1 2 3 4 5 6 STATE OF WASHINGTON PIERCE COUNTY SUPERIOR COURT 7 8 9 RYAN MICHAEL RAY NAGEL, et al., 10 Plaintiff, 11 12 13 NO. 20-2-05585-4 DEFENDANTS’ RESPONSE TO PLAINTIFF’S EMERGENCY MOTION FOR INJUNCTIVE AND DECLARATORY RELIEF v. WASHINGTON DEPARTMENT OF CORRECTIONS, et al., Defendants. 14 I. 15 INTRODUCTION 16 For weeks, Washington Department of Corrections (DOC or Department) leadership, 17 emergency operations managers, and health services staff have focused intensely on 18 implementing measures to mitigate the threat COVID-19 poses to the incarcerated population. 19 Following Washington Department of Health (DOH) and Centers for Disease Control (CDC) 20 guidance, DOC has implemented COVID-19 screening for incarcerated individuals and staff; 21 developed testing protocols, obtained test kits, and administered tests to incarcerated individuals; 22 isolated individuals with COVID-19 symptoms and quarantined asymptomatic individuals who 23 may have been exposed to COVID-19; suspended visitation; put in place special precautions for 24 vulnerable populations; imposed extra sanitation and hygiene requirements; worked on 25 implementing social distancing guidelines; and taken numerous other steps to address the 26 unprecedented and evolving situation. In addition, to meet the informational needs of families, DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 1 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 DOC created a page on its public website to share planning documents, daily updates, and 2 COVID-19 resources. DOC has regularly shared its response efforts with stakeholders, such as 3 the Statewide Family Council and the Office of the Corrections Ombuds. 4 Plaintiffs are five incarcerated individuals, three in DOC custody and two detained at the 5 Pierce County Jail. They allege Defendants have violated their state constitutional rights by 6 failing to adequately protect them against the possibility of contracting COVID-19. In their 7 motion, they ask the Court to issue a preliminary injunction ordering DOC to explain the steps 8 it has taken to halt the spread of COVID-19, develop a plan that adequately addresses the safety 9 and health of inmates, and explain why DOC cannot immediately release all “low-level and 10 short-term offenders,” as well as individuals over the age of 60. The Court should deny Plaintiffs’ 11 motion. The factual allegations underlying their claims are unfounded and ignore publicly 12 available information about DOC’s COVID-19 response. Further, Plaintiffs cannot show they 13 are likely to prevail on their state constitutional claims or that they meet any of the others 14 prerequisite for preliminary injunctive relief. Furthermore, the relief Plaintiffs seek, if granted, 15 would impermissibly interfere with executive and legislative branch prerogatives and violate 16 separation of powers principles. Finally, Plaintiffs lack standing for much of the relief they seek. 17 Accordingly, Defendants respectfully request that the Court deny Plaintiffs’ Motion for 18 Emergency Injunctive and Declaratory Relief. 19 II. STATEMENT OF FACTS 20 Plaintiffs are demonstrably uninformed about DOC’s efforts to address the threat posed 21 by the global COVID-19 pandemic. Below are the relevant facts missing from Plaintiffs’ motion. 22 Notably, nearly all of the information below has been available to Plaintiffs and the public on 23 DOC’s website. See https://www.doc.wa.gov/news/covid-19.htm. For weeks, DOC leadership 24 and staff from across the agency have been actively engaged in planning for and implementing 25 steps to mitigate risk to the incarcerated population associated with COVID-19. 26 DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 2 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 A. Initial Support of Statewide Response 2 DOC began tracking the novel coronavirus in January, as reports of the virus emerged 3 from China. On January 24, 2020, after the CDC identified the first U.S. case in Washington, 4 Health Services sent a memo to all DOC staff conveying CDC guidance relating to interacting 5 with individuals travelling from China, and emphasizing the importance of taking precautions 6 normally associated with prevention of influenza, such as covering coughs and washing hands. 7 Declaration 8 https://www.doc.wa.gov/news/2020/docs/2020-0120-covid19-update.pdf). of Tomas Fithian (Fithian Decl.), Ex. 1 (Memo available at: 9 On February 9, DOC opened its Emergency Operations Center (EOC) at its Headquarters 10 in Tumwater. DOC took this action initially to support statewide planning efforts related to 11 COVID-19 led by Washington’s DOH and Military Department’s Emergency Management 12 Division. The EOC has operated continuously since February 9 in support of the statewide 13 response to the COVID-19 pandemic. Fithian Decl. ¶ 5. DOC’s assistance initially included 15 14 staff supporting DOH’s efforts, and use of the DOC’s Maple Lane property as a potential DOH 15 quarantine site. Fithian Decl., Ex. 1 (Memo at: https://www.doc.wa.gov/news/2020/docs/2020- 16 0226-doc-assistance-in-emergency-response-to-covid19.pdf). 17 B. Incident Command Activation and Expansion of Emergency Operations Center 18 On February 28, DOC appointed a high-level Prisons official to lead a team for advanced 19 contingency planning for the DOC’s COVID-19 response. Fithian Decl., Ex. 1 at pg. 11. On 20 March 2, DOC internally activated the Incident Command System (ICS) and expanded the 21 EOC at its headquarters to coordinate the agency’s COVID-19 response. By initiating the 22 EOC, the Secretary set in motion a process for coordinated planning, implementation, and 23 response to COVID-19 across all divisions of the agency. Fithian Decl. ¶ 5. 24 In a message to all staff on March 2, Secretary Sinclair reassured staff that, despite 25 opening the EOC, DOC had not been identified as an agency at high risk for COVID-19. Fithian 26 Decl., Ex. 1 at pg. 11 (Memo at: https://www.doc.wa.gov/news/2020/docs/2020-0302-docDEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 3 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 response-to-covid19.pdf). The Secretary’s message also reminded staff of universal precautions 2 they should be taking and of DOC’s Communicable Disease and Infection Prevention Program, 3 designed to ensure a safe and healthy environment for employees and incarcerated individuals. 4 As outlined in DOC Policy 670.000, the Infection Prevention program focuses on infectious 5 disease prevention, education, identification, and treatment. A physician who is a board certified 6 infectious disease specialist oversees the program, and each major prison facility has an Infection 7 Prevention Nurse on staff. Declaration of Sara Kariko, M.D. (Kariko Decl.) ¶ 3 and Ex. 1. One 8 of the cornerstones of the Communicable Disease and Infection Prevention Program is 9 assessment and screening of all individuals for infectious diseases as they enter the system, at 10 the two reception centers – the Washington Corrections Center in Shelton and the Washington 11 Corrections Center for Women near Purdy. Kariko Decl. ¶ 3. 