Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1218 Page 1 of 53
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
ELLIOTT ABRAMS, CRAIG SEEGMILLER, VINCENT GLASS, ROBERT REEVES, and LAMONT HEARD, individually, and on No. 2:20-cv-11053 behalf of all others similarly situated, HON. MARK A. GOLDSMITH
Plaintiffs, MAG. R. STEVEN WHALEN v DEFENDANTS’ RESPONSE WILLIS CHAPMAN, NOAH BRIEF IN OPPOSITION TO NAGY, MELINDA BRAMAN, PLAINTIFFS’ MOTION FOR BRYAN MORRISON, and HEIDI TEMPORARY RESTRAINING WASHINGTON, ORDER & INJUNCTIVE RELIEF Defendants.
Daniel Manville (P39731) Kevin J. O’Dowd (P39383) Attorney for Plaintiffs Kristin M. Heyse (P64353) Civil Rights Clinic, Scott A. Mertens (P60069) MSU College of Law Sara E. Trudgeon (P82155) P.O. Box 1570 Cori E. Barkman (P61470) East Lansing, MI 48823 Allan J. Soros (P43702) (517) 432-6866 Assistants Attorney General [email protected] Attorneys for MDOC Defendants MDOC Division P. O. Box 30217 Lansing, MI 48909 (517) 335-3055 [email protected]
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Kevin Ernst (P44223) Attorney for Plaintiffs Ernst Charara & Lovell, PLC 645 Griswold, Ste 4100 Detroit, MI 48226 313-965-5555 [email protected] /
DEFENDANTS’ RESPONSE BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER & INJUNCTIVE RELIEF
Dana Nessel Attorney General
Kevin J. O’Dowd Assistant Attorney General Attorneys for MDOC Defendants MDOC Division P.O. Box 30217 Lansing, MI 48909 (517) 335-3055 [email protected] P39383
Dated: May 12, 2020
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TABLE OF CONTENTS
Page
Table of Contents ...... i
Index of Authorities ...... iii
Concise Statement of Issue Presented ...... vi
Controlling or Most Appropriate Authority ...... vi
INTRODUCTION ...... 1
Statement of Facts ...... 4
Argument ...... 19
I. Plaintiffs fail to establish a basis for this Court to grant the extraordinary remedy they seek of a temporary restraining order and/or injunctive relief...... 19
A. Plaintiffs are not likely to succeed on the merits of their Eighth Amendment deliberate indifference claim...... 21
1. The Eleventh Amendment prohibits this Court from granting the injunctive relief Plaintiffs seek here—forcing MDOC to follow its already existing COVID-19 policies...... 22
2. Plaintiffs cannot maintain an action where they have failed to exhaust their administrative remedies...... 24
3. Plaintiffs’ Eighth Amendment claim fails given the MDOC’s swift and robust efforts to prevent and contain the spread of the COVID-19 virus...... 30
4. Plaintiffs’ request for early release fails because such relief is not available in a § 1983 claim, it violates the PLRA, and the MDOC does not have authority to release prisoners...... 36
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B. Given the breadth of MDOC’s COVID-19 response efforts, Plaintiffs cannot show that they will suffer irreparable injury absent this Court’s intervention...... 39
C. Both the public interest and that of the MDOC strongly weigh against a TRO or injunction...... 40
Conclusion and Relief Requested ...... 43
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INDEX OF AUTHORITIES
Page
Cases
Abney v. Amgen, Inc., 443 F.3d 540 (6th Cir. 2006) ...... 38
Am. Civil Liberties Union Fund of Michigan v. Livingston Cty., 796 F.3d 636 (6th Cir. 2015) ...... 18
