Smith v. DeWine

• Citation: 476 F.Supp.3d 635
• Decision Date: 03 August 2020
• Docket Number: Case No. 2:20-cv-2471
• Parties: Ashunte SMITH, et al., Plaintiffs, v. Governor of Ohio Mike DEWINE, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

476 F.Supp.3d 635

Ashunte SMITH, et al., Plaintiffs,

v.Governor of Ohio Mike DEWINE, et al., Defendants.

Case No. 2:20-cv-2471

United States District Court, S.D. Ohio, Eastern Division.

Signed August 3, 2020

Joseph C. Patituce, Megan Marie Patituce, Strongsville, OH, Kimberly Kendall, Cleveland, OH, for Plaintiffs.

Thomas E. Madden, Byron D. Turner, Charles Allen Schneider, Tracy L. Bradford, Office of the Ohio Attorney General, Columbus, OH, for Defendants.

OPINION AND ORDER

EDMUND A. SARGUS, JR., UNITED STATES DISTRICT JUDGE

The matters before the Court are: Defendant Ohio Department of Rehabilitation and Correction (the "ODRC") Director Annette Chambers-Smith's (the "Director") Motion to Dismiss (ECF No. 23); Defendant Governor of Ohio Mike DeWine's (the "Governor") Motion to Dismiss (ECF No. 26); and Plaintiffs’ Ashunte Smith, Kaiquin Wang, Christopher Martin, and Travis Williams (collectively "Plaintiffs") Motion for a Preliminary Injunction (ECF No. 13). The parties have responded and replied to the motions and thus, they are ripe for review. For the following reasons, the Director's Motion to Dismiss (ECF No. 23) is GRANTED in part and DENIED in part , the Governor's Motion to Dismiss (ECF No. 26) is GRANTED , and Plaintiffs’ Motion for a Preliminary Injunction (ECF No. 13) is DENIED .

I. BACKGROUND

Plaintiffs, inmates at various Ohio prisons, filed this action on May 15, 2020 under 42 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiffs sued the Director and the Governor in their capacities as having authority over the ODRC. (See id. ¶¶ 24–25.) The Court will begin with Plaintiffs’ allegations, which for purposes of the motions to dismiss, are taken as true. Rondigo, L.L.C. v. Twp. of Richmond , 641 F.3d 673, 680 (6th Cir. 2011) (noting that for purposes of a motion to dismiss "the allegations in the complaint are accepted as true"). Next, the Court will relate the parties’ evidence for purposes of the preliminary injunction.¹

1. Plaintiffs’ Allegations

Plaintiffs allege that in light of the Coronavirus pandemic the conditions in Ohio's prisons violate the Sixth and Eighth Amendments to the United States Constitution as well as Article I, Section 9 of the Ohio Constitution. (Compl. ¶¶ 68–83.) Plaintiffs sue on behalf of themselves and also seek to represent a class of "all prisoners who currently or will in the future be in custody of the ODRC and housed in an ODRC prison during the COVID-19 pandemic, the duration of which is yet unknown." (Id. ¶ 64.)

a. The Coronavirus Pandemic

The Coronavirus ("COVID-19") is a new upper respiratory virus that the World Health Organization ("WHO") has declared a global pandemic. (Id. ¶¶ 26–27.) COVID-19 spreads between individuals in close contact through respiratory droplets and possibly through touching an object containing the virus and then touching one's mouth, nose, or eyes. (Id. ¶ 26.) On March 9, 2020, the Governor acknowledged the presence of COVID-19 as a dangerous situation for the citizens of Ohio and declared a state of emergency. (Id. ) In the following weeks the State of Ohio closed schools, polling stations, childcare facilities, adult daycare facilities, senior centers, restaurants and more, citing a significant risk of substantial harm due to the high probability of widespread exposure to COVID-19. (Id. ¶ 30.)

The Ohio Department of Health ("ODH") has warned that certain individuals, for example the elderly, those with weakened immune systems, and those with chronic medical conditions, are at risk of significant harm if they contract COVID-19. (Id. ¶ 26.) In addition, gatherings of large numbers of people increase the risk of widespread transmission of COVID-19. (Id. ¶¶ 30, 45.) Thus, "[s]ocial [d]istancing [r]equirements include[ ] maintaining at least six-foot social distancing from other individuals, washing hands with soap and water for at least twenty seconds as frequently as possible or using hand sanitizer, cover[ing] coughs

or sneezes (into the sleeve or elbow not hands), regularly cleaning high-touch surfaces, and not shaking hands." (Id. ¶ 31.)

There is currently no projected end to the COVID-19 pandemic and there is no vaccine or specific medication which can be used to treat or prevent the disease. (Id. ¶¶ 59–60.)

b. COVID-19 and the ODRC

Plaintiffs allege that the ODRC "does not have the capacity to provide constitutionally adequate medical care for all prisoners who may contract COVID-19." (Id. ¶ 33.) Plaintiffs allege the ODRC's institutions do not have adequate in-house facilities or medical staff to screen inmates, do not have medical equipment to treat inmates, and are unable to transport high volumes of prisoners off-site for treatment. (Id. ) The ODRC has two specialized medical facilities, but Plaintiffs allege these facilities do not have enough space or equipment to service large portions of the ODRC and are already facing a substantial outbreak of COVID-19. (Id. ¶ 34.) In addition to lacking the resources, Plaintiffs allege the ODRC's institutions are the ideal setting for the transmission of COVID-19. (Id. ¶¶ 37–38.) Once COVID-19 enters an institution "there is virtually no way to stop its progression." (Id. ¶ 39.) Plaintiffs allege that as of May 12, 2020, COVID-19 had entered all but four of the ODRC's institutions. (Id. ¶ 40.)