12 C. Implementation of Screening, Testing, and Infection Control Guidelines 13 Following activation of the ICS, DOC Health Services staff immediately began work 14 updating its Public Health Pandemic Plan and developing procedures and guidelines specific 15 to COVID-19 screening, testing, and infection control. On March 6, DOC distributed the 16 “WA State COVID-19 Screening, Testing, and Infection Control Guideline” (COVID-19 17 Guideline) to all Health Services Staff and prison superintendents. Kariko Dec. ¶ 5. The 18 guideline details the screening, testing, and infection control procedures DOC has put into 19 place with respect to COVID-19. Since then, DOC’s Health Services staff has updated the 20 COVID-19 Guideline on an ongoing basis to reflect the rapidly evolving nature of the 21 COVID-19 pandemic. The March 19, 2020 version of the COVID-19 Guideline is attached 22 as Exhibit 2 to the Declaration of Sara Kariko, M.D., DOC’s Chief Medical Officer. 23 On March 4, 2020, Secretary Sinclair provided an update to DOC staff. This update 24 informed staff of the establishment of an outlook mailbox dedicated to COVID-19 questions, 25 concerns, and information requests. The same day, DOC posted information to its public website 26 asking visitors to not take part in visiting if they felt sick with a fever, cough, or had difficulty DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 4 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 breathing. The agency also shared this and other information about the DOC’s planning and 2 response to COVID-19 with the Statewide Family Council, a group representing family members 3 of incarcerated individuals. Fithian Decl. ¶ 7. 4 On March 5, DOC shared information with all incarcerated individuals about the 5 agency’s COVID-19 response. This occurred through the kiosk system available to all inmates, 6 as well as by written memo on March 6 from the Assistant Secretary for Prisons distributed to 7 each individual. Fithian Decl. ¶ 9. These messages explained that DOC had implemented the 8 ICS and advised inmates about precautions that they could take in order to avoid the spread of 9 COVID-19. The messages also instructed incarcerated individuals to report to facility Health 10 Services if they were not feeling well. Id. 11 D. Screening at Intake and Initial Restrictions on Visitation 12 Infectious disease screening is a routine part of the prison intake process. Beginning 13 on March 5, DOC began screening all incoming inmates arriving at the two reception centers 14 from county jails specifically for COVID-19. If the individual had positive responses to the 15 screening questions or had a fever, the COVID-19 Guideline required immediate donning of 16 a surgical mask and isolation pursuant to the procedures described in the Guideline. Kariko 17 Decl. ¶ 6 and Ex. 2 at pgs. 1-2. 18 On March 6, DOC implemented screening guidelines for all persons visiting prison 19 facilities. This screening included questions directed at identifying persons with COVID -19 20 symptoms and those who travelled to impacted areas or otherwise potentially had contact 21 with individuals who may have contracted the virus. Individuals identified as presenting a 22 possible risk of COVID-19 exposure were denied entry for visitation or attendance at a 23 scheduled facility event. Fithian Decl. ¶ 11. The Department’s EOC communicated these 24 directions to facility superintendents, captains, and shift commanders with instructions that they 25 were effective immediately. Fithian Decl. ¶ 11. 26 DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 5 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 E. Suspension of Visitation and Implementation of Employee Screening 2 On March 12, following the Governor’s March 11 proclamation banning large 3 gatherings of people and closing schools in King, Snohomish, and Pierce counties, DOC 4 suspended visitation at all correctional facilities, including extended famil y visitation, 5 effective March 13. DOC immediately communicated this significant step to the incarcerated 6 population, the Statewide Family Council, employees, the Office of the Corrections Ombuds, 7 Legislators, and the media. Fithian Decl. ¶ 14 and Ex. 1 at pg. 7. 8 Also on March 12, DOC was notified that a staff member at the Monroe Correctional 9 Complex (MCC) tested positive for COVID-19. That staff member had last worked on March 8, 10 was tested on March 10, and received the results on March 12. DOC immediately notified 11 employees who had close contact with this individual and asked them to self-quarantine at home 12 for 14 days. The Department also placed the two units where the employee worked (A and B 13 Units at the Washington State Reformatory) on quarantine/restricted movement status. Staff and 14 unit porters thoroughly cleaned and disinfected the units and other precautionary measures were 15 implemented as well. Fithian Decl. ¶ 13. 16 Immediately upon notification of the affected employee, EOC activated incident 17 command posts (ICPs) at each prison and began planning to implement enhanced screening 18 measures for all staff. The ICPs have been operating continuously since that day. Effective 19 March 15, and implemented at all facilities on March 16, the Enhanced Screening Protocol 20 required that all individuals entering a DOC facility or office location are required to answer 21 screening questions and to have their temperature taken. Pursuant to the protocol, individuals 22 who present with a temperature or respond positively to the screening questions are not 23 permitted into the facility. Fithian Decl. ¶ 16; Kariko Decl. ¶ 9. As of March 19, 324 prison 24 employees had been denied access to facilities based on the screening process. DOC has also 25 encouraged employees who were able to telework to do so. Fithian Decl. ¶ 16. 26 DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 6 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 On March 15, DOC sent a message to all incarcerated individuals via the kiosk system. 2 The message informed the inmates of the positive tests of two DOC employees (the Monroe 3 employee and an employee who worked at DOC headquarters). The memo also explained the 4 precautions that were being taken at MCC, the enhanced screening process for all persons 5 entering the facility, tips on how to prevent the spread of COVID-19, and symptoms individuals 6 should watch for. Fithian Decl. ¶ 17 and Ex. 4. 7 F. COVID-19 Testing and Isolation / Quarantine Procedures 8 As widely reported in the news, access to testing for COVID-19 has been limited 9 throughout the United States. DOC is subject to those limitations. However, in anticipati on 10 of the limited supply, DOC ordered 50 additional test kits for every facility and 100 for MCC, 11 Washington Corrections Center, Washington Corrections Center for Women, and Airway 12 Heights Corrections Center. As of March 19, all facilities have testing kits, and DOC has 13 been working with the DOH state laboratory, the University of Washington Virology 14 laboratory, and Interpath to process DOC tests. Kariko Decl. ¶ 10. 