Blackburn v. Noble

479 F.Supp.3d 531

Nannie BLACKBURN, et al., Petitioners,

v.Mary NOBLE, in her official capacity as Secretary of the Kentucky Justice and Public Safety Cabinet, et al., Respondents.

Civil No. 3:20-cv-00046-GFVT

United States District Court, E.D. Kentucky, Central Division. Frankfort.

Signed August 14, 2020

Filed August 17, 2020

Aaron Michael Tucek, Corey M. Shapiro, Heather L. Gatnarek, ACLU of Kentucky, Louisville, KY, for Petitioners.

Edward A. Baylous, II, Justice & Public Safety Cabinet, Frankfort, KY, for Respondents.

MEMORANDUM OPINION & ORDER

Gregory F. Van Tatenhove, United States District Judge

Petitioners Nannie Blackburn, April Hoover, Allison Moseley, Jessica Tucker, Jeracho Walls, Amanda White, and Hollie Workman (collectively "Petitioners"), a group of Kentucky state inmates all currently confined at the Kentucky Correctional Institution for Women (KCIW), by counsel, have filed an emergency petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. [R. 1.]¹ Petitioners claim that, in light of their individual vulnerabilities and exceptional risks posed to them by the current COVID-19 pandemic and an emerging COVID-19 outbreak at KCIW, their continued incarceration at KCIW (where they are unable to practice isolation and social distancing) constitutes deliberate indifference to a substantial risk of serious harm. Id. Thus, Petitioners allege that Respondents are holding Petitioners in custody in violation of the Eighth Amendment and request that the Court issue a writ of habeas corpus requiring Respondents to immediately release Petitioners or transfer them to home confinement. Id. For the reasons set forth below, the Court will DISMISS Petitioners’ Emergency Habeas Petition.

I

For the past several months, the world has been collectively fighting against a global pandemic. As the Sixth Circuit recently explained, "[t]he COVID-19 virus is highly infectious and can be transmitted easily from person to person." Wilson v. Williams , 961 F.3d 829, 833 (6th Cir. 2020). COVID-19 fatality rates increase with age and underlying health conditions such as cardiovascular disease, respiratory disease, diabetes, and immune compromise. Id. If contracted, COVID-19 can cause severe complications or death. Id. "Because there is no current vaccine, the Centers for Disease Control and Prevention (CDC) recommends preventative measures to decrease transmission such as physical distancing, mask wearing, and increasing focus on personal hygiene such as additional hand washing." Id.

KCIW is an adult female prison in Shelby County, Kentucky, designed to house 733 inmates. [R. 29 at 24.] It is "considered a multi-custody facility as differential housing and programming must meet the needs of female offenders serving one year to life, death row, maximum, medium, minimum, community custody, first offenders, persistent offenders, the disabled and special needs inmates."² The institution is a campus style setting with multiple housing units, double and single-bunked. Id. Petitioners Jeracho Walls, Hollie Workman, Nannie Blackburn, and April Hoover live in the minimum security unit, which is a building outside the main prison that houses 44 women on two floors. [R. 30 at 13.] These specific petitioners are four of the 18 incarcerated women who live in two-person cells on the upper floor of the unit. Id. at 84. Petitioner Walls stated that the cells contain two beds about four feet apart, lockers, a TV stand, and a fan. Id. at 14. The 18 women on the upper floor share one working shower and two working toilets. Id. Petitioners Mosely and Tucker currently live in the Ridgeview Dorm, which houses 42 people on two floors. Id. at 45. Each floor has three bathroom stalls, and everyone in that wing must share two showers. Id. Petitioner White lives in a two-person cell in the Program Building, a wing of the prison that houses more than 40 people. Id. at 70.

Petitioners in this case consist of seven women who suffer from serious underlying medical conditions that make them particularly susceptible to serious illness or death if they develop COVID-19. [R. 14 at 2.] First, Petitioner Blackburn is a cervical cancer survivor with high blood pressure, an underactive thyroid, and Hepatitis C. [R. 1 at ¶ 18.] Petitioner Hoover is listed on the chronic care list at KCIW since she suffers from severe heart disease, as well as high blood pressure and high cholesterol. Id. at ¶ 19. Petitioner Mosely suffers from cystic fibrosis in her lungs and digestive system, and her condition has further deteriorated since KCIW no longer provides her with daily albuterol treatments. Id. at ¶ 20. Petitioner Jessica Tucker's underlying medical conditions center around her positive diagnosis of HIV. Id. at ¶ 21. Petitioner Walls suffers from a genetic heart disease called left ventricular noncompaction, as she has a pacemaker and defibrillator that keeps her heart functioning. Id. at ¶ 22. Petitioner White has stage four kidney failure and is also HIV-positive. Id. at ¶ 23. Finally, Petitioner Workman has been diagnosed with hepatitis-C, high blood pressure, COPD, and asthma. Id. at ¶ 24.

