Petition for Writ of Certiorari — Oregon, et al., Petitioners v. Paul Maney, et al.

Supreme Court briefFeb 2, 2026

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APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 24-2715

D.C. No. 6:20-cv-00570-SB

MEMORANDUM*3

PAUL MANEY; GARY CLIFT; THERON HALL;

DAVID HART; SHERYL LYNN SUBLET; FELISHIA

RAMIREZ; MICAH RHODES; GEORGE NULPH,

Plaintiffs - Appellees,

STATE OF OREGON; COLETTE S. PETERS, AKA

C. Peters; HEIDI STEWARD, Acting Director; MIKE

GOWER; MARK NOOTH; ROB PERSSON; JOE

BUGHER; GARRY RUSSELL,

Defendants - Appellants.

This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

Appeal from the United States District Court

for the District of Oregon

Stacie F. Beckerman, Magistrate Judge, Presiding

Argued and Submitted June 11, 2025

Portland, Oregon

Before: SCHROEDER, TALLMAN, and OWENS, Circuit Judges.

This interlocutory appeal arises from a class action brought by adults in custody (AIC) at Oregon

Department of Corrections (ODOC) institutions (collectively Plaintiffs) against various high-level ODOC

officials (collectively Defendants) based on their response to the COVID-19 pandemic. Plaintiffs allege

that Defendants violated their Eighth Amendment

rights by failing to protect them from heightened exposure to COVID-19. They now seek money damages

for contracting COVID-19 in ODOC facilities during

the first two years of the pandemic.

The district court denied Defendants' motion for

summary judgment on qualified immunity grounds

because it found that there were genuine issues of

material fact about the constitutionality of ODOC's

COVID-19 response. Following the district court's decision, Defendants filed this interlocutory appeal, arguing that they are entitled to qualified immunity as

a matter of law. We construe the facts in favor of the

non-moving party in reviewing summary judgment

rulings. T W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass 'n, 809 F.2d 626, 630-31 (9th Cir. 1987). We

review the denial of qualified immunity de novo. Rice

v. Morehouse, 989 F.3d 1112, 1120 (9th Cir. 2021).

We typically do not have jurisdiction to review denials of summary judgment as they are not final orders. Isayeva v. Sacramento Sheriff's Dep't, 872 F.3d

938, 944 (9th Cir. 2017). However, under the collateral order exception to the finality doctrine, we may

review summary judgment orders denying qualified

immunity. Plumhoff v. Rickard, 572 U.S. 765, 771-73

(2014). "[T]he scope of our review over the appeal [in

this context] is circumscribed," and we only have jurisdiction to review "whether or not certain given

facts showed a violation of `clearly established law.'

Foster v. City of Indio, 908 F.3d 1204, 1210 (9th Cir.

2018) (per curiam) (citations omitted). At this stage,

we cannot review the district court's determination

that there are genuine issues of material fact underlying the Eighth Amendment analysis. Eng v. Cooley,

552 F.3d 1062, 1067 (9th Cir. 2009). Instead, we can

only consider whether Defendants "would be entitled

to qualified immunity as a matter of law, assuming

all factual disputes are resolved, and all reasonable

inferences are drawn, in plaintiff's favor." Ballou v.

McElvain, 29 F.4th 413, 421 (9th Cir. 2022) (quoting

Estate of Anderson v. Marsh, 985 F.3d 726, 731 (9th

Cir. 2021)). Thus, we have jurisdiction to hear this

interlocutory appeal of the district court's denial of

qualified immunity for Defendants, and we affirm.4

Defendants also argue that Plaintiffs lack standing to bring the

Eighth Amendment damages claims that the underlying suit is

based upon. However, we lack jurisdiction to consider these arguments at this stage. See Eng, 552 F.3d at 1068 n.2 (noting

1. The district court did not err by denying Defendants' motion for summary judgment because, at this

stage of the case, they are not entitled to qualified

immunity as a matter of law. "The doctrine of qualified immunity shields officials from civil liability so

long as their conduct `does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.' Mullenix v.

Luna, 577 U.S. 7, 11 (2015) (per curiam) (quoting

Pearson v. Callahan, 555 U.S. 223, 231 (2009)). "We

must affirm the district court's denial of qualified

immunity if, resolving all factual disputes and drawing all inferences in [Plaintiffs'] favor, [Defendants']

conduct (1) violated a constitutional right that (2) was

clearly established at the time of the violation." Ballou, 29 F.4th at 421.

The constitutional right Plaintiffs allege Defendants violated was "[t]he Eighth Amendment's prohibition against `cruel and unusual punishments' which

"imposes duties on prison officials to provide `humane

conditions of confinement.' Hampton v. California, 83

that "any ruling on [standing] issues will generally be independent of the qualified immunity inquiry itself and cannot be raised

on interlocutory appeal," and "we may address such matters only on appeals from final judgments"). Nor is the standing analysis "inextricably intertwined" with the qualified immunity analysis such that we may exercise our pendant appellate jurisdiction to reach the merits of the standing issues to 'ensure meaningful review of the order properly before us on interlocutory

appeal." Melendres v. Arpaio, 695 F.3d 990, 996 (9th Cir. 2012)

(quoting Meredith v. Oregon, 321 F.3d 807, 813 (9th Cir. 2003),

as amended 326 F.3d 1030 (9th Cir. 2003)).

F.4th 754, 765 (9th Cir. 2023), cert denied sub nom.

Diaz v. Polanco, 144 S. Ct. 2520 (2024) (quoting

Farmer v. Brennan, 511 U.S. 825, 832 (1994)). The

Eighth "Amendment's protections extend to `condition[s] of confinement that [are] sure or very likely to

cause serious illness and needless suffering' in the future" like exposure to "infectious maladies." Id. at 766

(alterations in original) (quoting Helling v. McKinney,

509 U.S. 25, 33 (1993)). To establish their Eighth

Amendment conditions of confinement claim, Plaintiffs must demonstrate (1) an "objectively, `sufficiently serious' deprivation, and (2) that Defendants acted

"subjectively, with `deliberate indifference' to this

deprivation. Id. (citation omitted).

We have previously held that involuntarily exposing inmates to COVID-19 satisfies the Eighth

Amendment's objective prong. See id. Defendants argue that the right Plaintiffs assert is not a conditions

of confinement claim, but rather the right to "an

overall `reasonable' pandemic response in the aggregate," which is not protected by the Eighth Amendment. However, we reject this argument as Plaintiffs

are class members who are each alleging that they

were involuntarily exposed to COVID-19 in their correctional facilities at the height of the pandemic.

Thus, they are asserting the same conditions of confinement claim that we have already found satisfies

the Eighth Amendment's objective prong. See id.

The subjective component of a conditions of confinement claim based on exposure to a hazard "requires a plaintiff to allege that officials `kn[ew] of and

disregard[ed] an excessive risk to inmate health or

safety." Id. at 767 (alteration in original) (quoting

Farmer, 511 U.S. at 837). The district court found

that there were genuine issues of material fact regarding whether Defendants consciously disregarded

the substantial risk of harm COVID-19 posed to

Plaintiffs. Specifically, it found that genuine issues of

material fact remained as to whether Defendants (1)

implemented and enforced a masking policy and

whether that policy was consistent with then-current

public health guidance; (2) adopted housing policies to

minimize mixing of AICs from different housing

units; (3) implemented a policy of testing symptomatic AICs and symptomatic close contacts of confirmed

COVID-19 cases; (4) adopted a policy of testing

asymptomatic close contacts; (5) enforced a quarantine policy; or (6) considered using empty facilities or

spaces to improve social distancing.

We are bound by the district court's determination

that, as a matter of law, genuine issues of material

fact exist to preclude a declaration of liability now.

See Eng, 552 F.3d at 1067. And construing the genuine issues of material fact identified by the district

court in Plaintiffs' favor would satisfy the subjective

prong of their Eighth Amendment claim, as it would

show that Defendants acted with deliberate indifference. Thus, at this stage, we cannot decide as a matter of law that Defendants did not violate Plaintiffs'

Eighth Amendment rights.

2. The right Plaintiffs assert was also clearly established at the time of Defendants' conduct. "[A]n

inmate's right to be free from exposure to a serious

disease . . . has been clearly established since at least

1993, when the Supreme Court decided Helling v.

McKinney, 509 U.S. 25 (1993)." Hampton, 83 F.4th at

769-70 (collecting cases). Thus, we have previously

held that that "all reasonable prison officials would

have been on notice in 2020 that they could be held

liable for exposing inmates to a serious disease, including a serious communicable disease," like

COVID-19. Id. at 770.

Defendants cannot prove that they are entitled to

qualified immunity as a matter of law at this stage.

The district court identified genuine issues of material fact underlying whether Defendants acted with deliberate indifference. If a reasonable jury resolves

these questions in Plaintiffs' favor, then it could find

that Defendants violated Plaintiffs' clearly established Eighth Amendment rights. But that requires

the fact finder to determine what we cannot at this

stage of the litigation.

AFFIRMED.

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

Case No. 6:20-cv-00570-SB

OPINION AND ORDER

PAUL MANEY; GARY CLIFT; GEORGE NULPH;

THERON HALL; DAVID HART; SHERYL LYNN

SUBLET; and FELISHIA RAMIREZ, a personal

representative for the ESTATE OF JUAN TRISTAN,

individually, on behalf of a class of others similarly

situated,

Plaintiffs

STATE OF OREGON; KATE BROWN; COLETTE

PETERS; HEIDI STEWARD; MIKE GOWER; MARK

NOOTH; ROB PERSSON; KEN JESKE; PATRICK

ALLEN; JOE BUGHER; and GARRY RUSSELL,

Defendants.

BECKERMAN, U.S. Magistrate Judge.

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Plaintiffs Paul Maney ("Maney"), Gary Clift ("Clift"),

Theron Hall ("Hall"), David Hart ("Hart"), and Sheryl

Lynn Sublet ("Sublet"),1 adults in custody ("AIC") at

Oregon Department of Corrections ("ODOC") institutions, along with Felishia Ramirez ("Ramirez"), the personal representative for the Estate of Juan Tristan

("Tristan") (together, "Plaintiffs"), filed this civil rights

class action pursuant to 42 U.S.C. § 1983 against the

State of Oregon, Kate Brown ("Governor Brown"), Colette Peters ("Peters"), Heidi Steward ("Steward"), Mike

Gower ("Gower"), Mark Nooth ("Nooth"), Rob Persson

("Persson"), Ken Jeske ("Jeske"), Joe Bugher ("Bugher"), and Garry Russell ("Russell") (together, "Defendants"). 2

Several motions are currently pending before the

Court: (1) Defendants' motion for summary judgment

on all claims (ECF No. 512), (2) Defendants' motion for

partial summary judgment on claims against Jeske

(ECF No. 494), (3) Defendants' motion for partial summary judgment related to the Oregon Tort Claims Act's

("OTCA") single accident or occurrence limitation (ECF

No. 493), (4) Defendants' motion for partial summary

judgment related to damages and class certification of

Plaintiffs' state law claims (ECF No. 489), (5) Defendants' motion in the alternative to modify the class defiPlaintiff George Nulph ("Nulph") dismissed all of his claims

against Defendants on March 8, 2024. (Stipulation of Dismissal

at 2, ECF No. 624.)

2 Plaintiffs dismissed all claims against Defendant Patrick Allen

("Allen") on March 15, 2024. (Stipulation of Dismissal, ECF No.

628.)

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nition (ECF No. 496), and (6) Plaintiffs' motion for partial summary judgment (ECF No. 510).

All parties have consented to the jurisdiction of a

magistrate judge pursuant to 28 U.S.C. § 636. For the

reasons that follow, the Court (1) grants in part and denies in part Defendants' motion for summary judgment

on all claims, (2) grants Defendants' motion for partial

summary judgment on claims against Jeske, (3) denies

with leave to renew post-trial Defendants' motion for

partial summary judgment related to the OTCA single

accident or occurrence limitation, (4) denies Defendants'

motion for partial summary judgment related to damages and class certification of Plaintiffs' state law

claims, (5) denies Defendants' motion in the alternative

to modify the class definition, and (6) grants in part and

denies in part Plaintiffs' motion for partial summary

judgment on Defendants' affirmative defenses.

BACKGROUND3

This is a class action against the State of Oregon,

the former governor of Oregon, the Oregon Corrections

Enterprises ("OCE") Administrator, and various highlevel ODOC officials related to Defendants' response to

the COVID-19 ("COVID") pandemic in ODOC institutions.

CONTEXT

Many facts included in this background section are undisputed,

but some are not. "Where the evidence is in conflict, [the Court] recount[s] it in the light most favorable to . . . the non-moving party."

Tuuamalemalo v. Greene, 946 F.3d 471, 474 (9th Cir. 2019) (per curiam).

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ODOC is a State of Oregon executive agency which the

governor oversees. See OR. REV. STAT. ("ORS") §§

401.168(1), 423.020. At the beginning of the COVID

pandemic and the inception of this case, ODOC had

fourteen active facilities across Oregon: Coffee Creek

Correctional Facility ("CCCF"), Columbia River Correctional Institution ("CRCI"), Deer Ridge Correctional Institution ("DRCI"), Eastern Oregon Correctional Institution ("EOCI"), Mill Creek Correctional Facility

("MCCF"), Oregon State Correctional Institution ("OSCI"), Oregon State Penitentiary ("OSP"), Powder River

Correctional Facility ("PRCF"), Santiam Correctional

Institution ("SCI"), Shutter Creek Correctional Institution ("SCCI"), Snake River Correctional Institution

("SRCI"), South Fork Forest Center ("SFFC"), Two Rivers Correctional Institution ("TRCI"), and Warner

Creek Correctional Facility ("WCCF"). (See Decl. Nadia

Dahab ("Dahab Decl.") Supp. Pls.' Resp. Br. All Claims

("Pls.' Resp. All Claims") Ex. 13 at 5, 9, ECF No. 54713);

see also Or. Dep't. of Corr., About Us: Prison Locations,

https://web.archive.org/web/

20200406194705/https://www.oregon.gov/doc/about/Pag

es/prison-locations.aspx (Apr. 6, 2020). OCE is a semiindependent state agency that runs jobsites for AICs

housed in several ODOC institutions. See ORS §§

421.344, 421.354.

II.

THE PARTIES

Maney is an AIC at OSCI in Salem, Oregon, and

Clift was previously incarcerated at OSCI during the

Damages Class period. (Seventh Am. Compl. ("SAC")

¶¶ 3-4, ECF No. 482.) Hall is an AIC at OSP in Salem,

Oregon, and Hart was previously incarcerated at OSP

during the Damages Class period. (Id. ¶¶ 6-7.) Sublet

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was previously incarcerated at CCCF in Wilsonville,

Oregon. (Id. ¶ 8.) Ramirez is the personal representative for the Estate of Tristan, who contracted COVID

while incarcerated at OSP and subsequently died. (Id. ¶

9.)

The State of Oregon is a sovereign state entity with

the capacity to sue and be sued pursuant to the OTCA.

¶ 10.) At all relevant times, Governor Brown was the

Governor of the State of Oregon (id. ¶ 11); Peters was

the Director of ODOC (id. ¶ 12); Steward was the Deputy Director of ODOC (id. ¶ 13); Gower was ODOC's Assistant Director of Operations (id. ¶ 14); Nooth was

ODOC's Eastside Institutions Administrator and was

responsible for operations at six ODOC institutions (id.

¶ 15); Persson was ODOC's Westside Institutions Administrator and was responsible for the remaining eight

ODOC institutions (id. ¶ 16); Bugher was the Assistant

Director of Health Services for ODOC (id. ¶ 19); Russell

was the Chief of Security for ODOC (id. ¶ 20); and Jeske

was the OCE Administrator (id. ¶ 17). Bugher and Russell led ODOC's Agency Operations Center ("AOC") during the relevant time period. (Decl. Anit Jindal Supp.

Defs.' Mot. All Claims ("Jindal Decl.")4 Ex. D, Decl.

Garry Russell ("Russell Decl.") ¶ 11; Jindal Decl. Ex.

E, Decl. Joe Bugher ("Bugher Decl.") ¶ 2; Decl. Heidi

Steward Supp. Defs.' Resp. Pls.' Mot. TRO ("Steward

Decl.") ¶ 11, ECF No. 83.)

4 All exhibits to Anit Jindal's declaration in support of Defend-

ants' motion for summary judgment on all claims are available

at ECF No. 516-1 unless otherwise noted.

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III. THE C LA IMS

Plaintiffs allege that Defendants violated the Eighth

Amendment by subjecting AICs to cruel and unusual

punishment by failing to protect them from heightened

exposure to COVID. (SAC ¶ 91.) Among other allegations, Plaintiffs assert that Defendants failed promptly

and continuously to implement and enforce a mask

mandate; screen employees for COVID symptoms and

exposure when entering ODOC facilities; provide

COVID testing to AICs with COVID symptoms or those

exposed to COVID; follow Centers for Disease Control

and Prevention ("CDC") guidelines and implement necessary public health measures to protect against the

spread of COVID in ODOC institutions; implement and

enforce proper quarantine and social distancing; prevent mixing between and among AICs, ODOC staff,

and contractors; implement additional Oregon Occupational Safety and Health Division ("OSHA") guidance to

protect against workplace transmission of COVID; and

allowed and implemented a "tier system" for COVID

response contrary to public health guidance. (Id. ¶ 92.)

Further, Plaintiffs allege that Defendants did not consider, evaluate, or use emergency beds or empty spaces

to create space for AIC distancing but instead closed

ODOC facilities, which exacerbated the risk from

COVID resulting from Governor Brown's failure meaningfully to consider and implement options for population reduction. (Id.)

Plaintiffs also allege a negligence claim. (Id. at 40.)

Specifically, Plaintiffs allege that Defendants failed

promptly and continuously to ensure that AICs, employees, OCE employees, and contractors wore masks;

failed to screen employees for COVID symptoms and

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exposure when entering ODOC facilities; failed to implement and enforce social distancing policies; failed to

provide COVID testing to AICs with COVID symptoms

or those exposed to COVID; failed properly to quarantine AICs awaiting COVID testing results; failed properly to quarantine AICs after transferring them from a

facility with confirmed COVID infections to another facility; allowed mixing between and among AICs and

ODOC staff and contractors without regard to the risk

that AICs would or could become exposed to COVID;

and failed to consider the use of alternative space to increase the space available for AIC social distancing. (Id.

¶¶ 100-101.)

Finally, Plaintiffs allege wrongful death claims.

(Id. at 41.) Plaintiffs allege that, as a result of Defendants' negligence, COVID caused or contributed to

the death of Tristan, and his estate sustained damages as a result. (Id. ¶ 105.)

IV.

PROCEDURAL HISTORY

The parties are well aware of the extensive course of

litigation in this case and therefore the Court provides

only a brief summary of the procedural history. Plaintiffs filed this action in April 2020. (Compl., ECF No. 1.)

The Court denied Plaintiffs' motion for a temporary restraining order and preliminary injunction in June

2020. (Prelim. Inj. Op. & Order, ECF No. 108.) Following Plaintiffs' Second Amended Complaint, Defendants

moved for partial summary judgment on the damages

portion of Plaintiffs' Eighth Amendment claim and the

entirety of Plaintiffs' negligence claim. (ECF No. 115.) In

December 2020, the Court granted in part and denied in

part Defendants' motion, entering partial summary

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judgment on the grounds of discretionary immunity

with respect to some parts of Plaintiffs' negligence claim

and rejecting Defendants' assertion of qualified immunity on Plaintiffs' Eighth Amendment claim. (Mot.

Partial Summ. J. Op. & Order, ECF No. 149.)

In April 2022, the Court granted Plaintiffs' motion

for class certification and certified two classes: the

Damages Class and the Wrongful Death Class. (Class

Certification Op. & Order, ECF No. 377.) The Damages

Class commenced on March 8, 2020, and closed on May

31, 2022, and class members are adults incarcerated in

ODOC facilities who were incarcerated at any point on

or after February 1, 2020, and who, while incarcerated,

tested positive or were otherwise diagnosed with

COVID at least fourteen days after the AIC entered

ODOC custody. (Id. at 5354; Joint Proposed Class Notice Plan at 2, ECF No. 386; Order, ECF No. 387.) The

Wrongful Death Class commenced on March 8, 2020,

and closed on May 31, 2022, and includes the estates of

those adults incarcerated at ODOC facilities continuously since February 1, 2020, who died during the

Wrongful Death Class period, and for whom COVID

caused or contributed to their death. (Class Certification Op. & Order at 54; Joint Proposed Class Notice

Plan at 5; Order, ECF No. 387.) Defendants petitioned

for interlocutory appeal of the Court's class certification

order. (ECF No. 384.) The Ninth Circuit denied the petition for permission to appeal. (Notice, ECF No. 388.)