15 DOC has implemented measures to immediately isolate patients suspected to have 16 COVID-19. Kariko Decl. ¶¶ 13-15. These measures include requiring the individual to wear 17 a surgical mask until they can be isolated, isolating the individual in a single person cell, and 18 if a single cell is not available, housing or “cohorting” patients with COVID-19 together if 19 they are assumed to have the same virus and strain. While in isolation, the individual is 20 required to be assessed at least once every shift and will receive all necessary medications at 21 cell-front. Additionally, droplet precaution procedures are put in place, ensuring that staff 22 wear appropriate personal protective equipment when within 6 feet of the isolation cell. 23 Isolated patients generally are not allowed out of their cell absent a medical or security 24 emergency, and they will remain in isolation until they are symptom free for 14 days. Kariko 25 Decl. ¶ 14 and Ex. 2 at pgs. 4-5. 26 DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 7 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 DOC also has implemented measures to quarantine asymptomatic individuals who 2 have had close contact with suspected COVID-19 patients. Quarantined patients are required 3 to be housed alone or cohorted with other quarantined patients. DOC’s procedures mandate 4 that if a quarantined patient becomes symptomatic, they immediately are removed from 5 quarantine and placed into isolation. Quarantined patients receive nursing assessments twice 6 daily, and are to remain in quarantine for 14 days or until symptoms develop. Kariko Decl. 7 ¶ 16 and Ex. 2 at pgs. 6-7. 8 G. Precautionary Measures for Special Populations 9 There are special housing units within DOC facilities where elderly and/or infirm 10 individuals reside. These units include infirmaries at major facilities, the Sage Unit at Coyote 11 Ridge Corrections Center, and the K Unit at Airway Heights Corrections Center. Because 12 these populations are potentially vulnerable to COVID-19, DOC issued special restrictions 13 intended to mitigate the risk to these special populations on March 18. The restrictions limit 14 the staff who may enter the designated units and require that all staff entering the units first 15 wash their hands. The restrictions further limit the movement of incarcerated individuals in 16 and out of the units, provide for meals on the units rather than in the dining halls (except that 17 K Unit, because of its size, eats separately in the dining hall after the hall has been sanitized) , 18 require regular hand washing, and allow individuals to self-quarantine in their cells if they 19 desire. Fithian Decl. ¶ 19 and Ex. 6; Kariko Decl. ¶ 17. 20 H. Facility Cleaning Procedures and Access to Hygiene Products 21 Under normal operations, DOC provides inmates access to cleaning products. Depending 22 on the facility and custody level, inmates have in-cell cleaning supplies available, including 23 spray disinfectant. Fithian Decl. ¶ 24. DOC also has trained incarcerated individuals who work 24 as paid porters, helping to maintain a safe and hygienic facility. To be a porter, incarcerated 25 individuals receive training and are supervised while performing their duties. Fithian Decl. ¶ 24. 26 DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 8 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 In addition to these normal safety practices, DOC has taken additional steps to ensure its 2 facilities are clean in light of COVID-19. DOC has instituted an intensive, frequent cleaning 3 protocol. Standard cleaning products are used more frequently to clean and disinfect common 4 and high touch areas such as telephones, kiosks, counters, and doors. The type of disinfecting 5 solutions varies by location, and includes diluted bleach. Inmates also have access to cleaning 6 products at their request and are encouraged to frequently clean their cells. Fithian Decl. ¶ 25. 7 DOC has also posted information from DOH and other hygiene related materials in areas visible 8 to its incarcerated population throughout DOC’s facilities. 9 All incarcerated individuals have regular access to soap and water to wash their hands. 10 Fithian Decl. ¶ 26. Some units in Department facilities contain “wet” cells. This means that the 11 cell itself has a sink in which the occupants of the cell can wash their hands. Other units have 12 “dry” cells. This means the cells do not have sinks. In units with dry cells, inmates have access 13 to bathrooms with sinks, soap, and water. Inmates in such units can access those sinks during 14 daytime hours. At night when inmates generally remain in their cells, those who need to use the 15 sink or bathroom can ask staff to do so. Fithian Decl. ¶ 26. 16 In addition to access to soap for hand washing, on March 4, DOC authorized the use of 17 alcohol based hand sanitizer where soap and water was not readily available. Normally, the use 18 of hand sanitizer is heavily restricted because it contains alcohol, which is a contraband item 19 within prisons. DOC also authorized employees, volunteers, contract staff, and visitors to bring 20 hand sanitizer into the facility. DOC’s Correctional Industries (CI) staff have also been working 21 to come up with ways to assist DOC’s response to COVID-19 and likely will be manufacturing 22 hand sanitizer in the coming weeks for use within the facilities. Fithian Decl. ¶ 8. 23 I. Food Service Preparation 24 The institutional kitchens at each facility are staffed, in part, by incarcerated individuals. 25 A large portion of the food is prepared by food factories run by DOC’s CI. By policy, 26 incarcerated individuals who work in food services must undergo a health screening prior to DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 9 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 working for food services. The kitchen workers must also have a DOH issued food worker’s 2 card. Additionally, incarcerated individuals who work for food services and are observed to have 3 an illness or report to have an illness are removed from work until they can be evaluated by 4 health services. It is common practice for inmates and staff working in the kitchen, including 5 preparing and serving food, to wear industry standard hair nets and gloves. In the food factory 6 at Airway Heights Corrections Center, the federal FDA is regularly present. Fithian Decl. ¶ 27. 7 In addition to these normal practices around safety in health services, DOC has increased 8 the steps that it has taken to provide safe food. CI is in close contact with government partners 9 such as the U.S. Department of Agriculture and FDA. DOC has implemented more frequent and 10 enhanced cleaning and disinfection procedures. Enhanced screening of staff continues daily 11 upon arrival to work. Meals for isolated and quarantined patients are served in disposable 12 clamshells by staff wearing gloves and who have washed their hands before and after handling. 13 Food service management is attentive to ensuring compliance with safe food handling guidelines 14 and staff regularly are reminded about critical food safety practices. Fithian Decl. ¶ 27. 