Warden, Adelanto ICE Processing
Center,
 Defendants-Respondents-Appellants.

      Appeal from the United States District Court
          for the Central District of California
      Terry J. Hatter, Jr., District Judge, Presiding
2                        ROMAN V. WOLF

         Argued and Submitted September 15, 2020
                 San Francisco, California

                     Filed October 13, 2020

    Before: Paul J. Watford, Michelle T. Friedland, and
              Eric D. Miller, Circuit Judges.

                    Per Curiam Opinion;
                 Concurrence by Judge Miller


                          SUMMARY *


           Immigration / Preliminary Injunction

    In the Government’s appeal of a district court
preliminary injunction in response to Plaintiffs’ claims that
conditions at the Adelanto Immigration and Customs
Enforcement Processing Center (“Adelanto”) placed them at
unconstitutional risk of contracting COVID-19, the panel:
1) affirmed in part because the district court had broad
equitable authority to grant provisional relief to remedy a
likely constitutional violation; 2) vacated in part in light of
changed circumstances at Adelanto; and 3) remanded for the
district court to address current circumstances.

    The district court certified a class of 1,370 Adelanto
detainees and granted a preliminary injunction that, inter
alia, imposed a moratorium on receipt of new detainees,

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                       ROMAN V. WOLF                          3

required specific sanitation measures, mandated compliance
with guidance from the U.S. Centers for Disease Control and
Prevention (“CDC”), and ordered the detainee population to
be reduced to enable social distancing. The Government
appealed, and a motions panel, in an unpublished order,
granted the Government’s emergency motion for a stay
pending appeal, except to the extent the injunction required
substantial compliance with CDC guidelines.

    After this panel heard oral argument, the Government
revealed that 38 detainees had tested positive for COVID-
19. Plaintiffs sought a temporary restraining order (“TRO”)
compelling the Government to test all Adelanto detainees
and isolate all who tested positive. The district court denied
the TRO and later denied reconsideration, stating that its
“hands have been tied by the Ninth Circuit’s stay.” The
parties then informed this court that, as of September 22,
there were 58 confirmed COVID-19 cases among detainees
and eight among staff members. The Government stated its
intention to test all detainees and staff, noting that just over
half of the 774 detainees had been tested. Plaintiffs then
filed an emergency motion, asking this court to clarify or to
partially lift the motions panel’s emergency stay, and this
panel issued an unpublished version of this opinion on
September 23, 2020.

    Responding to the Government’s argument that a district
court on habeas review may not order injunctive relief to
remedy unconstitutional conditions of confinement, the
panel concluded that it need not reach that issue because
Plaintiffs’ action for declaratory and injunctive relief
independently provided jurisdiction to hear their challenges
and authority to grant the relief sought.
4                      ROMAN V. WOLF

    The panel held that the district court did not abuse its
discretion by issuing some form of preliminary injunctive
relief, explaining that the district court rightly concluded that
Plaintiffs were likely to prevail on the merits of their due
process claim. In light of the district court’s detailed factual
findings, which the Government had not shown to be clearly
erroneous, the panel agreed that the Government likely
failed to meet its constitutional duty to provide reasonably
safe conditions to Plaintiffs.

    The panel also held that the district court correctly
concluded that Plaintiffs were likely to suffer irreparable
harm absent relief given COVID-19’s high mortality rate,
and held that the equities and public interest tipped in
Plaintiffs’ favor, particularly in light of the lack of criminal
records of many of the detainees and the alternative means
available to prevent them from absconding if released.

    The panel further held that the district court did not err
by provisionally certifying a class of all Adelanto detainees.
Noting that the alleged due process violations exposed all
Adelanto detainees to an unnecessary risk of harm and that
the preliminary injunction afforded class-wide relief, the
panel concluded that the district court did not abuse its
discretion in holding that Plaintiffs had satisfied the
commonality, adequacy, and typicality requirements of
Federal Rule of Civil Procedure 23(a) and the uniform
remedy requirement of Rule 23(b)(2).

    The panel vacated the provisions of the preliminary
injunction that ordered specific measures to be implemented
at Adelanto because the district court tailored those measures
to circumstances as of mid-April but, in the intervening
months, circumstances had changed dramatically. It now
appeared that Adelanto was housing only 748 detainees,
                      ROMAN V. WOLF                         5

significantly fewer than in April, and that the facility was
now experiencing a COVID-19 outbreak, to which the
Government was responding by testing all detainees and
adjusting its procedures.     The panel remanded for
proceedings consistent with this disposition and the latest
facts.

