SAN FRANCISCO (CN) — A federal judge has rejected a call from lawyers representing state prisoners to compel the California corrections department to submit a plan for preventing the novel coronavirus from spreading any further within its 32 prisons.
“This court can only order relief if it first finds the violation of a federal right,” U.S. District Judge Jon Tigar wrote in his ruling Friday, following a Thursday hearing on the state’s progress in separating and transferring prisoners out of packed dormitories.
The California Department of Corrections and Rehabilitation now reports 79 confirmed coronavirus cases among inmates in the prison system, 51 at the California Institute for Men in the Southern California city of Chino. There are 83 infected staff statewide.
Tigar said it’s clear the state has not been “deliberately indifferent” to the prisoners’ health and safety, noting its early release of 3,500 inmates and relocation of 1,800 inmates out of dormitory-style housing. Prisoners have also begun to produce hand sanitizer and cloth masks for staff and inmates to use.
“No one questions the magnitude of the challenge that Covid-19 presents in a prison setting, and if the court were in the governor’s or the secretary’s position, it might adopt additional or different measures. But the question before the court is not what it thinks is the best possible solution. Rather, the question is whether defendants’ actions to date are reasonable,” Tigar wrote. “On the record before the court, the answer to that question is yes.”
At Thursday’s hearing, a lawyer for the corrections department told Tigar the prisons have begun to enact a plan to move prisoners into 8-person cohorts, or “pods,” a recommendation made by prison receiver J. Clark Kelso.
“All institutions that have dorm settings have been actively working to identify plans to create 8-person pod sleeping areas in vacant space within our institutions, in line with the receiver’s recommendation,” CDCR spokeswoman Dana Simas said in an email Friday. “California Department of Corrections and Rehabilitation and California Correctional Health Care Services have activated a centrally located command center where logistics experts are working diligently to monitor information from the institutions and help procure supplies and coordinate these plans at the institution level.”
Simas said these pods are being set up in both dormitories and gymnasiums.
“Each 8-person pod area is separated by six feet,” she said. “However, based on square footage and layout of the building, some will have 6-person and 8-person pods — always allowing for six feet between next pod. Some pods are separated by six feet and some are separated by half/pony walls to create social distancing.”
Attorney Alison Hardy with the Prison Law Office said she believes the state’s efforts to keep inmates six feet apart has fallen short, given the extreme level of overcrowding in its prisons. Bunkbeds in dormitories are currently spaced 30-40 inches apart.
“We are, of course, disappointed by the ruling,” Hardy said in an email. “Given the state of overcrowding in the dormitories and the magnitude of the danger here, we believe the state’s response has been inadequate, and constitutes deliberate indifference.”
While the state says family-style cohorts are already being set up, Hardy says she and her colleagues are still in the dark about what they look like.
“We do not know anything about how the 8-person cohort is supposed to be structured, other than it is supposed to have six feet of space in all directions around it,” she said. “This is something that I can envision if they set up cots in prison gymnasiums, but I do not know how they anticipate implementing this in the more traditional dorms, including the California Institution for Men.”
Tigar said he will continue to monitor the state’s response.
“This holding does not mean that the court will cease its efforts to oversee defendants’ response to COVID-19,” he wrote. “The pandemic presents an ongoing public health emergency, and the virus’s presence within the prisons requires continuous, evolving efforts by defendants, as well as ongoing monitoring by the court.”
Another case management conference is scheduled for April 20.