15 J. Current Status 16 As of March 19, DOC had tested approximately 28 incarcerated individuals for 17 COVID-19. There have been no COVID-19 positive results as of March 20. Tested 18 individuals have been isolated pursuant to the procedures detailed in the COVID-19 19 Guidelines. Kariko Decl. ¶ 12. Information about test results and DOC’s ongoing efforts to 20 manage this situation is available on DOC’s website and is updated daily. DOC staff have 21 been providing regular updates to the Office of the Correctional Ombuds during a conference 22 call on business days that is open to members of the public. Counsel Declaration, Exhibit 9. 23 III. MOTION TO STRIKE 24 Affidavits submitted in support of a motion for preliminary injunction must generally 25 comport with the evidentiary rules and consist of admissible evidence. See ER 1101(c) (not 26 DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 10 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 identifying such proceedings as excluded from the rules of evidence).1 Objections to such 2 evidence can be raised in a motion to strike. See Burmeister v. State Farm Ins. Co., 92 Wn. App. 3 359, 365, 966 P.2d 921 (1998). The declaration of Dr. Bauer contains two types of inadmissible 4 evidence. First, Dr. Bauer’s testimony about the statements of a unidentified prison guard are 5 inadmissible hearsay. Specifically, paragraphs 12, 13, and 14 purport to recount a conversation 6 between Dr. Bauer and a “prison guard.” The officer is not identified by name or facility at which 7 he or she works. Such testimony is inadmissible hearsay. See ER 802; Condon Bros, Inc. v. 8 Simpson Timber Co., 92 Wn. App. 275, 284-85, 966 P.2d 355 (1998) (discussing standard for 9 party admissions in the context of an organization—a standard not met here). Second, the Court 10 should not consider Dr. Bauer’s statements (primarily paragraphs 3 and 14) about various new 11 articles that appear to provide a basis for his views about prisons. The information in the 12 newspaper articles is hearsay, and it appears that Plaintiffs are relying upon those articles for the 13 truth of the matter asserted in the articles. Additionally, such information is not a proper basis 14 for expert opinion because there is no showing that doctors typically rely upon things they read 15 in the news as a basis for their opinions. Thus, the Court should not consider such paragraphs. IV. 16 ARGUMENT 17 A court may enter an injunction upon a showing that: (1) he has a clear legal or equitable 18 right, (2) that he has a well-grounded fear of immediate invasion of that right, and (3) that the 19 acts complained of are either resulting or will result in actual and substantial injury to him. Tyler 20 Pipe Indus., Inc. v. State Dep’t of Revenue, 96 Wn.2d 785, 792, 638 P.2d 1213 (1982). When 21 considering whether a party has a clear legal or equitable right, courts consider whether there is 22 a likelihood that the party will succeed on the merits. Id. at 793. Because injunctions are within 23 the equitable powers of the court, courts examine the criteria in light of equity, including 24 balancing the relative interests of the parties and the interest of the public if appropriate. Id. 25 1 Some federal courts apply more lenient evidentiary rules in the preliminary injunction context, see, e.g., Johnson v. Courturier, 572 F.3d 1067, 1083 (9th Cir. 2009), but it does not appear Washington courts have adopted such logic to this point. 26 DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 11 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 Based on the proposed preliminary injunction, Plaintiffs seek an injunction that requires 2 the DOC to prove certain things. It is doubtful that such an order would ever be an appropriate 3 preliminary injunction because it is essentially a discovery request.2 Moreover, this type of 4 request appears to be more of a permanent injunction. If the Court were to order the requested 5 relief, there is no way for the Court to restore the status quo ex ante if Plaintiffs ultimately lose 6 on the merits. Although Courts can issue mandatory injunctions that require a party to act, such 7 mandatory injunctions are disfavored, and courts have not suggested that parties can obtain 8 permanent injunctive relief merely by labeling their requests “preliminary” in nature. For the 9 reasons discussed below, Plaintiffs’ motion fails on the merits as well. 10 A. Plaintiffs Are Unlikely to Succeed on the Merits of Their Claims 11 Plaintiffs assert that they are likely to succeed in showing that Defendants (1) violated 12 the privilege and immunities clause of the Washington Constitution (Article 1, section 12); 13 (2) violated their right under the Washington Constitution to not be subjected to cruel 14 punishment (Article 1, section 14); and (3) violated their duty to keep Plaintiffs in good health 15 and safety. Plaintiffs are unlikely to succeed on any of these theories. 16 1. Plaintiffs Are Unlikely to Show a Violation of the Privilege and Immunities Clause 17 18 The privileges and immunities clause of the Washington Constitution provides 19 protections similar to the Equal Protection Clause of U.S. Constitution. Seeley v. State, 132 20 Wn.2d 776, 791, 940 P.2d 604 (1997). Absent a fundamental right or suspect class, rational basis 21 review applies to an Equal Protection challenge. State v. Hirschfelder, 170 Wn.2d 536, 550, 242 22 P.3d 876, 883, 242 P.3d 876 (2010). Plaintiffs appropriately concede their claims do not 23 implicate a fundamental right or suspect class and therefore are subject to rational basis review. 24 Plaintiffs’ Motion, at 19. A classification passes rational basis so long as it bears a legitimate 25 26 2 Such relief would essentially obviate the need for discovery in almost every civil case. Rather than doing discovery, a plaintiff could merely file a motion asking a court to order the defendant to disprove plaintiff’s case. DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 12 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 relation to some legitimate end. Hirschfelder, 170 Wn.2d at 551. Social and economic legislation 2 is presumed rational and this presumption can only be overcome by a clear showing that the law 3 is arbitrary and irrational. See Am. Legion Post #149 v. Wash. State Dep’t of Health, 164 Wn.2d 4 570, 609, 192 P.3d 306 (2008). In conducting this analysis, courts can assume the existence of 5 any conceivable set of facts that could provide a rational basis for the classification. Id. at 609. 6 Plaintiffs argue that Defendants have violated Equal Protection by failing to sanitize their 7 prisons and/or by not applying the Governor’s limitation on social gatherings to prisons.3 With 8 respect to the first argument, the Court should reject the notion that Defendants are failing to 9 sanitize their prisons because the evidence shows they clearly are sanitizing their prisons. See 10 Fithian Decl. ¶¶ 24-27. Additionally, it is difficult to see how an alleged failure to sanitize 11 surfaces in a prison could implicate Equal Protection. Cleaning surfaces in government buildings 12 is not the type of action that would normally trigger scrutiny under the Equal Protection Clause. 13 Moreover, there is no class to which Plaintiffs are compared in this respect. 