    In a simultaneously filed memorandum disposition, the
panel dismissed, for lack of jurisdiction, the Government’s
challenge to orders establishing a procedure for entertaining
individual applications for bail.

    Concurring in part and concurring in the judgment,
Judge Miller joined all of the court’s opinion except for Part
IV, in which the court concluded that “the Government
likely failed to meet its constitutional duty to provide
reasonably safe conditions to Plaintiffs.” Judge Miller wrote
that, to prevail, Plaintiffs must prove more than negligence
and must show something akin to reckless disregard. Judge
Miller stated that, perhaps the plaintiffs were likely to
establish a constitutional violation on the record before the
court in April, or perhaps not, but at this point the question
was academic.
6                   ROMAN V. WOLF

                       COUNSEL

Scott G. Stewart (argued), Deputy Assistant Attorney
General; Hans H. Chen and Victor M. Mercado-Santana,
Trial Attorneys; William K. Lane III, Counsel; Jeffrey S.
Robins, Deputy Director; William C. Peachey, Director;
Ethan P. Davis, Acting Assistant Attorney General; Office
of Immigration Litigation, Civil Division, United States
Department of Justice, Washington, D.C., for Respondents-
Appellants.

Samir Deger-Sen (argued), William M. Friedman, Margaret
A. Upshaw, and James Tomberlin, Latham & Watkins LLP,
Washington, D.C.; Amanda Barnett and Jessie Cammack,
Latham & Watkins LLP, Los Angeles, California; Ahilan
Arulanantham, Michael Kaufman, Jessica Karp Bansal, and
Michelle (Minju) Cho, ACLU Foundation of Southern
California, Los Angeles, California; for Petitioners-
Appellees.

Joshua A. Matz, Michael Skocpol, Mahrah M. Taufique, and
Jacob Miller, Kaplan Hecker & Fink, New York, New York;
Mark Rosenbaum, Judy London, Talia Inlender, Jesselyn
Friley, and Amanda Savage, Public Counsel, Los Angeles,
California; for Amici Curiae Nikolas Bowie, Erwin
Chemerinsky, Michael Dorf, Leah Litman, Pamela S.
Karlan, Amanda Shanor, David Strauss, Laurence H. Tribe,
Stephen I. Vladeck, Ten Experts in Medicine and Public
Health, and Physicians for Human Rights.

Lawrence J. Joseph, Washington, D.C.; Christopher J.
Hajec, Director of Litigation, Immigration Reform Law
Institute, Washington, D.C.; for Amicus Curiae Immigration
Reform Law Institute.
                        ROMAN V. WOLF                            7

Genevieve Quinn, Seton Hartnett O’Brien, and Praatika
Prasad, Gibson Dunn & Crutcher LLP, New York, New
York; David Debold, Caroline Ziser Smith, and Natasha
Harnwell-Davis, Gibson Dunn & Crutcher LLP,
Washington, D.C.; Jacob Rierson, Gibson Dunn & Crutcher
LLP, Denver, Colorado; for Amici Curiae National
Immigration Justice Center and Human Rights Watch.


                           OPINION

PER CURIAM:

    In this interlocutory appeal, the Government 1 challenges
a preliminary injunction entered by the district court in
response to Plaintiffs’ claims that conditions at the Adelanto
Immigration and Customs Enforcement Processing Center
(“Adelanto”), where they were detained, placed them at
unconstitutional risk of contracting COVID-19. A week
after we heard oral argument, we received a joint status
report from the parties informing us that, in the prior week,
58 detainees and eight staff members had tested positive for
COVID-19 at Adelanto, and over 300 detainees were still
awaiting their test results. Nine detainees had been
hospitalized.


    1
      Defendants-Appellants are Chad F. Wolf, Acting Secretary of
Homeland Security; Tony H. Pham, Senior Official Performing the
Duties of the Director, U.S. Immigration and Customs Enforcement
(“ICE”); David Marin, Director of the Los Angeles Field Office for
ICE’s Enforcement and Removal Operations; and James Janecka,
Warden of Adelanto.         We refer to them collectively as “the
Government.” Pham has been automatically substituted for Matthew T.
Albence, former Deputy Director and Senior Official Performing the
Duties of the Director of ICE. Fed. R. App. P. 43(c)(2).
8                     ROMAN V. WOLF

    We affirm in part because the district court had broad
equitable authority to grant provisional relief to remedy a
likely constitutional violation. In light of the changed
circumstances at Adelanto since the preliminary injunction
was entered, however, we vacate it in part and remand so
that the district court may address the current circumstances
at Adelanto.

                              I.

