Hanna v. Peters

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

AARON M. HANNA, Case No. 2:21-cv-00493-SB

Plaintiff, OPINION AND ORDER

v.

COLETTE PETERS, TYLER BLEWETT,

LIEUTENANT ROBINSON, SERGEANT

IRVING, OFFICER PLOURD, OFFICER H.

COCHELL, OFFICER CARRILLO,

OFFICER NIELSEN, and OFFICER DAVIS,

Defendants.

BECKERMAN, U.S. Magistrate Judge.

Plaintiff Aaron M. Hanna, an adult in custody (“AIC”) at Two Rivers Correctional

Institution (“TRCI”) filed this action against several Oregon Department of Corrections

(“ODOC”) officials (together, “Defendants”) alleging that they acted with deliberate indifference

to a substantial risk of serious harm in violation of the Eighth Amendment by failing consistently

to comply with and enforce ODOC’s mask policy.

Hanna filed a motion for preliminary injunction, asking the Court to order Defendants to

comply with and enforce ODOC’s mask policy. (ECF No. 24.) All parties have consented to the

jurisdiction of a U.S. Magistrate Judge pursuant to 28 U.S.C. § 636, and the Court held a hearing

on Hanna’s motion on March 9, 2022. For the reasons discussed herein, the Court grants in part

Hanna’s motion for a preliminary injunction.

DISCUSSION

I. LEGAL STANDARDS

A. Preliminary Injunction

A party seeking a preliminary injunction “must demonstrate (1) it is likely to succeed on

the merits, (2) it is likely to suffer irreparable harm in the absence of preliminary relief, (3) the

balance of equities tips in its favor, and (4) an injunction is in the public interest.” Sovereign v.

Deutsche Bank, 856 F. Supp. 2d 1203, 1217 (D. Or. 2012) (citing Winter v. Nat. Res. Def.

Council, 555 U.S. 7, 20 (2008)). The elements of the test are “balanced, so that a stronger

showing of one element may offset a weaker showing of another. For example, a stronger

showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on

the merits.” Id. (quoting All. for the Wild Rockies v. Cottrell, 632 F. 3d. 1127, 1131 (9th Cir.

2011)). “When the government is a party, [the] last two factors merge.” Drakes Bay Oyster Co.

v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418, 435

(2009)).1

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1 The Ninth Circuit also provides an additional preliminary injunctive relief test: the

“serious questions” test. All. for the Wild Rockies, 632 F.3d at 1131-32. However, where, as here,

Hanna seeks a mandatory injunction, courts decline to apply the “serious questions” standard.

See P.P. v. Compton Unified Sch. Dist., 135 F. Supp. 3d 1126, 1135 (C.D. Cal. 2015) (“Plaintiffs

seek a mandatory injunction, the Court declines to interpret the ‘serious questions’ standard for

purposes of the Motion as inconsistent with the Ninth Circuit’s guidance that a mandatory

injunction not issue in ‘doubtful cases’ and not be granted ‘unless the facts and law clearly favor

the moving party.’”).

B. Mandatory Injunction

A “mandatory injunction orders a responsible party to take action” and “is particularly

disfavored.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878-79

(9th Cir. 2009) (simplified). The “already high standard for granting a TRO or preliminary

injunction is further heightened when the type of injunction sought is a ‘mandatory injunction.’”

Innovation Law Lab v. Nielsen, 310 F. Supp. 3d 1150, 1156 (D. Or. 2018) (citing Garcia v.

Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015)). A plaintiff requesting a “mandatory injunction”

must “establish that the law and facts clearly favor her position, not simply that she is likely to

succeed.” Id. (quoting Garcia, 786 F.3d at 740).

C. Prison Litigation Reform Act

The Prison Litigation Reform Act (“PLRA”) imposes additional restrictions on a court’s

ability to grant injunctive relief. Any such “[1] relief must be narrowly drawn, [2] extend no

further than necessary to correct the harm the court finds requires preliminary relief, and [3] be

the least intrusive means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2). The PLRA

requires that courts “give substantial weight to any adverse impact on public safety or the

operation of a criminal justice system caused by the preliminary relief and shall respect the

principles of comity[.]” Id. Preliminary relief relating to prison conditions “shall automatically

expire on the date that is 90 days after its entry, unless the court makes findings required under

subsection (a)(1) for the entry of prospective relief and makes the order final before the

expiration of the 90-day period.” Id.