The Court denied Defendants' motion to dismiss

Plaintiffs' vaccine priority claim against Governor

Brown and Allen based on immunity under the Public

Readiness and Emergency Preparedness ("PREP") Act.

(Mot. Dismiss Op. & Order, ECF No. 350.) Defendants

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appealed (ECF No. 367), and the Ninth Circuit concluded that Governor Brown and Allen are immune from

suit and liability with respect to Plaintiffs' vaccine prioritization damages claim. Maney v. Brown, 91 F.4th

1296, 1303 (9th Cir. 2024). The parties have stipulated

to dismissal of the vaccine prioritization claim against

Governor Brown and Allen and all other claims

against Allen. (Stipulations of Dismissal, ECF Nos.

624, 628.)

In November 2023, the Court granted Plaintiffs'

motion for leave to file a Seventh Amended Complaint. (Order, ECF No. 481.) Now before the Court

are the parties' motions for summary judgment. The

Court held oral argument on the motions on February

28, 2024, and March 1, 2024. (ECF Nos. 619-20.)

LEGAL STANDARDS

Summary judgment is proper if "there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. Cw. P.

56(a). At the summary judgment stage, the court views

the facts in the light most favorable to the non-moving

party and draws all reasonable inferences in favor of

that party. See Porter v. Cal. Dep't of Corr., 419 F.3d

885, 891 (9th Cir. 2005) (citation omitted). The court

does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986). "Where the record taken as a whole could not

lead a rational trier of fact to find for the non-moving

party, there is no `genuine issue for trial.' Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986) (quoting First Nat'l Bank of Ariz. V. Cities

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Serv. Co., 391 U.S. 253, 289 (1968)).

DISCUSSION

Defendants move for summary judgment on all

claims. (Defs.' Mot. Summ. J. All Claims ("Defs.' Mot.

All Claims").) In the alternative, Defendants move for

(1) summary judgment on claims against Jeske (Defs.'

Jeske Mot. Partial Summ. J. ("Defs.' Jeske Mot.")), (2)

partial summary judgment pursuant to the OTCA' s

single accident or occurrence limitation (Defs.' OTCA

Mot. Partial Summ. J. ("Defs.' OTCA Mot.")), (3) partial

summary judgment regarding damages and class certification of state law claims (Defs.' Damages & State Law

Claims Mot. Partial Summ. J. ("Defs.' Damages Mot.")),

and (4) modification of the class definition (Defs.' Mot.

Modify Class Definition ("Defs.' Modify Mot.")). Plaintiffs move for summary judgment on several of Defendants' affirmative defenses. (Pls.' Mot. Partial Summ. J.

("Pls.' Mot.").)

The Court first considers Defendants' motion on

all claims. Because the Court largely denies Defendants' motion for summary judgment on all claims, the

Court next considers Defendants' motions in the alternative and Plaintiffs' motion.

DEFENDANTS' MOTION FOR SUMMARY

JUDGMENT ON ALL CLAIMS

Defendants move for summary judgment on all

claims, arguing that (1) they are entitled to absolute

immunity on some aspects of Plaintiffs' Eighth

Amendment claim, there is no genuine issue of material

fact about the constitutionality of their response to

COVID in ODOC institutions, and they are entitled to

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qualified immunity, and (2) regarding all claims, there

is no genuine issue of material fact that Defendants

caused harm to the Plaintiffs. (Defs.' Mot. All Claims at

15, 24-67.)

Governor Brown

Defendants argue that Governor Brown is entitled to

absolute immunity for her clemency decisions5 closure

of two facilities, and her alleged failure to consider using two empty prison facilities. (Id. at 31-32, 38-42.)

Defendants move for summary judgment on all of

Plaintiffs' claims against Governor Brown. (See id.)

Background

In March 2020, Governor Brown declared a

statewide emergency. (Steward Decl. ¶ 13.) With respect to ODOC, she personally received reports and updates and oversaw ODOC's response to COVID. (Id. ¶

87; Steward Decl. Ex. 11, ECF No. 83-1; Dahab Decl.

Ex. 10, Depo. Colette Peters ("Peters Depo.") at 24:2325:17, Jan. 18, 2023, ECF No. 547-10; Dahab Decl. Ex.

29, Depo. Constantin Severe ("Severe Depo.") at 150:925, ECF No. 547-29.) For example, Governor Brown reDuring the pandemic, Governor Brown continued to process

clemency applications pursuant to her normal clemency process

in addition to her COVID-related early release decisions. (See

Jindal Decl. Ex. 37, Depo. Kevin Gleim 48:16-49:7.) Her authority to grant early release in both instances is one and the same.

See OR. CONST., art. V, §§ 9, 14 (granting the governor of Oregon the "power to grant reprieves, commutations, and pardons").

For purposes of this opinion, the Court refers to Governor

Brown's COVID-related early release decisions as her "clemency

decisions."

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quested and received weekly reports on the number of

COVID cases within ODOC, and Peters reported to her

on changes to the CDC or Oregon Health Authority

("OHA") guidelines and conveyed information about

ODOC's daily operations. (Severe Depo. at 150:925; Peters Depo. at 24:23-25:17.)

In April 2020, ODOC presented Governor Brown

with an estimate that 5,800 AICs would need to be released to achieve six feet of social distancing. (Steward

Decl. ¶ 87.) ODOC provided Governor Brown with various release scenarios that the Governor could implement to achieve a 5,800-person reduction to ODOC institutions' populations. (See generally Steward Decl. Ex.

11.) Governor Brown never pursued any of those options. (Pls.' Resp. at 14.)

Instead, in June 2020, Governor Brown requested

that ODOC "perform a case-by-case analysis of adults in

custody vulnerable to COVID-19 for possible commutation" based on a set of criteria. (Dahab Decl. Ex. 75, ECF

No. 547-75.) Governor Brown categorically excluded

from her COVID-based clemency considerations any

AICs incarcerated for "a person crime." (Id.) By December 2020, Governor Brown had approved the release

of fewer than 350 AICs.6 (Dahab Decl. Ex. 81, ECF

Plaintiffs present evidence of other jurisdictions' early release

numbers as comparators. (See Jindal Second Daubert Mot. Decl.

Ex. 2, David Fleming Expert Report ("Fleming Report") at 46-47,

ECF No. 503-2, comparing Oregon to New Jersey and North Carolina, among others; SAC at 17-20 nn.16-40, citing sources documenting release numbers in Alabama, California, Colorado, Illinois,

Iowa, Kentucky, New Jersey, New York, North Carolina, North

Dakota, Ohio, Pennsylvania, Rhode Island, South Carolina, Texas,

and Washington); see Cal. Dep't of Corr. & Rehab., Actions to Re6

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No. 547-81.)

During the class period, two ODOC facilities—DRCI

Minimum and OSP Minimum—largely remained empty, apart from the temporary use of DRCI during the

2020 wildfire evacuations. (See Peters Depo. 64:3-24;

Dahab Decl. Ex. 24 at 5, ECF No. 547-24.) The Oregon

legislature had set ODOC's budget for the 2019 to 2021

biennium in 2019 and had not included a budget for the

two facilities. (See Dahab Decl. Ex. 26, Depo. Steve

Robbins ("Robbins Depo.") at 13:18-14:3, ECF No. 54726; Decl. Steve Robbins Supp. Defs.' Mot. All Claims

("Robbins Decl.") ¶ 11, ECF No. 514); Legislative Fiscal

Office, 2019-21 Budget Highlights (Sept. 2019),

https://perma.cc/VCV2-MVTW.

Plaintiffs present evidence that Governor Brown

and the other Defendants never considered using

ODOC's two empty facilities in their response to

COVID to facilitate social distancing, and Defendants

do not appear to dispute that they took no action to

make use of those facilities. (See, e.g., Peters Depo. at

63:8-65:9, testifying that she did not recall discussing

using empty facilities; Robbins Depo. at 29:17-22, 36:1220, suggesting that Defendants did not discuss using

empty facilities; Dahab Decl. Ex. 72, Depo. Devarshi

Bajpai ("Bajpai Depo.") at 21:7-13, ECF No. 547-72, explaining that ODOC did not take into account space in

duce Population and Maximize Space, https://perma.cc/JU2D-6PDV

(releasing 3,500 AICs in April 2020 and releasing more thereafter).

In summary, there is evidence suggesting that Governor Brown

granted clemency in response to COVID to far fewer AICs than did

numerous other states.

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unused facilities when considering how many AICs

would need to be released to achieve social distancing;

cf. Decl. Anit Jindal Supp. Defs.' Reply Pls.' Resp. All

Claims ("Jindal Reply Decl.") Ex. 2, Depo. Paula Myers ("Myers Depo.") 72:3-23, ECF No. 600-2, "I think

at one point in time there was discussion about

whether or not . . . [OSP Minimum] was an option . . .

as a medical unit"; Jindal Decl. Ex. 3 at 5, ECF No.

517, indicating that the AOC approved use of one

complex of the four dorms at DRCI Minimum without

explanation of why the complex was ultimately not

put to use.)

Instead, in December 2020, Governor Brown announced that she intended to close three additional facilities over the next year and a half. (Dahab Decl. Ex.

25, ECF No. 547-25; Dahab Decl. Ex. 84, ECF No. 54784.) The closures were part of Governor Brown's proposed 2021 to 2023 biennium budget presented to the

legislature at the end of 2020. (Dahab Decl. Ex. 84;

Jindal Decl. Ex. 41, Depo. Nik Blosser ("Blosser Depo.")

76:12-77:2); see generally ORS § 291.200 (describing the

requirements applicable to the governor when preparing her budget for the legislative assembly). The state

economist had provided Governor Brown with a report

forecasting a significant decrease in the number of AICs

housed in ODOC facilities. (Blosser Depo. 77:3-13.) Accordingly, Governor Brown proposed closing three facilities. (Id. at 76:19-77:17.) Ultimately, the Oregon Legislative Assembly voted on and passed a budget based on

Governor Brown's proposal. See Or. Laws. 2021, ch.

468, §§ 1-3. Two of the prisons closed within the year.

(Peters Depo. at 104:10-13); see also Legislative Fiscal

Office, 2021-23 Legislatively Approved Budget at 140

23a

(Nov. 2022), https://perma.cc/HS4V-TLAP (explaining

that the 2021 to 2023 legislatively adopted budget was

6.6 percent less than the 2019 to 2021 budget primarily

because of the closure of MCCF and SCCI).

Absolute Immunity

In their answer, Defendants raise absolute legislative immunity and absolute quasi-judicial immunity as

affirmative defenses. (Answer ¶¶ 100-101, ECF No.

486.) Before the Court are cross motions for partial

summary judgment on those affirmative defenses. (See

Defs.' Mot. All Claims at 31-32, 38-42; Pls.' Mot. at 2633.) Specifically, Defendants argue that Governor

Brown is entitled to absolute quasi-judicial immunity

related to her clemency decisions, or alternatively, that

Governor Brown is entitled to absolute legislative immunity for developing criteria for COVID-related early

release because it was a legislative function. (Defs.'

Mot. All Claims at 31-32.) Defendants also argue that

Governor Brown is entitled to legislative immunity for

proposing a budget to the legislature resulting in the

closure of facilities and for not making use of empty facilities because Governor Brown has absolute legislative immunity for the act of recommending a budget to

the state legislature and because utilizing vacant facilities "would have required legislative appropriations."

(Id. at 38-42.)

a. Quasi-Judicial Immunity

Applicable Law

"A judge is absolutely immune from liability for [the

judge's] judicial acts[.]" Stump v Sparkman, 435 U.S.

349, 359 (1978). Other officials are entitled to immunity

24a

"in the performance of quasi-judicial duties." Sellars v.

Procunier, 641 F.2d 1295, 1301 n.13 (9th Cir. 1981)

(quoting Silver v. Dickson, 403 F.2d 642, 643 (9th Cir.

1968)); Burton v. Infinity Cap. Mgmt., 862 F.3d 740,

747 (9th Cir. 2017) ("Absolute immunity is not reserved

solely for judges, but extends to nonjudicial officers for

all claims relating to the exercise of judicial functions.")

(simplified).

"The justification for absolute immunity is the

protection of the judicial process." Burton, 862 F.3d at

747. "It shields independent and impartial adjudication and prevents the `deflection of [an officer's] energies from [the officer's] public duties.' Id. (quoting

Burns v. Reed, 500 U.S. 478, 485 (1991)).

When determining whether an act is judicial and

quasi-judicial immunity applies, courts take a "functional approach." Gay v. Parsons, 61 F.4th 1088, 1091

(9th Cir. 2023) (applying Antoine v. Byers & Anderson,

Inc., 508 U.S. 429 (1993)). "To qualify for absolute immunity, the function performed must be a judicial act

with `a sufficiently close nexus to the adjudicative process.' Burton, 862 F.3d at 747-48 (quoting Curry v. Castillo, 297 F.3d 940, 948 (9th Cir. 2002), as amended

(Sept. 6, 2002)). The Supreme Court has explained that

characteristics of the judicial process include "(a) the

need to assure that the individual can perform [the official's] functions without harassment or intimidation; (b)

the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary

nature of the process; and (f) the correctability of error

on appeal." Cleavinger v. Saxner, 474 U.S. 193, 202

25a

(1985) (citing Butz v. Economou, 438 U.S. 478, 512

(1978)). However, "the `touchstone' of the doctrine is the

`performance of the function of resolving disputes between parties, or of authoritatively adjudicating private

rights.' Gay, 61 F.4th at 1092 (quoting Antoine, 508 U.S.

at 435-36). The doctrine also requires "the exercise of

discretionary judgment[.]" Burton, 862 F.3d at 748 (noting that a court reporter transcribing a transcript verbatim is not entitled to quasi-judicial immunity).

"The Supreme Court has been quite sparing in its

recognition of absolute immunity, and has refused to

extend it any further than its justification would warrant." Id. at 747 (quoting Castillo, 297 F.3d at 947).

"[T]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the

function in question, and the presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties."

Gay, 61 F.4th at 1091 (simplified) (quoting Burns, 500

U.S. at 486-87).

Analysis

The Court concludes that quasi-judicial immunity bars Plaintiffs' claims against Governor Brown

related to her clemency decisions.

The Ninth Circuit has never confronted whether

quasi-judicial immunity protects a governor's clemency

decisions. The closest comparator is applying quasijudicial immunity to parole board officials, who are also

government officials deciding whether to release an AIC

from custody before the expiration of a valid sentence.

With respect to parole decisions, the Supreme Court in

"Antoine adopted a functional approach, under which

26a

[courts] must determine not whether an action `relates

to' the decision to grant, deny, or revoke parole . . . but

whether an action is taken by an official `performing a

duty functionally comparable to one for which officials

were rendered immune at common law.'" Swift v. California, 384 F.3d 1184, 1190 (9th Cir. 2004) (quoting Miller v. Gammie, 335 F.3d 889, 897 (9th Cir. 2003)). The

Ninth Circuit has explained that parole board officials,

when processing parole applications, "render impartial

decisions in cases and controversies that excite strong

feelings because the litigant's liberty is at stake."

Sellars, 641 F.2d at 1303. Accordingly, like judges, parole board officials "face the same risk of constant unfounded suits by those disappointed by the parole

board's decisions." Id.

The Ninth Circuit recently held that "a sentencing

review board, or a parole board, is generally entitled to

quasi-judicial immunity for judicial-related actions."

Fort v. Washington, 41 F.4th 1141, 1144 (9th Cir. 2022).

In Fort, the Ninth Circuit concluded that scheduling an

Indeterminate Sentencing Review Board hearing was

sufficiently intertwined with judicial decision-making

such that absolute immunity applied. Id. at 1142-43.

The court explained that quasi-judicial immunity can

apply to non judicial officers for acts that are "part of

the judicial function[.]" Id. at 1145 (simplified). The

Ninth Circuit noted that other federal appellate courts

uniformly agree. Id. For example, "[t]he Seventh Circuit determined that `activities that are inexorably

connected with the execution of parole revocation procedures and are analogous to judicial action invoke absolute immunity.' Id. (quoting Wilson v. Kelkhoff, 86

F.3d 1438, 1444 (7th Cir. 1996)). The Seventh Circuit

27a

had clarified "that it is `not only the actual decision to

revoke parole' that is protected by judicial immunity,

`but also activities that are part and parcel of the decision process.' Id. (quoting Wilson, 86 F.3d at 1444).

The Court concludes that Governor Brown's exercise

of clemency similarly has a sufficiently close nexus to

the adjudicative process to receive immunity. See Conn.

Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981)

("A commutation decision therefore shares some of the

characteristics of a decision whether to grant parole."

(citing Greenholtz v. Neb. Penal Inmates, 442 U.S. 1, 910 (1979))); Brown v. Cal. Dep't of Corr., 554 F.3d 747,

750 (9th Cir. 2009) (noting that a "state prosecutor was

absolutely immune for opposing a grant of executive

clemency because the determination of executive clemency, like a parole decision, is an extension of the sentencing process" (citing Lucien v. Preiner, 967 F.2d

1166, 1167-68 (7th Cir. 1992))); Waterbury v. Perez, No.

1:06-cv-0163-LJODLBPC, 2008 WL 4367581, at *4

(E.D. Cal. Sept. 23, 2008) (concluding that the chairperson of the Board of Prison Terms was entitled to absolute immunity "for decisions made on plaintiff's applications for commutation"); Williams v. Garvey, No. 05-cv2287-PHX-SMML, 2006 WL 2456402, at *1 (D. Ariz.

Aug. 21, 2006) ("The members of the Board of Executive

Clemency are immune from suit because their official

actions are comparable to those of judges."), aff'd, 255

F. App'x 272 (9th Cir. 2007); see also Blankenship v.

Stitt, No. CIV-22-00958-PRW, 2024 WL 733654, at *3

(W.D. Okla. Feb. 22, 2024) ("The Court agrees that

commutation reviews and recommendations made by

the Parole Board pursuant to its legal duties are quasijudicial functions warranting absolute immunity.");

28a

Chambers v. Granholm, No. 1:11-cv-42, 2011 WL

447016, at *2 (W.D. Mich. Feb. 4, 2011) ("The actions

for which Plaintiff complains were taken by defendant

parole board members in their quasi-judicial role of

making a recommendation to the governor regarding an

application for commutation. Therefore, the members of

the Parole and Commutation Board are entitled to absolute immunity from Plaintiff's claims for monetary

damages.").

Clemency decisions authoritatively adjudicate

clemency requests and governors "render impartial decisions in cases and controversies that excite strong

feelings because the litigant's liberty is at stake."

Sellars, 641 F.2d at 1303. Further, the governor exercises discretion in her clemency decisions. See Ohio

Adult Parole Auth. v. Woodard, 523 U.S. 272, 282

(1998) ("[T]he ultimate decisionmaker, the Governor,

retains broad [clemency] discretion."). Finally, like

judges, governors "face the same risk of constant unfounded suits by those disappointed by" clemency decisions. Sellars, 641 F.2d at 1303; see also Dumschat,

452 U.S. at 464 ("[P]ardon and commutation decisions

have not traditionally been the business of courts; as

such, they are rarely, if ever, appropriate subjects for

judicial review.") (citation omitted).

Plaintiffs argue that they do not challenge any individual release decision nor do they assert that the

Eighth Amendment required Governor Brown to release

all 5,800 AICs forecasted by ODOC as necessary to

achieve social distancing. (See Pls.' Resp. Defs.' Mot.

Dismiss at 11, ECF No. 254, "Plaintiffs do not allege a

deprivation of their Eighth Amendment rights based on

a failure by Governor Brown to release them." (simpli-

29a

fied); Pls.' Resp. All Claims at 89, "Plaintiffs do not challenge any individual release decisions.") Instead, they

argue that Governor Brown's choice to exclude AICs incarcerated for "person crimes" from consideration is evidence of her mental state and her deliberate indifference to the health and safety of AICs during the pandemic. (See Pls.' Resp. All Claims at 54-55.) Excluding

AICs incarcerated for "person crimes" meant that the

vast majority of AICs would not receive early release

consideration. (Id. at 54; David Sugerman Daubert

Decl. ("Sugerman Decl.") Ex. 1, John Pfaff Expert Report at 3, ECF No. 568.) In other words, Governor

Brown knew of the importance of social distancing,

knew ODOC's forecast about the necessary release

numbers, and yet chose to limit clemency in a manner

that would never achieve adequate social distancing.

