In re Von Staich

• Decision Date: 20 October 2020
• Docket Number: A160122
• Citation: 56 Cal.App.5th 53,270 Cal.Rptr.3d 128
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE Ivan VON STAICH on Habeas Corpus.

56 Cal.App.5th 53

270 Cal.Rptr.3d 128

IN RE Ivan VON STAICH on Habeas Corpus.

A160122

Court of Appeal, First District, Division 2, California.

Filed October 20, 2020

Attorneys for Appellant: By Appointment of the Court of Appeal, First District Appellate Project, Jonathan Soglin, Executive Director, J. Bradley O'Connell, Assistant Director, L. Richard Braucher

Attorneys for Amici Curiae on behalf of Appellant: American Civil Liberties Union of Northern America, Criminal Justice Scholars, Hadar Aviram, Office of the State Public Defender, Mary K. McComb, Alexander Post, Alyssa Mellott, San Quentin State Prison Law Office, Donald H. Specter

Attorneys for Respondents: Attorney General of California, Xavier Becerra, Phillip J. Lindsay, Senior Assistant Attorney General, Julie A. Malone, Supervising Deputy Attorney General, Kathleen R. Walton, Deputy Attorney General

Kline, P.J. Petitioner Ivan Von Staich is incarcerated at San Quentin State Prison pursuant to 1986 convictions for second degree murder with use of a firearm and attempted murder. Petitioner has been in the custody of the California Department of Corrections and Rehabilitation (CDCR) since 1989, serving a sentence of 17 years to life for the murder consecutive to a 13-year sentence for the attempted murder.

In May of this year, petitioner, in propria persona, filed a petition for writ of habeas corpus alleging CDCR was not adequately prepared to respond to a possible outbreak of COVID-19, the disease caused by the novel coronavirus, at San Quentin. Shortly thereafter, San Quentin suffered a devastating outbreak of COVID-19 that infected approximately 75 percent of the inmate population and dozens of prison staff in just weeks. This court appointed counsel, who filed a supplemental petition on July 23, 2020.

Petitioner is 64 years of age and suffers respiratory problems resulting from bullet fragments lodged in his left lung. In a declaration, petitioner states that at the time he commenced this proceeding, he and a 65-year-old cellmate, both of whom had tested positive for COVID-19 (although petitioner was asymptomatic), were placed on the fourth tier of west block in a cell which, like others in that facility, was "so small that you can touch the walls with your hands." The declaration states that "[p]rotecting oneself from infection COVID-19 in this open cell is impossible" because "there is no opportunity to engage in social distancing."

After informal response and reply, we issued an order to show cause on August 14, 2020, directing the Warden of San Quentin Prison (Warden) to show cause why relief should not be granted and to transfer petitioner to a suitable quarantine location pending disposition of this proceeding. The Attorney General's return and petitioner's traverse followed.

Petitioner, who seeks placement in a residential facility supervised by CDCR that has already accepted him subject to a brief period of quarantine, maintains his continued incarceration at San Quentin violates the prohibition against cruel and unusual punishment embodied in article I, section 17 of the California Constitution and the Eighth Amendment to the United States Constitution. In particular, petitioner alleges respondents acted with deliberate indifference to the risk of substantial harm to inmates by failing to immediately reduce the population of San Quentin by releasing or transferring at least 50 percent of the population of the prison, in accordance with the recommendation of public-health experts who had been asked to advise CDCR on measures to combat COVID-19 considered necessary to " ‘protect the health of prisoners, the health of correctional facility staff, the health of health care staff, and the health of the community as a whole.’ " On the same basis, petitioner also seeks declaratory relief for other similarly situated San Quentin inmates.

We agree that respondents—the Warden and CDCR—have acted with deliberate indifference and relief is warranted.

FACTS

In late February of this year, California began experiencing a public health crisis due to the spread of COVID-19. On March 4, 2020 (all dates in this opinion are in that year), Governor Newsom declared a state of emergency to help the state prepare for the spread of the virus.¹ The World Health Organization declared COVID-19 a pandemic on March 11, noting "the alarming levels of spread and severity" and the "alarming levels of inaction" in response to the virus.² On March 19, the Governor directed all Californians to stay home to prevent the spread of the virus. (Governor's Exec. Order N-33-20 (Mar. 19, 2020) < https://www.gov.ca.gov/wp-content/uploads/2020/03/3.19.20-attested-EO-N-33-20-COVID-19-HEALTH-ORDER.pdf> [as of Oct. 16, 2020].) Since then, the state, counties, and localities have implemented a variety of measures to control the spread of the virus, with varying degrees of success.

