Just in Time for the ‘Omicron Winter’
by David M. Reutter
On November 10, 2021, one day before first detection of the Omicron variant of the coronavirus that causes COVID-19, a federal district court in Hawaii approved a settlement in a lawsuit filed over the response to the pandemic by the state Department of Public Safety (DPS), which operates its jails and prisons. Just in time for the “Omicron winter”—as the new variant quickly became the dominant strain of infection in the U.S.—the settlement established measures to protect both pretrial detainees and prisoners from the disease.
The order by the U.S. District Court for the District of Hawaii also came just months after it granted preliminary class certification and a preliminary injunction (PI) in the case, which was filed in state court on April 28, 2021, and removed to federal court by the defendants on June 8, 2021. Granting the PI on July 13, 2021, the Court provisionally certified two classes of plaintiffs, one consisting of present and future prisoners in Hawaii prisons and another for present and future pretrial detainees in Hawaii jails. Each class also included a medical subclass of those more vulnerable to COVID-19.
The Court began its factual history by noting that “Hawaii’s state prisons and jails have been plagued by COVID-19 outbreaks at five of its eight facilities, resulting in the infection of more than 50% of the inmate population (1,532 inmates out of a population of approximately 3,000) and 272 DPS staff, [with] seven deaths.”
During a late May 2021 outbreak at Hawaii Community Correctional Center, two-thirds of the prisoner population contracted COVID-19 within three weeks, and 23 staff also tested positive. In the face of the threat, DPS created a Pandemic Response Plan, but plaintiffs alleged it was not being followed. The Court heard testimony that:
• DPS failed to screen or test all new detainees and prisoners;
• Proper cleaning supplies and soap were not supplied in housing units;
• DPS’ quarantine process involved mixing prisoners with unknown COVID-19 status in crowded intake cages and living areas, as well as the visitor’s room;
• Prisoners were forced to eat while crowded “shoulder-to-shoulder” in packed spaces; and
• Mask-wearing by guards was “inconsistent at best with minimal enforcement, if at all.”
The evidence also showed that prisoners in certain areas had restricted access to restrooms and water, leaving some to urinate on themselves or into cups.
To the Court this was subjective evidence that DPS had exhibited deliberate indifference to prisoners and detainees’ health or safety by failing to take “reasonable available measures to abate the risks caused by the foregoing conditions, knowing full well—based on multiple prior outbreaks—that serious consequences and harm would result” to older and medically vulnerable prisoners and detainees.
“Policies are meaningless if they are not followed,” the Court wrote.
After finding the classes met all the requirements for a preliminary injunction, the Court ordered DPS to ‘fully comply’ with its Pandemic Response Plan, with a focus in particular on good health habits, environmental cleaning, social distancing and mask use, intake screening, personal protective equipment, medical isolation/co-horting (of symptomatic persons), quarantine (of asymptotic exposed persons), and surveillance of new cases.
DPS was also ordered to provide sanitary living conditions, including regular access to toilets and water. Additionally, guards were prohibited from restricting access to grievance forms and preventing submission of them on COVID-19 issues. See: Chatman v. Otani, 2021 U.S. Dist. LEXIS 130465 (D. Haw.).
Following that order, the parties participated in multiple conferences with Magistrate Judge Kenneth J. Mansfield before executing a Settlement Agreement on September 2, 2021. In addition to implementing the Pandemic Response Plan, a five-person Agreement Monitoring team was created. The Settlement also implements procedures governing vaccination, testing and sanitation. A further directive was issued to prohibit retaliation against any detainee, prisoner, or staff person who participated in the lawsuit.
Finding the settlement was reasonable, fair, and adequate, the Court approved it on November 10, 2021. In doing so, it noted that Class members did not waive individual monetary claims or claims for injunctive/declaratory relief.
The Court then awarded $250,540 in attorney fees—noting this was only 5% of the $5 million set aside to implement the terms of the injunctive relief—to plaintiffs’ counsel: Eric A. Seitz, Gina May Szeto-Wong, Jonathan M.F. Loo and Kevin A. Yolken of the Law Office of Eric A. Seitz in Honolulu. See: Chatman v. Otani, 2021 U.S. Dist. LEXIS 217443 (D. Haw.).
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Related legal cases
Chatman v. Otani
|Cite||2021 U.S. Dist. LEXIS 217443 (D. Haw.)|
Chatman v. Otani
|Cite||2021 U.S. Dist. LEXIS 130465 (D. Haw.)|