Mass. Jail Not 'Deliberately Indifferent' To Virus, Judge Says

By Brian Dowling
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Law360 (May 19, 2020, 3:30 PM EDT) -- Federal inmates at a Massachusetts county jail have failed to convince a judge that the facility's response to the COVID-19 pandemic amounts to "deliberate indifference," losing a bid to thin out the jail's population through a preliminary injunction.

U.S. District Judge Leo T. Sorokin on Monday denied the motion for emergency relief, saying that the response from Plymouth County Sheriff Joseph McDonald and jail supervisor Antone Moniz did not amount to the type of recklessness needed to back up a claim under the Fifth or Eighth Amendments.

The court said the inmates "have not established that they are likely to succeed in showing that Moniz has been obdurate, wanton, or reckless with respect to that risk, or has otherwise failed to take reasonable steps aimed at preventing or mitigating the risk that COVID-19 presents."

Instead, the judge credited the facility for screening and quarantining new inmates or those returning from an outside activity. He also noted the jail's practice of taking the temperature of staff members before they arrive for a shift and mandating face masks when staff are within six feet of other people.

Lawyers for the inmates — attorneys from Todd & Weld and Wilmer Cutler Pickering Hale & Dorr LLP — failed to refute the many detailed affidavits from the sheriff and the jail, Judge Sorokin found. He said they provided adequate answers to questions about providing masks to inmates, the spacing of beds, mealtime grouping, response to inmates testing positive and cleaning practices.

"Though the petitioners dispute the particulars related to some of these areas, on the present record they have not met their burden of establishing that they are likely to succeed in showing Moniz has been deliberately indifferent to the undeniable risk that COVID-19 could spread quickly and devastatingly," the judge said

While Judge Sorokin declined to grant emergency relief to the inmates, he rejected the respondents' request to toss the class action on the grounds that it was wrongly filed as a habeas corpus case, rather than under a different statute that addresses prison conditions.

Nothing coming out of the U.S. Supreme Court or the First Circuit bars the inmates from challenging the conditions of their confinement as a habeas case, the judge said.

The case is one of several prisoner release actions pending in Massachusetts. In one of the other cases, a federal judge ruled that the U.S. Immigration and Customs Enforcement did act with "deliberate indifference" to the health risks of detainees at the Bristol County House of Correction.

Lawyers for the inmates in the Plymouth County case said they filed their case due to a severe lack of information about Plymouth's conditions, as well as constant reports from prisoners about not being able to get soap or keep a safe distance from others.

At a hearing in late April, plaintiffs' attorneys asked Judge Sorokin to develop a process overseen by experts to release enough of the inmates so the remaining population at the facility could observe social distancing and other public health recommendations.

One inmate, one corrections officer and five staff members had tested positive at the county Plymouth jail, according to the most recent COVID-19 filings from the facility.

Judge Sorokin said Monday that the lack of a showing of deliberate indifference and other procedural requirements "in no way dilute the legal and moral obligations borne" by Attorney General William Barr to ensure the safety of inmates who are, ultimately, in his custody.

Judge Sorokin also made clear that nothing in his order endorses the apparent lack of "clear, detailed, institution-wide education" about COVID-19 risks, how to use face masks properly and the importance of social distancing.

"While posting signs and instructing staff to give direction during personal interactions with detainees is commendable," the judge said, "straightforward communication and regular access to accurate information are powerful antidotes to the anxiety and rumor likely to occur among people confined to a prison in the face of a fast-spreading virus."

The judge also gently nudged the county jail to increase testing rates, taking notice of a new policy by the Massachusetts Department of Corrections to offer a COVID-19 test to every inmate by the end of the month on the basis that "there is no shortage of tests available to it."

The Plymouth facility "would be wise to benefit from DOC's experience as well as, if possible, gain access to either DOC's testing resources or those available to the Attorney General."

The putative class of inmates is represented by Daniel J. Cloherty and Saraa Basaria of Todd & Weld LLP; and by Emily R. Schulman, Adam W. McCall and David E. Rudin of Wilmer Cutler Pickering Hale & Dorr LLP.

The respondents are represented by Jason C. Weida of the U.S. Attorney's Office for the District of Massachusetts.

The case is Baez et al. v. McDonald et al., case number 1:20-cv-10753, in the U.S. District Court for the District of Massachusetts.

--Editing by Peter Rozovsky

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