Federal Judge Kristine Baker today declined to immediately order safety measures requested by inmates at three state prisons in response to coronavirus risks.
UPDATE: Plaintiffs haven’t quit and have added to the arguments today the allegation that guards are being made despite testing positive for COVID-19.
At this stage of the litigation, she said the prisoners hadn’t proved the state had acted recklessly or disregarded inmate health.
The judge said she was mindful that some steps taken by the state — distributing information about the virus and distributing masks, for example — haven’t been applied uniformly and she said she was concerned by the mass outbreak at Cummins prison, where more than 900 inmates and staff are infected. But she said she couldn’t conclude that the Cummins outbreak happened because of the unconstitutional treatment of inmates.
She said the plaintiffs had demonstrated a potential for irreparable harm, one of the standards for issuing a protective order.
At the hearing, defendants argued that no impending imminent risk exists for prisoners in Cummins who have tested negative; for prisoners who have been quarantined; or for prisoners in ADC facilities that have had no positive tests. The Court is unconvinced by these arguments. Prisoners who have tested negative or have been quarantined could still contract COVID-19. Additionally, the lack of positive tests to date in other ADC facilities does not foreclose that COVID-19 is already in these facilities undetected or that COVID-19 could reach these facilities and spread as rapidly as it has in Cummins. Because the alleged harm is a high likelihood of serious illness or death, the Court finds that plaintiffs have properly alleged irreparable harm
But the judge also wrote:
The public interest in this case cuts both ways. In plaintiffs’ favor, the public interest is served by protecting plaintiffs and the putative class members from COVID-19 and its possible consequences via the relief requested in plaintiffs’ supplemental motion for temporary restraining order. Further, minimizing the spread of COVID-19 both within ADC facilities and among communities surrounding and interacting with those facilities serves the public interest. Efforts to stop the spread of COVID-19 and promote public health appear to be in the public interest. In defendants’ favor, the public interest also commands respect for federalism and comity. These factors dictate that the Court should approach intrusion into the core activities of the state’s prison system with caution.
The judge noted that she still has under consideration a separate emergency motion for a temporary restraining order.
Another hearing is scheduled Thursday and the ACLU said it will continue to press its effort for relief for inmates.
The suit, brought on behalf of inmates at four units by the ACLU and the NAACP Legal Defense Fund, sought the release of disabled inmates with high health risks, the appointment of a special master on housing arrangements, access to cleaning supplies, protective gear for guards and other measures.
UPDATE: From the ACLU this afternoon:
Today the plaintiffs in Frazier v. Kelley filed a reply brief documenting the unsafe conditions in Arkansas state prisons that are putting incarcerated people, corrections staff, and the surrounding community at risk. The brief, which includes numerous declarations from family members of incarcerated people, asserts that:
Corrections officers were told to work even if they tested positive for COVID-19;
ADC relies solely on a disinfectant that has not been approved by the EPA as effective against COVID-19; and
ADC has failed to implement basic sanitation and social distancing factors even after the virus began to spread at Cummins Unit.
The following statement can be attributed to Holly Dickson, ACLU of Arkansas legal director and interim executive director:
“From COVID-19 patients denied medical care to corrections officers told to work without adequate personal protective equipment, these harrowing stories demonstrate in stark detail how state officials have failed to protect the people who live and work in these facilities. As conditions in state prisons have now turned deadly, we’re demanding immediate action from state officials before this humanitarian disaster claims even more lives.”
The Corrections Department wouldn’t comment on pending litigation, but it did direct me to state guidelines for correctional facilities, which include required quarantines for employees who test positive.