Calif. sheriff criticized, sued for COVID-19 outbreak at jails

Civil rights groups claim Sheriff Mike Boudreaux has "refused to take known and reasonably available measures" to reduce the spread of COVID-19


By Nadia Lopez
The Fresno Bee

TULARE COUNTY, Calif. — A COVID-19 outbreak sweeping through Tulare County's correctional facilities is worrying criminal justice advocates who say the crisis is being exacerbated by a sheriff they say is not taking the right measures to protect inmates.

The outbreak that emerged last month has sparked criticism from civil rights groups, including the ACLU Foundation of Northern California, who says the sheriff has "refused to take known and reasonably available measures" to reduce the spread of COVID-19 in jails.

Adults in custody are facing "substantial and immediate risk of harm" as jails are rocked by the spike in new cases, while the lack of widespread testing and an unknown tally of infected inmates have also been major concerns, they added.

In July, the ACLU and the law firm Munger, Tolles & Olson LLP filed a class-action lawsuit on behalf of inmates in Tulare County's jails, accusing Sheriff Mike Boudreaux of failing to implement state-mandated health protocols to protect inmates across the county's five facilities from getting sick.

Kathleen Guneratne, an ACLU attorney representing some of the inmates, said she spoke with several who had tested positive for COVID-19. According to Guneratne, they described "alarming," "cramped," and "restrictive" conditions, including prolonged hours of confinement, where inmates are stuck in their cells for more than 23 hours per day.

They also said inmates who were sick were being neglected, denied medical attention, and ignored when they asked to be tested. Many were shuffled in and out of cells and around the facility, potentially exposing others to infection, according to Guneratne.

"What we know about the outbreak is very troubling, and conditions for folks who are incarcerated are extremely alarming," she said. "The sheriff's handling of this is problematic, to say the least."

But attorneys representing the sheriff rejected the accusations, insisting that Boudreaux and correctional staff had been monitoring the outbreak closely and taking precautionary measures such as testing, contact tracing and moving the inmates to an isolation unit to prevent the virus from spreading.

"The sheriff's evidence provided to the court proved the sheriff's office is diligently working to reduce the chances of exposure and minimize the threat of COVID 19 in the jails," said Ashley Ritchie, the Tulare County Sheriff's Office spokesperson in a statement to The Bee.

Judge Dale A. Drozd granted a temporary restraining order in September requiring the sheriff to comply with state health orders such as mask-wearing, testing, and increased distance between inmates. In his remarks, the judge also took issue with the apparent reluctance of Boudreaux to try and resolve the case.

ACLU attorneys are claiming that Boudreaux had not followed those procedures, failed to provide essential safeguards, and "negligently" put inmates' lives at risk, which resulted in a COVID-19 outbreak that as of last month affected more than 50 inmates.

"We continue to be very concerned about the health and safety of incarcerated persons in the jail and believe that the sheriff should do widespread testing," Guneratne said.

The attorneys representing the inmates are now calling for more transparency regarding testing numbers to understand how the virus has spread among the inmates. They claim judicial intervention is "urgently needed" to countermeasure the "ongoing constitutional violations" at the jail.

Lack of testing fails to show extent of outbreak, ACLU says

From Dec. 6 to 19, Tulare County reported 51 confirmed cases within the Bob Wiley Detention Center, according to data from the Board of State and Community Corrections. But just 98 people were tested at that facility, which houses a population of nearly 600 inmates.

The positivity rate based on the total number of inmates tested during that period hovered around 52%, the data shows.

Court records show there were a total of 75 inmates housed in Unit 22 at the Wiley Center where the outbreak first took place. Of those, 47 tested positive as of Dec. 10, a 62% positvity rate in that cell alone.

A positivity rate of 10% represents an "uncontrolled spread of the disease," according to national guidelines listed in the White House Criteria for Gated Reopening. This means the facility's positivity rate when the outbreak emerged was about 5.6 times higher than the national threshold, the lawsuit states.

Two other Sheriff's Office detention facilities tested fewer than 100 inmates in December, out about 600 total inmates in those facilities, according to the lawsuit.

According to BSCC data, it is unclear how many inmates had tested positive.

According to the ACLU attorneys, the lack of widespread testing means the total number of infected inmates across the three facilities remains unknown.

"The BSCC data is the most recent data that we have, and ... it shows that the Tulare County Sheriff has not done a whole lot of testing in response to the outbreak in Bob Wiley," Guneratne said. "In court filings, (the sheriff) has said they do not need to conduct broad-based or widespread testing because their current policies are sufficient to prevent an outbreak, which the December outbreak in Bob Wiley shows is not true."

