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Hawaii inmates reach settlement with state in class-action lawsuit

A five-member oversight committee should be up and running by Sept. 16 to report on what is actually occurring inside Hawaii’s prisons and jails regarding the Department of Public Safety’s alleged failure to comply with its own response plan to COVID-19, resulting in harm to inmates.

The formation of the panel is part of a settlement agreement entered into Friday in a class-action lawsuit brought forth by Hawaii inmates against state Public Safety Director Max Otani in U.S. District Court.

On July 13 federal Judge Jill Otake issued a preliminary injunction and slammed the Public Safety Department, saying its failures allowed the rapid spread of COVID-19 resulting in outbreaks at five of its eight facilities, with over 50% of the inmate population of 3,000 infected, 272 staff infections and seven deaths.

Since then the numbers have risen to over 2,000 inmates infected.

DPS and representatives of the inmates said in a joint statement the settlement is “fair, adequate, and reasonable,” noting in particular the provision for the establishment of the five-person Agreement Monitoring Panel.

The panel, which will be advisory and comprised of experts, will provide nonbinding, informed guidance and recommendations to help DPS implement and update its response to COVID-19, and information to the parties’ counsel.

Eric Seitz, attorney for the inmates in the class action, said, “Subject to the court’s final approval, we have entered into a settlement with the state, which will enable us to enforce Judge Otake’s preliminary injunction by allowing our experts to have access to the state prisons’ staff and inmates to determine what actually is being done and can be done better to combat COVID-19 and to more effectively protect inmates, staff and communities at large.”

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

Seitz said once the oversight committee work is underway and “hopefully is producing some favorable results to fight the pandemic more effectively, we will then turn our attention to pursuing monetary damages claims for inmates and staff resulting from the COVID pandemic.”

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

The five panelists include Gavin Takenaka, Corrections health care administrator; Tommy Johnson, Corrections Division deputy director; Seitz appointees Dr. Homer Venters (epidemiologist and former chief medical officer for prisons in New York City) and Dr. Kim Thorburn (former Hawaii corrections medical director); and appointed Chairman Dan Foley, retired 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 follow the Pandemic Response Plan.

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

“Even though DPS claims it is compliant (with its COVID-19 response plan), the problematic conditions identified by Plaintiff would not change if the status quo is merely maintained, and Plaintiffs would not obtain the relief they desire,” Otake said in her preliminary injunction.

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

She further states that the wardens’ declarations and other DPS officials “uniformly recite provisions from the Response Plan, while Plaintiffs share personal reports from inmates and DPS staff at different facilities. … In other words, Defendant conveys what should happen at DPS facilities and Plaintiffs reveal what is occurring or has occurred at the facilities.”

She ordered DPS to fully comply with its March 23, 2020, Response Plan, consistent with Centers for Disease Control and Prevention guidelines, focusing on good health habits, cleaning, social distancing, use of masks, no-contact barriers, new intake screening, personal protective equipment, medical isolation, quarantine (with an emphasis on inmates at increased risk for severe illness and single-cell and available housing prioritization of inmates with increased risk of severe illness from COVID-19) and surveillance for new cases.

She also ordered providing sanitary living conditions to all inmates, including a working toilet, sink and drinking water. DPS employees are prohibited from restricting access to inmate grievance forms or preventing their submission.

Otake found that prison officials showed deliberate indifference, which requires showing prison officials were aware of a substantial risk of serious harm to an inmate’s health or safety and that there was no reasonable justification for the deprivation, in spite of the risk.

The court found credible what the plaintiffs reported.

The most recent outbreak, which began in May at the Hawaii Community Correctional Center, saw two-thirds of inmates infected with the disease within three weeks, and 20 staff and 228 pretrial detainees testing positive.

Inmates attributed that to the unsanitary conditions in a 31-by-35-foot holding area known as the “fishbowl” in which up to 60 detainees have been housed, urinating and defecating on the floor since no toilets or running water exist.

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 placed in his housing quad, designated a COVID-19- negative quad. They were allowed to mingle with other inmates without masks.

Nearly all in the quad tested positive, including Chatman’s cellmate, who remained in their cell even after getting sick, and Chatman then got sick.

Despite the outbreak, there was never any social distancing practiced, with 60 people eating shoulder-to-shoulder in a 400- square-foot room, he said.

A 52-year-old former Ha­lawa inmate with lupus, Francisco Alvarez, contracted COVID-19 in December but received little to no medical help, eventually sustaining serious kidney damage.

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