Prisons officials must face claims of knowingly infecting guard, inmates

High level officials for the Department of Corrections and Rehabilitation and San Quentin State Prison must face claims of knowingly exposing prison inmates and guards to COVID-19 when 122 inmates were transferred with high medical risk factors from Chino to San Quentin, sparking one of the country's worst COVID-19 outbreaks in the early stages of the pandemic.

The result was the deaths of 28 prisoners and Sgt. Gilbert Polanco, a guard whose family members are the plaintiffs in the suit.

Michael J. Haddad, Brain Hawkinson and Teresa Denise Allen of Haddad & Sherwin LLP represent the plaintiffs. They also represent the families of three inmates who died in San Quentin State Prison in separate cases.

Haddad said in an interview Thursday, "Frontline workers like medical workers, prison guards, the police, they're all risking their lives in a dangerous COVID era. They should be applauded for that and the last thing that they and their families need is for the government to actually increase their risk to COVID and do so in a blatant, knowing way with disregard for their safety."

U.S. District Judge Charles R. Breyer in San Francisco ordered Thursday that defendants affiliated with the California Institute for Men in Chino do not need to face claims from Polanco's family but those with the state prisons department and San Quentin must. Polanco et al. v. State of California et al., 3:21-cv-06516, (N.D. Cal., filed Aug. 24, 2021).

Hina Raviprakash and Joshua Irwin with the Attorney General's Office represent the state and did not respond to requests for comment.

According to Haddad, San Quentin was one of the worst places inmates could have been sent during the COVID outbreak because the prison was so antiquated. He said it had no ventilation, there was no feasible way to adequately quarantine people and cells were basic open air cells with floor to ceiling bars.

Haddad also said the transferred inmates were not tested for COVID-19 for two to four weeks before going to San Quentin and only half of them received any screening at all. Moreover, the California Institute for Men had an outbreak that resulted in 600 infections and nine deaths, but San Quentin officials still ignored social distancing guidelines and loaded buses with transferees above recommended capacity, he said. They were placed in the same housing units as existing San Quentin inmates, using the same showers and eating in the same mess halls.

The day after the transfer, Marin County Public Health officers warned the prison the conditions in the facility were dangerous and numerous precautions needed to be taken, including quarantining transferred inmates, the complaint states. Those recommendations were ignored, Haddad said.

Several weeks later a team of experts was sent to take stock of the situation at San Quentin because an outbreak had occurred and made a memo of recommendations, including immediately reducing the population at San Quentin. Haddad said that memo was also ignored.

Haddad said prison staff were working overtime because personnel were calling in sick or not available and Polanco was working double duty. There was no personal protective equipment and the same jail staff were working different shifts, so COVID-19 was being transferred from shift to shift, he said. Jail staff were also required to transport sick inmates in unsanitized cares to hospitals without masks, he said.

Raviprakash and Irwin petitioned Breyer to dismiss the complaint on the grounds that the defendants are protected by the Public Readiness and Emergency Preparedness (PREP) Act and qualified immunity. Moreover, because COVID-19 was a novel coronavirus and the world was still in the early stages of the pandemic, defendants could not have knowingly caused harm to Polanco when managing an "unprecedented viral outbreak" and when there was so little information available about this disease, the argument stated.

"The complaint offers hindsight analysis to claim defendants should have acted differently in handling the pandemic, but the complaint fails to allege intentional misconduct necessary to support claims against defendants," the defense attorneys said.

Haddad disagreed. "Everybody knew by the time this was happening the basic things that needed to be done to protect from the high risks of COVID and death from COVID," he said. "This was not rocket science. They just needed to do the basic things and follow basic advice from medical experts as it was being given to them."

Breyer was not convinced by the defense's arguments, writing in his order, "Defendants' alleged failures to administer covered countermeasures to Polanco do not bear a 'close causal relationship' to their administration of covered countermeasures to some other individual. And many of the allegedly tortious acts described in the complaint do not relate to a covered countermeasure at all. The court therefore cannot conclude that any of the defendants have immunity under the PREP Act. The vast majority of other courts to confront similar arguments have reached the same conclusion."

Breyer did not definitively conclude whether defendants were protected under qualified immunity, noting now is not the correct time to come to a conclusion in favor of either side, and chose not to dismiss the complaint using that reason. He did conclude that "plaintiffs have plausibly alleged that the CDCR/San Quentin Defendants, both on their own behalf and on a supervisory theory, violated the Due Process Clause by failing to protect Polanco from the state-created danger of a COVID-19 outbreak at San Quentin" as well as "the CDCR/San Quentin defendants plausibly had 'fair warning' that deliberate indifference to the safety of San Quentin corrections officers such as Polanco was unconstitutional" and "acted with deliberate indifference and violated [his] individual constitutional rights."

Raviprakash and Irwin also argued that the risk of illness and death are inherent for front line workers such as jail staff and defendants' alleged failures did not target Polanco. And the argument that plaintiffs brought forth that prison officials denied personal protective equipment to Polanco is flawed because the entire nation was suffering a lack of supply for masks and sanitation products and that was affecting San Quentin as well.

Haddad disagreed, saying Thursday, "They're just wrong on the law. They don't have to specifically target Sergeant Polanco. What they did was increase the risk for all inmates and jail staff like Sergeant Polanco and he was in a definable class of people for whom they increased the risk of harm."

He is seeking compensatory damage for Polanco's family and also seeks to achieve voluntary reforms to fix the problems that caused his death. He intends to speak with the state and its attorneys to see if it will voluntarily agree to make changes in how to respond to similar situations in the future.