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Law360 (December 17, 2020, 9:57 PM EST ) An Oregon federal judge has refused to grant the state's request for a partial win in a suit brought by inmates who say officials violated the Eighth Amendment and negligently responded to the coronavirus pandemic, rejecting the state's qualified immunity argument.
In Tuesday's opinion, U.S. Magistrate Judge Stacie F. Beckerman spurned an argument by Gov. Kate Brown and other state officials that because of the novelty of COVID-19, no previous case has clearly established the appropriate constitutional response to the pandemic. Judge Beckerman sided with the inmates' argument that existing law provided the state with fair warning of its responsibility to protect them from heightened exposure to a contagious disease.
"The law is clearly established that individuals in government custody have a constitutional right to be protected against a heightened exposure to serious, easily communicable diseases, and the court finds that this clearly established right extends to protection from COVID-19," Judge Beckerman said.
Judge Beckerman added that the law does not support qualified immunity for government officials who fail to protect those in their custody from a new, serious communicable disease, "as opposed to a serious communicable disease of which they were previously aware." She said that to hold otherwise would provide qualified immunity to defendants even if they did nothing in response to the pandemic.
A group of six inmates in Oregon correctional facilities and one former inmate claimed in their second amended complaint — filed in June — that state officials violated the Eighth Amendment by subjecting them to cruel and unusual punishment by failing to provide adequate health care during the pandemic and operating correctional facilities without the capacity to treat, test or prevent the spread of COVID-19.
The inmates also said the state committed negligence in failing to carry out proper preventative measures, according to the opinion.
Judge Beckerman said that as of Dec. 15, 1,641 adults in custody have tested positive for COVID-19, and 19 have died from the virus. She said 458 staff members have also tested positive, noting that only one facility has not reported any confirmed inmate or staff cases.
The inmates claimed, among other things, that they cannot socially distance themselves from one another; testing for COVID-19 has been denied or delayed despite widespread symptoms and illness; staff wear masks incorrectly and inconsistently, even after a July mask mandate; and correctional officers work shifts in both quarantined and non-quarantined units, due to a staffing shortage.
The inmates also said that those housed in quarantined units mix with non-quarantined inmates at work placements. And the state failed to enforce or acknowledge COVID-19 protocols or precautions during four prison evacuations due to wildfires in September, according to the opinion. Inmates said were transported in groups in vans, congregated with hundreds upon arrival and slept with up to 350 other inmates spaced several inches apart, adding that more inmates tested positive after returning from evacuation.
The state had moved for partial summary judgment on the damages portion of the Eighth Amendment claim and the entirety of the state law negligence claim.
Judge Beckerman said that material disputes of facts remain regarding the merits of the inmates' Eighth Amendment claim, noting that discovery is ongoing, COVID-19 continues to affect Oregon's correctional facilities and inmates "continue to die."
Oregon also argued that the court should grant it a quick win on the inmates' negligence claim, saying discretionary immunity protects it from liability because the allegations challenge policy decisions "based on the exercise of judgment, involving public policy, and made by individuals with authority."
Judge Beckerman agreed that discretionary immunity protects the state from negligence liability for public policy decisions made by those with authority, but added that the inmates' negligence claim challenges more than just high-level policy decisions. The state is not shielded by discretionary immunity for various alleged negligent actions, according to the opinion.
Counsel for the inmates did not immediately respond to a request for comment Thursday, and a representative of the Oregon Department of Justice declined to comment on ongoing litigation.
The inmates are represented by Juan C. Chavez, Franz Bruggemeier and Alex Meggitt of the Oregon Justice Resource Center, Brittney Plesser of the Oregon Innocence Project, and David Sugerman and Nadia Dahab of Sugerman Law Office.
The state is represented by Andrew D. Hallman, Tracy Ickes White and Yufeng Luo of the Oregon Department of Justice.
The case is Maney et al. v. Brown et al., case number 6:20-cv-00570, in the U.S. District Court for the District of Oregon.
--Editing by Adam LoBelia.
For a reprint of this article, please contact reprints@law360.com.
