Maney v. Brown

• Citation: 464 F.Supp.3d 1191
• Decision Date: 01 June 2020
• Docket Number: Case No. 6:20-cv-00570-SB
• 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; and Ken Jeske, Defendants.
• Court: United States District Courts. 9th Circuit. United States District Court (Oregon)

464 F.Supp.3d 1191

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; and Ken Jeske, Defendants.

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

United States District Court, D. Oregon.

Signed June 1, 2020

David F. Sugerman, David F. Sugerman Attorney, PC, Juan C. Chavez, Alexander Meggitt, Benjamin Wright Haile, Brittney Plesser, Franz H. Bruggemeier, Portland, OR, for Plaintiffs.

Andrew D. Hallman, Tracy Ickes White, Yufeng Luo, Oregon Department of Justice Civil Litigation Section, Salem, OR, for Defendants.

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 (collectively, "Plaintiffs"), adults in custody ("AIC") at four Oregon Department of Corrections ("ODOC") institutions, bring this civil rights action pursuant to 42 U.S.C. § 1983 against defendants Kate Brown, Colette Peters, Heidi Steward, Mike Gower, Mark Nooth, Rob Persson, and Ken Jeske (collectively, "Defendants").

Before the Court is Plaintiffs' motion for a temporary restraining order and preliminary injunction. (ECF No. 14.) All parties have consented to the jurisdiction of a U.S. Magistrate Judge pursuant to 28 U.S.C. § 636, and the Court held an all-day evidentiary hearing on Plaintiffs' motion on May 29, 2020. For the reasons discussed herein, the Court denies Plaintiffs' motion.

INTRODUCTION

"If I look at the mass, I will never act. If I look at the one, I will."¹ Mr. Steven S. ("Steven") testified by phone at the hearing on Plaintiffs' motion. He is a 52-year-old man suffering from heart disease

that has resulted in a pacemaker and implanted defibrillator and 30 trips to the hospital since 2016. He is immunosuppressed and currently housed in a dorm-style facility with 80 other medically vulnerable individuals where he sleeps three feet away from others. Steven is scheduled to be released from state custody in 14 days.

Every expert who provided testimony in support of, or in opposition to, Plaintiffs' motion agrees on one thing: the only meaningful way to save lives in prison during the pandemic we are facing is to reduce the prison population. Without a reduction in the number of human beings in Oregon's prisons, it is impossible for those in custody safely to socially distance at all times:

• "[C]ompliance with [CDC and local public health agency] recommendations alone is not enough to create a carceral setting that fully protects the health and safety of the people incarcerated there.... For this reason, it is also important to reduce the number of persons incarcerated." (Decl. of Mark F. Stern ("Stern Decl.") ¶¶ 20, 22, ECF No. 16.)

• "[A] prison at or near full capacity simply cannot medically segregate populations to control the spread of infection." (Decl. of Jeffrey A. Schwartz ("Schwartz Decl.") at 7, ECF No. 17.)

• "It is not possible to maintain six feet of social distancing between all persons present in a facility at all times with the current physical layout of the institutions and the AIC population." (Decl. of Heidi Steward ("Steward Decl.") ¶ 51, ECF No. 83.)

• "The idea of releasing AICs in order to establish and maintain social distancing also has a sound evidentiary basis, and is likely to result in harm reduction: i.e., decrease of COVID-19 spread within an institution, resulting in a lesser likelihood of a vulnerable AIC being infected and experiencing severe morbidity and death." (Decl. of Daniel Dewsnup ("Dewsnup Decl.") ¶ 56, ECF No. 84.)

• "There is no denying that a reduction in prison population would provide more options for isolation and quarantine and increase our ability to implement social distancing measures.... [but] [t]he policy decision to conduct such a mass release of AICs ... is well outside the discretion of ODOC." (Decl. of Gary Russell ("Russell Decl.") ¶¶ 106-07, ECF No. 85.)

• "[Amici public health experts] respectfully submit this brief to offer their view that facilities like those run by ODOC should work with state and local health officials to release from incarceration individuals to whom COVID-19 poses a high risk of serious infection and to ensure that jails and prisons across the state take immediate steps to better protect those individuals who do remain in custody during the pandemic." (Br. of Amici Curiae Public Health Experts, at 3, ECF No. 74.)

