ACLU Helps Inmates File Virus Lawsuits in Texas, Tennessee

By Katie Pohlman
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Law360 (May 21, 2020, 8:26 PM EDT) -- Roughly 2,000 county jail inmates in Texas and Tennessee are seeking help from state and federal judges to force jails to either better enforce social distancing guidelines or release inmates to slow the spread of COVID-19 in detention facilities, according to two lawsuits filed this week.

In Texas state court, a proposed class of 1,800 "medically vulnerable" inmates petitioned a Dallas County District Court on Thursday to force Dallas County Sheriff Marian Brown to reduce the number of inmates housed in jail pods and maintain a six-foot distance between inmates. In the first footnote of the petition, the proposed class clarified that they aren't requesting any inmate releases, just that Brown perform her "mandatory, ministerial duty" to keep inmates safe.

"The sheriff's exposure of thousands of medically vulnerable detainees (and 1,300 staff) to the threat of severe illness and death violates their right to 'due court of the law,' inflicts on them 'cruel and unusual punishment,' and ignores the sheriff's mandatory duties to 'abate a public health nuisance in or on a place [she] possesses as soon as [she] knows that the nuisance exists' and to maintain the jail 'in a clean and sanitary condition,'" the inmates said.

Meanwhile, in the Western District of Tennessee, a proposed class of about 300 inmates in a Memphis-area jail have asked a federal judge to require Shelby County Sheriff Floyd Bonner Jr. and his office to identify the most vulnerable inmates and release those who are being held because they can't afford bond or for allegedly committing a technical violation of parole or probation, according to a complaint filed Wednesday.

The American Civil Liberties Union, and its Texas and Tennessee units, are involved in the lawsuits.

Medically vulnerable inmates are described in both lawsuits as people over the age of 50 or those who have lung disease, heart disease, chronic liver or kidney disease, diabetes, hypertension, compromised immune systems, blood disorders, and other health issues. The three named inmates in the Dallas County suit all have asthma, among other issues, while the two named inmates in the Tennessee suit are either over 50 years old or have diabetes, according to court documents.

The Dallas County Jail has seen more than 300 confirmed cases of COVID-19, the disease caused by the novel coronavirus, according to court documents. The inmates claim that jails are the third-highest source of COVID-19 cases in the county behind community spread and long-term care facilities. Dallas County has seen almost 8,000 confirmed cases and 191 deaths, according to data from Johns Hopkins University.

Despite cases among inmates nearly tripling in a few weeks' time, Brown hasn't enforced social distancing practices, the inmates said. They claim they are still living in pods, which can house up to 64 inmates who sleep in bunk beds within a few feet of each other, and are sharing common areas like toilets, showers and tables.

"She has even failed to update the jail's policy — already a decade old — for handling infectious diseases within the jail," the inmates said.

As of the end of April, the Shelby County Jail in Tennessee had 192 confirmed COVID-19 cases, and one employee had died from the disease, according to court documents. Shelby County has almost 4,000 confirmed cases and 87 deaths, according to data from Johns Hopkins University.

Thomas H. Castelli, one of the ACLU Foundation of Tennessee lawyers representing the inmates, said in a statement released Wednesday that inmates shouldn't have to fear death, especially when 86% of them are there on a pretrial basis.

"As public health experts have consistently warned, jails are dangerous incubators for this disease — threatening the health of those who live and work behind bars as well as their surrounding communities," Castelli said. "Incarceration should not be a death sentence."

In April, the ACLU warned that the number of fatalities from COVID-19 could be almost twice as high as the predicted 100,000 if governments didn't drastically lower the jail population.

An epidemiological model from the ACLU and researchers from Washington State University, the University of Pennsylvania and the University of Tennessee estimated that about 99,000 people both in jail and in surrounding communities could be saved if arrests were halted for all but the most serious crimes, such as murder, rape and aggravated assault, and release rates were doubled for those already detained.

The lawsuits in Texas and Tennessee are the latest of several lawsuits brought by the ACLU that aim to reduce inmate populations in various jails and prisons as well as the detainee population in U.S. Immigration and Customs Enforcement facilities. According to court records, those cases are still pending.

Representatives for the Shelby County and Dallas County sheriffs' offices didn't immediately respond to requests for comment Thursday.

The Texas inmates are represented by Barry Barnett, Adam Carlis, Michael Gervais and Rakim Brooks of Susman Godfrey LLP; Andrea Woods and Henderson Hill of the ACLU; Brian Klosterboer, Adriana Pinon and Andre Segura of the ACLU Foundation of Texas; Katherine Hubbard and Elizabeth Rossi of the Civil Rights Corps; and Kim T. Cole of Next Generation Action Network.

The Tennessee inmates are represented by Brice M. Timmons of Black McLaren Jones Ryland & Griffee; Josh Spickler and Wesley Dozier of Just City; Steven John Mulroy of the University of Memphis Cecil C. Humphreys School of Law; Andrea Woods, Amreeta S. Mathai, Zoe Brennan-Krohn and Maria Morris for the ACLU; Thomas H. Castelli and Stella Yarbrough of the ACLU Foundation of Tennessee; and Joseph Bial, Darren Johnson, Jonathan M. Silberstein-Loeb, David Kimball-Stanley, Adrienne Lee and Avery Medjuck of Paul Weiss Rifkind Wharton & Garrison LLP.

Counsel information for the sheriffs' offices wasn't immediately available Thursday.

The Texas case is David Daniels et al. v. Dallas County Sheriff Marian Brown, case number DC-20-07112, in the 14th District Court of Dallas County, Texas.

The Tennessee case is Favian Busby et al. v. Floyd Benner Jr. et al., case number 2:20-cv-02359, in the U.S. District Court for the Western District of Tennessee.

--Additional reporting by Stewart Bishop, Brian Dowling and Sarah Martinson. Editing by Gemma Horowitz.

For a reprint of this article, please contact reprints@law360.com.

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