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II. ANALYSIS

A. Preliminary Injunction

Hanna seeks a preliminary injunction requiring Defendants to comply with and enforce

ODOC’s mask policy at TRCI. For the reasons discussed below, the Court grants in part Hanna’s

motion.2

The Court must evaluate the four factors the Supreme Court outlined in Winter to

determine if Hanna has established the need for preliminary injunctive relief: (1) likelihood of

success on the merits, (2) irreparable harm in the absence of preliminary relief, (3) the balance of

equities, and (4) the public interest. See Sovereign, 856 F. Supp. 2d at 1217 (citing Winter, 555

U.S. at 20). In addition, because Hanna is requesting a mandatory injunction, the Court must also

conclude that “the law and facts clearly favor [his] position[.]” Innovation Law Lab, 310 F.

Supp. 3d at 1156 (quoting Garcia, 786 F.3d at 740).

1. Likelihood of Success on the Merits

The Court finds that Hanna has presented sufficient evidence, in the form of his own

sworn declaration and those from other TRCI AICs, that Defendants have failed consistently to

comply with and enforce ODOC’s mask policy at TRCI. (See Supp. Br. in Supp. of Pl.’s Mot. for

Prelim Inj., ECF No. 75, at 6 (summarizing masking non-compliance evidence); Fifth Decl. of

Aaron Hanna, ECF No. 73 (documenting several examples of defendant Correctional Officer

Eric Nielson not wearing a mask); see also Decl. of Aaron Hanna, ECF No. 47 (“I witnessed H.

Cochell not wearing a mask”); Decl. of Randy Williams, ECF No. 77 (“I continue to observe

numerous staff members fail to wear their masks correctly, and some still refuse to wear them

2 The Court denies Hanna’s motion to the extent he requests ODOC-wide relief and

specific compliance mechanisms, such as surveillance and body cameras.

altogether” and “[t]he corrections officer (“CO”) that works in the canteen continues to refuse to

wear a mask [and] I have heard him say that he will . . . not wear his mask inside”); Decl. of

Michael Leonard, ECF No. 78 (“I continue to see COs that wear their mask incorrectly, such as

under their nose or on their chin;” “I continue to observe staff take their masks off,” and “I have

asked [a CO in the canteen] to put a mask on in the past, yet he refused”); Decl. of Calvin

Jackson, ECF No. 79 (“Many staff members wear their mask down under their nose, or not at

all.”); Decl. of James Ross, ECF No. 80 (“When I witness COs not wearing their masks, I want

to confront them . . . I have never done so because I am afraid of retaliation and the possibility of

losing privileges.”), Decl. of Anthony Ortega, ECF No. 81 (“I did witness COs who did not wear

their masks,” “I saw officers who wore their masks improperly,” and “I still see COs not wearing

masks while together in the officer area [and] I still on occasion witness COs who do not wear

their mask properly on the unit”), Decl. of Adam Coopersmith, ECF No. 82 (“I have seen COs

pull their masks down on the unit to talk, or wear their masks under their chin”)).

Hanna also presented the deposition testimony of an ODOC official who testified in a

related case that some ODOC correctional staff members have been reluctant to wear their

masks because they do not believe in masking, believe masking rules are a violation of their

rights, or believe that COVID-19 is not real. (Decl. of Counsel, Ex. 4, ECF No. 76-4, attaching

Dec. 22, 2020 deposition transcript of B. Cain). Further, Hanna presented testimony from an

interim superintendent who was not aware that the single layer gaiters worn by some TRCI

officials did not comply with ODOC’s mask policy. (Decl. of Counsel, Ex. 6, ECF No. 76-6,

attaching Mar. 3, 2021 deposition transcript of K. Jackson).

Defendants respond with sworn declarations attesting to Defendants’ and others’ best

efforts to comply with the mask policy at TRCI, and the declarations demonstrate that mask

compliance at TRCI has improved over time. However, it is also clear from the declarations that

TRCI’s correctional staff sometimes struggle with understanding and complying with the mask

policy. (See, e.g., Decl. of Eric Nielson, ECF No. 68 (“[I]n the past I have sometimes not worn a

mask when in the staff office with a particular staff member . . . I believed this was permissible

[but] I now understand that I should wear one.”); Decl. of Matt Turner, ECF No. 71 (“I, myself,

have been corrected at least once by a staff member who noticed my mask had slipped.”)). In

addition, Defendants have not imposed any meaningful discipline on correctional officers who

violate masking rules. (See Defs.’ Resp. to Ord. to Show Cause, ECF No. 54 (attaching records

demonstrating that TRCI’s progressive discipline policy with respect to masking resulted in only

eleven verbal reminders and two non-disciplinary letters of expectation over a two-year time

period)).