The fact that Plaintiffs do not challenge any individual release decisions but rather Governor Brown's decision to exclude the vast majority of AICs from COVIDrelated clemency consideration does not change the

analysis. Her clemency criteria are inexorably connected

with her ultimate clemency decisions and part and parcel of the decision-making process. See Fort, 41 F.4th at

1146 (concluding that scheduling a sentencing review

board hearing was part and parcel of the decisionmaking process). Thus, challenging Governor Brown's

release decisions in the aggregate based on her criteria

is not substantively different than challenging the denial of clemency for each of the thousands of AICs she

deemed ineligible.

30a

Plaintiffs also argue that quasi-judicial immunity

does not apply because, in Oregon, the clemency process

does not involve an adversarial proceeding and there are

no procedural safeguards in place to protect an AIC's

interests, two characteristics of the judicial process.

(Pls.' Mot. at 32-33; see also Pls.' Reply Br. Defs.' Resp.

Pls.' Mot. Summ. J. ("Pls.' Reply") at 18, ECF No. 597.)

The Court agrees that many of the factors the Supreme

Court discussed in Cleavinger and Butz, such as adversarial proceedings and procedural safeguards, are not

present in the clemency process. Cf. Greenholtz, 442

U.S. at 7 (explaining that class action AICs do not have

a constitutional right to release before the expiration of

a valid sentence because "the conviction, with all its

procedural safeguards, has extinguished that liberty

right" (citing Meachum v. Fano, 427 U.S. 215, 224

(1976))). However, "the `touchstone' of the doctrine is

the `performance of the function of resolving disputes

between parties, or of authoritatively adjudicating private rights.'" Gay, 61 F.4th at 1092 (quoting Antoine,

508 U.S. at 435-36). Without question, Oregon's governor authoritatively determines whether to grant clemency. Cf id. at 1093 (denying absolute immunity to

board of parole hearings psychologists because they

were "not decisionmakers"). Further, in light of the liberty interest at stake, it is important for the governor to

perform the function of adjudicating clemency applications without harassment or intimidation.7 See Sellars,

641 F.2d at 1303.

Plaintiffs also argue that clemency is a political decision, not judicial. (Pls.' Reply at 18.) The result would be no different under that

line of reasoning because of the political questions doctrine. See

31a

For these reasons, the Court grants Defendants'

motion and denies Plaintiffs' motion for summary

judgment related to Governor Brown's clemency decisions. See Dumschat, 452 U.S. at 464 ("[P]ardon and

commutation decisions have not traditionally been

the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.") (citation

omitted).

Legislative Immunity

Applicable Law

"Under the doctrine of legislative immunity, members of Congress and state legislators are entitled to absolute immunity from civil damages for their performance of lawmaking functions." Jones v. Allison, 9 F.4th

1136, 1139-40 (9th Cir. 2021) (citing Tenney v.

Brandhove, 341 U.S. 367, 376-77, 379 (1951)).

"[O]fficials outside the legislative branch are entitled to

legislative immunity when they perform legislative

functions." Id. at 1140 (quoting Bogan v. Scott-Harris,

523 U.S. 44, 55 (1998)). "This immunity extends both to

claims for damages and claims for injunctive relief."

Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012)

("[A] controversy involves a political question where there is a textually demonstrable constitutional commitment of the issue to a

coordinate political department; or a lack of judicially discoverable

and manageable standards for resolving it.") (simplified); Cavazos

v. Smith, 565 U.S. 1, 9 (2011) ("If the clemency power is exercised

in either too generous or too stingy a way, that calls for political

correctives, not judicial intervention."); Marteeny v. Brown, 517

P.3d 343, 347 (Or. Ct. App. 2022) ("We are not called here to judge

the wisdom of the Governor's clemency [granted to specific individuals during COVID] . . . ; that is a political question.").

32a

Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945,

959 (9th Cir. 2010) (citing Sup. Ct. of Va. v. Consumers

Union of the U.S., Inc., 446 U.S. 719, 732-33 (1980)).

"[L]egislative immunity does not depend on the actor so much as the functional nature of the act itself."

Jones, 9 F.4th at 1140 (citing Bogan, 523 U.S. at 55).

Courts "determine whether an action is legislative by

considering four factors: (1) `whether the act involves

ad hoc decisionmaking, or the formulation of policy'; (2)

`whether the act applies to a few individuals, or to the

public at large'; (3) `whether the act is formally legislative in character'; and (4) `whether it bears all the

hallmarks of traditional legislation.' Kaahumanu v.

Cnty. of Maui, 315 F.3d 1215, 1220 (9th Cir. 2003)

(quoting Bechard v. Rappold, 287 F.3d 827, 829 (9th

Cir. 2002)).

Turning to the first factor, the Ninth Circuit has described ad hoc decisions as those "taken based on the

circumstances of the particular case and [that] did not

effectuate policy or create a binding rule of conduct." Id.

"An `ad hoc' decision is made `with a particular end or

purpose,' as distinguished from `a coordinated policy.'" Cmty. House, Inc., 623 F.3d at 961 (quoting Webster's New International Dictionary, Unabridged 26

(2002)).

Under the second factor, "[a]n act need not affect a

city's entire population in order to be considered legislative." Id. at 960. "It is sufficient that the act affects

a discrete group of people or places." Id. (citing Kaahumanu, 315 F.3d at 1220).

Under the third factor, formalities such as "acts of

voting," "introduction of a budget[,] and signing into law

33a

an ordinance" suggest that an act is formally legislative

in character. Bogan, 523 U.S. at 55; see also Schmidt v.

Contra Costa Cnty., 693 F.3d 1122, 1137 (9th Cir. 2012)

(noting that there was "an agenda, minutes were taken

and later approved, and certain formal procedures were

followed," suggesting that the act was formally legislative in character).

Under the fourth factor, "[t]he hallmarks of traditional legislation include the use of discretion, the making of policy that implicates budgetary priorities and

the provision of services, and prospective implications

that reach beyond the particular persons immediately

impacted." Schmidt, 693 F.3d at 1137 (citing Kaahumanu, 315 F.3d at 1223); see also Jones, 9 F.4th at

1141 ("They bore the hallmarks of legislation—they

were binding, policy-implementing rules that operated

much as laws passed by a state legislature would.");

Cmty. House, Inc., 623 F.3d at 960 (concluding that an

ordinance "passed by majority vote, . . . published in a

city's official newspaper, and . . . read on three different

days" satisfied the third and fourth factors). "Budgetary decisions, such as a decision to eliminate an employment position, typically involve the formation of

policy." Cmty. House, Inc., 623 F.3d at 961 (citing Bechard, 287 F.3d at 830); see id. (concluding that the

mayor and members of the city council were "entitled

to absolute legislative immunity for their actions in

promoting and approving the lease and sale of a property).

Analysis

The Court concludes that legislative immunity

applies to protect Governor Brown from Plaintiffs'

34a

claims regarding the closure of facilities.

Governor Brown's proposed budget and the resulting

facility closures are functionally legislative. Earmarking

a budget for ODOC, and the attendant closures, were

discretionary decisions and part of a larger, coordinated

policy, prioritizing state funding for other purposes. See,

e.g., Conrad Wilson, Oregon Gov. Kate Brown reverses

course, keeps Warner Creek prison open, OPB (May 14,

2021, 4:55 PM), https://perma.cc/VY8U-E8811 (explaining that Governor Brown "ultimately would like to reduce [Oregon]'s reliance on incarceration and invest

more dollars in the program areas that work to prevent

people from entering the criminal justice system, such

as behavioral health, education, housing, and substance

use disorder recovery and treatment"); see also Kissner

v. Loma Prieta Joint Union Sch. Dist., No. 22-cv-00949CRB, 2023 WL 5836974, at *17 (N.D. Cal. Sept. 8, 2023)

(concluding that "two ordinances bear all the hallmarks

of traditional legislation because they reflect a discretionary decision of the Board implicating the city's

budget and services") (citation omitted); Thomas v.

Baca, No. 04-cv-008448 DDP, 2005 WL 1030247, at *3

(C.D. Cal. May 2, 2005) ("Budget decisions bear all the

hallmarks of traditional legislation. They reflect discretionary policymaking that determines the services the

County provides to its citizens. Perhaps, most importantly, they require tradeoffs that apply to the public

at large, and thus inevitably leave some portion of the

citizenry dissatisfied.") (simplified). Governor Brown's

decision applied to a large group of people: the AICs

housed in the closing facilities, their families, many

ODOC staff, the surrounding communities, and AICs

and staff at the facilities used for housing those who

35a

were displaced. See Cmty. House, Inc., 623 F.3d at 960

(concluding that the sale of property that impacted the

houseless community applied to a sufficiently large

group of people, explaining that "[i]t is sufficient that

the act affects a discrete group of people or places" (citing Kaahumanu, 315 F.3d at 1220)); Allen v. Kramer,

No. 1:15-cv-01609-DAD-JDP, 2019 WL 932029, at *17

(E.D. Cal. Feb. 26, 2019) ("[A] purchase or sale of land

can constitute a formation of policy if it pertains to

budgetary concerns" and noting that "the annexation

affected the public at large: housing civil detainees[.]")

(citation omitted), report and recommendation adopted,

2019 WL 1370358 (E.D. Cal. Mar. 26, 2019).

Furthermore, the introduction of a budget is a recognized legislative formality. See Bogan, 523 U.S. at 55

("[The mayor]'s introduction of a budget and signing

into law an ordinance also were formally legislative,

even though he was an executive official."); see also

Bagley v. Blagojevich, 646 F.3d 378, 394-95 (7th Cir.

2011) (concluding that the governor was entitled to legislative immunity for proposing a state budget to the

state legislature and for vetoing a line item in a bill "in

order to save money"); Baraka v. McGreevey, 481 F.3d

187, 194-96 (3d Cir. 2007) (holding that the governor

was entitled to legislative immunity for advocating for

and signing a bill abolishing the state-funded position

of poet laureate).

For the same reasons, the Court also concludes that

Governor Brown is entitled to legislative immunity for

her role in Defendants' failure to make use of empty facilities. Because the 2019 legislature had already set

ODOC's budget, Governor Brown's role in utilizing empty facilities would have required a request for funding

36a

from the legislature. (See Dahab Decl. Ex. 84); ORS §

291.200. In this context, legislative immunity protects

Governor Brown from suit for damages relating to

budget prioritization, and therefore Governor Brown

is immune from liability for her budgetary decisions.8

Conclusion

In summary, the Court concludes that Governor

Brown is absolutely immune from Plaintiffs' claims

against her related to her clemency decisions, introduction of a budget resulting in facility closures, and

ODOC's failure to utilize empty facilities.9 Because

those are Plaintiffs' only remaining claims against Governor Brown, the Court grants summary judgment in

Governor Brown's favor on all claims against her. See

Brown, 554 F.3d at 751 (affirming grant of summary

judgment where absolute immunity barred the plaintiff's claim).

Legislative

fendants

Immunity:

ODOC

De-

Plaintiffs name various high-level ODOC officials

as defendants: Peters, Steward, Gower, Nooth,

8 Because the Court resolves Governor Brown's immunity concern-

ing her clemency decisions based on quasi-judicial immunity, the

Court does not address whether legislative immunity bars those

claims.

9 As Defendants acknowledge, the density, layout, and number

of AICs that ODOC housed during the time period at issue remain relevant to Plaintiffs' theory of liability and are not the

subject of Defendants' absolute immunity argument. (Defs.' Reply Br. Pls.' Resp. All Claims ("Defs.' Reply All Claims") at 24,

ECF No. 599.)

37a

Persson, Bugher, and Russell (together, the "ODOC

Defendants"). (SAC ¶¶ 1216, 19-20.) The ODOC Defendants argue that they are also entitled to legislative immunity for their failure to make use of the

empty prison facilities. (Defs.' Mot. All Claims at 3940.) The Court disagrees.

First, the Court notes that absolute immunity is

complete immunity from suit. See Cmty. House, Inc.,

623 F.3d at 959 ("This [legislative] immunity extends

both to claims for damages and claims for injunctive relief." (citing Sup. Ct. of Va., 446 U.S. at 732-33)). However, the Ninth Circuit has made clear that "Mack of

resources is not a defense to a claim for prospective relief because prison officials may be compelled to expand

the pool of existing resources in order to remedy continuing Eighth Amendment violations." Peralta v. Dillard,

744 F.3d 1076, 1083 (9th Cir. 2014) (en banc) (citations

omitted). In other words, prison officials cannot claim

legislative immunity any time an AIC's medical care or

protection would require additional funds. Lack of resources is a factual basis for a defense from liability for

damages but not a basis for absolute legislative immunity. See Farmer v. Brennan, 511 U.S. 825, 833 (1994)

("[H]aving stripped [AICs] of virtually every means of

self-protection and foreclosed their access to outside aid,

the government and its officials are not free to let the

state of nature take its course.") (citations omitted); Willis v. Wash. State Dep't of Soc. & Health Servs., No. 16cv-5113-RBL, 2017 WL 4180416, at *3 (W.D. Wash.

Sept. 21, 2017) ("Peralta concerned jury instructions on

[the defendant's] cost defense; it involved a question of

fact for the jury on whether, given the constraints facing

[the defendant], he had acted wantonly in delaying care

38a

to [the plaintiff]. It did not announce a blanket foreclosure on all § 1983 claims for damages against individual

defendants, but gave courts and jurors permission to

consider financial and other limiting constraints when

evaluating the wantonness of defendants' conduct. It

does not offer automatic immunity nor an absolute defense to those faced with budgetary constraints.") (citation omitted).

Second, although Defendants suggest that taking a

different course of action would have required requesting additional budget authority, that is a question of

disputed fact. Defendants point out that it would have

taken at least six months to staff the empty facilities on

a longer-term basis and that utilizing the empty facilities would have been expensive. (Robbins Decl. ¶¶ 11,

13-16.) However, ODOC did, in fact, use one of the empty facilities for short-term wildfire evacuations in September 2020. (See Dahab Decl. Ex. 24 at 5, noting that

ODOC used the empty minimum security facility at

DRCI for short-term wildfire evacuations in September

2020; Peters Depo. at 65:11-13; Robbins Decl. ¶ 12; see

also Peters Depo. at 64:14-15, ODOC used the empty

minimum security facility at OSP for training "and

other purposes"; Dahab Decl. Ex. 31 at 1-2, ECF No.

547-31, explaining that OSP minimum was already set

up with power, water, sewer, in-cell cable, single cell

housing with solid doors, and a recently serviced fire

system.) The record reflects that Defendants were able

to reallocate their existing resources to make use of the

empty facility in an emergency situation. (See Peters

Depo at 65:10-18.) Drawing reasonable inferences in

Plaintiffs' favor, a question of fact remains as to

whether Defendants could have reasonably utilized the

39a

unused facilities on an emergency, short-term basis in

response to the pandemic. (See Dahab Decl. Ex. 31 at 25, written proposal by the superintendent of CCCF to

make use of OSP Minimum on a limited basis without

reference to a need for legislative appropriations.)

Finally, there is no evidence before the Court that Defendants actually took steps to request funding related

to the empty facilities or that Defendants declined to

request funding as a matter of budgetary priority.

Plaintiffs present evidence that the budget for the unused facilities was set before the onset of COVID and

that new funding sources were available during

COVID, but that Defendants never considered requesting or using funding to enable the use of empty facilities.10 (See Robbins Depo. at 14:1-3, explaining that the

budget for 2019 to 2021 was developed in 2018; id. at

18:15-21, 19:17-23:9, describing various COVID-related

funding sources available upon request; id. at 39:6-10,

stating that no request for funding for the two empty

facilities was ever made); see Peralta, 744 F.3d at 1082

(concluding that the district court did not err by instructing the jury to consider "the context of the personnel, financial, and other resources available to [the

defendant] or which [the defendant] could reasonably

obtain").

10 Defendants argue that Plaintiffs have not met their burden of

establishing which federal funding could have fully supported

the relevant project. (Defs.' Reply All Claims at 30.) The Court

concludes that is a disputed question of fact.

40a

With respect to whether the ODOC Defendants

engaged in a legislative function by failing to consider

using empty facilities to allow AICs to socially distance, their indecision did not amount to a binding

rule of conduct applicable to the public at large

marked by the hallmarks of legislation.

The Court concludes that the ODOC Defendants'

failure to take any action related to reallocated space is

different than Governor Brown's role. Shifting beds and

staffing to an existing empty facility or reallocating

emergency COVID funding for spacing needs is more

akin to an ad hoc decision, in contrast to submitting a

budget request to the state legislature. See Selene v.

Legislature of Idaho, 514 F. Supp. 3d 1243, 1253 (D.

Idaho 2021) (concluding that legislative immunity did

not apply where "the accommodations provided are not

legislative because they are not a policy, but are an ad

hoc approach meant to deal with the ongoing effects of

this unique global pandemic") (citation omitted); see also Tohono O 'odham Nation v. Ducey, No. 15-cv-01135PHX-DGC, 2016 WL 3402391, at *4 (D. Ariz. June 21,

2016) (concluding that a closed council session focusing

on a particular real estate and development project was

ad hoc); U.S. ex rel. Teresa Teater v. Schrader, No. 05cv-623-HU, 2006 WL 1030165, at *8 (D. Or. Apr. 18,

2006) (concluding that the failure to respond to the

plaintiffs medical malpractice complaints was ad hoc).

In sum, Plaintiffs argue that Defendants failed to

consider making use of the empty prison facilities (Pls.'

Resp. All Claims at 84), and the Court concludes that a

disputed factual question with respect to whether the

ODOC Defendants could have utilized the empty space

without legislative action precludes a finding of legis-

41a

lative immunity on summary judgment. Cf. Peralta,

744 F.3d at 1082 (suggesting that prison officials with

control over the budget can be held responsible for

the inadequate allocation of resources).

PREP Act

Defendants argue that the PREP Act bars any challenge to Defendants' prioritization decisions regarding

offering COVID tests during the first year of the pandemic. (Defs.' Reply All Claims at 48.) Plaintiffs assert

that Defendants' argument is barred as untimely and

fails on substantive grounds because Plaintiffs do not

challenge Defendants' testing prioritization but instead

assert that Defendants failed to create adequate testing

policies and failed to administer tests pursuant to their

own policies. (Pls.' Surreply Br. Defs.' Reply All Claims

("Pls.' Surreply") at 1-2, ECF No. 607.)

As referenced earlier, the Ninth Circuit recently issued an opinion holding that the PREP Act bars Plaintiffs' claims related to vaccine prioritization. See Maney,

91 F.4th at 1303. The Ninth Circuit issued its opinion

after Defendants filed their motions for summary

judgment but before their reply briefs were due. As a

result and for the first time, Defendants argued in reply

that the PREP Act also bars Plaintiffs' claims that implicate testing prioritization. (Defs.' Reply All Claims at

48.)

The Court concludes that it is appropriate to consider Defendants' PREP Act argument raised for the first

time in Defendants' reply brief in light of the Ninth Circuit's intervening opinion. Although litigants cannot

point to new cases as a work-around to make new arguments in reply based on well-established doctrines,

42a

the Court concludes that the PREP Act's application in

the context of COVID was not clearly defined prior to

the Ninth Circuit's guidance in this case. See Westerlund

v. Murphy Overseas USA Astoria Forest Prod., LLC, No.

3:15-cv-1296-SI, 2018 WL 614710, at *2 n.4 (D. Or. Jan.

29, 2018) (suggesting that an "intervening change in the

case law" could justify consideration of an argument

raised for the first time in reply). Further, Plaintiffs had

the opportunity to—and did—respond in writing to Defendants' argument. (See Pls.' Surreply at 2); cf. Mattson

v. Quicken Loans, Inc., No. 3:18-cv-00989-YY, 2020 WL

6365506, at *3 (D. Or. Sept. 2, 2020) (explaining that

"[d]istrict courts are not required to consider arguments

raised for the first time in reply, particularly when the

other party has not had a chance to respond" (citing

Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007)).

Accordingly, the Court considers whether the PREP Act

bars any of Plaintiffs' claims related to testing.

