Maney v. Brown

• Decision Date: 02 February 2021
• Docket Number: Case No. 6:20-cv-00570-SB
• Citation: 516 F.Supp.3d 1161
• Court: U.S. District Court — District of Oregon
• Parties: Paul MANEY; Gary Clift; George Nulph; Theron Hall ; David Hart ; Micah Rhodes; and Sheryl Lynn Sublet, individually, on behalf of a class of others similarly situated, Plaintiffs, v. Kate BROWN; Colette Peters; Heidi Steward; Mike Gower; Mark Nooth; Rob Persson ; Ken Jeske ; and Patrick Allen, Defendants.

516 F.Supp.3d 1161

Paul MANEY; Gary Clift; George Nulph; Theron Hall ; David Hart ; Micah Rhodes; and Sheryl Lynn Sublet, individually, on behalf of a class of others similarly situated, Plaintiffs,

v.Kate BROWN; Colette Peters; Heidi Steward; Mike Gower; Mark Nooth; Rob Persson ; Ken Jeske ; and Patrick Allen, Defendants.

Case No. 6:20-cv-00570-SB

United States District Court, D. Oregon.

Signed February 2, 2021

Juan C. Chavez, Alexander Meggitt, Benjamin Wright Haile, Brittney Plesser, Franz H. Bruggemeier, Oregon Justice Resource Center, David F. Sugerman, David F. Sugerman Attorney, PC, Nadia H. Dahab, Sugerman Law Office, Portland, OR, for Plaintiffs.

Andrew D. Hallman, Tracy Ickes White, Yufeng Luo, Oregon Department of Justice Civil Litigation Section, Salem, OR, for Defendants Kate Brown, Colette Peters, Heidi Steward, Mike Gower, Mark Nooth, Rob Persson, Ken Jeske, State of Oregon.

Tracy Ickes White, Oregon Department of Justice, Salem, OR, for Defendant Patrick Allen.

OPINION AND ORDER

BECKERMAN, U.S. Magistrate Judge.

Plaintiffs Paul Maney, Gary Clift, Gary Nulph, Theron Hall, David Hart, Micah Rhodes, and Sheryl Lynn Sublet (together, "Plaintiffs"), adults in custody ("AIC") at Oregon Department of Corrections ("ODOC") institutions, filed a third amended complaint alleging constitutional and state law violations against defendants Governor Kate Brown, Colette Peters, Heidi Steward, Mike Gower, Mark Nooth, Rob Persson, Ken Jeske, and Patrick Allen (together, "Defendants"). (ECF No. 160.)

Before the Court is Plaintiffs’ motion for provisional class certification (ECF No. 154) and motion for a temporary restraining order and preliminary injunction (ECF No. 156). All parties have consented to the jurisdiction of a U.S. Magistrate Judge pursuant to 28 U.S.C. § 636, and the Court held a hearing on Plaintiffs’ motions on February 2, 2021. For the reasons discussed herein, the Court grants Plaintiffs’ motion for provisional class certification and Plaintiffs’ motion for a preliminary injunction.

INTRODUCTION

From the beginning of the COVID-19 pandemic, it was clear that our country's prisons were uniquely vulnerable to the transmission and spread of the virus. To date, over 366,000 incarcerated individuals have tested positive for COVID-19, and over 2,300 have died.¹ Oregon prisons have not been spared from this reality, as COVID-19's toll continues to mount behind bars.

Defendants are aware of the higher risk of COVID-19 exposure and infection to individuals living and working in congregate living facilities, and do not dispute that vaccination is an essential component of protecting against COVID-19 exposure. For these reasons, defendants Governor Brown and Oregon Health Authority ("OHA") Director Patrick Allen ("Allen") have prioritized in Phase 1A of Oregon's COVID-19 Vaccination Plan the vaccination of those living and working in congregate care facilities and those working in correctional settings. Yet, Governor Brown and Allen have excluded from Phase 1A individuals living in correctional settings.

The Court acknowledges the difficult and unenviable task faced by defendants Allen and Governor Brown: they must determine the order in which Oregon citizens will receive a life-saving vaccine that is limited in supply during a global pandemic. The question of which groups of Oregonians should receive priority is best left to the policymakers, and is not the question before this Court. The narrow question before the Court is whether prioritizing those living and working in congregate care facilities and those working in correctional settings to receive the vaccine, but denying the same priority for those living in correctional settings, demonstrates deliberate indifference to the health and safety of those relying on the state's care.

Our constitutional rights are not suspended during a crisis. On the contrary, during difficult times we must remain the most vigilant to protect the constitutional rights of the powerless. Even when faced with limited resources, the state must fulfill its duty of protecting those in its custody. See Estelle v. Gamble , 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ("It is but just that the public be required to care for the prisoner, who cannot, by reason of the deprivation of his liberty, care for himself.") (quotation marks and citation omitted). For the reasons that follow, the Court finds that the law and facts clearly favor Plaintiffs’ position, and therefore grants Plaintiffs’ request for preliminary injunctive relief.

BACKGROUND

I. THE PARTIES

Paul Maney is a 62-year-old AIC at Oregon State Correctional Institution ("OSCI") in Salem, Oregon. (Third Am. Compl. ("TAC") ¶ 3.) Gary Clift is a 76-year-old AIC at OSCI (TAC ¶ 4), and George Nulph is a 68-year-old AIC at OSCI. (Id. ¶ 5.) Theron Hall is a 35-year-old AIC at the Oregon State Penitentiary ("OSP") (id. ¶ 6), and David Hart is a 53-year-old AIC at OSP. (Id. ¶ 7.) Micah Rhodes was previously an AIC at Columbia River Correctional Institution and has now been released from ODOC custody. (Id. ¶ 8.) Sheryl Lynn Sublet is a 63-year-old AIC at Coffee Creek Correctional Facility. (Id. ¶ 9.)

