By Bill Wichert

Law360 (February 24, 2021, 8:40 PM EST) -- A New Jersey federal judge stopped short Wednesday of appointing an independent monitor and ordering measures to address the spread of COVID-19 at the Cumberland County Jail after inmates and jail officials offered sharply different takes on the conditions there, saying he needed more information to assess whether a crisis is unfolding at the facility.

During a Zoom hearing on the inmates' bid for such injunctive relief in a proposed class action, U.S. District Judge Noel L. Hillman said he needs "more facts" and a better understanding of the coronavirus-related policies in place at the jail in determining whether they are adequate and if officials have not followed them.

Judge Hillman noted that "courts have been generally reluctant even in the extraordinary circumstances of COVID to micromanage or intrude into the operation of jails, which is a difficult business to begin with," but later added that he's not interested in "making a bad situation worse if it's actually a bad situation."

The judge directed the parties to engage in expedited discovery and said he also would be willing to hear testimony from the inmates behind the suit and others. After a jail attorney indicated the facility is arranging to have inmates and staffers vaccinated if they're willing, the judge said the vaccinations might moot many of the issues.

"I don't think anyone here would be sad to hear, 30 days from now, 60 days from now, that the crisis has been averted," Judge Hillman said. "I'm not convinced there is one. I'm not convinced there's not."

A group of inmates initiated the action on a pro se basis in June. After the judge 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, alleging the jail has failed to adequately protect inmates from COVID-19.

In addition to having an independent monitor assess the facility's conditions, the inmates 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.

But the inmates' version of life inside the Bridgeton jail is at odds with the picture cast by jail officials.

For instance, the inmates said in their motion that all inmates have been denied "access to clean, effective, adequate masks," whereas the jail countered in a brief that "a box of 50 to 100 new masks is always on each block and available to inmates on request."

The jail also 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.

"We do have vehemently different versions of the facts," Fox Rothschild's Jeffrey M. Pollock told the judge during Wednesday's hearing.

Pollock accused the jail of not following its own guidelines to combat the spread of the virus. As one example, he stressed that one of the plaintiffs, who has tested negative, is being housed in a cell with an inmate who tested positive.

"My understanding on paper is that the policy is that infected inmates are kept separate from uninfected inmates," Pollock told the judge. "My understanding of the practice is that they don't follow their own policy."

Judge Hillman later questioned jail attorney Gregg L. Zeff of Zeff Law Firm LLC about the scenario described by Pollock. Zeff said "we will research it and, if that is happening, we will correct it."

"You would agree with me ... that would not be sound policy?" the judge asked Zeff.

Zeff replied, "To have an infected person in the same cell as someone who is not infected? Yes, I would agree with you that that shouldn't be happening." The judge added that "that would probably violate the ... jail's own policies," and Zeff said it would.

Among other lingering questions, the judge also expressed uncertainty about the process for inmates to request a COVID-19 test. One of the prongs for injunctive relief is irreparable harm, meaning the judge needs to have "some sense of the immediacy of this," he said.

"If those requests are ignored, that's one world, and if they are assessed and [there is] a reasonable process in place to have them tested, that's another world," Judge Hillman said. "I'm just not clear, again, as to which world we're in."

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 Archie et al. v. Smith 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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