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Federal District Court Orders All CDCR Employees be Vaccinated

by Douglas Ankney

On September 27, 2021, the United States District Court for the Northern District of California ordered implementation of the Receiver’s recommendations that “(1) access by workers to CDCR institutions be limited to those workers who establish proof of full vaccination or who have established a religious or medical exemption to vaccination and (2) incarcerated persons who desire to work outside of the institution or to have in-person visitation must be fully vaccinated against COVID-19 or establish a religious or medical exemption.”

Since 2005, the California prison medical care system has been under federally-ordered receivership [See PLN, Mar. 2006, pg.1]. COVID-19 falls under the Receiver’s authority. Until the dispute over mandatory vaccination, Defendants Gavin Newsom and others, including California Department of Corrections and Rehabilitation (CDCR) employees, followed the Receiver’s recommendations. Beginning in April 2020, the Court had conducted regular case management conferences focused almost exclusively on pandemic management that were attended by the parties and the California Correctional Peace Officers Association (CCPOA), the union which represents guards. Defendants cooperated with the Receiver by implementing measures to distance prisoners from one another; implementing a transfer matrix to reduce risk of transmission caused by movement of prisoners; implementing staff testing; setting aside isolation and quarantine space; and implementing measures to encourage staff and prisoners to be vaccinated.

Approximately 75% of prisoners and health care staff were currently vaccinated, and about 48% of custody staff were vaccinated. Despite the concerted efforts of the parties and the CCPOA, the overall staff vaccination rate statewide was 55%, with rates at 30% at several institutions and as low as 18% at one institution.

The evidence revealed that the overwhelming majority of COVID-19 cases enter prisons via prison staff. Between May 2021 and September 2021 at least 55 outbreaks of COVID-19 were traced to staff. Altogether, more than 50,000 prisoners and 20,000 employees had become infected during the pandemic, resulting in 240 prisoner deaths and 39 staff members’ deaths statewide. This evidence prompted the Receiver to make the above recommendations regarding mandatory vaccinations.

Defendants and the CCPOA opposed the recommendations, arguing in part that the most effective way to protect the prisoners would be to make vaccinations mandatory for all prisoners.
But the Court rejected that argument, explaining:

“Through September 1, 2021, 385 fully vaccinated patients in CDCR custody have suffered COVID-19 breakthrough infections, and 94 of those patients had a COVID risk score of 3 or higher, indicating a high risk of severe disease. One patient who CCHCS [California Correctional Health Care Services] believes was fully vaccinated has died of COVID-19. Other patients with breakthrough infections have also experienced serious symptoms and there are early indications that some may have long-term symptoms.”

The Court determined that the Defendants’ failure to vaccinate all prison staff entering CDCR facilities demonstrated deliberate indifference under the Eighth Amendment. To establish an Eighth Amendment claim “based on a failure to prevent harm, the inmate must [first] show that he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825 (1994). Defendants did not dispute the risk of serious harm that COVID-19 posed to the prisoners and the community at large.

The second prong of the Eighth Amendment analysis required Plaintiffs to show that Defendants “have a sufficiently culpable state of mind,” which in the instant case meant demonstrating the Defendants knew “that inmates face a substantial risk of serious harm and disregarded that risk by failing to take reasonable measures to abate it.” Farmer.

Defendants in this case had taken actions in the past to abate the harm. But now that science and the evidence had shown vaccination to be one of the best methods—perhaps the best method—to protect prisoners from the serious risk of harm, it was unreasonable to not require vaccination.

Accordingly, the court ordered the Receiver’s recommendations be implemented. The court also recommended that the Receiver examine the evidence on whether mandatory vaccination of all prisoners be implemented. The Defendants and the CCPOA indicated they planned to appeal. See: Plata v. Newsome, USDC, ND CA, Case No. 4:01-cv-01351-JST.

Editors’ Notes: This case continues to unfold as we go to press with notices to appeal Judge Tigar’s ruling leaving the requirement in limbo. Reporting shows CCPOA contributed $1.75 million to Newsom’s recall defense. On October 14, 2021 Kern County Superior Court Judge Bernard Barmann issued a temporary restraining order that will keep the state from enforcing an August 19 Public Health Department order requiring prison staff to be fully vaccinated. Barmann’s temporary restraining order shields correctional officers from discipline while the court weighs the injunction. On October 22, 2021, Judge Barmann dissolved his previous ruling and reinstated the court order requiring prison guards to get vaccinated, but his new ruling only affects guards who work in or around health care settings in prisons. See: California Correctional Peace Officers Association et al v. California Dept of Public Health, Kern County Superior Court, Case No. BCV-21-102318. 


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Related legal cases

California Correctional Peace Officers Association et al v. California Dept of Public Health

Plata v. Newsome