    Plaintiffs brought this class action on behalf of
noncitizens detained at Adelanto. These noncitizens are
being held in civil detention in connection with various
immigration proceedings, and many of them have no
criminal record. Plaintiffs seek declaratory and injunctive
relief, as well as habeas relief. Their Complaint alleges that,
in light of the COVID-19 pandemic, Adelanto’s failure to
implement necessary protective measures—including social
distancing, sanitation, and the provision of sufficient masks
and soap—violates detainees’ due process rights under the
Fifth Amendment. On April 23, 2020, the district court
certified a class of 1,370 Adelanto detainees and granted a
preliminary injunction that, inter alia, imposed a
moratorium on Adelanto’s receipt of new detainees, required
specific sanitation measures, mandated compliance with
guidance issued by the U.S. Centers for Disease Control and
Prevention (“CDC”), and ordered the facility’s detainee
population to be reduced to a level that would enable social
distancing. The district court left to the Government’s
discretion whether to achieve the requisite population
reduction by deporting selected detainees, transferring
selected detainees to other facilities, or releasing selected
detainees with appropriate conditions of release. The court
likewise allowed the Government to determine which
detainees to release, deport, or transfer.
                       ROMAN V. WOLF                          9

    The Government timely appealed and sought an
emergency stay of the preliminary injunction pending
appeal, which a motions panel, in an unpublished order,
granted, except to the extent the preliminary injunction
“require[d] substantial compliance with guidelines issued by
the [CDC] for correctional and detention facilities to follow
in managing COVID-19.”

    We heard oral argument on September 15, 2020. The
next day, in response to an inquiry from Plaintiffs’ counsel,
the Government revealed to Plaintiffs’ counsel that
38 detainees had tested positive for COVID-19 at Adelanto.

    In the district court, Plaintiffs filed an ex parte
application for a temporary restraining order (“TRO”) on
September 16, 2020, seeking an order compelling the
Government to test all Adelanto detainees (using rapid,
point-of-care tests, if possible) and to isolate all detainees
who received positive test results. The Government filed a
status report, which the district court construed as an
opposition to the TRO application. The district court denied
the application for a TRO on September 17, 2020, without
specifying its reasoning.

    The following day, Plaintiffs filed an ex parte
application for reconsideration of the district court’s denial
of their motion for a TRO and sought a further TRO.
Specifically, Plaintiffs requested that the district court order
the Government to:

       (1) Test all detainees at Adelanto; (2) Isolate,
       in single occupancy cells, all detainees who
       have tested positive for COVID-19 and all
       detainees who are awaiting test results;
       (3) Prevent staff who worked in the West 5C
       and West 5D housing units from returning to
10                    ROMAN V. WOLF

       work pending their COVID-19 test results,
       even if they are asymptomatic; (4) Suspend
       intake of new detainees into Adelanto; and
       (5) Provide daily status reports.

Plaintiffs acknowledged that the Government was already
undertaking some of the measures requested but contended
that the Government had neither adopted the isolation
protocols proposed by Plaintiffs nor suspended its receipt of
new detainees into Adelanto. The Government again
opposed the motion.

    In an order issued on September 22, 2020, the district
court expressed concern about the adequacy of the
Government’s response to the outbreak, but it stated that its
“hands have been tied by the Ninth Circuit’s stay.” The
district court therefore denied reconsideration, but it
instructed the parties to file a joint status report “regarding
Adelanto’s Covid-19 outbreak” with our court, which we
received later that same afternoon.

    The parties’ report informed us that, as of September 22,
there were 58 confirmed COVID-19 cases among detainees
and eight among staff members. More than half of the
detainees who had received results tested positive. Twenty
of the COVID-19-positive detainees belong to a medically
vulnerable group at the greatest risk of suffering severe
complications, and nine detainees were hospitalized. The
Government stated its intention to test all Adelanto detainees
and staff. Just over half of the 774 detainees had been tested
by September 20. Tests apparently take at least three days
to return results, so the parties were awaiting results for
hundreds of detainees.

   We received an emergency motion from Plaintiffs on the
evening of September 22, several hours after we received the
                           ROMAN V. WOLF                                11

parties’ status report, asking us to clarify or to partially lift
the emergency stay imposed by the motions panel. 2 The
emergency motion asserted that the Government had not
imposed measures at Adelanto necessary to counter the
developing outbreak. Among other things, Plaintiffs
reported that the detainees in the housing unit with
confirmed cases were being held “two per cell,” less than six
feet apart; new detainees were continually being brought into
the facility; and only some of the detainees had been tested
for the virus so far. Plaintiffs asked us to clarify that the
emergency stay of the district court’s preliminary injunction
did not “deprive[] [the district court] of authority to order
appropriate isolation protocols and a temporary halt to new
intakes” in light of the changed circumstances presented by
the current outbreak. Plaintiffs requested, in the alternative,
that we “lift the stay insofar as it prohibits the district court
from responding to the current crisis.” In light of the
urgency of the situation described in the emergency motion,
we issued an unpublished version of this opinion on
September 23. 3

                                    II.

