by Mark Wilson

 

“Our constitutional rights are not suspended during a crisis. On the contrary, during difficult times we must remain the most vigilant to protect the constitutional rights of the powerless,” declared U.S. Magistrate Judge Stacie F. Beckerman in issuing a preliminary injunction, directing Oregon prison officials to immediately provide coronavirus (COVID-19) vaccinations to the state’s prisoners. “Denying the vaccine to [prisoners] in institutions suffering from high infection and death rates indicates deliberate indifference.”

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. In short, Oregon prisoners have an infection rate nearly ten times higher than Oregon’s 3.1 % general public infection rate and a death rate that is 8.5 times higher than Oregon’s general population COVID-19 death rate, with no end in sight.

“ODOC staff and contractors are the primary vector of COVID-19 within ODOC,” noted Judge Beckerman. “Recently, ODOC determined that all but one [prisoner’s] COVID-19 infection was transmitted through an ODOC staff member.”

Oregon prisoners brought federal suit against Governor Kate Brown, the Director of the Oregon Health Authority (OHA), the ODOC Director and other prison officials. They allege that Defendants’ COVID-19 response constitutes deliberate indifference to their safety, in violation of the Eighth Amendment to the U.S. Constitution. Prisoners also assert several state law negligence claims.

Their amended complaint declares class-action allegations with respect to three classes: an “Injunctive Relief Class;” a “Damages Class;” and a “Vaccine Class.” The

“Injunctive Relief Class” is composed 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 within ODOC custody.

The “Damages Class” includes all prisoners housed in ODOC facilities after February 1, 2020, who have been diagnosed with COVID-19. “The Vaccine Class consists of all prisoners housed in ODOC facilities who have not been offered a COVID-19 vaccine,” Judge Beckerman noted.

Once a vaccine became available, Governor Brown and OHA established the state’s COVID-19 Vaccination Plan. The first phase — Phase 1A — is divided into four subgroups. Group 2 includes: all staff, contractors and residents of long-term care facilities and other similar congregate care sites; individuals who work in a correctional setting; and a few other groups.

Prisoners were to be included in Phase 1B, which meant that they would not receive a vaccination until sometime after an estimated 919,000 Oregon teachers and seniors are vaccinated. “They will be sometime after all seniors are eligible,” said ODOC spokesperson Jennifer Black. “So in March.” OHA put that date closer to April or May.

Vaccinations were made available to all 4,400 ODOC employees beginning December 28, 2020. “ODOC strongly encourages (but does not require) its staff and contractors to be vaccinated,” noted Judge Beckerman.

“Initially, ODOC estimated that approximately fifty-five percent of staff would accept the vaccine when offered to them,” Judge Beckerman found. “To date, ODOC has administered only 1,500 first doses, which constitutes approximately thirty-four percent of its staff and contractors, a lower number than expected.”

In contrast, on January 16 and 17, 2021, ODOC mistakenly offered vaccines to 1,558 prisoners who were older than 60 or who had medical vulnerabilities. “Of those offered the vaccine, 1,343 prisoners chose to be vaccinated for an acceptance rate of eighty-six percent,” according to Beckerman. “An additional 316 adults under age 60 received the vaccine because there were leftover doses.” Yet, the remaining O DOC prisoners — about 10,414 people — were not offered a COVID-19 vaccine and no plan had been developed for them to receive one.

On January 21, 2021, Plaintiffs’ attorneys filed a motion for provisional class certification of the Vaccine Class and a motion for a preliminary injunction (Pl) requiring Defendants to immediately vaccinate the remaining ODOC prisoners.

“While many Oregonians are anxious to be vaccinated as soon as possible, and there are competing reasons why different groups might want to be moved up the list, no one can dispute the evidence that incarcerated Oregonians are at acute risk of infection,” said Juan Chavez, an attorney with the Oregon Justice Resource Center (OJRC), who represents the prisoners. Noting that prisoners cannot socially distance from others, Chavez argued that the state “should be compelled to offer vaccinations to all people in custody as soon as possible to protect their health and that of the wider community.”

