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, and that its failure to implement a vaccine mandate for staff constitutes “deliberate indifference” in violation of the Eighth Amendment to the Constitution, 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
The judge in this case was overseeing a two-decade class action over inadequate medical care and prison overcrowding, and issued the vaccination mandate at the request of a federal receiver appointed to manage the prison health care system.
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.
In December, the 9th Circuit temporarily blocked the mandate from taking effect by Jan. 12 until it could hear oral arguments. And the 9th Circuit has now reversed the trial judge in the unpublished case of Plata v California Correctional Peace Officers Association – 21-16696 (April 2022).
The defendants argued on appeal that the district trial court erred by ruling that the California Department of Corrections and Rehabilitation acted with deliberate indifference by by requiring only workers in healthcare settings, and not all prison workers (subject to exemptions), to be vaccinated statewide. And that the district court failed to narrowly tailor its remedy pursuant to the Prison Litigation Reform Act.
In reversing, the Court stated “Deliberate indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). For a successful showing of deliberate indifference, the defendant must provide medically unacceptable care in conscious disregard of an excessive risk to the plaintiff’s health.
Disagreements about the best medical course of action do not meet the deliberate indifference standard, nor does negligence or malpractice. Toguchi, 391 F.3d at 1057-58, 1060; see also Hamby, 821 F.3d at 1092 (9th Cir. 2016).
Thus the panel concluded that CDCR’s COVID-19 vaccination policy was not deliberately indifferent because the agency took significant action to address the health risks posed by COVID-19, including making vaccines and booster doses available to prisoners and correctional staff, enacting policies to encourage and facilitate staff and prisoner vaccination, requiring staff to wear personal protective equipment, and ensuring unvaccinated staff members regularly test for COVID-19.
Defendants also employed other widely accepted mitigation measures to reduce the risk of prisoners contracting COVID-19, including symptom screening for all individuals entering the prisons; enhanced cleaning in the facilities; adopting an outbreak action plan; upgrading ventilation; establishing quarantine protocols for medically vulnerable patients; and testing, masking, and physical distancing among inmates.
In light of these uncontested facts, Defendants did not ignore or fail to respond to the risk of COVID-19 generally, nor did they disregard the importance of vaccination as a key mitigation measure specifically.