    “A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his

    2
        The Government indicated that it opposed the emergency motion.
    3
      In addition to its interlocutory appeal of the preliminary injunction,
the Government filed a separate interlocutory appeal of procedural
orders relating to the processing of bail applications—orders that were
entered by the district court months after the preliminary injunction was
issued and stayed. We resolve that separate appeal in a memorandum
disposition filed simultaneously with this opinion.
12                     ROMAN V. WOLF

favor, and that an injunction is in the public interest.” Winter
v. Nat. Res. Def. Council, Inc., 

, 20 (2008). Where
the government is a party to a case in which a preliminary
injunction is sought, the balance of the equities and public
interest factors merge. Drakes Bay Oyster Co. v. Jewell,

, 1092 (9th Cir. 2014). Further, where the
“balance of hardships . . . tips sharply towards the plaintiff,”
a plaintiff need only show “serious questions going to the
merits,” rather than likelihood of success on the merits, to
warrant preliminary injunctive relief. All. for the Wild
Rockies v. Cottrell, 

, 1135 (9th Cir. 2011)
(quotation marks and citation omitted). Injunctions that alter
the status quo “are not granted unless extreme or very serious
damage will result and are not issued in doubtful cases.”
Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co.,

, 879 (9th Cir. 2009) (quotation marks omitted).

    We review a district court’s decision to grant or deny a
preliminary injunction for abuse of discretion. Sw. Voter
Registration Educ. Project v. Shelley, 

, 918 (9th
Cir. 2003) (en banc) (per curiam). We review the district
court’s legal conclusions de novo and its factual findings for
clear error. K.W. ex rel. D.W. v. Armstrong, 

,
969 (9th Cir. 2015).

    A district court’s decision regarding class certification is
also reviewed for abuse of discretion.             Pulaski &
Middleman, LLC v. Google, Inc., 

, 984 (9th Cir.
2015).

                              III.

    As a threshold matter, the parties dispute whether district
courts have authority to order the types of relief in the
preliminary injunction in response to habeas claims.
Specifically, the Government argues that a district court on
                       ROMAN V. WOLF                         13

habeas review may not order reductions in the number of
detainees held at a facility, or any other injunctive relief, to
remedy unconstitutional conditions of confinement. We
need not reach that issue to resolve this appeal because,
separately from their habeas petition, Plaintiffs brought a
class action complaint for declaratory and injunctive relief
seeking to remedy allegedly unconstitutional conditions at
Adelanto. That action for declaratory and injunctive relief
independently provided the district court jurisdiction to hear
Plaintiffs’ challenges and authority to grant the types of
relief that Plaintiffs sought.

    Courts have long recognized the existence of an implied
cause of action through which plaintiffs may seek equitable
relief to remedy a constitutional violation. See Sierra Club
v. Trump, 

, 888 (9th Cir. 2020) (“Certain
provisions of the Constitution give rise to equitable causes
of action.”) (citing cases), petition for cert. filed (U.S. Aug.
7, 2020) (No. 20-138). Here, Plaintiffs’ due process claims
arise under the Constitution, and Plaintiffs invoked
28 U.S.C. § 1331, which provides subject matter jurisdiction
irrespective of the accompanying habeas petition.
Moreover, an implied cause of action exists for Plaintiffs to
challenge allegedly unconstitutional conditions of
confinement. See Simmat v. U.S. Bureau of Prisons,

, 1230–32, 1236 (10th Cir. 2005) (observing
that “[f]ederal courts have long exercised the traditional
powers of equity, in cases within their jurisdiction, to
prevent violations of constitutional rights,” and holding that
federal courts have jurisdiction under 28 U.S.C. § 1331 over
federal prisoners’ constitutional claims for injunctive relief
against prison officials); see also Ziglar v. Abbasi, 

, 1862–63 (2017) (noting that, apart from Bivens or
habeas relief, noncitizen detainees could seek injunctive
relief to challenge their conditions of confinement); Bell v.
14                    ROMAN V. WOLF

Wolfish, 

, 526 n.6 (1979) (declining to decide
whether habeas is a proper vehicle for pretrial detainees in
federal custody to challenge conditions of confinement
because “jurisdiction would have been provided by
28 U.S.C. § 1331(a)”). Therefore, the district court had the
authority both to entertain Plaintiffs’ constitutional
challenges and to grant injunctive relief in response to them.

