Judge won’t let state prisons manage own virus testing

SAN FRANCISCO -- The state prisons department should be trusted to manage its coronavirus staff testing plan without interference from lawyers representing inmates and the federal judge overseeing its efforts to contain the spread of COVID-19 at its facilities, an agency attorney argued Wednesday.

Slamming the California Department of Corrections and Rehabilitation for not fully briefing him on the plan, U.S. District Judge Jon Tigar responded "absolutely not."

"The idea that I should absent myself from this process and not know where the bouncing ball is, I vehemently disagree with that," he said.

After months of sparring over the issue, plaintiffs' attorneys seek a court order to force the agency to modify its plan. They want the state to more robustly retest symptomatic staff and expand the scope of testing done when there is an outbreak.

The current plan does not require staff who display symptoms to retest themselves or report results. Plata v. Newsom, 01-CV-01351 (N.D. Cal., filed April 5, 2001). The CDCR has maintained it's making changes as necessary and that it's stepping up efforts to ensure staff do not come to work with the virus. It pointed to recent actions to maximize participation in the testing process, including issuing a memo that employees who refuse to get tested could be fired and increasing the number of days they can be tested.

Representing the state during the Wednesday Zoom video hearing, Paul Mello argued the CDCR should be afforded the flexibility to independently oversee its staff testing plan. He said plaintiffs' attorneys' request to "micromanage this evolving, living process" is unnecessary since it will make modifications that "go to the heart of their concerns."

"Our plan is going to change and is about to change," he said. "That's not to indicate our current plan is legally deficient but to demonstrate the need to be flexible to address current science and guidance."

Responding to alleged deficiencies over contact tracing policies, Mello said the CDCR primarily relies on staff to self-report whether they have been in proximity with a person confirmed to have the virus.

According to its policy, the agency tests staff who have been in "close contact," which is defined as within six feet for at least 10 minutes, of an employee or inmate with COVID-19.

Tigar asked if the CDCR maintains records to know when staff should be retested under the "close contact" standard.

Mello said he does not know and that the agency does not track whether staff have been in the same general location as an inmate or employee with the virus but rather relies on self-reporting.

Plaintiffs' attorney Donald Specter of the Prison Law Office said he was disturbed that the "intended practice is different from the written policy."

Replying to the state claiming it's doing more than the current iteration of its plan, Tigar asked how he's supposed to manage the case if it's "engaging in practices that are not consistent with the written plan in front of the court."

Mello said the judge should "afford us the flexibility to do this and engage in a process to communicate better with plaintiffs on this and keep them up to speed and allow us to manage this crisis in real time."

Tigar rebuffed the idea.

"I need to know where the ball is," he said.

While he said he understood the concern, Mello continued that the judge can only order the CDCR to modify its plan if it has been deliberately indifferent to the safety of inmates and staff.

"A particular disagreement between public health experts does not constitute deliberate indifference and reason to issue an order, especially when you rightfully continue to monitor the process so thoroughly," he argued. "I'm just trying to say that in some ways, this issue isn't necessarily ripe."