Hanna v. Peters

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AARON M. HANNA, Plaintiff, v. COLETTE PETERS, TYLER BLEWETT, LIEUTENANT ROBINSON, SERGEANT IRVING, OFFICER PLOURD, OFFICER H. COCHELL, OFFICER CARRILLO, OFFICER NIELSEN, and OFFICER DAVIS, Defendants.

No. 2:21-cv-00493-SB

United States District Court, D. Oregon

March 21, 2022

OPINION AND ORDER

STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE

Plaintiff Aaron M. Hanna, an adult in custody (“AIC”) at Two Rivers Correctional Institution (“TRCI”) filed this action against several Oregon Department of Corrections (“ODOC”) officials (together “Defendants”) alleging that they acted with deliberate indifference to a substantial risk of serious harm in violation of the Eighth Amendment by failing consistently to comply with and enforce ODOC's mask policy.

Hanna filed a motion for preliminary injunction, asking the Court to order Defendants to comply with and enforce ODOC's mask policy. (ECF No. 24.) All parties have consented to the jurisdiction of a U.S. Magistrate Judge pursuant to 28 U.S.C. § 636, and the Court held a hearing on Hanna's motion on March 9, 2022. For the reasons discussed herein, the Court grants in part Hanna's motion for a preliminary injunction.

DISCUSSION

I. LEGAL STANDARDS

A. Preliminary Injunction

A party seeking a preliminary injunction “must demonstrate (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in its favor, and (4) an injunction is in the public interest.” Sovereign v. Deutsche Bank, 856 F.Supp.2d 1203, 1217 (D. Or. 2012) (citing Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008)). The elements of the test are “balanced, so that a stronger showing of one element may offset a weaker showing of another. For example, a stronger showing of irreparable harm to plaintiff might offset a lesser showing of likelihood of success on the merits.” Id. (quoting All. for the Wild Rockies v. Cottrell, 632 F.3d. 1127, 1131 (9th Cir. 2011)). “When the government is a party, [the] last two factors merge.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).^[1]

B. Mandatory Injunction

A “mandatory injunction orders a responsible party to take action” and “is particularly disfavored.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878-79 (9th Cir. 2009) (simplified). The “already high standard for granting a TRO or preliminary injunction is further heightened when the type of injunction sought is a ‘mandatory injunction.'” Innovation Law Lab v. Nielsen, 310 F.Supp.3d 1150, 1156 (D. Or. 2018) (citing Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015)). A plaintiff requesting a “mandatory injunction” must “establish that the law and facts clearly favor her position, not simply that she is likely to succeed.” Id. (quoting Garcia, 786 F.3d at 740).

C. Prison Litigation Reform Act

The Prison Litigation Reform Act (“PLRA”) imposes additional restrictions on a court's ability to grant injunctive relief. Any such “[1] relief must be narrowly drawn, [2] extend no further than necessary to correct the harm the court finds requires preliminary relief, and [3] be the least intrusive means necessary to correct the harm.” 18 U.S.C. § 3626(a)(2). The PLRA requires that courts “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and shall respect the principles of comity[.]” Id. Preliminary relief relating to prison conditions “shall automatically expire on the date that is 90 days after its entry, unless the court makes findings required under subsection (a)(1) for the entry of prospective relief and makes the order final before the expiration of the 90-day period.” Id.

II. ANALYSIS

A. Preliminary Injunction

Hanna seeks a preliminary injunction requiring Defendants to comply with and enforce ODOC's mask policy at TRCI. For the reasons discussed below, the Court grants in part Hanna's motion.^[2]

The Court must evaluate the four factors the Supreme Court outlined in Winter to determine if Hanna has established the need for preliminary injunctive relief: (1) likelihood of success on the merits, (2) irreparable harm in the absence of preliminary relief, (3) the balance of equities, and (4) the public interest. See Sovereign, 856 F.Supp.2d at 1217 (citing Winter, 555 U.S. at 20). In addition, because Hanna is requesting a mandatory injunction, the Court must also conclude that “the law and facts clearly favor [his] position[.]” Innovation Law Lab, 310 F.Supp.3d at 1156 (quoting Garcia, 786 F.3d at 740).