    Further, the district court’s power to grant injunctive
relief included the authority to order a reduction in
population, if necessary to remedy a constitutional violation.
“Once a [constitutional] right and a violation have been
shown, the scope of a district court’s equitable powers to
remedy past wrongs is broad, for breadth and flexibility are
inherent in equitable remedies.” Swann v. Charlotte-
Mecklenburg Bd. of Educ., 

, 15 (1971); see also
Stone v. City & County of San Francisco, 

, 861
(9th Cir. 1992) (“Federal courts possess whatever powers are
necessary to remedy constitutional violations because they
are charged with protecting these rights.”). In time-sensitive
circumstances, the district court’s authority to issue broad
equitable relief encompassed the authority to grant
provisional relief “to bring an ongoing violation to an
immediate halt.” Hutto v. Finney, 

, 687 n.9
(1978).

    In Brown v. Plata, 

(2011), for example, the
Supreme Court affirmed the conclusion of a three-judge
district court that prison overcrowding had resulted in Eighth
Amendment violations in California prisons.

Because no other relief would cure the violations, the Court
agreed that an order limiting the prison population to a
specific percentage of design capacity, which may have
required state officials to release some prisoners, was an
appropriate remedy.

Similarly, Plaintiffs here
                       ROMAN V. WOLF                         15

argued that changes in sanitation conditions at Adelanto are
necessary, but not sufficient, to cure the alleged Fifth
Amendment violation and that a reduction in the facility’s
population was required for detainee safety. As in Brown,
the district court in this case was permitted to order the
reduction of Adelanto’s population, which may have
required the release of some detainees, if such a remedy was
necessary to cure the alleged constitutional violations.

                              IV.

    We hold that the district court did not abuse its discretion
by issuing some form of preliminary injunctive relief in
response to Plaintiffs’ due process claims. The district court
made detailed factual findings in support of the preliminary
injunction, none of which the Government challenged in its
brief on appeal as being clearly erroneous. For instance, the
district court accepted as true Plaintiffs’ declarations and
other evidence that the following conditions were present at
Adelanto: the Government had failed to impose social
distancing because there were “too many detainees at
Adelanto for its size”; newly arrived detainees were either
mixed with the general population or housed with other new
detainees who had arrived at different times, both of which
undermined the ostensible 14-day quarantine period for new
arrivals; staff were not required to wear gloves and masks;
there was a lack of necessary cleaning supplies, which led
some detainees to clean their toilets with shampoo or to clean
common areas using only a dirty towel and bucket of dirty
water; given the inadequate supplies, the cleaning of
communal spaces was “haphazard, at best”; there were only
three functioning showers for 118 women; there was
inadequate access to hand sanitizer because dispensers were
often empty and detainees had to wait for days to receive
hand soap; and detainees were forced to sleep within six feet
16                        ROMAN V. WOLF

of each other due to the positions of their beds. In light of
these factual findings, which the Government has not shown
to be clearly erroneous, we agree with the district court that
the conditions at Adelanto in April violated detainees’ due
process right to reasonable safety. 4

     The Fifth Amendment requires the government to
provide conditions of reasonable health and safety to people
in its custody. See DeShaney v. Winnebago Cnty. Dep’t of
Soc. Servs., 

, 199–200 (1989); Doe v. Kelly,

, 714 (9th Cir. 2017). The government has
violated this duty when:

         (i) [It] made an intentional decision with
         respect to the conditions under which the
         plaintiff was confined; (ii) those conditions
         put the plaintiff at substantial risk of suffering
         serious harm; (iii) the [government] did not
         take reasonable available measures to abate
         that risk, even though a reasonable official in
         the circumstances would have appreciated
         the high degree of risk involved . . . ; and
         (iv) by not taking such measures, the
         [government] caused the plaintiff’s injuries.



    4
       Plaintiffs pursue two related Fifth Amendment due process
theories. The first argues that the conditions at Adelanto are
unconstitutionally punitive, see Bell v. Wolfish, 

, 535–37
(1979), whereas the second argues that the Government violated
Plaintiffs’ right to reasonable safety while in the Government’s custody,
see DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 

,
199–200 (1989). Because we hold that the district court was justified in
granting preliminary relief based on the “reasonable safety” theory, we
do not address the merits of the “punitive conditions” theory here.
                      ROMAN V. WOLF                         17

Gordon v. County of Orange, 

, 1125 (9th Cir.
2018).      “With respect to the third element, the
[government’s] conduct must be objectively unreasonable, a
test that will necessarily ‘turn[] on the facts and
circumstances of each particular case.’” Castro v. County of
Los Angeles, 

, 1071 (9th Cir. 2016) (en banc)
(second alteration in original) (quoting Kingsley v.
Hendrickson, 

, 397 (2015)). A “mere lack of
due care” is not enough; a plaintiff must show “something
akin to reckless disregard.” 

