Since the COVID-19 pandemic began, over 50,000 incarcerated persons in California’s state prisons have been infected by the SARS-CoV-2 virus. At least 240 have died from the disease, many more have been hospitalized.
Finding California’s plan for curbing the spread of Covid-19 in state prisons woefully inadequate, a federal judge ordered the state to carry out a court-appointed receiver’s recommendation that all prison staff be vaccinated by January 12, 2022
At a July 29 case management conference, court-appointed receiver J. Clark 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. 12. The mandate would allow for certain religious and medical exemptions.
Under current rules, prison employees must get vaccinated or submit to regular COVID-19 testing. Tigar’s order would eliminate the testing alternative for everyone except those with religious or medical exemptions.
Defendants and the Receiver jointly filed the required plan with a deadline for covered persons to be fully vaccinated by November 29, 2021.
Defendants subsequently indicated some confusion over whether the deadline was as stated in the filed plan, explaining that they had requested a December 20, 2021 deadline to which the Receiver did not agree. The Court ordered Defendants to meet and confer to attempt to resolve any dispute that might exist over the implementation deadline.
The Receiver requested an order setting a specific implementation deadline. The Court reviewed the Receiver’s and Plaintiffs’ filings in support of such an order, and Defendants’ and Intervenor California Correctional Peace Officers’ Association’s filings in opposition.
In light of the compelling public health considerations underlying the vaccination order, as well as the significant passage of time – thirty days since the Court issued its order – without any apparent action aside from the October 12 joint filing of an implementation plan, the Court agreed with the Receiver that it is appropriate to set a specific vaccination deadline at this time.
The Court ordered that full vaccination of the persons covered by the September 27, 2021 order occur no later than January 12, 2022.
In the process, the politically powerful prison guards’ union and Gov. Gavin Newsom have resisted a COVID vaccine mandate, despite growing outbreaks. On October 12, 2021, the State of California appealed the Order to the 9th Circuit Court of Appeal. Newsom’s administration on Monday asked Tigar to pause his order while the appeal makes its way through court.
Connie Gipson, director of the correction’s department’s Division of Adult Institutions, said in the filing that she’s concerned a significant number of employees would quit or face firing rather than accept the vaccine.