Oregon handling of Covid in prisons parsed at Ninth Circuit

PORTLAND, Ore. (CN) — Attorneys for former Oregon Governor Kate Brown and Oregon Health Authority director Patrick Allen urged a Ninth Circuit panel Thursday to grant immunity from a class action brought by seven inmates who claim the officials mishandled Covid-19 vaccine distributions during the pandemic.

Initially filed in April 2020, Paul Maney and six other Oregon Department of Corrections inmates sued Brown and department higher-ups for violating their constitutional rights against cruel and unusual punishment.

According to the prisoner’s original complaint, Oregon’s facilities lacked the capacity to employ Covid-19 prevention, testing or care. By the sixth amended complaint, Allen had been added as a defendant.

“During the pendency of the lawsuit, thousands of people housed at ODOC facilities have been infected with COVID-19,” the inmates say in their complaint, adding that at least 44 inmates had died. As such, the amended suit sought relief for two classes instead of one, separated by the 3,791 prisoners who contracted Covid-19 and those who died from the virus or Covid-related complications.

The plaintiffs claim prisoners shared living quarters and common areas in poorly ventilated facilities that lacked ample medical resources and PPE. They also say that by April 2020, facilities had not implemented isolation for infected inmates or provided masks.

After the U.S. Food and Drug Administration approved vaccines in late 2020, the department responsible for vaccine prioritization and distribution failed to vaccinate prisoners despite having put inmates in “Phase 1B” and prison staff and residents of other living facilities in “Phase 1A.” Instead, state facilities vaccinated 1,558 prisoners deemed “high risk” or elderly, leaving roughly 87% of the prison population unvaccinated.

A federal judge certified the vaccine class and granted the plaintiffs’ injunctive relief the next month, ordering the immediate vaccination of prisoners and finding that the state’s prioritization of staff over prisoners showed deliberate indifference.

In September 2021, the judge dismissed the plaintiffs’ claim for injunctive relief as moot, leaving only class claims for damages. Yet, the defendants still moved to dismiss, arguing they were immune under the Public Readiness and Emergency Preparedness Act or “PREP Act” — a law enacted by Congress in 2005 amid warnings of an impending pandemic.

U.S. Magistrate Judge Stacie F. Beckerman partially rejected this argument in February 2022, noting that courts analyzing the act have held that its immunity provision only applies to those who administer or use covered countermeasures — not those who fail to administer them.

Beckerman also noted that while the secretary for the U.S. Department of Health and Human Services amended the act in 2020 to include failed measures due to a lack of resources, the amendment does not confer absolute immunity.

With that, Beckerman found the inmates will likely succeed in their claim because officials knew inmates were vulnerable to Covid-19 but excluded them anyway. The only request Beckerman granted for the defendants was to dismiss everyone but Brown and Allen.

On appeal, Brown argued the court should reverse Beckerman’s order because her interpretation was a legal question separate from the prisoners’ Eighth Amendment claims and threatened a “value of high order.”

Assistant state Attorney General Robert Koch, representing Brown, further argued that denying immunity for Brown and Allen would leave public servants vulnerable to judges who don’t agree with decisions they made while responding to a pandemic.

Koch also pointed out the plaintiffs’ argument against immunity asks for a carveout of their Section 1983 claim — which the Ninth Circuit and Supreme Court have held is a statutory remedy — and that Congress created a remedial scheme for injured individuals to seek damages when there’s willful misconduct.

Allen’s attorney Jon Monson argued the plaintiffs conceded that Allen and Brown are covered under the PREP Act in addition to their claims for covered losses and the Covid-19 vaccine as a countermeasure. The question is, he said, whether the decision to prioritize one group over another relates to the administration of the vaccine — another facet covered under the act.

Representing the plaintiffs, attorney Nadia Dahab argued the purpose of the act was to administer vaccines efficiently and quickly. Dahab further argued that the act only provides immunity for those involved in the chain of delivery, from formulation and design to the manufacture, distribution and dispensing of vaccines.

“So, your position is the prioritization was not part of the important purpose [of the act]?” asked U.S. Circuit Judge Johnnie B. Rawlinson, a Bill Clinton appointee.

Dahab said yes, leading to a disagreement of whether Brown is a covered person under the act because she is not a health care professional.

On rebuttal, Koch reiterated that the act covers operations and management of the vaccine, while Monson argued denying immunity would “open Pandora’s box of litigation.”

The panel — including U.S. Circuit Judge Jennifer Sung, a Joe Biden appointee, and Senior U.S. Circuit Judge Carlos T. Bea, a George W. Bush appointee — seemed indifferent either way, adjourning without any indication of how they may rule.

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