(quoting 

). To satisfy the fourth
element, a plaintiff need only prove a “sufficiently imminent
danger[],” because a “remedy for unsafe conditions need not
await a tragic event.” Helling v. McKinney, 

, 33–
34 (1993).

    We agree with the district court that the Government
likely failed to meet its constitutional duty to provide
reasonably safe conditions to Plaintiffs. At the time the
injunction issued, Adelanto was so crowded that social
distancing to combat the spread of the novel coronavirus was
impossible, detainees had inadequate access to masks,
guards were not required to wear masks, there was not
enough soap or hand sanitizer to go around, detainees were
responsible for cleaning the facility with only dirty towels
and dirty water, detainees were compelled to sleep with less
than six feet of distance between them, and not all new
arrivals were being properly quarantined or tested. The
Government was aware of the risks these conditions posed,
especially in light of high-profile outbreaks at other carceral
facilities that had already occurred at the time, and yet had
not remedied the conditions. Its inadequate response
reflected a reckless disregard for detainee safety. The
district court therefore rightly concluded that Plaintiffs were
likely to prevail on the merits. Cf. 

18                         ROMAN V. WOLF

(holding that the health risk posed by a prison inmate’s
involuntary exposure to second-hand smoke could form the
basis of a claim that the government was violating his right
to reasonable safety). 5



     5
        We recognize that our sister circuits have reached a variety of
conclusions when presented with cases about COVID-19 risks in
carceral settings. Compare Mays v. Dart, — F.3d —, 

, at *1, *9 (7th Cir. 2020) (affirming in part a preliminary
injunction that mandated sanitation measures and mask availability in a
county jail), and Valentine v. Collier, 

, 708 (5th Cir. 2020)
(per curiam) (Davis, J., concurring in the judgment) (noting that “inmates
are now being held under circumstances that seriously threaten their
life”), and

specially concurring) (noting that the inmates
were likely to succeed on the merits of their constitutional challenge to
conditions of confinement), with Wilson v. Williams, 

, 840–
41 (6th Cir. 2020) (holding that inmates were unlikely to prevail on their
deliberate indifference claim), and Swain v. Junior, 

, 1089
(11th Cir. 2020) (holding that pretrial detainees were unlikely to prevail
on a deliberate indifference claim). Some of these cases arose in the
context of criminal detention, and thus the deliberate indifference claims
there, unlike due process challenges to civil detention conditions,
required an analysis of prison officials’ subjective intent to harm. See,
e.g., 

(holding that while the objective prong was
“easily satisfied,” the subjective prong would likely prevent plaintiffs’
success on the merits because officials responded reasonably).
Moreover, each case must be evaluated on its specific factual record
because “objective reasonableness turns on the facts and circumstances
of each particular case.” 

(quotation marks and
citation omitted). Here, the district court gave the Government an
opportunity to present evidence and expert testimony before making
specific factual findings that supported its conclusion that plaintiffs
would likely succeed on the merits and that they would likely suffer
irreparable harm. Cf. Hope v. Warden York Cnty. Prison, — F.3d —,

, at *4 (3d Cir. 2020) (critiquing district court for not
permitting the government to offer evidence or giving it an opportunity
to be heard before ordering injunctive relief);

(critiquing a lack
of “specific findings”).
                           ROMAN V. WOLF                        19

    The district court also correctly concluded that Plaintiffs
were likely to suffer irreparable harm absent relief given
COVID-19’s high mortality rate. Finally, the district court
rightly concluded that the equities and public interest tipped
in Plaintiffs’ favor, particularly in light of the lack of
criminal records of many of the detainees and the alternative
means available to prevent them from absconding if they
were released, such as electronic monitoring.

                                   V.

