On November 10, 2021, one day before the first detection of the Omicron variant of the coronavirus that causes COVID-19, a federal district court in Hawaii approved a settlement in a lawsuit filed against the state’s Department of Public Safety (DPS), which operates the state’s jails and prisons. The lawsuit had been filed over the state’s response to the pandemic by the state Department of Public Safety (DPS), which operates the state’s jails and prisons. It was just in time for the “Omicron winter,” as the new variety swiftly became the most common strain of infection in the United States, that the settlement was reached, establishing procedures to protect both pretrial detainees and inmates from infection with the virus.
On top of that, it came only a few months after the court granted preliminary class certification as well as a preliminary injunction (PI) in the case, which was originally filed in state court on April 28, 2021, and then relocated to federal court on June 8, 2021, by the defendants. When the PI was granted on July 13, 2021, the Court provisionally certified two classes of plaintiffs, one consisting of current and future prisoners in Hawaii prisons and another consisting of current and future pretrial detainees in Hawaii jails, both of whom were present and future prisoners in Hawaii prisons. For each class, there was also a medical subclass of those who were more susceptible to COVID-19.
Courts Factual History
The Court began its factual history by noting that “Hawaii’s state prisons and jails have been plagued by COVID-19 outbreaks at five of its eight facilities, resulting in the infection of more than 50% of the inmate population (1,532 inmates out of a population of approximately 3,000) and 272 DPS staff, [with] seven deaths.”
During an outbreak at the Hawaii Community Correctional Center in late May 2021, two-thirds of the prisoner population got COVID-19 within three weeks, and 23 members of the prison staff were also infected. In response to the threat, the Department of Public Safety developed a Pandemic Response Plan, which plaintiffs claim was not followed. The following testimony was heard by the Court:
• The Department of Public Safety (DPS) failed to screen or test all incoming detainees and inmates.
• Insufficient cleaning products and soap were provided in the dwelling units.
Prisoners with unknown COVID-19 status were mixed together in congested intake cages and living areas, as well as the visitors’ room, throughout the DPS’ quarantine process.
Forcibly seated “shoulder-to-shoulder” in cramped quarters, prisoners were compelled to consume their meals
• Mask-wearing by guards was “inconsistent at best with minimal enforcement, if at all.”
In addition, the evidence revealed that detainees in particular regions were denied access to bathrooms and water, forcing some to urinate on themselves or into cups.
To the Court this was subjective evidence that DPS had exhibited deliberate indifference to prisoners and detainees’ health or safety by failing to take “reasonable available measures to abate the risks caused by the foregoing conditions, knowing full well—based on multiple prior outbreaks—that serious consequences and harm would result” to older and medically vulnerable prisoners and detainees.
“Policies are meaningless if they are not followed,”the Court wrote.
In finding that the classes met all of the requirements for a preliminary injunction, the Court ordered DPS to ‘fully comply’ with its Pandemic Response Plan, with a particular emphasis on good health habits, environmental cleaning, social distancing and mask use, intake screening, personal protective equipment, medical isolation/co-horting (of symptomatic persons), quarantine (of asymptotic exposed persons), and surveillance of new cases, among other things.
It was also required that the Department of Public Safety ensure sanitary living conditions, which included frequent access to bathrooms and water. Additionally, guards were barred from restricting access to grievance forms or impeding the submission of grievance forms on COVID-19-related matters. For example, see Chatman v. Otani, 2021 United States District LEXIS 130465. (D. Haw.).
Following the issuance of that order, the parties met in many conferences with Magistrate Judge Kenneth J. Mansfield before signing a Settlement Agreement on September 2, 2021, according to the court records. An Agreement Monitoring team of five people has been established in addition to putting the Pandemic Response Plan into action. The Settlement also oversees the implementation of policies and procedures regarding immunization, laboratory testing, and cleanliness. A second directive was issued, prohibiting retaliation against any inmate, prisoner, or member of the staff who had taken part in the litigation against the government.
The settlement was approved by the Court on November 10, 2021, after it was determined to be reasonable, fair, and adequate. In doing so, it pointed out that individual monetary claims as well as rights for injunctive or declaratory relief were not waived by the Class members.
The Court then awarded plaintiffs’ counsel, Eric A. Seitz, Gina May Szeto-Wong, Jonathan M.F. Loo, and Kevin A. Yolken of the Law Office of Eric A. Seitz in Honolulu, $250,540 in attorney fees—noting that this represented only 5 percent of the $5 million set aside to carry out the terms of the injunctive relief—to the Law Office of Eric A. Seitz in Honolulu. For example, see Chatman v. Otani, 2021 United States District LEXIS 217443. (D. Haw.).