Plaintiffs also contend that "Ohio [ ] lacks the ability to institute broad testing among the incarcerated and civilian populations."

(Id. ¶¶ 6, 43.) Plaintiffs allege the ODRC has implemented mass testing in three of its prisons and the results "demonstrate[d] [a] dangerous trend that is hurling out of control within Ohio's prisons." (Id. ¶ 44.) Plaintiffs contend that as of May 12, 2020, the ODRC reported that out of 7,536 tests given, 59% were positive. (Id. ¶ 4.) Further, 49 prisoners in the ODRC's custody have died as a result of COVID-19. (Id. ¶ 10.)

Plaintiffs contend that this is particularly concerning because the ODRC's institutions house many individuals in a high-risk category including those over the age of 50 or suffering from a chronic health condition making them more susceptible to severe illness from COVID-19. (Id. ¶¶ 47–53.) Plaintiffs contend the risk is increased further due to over-population and close living quarters within the prisons. (Id. ¶¶ 2, 54.)

Plaintiffs also allege issues with attorney visitation. Plaintiffs contend that in March of 2020, the ODRC suspended visitation including visits with attorneys. (Id. ¶ 56.) As of the date of the Complaint, Plaintiffs contend visitation is still suspended. (Id. ) Each institution organizes how attorneys can communicate with their clients and Plaintiffs maintain some institutions have no means by which attorneys can communicate confidentially with their clients. (Id. ¶ 57.)

c. Plaintiffs

This case has four named Plaintiffs. Plaintiff Smith has been an ODRC prisoner in Marion Correctional Institution ("MCI") since 1996 when he was arrested at the age of 17. (Id. ¶ 20.) Plaintiff Smith is eligible for parole but was denied release at his first hearing. (Id. ) Plaintiff Smith is one of 2,147 prisoners at MCI who have contracted COVID-19. (Id. )

Plaintiff Wang has been a prisoner at Allen Correctional Institute ("ACI") since October 3, 2019. (Id. ¶ 21.) He is a first-time offender serving an eighteen-month sentence for a non-violent drug offense. (Id. ) He was eligible for judicial release, but the Wood County Court of Common Pleas denied his motion. (Id. ) Plaintiff Wang has diabetes. (Id. )

Plaintiff Martin is serving a fourteen-month sentence in Richland Correctional Institution ("RCI"). (Id. ¶ 22.) Plaintiff Martin was convicted of domestic violence, a fourth-degree felony. (Id. ) During his incarceration, Plaintiff Martin has been described as engaging in conduct which is "that of a leader" and has "taken responsibility for his actions and is working to better himself and those around him." (Id. )

Plaintiff Williams is a prisoner at MCI who has asthma

and chronic pneumonia and has contracted COVID-19. (Id. ¶ 23.) Plaintiff Williams has been in ODRC custody since 2002. (Id. )

d. Relief

Plaintiffs ask for release of certain categories of inmates and an order requiring the ODRC to provide specific COVID-19 prevention, testing, and care. (Id. ¶¶ 84–85.) Plaintiffs contend that release of prisoners will allow medically vulnerable inmates to self-quarantine in their homes and allow inmates who remain in prisons to practice social distancing. (Id. ¶ 14.)

2. Plaintiffs’ Evidence

Plaintiffs provide declarations from family members of ODRC inmates, Plaintiffs Martin, Wang, and Smith's applications to the Governor for reprieve, affidavits from one attorney and two paralegals who represent or assist in the representation of inmates, and various other documents. (See Pls.’ Resp. Mots. Dismiss & Reply Prelim. Inj., ECF No. 37.)

a. Declarations

Plaintiffs provide declarations from Vicky Gaston, Mildred Gonzalez-Serota, Andrea Alexander, Karina Anne Brewington, Susan J. Rair Krug, and Wesley Park Jr., all friends or family of inmates imprisoned in an ODRC facility. (See id. at Ex. 1.) These declarants make various allegations regarding the ODRC's facilities. (See id. ) Many of these allegations relate to the ODRC's conditions since the COVID-19 pandemic began, such as: "[i]t is impossible for inmates to social distance," there is a "low morale and emotional health," there are a "[l]ack of sanitation/cleaning products," staff are seen "[t]ouching trays without gloves," "[d]rugs [a]re introduced in the facility," and inmates are being transferred into the facility despite the lockdown. (See id. at 1–2, 8, 10.) None of the declarants themselves are imprisoned. (See id. ) Some declarants also provide information specific to the inmate they know. (See id. at 4.) One affiant averred that an inmate tested negative and his cellmate tested positive, but a week passed before the two were separated. (See id. ) None of the declarants mentions any of the four Plaintiffs.

The...