Part 3 of Managing the Risks of COVID-19 in the County Jail Setting

April 15, 2020

Update on Recent COVID-19 Prison Litigation: Money, et al. v. Pritzker, et al. and Mays, et al. v. Dart, et al.

[DISCLAIMER: Nothing in this blog post should be construed as legal or medical advice. Be sure to follow all CDC, IDPH, and IDOC guidance regarding the current COVID-19 pandemic. HC&B is also available for consultation regarding risk management and litigation in this uncertain time.]       

On April 8, on this blog, we examined some of the ongoing litigation against Cook County and the Illinois Department of Corrections regarding conditions within the correctional institutions due to COVID-19.  In the consolidated IDOC cases, the Plaintiffs’ claims for expedited release or transfer were denied. Similarly, the requests for expedited release or transfer were denied in the Cook County case, although the Cook County Sheriff was directed to provide rapid-testing for the virus and create protocols for testing and adapt some of their other protocols in response to the virus.

On April 9, Judge Matthew F. Kennelly entered an order in Mays v. Dart, et al. granting in part and denying in part Plaintiffs’ motion for a temporary restraining order. At the outset, Judge Kennelly recognizes the difficulty of maintaining a detained population in a facility with the sheer size and varied population of the Cook County Jail, especially amidst a global pandemic. The Court only considered the Plaintiffs’ motion for a temporary restraining order, and put to the side their motion for a preliminary injunction, because this relief would require a contested hearing and the presentation of evidence.

On the Plaintiff’s request for immediate release of the sub-class of detainees with pre-existing health conditions pursuant to the federal habeas corpus statute, the Court denied Plaintiffs’ motion on procedural grounds because the Plaintiffs had adequate remedies that they failed to exhaust, including individualized bail hearings. Turning to the merits of Plaintiffs’ Section 1983 civil rights claim, the Court found that Plaintiffs were “reasonably likely to succeed in showing that at least some of the conditions they cite pose an unreasonable risk to their future health.” (Order, at p. 18) (emphasis added). Making this threshold finding, the Court then examined the reasonableness of the Sheriff’s efforts to mitigate the spread of the disease and protect its detained population.

The Court found that the Plaintiffs were not likely to succeed on their claims regarding the identification and medical triage of vulnerable detainees while those detainees were asymptomatic. In part, this is due to CDC guidance to corrections institutions which does not require such testing. However, the Court found that the Plaintiffs were reasonably likely to succeed on their claims regarding intake processes, which still utilized “bullpens,” housing new detainees together, prior to any isolation or observation protocols to screen out potentially ill or contagious detainees. However, the Court recognized the physical conditions of the jail make the prospect of isolation and enforcing social distancing impractical.

With respect to sanitation of the jail, the Court found that the spread of the virus within the jail (over 500 cases as of today) coupled with evidence taken from both detainee and correctional officer affidavits showed that the sanitation procedures taken by the jail, including disinfection procedures and the distressed availability of soap and sanitizer may be unreasonable. Further, while personal protective equipment (“PPE”) is not made available to all detainees, the Court found that it may be unreasonable not to provide facemasks to detainees who are in close contact to symptomatic detainees. The Sheriff had previously only provided symptomatic detainees with PPE. The Court also found that the Plaintiffs were unlikely to succeed on their challenge to the Sheriff’s isolation and quarantine procedures because the Sheriff followed CDC guidance in quarantining positive cases together in a cohort. With respect to testing, Cermak Health Services, the health provider at the jail, had recently been approved to administer rapid-coronavirus testing. The Court found that the failure of the Sheriff to have a policy regarding testing was unreasonable even though the health provider was a separate County entity.

Taking each of these findings, the Court balanced the detainees’ need for immediate relief against the Sheriff’s and the public’s need for safety and security within the jail population. The Court directed the Sheriff to establish a policy for rapid coronavirus testing for symptomatic detainees, and, if enough testing is available, detainees who have been exposed to symptomatic detainees. The Court also ordered the Sheriff to enforce some measure of social distancing with new detainees and not use “bullpens” to hold new detainees during intake and ordered the Sheriff to provide soap or sanitizer to all detainees, and to provide enough sanitation equipment to sufficiently allow staff to clean regularly used surfaces. The Court also ordered the Sheriff to establish a policy for the regular sanitization of such surfaces and sanitization of those surfaces between periods of frequent contact. The Court further required facemasks to be provided to all quarantined detainees. The Court denied the remainder of Plaintiffs’ requests including the release or transfer of detainees who have been exposed to the virus.

The Court required the Sheriff to file a status report by April 13 regarding the Sheriff’s compliance with his Order. In that report, the Sheriff indicated he had suspended the use of “bullpens” during intake procedures, and instead utilizes basement and hallway space, seating new detainees six feet apart during intake. All new detainees are provided a surgical mask during this procedure. The Sheriff also implemented protocols and procedures for both rapid testing and PCR testing. Two rapid-testing machines have been provided to the Jail for its use, but the testing machines have limitations, including a significant number of false negative results. Therefore, the Jail still utilizes the PCR testing in order to validate negative results.