Amos v. Taylor, Case No. 4:20-CV-7, 2020 U.S. Dist. LEXIS 72532, *28 (N.D. Miss. Apr. 24, 2020) ...... 35
Baxley v. Jividen, No. 3:18-1526, 2020 U.S. Dist. LEXIS 61894 (S.D. W.Va. Apr. 8, 2020) ...... 35
Bell v. Wolfish, 441 U.S. 520 (1979) ...... 20
Burnett v. Howard, No. 2:09-cv-37, 2010 U.S. Dist. LEXIS 30499, at *3 (W.D. Mich. Mar. 30, 2010) ...... 25
Essroc Cement Corp. v. CPRIN, Inc., 593 F. Supp. 2d 962 (W.D. Mich. 2008) ...... 38
Farmer v. Brennan, 511 U.S. 825 (1994) ...... 25, 29, 30, 32
Farnsworth v. Nationstar Mortgage, LLC, 569 Fed. Appx. 421 (6th Cir. 2014) ...... 19
Foster v. Gueory, 655 F.2d 1319 (D.C. Cir. 1981) ...... 28
FTC v. Dean Foods Co., 384 U.S. 597 (1966) ...... 27
Glover v. Johnson, 855 F.2d 277 (6th Cir. 1988) ...... 41
Gonzales v. National Bd. of Med. Exam’rs, 225 F.3d 620 (6th Cir. 2000) ...... 20
Gulley v. Ogondo, Case No. 3:19-cv-612, 2020 U.S. Dist. LEXIS 64193 (D. Conn. Apr. 13, 2020) ...... 36
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Hanna v. Toner, 630 F.2d 442 (6th Cir. 1980) ...... 40
Helling v. McKinney, 509 U.S. 25 (1993) ...... 30
Jackson v. D.C., 254 F.3d 262 (D.C. Cir. 2001) ...... 28
Jones v. Bock, 549 U.S. 199 (2007) ...... 25
Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119 (1977) ...... 40
Kendrick v. Bland, 740 F.2d 432 (6th Cir. 1984) ...... 20
Marlowe v. LeBlanc, Case No. 20-30276, 2020 U.S. App. LEXIS 14063 (5th Cir. Apr. 27, 2020) ...... 23, 28
Maryland v. King, ___ U.S. ___; 133 S. Ct. 1, 3 (2012) ...... 40
McNeilly v. Land, 684 F.3d 611 (6th Cir. 2012) ...... 19
Michigan State AFL-CIO v. Miller, 103 F.3d 1240 (6th Cir. 1997) ...... 20
Money v. Pritzker, 20-cv-2094, 2020 U.S. Dist. LEXIS 63599, *61 (ND. Ill. Apr. 10, 2020) ...... 35, 37, 41
Nellson v. Barnhart, 20-cv-00756, 2020 U.S. Dist. LEXIS 66971 (D. Colo. Apr. 16, 2020) ...... 32, 34, 39
Northeast Ohio Coal. For Homeless and Serv. Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999 (6th Cir. 2006) ...... 20
Overstreet v. Lexington–Fayette Urban County Gov't, 305 F.3d 566 (6th Cir. 2002) ...... 19
Patio Enclosures, Inc. v. Herbst, 39 Fed. Appx. 964 (6th Cir. 2002) ...... 39
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984) ...... 22, 23
Preiser v. Rodriguez, 411 U.S. 475 (1973) ...... 36
Ross v. Blake, 136 S. Ct. 1850 (2016) ...... 24
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Surles v. Andison, 678 F.3d 452 (6th Cir. 2012) ...... 25
Swain v. Junior, Case No. 20-11622-C, 2020 U.S. App. LEXIS 14301 (11th Cir. May 5, 2020) ...... 32, 41
Valentine, et al. v. Collier, et al., Case No. 20-20207, 2020 U.S. App. LEXIS 12941 (5th Cir. Apr. 22, 2020) ...... 23, 39, 41
Wagner v. Taylor, 836 F.2d 566 (D.C. Cir. 1987) ...... 27
Williams v. Mehra, 186 F.3d 685 (6th Cir. 1999) ...... 30
Statutes
18 U.S.C. § 3626(a)(1)-(2) ...... 37
18 U.S.C. § 3626(a)(2) ...... 24
18 U.S.C. § 3626(a)(3) ...... 37
18 U.S.C. § 3626(a)(3)(E)(i)-(ii) ...... 37
42 U.S.C. § 1997e(a) ...... 24
Mich. Comp. Laws 791.233(1)(a) and 791.234 ...... 38
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CONCISE STATEMENT OF ISSUE PRESENTED
Where the MDOC has taken swift and comprehensive action to prevent and treat COVID-19 within its prisons, implementing many measures that go above and beyond CDC guidelines, should this Court deny Plaintiffs’ request for a TRO and/or preliminary injunction?
