Seth v. McDonough

• Decision Date: 21 May 2020
• Docket Number: Civil Action No. 8:20-cv-01028-PX
• Parties: Keith SETH, et al., Individually and on behalf of a class of similarly situated persons, Plaintiffs, v. Mary Lou MCDONOUGH, in her official capacity as Director of the Prince George's County Department of Corrections, Defendant.
• Court: U.S. District Court — District of Maryland

461 F.Supp.3d 242

Keith SETH, et al., Individually and on behalf of a class of similarly situated persons, Plaintiffs,

v.Mary Lou MCDONOUGH, in her official capacity as Director of the Prince George's County Department of Corrections, Defendant.

Civil Action No. 8:20-cv-01028-PX

United States District Court, D. Maryland.

Signed May 21, 2020

Cadene Russell Brooks, Pro Hac Vice, Edward Henderson Williams, II, Katherine Chamblee Ryan, Pro Hac Vice, Olevia Boykin, Pro Hac Vice, Ryan Downer, Pro Hac Vice, Elizabeth Ann Rossi, WilmerHale, Washington, DC, for Plaintiffs.

Shelley Lynn Johnson, Andrew J. Murray, Ann Elizabeth Koshy, Prince Georges County Office of Law, Largo, MD, Kenneth Scott Steely, Pro Hac Vice, Maynard Cooper Gale PC, Hunstville, AL, Stephen Clarence Rogers, Pro Hac Vice, William Lunsford, Pro Hac Vice, Maynard Cooper Gale PC, Huntsville, AL, for Defendant.

MEMORANDUM OPINION

Paula Xinis, United States District Judge

This case concerns the health, welfare, and safety of detained individuals housed at the Prince George's County Correctional Center ("the Facility") during the COVID-19 pandemic. Plaintiffs, on behalf of themselves and all similarly situated detainees, contend that Director Mary Lou McDonough, in her official capacity as Director of the Prince George's County Department of Corrections, has abdicated her function to provide constitutionally adequate care during the pandemic in violation of the Eighth and Fourteenth Amendments to the United States Constitution.

The case is in its infancy. This Opinion addresses the propriety of Plaintiffs’ Emergency Motion for a Temporary Restraining Order ("TRO") and Preliminary Injunction (ECF No. 3-1). For the following reasons, the Court grants in part and denies in part the motion.

I. Background

The Court struggles to put into words the magnitude of COVID-19's devastation. On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic.¹ At that time, the United States registered 1,267 of the 118,000 confirmed global cases and 38 of the 4,291 deaths.² Since then, the virus has visited greater pain and suffering. As of today, 329,186 have died globally, 93,558 in the United States, and 2,045 in the state of Maryland.³

In Prince George's County, the virus arrived early and spread with a vengeance. As a result, the County has experienced the highest number of confirmed cases and the second-highest number of deaths in the State.⁴

No cure or vaccine exists for the highly infectious virus. ECF No. 2-1, Ex. 30 ¶ 8 (Decl. of Dr. Jamie Meyer). And for those with underlying chronic health conditions or advanced age, the virus poses an even greater risk for a painful and solitary demise. Id. ¶ 9. Due to these realities, Maryland has been under a state of emergency and Prince George's County a stay-at-home order since March.⁵

It is universally recognized that COVID-19 poses a particularly tough challenge for the incarcerated citizenry. Social distancing and rigorous personal hygiene remain important combatants to the virus—but those housed in jails and prisons must eat, sleep, talk, and tend to their every personal need in each other's close physical space. See ECF No. 2-1, Ex. 32 at 9. COVID-19 is especially deadly for the detained population because they are disproportionately more likely to suffer from chronic medical conditions. Id.

In recognition of this stark reality, the Center for Disease Control ("CDC") on March 23, 2020, issued guidance for officials operating detention facilities to help stop the spread of COVID-19. See ECF No. 2-1, Ex. 36 (CDC Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities). The guidance includes detailed recommendations about proper hygiene and cleaning practices, social distancing, evaluating symptoms, and the use of medical isolation and quarantine. Id. The parties agree that the CDC guidelines provide a useful benchmark in determining whether the Facility's policies and procedures are appropriate. See ECF No. 29 at 9; ECF No. 3-1 at 5. Their disagreement, however, concerns whether the Facility has followed these basic recommendations.