      We further hold that the district court did not err by
provisionally certifying a class of all Adelanto detainees.
The alleged due process violations exposed all Adelanto
detainees to an unnecessary risk of harm, not only those who
are uniquely vulnerable to COVID-19 or who are not subject
to mandatory detention. The preliminary injunction afforded
class-wide relief that would have remedied the constitutional
violations as to all detainees, even though it would have
entailed the release or transfer of only some of the detainees.
The district court did not abuse its discretion in holding that
Plaintiffs had satisfied the commonality, adequacy, and
typicality requirements of Federal Rule of Civil Procedure
23(a) and the uniform remedy requirement of Rule
23(b)(2). 6 In the context of an Eighth Amendment challenge
to inmate medical care policies, we likewise affirmed class
certification under Rule 23(b)(2) where “a presently existing
risk may ultimately result in different future harm for
different inmates—ranging from no harm at all to death”
because “every inmate suffers exactly the same
constitutional injury when he is exposed to a single statewide
. . . policy or practice that creates a substantial risk of serious
harm.” Parsons v. Ryan, 

, 678, 689 (9th Cir.

    6
        Defendants do not contest numerosity.
20                    ROMAN V. WOLF

2014); cf. Brown v. Plata, 

, 502 (2011)
(affirming a class-wide injunction imposing a “court-
mandated population limit” in state prisons to remedy Eighth
Amendment violations due to “severe and pervasive
overcrowding,” which would require the release of only
some inmates).

                             VI.

    Although we affirm the portions of the preliminary
injunction order concluding that the district court possesses
the power to grant injunctive relief and that Plaintiffs are
likely to prevail on the merits of their due process claims, we
nonetheless vacate the provisions of the preliminary
injunction that ordered specific measures to be implemented
at Adelanto. The district court tailored those measures to
respond to the circumstances at Adelanto as of mid-April. In
the intervening five months, those circumstances have
changed dramatically. For example, it now appears that
Adelanto houses only 748 detainees, significantly fewer than
the 1,370 detainees it held when the district court issued its
preliminary injunction. More pressingly—and despite the
reduced population level—the facility is experiencing a
COVID-19 outbreak, which was not the case when the
preliminary injunction issued. In response to the current
outbreak, it seems the Government is now in the process of
testing all Adelanto detainees for COVID-19, and it also has
purportedly adjusted its procedures for “cohort[ing]”
detainees. The district court may have received further
medical expert testimony or other evidence during the
intervening months as well. In short, the facts that motivated
the district court’s preliminary injunction no longer reflect
the current realities at Adelanto.

    The conditions at Adelanto appear to be evolving
rapidly. Unlike our court, the district court has been
                      ROMAN V. WOLF                         21

continually apprised of developments at the facility and is
better situated to assess what relief current conditions may
warrant. We therefore decline to speculate about which
provisions of the preliminary injunction should still apply.
We vacate the provisions of the injunction ordering specific
reductions in the detainee population and specific changes in
conditions at the facility and remand to the district court for
further proceedings consistent with this disposition and with
the latest facts. See Valentine v. Collier, 

, 707
(5th Cir. 2020) (per curiam) (vacating preliminary injunction
based on changed circumstances);

(Davis, J.,
concurring in the judgment) (concurring “because
conditions have dramatically changed in the prison since the
preliminary injunction issued, and vacating the preliminary
injunction allows the district court to expeditiously conduct
factfinding to determine what relief is necessary under the
current circumstances”).

    We make some observations for the district court to
consider on remand. First, we reiterate that the district court
possesses broad equitable authority to remedy a likely
constitutional violation. If the district court determines,
based on current facts, that particular measures are necessary
to ensure that conditions at Adelanto do not put detainees at
unreasonable risk of serious illness and death, it may require
such measures. The district court may, for example, require
the provision of sufficient cleaning supplies and hand
sanitizer, or a reduction in the population to a level that
would allow for six-foot social distancing, if it concludes
those actions are necessary to bring the conditions to a
constitutionally adequate level. And, of course, the district
court has authority to remedy a constitutional violation by
ordering measures that it determines are necessary to counter
the spread of an outbreak, including mandating medical
isolation of detainees who have tested positive for COVID-
22                    ROMAN V. WOLF

19 or who were likely exposed and are awaiting test results,
and imposing a temporary moratorium on Adelanto’s
receiving new detainees.

    Second, although our court previously stayed the district
court’s preliminary injunction except to the extent it required
compliance with the CDC’s guidelines for correctional and
detention facilities, we think developments since the stay
have made clear that those guidelines do not provide a
workable standard for a preliminary injunction. The
guidance document spans 25 pages and makes hundreds of
recommendations, many of which lack specificity. More
fundamentally, it contains key caveats, such as that its
recommendations “may need to be adapted based on
individual facilities’ physical space, staffing, population,
operations, and other resources and conditions.” Given the
vagueness of that caveat, it is no surprise that the parties
strongly disagree on whether the Government was
complying with the CDC guidance even before this case was
filed and have continued to disagree about what the CDC
guidance means.        The guidance document’s lack of
specificity makes it a poor guidepost for mandatory
injunctive relief. See Fed. R. Civ. P. 65(d)(1)(B), (C) (an
injunction must “state its terms specifically” and “describe
in reasonable detail—and not by referring to the complaint
or other document—the act or acts restrained or required”).