CONTROLLING OR MOST APPROPRIATE AUTHORITY
Authority:
42 U.S.C. § 1983;
42 U.S.C. § 3626;
Gonzales v. National Bd. of Med. Exam’rs, 225 F.3d 620 (6th Cir. 2000);
Bell v. Wolfish, 441 U.S. 520 (1979);
Kendrick v. Bland, 740 F.2d 432 (6th Cir. 1984);
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984);
Ross v. Blake, 136 S. Ct. 1850 (2016);
Farmer v. Brennan, 511 U.S. 825 (1994);
Swain v. Junior, Case No. 20-11622-C, 2020 U.S. App. LEXIS 14301 (11th Cir. May 5, 2020);
Nellson v. Barnhart, 20-cv-00756, 2020 U.S. Dist. LEXIS 66971 (D. Colo. Apr. 16, 2020);
Baxley v. Jividen, No. 3:18-1526, 2020 U.S. Dist. LEXIS 61894 (S.D. W.Va. Apr. 8, 2020);
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Amos v. Taylor, Case No. 4:20-CV-7, 2020 U.S. Dist. LEXIS 72532, *28 (N.D. Miss. Apr. 24, 2020);
Money v. Pritzker, 20-cv-2094, 2020 U.S. Dist. LEXIS 63599, *61 (ND. Ill. Apr. 10, 2020).
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INTRODUCTION
From the first moment the coronavirus (COVID-19) pandemic
surfaced in Michigan, the Michigan Department of Corrections (MDOC)
acted swiftly and effectively in minimizing the spread of COVID-19
within its correctional facilities. Within a day of the Michigan Governor
declaring a state of emergency after announcing two Michigan residents
had tested presumptive positive for COVID-19, the MDOC issued its
first of many press releases advising Michigan residents of the
emergency measures being taken to protect its staff, prison population,
and the community from COVID-19. Very quickly and decisively,
MDOC Director Heidi Washington provided executive leadership and
direction, outlining the many steps being taken, under the professional
guidance of its Chief Medical Officer (CMO) and in consultation with
the Centers for Disease Control and Prevention (CDC) and the
Michigan Department of Health and Human Services (MDHHS).
Through this top-down coordinated effort, from the Director and
her Executive Team, to the Wardens, to the correctional and healthcare
staff, and everyone in between, the MDOC implemented and enforced a
comprehensive COVID-19 response across all MDOC correctional
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facilities. These emergency measures address everything from the
creation of isolation areas, COVID-19 testing protocols, and screening
measures, the provision of personal protection equipment (PPE) to
prisoners and staff, social distancing requirements and wearing of
masks in facilities, the modification of prison programs and daily
procedures, the modification and use of living areas and non-traditional
areas to increase social distancing and to cohort prisoners,
unprecedented cleaning and hygiene measures, and the education of
staff and prisoners regarding MDOC’s COVID-19 protocols.
In the following discussion, based on a timeline summary of the
facts and from the multiple affidavits attached and discussed herein,
including the MDOC’s Director, the Acting Assistant Deputy Director,
the Wardens from the four subject correctional facilities named as
Defendants, and the MDOC’s CMO, this Court will see MDOC
operating at the highest professional governmental level in response to
an unprecedented public-health crisis.
Despite all of this, Plaintiffs ask this Court to order the MDOC to
do more. More than what is required by the CDC. And, in some
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instances, more than what is readily available to the public out in the
community.
Plaintiffs also ask this Court to do what our Supreme Court has
routinely counseled federal courts against—becoming involved in the
day-to-day administration of prison systems. Plaintiffs’ counsel and
their experts profess to know better than the MDOC1 about how to deal
with this novel virus within its facilities, and they ask this Court to
impose their processes on the MDOC—processes that do not sufficiently
take into account safety, security, or limited MDOC resources. And
what Plaintiffs fail to understand is that any order requiring MDOC to
take specific measures (and only those measures) to combat COVID-19
would actually inhibit MDOC’s ability to protect its prison population
because of the ever-changing and ever-evolving nature of the pandemic.
For all these reasons, and those set forth below, Plaintiff’s motion
for temporary restraining order (TRO) and/or injunctive relief must be
denied.
1 MDOC’s response efforts have been crafted and implemented in conjunction with the CDC and the MDHHS.
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STATEMENT OF FACTS
The first case of COVID-19 in the United States of America was
confirmed on January 21, 2020 in Washington State. (Ex. A, CDC Jan.
