OAKLAND, Calif. (CN) — Finding California’s plan for curbing the spread of Covid-19 in state prisons woefully inadequate, a federal judge on Monday ordered the state to carry out a court-appointed receiver’s recommendation that all prison staff be vaccinated.
“Defendants have pointed to no measure or combination of measures that offers the incarcerated population the same level of protection as the vaccine mandates recommended by the receiver,” U.S. District Judge Jon Tigar wrote in a 22-page ruling Monday.
A receiver was appointed to manage the state prison health care system after then-U.S. District Judge Thelton Henderson found in 2005 that California fails to provide constitutionally adequate medical care to prisoners. Tigar took over the two-decade-old class action filed by lead plaintiff Marciano Plata in 2017 after Henderson retired.
On Aug. 4, court-appointed receiver J. Clark Kelso issued a report proposing that vaccines be required for all prison employees and inmates who receive in-person visits or work outside of prisons, such as those who work as firefighters.
In his report, Kelso noted that infection rates in California prisons and other jail settings are significantly higher than among the free population. Over 50,000 state prisoners — more than half of California’s state inmate population — have had a confirmed case of Covid-19, and at least 240 have died from the disease, according to California Department of Corrections and Rehabilitation (CDCR) statistics.
About 76% of California prison inmates are vaccinated compared to about 57% of prison staff. That number is lower among custody staff, or prison guards, which have a 42% vaccination rate. Staff vaccination rates are also lower at certain institutions, including the High Desert State Prison in Susanville, where more than 3,200 inmates are housed in a facility where 70% of employees are unvaccinated.
At a July 29 case management conference, Kelso stated that “all of our efforts to date have been insufficient to achieve the very high rate of staff vaccination that is necessary to further significantly reduce the risk that Covid will be introduced into our prisons,” in part due to the threat posed by the more infectious delta variant.
The state had argued that its current policy of requiring vaccines at two health care-focused institutions — the California Health Care Facility in Stockton and California Medical Facility in Vacaville — and for employees working in designated health care settings at 33 other prisons was a reasonable approach. Under that policy, unvaccinated employees are also required to undergo Covid testing twice per week.
Judge Tigar disagreed with the state’s assessment, concluding that its failure to implement a vaccine mandate for staff constitutes deliberate indifference in violation of the Eighth Amendment.
“A finding that defendants were not deliberately indifferent based on a toolbox without a vaccine has little relevance when the same toolbox now includes a vaccine that everyone agrees is one of the most important tools, if not the most important one, in the fight against Covid-19,” Tigar wrote.
The judge ordered Kelso to draft an implementation plan, including a deadline for all covered persons to be vaccinated, by Oct. 11. The mandate will allow for certain religious and medical exemptions.
In an emailed statement Monday, CDCR spokeswoman Dana Simas said the agency is still reviewing the court’s decision and determining its next steps.
“We respectfully disagree with the finding of deliberate indifference, as the department has long embraced vaccinations against Covid-19, and we continue to encourage our staff, incarcerated population, volunteers, and visitors to get vaccinated,” Simas said.
The California Correctional Peace Officers Association, a union representing state prison guards, has a motion to intervene pending in the case. In an Aug. 30 court filing, the union argued the court lacks authority to impose a vaccine mandate on employees because “the state has been proactive in combatting the spread of Covid-19 in the correctional system.”
Attorneys for the union and plaintiff class did not immediately respond to emails requesting comment Monday.
The union is represented by Adam Gregg McLean of Messing Adam & Jasmin in San Francisco.
Donald Specter and Alison Hardy of Prison Law Office represent the plaintiffs.
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