Absent a vaccine or an effective treatment, the best way to slow and prevent spread of the virus is through social or physical distancing, which involves avoiding human contact, and staying at least six feet away from others. Even vigilant efforts to improve personal hygiene are not enough to slow the spread of COVID-19. Consequently, most institutions in this country have either dramatically reduced the number of people in close quarters or closed entirely.

Despite the efforts of many state agencies to control the transmission of COVID-19 in California, 826,784 persons in the state had been infected as of October 4, 2020 and 16,149 deaths had resulted. Thousands of new cases continue to be reported each day.³

Prisons and jails have long been associated with inordinately high transmission probabilities for infectious diseases. Early on, physicians, public health officials, and the national Centers for Disease Control and Prevention (CDC) sounded the alarm that prisons and jails could become the "epicenter of the [COVID-19] pandemic." (E.g., Amanda Klonsky, An Epicenter of the Pandemic Will Be Jails and Prisons, if Inaction Continues , N.Y. Times (Mar. 16, 2020) < https://nyti.ms/3aycWX4> [as of Oct. 16, 2020].) The CDC's lengthy and detailed "Guidance for Correctional and Detention Facilities" repeatedly emphasizes the vital nature of social distancing for reducing transmission of the virus."⁴

Infections transmitted through droplets, like COVID-19, are particularly difficult to control in correctional facilities, as adequate physical distancing and decontamination of surfaces is usually impossible. Prison and jail populations are at additional risk due to double celling and the existence of dormitories, dining halls, reception centers, gymnasiums, and other congregate spaces are accessible to most inmates, including aged and chronically ill prisoners.

Physicians and public health authorities regularly warn that prisons " ‘are in no way equipped to deal with an outbreak once it gets in.’ If an institution is already operating at far beyond its capacity, it is going to be very difficult to find areas where prisoners with suspected COVID-19 can be isolated."⁵ According to a New York Times database, as of June 2020, nine of the 10 largest known clusters of the virus in the United States were inside correctional institutions.⁶

Recognizing the risk to state prison inmates caused by COVID-19, CDCR took steps to control the introduction of virus and infection in the state's 35 adult prisons. To reduce the prison population, it suspended the intake of prisoners from county jails and juvenile halls to adult prisons and instituted programs to expedite the release of certain classes of prisoners. In addition, the CDCR requires all inmates and staff to wear facial barriers, provided guidance on physical distancing, and enhanced its sanitization procedures.⁷

Despite these efforts, there have so far been more than 2,200 confirmed cases of COVID-19 among San Quentin inmates and 28 deaths.⁸ There have also been 298 confirmed cases among San Quentin staff, including one death.⁹ The infection and mortality rates at San Quentin are higher than the rate for prisons statewide, and considerably higher than the rates for California's general population.¹⁰ By all accounts, the COVID-19 outbreak at San Quentin has been the worst epidemiological disaster in California correctional history. And there is no assurance San Quentin will not experience a second or even third spike, as it did during the Spanish flu pandemic in 1918, which according to the resident prison physician of San Quentin at the time consisted of three distinct epidemics, in April, October, and November of that year. (L. L. Stanley, Influenza at San Quentin Prison , California (May 9, 1919) vol. 34, No. 19, p. 996 < https://www.jstor.org/stable/4575142?seq=1#metadata_info_tab_contents>.)

The catalyst of the outbreak of COVID-19 infections and deaths was the transfer by CDCR of 121 inmates from the California Institution for Men (CIM) to San Quentin, which was part of an effort to control the growing number of infections at CIM. CIM had been the site of the largest COVID-19 outbreak in a California state prison, while San Quentin had reported zero cases. The CIM inmates sent to San Quentin had not been tested for up to a month before the transfer. Some of the transferred inmates immediately felt ill after entering San Quentin and several tested positive shortly after arrival.¹¹ For days, the transferred inmates used the same showers and ate in the same dining hall as other San Quentin inmates. (Williams & Griesbach, supra , N.Y. Times < https://www.nytimes.com/2020/06/30/us/san-quentin-prison-coronavirus.html> [as of Oct. 16, 2020].)

The delivery of medical care in California prisons is overseen by a receiver appointed by the federal district court in a long-running civil action concerning inadequate medical care due to severe overcrowding in the California correctional system. ( Plata v. Schwarzenegger (9th Cir. 2010) 603 F.3d 1088.) The receiver was appointed because the...