Seven inmates at Oregon correctional facilities who first filed a class action lawsuit in federal court last April seeking protection against the spread of COVID-19 upped the ante this week, demanding the federal government intervene and immediately compel the state to vaccinate all prisoners against COVID-19.
The prisoners filed a temporary restraining order and preliminary injunction Thursday citing what they said was “deliberate indifference” to the health and well-being of thousands of prisoners across the state. The legal case, in part, says the state’s decision to proceed with vaccinating healthier members of the public before prisoners violates the Eighth Amendment of the U.S. Constitution.
The push for vaccinations comes during a particularly unnerving moment of the pandemic, with 11 deaths among inmates with COVID-19 in just the past nine days.
At least 3,252 Oregonians in custody have tested positive for the coronavirus since the start of the pandemic, or about one-quarter of the prison population.
That’s a significantly higher infection rate than Oregon’s general population, but Gov. Kate Brown and state officials only agreed to prioritize vaccinations for inmates in response to a recent ruling in the lawsuit. Health care workers have been eligible for vaccines for a month and teachers will be eligible statewide Monday.
“While many Oregonians are anxious to be vaccinated as soon as possible, and there are competing reasons why different groups might want to be moved up the list, no one can dispute the evidence that incarcerated Oregonians are at acute risk of infection,” Juan Chavez, an attorney with the Oregon Justice Resource Center who is representing the plaintiffs, said in a statement.
Prisoners don’t have the opportunity to protect themselves in ways that many people outside prison can, such as by physical distancing and isolating at home, he added, and the state “should be compelled to offer vaccinations to all people in custody as soon as possible to protect their health and that of the wider community.”
Oregon’s Attorney General’s office and the Department of Corrections declined comment, citing the ongoing legislation.
The lawsuit names Brown, Corrections Division Director Colette Peters, Oregon Health Authority Director Patrick Allen and others. The lawsuit specifically states Brown and Allen “have interfered with the delivery of medical care” by prioritizing other members of the population – like teachers – that don’t have the same risk level as inmates.
Some inmates, more than 1,320 who the state deemed were elderly or at risk – were offered vaccines as of last week. But that group was offered vaccines by accident, the lawsuit states, and more than 11,500 other inmates remain at risk due to simply being incarcerated.
“Defendants cannot deny that they understand the necessity to vaccinate their population as soon as possible, just as they understood the necessity to enforce mask wearing, social distancing, and effective testing were necessary at the start of the pandemic,” attorneys wrote, citing the state’s attempt to, belatedly, enforce mask wearing at facilities across Oregon in 2020.
The lawsuit claims Oregon officials have “taken to half-measures” and not quickly administering vaccines to inmates “means they have been deliberately indifferent.”
Thirty-eight prisoners with COVID-19 have now died since the start of the pandemic.
Three state prisons have tallied COVID-19 outbreaks of 500 or more cases, according to the state’s outbreak report from Jan. 21. The largest five outbreaks in the state have been at prisons, with Umatilla’s Two Rivers Correctional Institute’s 607 cases leading the way. Those include prisoners, workers and other people who became infected through close contact. The largest active outbreak is 129 prisoners, at the Umatilla facility.
In all, 772 corrections workers have tested positive since the start of the pandemic.
Thursday’s state outbreak report doesn’t include the newest large outbreak – at Santiam Correctional Institute. On Friday, 68 prisoners tested positive at the Salem institution, increasing the total to 86.
Prisons already face a number of long-standing issues – tight quarters, an understaffed nursing department and the fact that prisoners’ health tends to be worse than those of same-aged people outside of custody.
According to a deposition referenced in the lawsuit, state officials said inmates continue to operate “laundry, food and facility plant operations” with infected workers coming from different units in the prison, leading to new inmate-to-inmate transmission.
Jennifer Black, a corrections spokesperson, said the 1,343 inmates, many of whom recently received vaccines by mistake “were older adults, or who had medical or other vulnerabilities – or both.” She said those inmates will receive second doses.
The “miscommunication,” she noted, was the department’s determination that inmates had qualified for the phase 1A congregate care guidelines, when, the department later learned, that was only true for inmates who were “working in health care settings within” a state prison.
She did note that 316 inmates under the age of 60 received vaccines during that wave. The corrections department had offered vaccines to 1,558 inmates thought to be eligible but some declined to accept the dose.
In general, she added, other adults in custody will be included in the upcoming phase 1B of the vaccine rollout, with state officials contending they will “effectively and efficiently conduct these vaccinations using existing supply.”
But there is no date set yet for when those more than 11,000 remaining inmates will be eligible for a vaccine. “They will be sometime after all seniors are eligible,” said Black, “so in March.”