By Maxine Bernstein
Oregonlive.com
PORTLAND, Ore. — A federal judge has ruled that a suit can proceed against the governor and state correctional officials alleging they’ve failed to protect prison inmates from the spread of the coronavirus.
U.S. Magistrate Judge Stacie F. Beckerman found that state leaders can face liability claims if they didn’t carry out safety measures according to policies adopted to stem the tide of COVID-19.
Those include ensuring that inmates and staff have worn masks when required, screening employees for COVID-19 symptoms consistent with department policy, training staff on adequate sanitation and disinfection practices, enforcing social distancing policies, testing those with symptoms and quarantining inmates with symptoms pending their tests or after transfers from prisons where they had exposure to others who tested positive for the virus.
The judge, though, dismissed the suit’s objections to canceling drug and alcohol treatment for inmates as a precaution or the Department of Corrections decision to use segregation units to house inmates who tested positive for COVID-19.
One former inmate and six current inmates filed the suit. Their lawyers allege that the state violated the inmates’ Eighth Amendment right against cruel and unusual punishment by failing to provide adequate health care during the pandemic and by operating prisons without the capacity to treat, test, or prevent spread of the coronavirus. The suit also alleges state corrections officials were negligent in not carrying out proper preventive measures.
Beckerman denied a preliminary injunction in the case in June, finding that the state prison system hadn’t shown “deliberate indifference’’ to inmates’ well-being during the course of the pandemic. At that time, 157 adult inmates had tested positive and one adult inmate had died from COVID-19 while in state custody.
Since then, the numbers have increased steadily. As of Tuesday, 1,641 adult inmates have tested positive and 19 have died as a result of the virus, according to the judge’s opinion.
Additionally, 458 state corrections staff have tested positive for COVID-19. Only one corrections facility, the South Fork Forest Camp, has reported no confirmed coronavirus cases among inmates or staff, according to the opinion.
Gov. Kate Brown also has commuted the sentences of 123 adult inmates, allowing their early release to reduce the prison population, since early April, shortly after she declared a state of emergency amid the pandemic.
Lawyers for the state have argued that state officials are protected by qualified immunity because no clearly established precedent exists on the appropriate constitutional response to COVID-19 in state prisons.
Beckerman disagreed.
“The law is clearly established that individuals in government custody have a constitutional right to be protected against a heightened exposure to serious, easily communicable diseases, and the Court finds that this clearly established right extends to protection from COVID-19,” she wrote in her ruling Tuesday.
Under qualified immunity, government officials can only be held accountable for violating someone’s rights if a court has previously ruled that it was “clearly established” those precise actions were unconstitutional.
“The law does not support a finding of qualified immunity for government officials who fail to protect individuals in their custody from a new serious communicable disease, as opposed to a serious communicable disease of which they were previously aware,” the judge wrote. “To hold otherwise as a matter of law would provide qualified immunity to Defendants even if they had done nothing in response to the COVID-19 pandemic.”
___
(c)2020 The Oregonian (Portland, Ore.)