Judge’s ruling in Ontario prison case considered landmark in holding state accountable

Hand-washing stations outside Snake River Correctional Institution. Advocates criticized the hand-washing infrastructure inside the prison, saying that prisoners often lacked soap and a way to dry their hands. (Kezia Setyawan/The Enterprise)

ONTARIO – Lawyers and advocates say that the sweeping court order requiring reforms in Snake River Correctional Institution’s Covid protocols is a landmark. The case, they say, not only raised questions about the quality of medical care at the prison but also exposes problems endemic to the Oregon Department of Corrections’ handling of the pandemic.   

“It’s an extensive, expansive order on the issue of masking, and really hopeful,” said Tara Herivel, coordinating attorney of the Oregon Habeas Strike Force. 

Herivel’s organization has handled over 400 civil lawsuits alleging that the Oregon Department of Corrections has left vulnerable prisoners in unconstitutional conditions during Covid. Sixteen lawsuits involved SRCI. 

Less than 10 Covid-related habeas corpus cases have made it to trial so far due to the backlog in the courts. In cases where judges have ruled, most have ordered relief for a particular inmate, but “most judges have not wanted to touch the Covid claims,” Herivel said. 

Multnomah Circuit Judge Amy Baggio ruled that the Ontario prison’s masking compliance has been inadequate and “creates an unjustifiable risk” throughout the prison.

She ordered prison officials to document “how SRCI is enforcing the masking policy, including proof of specific enforcement; (and) consideration of a plan to engage in mass COVID-19 testing at SRCI, particularly rapid testing of staff prior to entry.”

Jennifer Black, communications manager for the Oregon Department of Corrections, declined to answer specific questions from the Enterprise. She said that to do so would run “the risk of preempting the court’s decision-making process” regarding the “detailed report” that SRCI must submit to Baggio by the end of April.

The findings by Baggio conflict with what prison officials have been telling the public for months.

Last September, for example, prison officials suggested corrections workers and inmates – referred to by the agency as adults in custody – were following Covid orders.

“We continue to require employees and (AICs) to wear masks when social distancing is not possible, as well as requiring employees to be screened prior to entry into the facility,” Amber Campbell, public information officer for SRCI, said in a Sept. 22 email to the Enterprise.

But the report of a Feb. 6 inspection at the prison, submitted to the judge, showed that only 80% of staff at SRCI was wearing their masks correctly. 

“Some staff remark to AICs that they already had Covid,” according to the inspection report. “Observed AICs and staff pull down masks to talk and/or do not wear them properly.”

Zach Erdman, operations and policy manager at the Oregon Department of Corrections, wrote in a Sept. 17 email that “many staff have been verbally counseled, resulting in immediate and cooperative compliance. DOC does not track these minor corrections. To date, a few employees are in investigative processes which could lead to discipline. Non-compliance with face covering directives has not yet led to a dismissal, but it could.”

But the accountability processes Erdman spoke of were not effective in preventing the 20% mask noncompliance rate documented in the February evaluation. And in the court ruling, SRCI’s assistant superintendent, Jason Bell, testified under oath that there was widespread noncompliance, but “only one staff member had progressed in discipline to step six (of six possible disciplinary steps) for mask violations.” 

Kate Edwards, the Hillsboro attorney who tried the SRCI case, said that the culture of mask noncompliance in Ontario wasn’t unique, but reflected a problem across the Oregon Department of Corrections. 

“As an organization, they have kind of thrown up their hands and said, ‘What do you want us to do about it? We have all of these policies in place,’” she explained. “But on the ground, it’s not trickling down, it’s not being enforced.”

“We don’t have the top-down ability or will to enforce the kinds of precautions that are required to keep people safe,” said Herivel. “It’s this attitude (among prison staff) that comes with, ‘You’re not going to tell me what to do.’ But the most serious way to spread the virus is through staff, who are the vectors coming in and out. If they can choose to not wear masks and there are people that can be infected, then they are still a lethal threat.”

Herivel said that hesitance on the part of Department of Corrections leaders to discipline their officers likely has to do with understaffing that the agency has experienced throughout the pandemic.

“The Department of Corrections really capitulated to the union,” she said. 

According to Herivel, her group reached out to the union to join the effort to make the prison more safe, thinking that “nobody wants to spread disease.” She said they couldn’t connect with union representatives.

Officer Alan MacLean, an SRCI officer and president of the local of the Oregon AFSCME Corrections union, didn’t respond to a request for comment from the Enterprise. 

However, emails included in court filings showed Oregon Department of Corrections officials begging staff to comply with masking recommendations.

“Team, I need your help,” said Heidi Steward, agency deputy director wrote in an email dated July 13. Steward warned her staff that the agency was facing legal action “for not following our face covering protocol” and implored officers to get on board. 

“It is becoming difficult to stand our ground on our current directive (regarding masks), as not all of us are following it. If we do not pull together and wear our face coverings when we can’t maintain 6 feet of social distancing, we may be mandated to wear masks at all times.” 

Steward’s warning was prescient. By November, all prison officers were required to wear a mask on duty at all times regardless of distancing.