The experts agree that smart, swift, and evidence-based decarceration is the most effective way to save the lives of our family members, friends, and neighbors in prison, but that is a solution this Court cannot provide. The law is clear that this Court cannot order the release of categories of individuals, or even a single individual, nor may it order transfers to underutilized or unused facilities to spread out the numbers, in response to Plaintiffs' claims.

When asked in early April 2020 to develop a range of release options to improve social distancing in our prisons, ODOC provided several population management scenarios, including identifying 73 "most vulnerable" individuals, 269 "vulnerable" individuals, and 324 individuals age 60 or older, all of whom are serving sentences for non-measure 11 offenses. (Steward Decl. Ex. 11 at 4-6.) ODOC also identified 2,584 individuals who are scheduled for release within six months,² the majority of whom are serving sentences for "non-person" crimes. (Steward Decl. Ex. 11 at 7.) However, as of June 1, none of these individuals have been released early.

Looking at one individual at a time, like Steven, makes it clear that there are medically vulnerable individuals in custody who could go home a few weeks or a few months early without risking public safety. At this juncture, neither ODOC's policies nor this Court's pen can reduce the prison population to save lives. Only the Governor has that power.³

With that context in mind, the question currently before this Court is not whether ODOC has responded perfectly to the COVID-19 pandemic, nor even whether it could do more to keep AICs safe. The question before the Court is whether ODOC has acted with deliberate indifference toward the health risks that COVID-19 poses to those currently in custody. As the Court learned, quite the contrary is true.

ODOC was focused on the COVID-19 threat even before the virus reached the United States. ODOC put its leading experts in charge of its efforts, and those individuals have been working around the clock to develop, and continuously improve, procedures to fight the spread of COVID-19 in our state prisons. ODOC has enforced various social distancing measures, purchased 60,000 cloth masks for staff and AICs, widely distributed educational information to AICs, prohibited visitors and contractors, guaranteed a supply of soap at no cost to AICs, established respiratory clinics in every institution, conducted widespread symptom interviews, tested symptomatic AICs, contact traced any AIC who tested positive, quarantined AICs who have been exposed, placed any COVID-19 positive AICs in isolation in negative pressure rooms and, if necessary, in local hospitals, and conducted antibody testing. When ODOC became aware that AICs viewed medical isolation as punitive, it took steps to ensure that AICs kept their belongings and privileges in isolation, including purchasing portable DVD players for those in isolation. When AICs at one institution were frustrated by correctional officers' inconsistent mask wearing, ODOC encouraged the formation of an "inmate council" to communicate more effectively with prison officials.

Of course, ODOC policies rely on effective implementation and enforcement on the ground, and dozens of AICs have voiced legitimate concerns about correctional officers not wearing masks, a lack of social distancing, and inadequate testing and care, among other things. In response, ODOC has started making unannounced visits to each facility to audit compliance with its COVID-19 policies. ODOC was transparent about its first audit at OSP, and acknowledged room for improvement.

To date, 157 AICs have tested positive for COVID-19 in four of ODOC's 14 facilities, and one AIC has died. To be sure, ODOC's efforts have not kept COVID-19 from entering and spreading in its prisons, and despite ODOC's best efforts, the numbers will likely continue to rise. But the question is not whether ODOC can do better, the question is whether ODOC has acted with indifference to the risks posed by COVID-19. ODOC has not acted with indifference. On the contrary, the evidence that Defendants presented made it clear that ODOC officials are already doing their best in response to this unprecedented crisis.

Plaintiffs are rightfully terrified of being trapped in prison during a global pandemic, and ask this Court to hold Defendants accountable. Although today the Court denies Plaintiffs' motion for preliminary injunctive relief, this case will remain pending.

BACKGROUND

I. COVID-19

COVID-19 is a "novel respiratory virus" that "spreads primarily through the droplets generated when an infected person coughs

or sneezes, or through droplets of saliva or discharge from the nose." (Stern Decl. ¶ 7.) Currently there is no vaccine or cure for the virus, and no one is immune. (Stern Decl. ¶ 7.) For now, the only way to control the spread of the virus is through preventative strategies, such as social distancing. (Stern Decl. ¶ 7.)

COVID-19 presents itself in humans in different ways. For some, it comes on "very rapidly" and creates "serious symptoms and effects." (Stern Decl. ¶ 8.) Others experience "the first symptoms of infection in as little as two days after exposure and their condition can seriously deteriorate in as little as five days (perhaps sooner) after that." (Stern Decl. ¶ 8.) Or, "symptoms might appear after two weeks of infection or not at all." (Stern Decl. ¶ 8.)...