The Oregon State Penitentiary in Salem is one of the state’s 12 prisons. (Ron Cooper/Oregon Capital Chronicle)
A federal lawsuit involving current or former Oregon inmates infected with Covid, including one who died, is moving forward with notification of nearly half of the state’s prison population of their inclusion in the class-action suit.
The U.S. District Court in Eugene certified the class-action status of the suit in April. Since then, an administrator appointed by the court has been reaching out to the class-action members. They include about 5,000 people who were infected with Covid and incarcerated in Oregon starting on Feb. 1, 2020 and tested positive at least 14 days after, according to a class-action notice. The suit includes all inmates infected from mid-February 2020 through May 31 this year. That group represents 40% of Oregon’s prison population, which is more than 12,000, according to the state Department of Corrections. Oregon has 14 prisons for men and women.
The case, brought by seven current and former inmates, accuses state officials of violating their Eighth Amendment rights, which guarantees protection from cruel and unusual punishment. It also claims the state was negligent in protecting them from becoming infected and preventing inmate deaths.
The lawsuit marks the first time in Oregon – and perhaps the country – that a judge has certified a class-action seeking damages over Covid, attorneys said. More than 600,000 inmates in the U.S. and Puerto Rico have been infected with Covid, according to the Covid Prison Project, which is overseen by faculty and students at several universities across the country. The project’s data show that nearly 2,900 have died. According to the Oregon Department of Corrections, 46 inmates infected with Covid have died.
The case does not specify damages but attorneys said it could cost the state millions of dollars in damages and fees. If it goes to trial as requested, it would showcase the Department of Corrections’ treatment of inmates during the pandemic. Dozens of inmates sue the agency every year, often representing themselves. Most cases are dismissed.
Inmates can opt out of being included in the class action, which they might do if they want to file their own suit or for another reason. If they’re included, they would share in damages, lawyers said.
One of the plaintiffs named in the suit, Juan Tristan, who is represented by his estate, contracted Covid while incarcerated at the Oregon State Penitentiary in Salem and died just over a year ago. The other inmates who are named are imprisoned or were incarcerated at the penitentiary or Oregon State Correctional Institution in Salem along with Coffee Creek Correctional Facility, a women’s prison in Wilsonville. The lawsuit does not detail the severity of their infections but it does accuse government officials of negligence in not enforcing mask requirements, not properly screening visitors for Covid, failing to adopt a robust testing system for inmates and not providing adequate sanitation or training.
It said the state knew that masking and social distancing protected against Covid.
“Defendants have failed to take appropriate and prompt steps to adequately prevent, test and treat Covid-19 across all ODOC facilities,” the suit said.
The defendants – Oregon Gov. Kate Brown; Colette Peters, director of Oregon’s Department of Corrections and President Joe Biden’s nominee to lead federal prisons; Oregon Health Authority Director Patrick Allen; and seven current or former officials – denied in court filings they were negligent in protecting inmates from Covid. They also said they did not violate prisoners’ Eighth Amendment rights and were not responsible for a “wrongful death.”
Spokespeople for Gov. Kate Brown’s office and the Department of Corrections declined to further comment on the case, citing pending litigation.
The case was originally filed in April 2020. A U.S District Court judge granted the case class-action status in November 2021, approving two classes in the case: the first for wrongful deaths of the 46 individuals who died and another “damages class” for all those who became infected.
The state appealed the class-action ruling but that was denied in May. The state’s motion to dismiss the lawsuit early in the case was also denied.
An attorney for the plaintiffs and director of the civil rights project at the Oregon Justice Resource Center said some of the inmates were emotionally shaken.
“I think the stories that stick with me are the ones where people watched their cellmates die in front of them because of this disease when it could’ve been prevented,” said Juan Chavez. “That’s a particularly scary, dangerous and hopeless space to find yourself … where you have a system that’s allegedly built to keep the public safe, but also the people inside of these prisons safe, and this was just going to keep happening that so many people were going to die or get injured.”
The lawsuit maintained that the state “acted with deliberate indifference” to inmate rights by failing in not protecting inmates, including by not separating corrections officers who became infected from the others. It also accused the state of being slow to vaccinate prisoners.
“On January 16 and 17, 2021, Oregon DOC offered vaccines to approximately 1,558 adults in custody who were deemed high risk or who were elderly,” the suit said. “Notwithstanding that early vaccination of a small number of adults in custody, the remaining adult in custody population – some 12,000 people – were not scheduled for vaccination at that time.”
In early February 2021, U.S. District Court Judge Stacie Beckerman ordered the state to offer vaccines to all inmates. Beckerman is also hearing this lawsuit.
The complaint said that allowing communal dining inside prisons contrasted with statewide closures of restaurants and other eateries on the outside. The lawsuit said prisons have poor ventilation which helps prevent the spread of the virus, and that the population is at high risk.
“Prisons and jails also house a large proportion of medically vulnerable people and offer limited medical resources,” the suit said.
It said experts had predicted that the pandemic would pose a problem in prisons.
The lawsuit said the first Covid outbreak in an Oregon prison was in late March 2020 through staff-to-staff transmission.
According to Chavez, a federal ruling following nearly a decade of litigation in a similar case in Arizona found that the state’s corrections department had violated the Constitution in its care of inmates. That case did not involve damages.
“It’s very rare for there to be a way to articulate how 5,000 people all got injured in the same way,” Chavez said. “In terms of the class action, money damages litigation is actually a pretty big win. I’m hopeful that incarcerated people in other states see that and use that means to get into court.”
The suit said damages are justified in the case because the state did not consider releasing prisoners to protect them, which it said “is widely viewed as necessary in other jurisdictions.
If the state does not settle the case, a trial wouldn’t likely be held until 2024.
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