Dr. Mark Baskerville, an ICU doctor with Oregon Health & Science University who has been an expert witness for inmates suing the state, said that social distancing was virtually impossible in a prison setting. 

“You can limit how many people sit at tables, and put dots on the floor for the med line, but a lot of this is in a kind of dormitory setting where you can reach your arm out and touch your bunkmate,” he said.

But Herivel said that at SRCI, there had been more chance than at other prisons for social distancing because it is a newer, larger facility. She said that the 13 Covid deaths that have occurred there seemed especially tragic given that context. 

“They could’ve prevented the outbreak and the deaths more easily than other facilities. It was not just hesitancy, but refusal to comply to a lot of these standards that ended in completely preventable deaths,” she said.

“The overarching theme was that a lot of what they were doing was haphazard and inconsistent at times,” said Baskerville. “The virus is going to exploit any weak link in your system.”

Because of its relatively advanced medical infrastructure, SRCI has become the receiving facility for prisoners with Covid across Oregon. Yet, as at other institutions in the Oregon Department of Corrections, prisoners who report Covid symptoms are isolated in the Disciplinary Segregation Unit, otherwise known as “the hole.” 

The threat of being sent to the hole created what Baskerville called “a conspiracy of silence.”

“The inmates don’t want to tell anyone that they’ve got a cough or they have symptoms of Covid because they essentially get punished for it,” Baskerville said. “Having talked to a lot of inmates, it’s like, ‘Listen, I’d rather just take my chances than be sent to the hole for 14 days. If I told them I have the symptoms of Covid, I would be treated the same way as if I punched a guard.’”

The judge in the SRCI case was persuaded by testimony that that was the case.

“Plaintiff and defense evidence established that AICs hide symptoms to avoid placement in the (hole) and that some AICs threaten others against reporting symptoms of illness,” according to the ruling.

The ruling questioned the reliability of the medical care given at SRCI. 

The prison’s chief medical officer, Dr. Garth Gulick, testified under oath “that he did not believe that fever was an indication of COVID-19 infection.” That contradicts guidance from the federal Centers for Disease Control and Prevention on management of Covid in detention settings.

Gulick also testified that he believed that Covid testing was “harmful” and said that it “can be the enemy,” again despite CDC guidance showing otherwise. 

“Dr. Gulick’s opinions on fever as a symptom of COVID-19 and the efficacy of testing at stopping the spread of the virus undermines the reliability of his medical opinion on the many relevant questions of fact related to this topic,” according to the ruling. 

Black said that the agency disagrees with the judge’s findings regarding Gulick.

“Dr. Gulick and his team have not only provided frontline COVID-19 care to all adults in custody (AICs) in Eastern Oregon since the beginning of the pandemic, but have also taken extraordinary measures to ensure continuity of care for non-COVID-19 medical conditions,” said Black. “SRCI will continue to rely on Dr. Gulick for his extensive medical training, knowledge, and expertise.”

The agency’s top chief medical officer, Dr. Warren Roberts, also came under attack this year in a January habeas corpus case in which Marion County Circuit Judge Claudia Burton highlighted Roberts’ history of malpractice. Roberts was the subject of a formal complaint by the Oregon Board of Medical Examiners, and was at one point ordered to stop performing surgeries.

“Dr. Roberts’ technical competence as a physician is at least questionable,” the judge wrote. “I agree with plaintiff that Dr. Roberts is an unreliable witness who lacks credibility.”

Baskerville said that during Covid, it is particularly egregious how medical staff at the Oregon Department of Corrections has forced medically vulnerable prisoners to ration albuterol inhalers, used to treat asthma and other lung conditions. 

Even during the pandemic, inmates have been prescribed inhalers that cannot be refilled as often as medically needed, forcing them to either use the inhaler less than is necessary or risk running out. This issue came up in the court ruling, and according to Baskerville, it is widespread. 

“The worst case scenario is using their cellmate’s inhaler if they’re low or running out,” said Baskerville. “That’s probably the worst way to spread (Covid).”

Baskerville, Herivel, and Edwards also concurred that Oregon prisons regularly ignore common hygiene practices like handwashing in their design.

Edwards said the inmates frequently don’t have access to soap and even then “they don’t have anything to dry their hands on, so they dry them on toilet paper, or on their dirty clothes.”

Then there is the vaccine. The Oregon Department of Corrections estimated that 45% percent of staff would refuse the vaccine, and incomplete available figures show the actual vaccination rate as closer to 35%, according to reporting by the Willamette Week. On the other hand, 69% of inmates have accepted the vaccine since one lawsuit in February resulted in making it available immediately to all inmates.

Herivel said the government was remarkably inefficient by engaging in costly litigation to fend off claims of improper care that in some instances were subsequently proven founded.

“I think it’s extraordinary that we have had to use these singular cases and also this class-action case to get our prison systems to take minimally basic protective steps which, from what we hear from our reports, really haven’t been effectuated to date,” she said.

Edwards echoed that. 

“All they’re asking for is for the facilities to adhere to CDC guidelines,” she said. “It’s shocking to me that (inmates) have to go to court to achieve that.”

News tip? Contact reporter Liliana Frankel at [email protected] or 267-981-5577.


State judge rules that SRCI must enforce mask mandate, consider rapid tests for employees


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