The PREP Act "gives `covered person[s]' immunity

`from suit and liability' for claims `caused by, arising

out of, relating to, or resulting from the administration

to or the use by an individual of a covered countermeasure.' Maney, 91 F.4th at 1298 (quoting 42 U.S.C. §

247d-6d(a)(1)). "The Act's immunity lies dormant until

the Secretary of Health and Human Services `makes a

determination that a disease . . . constitutes a public

health emergency' and `make[s] a declaration, through

publication in the Federal Register,' that the Act's immunity `is in effect.' Id. (quoting 42 U.S.C. § 247d6d(b)(1)).

43a

"On March 17, 2020, the Secretary issued a declaration announcing that COVID-19 `constitutes a public

health emergency' and that `immunity as prescribed in

the PREP Act' was `in effect[.]' Id. (quoting Declaration

Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID19, 85 Fed. Reg. 15198, 15201 (Mar. 17, 2020)). The

Secretary "broadly defined" a covered countermeasure

to include "any antiviral, any other drug, any biologic,

any diagnostic, any other device, or any vaccine, used to

treat, diagnose, cure, prevent, or mitigate COVID-19[.]"

Id.; Declaration Under the Public Readiness and

Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15198,

15202 (Mar. 17, 2020)).

In Hampton v. California, the Ninth Circuit explained that the PREP Act did not apply to the defendants' failure to test AICs for COVID because "the

PREP Act provides immunity only from claims that relate to `the administration to or the use by an individual of' a covered countermeasure—not such a

measure's non-administration or non-use." Hampton v.

California, 83 F.4th 754, 763 (9th Cir. 2023) (citing 42

U.S.C. § 247d-6d(a)(1)). In Hampton, the defendants

invoked a hypothetical from a Department of Health

and Human Services advisory opinion which "illustrates the fact that, for a countermeasure with limited

availability, administering the countermeasure to one

person could mean withholding it from another." Id.

However, the Ninth Circuit distinguished the hypothetical from the facts of Hampton because "[t]he Complaint nowhere suggests (and Defendants do not argue)

that tests were in short supply and that Defendants

44a

saved the limited tests for others." Id. In Maney, the

Ninth Circuit discussed Hampton and reaffirmed the

distinction between "prioritization of a scarce countermeasure" and "non-administration or non-use." 91

F.4th at 1301. Ultimately, in Maney, the Ninth Circuit

concluded that PREP Act immunity extends to policylevel prioritization decisions. Id. at 130102.

Applied here, the parties do not appear to dispute

that Defendants are covered persons under the Act or

that COVID tests are a covered countermeasure. See

Hampton, 83 F.4th at 763 ("[A]11 agree that COVID

tests are `covered countermeasures."). Thus, the Court

agrees with Defendants that, to the extent AICs did not

receive a COVID test as a result of scarcity and attendant prioritization, PREP Act immunity applies.

However, as a factual matter, the Court cannot evaluate

the availability of COVID tests throughout the class period on the limited summary judgment record before

it, in part because Defendants raised the issue for the

first time in their reply.

In reply, Defendants argue that PREP Act immunity applies to testing prioritization during the first year

of the pandemic. (Defs.' Reply All Claims at 46-48.) It is

undisputed that testing supplies were limited in the

very early days of the pandemic. (See Jindal Reply

Decl. Ex. 8 at 2, ECF No. 600-7, indicating that test

availability was limited on April 13, 2020; Jindal Decl.

Ex. 3 at 7, documenting that Defendants ordered 2,500

tests on April 22, 2020; Jindal Reply Decl. Ex. 9 at 2,

ECF No. 600-8, indicating that the lab was processing

only thirty tests daily on April 29, 2020; Jindal Reply

Decl. Ex. 10 at 13, ECF No. 600-9, noting that Defendants will receive "limited access to rapid testing in

45a

about 2 weeks" on May 1, 2020; cf. Jindal Decl. Ex. 49,

indicating that testing after transfer was "contingent

on sufficient testing supplies" in July 2020.)

However, Defendants also argue that, at some point,

they adopted a policy of testing all symptomatic AICs.

(Defs.' Mot. All Claims at 8, 47; see Jindal Decl. Ex. 3 at

8, indicating that "[i]f an adult in custody is showing

signs and symptoms of flu/COVID-19, . . . they will be

tested as healthcare providers direct" on April 24, 2020;

Jindal Decl. Ex. 18 at 1, indicating that ODOC's testing

strategy was to test symptomatic AICs in November

2020; see also Jindal Decl. Ex. C, Decl. Daniel Dewsnup

("Dewsnup Decl.") ¶ 41, explaining that "ODOC follows

OHA and CDC guidance on appropriate criteria for

testing AICS for COVID" including "offering testing [to]

AICs who meet the CDC case definition of symptomatic, targeted testing of asymptomatic AICs who are identified as having been in close contact with an AIC that

has tested positive for the virus via concentric contact

testing, . . . mass testing when there are concerns about

a widespread outbreak at a particular facility[,]" and

testing "upon intake into its facilities, before transfers

and certain outside medical appointments, and prior to

release.") In their motion, Defendants asserted that by

fall 2020, tests were available to all AICs who requested

a test, even asymptomatic AICs. (Defs.' Mot. All Claims

at 47; see Jindal Decl. Ex. 47, indicating that all AICs

who requested a test would receive one on September

25, 2020; cf. Jindal Decl. Ex. 48 at 3, signaling a nationwide shortage of PCR tests but confirming that all

AICs who request a test should receive one as of September 24, 2020.)

46a

Defendants do not explain how the Court could find

that testing scarcity lasted for one year and then ended

one year into the pandemic. The Court cannot conclude

on the current record that AICs did not receive COVID

tests during the entire first year of the pandemic as a

result of scarcity as opposed to other factors such as

non-administration or non-use, to which PREP Act immunity might not apply. The Court anticipates resolving the contours of Defendants' PREP Act immunity

and any resulting evidentiary issues on pre-trial motions if the parties present undisputed facts on the

scarcity of COVID testing supplies during a specific

time period.

Eighth Amendment

Defendants argue that there is no genuine issue of

material fact on the constitutionality of their response

to COVID and that they are entitled to qualified immunity. (Defs.' Mot. All Claims at 15.) The Court first

turns to Defendants' argument that there is no genuine

issue of material fact about the constitutionality of

their response to COVID.

Applicable Law

To establish an Eighth Amendment claim, a plaintiff must demonstrate (1) an "objectively, sufficiently

serious" deprivation and (2) that the defendants acted

with a "sufficiently culpable state of mind," i.e., "deliberate indifference." Farmer, 511 U.S. at 834 (simplified). "[P]laintiffs alleging deliberate indifference

must also demonstrate that the defendants' actions

were both an actual and proximate cause of their injuries." Lemire v. Cal. Dep't of Corr. & Rehab., 726

F.3d 1062, 1074 (9th Cir. 2013) (citation omitted).

47a

In the context of a conditions of confinement claim

based on exposure to a hazard, the objective component of an Eighth Amendment claim requires a plaintiff to demonstrate "that it is `contrary to current

standards of decency for anyone to be . . . exposed

against his will' to the relevant hazard." Hampton, 83

F.4th at 766 (quoting Helling v. McKinney, 509 U.S.

25, 35 (1993)).

The subjective component requires a plaintiff to

demonstrate that a defendant "knows of and

disregards an excessive risk to [AIC] health or safety;

the official must both be aware of facts from which

the inference could be drawn that a substantial risk

of serious harm exists, and [the official] must also

draw the inference." Farmer, 511 U.S. at 837.11 Put

11 In situations where prison officials make decisions "in haste,

under pressure, and . . . without the luxury of a second chance,"

a plaintiff must show that the defendant acted "maliciously and

sadistically for the very purpose of causing harm[.]" Farmer, 511

U.S. at 835 (quoting Hudson v. McMillian, 503 U.S. 1, 6 (1992)).

That standard applies in certain excessive force cases, Hudson,

503 U.S. at 7, or in emergency circumstances such as a prison

uprising, Johnson v. Lewis, 217 F.3d 726, 733 (9th Cir. 2000), or

a prison riot and hostage situation, Whitley v. Albers, 475 U.S.

312, 320-21 (1986). Defendants argue that the higher standard

should apply to Plaintiffs' challenges to policies created in the

first days of the pandemic because the class period began five

days before the federal government declared a national COVID

emergency. (Defs.' Mot. All Claims at 17 n.6; Defs.' Reply All

Claims at 4 n.2; Defs.' Jeske Mot. at 11 n.4.) However, the Supreme Court has explained that the exigent circumstances

standard does not apply to prison cases challenging the conditions of confinement or failure to attend to medical needs. See

Wilson v. Seiter, 501 U.S. 294, 302-03 (1991). Instead, the deliberate indifference standard applies. Id. at 303. As a result, other

courts have rejected the application of the higher mental state in

48a

differently, to be liable, "a person must `consciously

disregard' a substantial risk of serious harm." Id. at

839 (simplified). Accordingly, a plaintiff must

demonstrate that officials "kn[ew] that [AIC]s face[d]

a substantial risk of serious harm and disregard[ed]

that risk by failing to take reasonable measures to

abate it." Id. at 847; see also id. at 844 ("[P]rison

officials who actually knew of a substantial risk to

[AIC] health or safety may be found free from liability

if they responded reasonably to the risk, even if the

harm ultimately was not averted.").

2. Analysis

a. Objective Prong

Courts have consistently concluded that the

involuntary exposure to COVID satisfies the Eighth

Amendment's objective prong. See Hampton, 83 F.4th

at 766 ("Plaintiff has thus sufficiently alleged that a

the context of COVID-related Eighth Amendment claims. See

Nelson v. Allison, No. 3-22-cv-00377-CAB-AHG, 2023 WL

5004487, at *6 (S.D. Cal. Aug. 4, 2023) (rejecting the "maliciously and sadistically" standard and instead applying the deliberate

indifference standard to the plaintiff's Eighth Amendment claim

against prison officials), report and recommendation adopted,

2023 WL 5538294 (S.D. Cal. Aug. 28, 2023); Williams v. Pollard,

No. 21-cv-0055-CAB (BGS), 2022 WL 184552, at *8 n.3 (S.D.

Cal. Jan. 19, 2022) ("The subjective prong of an Eighth Amendment violation requires a showing defendants acted maliciously

or sadistically to cause harm only where prison officials are accused of use of excessive force, not, as here, where they allegedly

failed to protect a prisoner." (citing Hudson, 503 U.S. at 6-7, and

Farmer, 511 U.S. at 837)). The Court concludes that the deliberate indifference standard applies here.

49a

`societal consensus' had emerged by May 2020 that

the risk of contracting COVID-19 was `intolerably

grave' such that involuntarily exposing [AICs] to the

disease violated then-current standards of decency."

(quoting Hines v. Youseff, 914 F.3d 1218, 1232 (9th

Cir. 2019))); see also Wilson v. Williams, 961 F.3d 829,

840 (6th Cir. 2020) (noting the plaintiffs' evidence of

the substantial risk of serious harm from "[t]he

transmissibility of the COVID-19 virus in conjunction

with [the correctional institution's] dormitory-style

housing"

and

concluding

that

the

Eighth

Amendment's "objective prong is easily satisfied").

The Court concludes that Plaintiffs have

presented sufficient evidence that exposure to COVID

against Plaintiffs' will was contrary to the standards

of decency during the class period, and Defendants do

not argue otherwise. (See Defs.' Mot. All Claims at 1;

see generally Dahab Decl. Ex. 2, ECF No. 547-2;

Dahab Decl. Ex. 8, ECF No. 547-8); see also Executive

Order 20-03, Declaring an Emergency Due to

Coronavirus (COVID-19) Outbreak in Oregon (Mar. 8,

2020), https://perma.cc/TNQ4-ZXDL; Executive Order

20-12, Stay Home, Save Lives: Ordering Oregonians

to Stay at Home, Closing Specified Retail Businesses,

Requiring Social Distancing Measures for Other

Public & Private Facilities, & Imposing Requirements

for Outdoor Areas and Licensed Childcare Facilities

(Mar. 8, 2020), https://perma.cc/6BFE-SDUA.

b. Subjective Prong

Defendants do not argue that they did not know,

during the class period, that AICs faced a substantial

risk of serious harm from COVID. (See Defs.' Mot. All

50a

Claims at 1.) Further, Plaintiffs have presented

evidence that Defendants knew of the risks. (See

Dahab Decl. Ex. 2; Dahab Decl. Ex. 3, ECF No. 547-3;

Dahab Decl. Ex. 7, ECF No. 547-7); see also Executive

Order 20-03; Executive Order 20-12.12

To the extent Defendants argue they did not know that AICs

faced a substantial risk of serious harm because they did not

know that ODOC's policies were not being implemented or enforced, the Court concludes that is a disputed question of fact.

Plaintiffs have presented evidence that Defendants knew of

problems with policy implementation. (See, e.g., Jindal Decl. Ex.

14 at 1, Steward emailing all staff stating that "[w]e are facing

legal action for not following our face covering protocol"; Jindal

Decl. Ex. 62, Depo. Joseph Bugher 194:20-23, 196:2-4, indicating

that Bugher and Russell likely helped Steward draft the email

indicating that staff were not masking and acknowledging that

not all staff wore masks; Dahab Decl. Ex. 65 at 2, ECF No. 5481, Bugher opposing an audit by OHA because the results would

become public; Jindal Decl. Ex. 20 at 1, 4, audit report sent to

Peters, Steward, and the AOC documenting that it "was a normal scenario" for staff and AICs not to wear masks while preparing food where social distancing was not possible; Jindal Decl.

Ex. 26, Russell receiving a report of a correctional officer ("CO")

not wearing a mask on four different days; Jindal Decl. Ex. 45 at

1, email from Russell indicating that the AOC has been "seeing

staff . . . not wearing a face covering"; Jindal Decl. Ex. 64, Depo.

Michael Gower ("Gower Depo.") 42:8-25, 69:15-70:17, indicating

that Gower was made aware that some staff were not wearing

masks; Russell Decl. ¶¶ 34, 53, 58, 66, 74, 76, 81, acknowledging

reports of social distancing and masking problems; Bugher Decl.

¶ 113, acknowledging shortcomings in the implementation of

policy, including, inter alia, social distancing and masking; Dahab Decl. Ex. 16 at 4, ECF No. 547-16, email to Bugher that,

among staff and AICs, "[s]ome do" and "[s]ome don't" wear

masks and socially distance; Jindal Decl. Ex. 3 at 27-29, 337,

350, 426, AOC documenting that various staff had not worn personal protective equipment while around prolonged close contacts;

51a

Instead, Defendants argue that there is no

genuine issue of material fact about the

constitutionality of their response to COVID. (Defs.'

Mot. All Claims at 15.) In the context of a conditions

of confinement claim related to a defendant's

response to COVID, "the key inquiry is not whether

prison officials perfectly responded, complied with

every CDC guideline, or whether their efforts

ultimately averted the risk; instead, the key inquiry

is whether they responded reasonably to the risk."

Jones v. Pollard, No. 21-cv-162-GPC(BGS), 2023 WL

4728802, at *7 (S.D. Cal. July 24, 2023) (collecting

cases)

(simplified).

Accordingly,

the

Court

summarizes some of the key evidence of Defendants'

response to COVID in the summary judgment record.

c. Summary Judgment Evidence

id. at 39, "8/12/20 start date for AICs required to wear approved

masks/face coverings whenever 6' of social distancing cannot be

maintained."; Fleming Report at 42, explaining that ODOC's antibody testing in 2020 revealed that the prevalence of COVID greatly

exceeded the number of reported COVID cases from testing; cf. Dahab Decl. Ex. 69, Depo. Nathaline Jean Frener ("Frener Depo.")

161:8-14, ECF No. 547-69, explaining that Steward directed the

executive team to "tell your people to find religion" and sign the

religious exemption form to avoid Governor Brown's vaccine mandate; Jindal Decl. Ex. 3 at 6, AOC approved a "Death in Custody

plan" and put in place plans with funeral homes; Fleming Report at

35, explaining that Defendants knew of the explosive May 2020

COVID outbreak at OSP but never conducted an epidemiological

investigation to determine what went wrong.)

52a

As a preliminary matter, the Court addresses the

parties' dispute about what evidence the Court may

consider at summary judgment.

Defendants argue that the Court cannot consider

Plaintiffs' declarations, accompanying Plaintiffs'

response to Defendants' motion for summary

judgment, from AICs who are not class members nor

from AICs who are class members but not named

plaintiffs. (Defs.' Reply All Claims at 52-53.)

Defendants argue that the declarations are irrelevant

and inadmissible under Federal Rules of Civil

Procedure 23, 26, 37(c), and 56 and the principle of

judicial estoppel. (Id.) Specifically, Defendants argue

that at summary judgment the Court can rely only on

evidence that could be presented in an admissible

form at trial, and that defendants generally cannot

obtain discovery from absent class members unless

the proposed deponents have been identified as

potential witnesses or otherwise injected themselves

into the litigation. (Id.) Further, Defendants argue

that Plaintiffs did not identify the sixteen13 new

declarants in discovery as relevant to their class-wide

liability theory, and Plaintiffs previously opposed

Defendants' request to depose AICs other than the

named plaintiffs and the declarants from the class

certification briefing. (Id. at 53.)

Plaintiffs argue that the proffered declarations are

relevant to their claims, the testimony is admissible

at trial, and that Defendants have not requested to

depose AICs or conduct interviews with non-class

Plaintiffs have withdrawn the seventeenth filed declaration.

(Notice, ECF No. 633.)

53a

members since the class certification stage of this

litigation. (Pls.' Surreply at 3-6.) Plaintiffs also argue

that they were not required specifically to identify the

sixteen declarants in discovery as relevant to their

theory because neither party served initial

disclosures in this case and trial witness lists are not

yet due. (Id. at 6 n.6.)

As background, after Plaintiffs filed a motion for

class certification and before the Court certified the

classes, Defendants sought to depose up to seventy

absent class members who provided declarations in

support of Plaintiffs' earlier briefing (i.e., Plaintiffs'

motion for a preliminary injunction and Plaintiffs'

response to Defendants' motion for partial summary

judgment). (Op. & Order at 16, ECF No. 272.) The

parties had agreed upon sixteen depositions at that

time, and Plaintiffs argued that the request for

seventy

additional

depositions

was

unduly

burdensome and that Defendants had failed to

demonstrate that more depositions were necessary at

the class certification stage. (Id. at 18.) The Court

concluded that Defendants had met their burden of

demonstrating the need to depose three AICs whose

sworn statements arguably conflicted with the factual

assertions in Plaintiffs' motion for class certification.

(Id.) At that stage in litigation, the Court concluded

that Defendants could adequately defend the class

certification motion with the nineteen total

depositions discussed and that additional depositions

would be cumulative and not proportional to the

needs of the case at that time. (Id. at 19.) Defendants

also had requested leave to interview non-class

member AICs (i.e., unrepresented AICs), which the

54a

Court allowed on the condition that defense counsel

confer with Plaintiffs' counsel on certain details. (Id.

at 19, 22.)

As an initial matter, the Court concludes that

Plaintiffs' new declarations are relevant. See Negrete

v. Allianz Life Ins. Co. of N. Am., No. 05-cv-6838 CAS

MANX, 2013 WL 6535164, at *21 (C.D. Cal. Dec. 9,

2013) (denying the defendant's motion to preclude

testimony of absent class members and concluding

that the testimony may be relevant). Plaintiffs seek to

establish Defendants' widespread failures to

implement COVID protective measures. The Court

concludes that the AIC declarations reporting, for

example, widespread masking noncompliance or sick

AICs housed with healthy AICs across ODOC's

facilities are relevant evidence of Defendants' policies

and practices. See Parsons v. Ryan, 754 F.3d 657, 672

(9th Cir. 2014) ("[T]he plaintiffs also submitted

declarations describing their experiences with [the

Arizona Department of Corrections'] policies and

practices governing health care and conditions of

confinement. These declarations by the named

plaintiffs were not submitted to support individual

Eighth Amendment claims; rather, the plaintiffs

submitted these declarations as evidence of the

defendants' unlawful policies and practices, and as

examples of the serious harm to which all inmates in

[the defendants'] custody are allegedly exposed."). The

declarations contain reports of Defendants' failure to

implement COVID protective measures, and thus are

relevant to Plaintiffs' claims.

To the extent Defendants argue that, in general,

absent class members or non-class members cannot

55a

testify at trial and thus Rule 56(c)(2) bars the

evidence at summary judgment, the Court disagrees.