The Facility, run by Defendant, can typically house over 1,500 men, women, and juveniles. ECF No. 29-3 at 10. At the beginning of the COVID-19 pandemic, the Facility held roughly 720 detainees. ECF No. 29 at 3. However, through concerted efforts to reduce the population, the Facility now holds 544 detainees, the overwhelming majority of whom are adult males awaiting trial. ECF No. 81. The physical footprint of the Facility includes seventeen similarly constructed housing units. ECF No. 29 at 12–13. In each unit, 48 double-occupancy cells are equipped with a sink and toilet and open to a common area with a kitchenette, additional sinks, tables and chairs, sitting areas, and phone banks. Id. ; ECF No. 29-3 at 6, 10–15. The Facility also supports an on-site medical unit with twelve negative pressure single-occupancy cells and a larger cell to care for up to ten detainees at once. ECF No. 29-3 at 9–10. The medical unit is staffed with a resident physician, nurses, and mental health providers. Id.

On April 21, 2020, Plaintiffs filed this class action lawsuit and companion motion for temporary injunctive relief arising from Defendant's allegedly inadequate response to the COVID-19 pandemic. ECF Nos. 2, 3. Plaintiffs bring claims under 42 U.S.C. § 1983 for violations of the Eighth and Fourteenth Amendments based on Defendant's denial of medical care as well as knowing and reckless exposure to serious health risks (Count I). They also aver that Defendant implemented, and continues to adhere to, an unconstitutional "policy" of detaining COVID-19-positive individuals after they are legally entitled to release (Count II). For a subset of medically vulnerable detainees whom Plaintiffs contend face imminent peril from COVID-19, Plaintiffs seek a writ of habeas corpus for immediate transfer or release pursuant to 28 U.S.C. § 2241 (Count III).

At the time Plaintiffs filed suit, the public knew that three detainees had tested positive for COVID-19.⁶ The Complaint, however, reflected a far more sizeable outbreak and a systemic lack of response to contain it. Twenty-seven detainees, or approximately five percent of the Facility's population, swore out detailed declarations cataloguing the lack of cleaning supplies and personal protective equipment ("PPE"), as well as the derisory medical response to those who displayed clear symptoms of COVID-19. See generally ECF No. 2-1. Detainees described medical staff wholly unfamiliar with how the virus presents, ill-equipped to identify COVID-19 symptoms, and uninformed as to how to conduct proper contact tracing or isolation procedures to stop the spread of this highly infectious virus. Most disturbing, each detainee either described himself as having COVID-19 symptoms, being directly exposed to detainees with COVID-19 symptoms, or both.

Plaintiffs also included declarations from physicians who carefully documented the now obvious—that detained populations are at exponentially higher risk of contracting COVID-19 by virtue of detainees’ reduced ability to socially distance and their lack of access to PPE. See ECF No. 2-1, Ex. 30, Ex. 32; ECF No. 44-1, Ex. A. Plaintiffs also submitted the declaration of an assistant state public defender—an officer of the court—who detailed her personal experience with inadequate screening for COVID-19 symptoms as she entered the Facility, limited and ineffective access to her clients and the unclean, dank environs that she personally observed. See ECF No. 2-1, Ex. 29.

In recognition of the dire circumstances as described by the detainees, the Court ordered Defendant to respond to the TRO motion within 48 hours. ECF No. 24. The Court provided specific guidance in a three-page attachment to the Order that enumerated the topics on which the Court expected Defendant to respond, including: information on the confirmed number of COVID-19 positive detainees and staff; methods for screening, testing, contact tracing, isolating, and quarantining detainees; provision of PPE and cleaning supplies; provision of medical care; and policies and procedures that Defendant implemented in response to the pandemic. To further streamline the process, the Court directed the parties to submit recommendations for a potential court-appointed expert who could inspect the Facility if deemed necessary.

On April 25, 2020, Defendant responded and supplemented the record as directed. ECF No. 29. Defendant, along with representatives of the Facility's medical subcontractor, Corizon, LLC, executed detailed declarations. See ECF Nos. 29-1, 29-2, 29-3. Defendant's declaration addressed the operational steps she had taken since January 2020 to prepare for and execute her response to COVID-19 in the Facility. See ECF No. 29-3. Defendant described, for instance, steps taken to improve the Facility's sanitation and detainee personal hygiene, provide PPE to staff and detainees, and prepare the medical unit and medical staff for treating COVID-19 positive detainees. Id. The medical declarations detailed the training and protocols put in place to identify and treat COVID-19 positive detainees. See ECF Nos. 29-1, 29-2. The declarations also described screening protocols, which included twice-daily temperature checks in certain housing units.

Defendant also described her sequence of responses when COVID-19 first presented in her staff and the detainees at the end of March. The Facility first eliminated all programming and inmate work details to reduce movement within the population; next it went to a "half lockdown" schedule (April 3) and then finally "full lockdown" (April 4). See ECF No. 29 at 15; ECF No. 29-3 at 13–14, 16. The Facility is still on full lockdown, which consists of allowing detainees to cycle out of their cells and to access the common space in groups of ten for an hour at a time. See ECF...