by Mark Wilson
On March 15, 2022, the U.S. Court of Appeals for the Ninth Circuit vacated a lower court’s order that California prison officials implement a mandatory COVID-19 employee vaccination policy. The Court concluded that prison officials were not deliberately indifferent in not requiring all employees to get vaccinated, especially faced with the threat of mass employee resignations if a vaccine requirement were put in place.
State prisoners and the state’s court-appointed Receiver filed a challenge to the COVID-19 policy of the California Department of Corrections & Rehabilitation (CDCR) in federal court for the Northern District of California, which is monitoring a long-running class-action over allegedly insufficient health care in state prisons. [See: PLN, Mar. 2006, p.1.]
In their vaccine-related challenge, Plaintiffs in the case argued that CDCR was deliberately indifferent to the risk that prisoners might contract the disease, asserting specifically: (1) that CDCR ignored the Receiver’s conclusion that mandatory employee COVID-19 vaccination “is necessary to provide adequate health protection for incarcerated persons” because of “the rapid and ongoing spread of the Delta variant in California;” (2) that “once COVID-19 infection has been introduced into a prison, it is virtually impossible to contain;” and (3) that employees “are the primary vector for introducing the virus” to prisons. They also argued that CDCR’s other COVID-19 mitigation measures were insufficient, resulting in an infection rate 2.5 times higher than that of California’s general population at the peak of the Omicron wave.
The district court adopted the Receiver’s recommendation and ordered CDCR to mandate employee COVID-19 vaccination. Gov. Gavin Newsom (D) and CDCR Secretary Kathleen Allison appealed, and the state prison guards’ union, the California Correctional Peace Officers Association, intervened to add its fears that hundreds of guards were going to quit rather than submit to the vaccination requirement.
The Ninth Circuit reversed, holding that “CDCR’s COVID-19 vaccination policy was not deliberately indifferent because the agency took significant action to address the health risks posed by COVID-19.” It found that “Defendants did not ignore or fail to respond to the risk of COVID-19 generally, nor did they disregard the importance of vaccination as a key mitigation measure specifically.”
Notably, CDCR made “vaccines and booster doses available” to prisoners and guards, while also enacting “policies to encourage and facilitate staff and prisoner vaccination.” Staffers were also required to don “personal protective equipment,” and unvaccinated employees underwent regular testing for the novel coronavirus that causes COVID-19.
CDCR “also employed other widely accepted mitigation measures … including symptom screening for all individuals entering the prisons; enhanced cleaning in the facilities; adopting an outbreak action plan; upgrading ventilation; establishing quarantine protocols for medically vulnerable patients;” plus prisoners were also subjected to policies requiring testing, masking, and physical distancing.
Noting that adopting “an approach that is not the most medically efficacious does not itself establish deliberate indifference,” the Court found that “the record does not include evidence demonstrating how much more effective a vaccine mandate would be” compared to CDCR’s other mitigation measures.
“The Receiver’s authority extends to the prison’s health care system, not overall prison administration,” the Court noted, whereas “Defendants and Intervenor stress that over 700 correctional officers are currently eligible to retire, and suggest some correctional staff may do so rather than continue to work in the face of a vaccine mandate.”
The district court had dismissed this staffing concern as “speculative,” but the Ninth Circuit said that was wrong without making specific findings about the total number of CDCR guards, the impact of losing so many on CDCR’s ability to safely operate its prisons and provide programming, the likelihood that retirement-eligible staff would quit rather than receive vaccinations, or CDCR’s ability to hire replacement staff. “In the absence of such findings,” the Court said it “must defer to the prison’s balancing of administrative concerns.”
Thus the Court vacated the district court’s order, concluding that “Plaintiffs did not meet their burden of establishing Defendants’ vaccination policy was deliberately indifferent.” Plaintiff prisoners were represented by attorneys from Prison Law Office in Berkeley as well as Neil Sawhney with Gupta Wessler PLLC in San Francisco. See: Plata v. Newsom, 2022 U.S. App. LEXIS 11163 (9th Cir.).
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Related legal case
Plata v. Newsom
|Cite||2022 U.S. App. LEXIS 11163 (9th Cir.)|
|Level||Court of Appeals|