Foster v. Comm'r of Corr.

• Decision Date: 18 November 2021
• Docket Number: SJC-13125
• Parties: Stephen FOSTER & others v. COMMISSIONER OF CORRECTION & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

176 N.E.3d 610

Stephen FOSTER ¹ & others²

v.COMMISSIONER OF CORRECTION & others.³

SJC-13125

Supreme Judicial Court of Massachusetts, Suffolk.

Argued September 10, 2021.

Decided November 18, 2021.

Bonita P. Tenneriello (David Milton also present) for the plaintiffs.

Stephen G. Dietrick for Commissioner of Correction & another.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

KAFKER, J.

The plaintiffs, a class of inmates in Department of Correction (DOC) facilities, have brought suit contending that the conditions of their confinement during the COVID-19 pandemic constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution. In Foster v. Commissioner of Correction (No. 1), 484 Mass. 698, 730, 733, 146 N.E.3d 372 (2020), S.C., 484 Mass. 1059, 146 N.E.3d 408 (2020) ( Foster I ), this court denied the plaintiffs’ first motion for a preliminary injunction, concluding that the plaintiffs had failed to demonstrate a likelihood of success of proving deliberate indifference to inmates’ health. Here, we reach the same conclusion regarding the plaintiffs’ second motion for a preliminary injunction. We emphasize, as did the Superior Court judge who heard the second motion (motion judge), that because the DOC has continued to implement the measures that were discussed in Foster I, and has undertaken additional measures, including in particular the offer of vaccination

to all medically eligible prisoners, the plaintiffs have not demonstrated a likelihood of success of proving deliberate indifference necessary to constitute a constitutional violation. We therefore affirm the motion judge's denial of the plaintiffs’ second request for a preliminary injunction.

Background. 1. Procedural history. In April 2020, the plaintiffs filed a class action complaint and an emergency motion for a preliminary injunction in the county court. In seeking preliminary relief from the single justice, the plaintiffs alleged that the risk to DOC inmates of contracting COVID-19 created unconstitutional conditions of confinement and sought to enjoin the DOC to use various measures to reduce the incarcerated population, thus allowing for physical distancing to be maintained in DOC facilities.⁴ The single justice reserved and reported the case to the full court while remanding to the Superior Court for expedited fact finding. On the basis of the factual findings that the motion judge submitted to us in May 2020, we denied the plaintiffs’ first motion for a preliminary injunction and transferred the case to the Superior Court for a final adjudication on the merits. See Foster I, 484 Mass. at 733-734, 146 N.E.3d 372. The judge subsequently certified a class of all prisoners housed in DOC facilities.

On December 24, 2020, the plaintiffs filed their second emergency motion for a preliminary injunction in the Superior Court, alleging that their ongoing conditions of confinement, and the DOC's limited efforts to decrease the prison population after Foster I, were violative of the Eighth Amendment because they were unreasonably dangerous to prisoners’ health. The plaintiffs’ motion sought an order requiring the defendants to adopt specific measures that would achieve an immediate reduction in the incarcerated population. The measures urged included the immediate implementation of a home confinement program, the release of prisoners on furloughs, the maximization of the award of good conduct deductions, and the expeditious granting of medical parole to all eligible inmates.⁵

On December 29, 2020, after the plaintiffs had filed their second motion, the Legislature enacted a budget line item addressing the threat of COVID-19 in DOC facilities. The line item directed the DOC to use or consider using various measures to reduce the prison population, consistent with public safety. St. 2020, c. 227, § 2, line item 8900-0001. In light of the passage of this line item, the plaintiffs submitted a reply brief on January 27, 2021, the same day as the scheduled hearing on the plaintiffs’ second motion, advancing for the first time arguments based on the line item. The motion judge set an expedited briefing schedule for the defendants to respond to the plaintiffs’ reply brief and for all parties to address additional issues raised by the judge, including, in particular, the current status of the DOC's vaccination

program. Final submissions by the parties were made on February 10, 2021, and the judge heard oral arguments on that day.