See Negrete, 2013 WL 6535164, at *21 (denying

motion to preclude trial testimony of absent class

members).

To the extent Defendants argue that the evidence

is not admissible in this case specifically because of

the Court's previous discovery order at the class

certification stage, the Court also disagrees.

Defendants argue that ten of the new declarations

come from non-class members. (Defs.' Reply All

Claims at 53.) The Court's previous opinion granted

Defendants leave to interview non-class member

AICs on the condition that defense counsel confer

with Plaintiffs' counsel on certain details. (Op. &

Order at 22, ECF No. 272.) Thus, Defendants were

not precluded from pursuing discovery from non-class

member AICs.

Regarding the declarations from absent class

members, the Court's prior opinion did not opine on

the relevance or admissibility of other absent class

member testimony for dispositive motions or at trial

but merely on whether Defendants had met their

burden of showing that the requested discovery from

seventy absent class members was appropriate at

that time, i.e., to defend against class certification.

See Peterson v. Alaska Commc'ns Sys. Grp., Inc., No.

3:12-cv-00090-TMB, 2020 WL 13228683, at *4 (D.

Alaska Mar. 12, 2020) ("Because that order [denying

the defendant's request to take additional depositions

of putative class members] was issued prior to

Plaintiffs' class action being certified, however, that

conclusion was made exclusively in reference to [the

56a

defendant]'s anticipated motion to decertify Plaintiffs'

collective action. The District Court has made no

statements regarding the sufficiency of the discovery

[the defendant] has already received as it pertains to

[the defendant]'s anticipated Rule 23 decertification

motion, dispositive motions, or trial preparation. That

is the issue this court now addresses."); see also

Bernstein v. Virgin Am., Inc., No. 15-cv-02277-JST,

2017 WL 7156343, *1 (N.D. Cal. Aug. 25, 2017)

(noting that the court's denial of the defendant's

request to seek depositions from all class members

was without prejudice to seek the discovery later).

Accordingly, the Court concludes that judicial

estoppel does not bar consideration of the

declarations at summary judgment.

Finally, Defendants have not demonstrated that

Plaintiffs were required to identify these sixteen

declarants in discovery as relevant to their class-wide

liability theories.14 (See Decl. Nadia Dahab Supp. Pls.'

Surreply ¶ 6, ECF No. 608, declaring that neither

party served initial disclosures.) This Court did not

require initial disclosures in this case, and other

courts have "declined to preclude . . . declarations

simply because initial disclosures were not

exchanged." James v. AT & T W. Disability Benefits

Program, 41 F. Supp. 3d 849, 870 (N.D. Cal. 2014)

(citation omitted); Peterson v. AT & T Umbrella Ben.

Defendants have not demonstrated that Plaintiffs were required specifically to identify these sixteen declarants in response to Defendants' interrogatory asking Plaintiffs to identify

and describe the actions and inactions giving rise to their claims.

(See Decl. Molly Honore Supp. Defs.' Reply All Claims ¶¶ 5-6,

ECF No. 601.)

57a

Plan No. 1, No. 10-cv-03097 JCS, 2011 WL 5882877,

at *6 (N.D. Cal. Nov. 23, 2011) (concluding that,

where the court did not issue an order requiring

initial disclosures and the parties represented that

they had produced all of the documents required in

the court's more specific discovery orders, "the initial

disclosure requirements of Rule 26 do not apply").

Further, the parties' trial witness lists are not yet

due. Accordingly, the Court concludes that Rules 23,

26, and 37(c) do not bar the Court's consideration of

the declarations.

Separately, Defendants characterize Plaintiffs'

evidence as limited to the sixteen new declarations

filed in response to Defendants' motion for summary

judgment. (Defs.' Reply All Claims at 41.) However,

Plaintiffs cite to declarations in the record filed in

connection with previous motions in this case beyond

the sixteen new declarations. (See, e.g., Pls.' Resp. All

Claims at 10-11 nn.14-19; see also Defs.' Reply All

Claims at 2 n.1, incorporating by reference

Defendants' declarations filed at other stages of

litigation.) Defendants have not provided the Court

with authority explaining why the Court should not

consider declarations in the record from earlier stages

in the litigation. See FED. R. Cw. P. 56(c)(1)(A)

(explaining that a party must support their factual

position by "citing to particular parts of materials in

the record"). The Court concludes that it may consider

other declarations in the record beyond the sixteen

new declarations. See Hood v. King Cnty., No. C15828RSL, 2017 WL 979024, at *1 n.1 (W.D. Wash.

Mar. 14, 2017) (relying on materials incorporated by

reference and filed in support of a prior motion), aff'd

58a

sub nom. 743 F. App'x 79 (9th Cir. 2018); Dex Media

W, Inc. v. City of Seattle, 790 F. Supp. 2d 1276, 1280

n.3 (W.D. Wash. 2011) (noting that both parties

incorporated by reference the declarations filed in

support of a different motion).

Accordingly, the Court will consider the

declarations that Plaintiffs submitted in support of

their response to Defendants' motion for summary

judgment, in addition to the declarations Plaintiffs

previously filed in connection to other stages of this

litigation.

d. ODOC Defendants' Response

COVID During the Class Period

The Court next summarizes some of the relevant

evidence regarding the ODOC Defendants' COVID

response.

It is undisputed that, in accordance with a prepandemic plan for emergency operations, ODOC

activated the AOC to oversee ODOC's operational

plan during the pandemic. (Jindal Decl. Ex. 2.) The

AOC met each weekday. (Russell Decl. ¶ 26.)

In March 2020, ODOC suspended all in-person

visitations and staff trainings, closed staff gyms and

wellness centers, and provided AICs with two fiveminute phone calls per week. (Jindal Decl. Ex. 3 at 2;

Jindal Decl. Ex. 4 at 1.) Plaintiffs present evidence

that, at that time, Defendants did not adopt,

implement, or enforce:



·adequate quarantine and isolation measures

(see, e.g., Decl. Aaron Delicino Supp. Pls.' Mot.

TRO ("Delicino Decl.") ¶ 5(b), ECF No. 19,

59a

describing no medical quarantine for a sick

AIC who remained in general housing for

fifteen days; Decl. George Gardea Supp. Pls.'

Mot. TRO ("Gardea Decl.") ¶ 4(a), (e), ECF No.

93, explaining that AICs remained in their

cells with their cellmates awaiting test results;

Decl. Theron Hall Supp. Pls.' Mot. TRO ("First

Hall Decl.") ¶ 11(a), (h), ECF No. 60, noting

that 630 people "quarantined" in one block;

Decl. Norman Hoag Supp. Pls.' Mot. TRO

("Hoag Decl.") ¶¶ 6, 14, ECF No. 50, explaining

that "quarantine" meant remaining in their

cells when they are not at work, showering, or

using the phone);15

See also, e.g., Decl. Althea Seloover Supp. Pls.' Mot. TRO

("First Seloover Decl.") 6(e), 7(b)-(e), 8(e), 10(b)-(c), 11(b)-(c),

12(f), ECF No. 15, documenting reports by Gregory Coffman,

James Bogosian, Roger Bradford, James Barton, Michael

Gutierrez, and Abraham Schworak; Decl. Jeffrey Parnell Supp.

Pls.' Mot. TRO ("Parnell Decl.") ¶¶ 16, 30, ECF No. 18; Decl.

Corey Constantin Supp. Pls.' Mot. TRO ("Constantin Decl.") ¶

5(b), ECF No. 22; Decl. Daniel Nielson Supp. Pls.' TRO ("Nielson

Decl.") ¶¶ 4, 6, ECF No. 23; Decl. Daniel White Supp. Pls.' TRO

("Daniel White Decl.") ¶¶ 5, 14-15, ECF No. 24; Decl. Francis

Weaver Supp. Pls.' Mot. TRO ("Weaver Decl.") ¶ 6, ECF No. 27;

Decl. Frankie White Supp. Pls.' Mot. TRO ("Frankie White

Decl.") ¶¶ 8-10, 27, ECF No. 28; Decl. Jacob Strock Supp. Pls.'

Mot. TRO ("Strock Decl.") ¶ 5, ECF No. 30; Decl. Jamahl Maner

Supp. Pls.' Mot. TRO ("Maner Decl.") ¶ 12, ECF No. 31; Decl.

Jesse Patterson Supp. Pls.' Mot. TRO ("Patterson Decl.") ¶¶ 9,

16, ECF No. 32; Decl. Kelly Fereira Supp. Pls.' Mot. TRO

("Fereira Decl.") ¶¶ 9, 11, ECF No. 36; Decl. Kerry Crockett

Supp. Pls.' Mot. TRO ("Crockett Decl.") ¶ 5(d)-(f), (m), ECF No.

37; Decl. Kevin McCormack Supp. Pls.' Mot. TRO ("First

McCormack Decl.") ¶ 11, ECF No. 38; Decl. Leland Benson

Supp. Pls.' Mot. TRO ("Benson Decl.") ¶ 9, ECF No. 39; Decl.

60a

Lisandro Sanchez Supp. Pls.' Mot. TRO ("Sanchez Decl.") ¶ 7,

ECF No. 40; Decl. Matthew Maddox Supp. Pls.' Mot. TRO

("Maddox Decl.") ¶ 5(a), (d), ECF No. 43; Decl. Micah Rhodes

Supp. Pls.' Mot. TRO ("Rhodes Decl.") ¶ 13, ECF No. 44; Decl.

Michael Garrett Supp. Pls.' Mot. TRO ("Garrett Decl.") ¶ 5(g),

ECF No. 45; Decl. Michaela Taylor Supp. Pls.' Mot. TRO

("Taylor Decl.") ¶ 4(g)-(h), ECF No. 46; Decl. Mickey Weis Supp.

Pls.' Mot. TRO ("Weis Decl.") ¶ 15, ECF No. 47; Decl. Mylo

Lupoli Supp. Pls.' Mot. TRO ("Lupoli Decl.")¶115, 8, 15, ECF No.

48; Decl. Nathan Adams Supp. Pls.' Mot. TRO ("Adams Decl.") ¶

5, ECF No. 49; Decl. Patrick Kirk Supp. Pls.' Mot. TRO ("Kirk

Decl.") ¶ 8, ECF No. 51; Decl. Paula Prosch Suppl Pls.' Mot. TRO

("Prosch Decl.") ¶ 11, ECF No. 53; Decl. Ronald Cantrell Supp.

Pls.' Mot. TRO ("Cantrell Decl.") ¶¶ 9, 21, ECF No. 55; Decl.

Skyler Floro Supp. Pls.' Mot. TRO ("Floro Decl.") ¶¶ 10-12, ECF

No. 56; Decl. Stephen Meeks Supp. Pls.' Mot. TRO ("Meeks

Decl.") ¶ 13, ECF No. 57; Decl. Steven Richardson Supp. Pls.'

Mot. TRO ("Richardson Decl.") ¶ 4(d), ECF No. 59; Decl. Tyrone

Lee Supp. Pls.' Mot. TRO ("First Lee Decl.") ¶¶ 5(b)-(d), ECF No.

61; Decl. Wayne Houff Supp. Pls.' Mot. TRO ("Houff Decl.") ¶

5(j), ECF No. 62; Decl. David Hart Supp. Pls.' Mot. TRO

("Second Hart Decl.") ¶ 4(e)-(f), ECF No. 63; Decl. Brandon

Plunk Supp. Pls.' Mot. TRO ("Plunk Decl.") ¶ 4(a), ECF No. 92;

Decl. Jose Sanchez Astorga Supp. Pls.' Mot. TRO ("Sanchez

Astorga Decl.") ¶ 4(d), (h), ECF No. 94; Decl. Robert Horner

Supp. Pls.' Mot. TRO ("Horner Decl.") ¶ 4(h), ECF No. 97; Decl.

Tracy Walls Supp. Pls.' Mot. TRO ("Walls Decl.") ¶ 4(a)-(b), ECF

No. 98; Decl. Kevin McCormack Supp. Pls.' Mot. TRO ("Second

McCormack Decl.") ¶ 4(a), ECF No. 100; Decl. Theron Hall Supp.

Pls.' Mot. Class Cert. ("Second Hall Decl.") ¶¶ 9-10, ECF No.

211; Decl. Andrew Cadwaller Supp. Pls.' Mot. Class Cert.

("Cadwaller Decl.") ¶ 37, ECF No. 214; Decl. Justin Phillips

Supp. Pls.' Mot. Class Cert. ("Phillips Decl.") ¶¶ 9-10, ECF No.

219; Decl. James Moffatt Supp. Pls.' Resp. All Claims ("Moffatt

Decl.") ¶ 4, ECF No. 554; Decl. Theron Hall Supp. Pls.' Resp. All

Claims ("Third Hall Decl.") ¶ 3, ECF No. 562; Decl. Tyrone Lee

Supp. Pls.' Resp. All Claims ("Second Lee Decl.") ¶¶ 4-7, ECF

No. 563.

61a



social distancing measures (see, e.g., Delicino

Decl. ¶ 5(e), (i), testifying that COs did not

practice social distancing with AICs; Decl.

Christopher Mitchell Supp. Pls.' Mot. TRO

("Mitchell Decl.") ¶ 13, ECF No. 21, "I am never

six feet or more from another person";

Constantin Decl. ¶ 5(o), (q), (t), (x), noting that

bunk mates were not told to sleep head-to-toe

and that 100 AICs ate together in the dining

hall);16 or

See also, e.g., First Seloover Decl. ¶ 11(e), documenting

reports by Michael Gutierrez; Parnell Decl. ¶¶ 5-7, 21; Decl.

Brandon Borba ("Borba Decl.") ¶ 5(e), (g), ECF No. 20; Decl.

John Preston II Supp. Pls.' Mot. TRO ("Preston Decl.") ¶¶ 7-8,

ECF No. 33; Daniel White Decl. ¶ 9; Decl. Erik Larson Supp.

Pls.' Mot. TRO ("Larson Decl.") ¶ 13, ECF No. 26; Frankie White

Decl. ¶ 29; Decl. Gavin Pritchett Supp. Pls.' Mot. TRO

("Pritchett Decl.") ¶ 5(c), ECF No. 29; Strock Decl. ¶ 8; Maner

Decl. ¶ 9; Patterson Decl. 117; Decl. Joshua Brown Supp. Pls.'

Mot. TRO ("Joshua Brown Decl.") ¶ 3, ECF No. 34; Fereira Decl.

¶¶ 5, 7; First McCormack Decl. 6, 12; Benson Decl. ¶¶ 7, 12;

Sanchez Decl. ¶¶ 4-6; Decl. Luis Polanco Supp. Pls.' Mot. TRO

("Polanco Decl.") ¶¶ 4-5, 16, ECF No. 41; Decl. Mari-Teresa

Gillespie Supp. Pls.' Mot. TRO ("Gillespie Decl.") ¶¶ 8, 13-14,

ECF No. 42; Maddox Decl. ¶ 5(f), (i); Rhodes Decl. 1114, 10, 13,

18; Garrett Decl. ¶ 5(a); Taylor Decl. ¶ 4(c); Weis Decl. ¶ 13;

Lupoli Decl. ¶¶ 14, 16; Adams Decl. ¶¶ 6, 19; Kirk Decl. ¶¶ 1314, 16; Decl. Patrick Loreman Supp. Pls.' Mot. TRO ("Loreman

Decl.") ¶ 4(b)-(c), ECF No. 52; Cantrell Decl. ¶¶ 10, 24; Floro

Decl. ¶¶ 6-8; Meeks Decl. ¶¶ 7, 10-11; Decl. Steve Jamison Supp.

Pls.' Mot. TRO ("Jamison Decl.") ¶ 4, ECF No. 58; Houff Decl. ¶

5(m); Decl. Richard Curtis Supp. Pls.' Mot. TRO ("Curtis Decl.")

¶ 4(e)-(f), ECF No. 96; Second McCormack Decl. ¶ 4(i).

62a



measures to prevent AIC unit or staff mixing

(see, e.g., Delicino Decl. ¶ 5(d),(i)-(j), testifying

that units mixed with up to 300 people on the

yard together; Larson Decl. ¶ 6, explaining that

staff mixed between units while one housing

unit was quarantined; Weaver Decl. ¶ 5, "Staff

go all over the place within the prison and

interact with different units" and "can work on

three to four different units in one night.";

Pritchett Decl. ¶ 5(j), testifying that staff

moved freely between COVID hotspots,

quarantine, and other units).17

Further, there is evidence in the record that any

isolation due to sickness was punitive in nature. (See,

e.g., Weaver Decl. ¶¶ 7, 9-12, testifying that AICs

used ice to cool their foreheads to avoid disciplinary

segregation; Frankie White Decl. ¶¶ 15-21, describing

dirty disciplinary segregation cells with no soap or

17 See also, e.g., First Seloover Decl. ¶ 11(f), documenting reports

by Michael Gutierrez; Parnell Decl. ¶ 26; Borba Decl. ¶ 5(k);

Constantin Decl. ¶ 5(g); Nielson Decl. ¶¶ 5, 7; Decl. David Hart

Supp. Pls.' Mot. TRO ("First Hart Decl.") ¶ 11(j), ECF No. 25;

Joshua Brown Decl. ¶¶ 6-7; Decl. Joshua Hedrick Supp. Pls.'

Mot. TRO ("Hedrick Decl.") ¶¶ 6-11, ECF No. 35; Crockett Decl.

¶ 5(h), (k)-(1); First McCormack Decl. ¶¶ 11, 13; Gillespie Decl.

¶¶ 5, 7, 9; Maddox Decl. ¶ 5(h); Rhodes Decl. ¶¶ 18, 20-21, 23;

Garrett Decl. ¶ 5(b)-(d); Taylor Decl. ¶ 4(g); Weis Decl. ¶ 15;

Lupoli Decl. ¶ 16; Adams Decl. ¶ 13; Kirk Decl. ¶ 8; Loreman

Decl. ¶ 4(a), (d); Decl. Rian Smith Supp. Pls.' Mot. TRO ("Smith

Decl.") ¶¶ 6-7, ECF No. 54; Cantrell Decl. ¶¶ 4-5, 7-8, 25-26;

Floro Decl. ¶ 8; Richardson Decl. ¶ 4(1)-(m); First Lee Decl. ¶

5(e)-(f); Houff Decl. ¶ 5(1), (s); Curtis Decl. ¶ 4(g); Walls Decl. ¶

4(r); Preston Decl. ¶ 8.

63a

cleaning supplies or access to personal property; Decl.

Brookey West Supp. Pls.' Resp. All Claims ("West

Decl.") ¶ 4, ECF No. 551, describing quarantine in

disciplinary segregation; Moffatt Decl. ¶114(d), 10-11,

recounting a dirty cell with no access to a phone,

electric plug, flushing toilet, or hot water.)18 It is

undisputed that at that time Defendants did not

impose masking requirements and it is unclear if

Defendants had adopted testing policies yet.

In April 2020, ODOC issued its first centralized

COVID response plan. (See generally Dahab Decl. Ex.

13.) The plan introduced a "tiered" protocol that did

not appear in the CDC's or OHA's guidance related to

COVID in correctional facilities.19 (Compare id. at 67, with Dahab Decl. Ex. 2; Dahab Decl. Ex. 3.) Under

the tiered protocol, heightened COVID precautions

were implemented once a certain level of outbreak

18 See also, e.g., First Seloover Decl. ¶ 8(e), documenting reports

by Roger Bradford; Parnell Decl. ¶¶ 12, 26; Constantin Decl. ¶

5(b), (h); Daniel White Decl. ¶ 18; First Hart Decl. ¶ 11(o);

Pritchett Decl. ¶ 5(b); Maner Decl. ¶ 12; Preston Decl. ¶ 4; First

McCormack Decl. ¶ 15; Sanchez Decl. ¶ 9; Rhodes Decl. ¶ 24;

Garrett Decl. ¶ 5(f); Adams Decl. ¶ 16; Kirk Decl. ¶ 7; Smith

Decl. ¶ 9; Cantrell Decl. ¶ 22; Floro Decl. ¶ 17; Richardson Decl.

¶ 4(c)-(f); First Hall Decl. ¶ 11(d), (i)-(j); Houff Decl. ¶ 5(a);

Sanchez Astorga Decl. ¶ 4(a), (f), (h); Curtis Decl. ¶ 4(c); Walls

Decl. ¶ 4(e)-(f), (u); Decl. David Hart Supp. Pls.' Mot. TRO

("Third Hart Decl.") ¶¶ 23, 45-50, ECF No. 99; Second McCormack Decl. ¶ 4(g).

