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Law360 (May 6, 2021, 4:01 PM EDT ) A New Jersey federal judge signed off Thursday on appointing a special master to review conditions at the Cumberland County Jail under an agreement between county officials and pretrial detainees in the inmates' proposed class action over claims the facility has failed to adequately protect them against the spread of the coronavirus.
Following several days of testimony over two weeks with respect to the inmates' bid for injunctive measures, U.S. District Judge Noel L. Hillman said during a Zoom hearing that he would approve a consent order to have a special master examine the COVID-19 testing and contact tracing, quarantining practices and other coronavirus-related issues at the jail.
"We fight hard, but we fight fair, it seems to me," said Judge Hillman, adding that the agreement reflects "a good faith effort by the county — whatever mistakes may have been made in the past — to move forward and to put in place the best jail the county can run under the difficult circumstances we all face."
"And I think having a monitor here makes a lot of sense in trying to achieve that goal," the judge said.
The judge also noted he was struck by how inmates have said, "'I know this is a jail, but... .'" The agreement will "go a long way in addressing the 'but's,' the things that arise, that have caused concern," Judge Hillman said.
The proper running of the jail is a "matter of public concern" for the citizens of the county and for the state as a whole, the judge added. Some of the pretrial detainees, if convicted, will be moved to a state prison, some will return to the courthouse for bail proceedings and trial and some could be found innocent and be released into the community, the judge said.
To the extent the jail can minimize the risk of infection both within the facility and to the county in general and "to the extent it protects the inmates, it protects the staff, it protects the family members of the pretrial detainees once released and protects all of those who serve in government in Cumberland County and the community as a whole, this is a win-win settlement," Judge Hillman said.
A group of inmates initiated the action on a pro se basis in June. After Judge Hillman ultimately appointed Fox Rothschild LLP as the plaintiffs' counsel, the firm on Jan. 29 launched an amended complaint against Warden Charles Warren and a motion for injunctive relief.
In addition to having an independent monitor assess the facility's conditions, the inmates have asked the judge to order the jail to take a series of measures, including providing every inmate with an N95 mask and performing immediate COVID-19 testing for all inmates and staff.
The inmates and the jail have offered competing pictures of life inside the Bridgeton facility.
For example, the jail claimed COVID-19 testing "has been provided immediately upon the determination that an inmate has symptoms," but the inmates said the jail has denied "requested testing to inmates who have been exposed to COVID-19 and/or are exhibiting symptoms," according to court documents.
The case also has involved claims that the jail operated without a policy for addressing the risk of COVID-19 and instead presented U.S. Centers for Disease Control and Prevention guidelines as its own, the facility housed inmates who tested negative near an inmate who tested positive and one inmate died after contracting the coronavirus at the jail.
The special master is expected to offer a neutral take on the coronavirus-related practices unfolding inside the jail.
That individual — whose services will be paid for by the county — is slated to have "reasonable and appropriate access" to the jail, staff members and inmates; examine the facility's COVID-19 procedures; and periodically report on his or her findings, Fox Rothschild's Jeffrey M. Pollock said during Thursday's hearing. The parties will be able to respond to the findings and the judge will ultimately decide whether to accept them, Pollock said.
In addition to COVID-19 testing and contact tracing and quarantining and isolation practices, the issues to be examined by the master will include the ventilation of the facility, social distancing and the availability and sufficiency of hand sanitizer, masks and other personal protective equipment, according to Pollock.
Pollock noted that "the parameters of what is significant for COVID may change over time."
"The idea is that ... other things may be added at the master's discretion, because the fact is this is a changing situation," Pollock said.
The inmates are represented by Jeffrey M. Pollock, Karen A. Confoy and Paul W. Kalish of Fox Rothschild LLP.
Warren is represented by Gregg L. Zeff of Zeff Law Firm LLC.
The case is Brown et al. v. Warren et al., case number 1:20-cv-07907, in the U.S. District Court for the District of New Jersey.
--Editing by Stephen Berg.
For a reprint of this article, please contact reprints@law360.com.