The motion judge subsequently denied the plaintiffs’ second motion for preliminary relief in a memorandum and order dated February 17, 2021. He ruled that a preliminary injunction should not issue because the plaintiffs had not shown a likelihood of success on the merits of their underlying Eighth Amendment claim. The judge did not rule on whether, under the objective element of the test for unconstitutional conditions of confinement, the plaintiffs faced a substantial risk of serious harm, professing himself unable to predict plaintiffs’ ultimate likelihood of success on that issue, given the DOC's vaccination

program. The judge's decision was instead based on his finding that the DOC's response to the threat of COVID-19 to inmates did not demonstrate the deliberate indifference required under the subjective element of the test for unconstitutional prison conditions. Because he concluded that the plaintiffs had not demonstrated a likelihood of success on the merits, the judge denied their motion without ruling on the other elements required for a preliminary injunction.

Following the motion judge's denial of preliminary relief, the plaintiffs filed a petition for review in the Appeals Court pursuant to G. L. c. 231, § 118, and a single justice of that court referred the plaintiffs’ petition to a full panel of the court. While the case was pending before the Appeals Court, the plaintiffs filed a petition for direct appellate review by this court, which we granted.

2. The DOC's response to the threat of COVID-19 to inmates. a. Nonpharmaceutical interventions. As we noted in our Foster I decision, the DOC began implementing a suite of measures to control COVID-19 in March 2020, informed by recommendations issued by the Centers for Disease Control (CDC) regarding the control of COVID-19 in correctional facilities.⁶ Foster I, 484 Mass. at 704-709, 146 N.E.3d 372. Given that vaccines against COVID-19 had yet to be developed then, the measures recommended by the CDC and adopted by the DOC were nonpharmaceutical interventions (NPIs) designed to disrupt the transmission of COVID-19 among those who worked at and were housed in DOC facilities.

Crediting representations made by the Commissioner of Correction (commissioner) in two affidavits submitted to the Superior Court, the motion judge determined that the DOC maintained or updated almost all of these NPIs since we issued our decision in Foster I.

Thus, the DOC retained mask-wearing policies and reiterated to inmates the importance of wearing masks in protecting against COVID-19 transmission.⁷ Heightened cleaning and disinfection protocols were also continued. To reduce the risk of COVID-19 being introduced into DOC facilities from the outside, nonattorney in-person visits were suspended and replaced with a virtual visitation program using video conferencing technology.⁸ To timely detect new infections, the DOC conducted regular asymptomatic testing of inmates and staff, as well as contact tracing by testing the close contacts of inmates who tested positive.⁹ Inmates with a positive COVID-19 test or presenting with COVID-19 symptoms were moved into medical isolation. The DOC also continued with policies to promote social distancing, including advising inmates of the importance of physical distancing in infection prevention, and having inmates take their meals in their cells or units. Nevertheless, it is undisputed that because roughly one-half of the inmate population is not housed in single cells, many prisoners are not in fact able to keep a six-foot distance from others at all times.

While acknowledging the DOC's conscientious efforts in implementing measures to mitigate the COVID-19 risk within its facilities, the motion judge concluded that there was sufficient evidence to establish that the DOC did not achieve perfect compliance with its COVID-19 policies. The judge also concluded that the lapses were sporadic rather than systematic.

b. The end of full lockdown. We noted in Foster I that, beginning in April 2020, the commissioner had instituted a "system-wide lockdown," which left inmates housed in cells confined there for twenty-three hours per day, and inmates living in dormitory settings confined in their units at all times. Foster I, 484 Mass. at 705, 146 N.E.3d 372. Since then, the motion judge determined, the DOC has ended the full lockdown. While some restrictions remain to allow for physical distancing among inmates during activities that involve social interaction, prisoners’ outdoor yard time has been restored, and educational and vocational programs, through which inmates can earn sentence-reduction credits, have resumed. Some industrial programs have also been restored. c. Vaccination

of inmates and DOC staff. A key development since our ruling in Foster I has been the availability of vaccines against COVID-19. The motion judge found that the DOC had offered the vaccine to all medically eligible inmates, and had undertaken a campaign to educate inmates about the benefits of vaccination. By February 2, 2021, of the ninety-four percent of inmates deemed medically eligible for vaccination, seventy-one percent had receive their first dose of the two-dose Moderna COVID-19 vaccine.¹⁰

d. COVID-19 outcomes in the inmate population. Unfortunately, the DOC's efforts to mitigate the risk of COVID-19 to the incarcerated population did not succeed in fully sparing DOC inmates from the effects of the pandemic. Between May 4, 2020, and...