Filed Date: May 28, 2020
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On May 28, 2020, the ACLU of Colorado and the Civil Rights Clinic at the University of Denver School of Law sued the Governor of Colorado and the Executive Director of the Colorado Department of Corrections (CDOC) for failure to protect medically vulnerable people in prison from COVID-19. Five named plaintiffs represented a class of "Medically Vulnerable Prisoners;" the proposed class consisted of current and future persons held by CDOC who were at a high risk of serious illness or death from COVID-19 because they were aged fifty-five or older; had a chronic health condition; or were pregnant. The case was assigned to Judge Kandace C. Gerdes.
The complaint alleged that the conditions in the prison facilities prevented adequate safety precautions from being taken, such as social distancing or sanitary cleaning. Statistic modeling performed in April of 2020 predicted over 200 deaths between staff and those incarcerated due to the conditions at the facilities. The complaint noted that the Executive Director of CDOC noted in an email that "reducing prison density is the only tool" available. A CDOC Management Plan sought to reach approximately 80%-85% density to reduce the risk. However, the complaint alleged that prison density remained at 90% and reached higher than 95% in some individual prisons. As such, the defendants alleged that the defendants violated the state-equivalent of the Cruel and Unusual Punishment clause and sought class-certification and injunctive relief to identify medically vulnerable and release medically vulnerable prisoners to other forms of detention. For the people remaining incarcerated, the plaintiffs sought widespread testing, enhanced sanitation, and an independent monitor to ensure that the CDOC facilities were in compliance with medical recommendations.
On November 13, 2020, the plaintiffs filed an amended complaint. The amended complaint alleged that the defendants had still not implemented effective precautions, resulting in over 2,000 positive cases and four deaths as of November 2020. While the amended complaint largely resembled the original complaint, the proposed class was altered slightly to consist of current and future persons held by CDOC who were at a high risk of serious illness or death from COVID-19 because they were aged sixty or older; had an underlying condition recognized by the CDC as elevating one's risk; or were pregnant. The amended complaint also specified that the plaintiffs sought the population reduction relief from the Colorado Governor, and sought other injunctive relief pertaining to conditions-of-confinement from CDOC.
The same day that the amended complaint was filed, the plaintiffs entered into a consent decree with CDOC. The consent decree certified the class that was proposed in the amended complaint, and required the CDOC to identify medically vulnerable people and prioritize their safe housing. The agreement also provided for increased sanitation measures and widespread testing among staff and incarcerated people. Finally, the consent decree required independent experts to advise on COVID policies and that critical information around testing should be shared continuously. The consent decree was to remain in effect until either (1) the parties stipulated to the termination of the consent decree, or (2) the court terminated the consent decree after a showing of good cause by a preponderance of the evidence at an evidentiary hearing, or (3) the WHO or CDC declares that the pandemic ended.
The consent decree effectively ended the claims against the CDOC (although the court retained jurisdiction to enforce the consent decree), so the only remaining claims were those against the Governor. Plaintiffs' claims against the Governor sought two forms of relief: (1) an injunction compelling him to reduce the prison population or “[t]ake other measures to cure the Constitutional violations,” or, (2) alternatively, issue a writ of mandamus directing the him "to exercise his powers ... [under state law] to correct the unconstitutional conditions and fulfill his emergency response duties.”
The trial court ruled on the plaintiffs' claims against the Governor on December 24, 2021. The court dismissed plaintiffs' claims for two reasons. First, it said reasoned that the Governor was not a proper party to this suit because he did not manage the day-to-day operations of CDOC facilities. And second, because it was not within its power to declare the Governor’s alleged failure to act unconstitutional—as the head of the executive branch, such a decision would encroach on the separation of powers.
But on July 1, the Colorado Court of Appeals reversed the trial court on both counts. 496 P.3d 813. The Governor was the proper defendant under Raven v. Polis—a recent State Supreme Court decision—because Governor he had final authority to order the executive directors. As for the trial court's reasoning regarding the separation of powers, the appellate court found this argument premature. Plaintiffs' sought declaratory relief classifying the Governor's failure to act unconstitutional and several potential forms of injunctive relief to cure the constitutional defect. Issuing declaratory relief, according to the appellate court, was plainly in the trial court's power. And although ordering some forms of injunctive relief, like prison depopulation via pardons, would violate the separation of powers, other requested injunctions would not. It was premature for the trial court to address remedies, anyway, since it had found no constitutional violation. The appellate court remanded the case.
This case is on-going as of May 9, 2022.
Justin Hill (1/12/2021)
Jordan Katz (5/9/2022)
Fox, Terry (Teresa) (Colorado)
Allison, Reid (Colorado)
Edwards, Anna Holland (Colorado)
Finger, Bill (Colorado)
Godfrey, Nicole Brianne (Colorado)
Fox, Terry (Teresa) (Colorado)
Last updated Aug. 30, 2023, 1:46 p.m.Docket sheet not available via the Clearinghouse.
State / Territory: Colorado
Filing Date: May 28, 2020
Case Ongoing: Yes
Medically vulnerable people incarcerated in Colorado state prisons.
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Granted
Causes of Action:
Prevailing Party: Plaintiff
Nature of Relief:
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