Foster v. Comm'r of Corr.

• Decision Date: 02 June 2020
• Docket Number: SJC-12935
• Citation: 146 N.E.3d 372,484 Mass. 698
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Stephen FOSTER & others v. COMMISSIONER OF CORRECTION & others (No. 1).

484 Mass. 698

146 N.E.3d 372

Stephen FOSTER ¹ & others²

v.COMMISSIONER OF CORRECTION & others³ (No. 1).

SJC-12935

Supreme Judicial Court of Massachusetts, Suffolk..

Argued May 7, 2020.

Decided June 2, 2020.

James R. Pingeon for the plaintiffs.

Stephen G. Dietrick, Boston, for Commissioner of Correction & another.

Ryan P. McManus, Special Assistant Attorney General, for the Governor.

Michael R. Byrne for the parole board.

The following submitted briefs for amici curiae:

Tatum A. Pritchard for Disability Law Center, Inc.

Rachael Rollins, District Attorney for the Suffolk District, & Hon. Jon Santiago, pro se.

Matthew R. Segal for American Civil Liberties Union of Massachusetts & another.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

GAZIANO, J.

The plaintiffs, incarcerated inmates serving sentences or individuals who are civilly committed under G. L. c. 123, § 35, commenced this class action in the county court, alleging that their conditions of confinement expose them to unreasonable risks from the COVID-19 pandemic. They claim, among other things, that the defendants' failure to take readily available steps to reduce the incarcerated population to safe levels so as to permit adequate physical distancing within prison walls constitutes cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights, and violates substantive due process requirements guaranteed under the Fourteenth Amendment to the United States Constitution and arts. 1, 10, and 12 of the Massachusetts Declaration of Rights.

The plaintiffs sought a preliminary injunction enjoining the Department of Correction (DOC) from (1) housing any prisoner in a facility where the population exceeds its design-rated capacity and (2) "[h]ousing any prisoner in a cell, room, dorm, or other living area where they must sleep, eat, or recreate within six feet of another person."⁴ To accomplish this, the plaintiffs asked that the DOC be ordered to reduce the number of incarcerated individuals such that the proper physical distancing can be maintained in all facilities. They also requested that the parole board be ordered to expedite the release of certain groups of inmates, consider the risks of COVID-19 in all parole decisions, and adopt a presumption of release on parole for all inmates who are eligible for parole.⁵ In addition, the plaintiffs sought to enjoin the DOC from continuing to confine individuals who are civilly committed pursuant to G. L. c. 123, § 35.

The single justice reserved and reported the case to the full court.⁶ She also remanded the matter to the Superior Court "for fact-finding that will enable the full court to decide the case in the first instance." A Superior Court judge, by special assignment, conducted a series of evidentiary hearings, took limited testimony from all parties over three days, collected affidavits, and submitted his findings to this court. We also ordered the defendants to provide answers to additional questions pursuant to Mass. R. A. P. 16 (l ), as appearing in 481 Mass. 1628 (2019).

The initial question before us at this stage is whether a preliminary injunction should issue. This in turn requires a determination whether the plaintiffs are likely to succeed on the merits of their claims. See Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616-617, 405 N.E.2d 106 (1980).

To prevail on an Eighth Amendment claim, an individual must establish that the punishment is inconsistent with "the evolving standards of decency that mark the progress of a maturing society." See Trop v. Dulles, 356 U.S. 86, 100-101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958). Prison officials have a duty under the Eighth Amendment to protect inmates in their custody from the spread of serious, communicable diseases, including where the complaining inmate does not show symptoms of the disease, or where "the possible infection might not affect all of those exposed." Helling v. McKinney, 509 U.S. 25, 33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) ("We have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate's current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year").

Thus, to be entitled to a preliminary injunction in their claims for unconstitutional conditions of confinement because of the risk of spread of a disease, the incarcerated plaintiffs must show that they are likely to establish that the defendants have been deliberately indifferent to a substantial risk of serious harm to their health or safety. See Estelle v. Gamble, 429 U.S. 97, 103-104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ; Torres v. Commissioner of Correction, 427 Mass. 611, 613-614, 695 N.E.2d 200, cert. denied, 525 U.S. 1017, 119 S.Ct. 543, 142 L.Ed.2d 451 (1998).