Further, Defendants’ counsel reported at the hearing that approximately one-third of

TRCI employees have received medical or religious exemptions from the vaccine requirement

and are therefore required by ODOC’s mask policy to wear an N95 mask, but TRCI’s COVID

Compliance Officer who is responsible for mask compliance inspections is not aware of which

staff have received the vaccine exemption, and therefore it is impossible for him to monitor

masking compliance in any meaningful way. (See Decl. of Shilo Ray (“Ray Decl.”), ECF No. 83,

noting that ODOC staff with a medical or religious vaccine exemption must wear an N95 mask;

Sec. Decl. of Hugo Enriquez, ECF No. 85 (“I am generally unaware of which ODOC staff

members have received vaccination exemptions [and t]herefore, that issue is not taken into

account during my inspections”)).

In light of public health guidance more than two years into the pandemic regarding the

importance of consistent and proper masking to prevent the spread of the COVID-19 virus, a

correctional official’s inconsistent or improper masking while in the close vicinity of AICs

demonstrates deliberate indifference to a substantial risk of serious harm to AICs, including

Hanna.3 Specifically, Hanna has demonstrated a likelihood of succeeding on the merits of his

claim that Defendants knew of a substantial risk of serious harm to AICs in the absence of

consistent and proper mask wearing, and disregarded the risk by not consistently and properly

wearing required face coverings and by not enforcing the mask policy. See Clement v. Gomez,

298 F.3d 898, 904 (9th Cir. 2002) (holding that “deliberate indifference” is established when

“the official knows of and disregards an excessive risk to inmate health or safety; the official

must be both aware of the facts from which the inference could be drawn that a substantial risk

of serious harm exists, and he must also draw the inference” (citing Farmer v. Brennan, 511 U.S.

825, 837 (1994))); see also Shank v. Corizon Inc., No. CV 19-04638-PHX-ROS (JFM), 2020

WL 5628014, at *4 (D. Ariz. Sept. 2, 2020) (“[K]nown noncompliance with generally accepted

guidelines for inmate health strongly indicates deliberate indifference to a substantial risk of

serious harm.” (quoting Hernandez v. Cnty. of Monterey, 110 F. Supp. 3d 929, 943 (N.D. Cal.

2015))).

Defendants argue that although their masking compliance may be imperfect, they have

acted reasonably under the circumstances. Defendants set the bar too low. Although a prison

official’s duty under the Eight Amendment is to ensure only reasonable safety, the inconsistent

and improper mask wearing on the record before the Court suggests that Defendants’ actions are

unreasonable under the circumstances present here. See Farmer, 511 U.S. at 844-45 (“A prison

official’s duty under the Eighth Amendment is to ensure reasonable safety,” and “prison officials

3 Defendants do not challenge whether the COVID-19 virus poses a substantial risk of

serious harm to AICs. See Plata v. Newsom, 445 F. Supp. 3d 557, 559 (N.D. Cal. 2020) (“[N]o

one questions that [COVID-19] poses a substantial risk of serious harm[.]”).

who act reasonably cannot be found liable[.]” (quoting Helling v. McKinney, 509 U.S. 25, 33

(1993))).

Defendants also suggest that injunctive relief is inappropriate based on the Ninth

Circuit’s recent guidance in Fraihat v. U.S. Immigration and Customs Enforcement, 16 F.4th

613, 618 (9th Cir. 2021), but that case involved a nationwide preliminary injunction that applied

to all immigration detention facilities in the United States and required the federal government to

take several specific actions to address COVID-19. None of the reasons the Ninth Circuit cited

for reversing the district court’s nationwide preliminary injunction apply to the narrowly-focused

injunctive relief Hanna requests here. Rather, this case is more like Roman v. Wolf, 977 F.3d 935

(9th Cir. 2020), in which the Ninth Circuit affirmed the district court’s preliminary injunction

requiring a single immigration detention facility to implement a few specific measures to protect

detainees from the CVOID-19 virus. See Roman, 977 F.3d at 939 (affirming in part the district

court’s preliminary injunction “because the district court had broad equitable authority to grant

provisional relief to remedy a likely constitutional violation”); see also Zepeda Rivas v.

