McPherson v. Lamont

• Citation: 457 F.Supp.3d 67
• Decision Date: 06 May 2020
• Docket Number: Civil No. 3:20cv534 (JBA)
• Court: U.S. District Court — District of Connecticut
• Parties: Tre MCPHERSON, Pattikate Williams-Void, John Doe, John Roe, and Thomas Caves, on behalf of themselves and all others similarly situated, Plaintiffs, v. Ned LAMONT and Rollin Cook, in their official capacities, Defendants.

457 F.Supp.3d 67

Tre MCPHERSON, Pattikate Williams-Void, John Doe, John Roe, and Thomas Caves, on behalf of themselves and all others similarly situated, Plaintiffs,

v.Ned LAMONT and Rollin Cook, in their official capacities, Defendants.

Civil No. 3:20cv534 (JBA)

United States District Court, D. Connecticut.

Signed May 6, 2020

Dan Barrett, American Civil Liberties Union, Hartford, CT, for Plaintiffs.

RULING DENYING DEFENDANTS’ MOTION TO DISMISS

Janet Bond Arterton, U.S.D.J.

Plaintiffs, who are being held in Connecticut Department of Correction facilities, seek relief under 28 U.S.C. § 2241 and 42 U.S.C. § 1983 on behalf of themselves and all others similarly situated. They brought this action on April 20, 2020, claiming the ongoing COVID-19 pandemic places them at unreasonable risk of infection. Defendants move to dismiss Plaintiffs’ complaint for lack of subject-matter jurisdiction. For the reasons that follow, Defendants’ Motion to Dismiss [Doc. # 26] is denied.

I. Background

A. COVID-19 Pandemic

Because the existence and rapid spread of the ongoing global COVID-19 pandemic is well known, the Court will discuss only those facts most relevant to the motion to dismiss. As of May 5, 2020, there have been 29,973 reported cases of COVID-19 in the state of Connecticut, and 2,556 deaths. CASES IN THE U.S., Centers for Disease Control and Prevention ("CDC"), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last accessed May 6, 2020).

"COVID-19 is thought to spread mainly through close contact from person-to-person in respiratory droplets from someone who is infected. People who are infected often have symptoms of illness," but "[s]ome people without symptoms may be able to spread virus." HOW COVID-19 SPREADS , Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last accessed May 5, 2020). It also "may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes." Id. "The virus that causes COVID-19 is spreading very easily and sustainably between people." Id.

"The best way to prevent illness is to avoid being exposed to this virus." HOW TO PROTECT YOURSELF & OTHERS , Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (last accessed May 5, 2020). To avoid contracting COVID-19, the CDC recommends taking certain precautions, including 1) "[w]ash[ing] your hands often with soap and water for at least 20 seconds especially after you have been in a public place"; 2) "[a]void[ing] close contact with people who are sick, even inside your home"; 3) "[p]ut[ting] distance between yourself and other people outside your home," including "[s]tay[ing] at least 6 feet (about 2 arms’ length) from other people," avoiding "gather[ing] in groups," and "[s]tay[ing] out of crowded places and avoid[ing] mass gatherings"; 4) using a "cloth face cover" whenever you "have to go out in public," although such a cover is "not a substitute for social distancing"; 5) "cover[ing] your mouth and nose with a tissue when you cough

or sneeze" and immediately "wash[ing] hands with soap and water for at least 20 seconds"; and 6) "[c]lean[ing] AND disinfect[ing] frequently touched surfaces daily," including "tables, doorknobs, light switches, countertops, handles, desks, phones, keyboards, toilets, faucets, and sinks." Id.

"Keeping distance from others is especially important for people who are at higher risk of getting very sick." Id. "Older adults and people who have severe underlying medical conditions like heart or lung disease

or diabetes" are believed to be at "higher risk for developing serious complications from COVID-19 illness," based on currently available information and clinical expertise. Id. According to the CDC, "those at high-risk for severe illness from COVID-19" include: 1) "People 65 years and older"; 2) "People who live in a nursing home or long-term care facility"; and 3) "People of all ages with underlying medical conditions, particularly if not well controlled." (Id. ) Such underlying medical conditions include "chronic lung disease or moderate to severe asthma [,] ... serious heart conditions[,] ... severe obesity [,] ... diabetes [,] ... chronic kidney disease undergoing dialysis[,] ... liver disease," and "[p]eople who are immunocompromised," from a variety of conditions "including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications." PEOPLE WHO ARE AT HIGHER RISK FOR SEVERE ILLNESS , Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last accessed May 5, 2020).