Respondents assert that the Kentucky Department of Corrections (KDOC) has been taking preventative steps to prevent the introduction of COVID-19 into its facilities and to contain any infection. [R. 13 at 2.] For example, KDOC has suspended visitation by friends and family at all KDOC facilities and programming outside of the facility to limit inmate contact. Id. KDOC also suspended transfers between facilities except in operational or medical necessity circumstances, in which the transferred inmate must quarantine 14 days thereafter. Id. at 2–3. Respondents also assert that KDOC has provided staff with hand sanitizer and inmates with additional soap. Id. at 3. Anyone entering the facility, including staff, are screened for fever and asked health related questions to identify anyone with known COVID-19 symptoms and contacts. Id. In addition, KDOC has distributed masks to staff and inmates. Id. Finally, KDOC has been consulting with the Kentucky Department of Public Health, including an epidemiologist, for guidance in managing its prevention and treatment of COVID-19. Id.

Despite these efforts, KCIW identified its first COVID-19 case after a contract medical worker tested positive on May 20, 2020. Id. On June 1, a correctional officer tested positive and on June 3, a food service worker was confirmed to be infected, as well. Id. Contact tracing and testing revealed no additional cases during those times. Id. However, on June 10, KCIW first indicated infection amongst inmates, when multiple inmates in a single unit complained of COVID-19 symptoms. Id. All 26 inmates residing in that unit were immediately placed under quarantine and tested. Id. After KDOC tested those inmates, they received the results on June 11 that confirmed 11 positive cases. Id. Thereafter, the facility was placed in lockdown and all inmates and staff were tested. Id. Subsequent testing of the entire inmate population (639 inmates) confirmed 65 cases of COVID-19. Id. As of July 6, the KDOC reported that 159 women incarcerated at KCIW had tested positive for COVID-19 [R. 15], and as of July 28, 234 inmates at KCIW had tested positive.³

Petitioners contend the KDOC's approach and procedures are limited in effectiveness due to the dormitory-style housing at KCIW making it impossible to maintain physical distance and because there are insufficient supplies. [R. 14 at 11–12.] Inmates and staff were issued masks but Petitioners allege that Respondents have failed to ensure that everyone wears them. [ R. 1 at ¶ 47.] Petitioners also aver that Respondents have failed to ensure that high-touch surfaces are frequently cleaned and disinfected. Id. at ¶ 48. There are few shower and bathroom facilities, so inmates are in close proximity to each other when they use those facilities. Id. Further, Petitioners state that inmates have not been provided adequate soap and water or alcohol-based hand sanitizer to allow for frequent hand washing. Id. at ¶ 49. Additionally, inmates are unable to physically distance when moving within the facility to pick up meals, use phones, or move within the housing unit itself, including their dorms and common areas. Id. at ¶50.

Petitioners all have serious medical conditions, as previously discussed, that make them especially vulnerable to serious illness or death should they become infected with COVID-19. Id. at ¶ 57. Thus, Petitioners allege that their confinement in the midst of the COVID-19 outbreak violates the Eighth Amendment. Id. at ¶ 59. Specifically, Petitioners claim that "no conditions or set of conditions exist which mitigate the risk posed to Petitioners by the growing COVID-19 outbreak at KCIW. Petitioners’ exceptional vulnerability to COVID-19 means that the only way they can protect themselves from the virus is to never become exposed to it in the first place—a precaution that can only be accomplished by isolation at home, safely removed from congregate environments." Id. at ¶ 58.

In light of the initial screening required by 28 U.S.C. § 2243, the Court concluded that the petition warranted a response and further elaboration from the parties. [R. 8.] Thus, the Court ordered Respondents to file a response within 10 days addressing the factual allegations and legal claims contained in the petition and allowed Petitioners to file a reply in further support of their petition within five days after Respondents filed their response. Id. Given the urgent nature of the case, the Court held an oral argument hearing on July 14, where witnesses Warden Vanessa Kennedy and Dr. Joe Goldenson, M.D. testified. [R. 21.] Due to technical issues presented, the Court held a second evidentiary hearing on July 21 so that Petitioners Wells, Moseley, White, and Workman were able to testify to the Court via videoconference. [R. 26.] Thereafter, the Court allowed supplemental briefing in regard to the...