14 With respect to the Governor’s emergency proclamation, Plaintiffs appear to recognize 15 that the proclamation, by its own terms, does not apply within prisons. The proclamation applies 16 to gatherings of people “for social, spiritual, and recreational activities, including but not limited 17 to, community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; 18 conventions; fundraisers; and similar activities.” Counsel Declaration, Exhibit 6, Proclamation 19 by the Governor 20-7. There is no plausible argument that incarceration pursuant to a criminal 20 sentence is a gathering for social, spiritual, or recreational activities. 21 Instead of arguing that the proclamation expressly applies to prisons, Plaintiffs seem to 22 argue that the proclamation should apply to prisons, and DOC is violating the state constitution 23 by not extending it to preclude large gatherings of DOC inmates. Plaintiffs provide no authority 24 that a state actor can violate Equal Protection by not extending another state actor’s emergency 25 26 3 Plaintiffs also raise an argument about Defendants distinguishing between staff and private citizens. Plaintiffs do not present any evidence related to this argument. Additionally, Plaintiffs lack standing to assert a claim on behalf of DOC staff. See infra Section IV.E. DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 13 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 proclamation beyond its plain terms. Nevertheless, even assuming the Governor’s proclamation 2 is subject to Equal Protection review in this action, any classifications it draws are rationally 3 related to a legitimate government end. The Governor’s proclamation restricts non-essential 4 gatherings. It does not apply to displace people from residential settings, such as state hospitals, 5 prisons, city and county jails, homeless shelters, college dormitories, nursing homes, or 6 residential treatment centers. Such a distinction serves a rational purpose because it restricts large 7 social gatherings, but avoids displacing people from housing and services, including people who 8 cannot safely be housed in the community. Moreover, even if the Governor’s emergency orders 9 were to have expressly treated prisoners differently than other individuals, such treatment would 10 survive rational basis review. Because of felony convictions, incarcerated individuals like 11 Plaintiffs have lost many rights enjoyed by other citizens, including their liberty while confined. 12 Overton v. Bazzetta, 539 U.S. 126, 131 (2003). Plaintiffs are not likely to succeed on their 13 privileges and immunities claim. 14 2. 15 The Washington Constitution prohibits “cruel punishments.” Article 1, section 14. 16 Plaintiffs argue that the state constitution provides broader protection than the Eighth 17 Amendment, and they forego analysis of the Gunwall factors based on this assumption. 18 Plaintiffs’ Motion, at 22. This argument ignores the established principle that just because a 19 Washington Constitutional provision might have a broader application in one context does not 20 mean that it has a broader application in all contexts. See, e.g., State v. Russell, 125 Wn.2d 24, 21 58, 882 P.2d 747 (1994). Indeed, shortly after the Supreme Court decided State v. Gregory, 192 22 Wn.2d 1, 427 P.3d 621 (2018), the Supreme Court again resorted to the Gunwall factors to 23 determine whether Article 1, section 14 provided broader protection in a new context. State v. 24 Bassett, 192 Wn.2d 67, 428 P.3d 343 (2018). Despite claiming broader protection under the 25 Washington Constitution, Plaintiffs themselves look primarily to federal constitutional case law 26 interpreting the Eighth Amendment. Given the absence of a Gunwall analysis and the fact that Plaintiffs Are Unlikely to Show a Violation of the Cruel Punishment Clause DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 14 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 Plaintiffs themselves look to federal case law, Defendants proceed based on the assumption that 2 the analysis is the same. 3 Plaintiffs have been or indicate that they will be sentenced to serve some term of 4 imprisonment in DOC’s custody pursuant to crimes established by the Legislature. As Plaintiffs 5 appropriately recognize, the cruel punishment clause does not preclude harsh punishment. 6 “While confinement of any character may in a sense contain elements of cruelty, yet the safety 7 of the people requires that such persons shall be confined.” Ex parte Brown, 39 Wash. 160, 166– 8 67, 81 P. 552, 553 (1905). To determine if a prison condition violates the Eighth Amendment, 9 courts determine whether (1) the alleged deprivation is objectively, sufficiently serious and 10 (2) whether the prison official had a sufficiently culpable state of mind. See Wilson v. Seiter, 501 11 U.S. 294, 303-04 (1991); Rhodes v. Chapman, 452 U.S. 337 (1981). 12 Plaintiffs are unlikely to succeed in meeting either the objective or subjective prong of 13 the Eighth Amendment test. In determining whether a deprivation is sufficiently serious (i.e. the 14 objective prong), courts look to the type of deprivation, the length of the deprivation, and the 15 alleged harm that the deprivation caused. See Johnson v. Lewis, 217 F.3d 726, 731-32 (9th Cir. 16 2000). The objective prong requires a showing that it is contrary to contemporary standards of 17 decency for anyone to be exposed to the alleged hazard against his will. Hines v. Youseff, 914 18 F.3d 1218, 1229 (9th Cir. 2019). Society must consider the risk at issue to “be so grave that it 19 violates contemporary standards of decency to expose anyone unwilling to such a risk.” Id. 20 (emphasis in original) (citations omitted). 21 That high standard is not met by the possibility that Plaintiffs will be exposed to COVID- 22 19 while in prison. Although government officials, including DOC officials, have appropriately 23 taken extraordinary precautionary measures to minimize the spread of COVID-19, it cannot be 24 said that potential exposure to COVID-19 is a risk that offends contemporary standards of 25 decency. Given the unfortunate realities surrounding the current situation, it is expected that 26 many Americans will be exposed to or be at risk of being exposed to COVID-19. However, this DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 15 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 does not render an inmate’s exposure to COVID-19 offensive to society, or somehow make such 2 exposure “punishment” in the context of the cruel punishment clause. To conclude otherwise 3 would be an extraordinary expansion of the concept of cruel punishment, and it would impose 4 increased liabilities and duties on prison officials for risks faced by all members of society. Under 5 such a theory prison officials might need to take extraordinary steps to prevent the spread of 6 heart disease (still the leading cause of death in America) by perhaps forcing inmates to exercise 7 more, or take extraordinary steps to minimize the potential impacts of climate change in prison 8 facilities. This interpretation of the cruel punishment clause would be absurd and unworkable. 