by Mark Wilson

"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,” concluded United States Magistrate Stacie F. Beckerman in denying Oregon prison officials qualified immunity for their coronavirus (COVID-19) response. “The Court finds that this clearly established right extends to protection from COVID-19.”

The first identified COVID-19 case within the Oregon Department of Corrections (ODOC) was a guard who tested positive on March 27, 2020. The first prisoner tested positive just days later. By February 2, 2021, more than 3,392 (28.1%) of ODOC’s 12,073 prisoners had tested positive and 42 prisoners had died, with 20 deaths occurring in January 2021 alone.

Additionally, 806 (18.3%) of ODOC’s 4,400 employees had also tested positive for the virus, but none had died. ODOC officials recently “determined that all but one (prisoner’s) COVID-19 infection was transmitted through an ODOC staff member,” Judge Beckerman noted in a February 2, 2021 order. “ODOC staff and contractors are the primary vector of COVID-19 within ODOC.”

Oregon prisoners brought federal suit against Governor Kate Brown and prison officials, alleging that Defendants’ COVID-19 response constitutes deliberate indifference to their safety, in violation of the Eighth Amendment to the United States Constitution. Prisoners also assert several state law negligence claims.

Prisoners later amended their complaint to assert class action allegations with respect to an “Injunctive Relief Class” and a “Damages Class.” The “Injunctive Relief Class” consists of all prisoners at highest risk of dying or suffering from severe illness from COVID-19 who are currently, or who will be in the future, held in ODOC custody. The “Damages Class” includes all prisoners housed in ODOC facilities after February 1, 2020, who have been diagnosed with COVID-19.

In August 2020, prison officials moved for summary judgment on Plaintiffs’ Eighth Amendment damages claim, arguing that they were entitled to qualified immunity. Defendants also argued that they were entitled to discretionary immunity on Plaintiffs’ state law negligence claims.

“The COVID-19 pandemic is an extraordinary event,” Defendants’ attorneys argued in their summary judgment motion. “There is no controlling case law explaining how to address such a situation in the prison context. Every country, every state, every institution is grappling to figure out how to handle the many complex issues that have arisen.”

Beckerman disagreed in a 26-page December 15, 2020 opinion. Beginning with Plaintiffs’ deliberate indifference claim, the court found “there exists a clearly established right for individuals in custody to be free from heightened exposure to a serious, easily communicable disease, and that material issues of disputed fact remain as to the merits of Plaintiffs’ Eighth Amendment claim.”

Beckerman first noted that “existing precedent clearly establishes the right of an individual in custody to protection from heightened exposure to a serious communicable disease.”

“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,” Beckerman found. “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.”

Beckerman also rejected Defendants’ argument that Plaintiffs did not establish that Defendants acted with deliberate indifference. “In light of the fact that discovery is ongoing, COVID-19 continues to impact our state correctional institutions, and (prisoners) continue to die,” Judge Beckerman agreed “that evaluating the merits of Plaintiffs’ Eighth Amendment claim is premature at this stage of the litigation.”

Turning to Plaintiffs’ state law negligence claims, Beckerman recognized that Oregon law provides the State with the affirmative defense of discretionary immunity for public policy decisions made by policymakers with authority. See: ORS 30.265(6)(c). She also noted, however, that Plaintiffs’ negligence claim challenges more than just high-level policy decisions. “Plaintiffs allege ten categories of allegedly negligent actions that resulted in harm to the proposed Damages Class,” noted Beckerman. “Although Plaintiffs target several of the State’s COVID-19 policy decisions, Plaintiffs also challenge the failure to implement and enforce those policies.”

Examining each of Plaintiffs’ negligence allegations in turn, Beckerman ultimately concluded that Defendants are not entitled to discretionary immunity with respect to Defendants’ failure to implement and enforce policies to: (1) ensure all prisoners and staff wear masks when required; (2) conduct employee screenings for COVID-19 symptoms; (3) provide adequate sanitation and disinfection; (4) train staff to require adequate facility sanitation and disinfection; (5) provide social distancing; (6) provide COVID-19 testing to symptomatic prisoners and those exposed to COVID-19 positive individuals; (7) quarantine prisoners awaiting COVID-19 test results; and (8) quarantine prisoners transferred from COVID-19 positive facilities.

The ruling exposes the Oregon governor and prison officials to the risk of significant damages for the 42 prisoners who have died so far and many others who have suffered serious long-term health problems from contracting the virus. Yet, more importantly, the ruling could have far-reaching national implications, as it is believed to be one of the first rulings in the nation to hold that prison officials may be financially liable for their COVID-19 response and the deaths and injuries resulting from it.

“No one was sentenced to die of COVID-19 in prison,” said Juan Chavez, one of the Oregon Justice Resource Center (OJRC) attorneys who represent Plaintiffs. “No one deserves that agonizing fate. We clung to mass incarceration when all of the health science pointed to decarceration as the answer to protecting lives.” See: Maney v. Brown, 464 F. Supp.2d 1191 (D OR 2020) and Maney v. Brown, 2021 U.S. Dist. Lexis 19665. 

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