Hawaii inmates reach settlement with state in COVID class-action lawsuit

The Honolulu Star Advertiser

HONOLULU – A five-member oversight committee should be up and running through September 16 to report on what is actually going on in Hawaii prisons and prisons regarding alleged non-compliance with the Department of Public Safety’s own response plan to COVID-19 this leads to harm to the prisoners.

The formation of the panel is part of a settlement agreement reached Friday in a class action lawsuit brought by Hawaiian inmates against state director of public safety, Max Otani, in the U.S. District Court.

On July 13, federal judge Jill Otake issued an injunction slamming the public safety division, saying her failure allowed the rapid spread of COVID-19, resulting in outbreaks in five of the eight facilities, with over 50% of the inmate population of 3,000 infected, 272 personal infections and seven deaths.

Since then, the number has risen to over 2,000 infected people.

The DPS and inmate representatives said in a joint statement that the settlement was “fair, reasonable and proportionate,” referring in particular to the provision for the establishment of the five-member agreement monitoring body.

The panel, which will provide advice and will be composed of experts, will provide non-binding, well-founded guidelines and recommendations to assist DPS in implementing and updating its response to COVID-19, as well as providing information to the parties’ legal counsel.

Eric Seitz, attorney for the class action inmates, said, “Pending final court approval, we have reached a settlement with the state that will allow us to enforce Judge Otake’s injunction by giving our experts access to the staff and State prison inmates to see what is actually being done and better done to fight COVID-19 and more effectively protect inmates, staff and communities overall.

The class action lawsuit covers all inmates who have contracted COVID-19 and all inmates in the prison system who are at risk of developing it.

Seitz said that once the work of the oversight committee is underway and “hopefully some positive results will be achieved to combat the pandemic more effectively, we will then focus on pursuing claims for damages for inmates and staff due to the COVID pandemic”.

Seitz initially asked the court to name a monitor or master to oversee the process, but the judge refused.

The five panelists include Gavin Takenaka, Corrections Healthcare Administrator; Tommy Johnson, Assistant Director of the Correctional Department; Seitz appoints Dr. Homer Venters (epidemiologist and former chief physician for prisons in New York City) and Dr. Kim Thorburn (former Hawaii Corrections Medical Director); and appointed Chairman Dan Foley, former associate judge of the state Intermediate Court of Appeals.

The settlement agreement requires the panel to issue monthly reports that should address each prison or jail’s efforts to comply with the pandemic response plan.

The panel should be given immediate access to facilities after 72 hours’ notice to DPS to conduct on-site visits and have access to all staff, inmates, and consulting doctors and experts regarding the department’s COVID-19 response .

“Although DPS claims that it is compliant (with its COVID-19 response plan), the problematic conditions identified by the plaintiff would not change if the status quo were merely maintained and the plaintiffs would not receive the desired discharge,” said Otake in her injunction.

“DPS … continues to violate its own guidelines,” says the injunction.

She goes on to say that the statements by the guards and other DPS officials “consistently recite the provisions of the Response Plan while plaintiffs share personal reports from inmates and DPS staff at various facilities, and plaintiffs disclose what is happening or happening in the facilities is.”

She ordered that DPS terminate its response plan of the 23rd Personal Protective Equipment, Medical Isolation, Quarantine (focusing on inmates at increased risk of serious illness and prioritizing single cells and available accommodation for inmates at increased risk of serious illness from COVID-19) and Monitoring new cases.

She also ordered that all inmates be provided with hygienic living conditions, including a functioning toilet, sink, and drinking water. DPS employees are prohibited from restricting prisoners’ access to complaint forms or preventing their submission.

Otake noted that the prison officials displayed deliberate indifference, which required that prison officials be aware of a significant risk of a serious health or safety breach and that despite the risk, there was no reasonable justification for the withdrawal.

The court considered the plaintiffs’ statements to be credible.

In the most recent outbreak, which began at the Hawaii Community Correctional Center in May, two-thirds of inmates contracted the disease within three weeks, and 20 staff members and 228 pre-trial inmates tested positive.

Inmates attributed this to the unsanitary conditions in a 31 by 35 foot waiting area known as the “fishbowl” that houses up to 60 inmates who urinate and defecate on the floor as there are no toilets or running water gives.

Plaintiffs named in the lawsuit include Halawa Correctional Facility inmate Anthony Chatman, who contracted the coronavirus after two inmates who tested positive for COVID-19 were housed in his neighborhood known as COVID-19 -negative square was designated. They were allowed to mingle with other inmates without masks.

Almost everyone in the quad tested positive, including Chatman’s cellmate, who stayed in his cell after his illness, and Chatman then fell ill.

Despite the outbreak, social distancing was never practiced as 60 people ate shoulder to shoulder in a 400-square-foot room, he said.

A 52-year-old former Ha Lawa inmate with lupus, Francisco Alvarez, contracted COVID-19 in December but received little to no medical attention and eventually suffered severe kidney damage.

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