Jennings, 504 F. Supp. 3d 1060, 1077 (N.D. Cal. 2020) (entering preliminary injunction

requiring immigration detention facility to provide constitutionally adequate COVID-19

protective measures).

In light of Hanna’s evidence in support of his motion that some of the named defendants

have not complied consistently with TRCI’s mask policy and the evidence that Defendants have

not established effective enforcement of ODOC’s mask policy at TRCI, Hanna has demonstrated

a likelihood of success on his deliberate indifference claim and has further demonstrated that the

law and facts clearly favor his position.

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2. Likelihood of Irreparable Harm

The second Winter factor “requires plaintiffs . . . to demonstrate that irreparable injury is

likely in the absence of an injunction.” Winter, 555 U.S. at 22 (noting that the “possibility” of

irreparable harm is insufficient). Hanna has demonstrated a likelihood of irreparable harm, both

in light of the serious health consequences of the COVID-19 virus and because Hanna is

immunocompromised. See Basank v. Decker, No. 20-cv-2518-AT, 2020 WL 1481503, at *6

(S.D.N.Y. Mar. 26, 2020) (finding that “[t]he risk of contracting COVID-19 in tightly-confined

spaces, especially jails, is now exceedingly obvious” and concluding that “[p]etitioners face

irreparable injury—to their constitutional rights and to their health”). Indeed, Hanna contracted

the COVID-19 virus while his preliminary injunction motion was pending. (See Third Decl. of

Aaron Hanna, ECF No. 50.)

Although Defendants argue that Hanna is no longer at risk of infection because he has

now recovered from the virus, they present no evidence that one bout with the COVID-19 virus

affords complete immunity to future infection from a different COVID-19 variant (and, indeed,

their argument is contrary to current public health guidance). On this record, Hanna remains at

risk for contracting the COVID-19 virus and has demonstrated a likelihood of irreparable harm.

3. Balance of Equities and the Public Interest

There can be no serious dispute two years into the COVID-19 pandemic that the public

interest is served by protecting individuals from COVID-19, both in and out of custody. See

Frazier v. Kelley, No. 4:20-cv-00434-KGB, 2020 WL 2110896, at *10 (E.D. Ark. May 4, 2020)

(“[The] public interest is served by protecting plaintiffs . . . from COVID-19 both within

[defendants’] facilities and among communities surrounding and interacting with those

facilities[.]”); Martinez-Brooks v. Easter, 459 F. Supp. 3d 411, 448 (D. Conn. May 12, 2020)

(noting that, in assessing the balance of equities and the public interest, “Petitioners’ interest in

avoiding serious illness or death must weigh heavily on the scales”).

On the other hand, “[s]tates have a strong interest in the administration of their prisons[,]”

and the Supreme Court has cautioned “that federal courts must tread lightly when it comes to

questions of managing prisons, particularly state prisons[.]” Frazier, 2020 WL 2110896, at *9

(quoting Woodford v. Ngo, 548 U.S. 81, 94 (2006)). The “public interest also commands respect

for federalism and comity” and the “Court should approach intrusion into the core activities of

the state’s prison system with caution.” Id. at *10; see also 18 U.S.C. § 3626(a)(2) (“The court

shall give substantial weight to any adverse impact on public safety or the operation of a criminal

justice system caused by the preliminary relief and shall respect the principles of comity[.]”).

Balancing the equities and evaluating the public interest here, the Court finds that an

order requiring Defendants merely to comply with their own mask policy is equitable on balance,

in the public interest, and not an inappropriate intrusion in prison administration.4 See Banks v.

Booth, 468 F. Supp. 3d 101, 124 (D.C. Cir. 2020) (finding that an injunction that “lessens the

risk that Plaintiffs will contract COVID-19 is in the public interest because it supports public

health,” and “ordering Defendants to take precautions to lower the risk of infections for Plaintiffs

also benefits the public”); Mays v. Dart, No. 20 C 2134, 2020 WL 1812381, at *13 (N.D. Ill.