19 As Defendants acknowledge (Defs.' Mot. All Claims at 46), the

CDC guidelines are not themselves a constitutional requirement

but help illuminate the relevant standards of decency.

64a

occurred at that institution. (Dahab Decl. Ex. 13 at 67.) For example, staff temperature checks were not

required at tier one institutions and staff were

required to wear utility masks inside the institution

at all times only if the COVID infection level reached

tier four. (Jindal Decl. Ex. 3 at 22, 25.) The same

month, ODOC presented Governor Brown with

various options of actions necessary to achieve social

distancing, including, for example, an "intake

moratorium" like the State of Colorado had already

undertaken. (Steward Decl. Ex. 11 at 9.) Oregon

never adopted an intake moratorium. Instead, there

is evidence that, while other states began releasing

AICs, ODOC "pick[ed] up" people released as part of

Washington's COVID response. (Jindal Decl. Ex. 3 at

7.)

In May 2020, this Court held a hearing on

Plaintiffs' motion for a temporary restraining order.

(ECF No. 107.) Plaintiffs argued that Defendants had

failed to take reasonable actions to mitigate the risk

of COVID transmission (see Pls.' Mot. TRO at 2, ECF

No. 14), including suggesting that Defendants should

consider the possibility of transferring AICs into

unused buildings. (See Parnell Decl. ¶ 27, noting that

a refurbished minimum-security facility and half of

DRCI remained empty; Test. Marc Stern, Tr. 67:5-10,

ECF No. 117, explaining that short of reducing

institutions' populations through release, Defendants

could "spread out" by utilizing unused buildings; see

also Dahab Decl. Ex. 2 at 11, CDC guidance

recommending that "[i]f space allows," prison officials

should "reassign bunks to provide more space

between individuals, ideally 6 feet or more in all

65a

directions.") As discussed, there is no evidence that

Defendants ever utilized ODOC's two empty facilities.

On the current record before the Court, there is a

genuine dispute of fact as to whether Defendants

considered using ODOC's two empty institutions in

their response to COVID. (See, e.g., Robbins Depo. at

29:17-22, 36:12-20; Peters Depo. at 63:8-65:9; Bajpai

Depo. at 21:7-13; Myers Depo. 72:3-23.)

Further, there is a question of fact concerning the

availability of other spaces or "emergency beds" to

facilitate social distancing. (See, e.g., Bajpai Depo. at

21:7-13, explaining that ODOC did not take into

account space in unused facilities or emergency beds

when considering the steps necessary for social

distancing; Depo. Gregory Jones ("Jones Depo.") 35:47,20 testifying that there was never a policy requiring

use of all available beds to achieve maximum social

distancing; Dahab Decl. Ex. 34 at 2, ECF No. 547-34,

"Knowing that there is a lot of attention paid to our ebeds . . . I want to make sure we are messaging that

these e-beds are not appropriate for managing

capacity issues."; Dahab Decl. Ex. 35 at 2, ECF No.

547-35, "We were in the process of deactivating

emergency beds[.]"; Dahab Decl. Ex. 36 at 1, ECF No.

547¬36, "I would like to do anything possible to avoid

activating

those

e-beds.";

Decl.

Shyanna

Eaglespeaker Supp. Pls.' Resp. All Claims

("Eaglespeaker Decl.") ¶ 14, ECF No. 565, testifying

that open cells at CCCF remained unoccupied; Decl.

20 Excerpts of Jones' deposition are available at Sugerman Decl.

Ex. 14, ECF No. 568-14, and Dahab Decl. Ex. 27, ECF No. 54727.

66a

Sheryl Sublet Supp. Pls.' Mot. Class Cert. ("Sublet

Decl.") ¶ 25, ECF No. 209, "In November and

December of 2020, approximately 70 women were

released from the Minimum side on commutation. As

a result, there was all this empty space. There were

about 42 women left on the 200 unit. Instead of using

this empty space to social distance, they closed 200

unit entirely, and packed those 42 women into bunks

across the 100, 300, and 400 units, which nearly filled

each to unit to capacity."; Preston Decl. ¶ 14,

reporting that two units remained empty; Decl.

Michael Willingham Supp. Pls.' Mot. Class Cert.

("Willingham Decl.") ¶ 19, ECF No. 220, explaining

that when AICs were transferred out of the facility,

the remaining AICs were moved to "the bottom dorm

instead of spreading the remaining AICs out between

the top and bottom dormitories"; Decl. William

Sellers Supp. Pls.' Mot. Class Cert. ("Second Sellers

Decl.") ¶ 22, ECF No. 221, explaining that a multipurpose building was used to serve meals to

quarantine units for a few weeks but then the

practice was discontinued and all units received

meals in the same dining hall; compare with Dahab

Decl. Ex. 25, indicating that vacant beds "does not

mean these e-beds are empty, this means institutions

are spreading folks out as best as possible for social

distancing or are using them to more safely manage

their populations"; Dahab Decl. Ex. 37, ECF No. 54737, indicating that some e-beds were used for "COVID

Distancing"; Decl. Greg Jones Supp. Defs.' Reply All

Claims ¶ 8, ECF No. 603, "During the pandemic,

superintendents in ODOC facilities across the state

used emergency beds to increase social distancing";

67a

Jindal Decl. Ex. 3 at 7, indicating that AICs were

moved around at SCI "due to the[] empty bunk

situation.")21 Indeed, Plaintiffs present evidence that

Defendants removed emergency beds from use during

the class period. (Jones Depo. 88:11¬14, 100:1-11.)

Regarding masks, on April 3, 2020, the CDC

recommended that everyone wear masks in public

settings where other social distancing measures were

difficult to maintain. Centers for Disease Control &

Prevention, Recommendation Regarding the Use of

Cloth Face Coverings, Especially in Areas of

Significant Community-Based Transmission (Apr. 3,

2020),

https://web.archive.org/web/20200409020838/https://

www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/cloth-face-cover.html. In May 2020, ODOC

required AICs and staff to wear masks at all times in

"Health Services, culinary, and physical plant" and

otherwise to wear masks where maintaining six feet

of distance was not possible. (Jindal Decl. Ex. 8.)

In July 2020, the CDC released updated guidance

on COVID management in correctional facilities,

Defendants argue that using more emergency beds would

have increased population density and decreased social

distancing. (See Defs.' Reply All Claims at 33.) At oral

argument, Plaintiffs argued that using emergency beds

necessarily takes an AIC out of a bunk bed and creates more

space for distancing while sleeping. (See also Pls.' Resp. All

Claims at 34-35.) Defendants also argue that they did not have

sufficient funding for emergency beds. (Defs.' Reply All Claims

at 30 n.12.) These are disputed questions of fact and are not

appropriate for the Court to resolve at summary judgment.

68a

recommending everyone wear masks "as much as

safely possible." (Dahab Decl. Ex. 18 at 15, ECF No.

547-18.) In July 2020, Steward sent an email to all

staff stating, "we each have—and are entitled to—our

own thoughts and opinions on face coverings[,] . . .

[w]e are facing legal action, . . . [i]t is becoming

difficult to stand our ground on our current directive,"

and staff found not wearing a mask when required

would be reminded of the requirement. (Jindal Decl.

Ex. 14 at 1.) If staff refused to wear a mask when

within six feet of others and after being reminded,

they would be sent home for the day without pay, and

"progressive discipline" would begin. (Id. at 2.)

In August 2020, another email stated that all

AICs were required to have a mask with them

whenever they left their cell and to wear a mask

when within six feet of others. (Jindal Decl. Ex. 15.)

According to the email, AICs who refused to wear a

mask would receive a "daily fail" or progressive

discipline. (Id.; see also Jindal Decl. Ex. 3 at 39,

"8/12/20 start date for AICs required to wear

approved masks/face coverings whenever 6' of social

distancing cannot be maintained.") In November

2020, ODOC began requiring that everyone wear

masks at all times when indoors. (Jindal Decl. Ex. 16

at 1.)

Plaintiffs argue that ODOC's mask policies were

incongruent with CDC guidelines because masks

were only required when maintaining six feet of

distance was not possible instead of "as much as

safely possible." (Pls.' Resp. All Claims at 27.)

Further, Plaintiffs present extensive evidence that

ODOC failed to implement and enforce its mask

69a

policy, particularly against COs. (See, e.g., Decl.

Anthony Ortega Supp. Pls.' Resp. All Claims ("Ortega

Decl.") ¶¶ 3, 8-10, 16, ECF No. 550, describing COs

not wearing masks or incorrectly wearing masks and

never observing supervisors instructing otherwise;

Decl. Gregory Moore Supp. Pls.' Resp. All Claims

("Moore Decl.") ¶¶ 6, 10, ECF No. 552, noting no

masks worn in Health Services by AICs or staff;

Third Hall Decl. ¶¶ 8-14, describing COs consistently

not wearing masks through April 2021 without

enforcement or repercussions.)22 There is no evidence

22 See also, e.g., Decl. James Keith Supp. Pls.' Resp. All Claims

("Keith Decl.") ¶ 9, ECF No. 553; Decl. Jeffrey Lee Stewart

Supp. Pls.' Resp. All Claims ("Stewart Decl.") ¶¶ 3(c), 4(b), ECF

No. 555; Decl. Lance Wood Supp. Pls.' Resp. All Claims ("Second

Wood Decl.") ¶ 22, ECF No. 557; Decl. Michael Newland Supp.

Pls.' Resp. All Claims ("Newland Decl.") ¶ 4(c), ECF No. 558;

Decl. Shawn Evans Supp. Pls.' Resp. All Claims ("Evans Decl.")

¶ 12, ECF No. 560; Decl. William Harvey Supp. Pls.' Resp. All

Claims ("Second Harvey Decl.") ¶ 4(b), ECF No. 564;

Eaglespeaker Decl. ¶¶ 6-8; Decl. David Brown Supp. Pls.' Resp.

Defs.' Mot. Partial Summ. J. ("David Brown Decl.") ¶ 4(f), (j),

ECF No. 128; Decl. William Harvey Supp. Pls.' Resp. Defs.' Mot.

Partial Summ. J. ("First Harvey Decl.") ¶ 4(b), (d), (j), ECF No.

129; Decl. Rashid Kambarov Supp. Pls.' Resp. Defs.' Mot. Partial

Summ. J. ("Kambarov Decl.") ¶ 4(a)-(b), ECF No. 130; Decl. Paul

Maney Supp. Pls.' Resp. Defs.' Mot. Partial Summ. J. ("First

Maney Decl.") ¶ 4(d), (j)-(1), ECF No. 131; Decl. Bryan McDonald

Supp. Pls.' Resp. Defs.' Mot. Partial Summ. J. ("McDonald

Decl.") ¶¶ 5(k), (o), 7(i), ECF No. 132; Decl. Mitchell Randall

Supp. Pls.' Resp. Defs.' Mot. Partial Summ. J. ("Randall Decl.") ¶

4(b), (f)-(h), ECF No. 133; Decl. Althea Seloover Supp. Pls.' Resp.

Defs.' Mot. Partial Summ. J. ("Second Seloover Decl.") ¶ 6(f),

ECF No. 135; Decl. Matthew Yurkovich Supp. Pls.' Resp. Defs.'

Mot. Partial Summ. J. ("Yurkovich Decl.") ¶ 4(k)-(n), ECF No.

138; Decl. Gary Clift Supp. Pls.' Mot. Class Cert. ("Clift Decl.") ¶

9, ECF No. 207; Decl. Paul Maney Supp. Pls.' Mot. Class Cert.

70a

in the record that any staff ever faced repercussions

for not wearing a mask. (Cf. Jindal Decl. Ex. 26, ECF

No. 518, requesting an explanation why a CO did not

wear a mask on four days in December 2020 and

January 2021; Jindal Decl. Ex. 27, ECF No. 518,

letter indicating that staff are expected to wear a

mask.)

ODOC's centralized plan for social distancing

indicated that ODOC closed its facilities to visitors

and volunteers, modified line movements to limit the

number of AICs in common areas, eliminated group

activities in the yard, and stated that "AICs are

staying together by unit."23 (Dahab Decl. Ex. 13 at 56; see also Dahab Decl. Ex. 21 at 6, ECF No. 547-21;

Bugher Decl. ¶ 65, noting that ODOC keeps "AICs

together by unit where possible.") There is also some

("Second Maney Decl.") ¶¶ 15-16, ECF No. 208; Sublet Decl. ¶

18; Second Hall Decl. ¶ 15; Decl. Brian Thornburg Supp. Pls.'

Mot. Class Cert. ("Thornburg Decl.") ¶ 20, ECF No. 212;

Cadwallader Decl. ¶¶ 25-26; Decl. Billy Shaffer Supp. Pls.' Mot.

Class Cert. ("Shaffer Decl.") ¶¶ 17-20, ECF No. 215; Decl. Devin

Butler Supp. Pls.' Mot. Class Cert. ("Butler Decl.") ¶¶ 21, 23-24,

ECF No. 216; Decl. Jamie Edgtton Supp. Pls.' Mot. Class Cert.

("Edgtton Decl.")¶1125-26, ECF No. 217; Phillips Decl. ¶¶ 15-20;

Willingham Decl. ¶ 11; Second Sellers Decl. ¶ 13.

23 Defendants' position on whether they had a policy of separat-

ing AICs by unit is unclear because Defendants also argue in

response to Plaintiffs' motion for partial summary judgment

that Plaintiffs have not identified any policy related to "mixing."

(Defs.' Resp. Br. Pls.' Mot. Summ. J. ("Defs.' Resp.") at 16, ECF

No. 537.)

71a

evidence that several of ODOC's individual

institutions took additional steps toward social

distancing, although the timing and details of those

steps are not entirely clear. (See Jindal Decl. Ex. A,

Decl. Julie Martin ¶ 22, SCCI placed dots on the floor

and kept dorm units together while waiting in the

medicine line; Jindal Decl. Ex. B, Decl. Douglas

Sheppard ¶¶ 28, 30, 32, CRCI limited the amount of

seating in each unit's dayrooms, put markers on the

floor, limited capacity in the dining hall, and

staggered housing unit mealtimes; Jindal Decl. Ex. 17

at 2, DRCI placed markers on the floor for the

medicine line, staggered seating and tables in the

dining hall, and limited the number of AICs at

dayroom tables; cf. Jindal Decl. Ex. 20 at 1, noting

that AICs are "not expected to socially distance . . .

within their own housing unit"; Dahab Decl. Ex. 11,

Depo. Susan Washburn ("Washburn Depo.") 36:20-25,

ECF No. 547-11, confirming that there was no social

distancing in housing; Decl. Jermaine F. Brown Supp.

Defs.' Jeske Mot. ("Jermaine Brown Decl.") Ex. 7,

Depo. Paul Maney 71:4-6, ECF No. 495-7, testifying

about no social distancing in housing units.)

There is evidence that Defendants did not adopt

policies such as minimizing the number of individuals

housed in the same room,24 minimizing mixing of

24 See e.g., Mitchell Decl. ¶ 13, "I am never six feet or more from

another person"; Eaglespeaker Decl. ¶ 14, describing units filled

to capacity; Sublet Decl. ¶ 24, describing dorms with 108 beds

each less than three feet apart; Decl. Adam Coopersmith Supp.

Pls.' Mot. Class Cert. ("Coopersmith Decl.") ¶¶ 28-29, ECF No.

213, explaining that the dorm housing 128 people is almost

always full; see also Decl. Nathan Mosely Supp. Pls.' Resp. All

72a

individuals

from

different

housing

units,25

implementing broad movement restrictions,26 or

claims ("Mosely Decl.") ¶ 5(a), ECF No. 549 ; West Decl. ¶¶ 4(a),

8; Moore Decl. ¶ 5(b); Stewart Decl. ¶ 4(c); Second Wood Decl. ¶¶

5, 17; Second Lee Decl. ¶ 8; Clift Decl. ¶ 9; Thornburg Decl. ¶ 26;

Edgtton Decl. ¶ 36; Second Sellers Decl. 1124; Preston Decl. ¶ 7;

Decl. Kevin McCormack Supp. Pls.' Resp. All Claims ("Third

McCormack Decl.") ¶ 14, ECF No. 556.

See e.g., Jindal Decl. Ex. 20 at 4, noting that AICs from

different units interact while working at the Physical Plant and

the kitchen; Ortega Decl. ¶ 11, noting that different housing

units worked in the kitchen together; Decl. Robert Stafford

Supp. Pls.' Resp. All Claims ("Stafford Decl.") ¶¶ 8-9, ECF No.

559, describing AICs from different units mixing at work; Third

Hall Decl. ¶¶ 5, 7, describing AICs moving throughout the

facility until February 2021; Second Lee Decl. ¶¶ 9, 11,

testifying that dining hall workers mixed across units and that

different units went to yard and chow hall together;

Eaglespeaker Decl. ¶¶ 10-11, describing AICs from different

units working together, interactions with AICs in "isolation,"

and "a great deal of unnecessary inter-unit contact"; Delicino

Decl. ¶ 5(i), noting that units mixed with up to 300 people on the

yard together; Thornburg Decl. ¶¶ 13, 17, observing mixing of

healthy and sick AICs; Coopersmith Decl. ¶¶ 10, 16, 27,

explaining that AICs from different units worked together even

when units were on quarantine status; see also Third

McCormack Decl. ¶¶ 11(c), 12(c), (f); Mosely Decl. ¶ 5(e); West

Decl. ¶ 15; Second Wood Decl. ¶ 24; Second Harvey Decl. ¶ 4(d);

Second Maney Decl. ¶ 13; Sublet Decl. ¶¶ 13-14; Cadwaller Decl.

¶ 13; Butler Decl. ¶ 20; Edgtton Decl. ¶¶ 21-22; Phillips Decl. ¶¶

8, 32; Second Sellers Decl. ¶ 9; Decl. Lance Wood Supp. Pls.'

Resp. Defs.' Mot. Partial Summ. J. ("First Wood Decl.") ¶ 5(a),

ECF No. 137.

26 See e.g., Jindal Decl. Ex. 3 at 142, 168, 181, 197, 202, 225-27,

241, 246, 252, 255, 285-87, documenting AICs who tested posi-

73a

modifying staff assignments to minimize movement

across housing units or between units with and

without known COVID infections.27 (See Dahab Decl.

Ex. 13; Dahab Decl. Ex. 21, attaching ODOC's

tive for COVID following transfers; Mosely Decl. ¶ 6, describing

transports between facilities; Evans Decl. ¶ 4, "AICs get moved

around often"; Third Hall Decl. ¶¶ 5, 7, describing AICs moving

throughout the facility until February 2021; Keith Decl. ¶ 2, describing transfer from a unit on quarantine; Second Wood Decl.

¶ 9, explaining that quarantine units still moved around the facility to pick up food from chow hall; Stafford Decl. ¶¶ 4(a), 6,

describing transfer for approximately a week of quarantine at

one facility, transfer for three days of quarantine at another facility, and then transfer back to the third facility; see also Third

McCormack Decl. ¶ 8; West Decl. ¶¶ 9, 13-14; Moore Decl. ¶ 5;

Stewart Decl. ¶ 4; Second Lee Decl. ¶ 12; Second Harvey Decl.

114(c); Eaglespeaker Decl. ¶ 14; Second Hall Decl. ¶ 14; Thornburg Decl. ¶¶ 15, 18; Coopersmith Decl. ¶¶ 8-11, 27; Butler Decl.

¶¶ 12, 15; Edgtton Decl. ¶ 24; Phillips Decl. ¶¶ 11-13.

See e.g., Russell Decl. ¶ 89, indicating that there are no

restrictions on staff movement or assignment; Second Wood

Decl. ¶ 8, testifying that COs moving freely between an isolation

unit and the rest of the facility; Stewart Decl. ¶ 3(a)(ii), (d),

describing that COs would walk back and forth between

quarantine and non-quarantine units; Sublet Decl. ¶¶ 15-16,

observing staff move between units and facilities during

outbreaks; Shaffer Decl. ¶ 19, describing COs walking between a

quarantine and non-quarantine unit; see also Third McCormack

Decl. ¶ 17; West Decl. ¶¶ 11-13; Second Lee Decl. 1111; Phillips

Decl. ¶ 14; Willingham Decl. ¶ 14; Second Sellers Decl. ¶ 12;

David Brown Decl. ¶ 4(k); First Harvey Decl. ¶ 4(k); Decl.