As of May 6, 2020, the Connecticut Department of Correction ("DOC") reports that 358 of its staff members and 478 of its inmates have contracted COVID-19. COVID-19 TRACKER , Connecticut State Department of Correction, https://portal.ct.gov/DOC/Common-Elements/Common-Elements/Health-Information-and-Advisories (last accessed May 6, 2020). There are 100 inmates who have tested positive for COVID-19 currently housed at Northern Correctional Institution ("Northern CI"), to which DOC has been moving inmates who test positive, and 336 inmates have already been "medically cleared" and returned to their original facility. Id.¹ Six inmates have died from COVID-19. Id. Plaintiffs allege that Defendants have taken insufficient steps to limit the spread of COVID-19 in DOC facilities and have deprived them of means to self-protect.

B. Connecticut State Courts During COVID-19 Pandemic

The parties dispute the degree to which the Connecticut state courts remain open and available during the COVID-19 pandemic. Six Connecticut Superior Court courthouses remain open in some capacity during the pandemic. LIST OF COURTHOUSES WHERE PRIORITY LEVEL I BUSINESS FUNCTIONS WILL BE HANDLED DURING THE COVID-19 PANDEMIC , State of Connecticut Judicial Branch, https://jud.ct.gov/HomePDFs/CourthousesOpened.pdf?v4 (last accessed May 5, 2020). Those six courthouses are open only on Mondays, Wednesdays, and Fridays. REDUCED DAYS OF OPERATION AT STATE COURTHOUSES , State of Connecticut Judicial Branch, https://jud.ct.gov/HomePDFs/Reduced_Days_Courthouses.pdf (last accessed May 5, 2020). The courts which are open are hearing only "Priority 1 Business Functions," which includes "Criminal arraignments of defendants held in lieu of bond and all arraignments involving domestic violence cases" but apparently does not include other criminal matters or civil habeas petitions. COVID-19 INFORMATION FROM THE CONNECTICUT JUDICIAL BRANCH , State of Connecticut Judicial Branch, https://jud.ct.gov/COVID19.htm (last accessed May 5, 2020).

Plaintiffs assert that "all hearing dates for criminal cases in which the defendant is incarcerated have been continued en masse from when the pandemic began in March to the end of May or beginning of June" and that "sentence modification hearings simply are not happening during this pandemic." (Pls.’ Opp. to Mot. to Dismiss [Doc. # 34] at 7.) Defendants cite three habeas petitions which were "opened" on April 29, 2020 and two emergency motions filed in existing habeas petitions which were ruled on during the pandemic, (Defs.’ Mem. Supp. Mot. to Dismiss [Doc. # 26-1] at 11 n.11, 12), but Plaintiffs respond that those are "the only habeas petitions opened in the entire state of Connecticut since March 12, 2020," in contrast with an "average of 50-60 new" habeas cases per month over the past ten years. (Pls.’ Opp. at 9.)

On April 3, 2020, the Connecticut Criminal Defense Lawyers Association ("CCDLA") and certain individuals filed a complaint and motion for a temporary order of mandamus in the Connecticut Superior Court against Governor Lamont and Commissioner Cook. Complaint, Connecticut Criminal Defense Lawyer's Ass'n v. Lamont et al. (hereinafter "CCDLA "), No. UWYCV206054309S (Conn. Super. Ct. Apr. 3, 2020). The defendants in that action moved to dismiss the complaint, asserting a variety of jurisdictional arguments. Oral argument was heard by telephone on April 15, 2020, and the motion to dismiss was granted on April 24, 2020. Order Regarding Motion to Dismiss, CCDLA et al. v. Lamont et al. , No. UWYCV206054309S (Conn. Super. Ct. Apr. 24, 2020).

C. Parties

Plaintiffs, who brought this action on April 20, 2020, are five individuals held at facilities of the Connecticut Department of Correction.

Plaintiff Tre McPherson was a "pretrial detainee at Bridgeport Correctional Center held for lack of a $5,100 bond," (Compl. [Doc. # 1] ¶ 9), but he has been released from DOC custody since the filing of this action. Plaintiff Pattikate Willliams-Void is "a pretrial detainee at York Correctional Institute held for lack of a $75,000 bond." (Id. ¶ 10.) "She has hypertension

and has been diagnosed as pre-diabetic." (Id. ) Plaintiff John Doe is "above the age of 70 and is a prisoner serving a sentence of incarceration," and he "has HIV and hepatitis C, and requires regular dialysis for kidney disease." (Id. ¶ 11.) Mr. Doe is "house[d] ... with a cellmate." (Id. ) Plaintiff John Roe is "above the age of 50 and is a prisoner serving a sentence of incarceration." (Id. ¶ 12.) Mr. Roe "has HIV" and is "house[d] ... in an open dormitory with more than ninety other people sleeping in bunkbeds in close proximity to one another." (Id. ) Plaintiff Thomas Caves is "a prisoner serving a sentence of incarceration at Corrigan-Radgowski Correctional Institute." (Id. ¶ 13.) He is "house[d] ... with a cellmate and his cell is not cleaned." (Id. ) Mr. Caves "shares showers, phones, and common space with more than eighty other men housed in his unit," one of whom "contracted COVID-19 and fell ill ... [and] was simply locked in his cell,...