Apr. 9, 2020) (rejecting the defendants’ arguments that “an injunction requiring him to

implement additional health and protective measures would be disruptive to his ongoing efforts

4 Defendants also argue that a preliminary injunction would reverse this Court’s opinion

denying preliminary injunctive relief in a related putative class action against ODOC officials.

(Defs.’ Resp. to Mot. for Prelim. Inj., ECF No. 31, at 7.) However, the Court’s previous denial of

preliminary injunctive relief was based on its evaluation of ODOC’s response to the COVID-19

virus in June 2020, i.e., at the very beginning of the pandemic. See Maney v. Brown, 464 F.

Supp. 3d 1191 (D. Or. 2020). In contrast, Hanna’s motion targets current conditions as of March

2022, and at TRCI only.

to address the spread of coronavirus in the Jail” and “that the court should defer to the Jail’s

practices and its execution of policies that preserve internal order, discipline, and security in the

facility”).

The Court provided Defendants with multiple opportunities to agree to comply with their

own mask policy to resolve Hanna’s motion, as ODOC has done in response to several state

habeas petitions, but Defendants were unable to resolve Hanna’s motion with any form of a

stipulated agreement to comply with their mask policy. Although this Court attempted to avoid

any intrusion into the administration of the state’s prison system, a court order ordering

Defendants to do what they should already be doing is now necessary.

4. Conclusion

“[W]hen the State takes a person into its custody and holds him there against his will, the

Constitution imposes upon it a corresponding duty to assume some responsibility for his safety

and general well being.” Helling, 509 U.S. at 32 (quoting Deshaney v. Winnebago Cnty. Dep’t of

Soc. Servs., 489 U.S. 189, 199-200 (1989)). As of March 18, 2022, 5,311 AICs in ODOC

custody, including Hanna and 1,287 other AICs at TRCI, have contracted the COVID-19 virus,

and 45 of the 5,311 AICs have died. (See https://www.oregon.gov/doc/covid19/Pages/covid19-

tracking.aspx (last visited Mar. 18, 2022)). The COVID-19 pandemic is not yet over, and if an

AIC at TRCI witnesses a correctional officer refusing to wear a mask, wearing a mask

improperly, or wearing an unapproved face covering, they are powerless to demand compliance.

For all of the reasons discussed herein, the Court grants Hanna’s request for a preliminary

injunction requiring compliance with and enforcement of ODOC’s mask policy.

B. Hanna’s Appointed Counsel

The Court appointed Juan Chavez, a member of the Court’s pro bono panel, to assist

Hanna with the hearing on Hanna’s motion for preliminary injunction. The Court appointed Mr.

Chavez for the limited purpose of the preliminary injunction hearing, and Mr. Chavez’s service

is now complete. (See ECF No. 50.) If Mr. Chavez (or associated counsel David Sugerman)

would like to continue as counsel of record for Hanna to assist him with bringing any alleged

violations of the preliminary injunction to the Court’s attention, counsel may file a general notice

of appearance. Mr. Chavez’s initial appointment as pro bono counsel does not disqualify Hanna

from seeking a prevailing party fee award under 42 U.S.C. § 1988 at the conclusion of the case,

if appropriate, including for the time Mr. Chavez spent in connection with the preliminary

injunction hearing.

CONCLUSION

For the reasons stated, the Court GRANTS IN PART Hanna’s motion for a preliminary

injunction (ECF No. 24), and ORDERS Defendants to comply with and enforce ODOC’s mask

policy at TRCI.5 This order will expire in ninety (90) days unless extended, superseded, or

vacated by a subsequent order. Hanna is not required to post security.

IT IS SO ORDERED.

DATED this 21st day of March, 2022.

HON. STACIE F. BECKERMAN

United States Magistrate Judge

5 Although Oregon’s statewide mask mandate has now lifted, Defendants acknowledge

that a mask mandate continues to apply inside most areas of Oregon’s correctional institutions.

(Defs.’ Supp. Br. in Opp’n to Mot. for Prelim. Inj., ECF No. 66, at 4.) The Court understands

that ODOC is preparing to phase out its mask mandate. (Ray Decl., Ex. 1 at 1-2.) The

preliminary injunction shall apply to whatever ODOC mask policy is in effect at TRCI during

this ninety-day period.