By Bill Wichert

Law360 (April 20, 2021, 10:48 PM EDT ) Cumberland County 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, an ex-corrections officer said Tuesday at a New Jersey federal court hearing on inmates' proposed class action over the facility's conditions.

During a Zoom hearing on the inmates' demand for injunctive measures to combat the spread of COVID-19 at the jail, Ian Gross testified that the New Jersey facility "took what the CDC guidelines said, put it on a piece of paper and signed it as if it was their own."

Gross resigned as a corrections officer at the jail in February, when the inmates claim the facility first instituted a COVID-19 policy.

The inmates' pro bono attorney, Jeffrey M. Pollock of Fox Rothschild LLP, asked Gross about whether, between March 2020 and when he stepped down in February, there was a policy that "the jail articulated that the corrections officers should be exercising regarding COVID-19."

"Negative," Gross replied. "Everything was more, 'CDC. Let's do CDC.'"

A current corrections officer at the jail, Donald Carter, later testified that the jail didn't go far enough in protecting inmates and staff by relying on CDC guidelines.

"They'd rather keep the CDC guidelines and use that as a gold standard. That is not a gold standard within the jail setting. That's only a foundation to build from," Carter said. "You need a policy and procedure."

The former and current officers took the virtual witness stand in support of the inmates' claims that the jail in Bridgeton has failed to adequately protect them and others from COVID-19. A group of inmates initiated the action on a pro se basis in June. After U.S. District Judge Noel L. Hillman ultimately appointed Fox Rothschild 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 Judge  Hillman 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.

But Warren's attorney, Gregg L. Zeff of Zeff Law Firm LLC, on Tuesday pushed back on the officers' criticism about the level of COVID-19 guidance provided by the facility, noting that jail officials provided officers with a series of memos related to safety measures amid the pandemic.

Those memos were placed in an electronic software program called PowerDMS and were supposed to be read during "roll calls," according to Zeff.

"Shame on the officer for not following the rules if they don't hear it at the roll call or look at it on the DMS, right?" Zeff asked Gross, prompting an objection from Pollock.

Zeff withdrew the question and asked Gross, "That would be a negligent officer that doesn't listen to the roll call or go on the DMS, wouldn't it?"

"That's your opinion," Gross replied.

Zeff also stressed that members of the officers' union did not notify jail officials in writing about their concerns regarding inmate conditions with respect to COVID-19.

On a related note, Zeff also pointed out how Gross did not raise concerns about how officers weren't practicing social distancing in a dining room. Gross indicated that the jail had said social distancing was important, but "no one was enforcing the rules."

After Pollock objected to Zeff's inquiry on the grounds that the case is about the inmates and not the corrections officers, Zeff said such issues are "highly relevant to the position that all of these things that he says weren't done by the jail weren't reported to the jail."

"It goes ... to the notice to the jail that he thinks there's a problem," Zeff said.

Judge Hillman found such testimony to be very relevant — but in a different way.

"If the jail administration is not enforcing the rules as it relates to the officers, that seems to me that that's some evidence that they may not be enforcing the rules as it relates to the protection of the inmates," the judge said. "It's a double-edged sword."

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 Janice Carter Brown.

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