by David M. Reutter

On February 22, 2022, an inspector appointed by the federal court for the Western District of Tennessee reported that the Shelby County Jail remained understaffed even as a surge in bookings drove up the number of prisoners and detainees held there, frustrating efforts to fully vaccinate them against COVID-19 or observe social distancing necessary to prevent its spread.

The inspector, Rick Wells of Sabot Consulting, was appointed by Judge Sheryl Lipman to report to the Court as it oversees a consent decree requiring the jail to provide vaccination for COVID-19. Wells replaced the previous inspector, Mike Brady, who passed away not long after presenting a report upon which the Court based its previous order on August 31, 2021. That order rejected the Defendants’ motion to terminate the decree entered into the preceding April, when the parties reached their settlement.

In that August 2021 hearing, Sheriff Floyd Bonner, Jr. argued that his office had fully complied with a clause in the decree providing for its termination when “an FDA-approved COVID-19 vaccine is offered to and administered … to all detainees housed at the Jail for a period of more than fourteen (14) days and who accept vaccination, along with educational materials about the vaccine and non-punitive incentives to take the vaccine.”

But the Court said that merely checking off boxes did not merit termination. In reaching its decision, it began by noting that consent decrees are “at once both contracts and orders, … construed largely as contracts, but … enforced as orders,” and they “must be construed to preserve the position for which the parties bargained.” Considering those principles, the Court rejected Bonner’s argument that the Consent Decree is “self-terminating.”

Then and Now

The Decree’s first requirement imposes a specific obligation that the jail offer, and if accepted, administer the vaccine to all detainees housed for a period of more than fourteen (14) days. While Bonner contended that he complied, the Class submitted that the low acceptance rate of 25% “indicated vaccine administration was a failure, thus violating the Decree.”

In his most recent report, Wells noted that the jail was offering vaccination daily, rather than once a week as it had been. In fact, at the hearing before the Court’s August 2021 order, it was learned that three weeks had elapsed when no vaccinations were administered at all.

That was attributed to a lack of sign-ups by prisoners and detainees. Chief Kirk Fields testified a minimum of six sign-ups were needed to administer the vaccine, but Brady found evidence that the minimum was actually 26. The Court also found that the jail failed to track who requested and received the vaccine, leaving the judge with “little to go on.” But it was noted that a detainee arrested and released during the three-week gap in vaccine administration would not have been offered inoculation, as the Decree requires.

The Court also took issue with the provision of educational materials. It found they were in some cases hard to read and understand, and videos failed to answer questions about the vaccine or discuss side effects. So the Court concluded that not all detainees received adequate educational material.

In his most recent inspection, Wells applauded the efforts by jail staff to post numerous informational posters he observed, though he fretted that some detainees may not be able to read them and that others said the posters went up only when jail staff knew an inspector was coming.

As to incentives to take the vaccine, evidence presented in August 2021 showed that the jail failed to provide any in some cases. But Wells’ new report noted improvement in this area, with prizes offered that encouraged vaccine uptake.

Back in August 2021, the Court noted that the Decree concerned the safety of detained persons whose guilt or innocence had yet to be determined, people who also lived in congregate settings with little control over their daily lives, including personal safety.

“The estimated vaccination rate at the Jail, in the midst of the virulent Delta variant, signals a population in deep peril,” the Court added. “The Consent Decree did not enshrine mere box-checking. It enshrined protection for Plaintiffs, a medically vulnerable group.”

Since the evidence created a meaningful dispute about the jail’s compliance, the Court concluded that the jail and Bonner failed to meet their burden for termination, and it denied their motion to terminate. See: Busby v. Bonner, 2021 U.S. Dist. LEXIS 172497 (W.D. Tenn.).

Defendants then asked the U.S. Court of Appeals for the Sixth Circuit to stay that order, but that request was denied on October 14, 2021. See: Busby v. Bonner, 2021 U.S. App. LEXIS 30952 (6th Cir.).

Moving Forward

In his report issued four months later,Wells chided the jail and its contract medical provider, Wellpath, for keeping insufficient records to prove that vaccinations were administered within 24 hours after they were requested.

He also said that poor record-keeping prevented him from verifying all the vaccination incentives reportedly offered, and that informational posters were both difficult to read and not verbally reinforced for those with educational deficiencies or learning disabilities. Some prisoners and detainees said they didn’t even know about the “white coat rallies” held to promote vaccination.

And despite filling a Court Expeditor position, Wells said, the jail population was rising and “[t]here is still not enough evidence to demonstrate the inmates/detainees who are immunocompromised with serious medical and/or mental health conditions or disabilities are being considered for early release, lower bonds, [or] alternative sentencing options.”

Moreover, Wells added, “it does not appear that Mr. Brady’s related COVID[-19] serial testing recommendations were acted upon.”

After that report, Plaintiffs moved to enforce the Decree. But the Court largely denied them, except as to vaccine education and jail population reduction, ordering Defendants to submit documentation of required small group meetings to educate detainees and prisoners as well as “implementation of [the Jail’s] peer education program.” Plaintiffs were also granted a deposition of the Court Expeditor within 21 days after the order was issued on March 30, 2022.

They are represented by attorneys from the America Civil Liberties Union and Black Mclaren Jones Ryland & Griffee, P.C. in Memphis. See: Busby v. Bonner, USDC (W.D. Tenn.), Case no. 2:20-cv-02359. 

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