Ninth Circuit Provides Cover to Oregon Governor for Prioritizing Guards Over Prisoners for COVID-19 Vaccine
by Douglas Ankney
After the U.S. Court of Appeals for the Ninth Circuit ruled against a class of Oregon prisoners suing over the state’s response to the COVID-19 pandemic, the federal court for the District of Oregon dismissed their claims against Gov. Kate Brown (D) on April 10, 2024. But it also denied qualified immunity (QI) to Defendant officials with the state Department of Corrections (DOC), a decision they have now taken back to the Ninth Circuit, asking for it to be reversed.
The case traces to the pandemic’s early days in April 2020, after several DOC prisoners contracted COVID-19 (including some who died), and prisoners Paul Julian Mandy, Gary Clift, George W. Nulph, Theron D. Hall, David Hart and Sheryl Lynn Sublet, along with Felishia Ramirez as personal representative for the Estate of Juan Tristan, filed a complaint in the district court. Proceeding under 42 U.S.C. §1983, they alleged that their civil rights were violated in the initial pandemic response by numerous state officials, including then-Gov. Kate Brown (D) and Oregon Health Authority (OHA) Director Patrick Allen. When COVID-19 vaccines became available, Plaintiffs amended their complaint to add an Eighth Amendment claim for injunctive relief and damages related to vaccine allocation.
As the amended complaint recalled, OHA’s recommended “phased allocation” of vaccines” prioritized “healthcare personnel, residents in long-term care facilities, and corrections officers” to get the first doses, followed by “teachers, childcare workers, and persons age 65 or older.” Neither provision specifically covered Plaintiffs. But they were eligible to be vaccinated on the same terms as the general population, meaning those over 65 were prioritized, and all stood in line behind guards. That, Plaintiffs alleged, violated the Eighth Amendment prohibition against cruel and unusual punishment.
Ultimately, vaccines became available to all Oregonians, prompting the district court to dismiss Plaintiffs’ claim for injunctive relief as moot. Meanwhile, the district court certified a damages class, as PLN reported. [See: PLN, June 2022, p.16.] Defendants sought dismissal of the damages claim, arguing it was barred by the immunity provision of the Public Readiness and Emergency Preparedness (PREP) Act, 42 U.S.C. § 247d-6d(a)(1). When the district court disagreed and denied the motion, Defendants filed an interlocutory appeal.
The Ninth Circuit observed that several PREP Act provisions “expressly show Congress’s intent to extend immunity to persons who make policy-level decisions regarding administration or use of covered countermeasures and do not directly administer countermeasures to particular individuals.” The Act defined the term “covered person” to include a “program planner of such countermeasure,” including “a state government, a person employed by a state government, a ‘person who supervised or administered a program with respect to the administration’ of a countermeasure, and ‘a person who has established requirements [or] provided policy guidance … to administer or use a covered countermeasure.’”
Plaintiffs argued that PREP Act immunity did not apply to liability for constitutional claims brought under 42 U.S.C. § 1983. But the Ninth Circuit rejected that argument, holding that PREP Act language extending its coverage to “all” claims of loss “indicates a sweeping statutory reach,” as held in AK Futures LLC v. Boyd St. Distro, LLC, 35 F.4th 682 (9th Cir. 2022). Though the Act fails to mention § 1983 claims, the Court said that “Congress used terms that plainly and unambiguously define a broad scope of immunity” which includes them. Accordingly, the district court’s decision was reversed on February 1, 2024. See: Maney v. Brown, 91 F.4th 1296 (9th Cir. 2024).
After that, the partiers stipulated to dismissal of the vaccine prioritization claim against Gov. Brown, as well as that claim and all others against Allen. The district court further determined that Brown was immune from liability for refusing to offer Plaintiffs clemency release and for submitting a budget that prioritized closing prisons, rather than making them available to Plaintiffs in order to maximize social distancing and minimize their COVID-19 risk. But whether DOC Defendants made a good decision not to utilize the empty space that way is a fact question for a jury to decide, the district court said. So it denied Defendants qualified immunity (QI) and summary judgment on those claims. However, it granted dismissal of claims against Oregon Corrections Enterprises Director Ken Jeske for keeping job sites running during the pandemic, noting testimony that he took some protective measures and that Plaintiffs failed to allege facts sufficient to find him deliberately indifferent to their risk of harm. See: Maney v. Oregon, 2024 U.S. Dist. LEXIS 94037 (D. Or.).
A jury trial on Plaintiffs’ remaining claims was set for July 2024 but stayed when Defendants appealed denial of QI to the Ninth Circuit. That remains pending, and PLN will update developments as they are available. Plaintiffs are represented by Portland attorneys from the Oregon Innocence Project and Sugerman Dahab. See: Maney v. Brown, USDC (D. Ore.), Case No. 6:20-cv-00570.
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login