21, 2020 Press Release.) Seven weeks later, on the night of March 10,
2020, the first two presumptive positive cases of COVID-19
materialized in the State of Michigan. (Ex. B, Executive Order No.
2020-4.) That day, Michigan Governor Gretchen Whitmer declared a
state of emergency. (Id.) Even though no MDOC prisoner or staff
member had yet tested positive, MDOC had already begun taking steps
to prevent the introduction of the virus into the 29 facilities MDOC
operates.
I. Timeline of MDOC’s Ongoing Safety Precautions
The MDOC’s actions in responding to the risk of COVID-19
impacting its facilities occurred well before any prisoners or staff tested
positive and before the CDC issued its Interim Guidance on
Management of Coronavirus Disease 2019 (COVID-19) in Correctional
and Detention Facilities, which was not posted until March 23, 2020.
(Ex. C.)
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Some of the early measures MDOC Director Heidi Washington
implemented included engaging in close consultation with local health
departments, the MDHHS, and the CDC to examine options on
prevention of the spread of the virus, and this information was in turn
communicated to the prison population and MDOC staff. (Ex. D,
Director Aff., ¶ 8.) Director Washington ensured that each facility
underwent additional and more frequent cleanings. (Id.) Bleach,
normally forbidden within a prison, was provided to each facility for
disinfecting purposes.2 (Id.) The MDOC memorialized these actions in
a March 11, 2020, press release detailing the measures being taken to
protect its staff, prison population, and the community from COVID-19.
(Id., Attach. 1, March 11, 2020 Press Release.)
On March 11, 2020, the MDOC began taking the temperature of
all staff and anyone else entering the secured prison area, as well as
completing a screening for any other signs or symptoms of the virus.
(Id.) Anyone with a temperature higher than 100.4 degrees is
prohibited from entering the facility and staff are prohibited from
2 Bleach has previously not been allowed to be used inside of a prison as a cleaning agent due to security reasons as bleach can cause permanent skin and nerve damage if thrown onto another person.
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returning to work until their fever dissipates and they have no
additional symptoms of COVID-19. (Id., at ¶ 9.) Additionally, on
March 13, 2020, the MDOC ceased all in-person visitation with
prisoners. (Id., Attach. 2, March 13, 2020 Press Release.) This was
done for the safety of staff, prisoners, and the public, to minimize the
risk of introducing COVID-19 into the facilities. (Id., at ¶ 9.) On that
date, there were only 12 known cases of COVID-19 in the state, but
none yet impacting the MDOC. (Id.)
By March 16, 2020, various additional measures had been
implemented within the MDOC, and in order to keep the public
informed about what the MDOC was doing to keep its prisoners and
staff safe, the MDOC posted MDOC Coronavirus (COVID-19) Response
Q&A on its own website, as well as on social media platforms, advising
the public of early measures taken to ensure the safety and well-being
of the prison population, staff, and the public. (Id., Attach. 3.) In
addition to these early measures discussed above, other measures the
MDOC has taken include, but are not limited to:
Enhanced services for prisoners to communicate with family and friends such as free phone calls twice per week in most cases and a number of free JPay (email) messages. (Id. ¶ 10.)
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Stopping transfers between facilities without the approval of the Assistant Deputy Director or higher. (Id.) Ensuring that diligent cleaning protocols were implemented and used, including the sanitizing of common areas and cells, more frequent cleaning using bleach, and requiring cleaning products to be placed next to phones and in other high traffic areas. (Id.) Ensuring that all prisoners had access to soap, that there was an adequate supply being produced in the Michigan State Industries labs, and that an increased supply of soap was being freely provided to prisoners for their personal use and stocked in bathrooms. (Id.) Requiring CDC posters detailing proper hygiene practices to be posted and displayed digitally on TV screens throughout the facilities. (Id.) Encouraging social distancing throughout its facilities, including halting certain programming and group activities or running smaller groups for programs and classrooms and limiting the number of people in the chow hall at any one time in order to seat prisoners further apart. (Id.) Increasing the processing of parole reviews and modifying procedures to minimize in-person attendance, including conducting parole interviews by video. (Id.)