Courtney Campbell, a professor of medical ethics at Oregon State University for 30 years agrees. Since the risk of infection is so much higher than the general public, he believes the argument for vaccinating prisoners is compelling.

“One of the fundamental values of our society is the moral equality of individual persons,” he said. “People who violate laws lose some of their freedoms, but it doesn’t mean depriving them of healthcare that could benefit them. That isn’t part of their prison sentence. These people were not imprisoned with the goal of hastening their deaths.”

Following a February 2, 2021, hearing, Beckerman issued a 34-page order, ruling in Plaintiffs’ favor later that day. The court first found that “Plaintiffs have met Fed.R.Civ.P. 23(a) and 23(b)(2)’s requirements provisionally to certify the Vaccine Class.”

Beckerman then turned to the PI motion.

“Plaintiffs are not asking the Court to enjoin Defendants from offering the vaccine to teachers. Rather, they request that Defendants allow (prisoners) to stand in the same line,” Beckerman observed. “The narrow question before the Court is whether prioritizing those living and working in congregate care facilities and those working correctional settings to receive the vaccine, but denying the same priority for those in living in correctional settings, demonstrates deliberate indifference to the health and safety of those relying on the state’s care.”

Turning to the merits of Plaintiffs’ Eighth Amendment claim, “the Court agrees that the COVID-19 vaccine is a ‘serious medical need’ for” prisoners. “It is clear that Defendants are aware of the serious risk that COVID-19 poses to (prisoners), and the critical role that vaccines play in controlling the spread of the virus.”

Beckerman rejected Defendants’ ridiculous argument that “it is reasonable and important to vaccinate correctional workers before (prisoners) because they are a primary source of infection.”

“First ... Defendants 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 to protect against infection,” Beckerman found.

More importantly, however, the judge found that “even assuming that vaccinated (guards) cannot spread the virus to prisoners ( an assumption public health experts have not yet endorsed), vaccinating only one of every two or three correctional staff is inadequate to stop the spread of COVID-19 in the prisons.”

“Simply put, Defendants are well aware of the risks of serious harm to both correctional staff and (prisoners) and have chosen to protect only the staff,” Beckerman declared. “By prioritizing those working in correctional settings over

(prisoners) living in correctional settings, and by prioritizing those living and working in other congregate care settings over (prisoners) living in a congregate care setting, Defendants have demonstrated deliberate indifference to the serious risk of harm faced by” prisoners.

The court ultimately found that Plaintiffs are likely to prevail on the merits, they suffer a significant likelihood of irreparable harm, and the balance of equities and public interest weigh in favor of vaccinating prisoners as soon as possible. As such, she entered a preliminary injunction, ordering Defendants to vaccinate all prisoners as if they had been included in Phase IA, Group 2, of Oregon’s Vaccination Plan.

“There’s a lot of elation in our office mixed with the heavy hearts of having seen what we had seen unravel in ODOC over the last year,” said Chavez. “This will save an incredible amount of lives.”

“As far as jumping the line ahead of anybody, they should’ve been vaccinated already,” he said. The order simply allows them to “stand in the same line” as others in congregate living facilities with a high risk of COVID-19 infection. Although that feels like a “significant sign of hope,” Chavez correctly notes that there is still a lot of work to do.

Defendants chose not to appeal the ruling and to immediately comply. On February 10, 2021, 5,000 of ODOC’s 10,414 non-vaccinated prisoners received their first dose of the Moderna vaccination, with plans for another 5,000 prisoners to receive their vaccines the next week. Notably, Governor Kate Brown recognizes that the ruling also extends to juvenile prisoners confined within Oregon Youth Authority facilities and prisoners confined within local jails across Oregon’s 36 counties. See: Maney v. Brown, USDC No. 6:20-cv-00570-SB (D. Or. 2.2.21).

 

Sources: The Oregonian/Oregon Live, Statesman Journal

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