A lawsuit filed by the family of a San Quentin guard who died of COVID-19 in 2020 will be allowed to go forward.
In a 2-1 ruling, the Ninth U.S. Circuit Court of Appeals on Monday upheld a federal judge’s refusal to dismiss the suit filed by the widow and children of Sgt. Gilbert Polanco. Polanco was the only guard to die in a COVID-19 outbreak at the prison that resulted in the death of 28 inmates and the infection of more than 2,100 inmates and 270 staff members.
Terri Hardy, a spokesperson for the California Department of Corrections and Rehabilitation, wrote in an email, “CDCR does not comment on pending litigation.”
The outbreak occurred a few months into the COVID-19 pandemic shortly after officials in the California prison system transferred 122 inmates from the California Institution for Men, where there was a widespread COVID-19 outbreak, to San Quentin State Prison, where there were no known cases of the virus.
“The transfer did not go well,” presiding Judge Michelle Friedland wrote in her decision.
Friedland wrote that most of the men who were transferred had not been tested for COVID-19 for over three weeks, and none of the transferred inmates were properly screened for symptoms before being packed onto buses to San Quentin in numbers far exceeding coronavirus-era capacity limits that the California Department of Corrections had mandated for inmate safety.
Friedland noted that although some inmates exhibited symptoms while on the bus, the Department of Corrections did not quarantine the newly arriving inmates. Instead, most of the transferred inmates were moved into a housing unit with grated doors and allowed to use the same showers and eat in the same mess hall as other inmates.
Friedland wrote in her decision that after learning of the transfer Marin County Public Health Officer Matt Willis called the prison with safety recommendations. Willis told prison officials that the transferred inmates should be sequestered from the original San Quentin population, that all exposed inmates and staff should be required to wear masks, and that staff movement should be restricted between different housing units to prevent the spread of COVID-19.
Willis, however, was informed by the Department of Corrections that he lacked the authority to mandate safety measures in a state-run prison.
“The San Quentin outbreak was one of the hardest chapters of the pandemic for us in Marin,” Willis wrote in an email on Wednesday. “It was frustrating to watch it happen from the sidelines, knowing what was at stake.”
“Remember, when this outbreak happened we were already seeing surges in severe COVID across Marin, and we were worried our hospitals couldn’t manage a lot of ill inmates at once,” Willis said. “In the end, over 200 inmates ended up being transferred into regional hospitals over a couple months.”
Friedland wrote that the recommendations of a group of health experts convened by a court-appointed medical monitor of California prisons in mid-June 2020 also went unheeded by prison officials.
The health experts criticized the fact that personal protective equipment and masks were not being provided to staff and inmates despite being readily available. The experts said the prison’s testing protocol, too, was inadequate, suffering from completely unacceptable delays.
According to the court record, one of Polanco’s duties during the pandemic was to drive sick inmates, including those with COVID-19, to local hospitals. The record states that on those trips, neither Polanco nor the inmates he was transporting were given personal protective equipment.
At the time, Polanco was 55 and had multiple health conditions — including obesity, diabetes and hypertension — that placed him at higher risk of dying should he contract the disease. He fell ill with COVID-19 in June 2020 and died of complications in August, after working at San Quentin for more than two decades.
The suit names the state of California, the state’s Department of Corrections and a number of prison officials as defendants. Judge Friedland, appointed by President Barack Obama, and Judge Kathleen Cardone of Texas, a George W. Bush appointee, agreed that the suit “sufficiently alleged a violation of Polanco’s substantive due process right to be free from a state-created danger.”
Judge Ryan Nelson, appointed by President Donald Trump, dissented.
Nelson wrote, “The conduct at issue begins in the earliest days of the COVID-19 pandemic. In May 2020, the science on the virus was far from settled, including best practices for combatting the virus. Hindsight is 20/20, and we cannot view the clearly established inquiry through the lens of what we know or believe to be true now.”
Polanco’s family is seeking an unspecified amount in compensatory and punitive damages.
“Any time government takes a life, we’re all seeing that jury awards and settlements can often be in the tens of millions,” said Michael Haddad, the attorney representing the family.
Haddad is also representing the families of three inmates who died due to COVID-19 at the prison. Another panel of the appeals court is currently considering the state’s request to block those suits, suits filed by two other inmates and an inmate class action suit that includes hundreds of plaintiffs. Haddad said a ruling is expected soon.
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