William Sellers Supp. Pls.' Resp. Defs.' Mot. Partial Summ. J.

("First Sellers Decl.") ¶ 4(1), ECF No. 134; Second Seloover Decl.

¶ 6(i); First Wood Decl. ¶ 4(e).

74a

centralized plan, which did not include those policies;

see also Dahab Decl. Ex. 18 at 13-14, 17-18, CDC

guidance recommending "[m]inimiz[ing] the number

of individuals housed in the same room as much as

possible," "minimiz[ing] mixing of individuals from

different housing units," "[1]imit[ing] transfers of

[AICs] to and from other jurisdictions and facilities

unless necessary for medical evaluation, medical

isolation/quarantine, clinical care, extenuating

security

concerns,

release,

prevent

overcrowding," and making "every possible effort to

modify staff assignments to minimize movement

across housing units and other areas of the facility".)

There is also evidence that, to the extent that

Defendants adopted social distancing policies,

Defendants did not implement or enforce those

measures. (See, e.g., Delicino Decl. ¶ 5(e), explaining

that COs did not practice social distancing with AICs;

Constantin Decl. ¶ 5(o), (q), (x), testifying that bunk

mates were not told to sleep head-to-toe; Mosely Decl.

¶ 5, describing no enforcement of social distancing in

chow hall or onsite workplaces; Stafford Decl. ¶ 5,

observing AICs who transferred from other

institutions shaking hands and mingling with their

new unit; Newland Decl. ¶ 4(f), (k), noting "no set

standards" and social distancing not enforced; Third

Hall Decl. ¶¶ 18-19, after June 2020, little attempts

made at social distancing and the policy of limiting

the number of AICs per table abandoned;

Eaglespeaker Decl. ¶ 12, testifying that social

distancing was not enforced; cf. Jindal Decl. Ex. 3 at

75a

368, 388, 462, conducting contact tracing after six to

ten staff members ate lunch together.)28

Regarding testing, there is some evidence that at

some point ODOC had a policy of testing symptomatic

AICs and symptomatic close contacts of AICs with

confirmed COVID cases. (See Dahab Decl. Ex. 21 at 7,

"test according to symptom presentation"; Jindal

Decl. Ex. 18 at 1; Dewsnup Decl. ¶ 41.) There is also

some evidence that ODOC had a policy of isolating

most confirmed cases and symptomatic close contacts

of confirmed cases. (Dewsnup Decl. ¶ 52; Dahab Decl.

Ex. 21 at 7, "Suspected COVID-19 go into respiratory

isolation/distancing."; see also Jindal Decl. Ex. 12,

informing the superintendents that AICs should be

isolated for ten days after symptom onset.) However,

Plaintiffs present evidence that any quarantine and

isolation remained punitive. (See, e.g., Randall Decl. ¶

5(a); Second Hall Decl. ¶¶ 20-21; Thornburg Decl. ¶

10; Coopersmith Decl. ¶¶ 22-23; Cadwaller Decl. ¶ 29;

Shaffer Decl. ¶¶ 24-25; Willingham Decl. ¶ 16; Second

Sellers Decl. ¶ 7; Keith Decl. ¶ 8; Second Wood Decl.

¶ 20; Newland Decl. ¶ 4(b); Evans Decl. ¶¶ 7, 9;

28 See also, e.g., Second Wood Decl. ¶ 17; Clift Decl. 19; Second

Maney Decl. ¶¶ 20-21; Sublet Decl. ¶¶ 22-23; Second Hall Decl.

¶ 23; Thornburg Decl. ¶ 25; Coopersmith Decl. ¶¶ 17, 26;

Cadwaller Decl. ¶¶ 16, 21, 30-34, 35; Shaffer Decl. ¶¶ 26-28;

Edgtton Decl. 11129, 34; Phillips Decl. ¶¶ 29, 31; Willingham

Decl. ¶¶ 17-19; Second Sellers Decl. ¶¶ 21-22; David Brown

Decl. ¶ 4(f); Second Harvey Decl. ¶ 4(b)(ii); Kambarov Decl. ¶

4(k); McDonald Decl. ¶ 5(d); Randall Decl. ¶ 4(e); Yurkovich

Decl. ¶ 4(n); Third McCormack Decl. ¶¶ 11(b), 14.

76a

Ortega Decl. ¶ 13; cf. Jindal Reply Decl. Ex. 11 at 1,

3, ECF No. 600-10, noting that some institutions used

disciplinary segregation units for quarantine but that

the majority of AICs with COVID were housed in a

general population or infirmary beds; Jindal Reply

Decl. Ex. 12, ECF No. 600-11, noting that AICs

should receive their property while quarantined in

disciplinary segregation units; see also Dahab Decl.

Ex. 18 at 25, CDC guidelines recommending that

prison officials "[e]nsure that medical isolation for

COVID-19 is distinct from punitive solitary

confinement of incarcerated/detained individuals,

both in name and in practice.")

It appears to be undisputed that ODOC did not

adopt or implement a policy of testing asymptomatic

contacts-AICs

and staff-as

the

CDC

recommended. (Compare Dahab Decl. Ex. 18 at 7, 13,

19,

CDC

guidance

recommending

testing

asymptomatic individuals, with Dahab Decl. Ex. 21,

ODOC's Centralized Plan only required testing of

symptomatic AICs; see also Jindal Decl. Ex. 3 at 276,

305, 312, 316, 324, 338, 453-54, 459-60, 462, staff who

were close contacts with confirmed COVID case "will

self-monitor for symptoms" or "[w]ill quarantine at

work, monitor symptoms, and wear masks"; id. at

354-55, AICs who were cellmates with COVID

positive AICs "monitored for COVID symptoms";

Second Wood Decl. ¶¶ 5, 7, three cellmates of AIC

who tested positive not given tests.)

There is also evidence that symptomatic AICs

were denied COVID tests or that testing was delayed.

(See, e.g., Jindal Decl. Ex. 3 at 354, noting that an

AIC had been sick a week prior to testing in August

77a

2021; Ortega Decl. ¶ 13, explaining that a

symptomatic AIC had to request a test and the test

was administered seven days after symptom onset in

January 2021; Stewart Decl. ¶ 4(a), testifying that

"[i]t wasn't until you felt like you were dying that

staff would allow you to get tested" in February 2021;

Second Wood Decl. ¶ 10, observing a symptomatic

AIC denied a test in August 2020; Newland Decl. ¶

4(a)-(b), (e), explaining that testing was not enforced

and no tests were provided in August 2020;

Eaglespeaker Decl. ¶¶ 3, 9, explaining that

symptomatic AICs were not tested for over two weeks

in December 2020; cf. Jindal Decl. Ex. 3 at, inter alia,

69, 73-74, 78-80, 85, 89, 91-92, 97, 99, 103, 108,

documenting symptomatic staff coming to work and

staff testing several days to up to two weeks after

symptom onset.)29

See also, e.g., Mosely Decl. ¶ 4, sometime before December

2021; Moore Decl. ¶ 7, end of June 2020; Thornburg Decl. ¶¶ 6-7,

December 2020 and January 2021; Coopersmith Decl. ¶ 12,

December 2020; Cadwaller Decl. ¶ 4, "I experienced a lack of

testing and treatment at every facility I have been to since the

beginning of the pandemic"; Edgtton Decl. ¶ 4, December 2020;

David Brown Decl. 114(d), September 2020; First Harvey Decl. ¶

4(f)-(g), end of September 2020; Kambarov Decl. ¶ 4(i),

September 2020; McDonald Decl. ¶¶ 5(m)-(n), 6(b)-(d), end of

September 2020; Second Seloover Decl. ¶ 6(g), middle of

September 2020; First Wood Decl. ¶ 4(c)-(d), August 2020;

Yurkovich Decl. ¶ 4(b), July 2020; Maddox Decl. ¶ 5, March

2020; Third Hall Decl. ¶ 3(a), April 2020; Parnell Decl. ¶ 30,

April 2020; Delicino Decl. ¶ 5(b)-(c), April 2020; Moffatt Decl. ¶¶

4, 8, 12, March to May 2020; Plunk Decl. ¶ 4, May 2020;

Constantin Decl. ¶ 5(b), middle of March 2020.

78a

There is also evidence that Defendants did not

implement their quarantine policy. (See, e.g., Ortega

Decl. ¶¶ 13(c), 15, explaining that symptomatic AICs

were not isolated while awaiting test results, and

AICs from quarantine units were still required to go

to work; Moore Decl. ¶¶ 5(c), 7-8, testifying that AICs

with confirmed COVID cases were transported and

placed into general population without quarantine

and that AICs with symptoms remained in the unit;

Keith Decl. ¶¶ 2(a), 3, describing transfer to a

different facility while on quarantine and without

being tested; Stewart Decl. ¶¶ 3(a)(iv), 4(a), noting

that symptomatic AICs waited in their dorm for test

results and that cells in general population were used

for medical isolation; Second Wood Decl. ¶¶ 6, 9,

describing sick AICs forced to go to work or face

discipline and that AICs in quarantine units picked

up their own food at the chow hall; Newland Decl. ¶

4(a), (e), testifying that COVID positive AICs were

allowed to mingle throughout the unit; Stafford Decl.

¶ 8, testifying that he was forced to work

maintenance jobs in quarantine units; Second Lee

Decl. ¶¶ 4-6, noting that a symptomatic AIC was

never quarantined; Eaglespeaker Decl. ¶¶ 14(d), 15,

describing that symptomatic AICs were not

quarantined and that general population was exposed

to symptomatic AICs with known COVID exposure;

see also Eaglespeaker Decl. ¶ 15(b), describing that

some quarantines only lasted three days; Cadwaller

Decl. ¶ 19, describing a one-week quarantine;

McDonald Decl. ¶ 4(d), describing four- or five-day

79a

quarantine; cf. West Decl. ¶ 9, observing

AICs

moved directly into general population without

quarantine after arrival at the institution; cf. Jindal

Decl. Ex. 3 at 373, documenting that a symptomatic

staff member worked pending COVID test results.)30

There is some evidence that ODOC communicated

COVID policies through emails, newsletters,

television messages, and individual conversations,

although the specific substance and frequency of

much of those communications is unclear from the

record. (See Russell Decl. ¶¶ 29-31.) There is also

evidence that ODOC inconsistently communicated

information surrounding policy changes. (See, e.g.,

Frener Depo. 42:21-45:22, explaining that policy

changes often were not communicated to executive

team members or staff and that she would often find

out about policy changes much later; Jindal Decl. Ex.

20 at 4, noting that staff desired "more

communication from . . . the AOC"; Eaglespeaker

Decl. ¶ 16, testifying that AICs "felt out of the loop

regarding COVID-19 policies and procedures" and

"COs did not know what was going on either and

See also, e.g., Clift Decl. ¶ 8; Second Hall Decl. ¶ 12;

Coopersmith Decl. ¶¶ 8, 10, 12; Thornburg Decl. ¶¶ 6-7, 9, 14,

19; Third McCormack Decl. ¶¶ 7, 12(c)-(d); Newland Decl. ¶ 4(k);

Evans Decl. ¶ 10; Second Maney Decl. ¶ 12; Cadwaller Decl. ¶

24; Shaffer Decl. ¶¶ 6, 12; Butler Decl. ¶¶ 11, 14-15, 18-19;

Edgtton Decl. ¶¶ 8, 20-21; Phillips Decl. ¶¶ 4-5, 11, 13, 23, 28;

Willingham Decl. ¶¶ 12-13; Second Sellers Decl. ¶¶ 8-9; First

Maney Decl. ¶ 4(h); McDonald Decl. ¶¶ 5(m), 6(d), 7(a)-(b);

Randall Decl. ¶ 5(b)-(c); First Sellers Decl. ¶ 4(c), (j), (m); First

Wood Decl. ¶ 5(a); Yurkovich Decl. ¶ 4(d)-(f).

80a

there was no clear line of communication"; see also

Dahab Decl. Ex. 2 at 5, 12, CDC guidance

recommending that prison officials "communicat[e]

clearly with staff and [AICs,]" "[c]ommunicate clearly

and frequently with [AICs] about changes to their

daily routine and how they can contribute to risk

reduction[,]" "[p]rovide up-to-date information about

COVID-19 to [AICs] on a regular basis," and

"[p]rovide staff with up-to-date information about

COVID-19 and about facility policies on a regular

basis[.]")31

In May 2020, the AOC launched an internal

assessment tool, intended to evaluate ongoing

management of COVID. (Jindal Decl. Ex. 19 at 1.)

ODOC also established an Infection Prevention Team

to perform unannounced site visits to ODOC

institutions. (Id. at 2; Jindal Decl. Ex. 20 at 1.) The

team assessed eight or nine of ODOC's fourteen

institutions between May 2020 and March 2021, with

varying results. (See Dahab Decl. Ex. 59, ECF No.

547-59, OSP in May 2020; Jindal Decl. Ex. 20, SCI in

June 2020; Dahab Decl. Ex. 62, ECF No. 547-62,

SRCI in August 2020; Dahab Decl. Ex. 53, ECF No.

547-53, CCCF in October 2020; Dahab Decl. Ex. 63,

ECF No. 547-63, DRCI in October 2020; Dahab Decl.

Ex. 64, ECF No. 547-64, OSCI in October 2020;

Dahab Decl. Ex. 61, ECF No. 547-61, CRCI in

31 See also, e.g., West Decl. ¶ 17; Parnell Decl. ¶ 11; Constantin

Decl. ¶ 5(o), (aa); Rhodes Decl. ¶ 17; Lupoli Decl. ¶ 7; Gardea

Decl. ¶ 4(1); Walls Decl. ¶ 4(1); Hedrick Decl. ¶ 14; Second

Harvey Decl. ¶ 4(e); Second Sellers Decl. ¶ 16.

81a

December 2020; Jindal Decl. Ex. 22, TRCI in March

2021.) The team provided "audit response action

sheets" noting any observed deficiencies. (Jindal Decl.

Ex. 21.) It is undisputed that ODOC did not conduct

an internal audit at all of its institutions. There is

some evidence that, although Defendants conducted

some internal audits, Defendants also sought to avoid

external audits. For example, in the midst of a

COVID outbreak at OSP, Bugher stated that "OHA

wants to audit OSP [because] of the outbreak" and

"their audits are publicly shared info" and that he is

"trying to keep [OHA] out of our world."32 (Dahab

Decl. Ex. 65 at 2; see also Jindal Reply Decl. Ex. 1 at

2, ECF No. 600-1, Bugher stating that Defendants

should avoid "being told by OHA how to run our

business.") In February 2021, the AOC also

introduced an internal COVID assessment conducted

by an AIC with a staff member.33 (See Jindal Decl.

Ex. 23.)34

e. Summary

32 Defendants argue that this conversation should be interpreted

as evidence of Defendants' care and concern in response to

COVID. (Defs.' Reply All Claims at 14.) The Court must draw

reasonable inferences in Plaintiffs' favor on Defendants' motion

for summary judgment.

33 Staff and AICs completed "hundreds of these walkthroughs."

(Decl. Joe Bugher Supp. Defs.' Reply All Claims ¶ 6, ECF No.

602.)

The Court separately summarizes the facts and legal

arguments relevant to Jeske below.

82a

The Court concludes that a genuine issue of

material fact remains about whether Defendants took

reasonable measures to abate the COVID-related risk

of harm to Plaintiffs or whether Defendants

consciously disregarded a substantial risk of harm.

Both parties agree that Defendants took some

measures. The record before the Court is extensive,

and the Court does not purport to identify each action

Defendants took in response to COVID nor all of

Plaintiffs' evidence suggesting that Defendants did

not take reasonable measures but merely highlights

some of the genuine issues of material fact.

In summary, genuine questions of fact remain as

to whether the ODOC Defendants implemented and

enforced their masking policies and whether their

masking policies were consistent with public health

guidance; whether Defendants implemented and

enforced

social

distancing

policies;

whether

Defendants adopted policies such as minimizing the

number of individuals housed in the same room,

minimizing mixing of individuals from different

housing units, implementing broad movement

restrictions, or modifying staff assignments to

minimize movement across housing units or between

units with and without known COVID infections;

whether Defendants implemented their policy of

testing symptomatic AICs and symptomatic close

contacts of confirmed COVID cases; whether

Defendants adopted and implemented a policy of

testing asymptomatic close contacts, as recommended

by the CDC; whether Defendants implemented and

enforced their quarantine policy; and whether

Defendants considered using empty facilities or

83a

spaces to allow AICs to spread out. The parties also

do not dispute that Defendants did not use empty

facilities to improve social distancing.

The risk of harm that COVID posed to AICs was

severe, and although Defendants took some

important steps to mitigate that risk, factual

questions remain, and Plaintiffs have identified

several alternative actions that Defendants could

have taken. See Lemire, 726 F.3d at 1079 ("A prison

official's justification for exposing [AICs] to a

substantial risk of harm is reasonable only if it

represents a proportionate response to the penological

circumstances in light of the severity of the risk to

which the [AICs] are exposed. Except in emergency

situations, a failure to consider reasonable

alternatives is strong evidence that a prison official's

actions were unreasonable.") (citation omitted).

Viewing the evidence in the light most favorable to

Plaintiffs, the Court concludes that it is a question for

the jury whether Defendants' COVID mitigation

measures in ODOC institutions, viewed as a whole

and in the context of other available mitigation

measures,

were

reasonable

under

the

circumstances. See Egberto v. Nev. Dep't of Corr.,

678 F. App'x 500, 503 (9th Cir. 2017) (reversing grant

35 For similar reasons, the Court concludes that a material issue

of fact remains as to whether Defendants violated their duty of

care that foreseeably resulted in harm. See Two Two v. Fujitec

Am., Inc., 325 P.3d 707, 714 (Or. 2014) (reversing the trial

court's grant of summary judgment and concluding that testimony from the plaintiff's retained expert would create a question of fact on all relevant negligence claim issues, "including the

element of causation").

84a

of summary judgment on the plaintiff's Eighth

Amendment claim for deliberate indifference to a

serious medical need and noting that the defendants'

"competing evidence . . . only creates a factual

question for the jury to resolve"); Thomas v. Ponder,

611 F.3d 1144, 1152, 1156 (9th Cir. 2010) ("We

therefore hold that the district court erred in ruling

that there was insufficient evidence to raise a

genuine issue of material fact as to whether the

prison officials acted reasonably" and "the issue is one

of fact that must be presented to a fact-finder.");

Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996)

("While the defendants produced contrary evidence, . .

. claiming a state-of-the-art ventilation system kept

the air clean . . . [the plaintiff] produced sufficient

evidence to make his ventilation claim a disputed

issue of material fact not subject to summary

judgment."), op. am. on denial of reh'g, 135 F.3d 1318

(9th Cir. 1998); Romero-Lorenzo v. Koehn, 665 F.

Supp. 3d 1056, 1082-84 (D. Ariz. 2023) (denying in

part the correctional defendant's motion for summary

judgment, concluding that even where the defendants

implemented numerous COVID-related protective

measures, a question of fact remained regarding the

systems in place for identifying high-risk or

immunocompromised individuals, whether the

defendants used appropriate educational materials,

and whether the defendants' COVID vaccine booster

policies were inadequate); cf. Roman v. Wolf, 977 F.3d

935, 943 (9th Cir. 2020) (affirming issuance of a

preliminary injunction where the facility was "so

crowded that social distancing to combat the spread

of the novel coronavirus was impossible, detainees

85a

had inadequate access to masks, guards were not

required to wear masks, there was not enough soap or

hand sanitizer to go around, detainees were

responsible for cleaning the facility with only dirty

towels and dirty water, detainees were compelled to

sleep with less than six feet of distance between

them, and not all new arrivals were being properly

quarantined or tested"); Fuller v. Amis, No. 5:21-cv00127-SSS (AS), 2023 WL 3822057, at *5 (C.D. Cal.

Apr. 13, 2023) (denying the defendant's motion to

dismiss and concluding that the defendant's "alleged

failure to move Plaintiff to cell housing or otherwise

mitigate the serious harms posed by crowded

dormitory

housing

amounts

deliberate

indifference"), report and recommendation adopted,

2023 WL 3819181 (C.D. Cal. June 2, 2023).36

f. Defendants' Legal Arguments

Defendants argue that other courts have rejected

challenges to "comprehensive Covid-19 responses

even when a prison could have done more to stop the

36 See also Burton v. Fonseca, No. 3:20-cv-00190-ART-CLB, 2023

WL 4687847, at *6 (D. Nev. June 23, 2023) ("Here, the Court

finds genuine issues of material fact exist as to whether

Defendants failed to take reasonable steps to protect [the

plaintiff] . . . . Because there is . . . room for doubt, this claim

must be decided by the jury." (citing Lemire, 726 F.3d at 1075)),

report and recommendation adopted, 2023 WL 4683289 (D. Nev.