The Sheriff has implemented twice weekly distribution of soap and sanitizer subject to safety concerns, such as hoarding, ingesting, or using the bars of soap as a weapon. The Sheriff further adopted and implemented sanitation procedures for staff. The Sheriff’s Office detailed its difficulties obtaining PPE from federal and private resources, indicating it only has enough masks to last another week. The Sheriff has also implemented measures to utilize cloth masks where appropriate. On April 14, the parties met before the judge, and the Plaintiffs indicated intent to file a motion for expedited discovery regarding their request for a preliminary injunction.

On April 10, Judge Robert M. Dow, Jr., entered an order in Money et al., v. Pritzker, et al. and Money v. Jeffreys, et al., denying the Plaintiffs’ requests for release or transfer from the prisons. It’s important to note two things about the difference in the opinion with respect to IDOC and the County Jails. First, unlike the Mays Plaintiffs (above), the Money Plaintiffs did not challenge the conditions of the prison itself, or seek changes to procedures regarding the cleanliness or utilization of policies to mitigate spread of the virus. Second, there is a difference in the evaluation of the constitutionality of conditions for convicted prisoners and pre-trial detainees. Convicted prisoners are subject to a standard requiring “deliberate indifference” to their medical needs in order for their conditions to be considered unconstitutional. Pretrial detainees merely need to show that their conditions are unreasonable.

Judge Dow evaluated many of the same issues as Judge Kennelly, but his analysis compared the requested relief – release or transfer – of convicted prisoners against the mitigation efforts undertaken by IDOC. Crucially, Judge Dow held that “Plaintiffs have provided no convincing reason for a federal court to intrude here and now—either to issue a blanket order for the release of thousands of inmates or to superimpose a court-mandated and court-superintended process on the mechanisms currently in place to determine which IDOC inmates can and should be safely removed from prison facilities at this time.” (Order, at p. 3).

The Plaintiffs in the IDOC litigation asserted that release was the only effective way to protect vulnerable prisoners from the virus, and the Court rejected this contention. After examining the Plaintiffs’ attempts to retreat from their sweeping request for release of prisoners in subsequent briefing, the Court determined that under any analysis of Plaintiffs’ claims, their lawsuit sought reductions in the prison population through release or transfer, and thus their requested relief was barred by the Prison Litigation Reform Act. (“PLRA”). The Court further found that because release procedures are so highly individualized for each prisoner and the respective risk they pose to society, that he was unable to certify the prisoners’ request for status as class-action plaintiffs.

For the sake of completeness, the Court also considered the merits of Plaintiffs’ requests and found them wanting. The Court found that the Plaintiffs had “no chance of success” given the State’s active attempts to minimize the spread of the virus within their facilities and the work done by the State to identify prisoners eligible for release. The Court also rejected the Plaintiffs’ habeas claims, finding that the state courts offer adequate remedies for the Plaintiffs to seek their release.

The outcomes of these two cases are distinct, and that is due to a combination of the differences in the legal standard and the relief sought by the Plaintiffs. There are a number of lessons to be taken from both cases.

  • Continuously work to improve, and document your efforts to combat the spread of COVID-19. This can include documenting efforts to obtain PPE, or updating your intake protocols to account for the threat of COVID-19. This proved to be one of the factors most considered by Judge Dow in the Money cases in finding that the Plaintiffs had “no chance” at success.
  • To the extent practicable, isolate or quarantine detainees at intake and have appropriate procedures for identifying symptoms or testing symptomatic detainees. Understandably, each County does not have the resources of Cook County with respect to rapid testing, but having protocols in place to identify potentially contagious detainees is paramount to preventing a calamity within a jail setting.
  • Identify ways to promote distancing within the jail. This may require limiting the utilization of dormitory settings, or spreading apart bunks.
  • Have sanitization procedures and work to provide sanitation methods to detainees. Jails may need to stock up on soap and sanitizer during this period, and have stores in the event of future pandemics.
  • Remember, that protecting the detainees is as much about protecting them as it is about protecting your corrections staff and the public at large.
  • Stay up-to-date on CDC guidelines, the Illinois Department of Public Health guidance, and the Governor’s executive orders regarding the outbreak.
  • Lessons can also be learned from how Sheriffs are handling this disease in County Jails around Illinois. On April 9, we published on this blog measures taken by leading Sheriffs across Illinois to protect their jails.

We at HC&B are closely watching these cases and the likely effects on county jails and their populations as a result of pandemic-related litigation. We anticipate that there may be efforts by similar groups of attorneys to seek the early release of pre-trial detainees or convicted offenders serving time in our clients’ jails, or to mandate particular procedures within County Jails perceived as inadequate by detainees. We here at HC&B have the experience and the capability to assist you and your county jail through this difficult time.

The experienced attorneys at HC&B can assist in providing both legal and practical advice in managing the risks of the current pandemic, and preparing for and defending against anticipated litigation. We look forward to meeting the challenges presented by the current pandemic, and providing what assistance we can in keeping our first responders, corrections personnel, law enforcement and the public-at-large safe during this time of crisis. Please contact us if you have any concerns regarding the current pandemic, or questions regarding preparedness for the legal fallout from this unprecedented crisis.

Stay safe,

The Team at HC&B

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