    Third, the district court should, to the extent possible,
avoid imposing provisions that micromanage the
Government’s administration of conditions at Adelanto.
Certain provisions in the preliminary injunction—such as
the requirement that specific areas be cleaned “by a
professionally trained cleaning staff,” rather than by
detainees or facility employees with a mix of duties—wade
into facility administration at a granular level beyond what
                       ROMAN V. WOLF                          23

is required to remedy the constitutional violation identified.
These types of considerations are better left to the
“professional expertise of corrections officials.” Bell v.
Wolfish, 

, 540 n.23 (1979).

    Fourth, any new provisions of future injunctive relief
should stem from medical evidence properly before the
court. The district court should refrain from relying on
declarations filed in other litigation, as it did when it ordered
that sleeping rooms or cells that contained toilets lacking
integrated lids be limited to one person. Cf. Hope v. Warden
York Cnty. Prison, — F.3d —, 

, at *9–10
(3d Cir. 2020) (criticizing reliance on evidence from prior
case).

    Finally, the injunction should, to the extent possible,
reflect the scientific evidence about COVID-19 presented to
the district court. For example, the preliminary injunction,
as originally drafted, seemed to mandate that Adelanto staff
must wear a mask even when working alone in an office, far
away from detainees. We see no evidence in the current
record that suggests wearing a mask in this specific situation
would reduce COVID-19 transmission. If the district court
determines on remand that scientific evidence supports
ordering this measure, it should clearly identify the relevant
evidence.

                              VII.

    Based on the foregoing, the preliminary injunction order
is affirmed in part and vacated in part, and the case is
24                        ROMAN V. WOLF

remanded for further proceedings consistent with this
disposition. 7



MILLER, Circuit Judge, concurring in part and concurring
in the judgment:

    I concur in the judgment, and I join all of the court’s
opinion except for Part IV, in which the court concludes that
“the Government likely failed to meet its constitutional duty
to provide reasonably safe conditions to Plaintiffs.” Slip op.
17.

    I agree with the court’s statement of the controlling legal
standard. The government has a duty to ensure that the
conditions of confinement for those in its custody provide
reasonable safety, and a plaintiff alleging a violation of that
duty must show, among other things, that the “conditions put
the plaintiff at substantial risk of suffering serious harm” and
that the government “did not take reasonable available
measures to abate that risk.” Gordon v. County of Orange,

, 1125 (9th Cir. 2018). Although the word
“reasonable” might be taken to suggest something akin to the
duty of reasonable care applied in negligence cases, the
standard is more demanding than that: “[T]he plaintiff must
‘prove more than negligence’” and must show “‘something
akin to reckless disregard.’”

County of
Los Angeles, 

, 1071 (9th Cir. 2016) (en banc)).

     7
      Because the substantive provisions of the preliminary injunction
are vacated, the stay pending appeal of that order is no longer in effect.
See Consejo de Desarrollo Economico de Mexicali, A.C. v. United
States, 

, 1174 n.7 (9th Cir. 2007). We accordingly denied
as moot the emergency motion seeking to lift the stay when we earlier
issued the unpublished version of this opinion.
                       ROMAN V. WOLF                          25

That high standard reflects a recognition that the “operation
of our correctional facilities is peculiarly the province of the
Legislative and Executive Branches of our Government, not
the Judicial.” Bell v. Wolfish, 

, 548 (1979); see
also DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 

, 200 n.7 (1989) (“[T]he State ‘has considerable
discretion in determining the nature and scope of its
responsibilities.’” (quoting Youngberg v. Romeo, 

, 317 (1982))). The court appropriately draws upon that
principle in directing the district court, at the remedial stage,
to “avoid imposing provisions that micromanage the
Government’s administration of conditions at Adelanto.”
Slip op. 22. The district court must also consider it in
addressing the antecedent question whether the government
has acted with “reckless disregard.”

    The injunction we review today was issued based on the
record before the district court in April. Perhaps the plaintiffs
were likely to establish a constitutional violation on that
record, or perhaps not, but at this point the question is
academic. The situation at Adelanto has changed
considerably since April, and our decision to remand will
allow the district court to determine, based on a new record,
whether the government’s response has fallen short of
constitutional standards.