1. Likelihood of Success on the Merits

The Court finds that Hanna has presented sufficient evidence, in the form of his own sworn declaration and those from other TRCI AICs, that Defendants have failed consistently to comply with and enforce ODOC's mask policy at TRCI. (See Supp. Br. in Supp. of Pl.'s Mot. for Prelim Inj., ECF No. 75, at 6 (summarizing masking non-compliance evidence); Fifth Decl. of Aaron Hanna, ECF No. 73 (documenting several examples of defendant Correctional Officer Eric Nielson not wearing a mask); see also Decl. of Aaron Hanna, ECF No. 47 (“I witnessed H. Cochell not wearing a mask”); Decl. of Randy Williams, ECF No. 77 (“I continue to observe numerous staff members fail to wear their masks correctly, and some still refuse to wear them altogether” and “[t]he corrections officer (“CO”) that works in the canteen continues to refuse to wear a mask [and] I have heard him say that he will . . . not wear his mask inside”); Decl. of Michael Leonard, ECF No. 78 (“I continue to see COs that wear their mask incorrectly, such as under their nose or on their chin;” “I continue to observe staff take their masks off, ” and “I have asked [a CO in the canteen] to put a mask on in the past, yet he refused”); Decl. of Calvin Jackson, ECF No. 79 (“Many staff members wear their mask down under their nose, or not at all.”); Decl. of James Ross, ECF No. 80 (“When I witness COs not wearing their masks, I want to confront them . . . I have never done so because I am afraid of retaliation and the possibility of losing privileges.”), Decl. of Anthony Ortega, ECF No. 81 (“I did witness COs who did not wear their masks, ” “I saw officers who wore their masks improperly, ” and “I still see COs not wearing masks while together in the officer area [and] I still on occasion witness COs who do not wear their mask properly on the unit”), Decl. of Adam Coopersmith, ECF No. 82 (“I have seen COs pull their masks down on the unit to talk, or wear their masks under their chin”)).

Hanna also presented the deposition testimony of an ODOC official who testified in a related case that some ODOC correctional staff members have been reluctant to wear their masks because they do not believe in masking, believe masking rules are a violation of their rights, or believe that COVID-19 is not real. (Decl. of Counsel, Ex. 4, ECF No. 76-4, attaching Dec. 22, 2020 deposition transcript of B. Cain). Further, Hanna presented testimony from an interim superintendent who was not aware that the single layer gaiters worn by some TRCI officials did not comply with ODOC's mask policy. (Decl. of Counsel, Ex. 6, ECF No. 76-6, attaching Mar. 3, 2021 deposition transcript of K. Jackson).

Defendants respond with sworn declarations attesting to Defendants' and others' best efforts to comply with the mask policy at TRCI, and the declarations demonstrate that mask compliance at TRCI has improved over time. However, it is also clear from the declarations that TRCI's correctional staff sometimes struggle with understanding and complying with the mask policy. (See, e.g., Decl. of Eric Nielson, ECF No. 68 (“[I]n the past I have sometimes not worn a mask when in the staff office with a particular staff member . . . I believed this was permissible [but] I now understand that I should wear one.”); Decl. of Matt Turner, ECF No. 71 (“I, myself, have been corrected at least once by a staff member who noticed my mask had slipped.”)). In addition, Defendants have not imposed any meaningful discipline on correctional officers who violate masking rules. (See Defs.' Resp. to Ord. to Show Cause, ECF No. 54 (attaching records demonstrating that TRCI's progressive discipline policy with respect to masking resulted in only eleven verbal reminders and two non-disciplinary letters of expectation over a two-year time period)).

Further, Defendants' counsel reported at the hearing that approximately one-third of TRCI employees have received medical or religious exemptions from the vaccine requirement and are therefore required by ODOC's mask policy to wear an N95 mask, but TRCI's COVID Compliance Officer who is responsible for mask compliance inspections is not aware of which staff have received the vaccine exemption, and therefore it is impossible for him to monitor masking compliance in any meaningful way. (See Decl. of Shilo Ray (“Ray Decl.”), ECF No. 83, noting that ODOC staff with a medical or religious vaccine exemption must wear an N95 mask; Sec. Decl. of Hugo Enriquez, ECF No. 85 (“I am generally unaware of which ODOC staff members have received vaccination exemptions [and t]herefore, that issue is not taken into account during my inspections”)).

In light of public health guidance more than two years into the pandemic regarding the importance of consistent and proper masking to prevent the spread of the COVID-19 virus, a correctional official's inconsistent or improper masking while in the close vicinity of AICs demonstrates deliberate indifference to a substantial risk of serious harm to AICs, including Hanna.^[3] Specifically, Hanna has demonstrated a likelihood of...