July 21, 2023); Duvall v. Idaho Dep't of Corr., No. 1:18-cv-00080BLW, 2020 WL 6449167, at *5 (D. Idaho Nov. 3, 2020) (denying

summary judgment because a genuine issue of material fact

remained "whether [the defendant] took reasonable measures to

guarantee [the plaintiff's] safety and well-being").

86a

spread of the virus." (Defs.' Mot. All Claims at 21.)

Defendants assert that successful COVID-related

Eighth Amendment claims have been limited to cases

involving "discrete events where prison officials failed

to make any serious effort to protect against the

virus." (Id. at 23.)

The Court agrees with Defendants' general

premise that, across the country, courts have

dismissed many COVID-related Eighth Amendment

claims at various stages of litigation. However, it does

not follow that the Court must grant summary

judgment here because, as discussed, ODOC's

response differed from responses in correctional

institutions in other states, the parties have

developed a different factual record before the Court,

and material issues of fact remain.

Contrary to Defendants' assertion, these other

cases do not stand for the proposition that summary

judgment is appropriate in any case where a

defendant took some COVID-related mitigation steps.

Instead, the inquiry remains whether Defendant took

reasonable measures to abate the risk, Farmer, 511

U.S. at 847, a question for the jury. See Peralta, 744

F.3d at 1082 ("What is reasonable depends on the

circumstances[.]"). In other words, the question is not

whether Defendants instituted measures to mitigate

the risk of COVID, but whether those measures

satisfy the Eighth Amendment's protections. See

Polanco v. Diaz, 76 F.4th 918, 929 (9th Cir. 2023)

(noting that inadequate COVID policies can

constitute deliberate indifference).

87a

For example, Defendants point to Dykes-Bey v.

Washington. (Defs.' Mot. All Claims at 21.) In DykesBey, the Sixth Circuit affirmed the dismissal of the

plaintiff's Eighth Amendment claim because the

plaintiff had not alleged facts indicating that the

defendants were deliberately indifferent such as "for

example, that [the correctional facility] had enough

physical space to implement social distancing, and

that the defendants deliberately chose not to use that

space" or that "defendants knowingly housed COVID19-positive inmates alongside any plaintiff, or even

that a COVID-19 outbreak occurred in [the

correctional facility]." Dykes-Bey v. Washington, No.

21-1260, 2021 WL 7540173, at *3 (6th Cir. Oct. 14,

2021). By contrast here, Plaintiffs have pointed to

evidence presenting a factual question as to all three

scenarios. (See Robbins Depo. at 29:17-22, 36:12-20,

suggesting that Defendants did not discuss using

empty facilities; Peters Depo. at 64:18-24, conceding

that she did not recall discussing using empty

facilities; Eaglespeaker Decl. ¶ 14, testifying that

open cells at CCCF remained unoccupied; Sublet

Decl. ¶ 25, explaining that when AICs were released,

empty portions of the facility were closed and

remaining AICs were condensed into one area; Ortega

Decl. ¶ 13(c), explaining that symptomatic AICs were

not isolated until they tested positive, and AICs from

quarantine units were still required to go to work;

Moore Decl. ¶ 5(c), 8, describing AICs with confirmed

COVID cases transported and placed into general

population without quarantine; Keith Decl. ¶¶ 2(a), 3,

describing transfer to a different facility while on

quarantine and without being tested; Stewart Decl. ¶

88a

4(a), observing symptomatic AICs waiting in their

dorm for test results; Second Wood Decl. ¶¶ 6, 9,

testifying that sick AICs were forced to go to work or

face discipline and AICs in quarantine units moved

throughout the facility; Newland Decl. ¶ 4(a), (e),

observing that COVID positive AICs were allowed to

mingle throughout the unit; Stafford Decl. ¶ 8,

testifying that he was forced to work maintenance

jobs in quarantine units; Second Lee Decl. ¶¶ 4-6,

noting that a symptomatic AIC was never

quarantined; Eaglespeaker Decl. ¶¶ 14(d), 15,

describing symptomatic AICs who refused tests and

were not quarantined and that the general population

was exposed to symptomatic AICs with known

COVID exposure; Dahab Decl. ¶ 74, noting that

COVID caused or contributed to the death of more

than forty AICs during the class period.) Thus, DykesBey is distinguishable.

In Swain v. Junior, the district court entered a

preliminary injunction relying "overwhelmingly" on

two facts alone: the increased infection rate and the

fact that adequate social distancing was impossible.

Swain v. Junior, 961 F.3d 1276, 1286 (11th Cir.

2020). The Eleventh Circuit clarified that the

deliberate indifference inquiry should not focus on

those isolated facts "but rather on the defendants'

entire course of conduct" and whether the defendants'

COVID "response was reckless[.]" Id. at 1287-88. The

Eleventh Circuit reviewed the measures that

defendants had taken (such as requiring staff and

AICs to wear masks at all times), noted that there

were "no findings that the[] measures hadn't been

implemented," acknowledged an expert report opining

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that the defendants had made their best efforts, and

concluded that the plaintiffs had not demonstrated a

substantial likelihood of success on the merits in that

case. Id. at 1289.

This Court denied Plaintiffs' motion for a

preliminary injunction in this case based on

Defendants' efforts to combat COVID as of June 2020.

(Prelim. Inj. Op. & Order.) At summary judgment,

the legal standard is different, the record is more

fully developed, and a genuine dispute of material

fact remains. Unlike in Swain, Plaintiffs' theory of

deliberate indifference is not so narrow. (See

generally Pls.' Resp. All Claims, arguing that

Defendants

failed

public

health

recommendations, did not consider reasonable

alternative strategies to improve social distancing,

deliberately avoided external audits, encouraged staff

to circumvent the vaccine mandate, and failed to

implement a mask mandate and protocols related to

mixing, screening, testing, social distancing,

quarantine, and isolation.) On the present record, a

genuine issue of fact remains as to whether

Defendants took reasonable measures to abate the

risk of COVID, a genuine issue of fact remains as to

whether Defendants implemented their COVID

policies, and the experts dispute whether Defendants

made "best efforts." (See Decl. Brittney Plesser

("Plesser Decl.") Supp. Pls.' Resp. Defs.' Damages

Mot. Ex. A, Homer Venters Expert Report ("Venters

Report") at 15, ECF No. 543-1, noting "serious

deficiencies in how [ODOC] responded to COVID-19,

including deficient approaches to social distancing,

mask wearing and quarantine"; Decl. Anit Jindal

90a

Supp. Defs.' Second Daubert Mot. ("Jindal Second

Daubert Mot. Decl.") Ex. 1, Phil Stanley Expert

Report ("Stanley Report") at 18, ECF No. 503-1,

opining that ODOC failed to take significant action in

response to COVID while "[o]ther states were able to

mount a more robust response to the pandemic";

Fleming Report at 6, 51, opining that ODOC "did not

follow national recommendations and standards in

the measures it implemented" and "could easily have

done more"); cf. Kersh v. Gastelo, No. 2:21-cv-01921CAS-JDE, 2022 WL 17548074, *5 (C.D. Cal. Aug. 23,

2022) (concluding that the defendant "instituted

reasonable

measures"

establishing

and

implementing measures such as quarantine, testing,

and

dorm-reconfiguration),

report

and

recommendation adopted, 2022 WL 16783847 (C.D.

Cal. Nov. 4, 2022); Jones, 2023 WL 4728802, at *8

("Plaintiff provides no evidence that [the warden's]

efforts to comply with [California Correctional Health

Care

Service's]

Guidelines

designating

isolation/quarantine

cells

were

improperly

administered or carried out, or that he implemented

them in a way that demonstrates a deliberate

indifference to a risk to his safety and health.").

The Court also disagrees with Defendants'

suggestion that a successful COVID-related challenge

under the Eighth Amendment must be limited to

"discrete events." (Defs.' Mot. All Claims at 23.) To

the contrary, there should be no dispute that policies,

practices, and customs are subject to an Eighth

Amendment challenge. See Helling, 509 U.S. at 36

(instructing the court below to consider the facility's

policy and whether it "will be administered in a way

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that will minimize the risk" to the plaintiff); Parsons,

754 F.3d at 677 ("[W]e have repeatedly recognized

that prison officials are constitutionally prohibited

from being deliberately indifferent to policies and

practices that expose [AIC]s to a substantial risk of

serious harm.") (citations omitted); Andrews v.

Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007)

(recognizing a cause of action under the Eighth

Amendment for an alleged policy of not screening

AICs for infectious diseases—HIV, Hepatitis C, and

Heliobacter pylori—and for housing contagious and

healthy individuals together during a known

"epidemic of hepatitis C"); see also Jordan v. Gardner,

986 F.2d 1521, 1522-23 (9th Cir. 1993) (en banc)

(holding that the correction center's policy violated

the Eighth Amendment). Nothing about COVID

changes that. See Polanco, 76 F.4th at 929 ("Taking

the allegations in the Complaint as true, this is a

textbook case of deliberate indifference: Defendants

were repeatedly admonished by experts that their

COVID-19 policies were inadequate, yet they chose to

disregard those warnings.").

Defendants also parse out Plaintiffs' Eighth

Amendment claim "theory" by "theory." (See Defs.'

Mot. All Claims at 24-56.) For example, Defendants

argue that they are entitled to summary judgment on

"Plaintiffs' masking theories" because "[t]he Eighth

Amendment does not require mask mandates[.]" (Id.

at 43.) As Plaintiffs point out (Pls.' Resp. All Claims

at 70), however , "[s]ome conditions of confinement

may establish an Eighth Amendment violation `in

combination' when each would not do so alone, but

only when they have a mutually enforcing effect that

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produces the deprivation of a single, identifiable

human need, such as food, warmth, or exercise—for

example, a low cell temperature at night combined

with a failure to issue blankets." Wilson, 501 U.S. at

304 (citations omitted).

Here, Plaintiffs have alleged a single Eighth

Amendment claim. (See SAC at 36.) The Court does

not understand Plaintiffs to raise different theories of

liability in the alternative. Instead, consistent with

Wilson, Plaintiffs assert that Defendants' actions and

inactions related to social distancing policies,

masking policies, testing policies, etc. had a mutually

enforcing effect that in combination violated

Plaintiffs' right to protection from heightened

exposure to a serious communicable disease,

contravening the Eighth Amendment when viewed in

concert. (See Pls.' Resp. All Claims at 70, "If enforcing

a mask mandate is unrealistic, for instance, so be it—

but that heightens officials' duty to take other

protective measures like testing, screening, and

isolating COVID-positive inmates. . . . Put differently,

if officials cannot or choose not to take some

protective measures then they must take others."

(citations omitted)); see Hampton, 83 F.4th at 767 ("If

masks and personal protective equipment were not

available, Defendants would have understood that it

was particularly important to avoid transferring

COVID-positive inmates to San Quentin, where the

architecture would make difficult isolating inmates to

prevent COVID's spread. The absence of masks also

would have made even clearer the importance of

properly testing and screening inmates prior to any

transfer."); see also Farmer, 511 U.S. at 843 ("[I]t does

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not matter whether the risk comes from a single

source or multiple sources[.]"). Therefore, the Court

declines to evaluate the ODOC Defendants' discrete

actions in isolation.37

3. Wal-Mart

Defendants argue that, under Wal-Mart Stores,

Inc. v. Dukes, Plaintiffs have not presented sufficient

evidence to establish class-wide misconduct. (Defs.'

Reply All Claims at 41); Wal-Mart Stores, Inc. v.

Dukes, 564 U.S. 338 (2011).

In Wal-Mart, the Supreme Court reviewed the

district court's order certifying a class of women who

were current and former employees of Wal-Mart

alleging claims of discrimination under Title VII. See

Wal-Mart, 564 U.S. at 342. The Supreme Court held

that the plaintiffs had not satisfied the commonality

requirement of class certification because the

plaintiffs had not presented significant proof that

Wal-Mart operated under a general policy of

discrimination. Id. at 349, 353. Considering the

plaintiffs' anecdotal evidence, the Supreme Court

concluded that it was "too weak" to raise an inference

of an unlawful policy. Id. at 358.

The Court agrees with Defendants that an

individual incident of one line staff's noncompliance

with COVID policies is insufficient to demonstrate

that Defendants did not implement or enforce their

37 Thus, for example, the Court does not address the sufficiency

of Plaintiffs' evidence related to building ventilation or

implementation of OSHA guidance herein.

94a

COVID policies on a systemic basis. See Fraihat v.

U.S. Immigr. & Customs Enf't, 16 F.4th 613, 647 (9th

Cir. 2021) ("There is considerable distance between

imperfect implementation of a policy, or even

knowledge of the imperfect implementation of a

policy,

and

deliberate

indifference

the

constitutional sense.") (citations omitted). However,

as Defendants acknowledge, if offered in a sufficiently

representative amount, individual testimony may

establish unconstitutional conduct on a class-wide

basis. (Defs.' Jeske Reply at 17, ECF No. 585); see

Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 457

(2016) ("Wal-Mart does not stand for the broad

proposition that a representative sample is an

impermissible means of establishing classwide

liability."); Parsons, 754 F.3d at 672 ("[T]he plaintiffs

also submitted declarations describing their

experiences with [the Arizona Department of

Corrections'] policies and practices governing health

care and conditions of confinement. These

declarations by the named plaintiffs were not

submitted to support individual Eighth Amendment

claims; rather, the plaintiffs submitted these

declarations as evidence of the defendants' unlawful

policies and practices, and as examples of the serious

harm to which all inmates in [the defendants']

custody

are

allegedly

exposed.");

Plata

Schwarzenegger, No. 01-cv-1351 TEH, 2005 WL

2932253, at *6 (N.D. Cal. Oct. 3, 2005) (recounting

"just a few representative examples from the

testimonial and documentary evidence" and finding

that the class action plaintiffs-AICs in California

95a

institutions—provided

sufficient

inadequate medical care).

evidence

Defendants characterize Plaintiffs' evidence as

sixteen declarations containing unrelated COVID

concerns. (Defs.' Reply All Claims at 41.) As

discussed, the Court's inquiry is not limited to

Plaintiffs' sixteen new declarations but also includes

declarations from earlier stages in the litigation.

Further, the declarations are not unrelated but

instead contain anecdotes of the lack of

implementation of various COVID-related policies at

different institutions.

The parties do not dispute that there are

approximately 5,000 members of the Damages Class

and forty-two members of the Wrongful Death Class

in this case. (Pls.' Resp. All Claims at 2; Defs.' OTCA

Mot. at 2; Dahab Decl. ¶ 74.) Plaintiffs presented

fifty-five declarations in support of their motion for a

preliminary injunction (ECF Nos. 15, 18-63, 92-100),

including one declaration containing reports from

seven AICs. (ECF No. 15.) In opposition to

Defendants' motion for partial summary judgment,

Plaintiffs presented eleven additional declarations.

(See ECF Nos. 128-138.) In support of their motion

for class certification, Plaintiffs presented fifteen

declarations. (See ECF Nos. 206-17, 219-21.) In

opposition to Defendants' motion for summary

judgment, Plaintiffs presented sixteen additional

declarations. (See ECF Nos. 549-60, 562-65.) In total,

Plaintiffs have filed ninety-seven declarations,

including reports from approximately ninety-one

96a

different individuals.38 Plaintiffs have presented

multiple declarations from each ODOC facility, and

numerous declarant AICs have been transferred and

housed at multiple facilities, thus providing

testimony about several facilities. (See, e.g.,

Thornburg Decl.; Cadwaller Decl.; Shaffer Decl.;

Keith Decl.; Moffatt Decl.; Stafford Decl.)

The precise ratio of anecdotal evidence compared

to class size that is sufficient to support class

certification under Wal-Mart is not entirely clear, but

the Supreme Court has provided some guidance on

both ends of the spectrum. As Defendants argue, in

Wal-Mart, the Supreme Court held that the evidence

did not raise an inference of an unlawful policy on a

class-wide basis where the plaintiff presented one

affidavit for every 12,500 class members from 235 of

the defendant's 3,400 locations. (Defs.' Jeske Reply at

18); Wal-Mart, 564 U.S. at 358. In International

Brotherhood of Teamsters v. United States, by

contrast, the Supreme Court concluded that forty

accounts from a class of 334 people was sufficient. See

Int'l Bhd. of Teamsters v. United States, 431 U.S. 324,

338 (1977).

This case falls in the middle of those Supreme

Court bookends.39 The Court concludes that Plaintiffs

38 Plaintiffs' declarations consist of one declaration from a CO,

one declaration from the class representative of the Wrongful

Death Class, and reports from eighty-nine AICs.

The Court also notes that this case is distinguishable from

Wal-Mart because, here, Plaintiffs do not rely solely on

anecdotal evidence but also challenge some of Defendants'

written policies such as their masking policy and the policy of

97a

have provided sufficient evidence of the nonimplementation of policies on a class-wide basis. See

Davis v. Baldwin, No. 3:16-cv-600-MAB, 2021 WL

2414640, at *4, *22 (S.D. Ill. June 14, 2021)

(concluding that evidence from six of the department

of corrections' twenty-five facilities in combination

with evidence of the department's formal policies was

a sufficiently representative sample); LuceroGonzalez v. Kline, No. 2:20-cv-00901-PHX-DJH-DMF,

2020 WL 8258216, at *7 (D. Ariz. Nov. 3, 2020)

(certifying a class based on declarations from each of

the named plaintiffs, a declaration from an Assistant

Federal Public Defender who had knowledge of

hundreds of clients detained at the correctional

complex, and an expert physician opining on the

heightened risk of contracting COVID in detention

facilities); Braggs v. Dunn, 317 F.R.D. 634, 646-47

(M.D. Ala. 2016) (concluding that one example for

every eighty class members provided sufficient proof

of a department of corrections' policy); Scott v. Clarke,

61 F. Supp. 3d 569, 584-85 (W.D. Va. 2014) (certifying

a class of 1,200 based on the declarations from

seventeen AICs in addition to nine named plaintiffs);

only testing symptomatic AICs. See Wal-Mart, 564 U.S. at 358;

Owino v. CoreCivic, Inc., No. 17-cv-1112 JLS (NLS), 2021 WL

120874, at *5 (S.D. Cal. Jan. 13, 2021) ("The Court instead

agrees with Plaintiffs that Wal-Mart is distinguishable, given

that, here, Plaintiffs presented proof of a written company-wide

policy.") (citation omitted), aff'd, 36 F.4th 839 (9th Cir. 2022),

opinion amended and superseded on denial of reh'g, 60 F.4th 437

(9th Cir. 2022), and aff'd, 60 F.4th 437 (9th Cir. 2022). Plaintiffs

also present expert testimony opining on Defendants' policies.

98a

Poplawski v. Metroplex on the Atl., LLC, No. 11-cv3765 (JBW), 2012 WL 1107711, at *6-7 (E.D.N.Y.

Apr. 2, 2012) (concluding that three affidavits from a

class of between forty to 160 was sufficient for

conditional class certification); cf. Moussouris v.

Microsoft Corp., No. C15-1483JLR, 2018 WL 3328418,

at *25 (W.D. Wash. June 25, 2018) (concluding that

one declaration for every 959 class members was

insufficient), aff'd, 799 F. App'x 459 (9th Cir. 2019).

The Court concludes that Plaintiffs have identified

sufficient examples of ODOC's failures to implement

its COVID policies to create a genuine issue of

material fact with respect to Defendants' class-wide

liability.

4. Qualified Immunity

Defendants argue that they are entitled to

qualified immunity on Plaintiffs' Eighth Amendment

claim. (Defs.' Mot. All Claims at 15, 19-20.) Plaintiffs

respond that existing law clearly established the

right of individuals in custody to be free from

heightened

exposure

serious,

easily

communicable disease and therefore Defendants are

not entitled to qualified immunity for their COVID

response. (Pls.' Resp. All Claims at 78-81.)

a. Applicable Law

"The doctrine of qualified immunity shields

officials from civil liability so long as their conduct

does not violate clearly established statutory or

constitutional righ

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