9 This case appears analogous to the Ninth Circuit’s decision in Hines v. Youseff, 914 F.3d 10 1218 (9th Cir. 2018). In that case, a group on inmates challenged the California Department of 11 Corrections’ response to Valley Fever—a disease caused by inhaling certain fungal spores that 12 are common in the southwestern United States. Hines, 914 F.3d at 1223-24. Although the Ninth 13 Circuit analyzed the issue through the lens of qualified immunity, its analysis is instructive in 14 this case. In affirming the dismissal of the claims, the court noted that millions of people live in 15 the Central Valley of California and are exposed to the risk of Valley Fever. Id. at 1231-32. 16 Then, the Court noted “[w]here large numbers of people are exposed to a known risk, and yet no 17 societal consensus has emerged that the risk is intolerably grave, a reasonable official can infer 18 that the risk is one society is prepared to tolerate, like the risk of being injured or killed in a 19 traffic accident.” Id. Given that members of free society were exposed to a similar risk, there 20 was no evidence that society’s attitudes had evolved to the point that exposure to such a risk 21 violated contemporary standards of decency. Id. In contrast to Valley Fever, the risk of exposure 22 to COVID-19 is a risk shared by a broader array of members of society. Although government 23 officials have encouraged (and in some cases mandated) members of free society to try to 24 minimize that risk, there is simply no evidence that society would consider exposure to COVID- 25 19 to be “punishment” that would be so disproportionate as to shock the conscience or violate 26 DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 16 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 principles of fundamental fairness and human dignity. Thus, Plaintiffs are therefore unlikely to 2 succeed in meeting the objective prong of the cruel punishment clause. 3 The injunction can also be denied because Plaintiffs are unlikely to succeed in showing 4 that Defendants were deliberately indifferent to any risk of harm to them. Deliberate indifference 5 is a high legal standard that is akin to criminal recklessness. Farmer v. Brennan, 511 U.S. 825, 6 836 (1994). Deliberate indifference requires a defendant to have: (a) known that the allegedly 7 unconstitutional condition presented an excessive risk to an inmate’s health or safety, and 8 (b) failed to act reasonably in light of that risk. See Farmer, 511 U.S. at 837-38. Plaintiffs do not 9 analyze the question of deliberate indifference at all. Largely, Plaintiffs rely upon a series of 10 factual assertions that lack any evidentiary support. For example, Plaintiffs make the bald 11 assertion that there are “poor nutrition and living conditions in most prisons.” Plaintiffs’ Motion, 12 at 26. Regardless of these unsupported arguments, Defendants have demonstrated through 13 declarations the steps that they are taking to deal with the situation. This evidence shows that 14 DOC officials, including Defendants, are responding thoughtfully and reasonably to the risk of 15 COVID-19. Again, much of this information was publically available at the time that this case 16 and motion for a preliminary injunction was filed. Considering the actual evidence before the 17 Court, Plaintiffs have failed to demonstrate that they are likely to succeed in establishing 18 conditions that violate the cruel punishment clause of the Washington Constitution. 19 3. Plaintiffs Are Unlikely to Show a Violation of the Duty to Protect and Maintain Health, Safety, and Welfare 20 21 Plaintiffs indicate that DOC has a legal duty to keep inmates in good health and safety. 22 Plaintiffs’ Motion, at 27. The cases cited by Plaintiffs are cases brought by inmates under a 23 theory of negligence. Id. (citing Shea v. City of Spokane, 17 Wn. App. 236, 241, 562 P.2d 264 24 (1977); Kusah v. McCorkle, 100 Wn. 318, 323, 170 P. 1023 (1918). As such, Defendants believe 25 that this cause of action is one brought under a negligence theory. Negligence is the failure to 26 exercise ordinary care. In order to establish a cause of action for negligence, a plaintiff must DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 17 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 prove each of the following elements by a preponderance of the evidence: (1) the existence of a 2 duty owed to the plaintiff by the defendant; (2) breach of that duty; (3) injury resulting from the 3 breach of duty; and (4) proximate cause between the breach of duty and the injury. See e.g., 4 Hutchins v. 1001 Fourth Avenue Associates, 116 Wn.2d 217, 220, 802 P.2d 1360 (1991). 5 Even accepting that there is a common law duty to keep inmates in good health and 6 safety, Plaintiffs have not provided persuasive evidence of how the duty operates, or that 7 Defendants have breached such a duty. The thrust of Plaintiffs’ argument is that the DOC has a 8 duty to prevent them and other inmates from contracting COVID-19. Plaintiffs appear to believe 9 that the existence of this duty provides some kind of strict liability. Plaintiffs do not cite any 10 support for such an expansive theory. The law typically requires an individual to exercise only 11 reasonable care even when there is some kind of special relationship between the plaintiff and 12 defendant. See Hendrickson v. Moses Lake Sch. Dis’t, 192 Wn.2d 269, 277, 428 P.3d 1197 13 (2018). To the extent they provide any specifics, Plaintiffs refer to a lack of access to cleaning 14 products that would ensure eradication of the virus; a lack of sufficient access to soap and water; 15 and alleged overcrowding. These assertions are not supported by admissible evidence and are 16 now contradicted by the evidence presented by DOC. But more fundamentally, Plaintiffs do not 17 point with any specificity how DOC’s duties would operate here, i.e. what is the benchmark for 18 “overcrowding” or what is “sufficient” access to soap and water. 19 Plaintiffs have also not presented any evidence that the DOC has failed to exercise 20 ordinary care in this circumstance. The only evidence that Plaintiffs have provided in support of 21 the argument that Defendants have violated their duty is a declaration from a doctor whose basis 22 for his opinions appear to be a single conversation with an unidentified “prison guard.” There is 23 no suggestion that Dr. Bauer has any experience providing medical care to inmates, managing a 24 correctional facility, or actually ever stepped foot in a prison. In contrast, DOC has provided 25 concrete evidence about the steps that they are taking to manage the risk of COVID-19. 26 DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 18 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 Furthermore, Plaintiffs have not shown a likelihood of success in showing that they have 2 suffered any injuries, or that such injuries were caused by Defendants. Plaintiffs have not shown 3 any concrete injury that they have suffered at this point. Naturally, they are not able to 4 demonstrate that Defendants caused these future (at this point non-existent) injuries either. 