It is undisputed, as we recognized in Committee for Pub. Counsel Servs. v. Chief Justice of the Trial Court, 484 Mass. 431, 445, 142 N.E.3d 525 (2020) ( CPCS v. Trial Court ), that, due to the COVID-19 pandemic, the situation inside the Commonwealth's jails and prisons "is urgent and unprecedented, and that a reduction in the number of people who are held in custody is necessary." Nonetheless, on the record here, we conclude that the incarcerated plaintiffs are unlikely to succeed on the merits of their claim for violations of the Eighth Amendment, and thus their motion for a preliminary injunction must be denied.

As to the plaintiffs' argument that commitment to a secure facility for substance abuse treatment during the pandemic violates the substantive due process rights of the committed individual, on this record, the plaintiffs do not seem to have a representative class member at this point, and thus are unlikely to succeed on their petition for a class-based preliminary injunction. Nonetheless, some immediate relief is necessary with respect to those who have been civilly committed pursuant to G. L. c. 123, § 35. Under our supervisory authority pursuant to G. L. c. 211, § 3, we conclude that these individuals are entitled to a new hearing to enable a motion judge to take into account treatment limitations in the current circumstances, and to weigh the balance of potential benefits from treatment and the potential harms as a result of being held in wings of prisons and jails or other conditions of confinement during the pandemic.⁷

Background. 1. COVID-19 in Massachusetts correctional facilities. Despite a massive, concerted global containment effort, COVID-19 has continued to spread, both around the world and in Massachusetts.⁸ Few inhabited places worldwide have been spared from infections; the Massachusetts correctional system is not among them.

For many, the virus causes only mild symptoms. For others, particularly the elderly or those with preexisting conditions, the disease poses a substantial likelihood of serious illness or death. Indeed, since February 29, 2020, the disease has killed more than 100,000 people in the United States and more than 6,700 people in Massachusetts. The demographic distribution of severe cases is of particular importance here, because Massachusetts has the highest percentage of elderly prisoners relative to all other States.⁹ Prisoners also have been shown to age more rapidly than the general population, typically developing the chronic conditions and disabilities associated with old age ten to fifteen years earlier than their nonincarcerated counterparts. According to estimates by the Commissioner of Correction (commissioner), fifty percent of the inmates under her care and control either are over sixty years of age or have an underlying medical condition that puts them at heightened risk for a severe course of COVID-19, should they contract the virus.

In CPCS v. Trial Court, 484 Mass. at 456, 142 N.E.3d 525 (Appendix B), we appointed a special master and established daily reporting requirements in order to monitor the populations of Massachusetts correctional institutions, and the progression of COVID-19 within them. As of May 25, 2020, the DOC reported 396 confirmed cases among inmates. The vast majority of these cases were found in three institutions: the Massachusetts Correctional Institution (MCI)-Shirley (160 cases) and MCI-Framingham (84 cases); and the Massachusetts Treatment Center (MTC) (130 cases). Five other institutions had at least one case among the incarcerated, and the rest reported zero confirmed cases. The data do not reveal how many of these individuals are actively symptomatic or how many have recovered from the disease. Eight incarcerated individuals have died of COVID-19.

Staff at a number of correctional institutions also have tested positive for the virus.¹⁰ As of May 25, 2020, 182 DOC staff, across eleven DOC facilities, had confirmed cases of COVID-19. While MCI-Shirley, the MTC, and MCI-Framingham again had the highest numbers of positive tests, the distribution of infections amongst staff is broader than that of the inmates. As we noted in CPCS v. Trial Court, 484 Mass. at 437, 142 N.E.3d 525, infections among staff are of particular concern. They not only risk bringing the virus into prisons, thereby spreading it amongst a closely confined, captive, and especially vulnerable population, but they also risk spreading the virus from prisons into the broader community. Id. As with inmates, the data do not reveal how many staff are currently symptomatic or recovered. Currently, no correctional staff have died of COVID-19.

As part of ascertaining how crowded these facilities are, the parties ask us to compare the total number of prisoners to dueling definitions of prison capacity: operational capacity or design capacity. Operational capacity is based on guidelines issued by the Association of State Correctional Administrators. CPCS v. Trial Court, 484 Mass. at 439 n.12, 142 N.E.3d 525. Design capacity...