An attorney who sued the state to force reforms to stop the rampant spread of Covid-19 inside the Hawaii correctional system said Thursday the two sides in the case may be closing in on a settlement.

Attorney Eric Seitz told members of the Hawaii Correctional Systems Oversight Commission that his office is pressing for appointment of a five-member panel to oversee steps that must be taken to cope with the pandemic, a proposal modeled after a similar settlement in Connecticut.

U.S. District Court Judge Jill Otake last month ruled the state Department of Public Safety has failed to protect Hawaii inmates from coronavirus outbreaks that caused the deaths of at least nine prisoners so far.

She issued a preliminary injunction ordering the correctional system to follow its own written plan for dealing with the pandemic, and declared in her decision that the class-action lawsuit accusing the state of violating the inmates’ constitutional rights during the pandemic will likely succeed at trial.

DPS Director Max Otani told the commission Thursday he cannot publicly discuss the settlement negotiations, but acknowledged Covid-19 continues to spread in half of Hawaii’s eight in-state correctional facilities.

 

Families of inmates at Maui Community Correctional Center at a small protest outside the jail in March. A total of 63 inmates at MCCC are now infected with Covid-19 as the delta variant spreads through the islands and the state correctional system. 

The Kauai Community Correctional Center is particularly hard hit at the moment, with 62 of 128 inmates at that jail testing positive. Another 63 inmates at the Maui Community Correctional Center are infected, and 31 prisoners at the Oahu Community Correctional Center have active cases of Covid-19, Otani said.

Halawa Correctional Facility, the state’s largest prison, has another 23 infections among the inmates, and two of the ill Halawa prisoners have been hospitalized.

Another five Hawaii prisoners at the Saguaro Correctional Center in Eloy, Arizona, also have Covid-19, he said.

In all, more than 2,500 Hawaii inmates and nearly 300 correctional workers have tested positive for Covid-19 since the start of the pandemic.

Otani said the department re-established vaccine “pods” in the facilities with support from The Queen’s Medical Center, and he estimated 80% of the Department of Public Safety staff is now vaccinated. That includes staff in the jails, the prisons, the Sheriff’s Division, and administration.

The department reported more than half of all inmates in the system as of June 21 were vaccinated, but Otani said continued crowding in the state’s enclosed correctional facilities has made it difficult to prevent new infections as the delta variant has spread across the state.

 

Department of Public Safety Director Max Otani. 

The medical staffs are also shorthanded — including cases where medical workers test positive for Covid-19 — and facilities are using contract nurses to try to fill the gaps, he said.

“We do have staffing challenges at all of our facilities right now,” he said.

In recent weeks lawyers with the state Attorney General’s Office filed requests asking Otake to amend her July 13 ruling, arguing her order that the department comply with the prison system’s own Pandemic Response Plan is an “overbroad and unduly burdensome preliminary injunction.”

The department previously cited the 76-page pandemic response plan as evidence it was adequately coping with the threat posed by the pandemic. But in a July 29 filing the state argued corrections officials never claimed in state court filings to be following all provisions of its pandemic response plan in all cases.

Lawyers for the state asked Otake to exclude various portions of the pandemic response plan from her order that the state follow the plan, including provisions that spell out when sick or exposed employees must remain home; procedures for employee screening for the virus; transport of inmates; and testing.

Otake rejected those requests in orders issued on Aug. 12 and on Wednesday, remarking that it is unclear why Department of Public Safety “would create a plan with which DPS is unable or unwilling to comply.”

Based on the department’s “ardent promotion of the Response Plan, it is reasonable to assume that the incorporated provisions could be feasibly implemented at DPS facilities. Otherwise, creating the Response Plan was merely an academic exercise,” Otake wrote.

She also noted the department claimed in its first status report after her July ruling that “four facilities are in full compliance, three facilities are in full compliance except for section 3(a), and one facility is in full compliance except for sections 3(b), 10, and 13.”

“Defendant previously pointed to the virtues of the Response Plan and claimed to have implemented it,” Otake wrote. “He cannot reverse course weeks later and characterize the Response Plan as an unenforceable guidance document, nor feign an inability to comply due to vague standards and/or scarce staff time.”

“The Court intended and expects Defendant to comply with the entire Response Plan,” she wrote.

Earlier this month the state filed notice it plans to appeal Otake’s July 13 decision to the Ninth Circuit Court of Appeals, and on Thursday the state filed a notice of appeal of her refusal to modify her injunction.

Attorney Eric Seitz speaks to media after Katherine Kealoha sentencing at Federal Court.
Attorney Eric Seitz Cory Lum/Civil Beat

Seitz told the commission the department and its lawyers are in “deep trouble” with Otake.

The wardens submitted statements to the court after the July 13 ruling that all was well in their facilities, but “within a week of that, the facilities blew up” with dozens of infections reported among the inmates each day, he said.

A Covid-19 cluster report issued by the state Department of Health on Thursday shows 125 cases have been associated with clusters at Halawa and OCCC in just the past two weeks, including five that involved infected people who do not live or work at the facilities.

Another 99 cases have been linked to MCCC in the past two weeks — including 10 who do not live or work at the jail, according to the report.

Seitz told the commission he believes Attorney General Clare Connors and her staff “obviously, from their willingness to talk to us and settle with us, are very concerned, and I don’t have any doubt about the legitimacy of their concerns whatsoever.”

However, he added that “the stuff we get directly back or indirectly back from the Department of Public Safety is very disturbing, and that’s all I’m going to say about that. I think that they haven’t gotten the message, and if they don’t get the message by just simply reading the judge’s orders, they are going to be in deep trouble.”

But Otani told the commission the decisions the department made in the case are “not independent of the attorney general’s office. We’ve been in close contact with the attorney general’s office, and we’ve been accepting their advice in many situations — in fact, in all situations moving forward in this lawsuit.”

He confirmed the department is looking at the Connecticut model of creating a five-member panel to oversee the system’s efforts to control the spread of the disease.

“We are implementing our pandemic plan,” Otani told the commission. “I think contrary to what was previously stated, given the circumstances that we’re in, I think the pandemic plan is being implemented.”

“We’re quarantining, we’re separating, we’re isolating based on test results that we have,” he said.

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