5 Because Plaintiffs have not shown a likelihood of success on the negligence theory, Plaintiffs 6 are not entitled to a preliminary injunction under such a theory 7 B. Plaintiffs Have Not Demonstrated a Well-Grounded Fear of an Immediate Invasion of Any Right 8 9 Plaintiffs also have failed to establish that they have a well-grounded fear of an 10 immediate invasion of any right. Plaintiffs have not presented any specific information about 11 their circumstances, or any showing of a specific threat of injury to them. In fact, two of the five 12 Plaintiffs are currently housed in Pierce County, not in DOC’s custody. Instead of relying upon 13 information specific to Plaintiffs, Plaintiffs rely upon the bald assertion that “[p]oor conditions 14 within the vast majority of prisons are well-documented” and “[t]hat jail personnel cannot clean 15 effectively enough to terminate virons on hard surfaces is likewise well-documented.” Plaintiffs’ 16 Motion, at 28 (emphasis added). Plaintiffs cite no support or evidence for these assertions that 17 they purport are “well-documented,” and there is no factual basis to conclude that these five 18 Plaintiffs are at risk for any immediate invasion of their rights. In contrast to Plaintiffs’ 19 unsupported assertions, Defendants have presented concrete evidence showing the steps that 20 they have taken to address the issue. Therefore, Plaintiffs have failed to show a well-grounded 21 fear of any immediate invasion of their rights. 22 C. Plaintiffs Have Not Demonstrated That Defendants’ Actions Will Result in Actual and Substantial Injury to Plaintiffs 23 24 A preliminary injunction is an extraordinary remedy. Such a remedy is designed to 25 prevent serious harm; its purpose is not to protect a plaintiff from speculative or insubstantial 26 injuries. Kucera v. State, Dep’t of Transp., 140 Wn.2d 200, 221, 995 P.2d 63 (2000). Although DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 19 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 Plaintiffs argue they will suffer actual and substantial injury because exposure and eventual 2 illness is a near certainty, Plaintiffs concede that “it cannot be forecast whether or not Plaintiffs 3 will contract the virus” and “it likewise cannot be forecast whether the virus will cause 4 permanent damage to Plaintiffs or will prove fatal.” Plaintiffs’ Motion, at 29. In other words, 5 Plaintiffs appear to concede that their concerns are largely speculative.4 Indeed, the claim of 6 actual and substantial injury is based on the idea that (1) Plaintiffs will all be exposed to COVID- 7 19 in prison or jail; (2) Plaintiffs’ exposure will result in them contracting COVID-19; 8 (3) Plaintiffs will fall within the category of individuals who require medical intervention to treat 9 COVID-19; and (4) that Defendants will refuse to provide or fail to treat them for COVID-19. 10 Such a speculative theory is highly questionable, and it does not demonstrate that Defendants’ 11 actions will result in actual and substantial injury to Plaintiffs. Therefore, the Court should 12 decline to issue a preliminary injunction on this basis. 13 D. The Relief Requested Would Have Serious Implications for the Separation of Powers 14 15 “The separation of powers doctrine ensures that the fundamental functions of each branch 16 of government remain inviolate.” Hillis v. Dep’t of Ecology, 131 Wn.2d 373, 389-90, 932 P.2d 17 139 (1997). “Courts will not interfere with the work and decisions of an agency of the state, so 18 long as questions of law are not involved, and so long as the agency acts within the terms of the 19 duties delegated to it by statute.” Wash. State Coal. for the Homeless v. DSHS., 133 Wn.2d 894, 20 913, 949 P.2d 1291 (1997). A court may interfere with the functions of an executive branch 21 agency without violating the separation of powers doctrine only if judicial interference is 22 necessary to protect individual rights from agency acts that are arbitrary or tyrannical or that are 23 predicated on a fundamentally wrong basis. Id. at 913-14. Plaintiffs have made no such showing 24 25 26 4 Plaintiffs paint Karen Lofgren, who is 56 years old, as a person in the category of people more susceptible to the virus. The basis for this statement is unclear. Plaintiffs’ own expert identifies the higher risk categories as people over 60, Bauer Declaration, at ¶ 8, and the CDC guidelines identify the higher risk individuals as those over 65. https://www.cdc.gov/coronavirus/2019-ncov/specific-groups/high-risk-complications/older-adults.html. DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 20 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 here. Their request to have the Court supervise DOC’s COVID-19 response and order the release 2 of inmates would require the Court to impermissibly intrude on the prerogatives of the executive 3 and legislative branches. State v. Moreno, 147 Wn.2d 500, 505-06, 58 P.3d 265 (2002). 4 Managing prisons is an executive branch function. Courts long have recognized the broad 5 authority of prison officials in making often difficult decisions involved in managing 6 correctional facilities. Courts have recognized that managing a prison is a complex and 7 intractable task that requires expertise and is “peculiarly within the province of the legislative 8 and executive branches of government.” Procunier v. Martinez, 416 U.S. 396, 404-05 (1974), 9 overruled in part on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). Although the 10 separation of powers does not prevent a court from declaring that specific actions of prison 11 officials are unconstitutional, Plaintiffs seek far more than such a declaration. They ask the Court 12 essentially to oversee DOC’s ongoing response to the COVID-19 crisis, and potentially to order 13 DOC to release inmates before they complete their criminal sentences. Plaintiffs seek this relief 14 immediately and without any showing that a constitutional violation has occurred. 15 Such relief would raise serious separation of powers concerns. First, it would require the 16 Court to monitor DOC’s response and establish standards by which DOC would address an 17 unprecedented health crisis. However, Plaintiffs give the Court no legal basis or practical tools 18 for such a drastic undertaking. They provide no expert testimony from anyone with any 19 correctional background or other basis to make these kinds of complex determinations. Instead, 20 they make broad, unsupported assertions about prisons and jails (notably, DOC does not operate 21 jails) and ask the Court to develop a plan by which prison officials can run their prisons according 22 to evolving CDC and DOH guidelines. Ordering this kind of relief would usurp the authority of 23 the executive branch and unnecessarily entangle this Court in the details of prison management. 