by David M. Reutter

An Oregon federal district court issued a preliminary injunction that requires the COVID-19 vaccine to be offered to all adult prisoners in the custody of the Oregon Department of Corrections (ODOC).

The court’s February 2, 2021 order also granted provisional class certification to all adults in custody (AIC) within ODOC who have not been offered the COVID-19 vaccine, known as the Vaccine Class. The complaint also lists a Damages Class composed of AICs who have continuously been housed at ODOC facilities since February 20, 2020 and who have been diagnosed with COVID-19.

After the Plaintiffs filed their third amended complaint, they moved for a preliminary injunction. The court said the narrow question before it was “whether prioritizing those living and working in congregate care facilities and those working in correctional settings to receive the vaccine, but denying the same priority for those living in correctional settings, demonstrates deliberate indifference to the health and safety of those relying on the state’s care.”

The court began its analysis of that question by noting the persistent and dangerous risk to the class, which both parties agree upon. It noted that as of December 15, 2020, 1,641 AICs had tested positive for COVID-19 and 19 had died. As of February 1, 2021, 3,392 AICs had tested positive in 14 of ODOC’s 15 prisons, and 42 prisoners had died. Additionally, 806 staff members had tested positive, but none had died.

ODOC conceded that its primitive structures, older ventilation systems, crowding, and dormitory style housing make it difficult to control the spread of the virus. To achieve proper social distancing within ODOC, its population would have to be reduced fifty or sixty percent.

The court recognized that “the supply of vaccine is limited” in Oregon and across the country, making it “impossible to provide the vaccine to everyone who wants it.” To equitably distribute the vaccine, Oregon tiered priorities for each phase of distribution. The first phase — Phase 1A — is divided into four groups. Group 2 includes persons who lived in congregate facilities, but it did not include prisons.

The Oregon Health Authority included OCDC staff and contractors in the highest priority for vaccination, as such OCDC was given 4,600 doses of the Moderna vaccine. The participation of staff was underwhelming. Only about 34% of OCDC’s 4,400 staff and contractors elected to be vaccinated. The vaccine was also given to 91 AICs with work assignments in health care settings.

Due to an apparent miscommunication regarding eligibility categories, ODOC offered vaccines to 1,558 AICs who were 60 and over or who had medical vulnerabilities. Of them, 1,343 chose to be vaccinated, and with the left-over doses ODOC vaccinated an additional 316 AICs. The remaining prisoner population, about 10,400 prisoners, have neither been offered nor are they scheduled for vaccination. ODOC anticipates offering vaccination to its 7,000 medically vulnerable prisoners during Phase 1B, but no plans have been finalized.

“Our constitutional rights are not suspended during a crisis,” the court wrote. “On the contrary, during difficult times we must remain vigilant to protect the constitutional rights of the powerless. Even when faced with limited resources, the state must fulfill its duty of protecting those in its custody.”

The court found it was clear the defendants are aware of the serious risks COVID-19 poses to AICs and the critical role the vaccine plays in controlling spread of the virus. “Plaintiffs’ recent evidence demonstrates that individuals in ODOC custody continue to lack the means to protect themselves from exposure to COVID-19 and, in some cases, risk being disciplined in attempting to do so,” the court wrote. It noted a situation where a prisoner who was trying to socially distance himself from his infected bunkmate was ordered to return to his bunk.

That the Defendants allowed vaccination of ODOC staff and contractors and persons living in residential care facilities, adult foster care, group homes for people with intellectual and developmental disabilities, and other similar congregate care sites is evidence that they are “aware of the high risk of COVID-19 exposure and infection to individuals both working and living in a congregate setting, and aware of the importance of vaccinating both populations against infection.”

The court also found ODOC staff and contractors are the primary source of transmission of COVID-19 within ODOC prisons. Yet, only about a third of them elected to be vaccinated. The failure to offer vaccination to AICs, the court concluded, “indicates deliberate indifference to a substantial risk of harm.”

That risk is heightened compared to the general public. The rate of infection amongst ODOC’s current 12,073 AIC is 28%. “That number is sizeable compared to the rate of infection in Oregon’s general population, which is 3.3%,” wrote the court. Currently, an individual in ODOC custody is nearly 10 times more likely to contract COVID-19 than the average Oregonian.

The court also found the CDC has recommended that staff and incarcerated persons be vaccinated “at the same time.” The court concluded the Class was likely to succeed on the merits at trial and they have shown irreparable harm could ensue absent immediate action from the court.

The court granted the Plaintiffs a preliminary injunction that requires the Defendants to “offer all AICs housed in ODOC facilities, who have not been offered a COVID-19 vaccine, a COVID-19 vaccine as if they had been included in Phase 1A, Group 2, of Oregon’s Vaccination Plan.”

“This will save an incredible amount of lives,” said the Plaintiffs’ counsel, Juan Chavez of the Oregon Justice Resource Center. See: Maney v. Brown, Case No. 6:20-cv-00570-SB, U.S.D.C. (D. Or.). 

Additional source: reason.com

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