But Boudreaux said the most recent outbreak had been contained within the unit and did not spread to other parts of the jail, disputing allegations that not enough testing was conducted.

Federal guidelines set by the Centers for Disease Control suggest that correctional and detention facilities perform widespread testing of inmates and staff with suspected or confirmed cases of COVID-19.

Bourdeaux's attorneys said he had been following federal rules, which state frequent testing should be conducted during the initial phase of an outbreak and retesting every three to seven days until no new cases are identified for at least two weeks after the most recent positive result.

"Every individual that is arrested and comes into a Tulare County detention facility is immediately tested for COVID-19," Ritchie told The Bee. "If they test positive, they are quarantined for 14 days. If they test negative, they are sent to an observation unit for 14 days and then retested at the end of their observation period. After the 14 day quarantine or observation period, if the inmate has tested negative and is asymptomatic, they are moved in with the general housing population."

Ritchie said the Tulare County Sheriff's Office has tested 3,645 inmates across all facilities since June. Of those, 3,461 inmates tested negative for COVID-19, while a total of 184 inmates tested positive.

It is unclear what the jails' total population was during that time period. Since then, a total of 182 of those inmates had recovered. She confirmed no COVID-19 related deaths or hospitalizations have been recorded.

Conflicting accounts of safety measures at Tulare County jail

When the outbreak in Unit 22 at Bob Wiley began on Dec. 6, just two inmates complained about COVID-19 symptoms before two more showed symptoms shortly afterwards, according to court documents.

Bourdeaux's attorneys said the four inmates were immediately seen by a nurse and tested, then moved into an isolation pod, while the remaining cellmates were moved to the quarantine pod and also tested, court records show.

Many of the inmates housed in Unit 22 were low-level offenders that work in the kitchen, where authorities suspect the outbreak began. The sheriff said he required those inmates to be cleared before they could work. The clearing process included a physical examination by a nurse showing they were in "good health and free from underlying conditions." The screening process also includes frequent rapid testing and mandatory wearing of PPE and gloves.

But, in their lawsuit, some inmates said they were not quarantined in time to prevent from getting sick.

Inmate Antonio Estrada was tested for COVID-19 in mid-December, nearly two weeks after those four cellmates were removed from his unit for testing positive. When people in his unit started developing symptoms, he said he asked deputies to transfer him to another unit, but his request was denied, according to court records.

Before he knew it, he said he and nearly all of his cellmates had developed symptoms or contracted the novel coronavirus, court records show.

Unlike most who get sick, Estrada and the other inmates couldn't isolate themselves at home. And overcrowding, he added, has led to some COVID-19 positive inmates being grouped with others who are not sick. Estrada said he was also concerned about the frequent shuffling of people in and out of his cell.

"People in Unit 22 have been coughing badly and yelling all the time that they can't breathe," he told the court. "Even though people are sick in my unit, the deputies have been moving people from cell to cell. Some other people in my unit have gotten sick because they've been moved into a cell with another sick person."

He was moved in and out of his unit to attend video court while his COVID-19 test results were pending, potentially exposing other people he came in contact with throughout the facility.

But deputies said Estrada didn't tell the full story.

Lt. David Winters said he was part of the command staff that locked down Unit 22 when the outbreak began. He said Unit 22 was divided into three areas: Those who tested positive, those who were negative with no known exposure and those who tested negative but were exposed.

"We are trying to keep those inmates who have tested negative separated from those who have tested positive as much as possible," his court testimony shows.

Some advocates, including the ACLU, say staff also have to be monitored. They suspect many bring the virus into the jails, as inmates are restricted to their cells for long hours at a time and cannot exit.

"I'm very worried that the deputies might pass the coronavirus on to other units. The deputies go into and out of our units all the time," he added. "I'm worried that we may have passed the coronavirus on to other areas of the jail."

And while social distancing in correctional facilities is a challenge that some say is impossible to implement unless the jail population is reduced, many agree more can be done to protect inmates.

"It is very concerning that the Tulare County Sheriff's Office has not been more transparent with their protocols, numbers, or even notifying the court or our office regarding outbreaks when they occur," said David McAuley, a senior deputy public defender in Tulare County. "We understand HIPPA concerns — it's our clients' privacy in question, after all — but (the sheriff) can still inform us of positive tests in certain units or on occasions when clients were transported to court in person and subsequently test positive. "

McAuley worries the sheriff's handling of the outbreak could have long-lasting effects throughout the county.

"(The sheriff's) management of COVID within the jails is a concern not just for our clients, but for the whole community," he added. "It does not appear that they have been treating it as such."

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