24 Cf. Shaw v. Clallam Cny., 176 Wn. App. 925, 934-35, 309 P.3d 1216 (2013) (reversing trial 25 court decision that interfered with agency’s discretion) 26 DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 21 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Plaintiffs also suggest DOC should release certain individuals from its custody as part of its response to COVID-19. Both the courts’ and DOC’s authority to release inmates prior to the completion of their sentence is severely circumscribed by statute. Given the limitations placed by statute, an order that effectively amends criminal sentences, or requires DOC to release individuals before the completion of their sentences would infringe on the separation of powers in two distinct ways. The Court would infringe on the power of the executive and legislative branches by effectively modifying sentences. After entry of judgment and sentence, legal authority passes to the DOC and a trial court has no inherent authority and limited statutory authority to modify a sentence. See, e.g., State v. Harkness, 145 Wn. App. 678, 685, 186 P.3d 1182 (2008). Plaintiffs cite no authority that would allow the Court to modify sentences in this circumstance, nor does such authority exist. Second, requiring DOC to release inmates before completion of their sentences would force DOC to exceed its statutory authority. With very few exceptions, DOC is not authorized to release incarcerated individuals before the expiration of their sentences. See RCW 9.94A.728; State v. Rogers, 112 Wn.2d 180, 183, 770 P.2d 180 (1989). None of the exceptions set forth in 16 RCW 9.94A.728 applies here. DOC’s authority to make extraordinary medical placements 17 requires consideration of individualized criteria, such as the existence of “a medical condition 18 that is serious and is expected to require costly care or treatment” and a conclusion that the 19 20 21 22 23 24 25 inmate poses a low risk to the community as a result of physically incapacity due to age or the medical condition. RCW 9.94A.728(1)(C)(i)(A), (B). Plaintiffs do not argue they meet these criteria, or that the statute allows the wholesale releases that they seek. Moreover, an extraordinary medical placement requires electronic monitoring, and such monitoring is not feasible in light of the current health situation. Pevey Declaration, at ¶¶ 3-4. Similarly, although the authority to grant a medical furlough rests exclusively with DOC (In re Post-Sentence Review of Cage, 181 Wn. App. 588, 326 P.3d 805 (2014)), the secretary’s 26 DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 22 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 2 3 4 5 6 7 8 9 10 11 12 authority is strictly limited by statutory eligibility and other requirements that require individualized consideration and planning. See RCW 72.66. Additionally, although DOC has statutory authority to release some inmates pursuant to an established graduated re-entry program, the graduated re-entry program only allows DOC to transfer a person to home confinement for the final six months of the term of confinement, and only if other criteria are met. RCW 9.94A.733. These criteria include an approved address, which must be investigated to ensure no risk to community safety, set up of electronic home monitoring, and participation in approved programming and treatment, which may not be available given the current situation. RCW 9.94A.733. The program does not allow for wholesale release of individuals. Plaintiffs do not provide any other legal basis for the kinds of releases that they are seeking, and there is no statutory basis for DOC to execute the kind of release they advocate. As a result, any order to DOC to release individuals would cause DOC to violate its authority and exceed its own powers. 13 14 15 16 17 18 19 20 21 22 23 24 25 Finally, the prospect of release of inmates in this case would be remarkable. Normally, an individual who shows he is subject to unconstitutional conditions of confinement is not entitled to immediate release. Gomez v. United States, 899 F.2d 1124, 1125-26 (11th Cir. 1990) (a finding that prison officials were deliberately indifferent to prisoner’s medical needs does not permit release of prisoner). The appropriate remedy in such a situation would be injunctive relief remedying the unconstitutional conditions and/or damages. In re Det. of Turay, 139 Wn.2d 379, 420, 986 P.2d 790 (1999) (footnotes omitted); Gomez, 899 F.2d at 1127. Plaintiffs provide no authority or rationale to support the drastic relief they suggest. Ordering wholesale release of inmates would violate fundamental principles of separation of powers. E. Plaintiffs Lack Standing for Much of the Relief That They Are Seeking This is not a class action. Plaintiffs lack standing to seek much of the requested relief. To establish standing, a party must show a personal injury that is fairly traceable to the challenged conduct and likely redressed by the requested relief. State v. Johnson, 179 Wn.2d 534, 552 315 26 DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 23 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 1 P.3d 1090 (2014). Plaintiffs request release of individuals over 60 years of age, yet none of them 2 falls within that demographic. Plaintiffs further seek release of “low-level and short-term 3 offenders,” but it is not clear any Plaintiff meets that criterion. Plaintiffs’ collective crimes 4 include solicitation of murder (Lofgren), robbery (Kuntz), child sex abuse (McKenzie), child sex 5 trafficking (Holt), and possession of a firearm and possession of controlled substance (Nagel). 6 See Counsel Decl. Ex. 1-5 & 7-8. Moreover, two of the Plaintiffs are confined in the Pierce 7 County jail, over which DOC and the individually named Defendants have no authority or 8 control. See Counsel Decl. Ex. 7-8. Finally, to the extent Plaintiffs allege Defendants’ actions 9 are harming DOC staff, Plaintiffs lack standing to assert relief on behalf of state employees. 10 V. CONCLUSION 11 Contrary to Plaintiffs’ assertions, DOC staff are working hard to manage this crisis and 12 will continue to do so. Plaintiffs had not presented a persuasive reason to provide them the 13 extraordinary relief that they seek. Defendants respectfully request that the Court deny Plaintiffs’ 14 motion for a preliminary injunction. 15 RESPECTFULLY SUBMITTED this 23rd day of March, 2020. 16 ROBERT W. FERGUSON Attorney General 17 s/ Timothy J. Feulner TIMOTHY J. FEULNER, WSBA #45396 Assistant Attorney General Tim.Feulner@atg.wa.gov 18 19 20 s/ Tim Lang TIM LANG, WSBA #21314 Sr. Assistant Attorney General Corrections Division PO Box 40116 Olympia WA 98504-0116 360-586-1445 Tim.Lang@atg.wa.gov 21 22 23 24 25 26 DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 24 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445 CERTIFICATE OF SERVICE 1 2 I certify that on the date below, I caused DEFENDANTS’ RESPONSE TO 3 PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF 4 to be electronically mailed to the following: 5 BLAKE I KREMER Blake@kremerlaw.com 6 DENA ALO-COLBECK alocolbecklaw@gmail.com 7 EXECUTED this 23rd day of March, 2020, at Tumwater, Washington. 8 s/ Timothy J. Feulner TIMOTHY J. FEULNER, WSBA #45396 Assistant Attorney General Corrections Division PO Box 40116 Olympia WA 98504-0116 (360) 586-1445 Tim.Feulner@atg.wa.gov 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR EMERGENCY INJUNCTIVE AND DECLARATORY RELIEF NO. 20-2-05585-4 25 ATTORNEY GENERAL OF WASHINGTON Corrections Division PO Box 40116 Olympia, WA 98504-0116 (360) 586-1445