Kate Brown is the Governor of the State of Oregon (hereinafter, "Governor Brown"). (Id. ¶ 11.) Colette Peters is the Director of ODOC (id. ¶ 12), and Heidi Steward is the Deputy Director of ODOC. (Id. ¶ 13.) Mike Gower is ODOC's Assistant Director of Operations. (Id. ¶ 14.) Mark Nooth is ODOC's Eastside Institutions Administrator and is responsible for operations at six ODOC institutions (id. ¶ 15), and Rob Persson is the Westside Institutions Administrator and is responsible for the remaining eight ODOC institutions. (Id. ¶ 16.) Ken Jeske is the Oregon Correctional Enterprises ("OCE") Administrator. (Id. ¶ 17.) Allen is the Director of OHA. (Id. ¶ 18.)

Plaintiffs assert allegations on behalf of a class of similarly situated AICs (id. ¶ 19), and propose three classes: (1) the "Injunctive Relief Class"; (2) the "Damages Class"; and (3) the "Vaccine Class." (Id. ¶¶ 20-21.) Plaintiffs allege that the Injunctive Relief Class consists of all AICs at the highest risk of dying or suffering from severe illness from COVID-19 who are currently or who will be in the future held in ODOC custody. (Id. ¶ 20.) The Damages Class includes all AICs who have been continuously housed at ODOC facilities after February 1, 2020 and who have been diagnosed with COVID-19 illness. (Id. ¶ 21.) The Vaccine Class consists of all prisoners housed in ODOC facilities who have not been offered a COVID-19 vaccine. (Id. ¶ 21). Plaintiffs seek only certification of the Vaccine Class at this time. (Pls.’ Mot. to Certify Class ("Pls.’ Mot.").)

II. PROCEDURAL HISTORY

Plaintiffs filed this action in April 2020. On May 12, 2020, Plaintiffs filed a motion for a temporary restraining order and preliminary injunction, alleging that Defendants’ response to the COVID-19 pandemic violated the Eighth Amendment. (ECF No. 14.) On June 1, 2020, the Court denied Plaintiffs’ motion. (Prelim. Inj. Op. & Order, ECF No. 108.)

On June 26, 2020, Plaintiffs filed a Second Amended Complaint ("SAC"), alleging that Defendants (1) violated the Eighth Amendment by subjecting AICs to cruel and unusual punishment by failing to provide adequate healthcare during the COVID-19 pandemic and by operating ODOC facilities without the capacity to treat, test, or prevent the spread of COVID-19, and (2) committed negligence in failing to carry out proper preventative measures. (SAC ¶¶ 148-58.) On August 3, 2020, Defendants moved for partial summary judgment on the damages portion of Plaintiffs’ Eighth Amendment claim and on the entirety of Plaintiffs’ state law negligence claim. (ECF No. 115.)

On December 15, 2020, the Court granted in part and denied in part Defendants’ motion. (Mot. Summ. J. Op. & Order, ECF No. 149.) On January 22, 2020, the Court granted Plaintiffs’ motion to file a Third Amended Complaint ("TAC"). The TAC proposes a third class of AICs (the Vaccine Class) and adds Allen as a defendant. (TAC ¶¶ 18, 21.) Plaintiffs now seek certification of the Vaccine Class and move for a preliminary injunction.

III. STATE OF THE COVID-19 OUTBREAK IN OREGON PRISONS

The parties agree that COVID-19 is a persistent and dangerous risk to Plaintiffs. (Mot. Prelim. Inj. at 5-6; Defs.’ Resp. to Mot. Prelim. Inj. ("Defs.’ Resp.") at 3.) As of June 1, 2020, when the Court denied Plaintiffs’ first motion for a preliminary injunction, 157 AICs had tested positive for COVID-19, and one AIC had died while in ODOC custody as a result of COVID-19. (Prelim. Inj. Op. & Order at 16.) As of December 15, 2020, 1,641 AICs had tested positive for COVID-19 and nineteen had died. (Summ. J. Op. & Order at 4.) Most recently, as of February 1, 2021, 3,392 AICs have tested positive for COVID-19 in 14 of ODOC's 15 facilities, and forty-two AICs have died. See COVID-19 Status at Oregon Department of Corrections Facilities , OREGON.GOV , https://www.oregon.gov/doc/covid19/Pages/covid19-tracking.aspx (last visited Feb. 2, 2021.) Additionally, 806 ODOC staff have tested positive for COVID-19 (and none have died). (Id. ; Third Suppl. Decl. of Joe Bugher ("Bugher Third Suppl. Decl.") ¶ 8, ECF No. 166.)

ODOC staff and contractors are the primary vector of COVID-19 within ODOC. (Dep. of Daniel Dewsnup, M.D. ("Dewsnup Dep.") 57:2-10, ECF No. 157; Dep. of Brad Cain ("Cain Dep.") 65:23-66:14, ECF No. 157.) Recently, ODOC determined that all but one COVID-19 infection was transmitted through an ODOC staff member. (Dewsnup Dep. 57:2-10.) Despite continued efforts by ODOC to monitor the illness and implement various safety measures, including social distancing (Decl. of Heidi Steward ("Steward Decl.") ¶¶ 51-52, ECF No. 83), mask wearing (Suppl. Decl. of Joe Bugher ("Suppl. Bugher Decl.") Ex. 2, at 1-2, ECF No. 116), expanded testing (Suppl. Bugher Decl. ¶ 12), and healthcare evaluation for confirmed and suspected cases (Steward Decl. ¶¶ 37, 40, 54, 61-71),...