On March 23, 2020, the CDC posted its Interim Guidelines for
Correctional Facilities. (Ex. C.) This document provided specific
guidance to correctional and detention facilities related to COVID-19,
outlining best practices concerning: (1) operational and communications
preparations for COVID-19; (2) enhanced cleaning, disinfecting, and
hygiene practices; (3) social distancing strategies; (4) visitor policies; (5)
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infection control; (6) screening of staff, inmates, and visitors; (7) medical
isolation for those testing positive; (8) healthcare for suspected cases;
and (9) considerations for persons at higher risk of COVID-19. (Id.) By
the time these guidelines were issued, the MDOC, as evidenced by the
above-mentioned early measures, was already incorporating these “best
practices” in its COVID-19 response strategies.
Two MDOC staff members3 tested positive for COVID-19 on
March 17, 2020. (Ex. E, MDOC March 17, 2020 Press Release.) On
March 24, 2020, an inmate tested positive for COVID-19 for the first
time in an MDOC facility.4 (Ex. F, Aff. Dr. McIntyre, ¶ 5.) As with all
subsequent COVID-19 positive inmates and persons under
investigation (PUIs), the MDOC moved swiftly to isolate that inmate
and to ensure that any of his close contacts were placed under
observation to ensure that they did not develop COVID-19 symptoms.
(Id., ¶ 25.)
3 A probation agent and a Detroit Detention Center employee. (Ex. E.) 4 There was an inmate that tested positive on March 22, 2020. However, he had been hospitalized for a non-COVID-related health issue since March 11 at two different outside hospitals. He was transferred to MDOC’s Duane Waters Health Clinic to a negative pressure room. He was not released from COVID isolation until repeat testing was negative. (Aff. Dr. McIntyre, Ex. F, ¶ 4)
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On March 29, 2020, Governor Whitmer issued Executive Order
No. 2020-29 specifically addressing the transfer of jail inmates into the
MDOC. (Ex. G, Executive Order No. 2020-29.) Pursuant to this
Executive Order, effective immediately, all transfers into the MDOC’s
custody from a county jail or local lockup were suspended until it was
determined that the county jail or local lockup had satisfactorily
implemented risk-reduction protocols of their own. (Id., ¶ 4.) The
Executive Order also ordered the continuation of numerous risk-
reduction protocols, recognizing that MDOC was already implementing
the enumerated protocols at all facilities. (Id., ¶ 1.)
On April 8, 2020, to reinforce the MDOC’s efforts to contain
COVID-19, and to ensure that all facilities were uniformly operating in
the face of this crisis, Director Washington issued Director’s Office
Memorandum (DOM) 2020-30 to the MDOC’s Executive Policy Team,
the Administrative Management Team, and Wardens. (Ex. H, DOM
2020-30; Compl., R. 1-28, Ex. 27, Page ID # 164-71.) DOM 2020-30
states, “The MDOC is taking many steps to protect staff and prisoners
from the spread of COVID-19, including developing isolation areas to
place and treat prisoners who tested positive for COVID-19 or who are
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under investigation for having COVID-19, as well as those who have
had close contact with a known-positive COVID-19 individual.” (Ex. H.)
The DOM issues specific guidelines for the following topics:
Personal Protection Equipment (PPE); Screening of individuals before entering a facility or office building; Social distancing; Isolation areas; Prisoners under investigation for COVID-19; Prisoner personal property; Precautions in correctional facilities administration (CFA) facilities; Credit restorations; Precautions to be taken by field operations administration (FOA); Disciplinary conferences, and Working remotely. (Id.)
II. Compliance with CDC Guidelines
The MDOC has continued to meet and exceed the March 23, 2020
CDC guidelines. (Ex. C.) Specifically, prisoners and staff are provided
with three reusable cloth masks that can be laundered, which are
replaced as needed. (Ex. D, Aff. Director, ¶ 16.) This practice began on
March 26, 2020, and by April 6, all facilities had been issued three
washable and reusable masks per prisoner and per staff. (Id.) It was
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not until April 3, 2020, that the CDC issued a recommendation that
masks should be worn in public. (Ex. I, CDC Apr. 3, 2020
Recommendation.) Governor Whitmer did not order the people of
Michigan to wear face masks in public buildings until April 26, 2020.
(Ex. J, Executive Order No. 2020-59.) By April 6, 2020, the MDOC
provided over 152,000 masks to staff and prisoners and continues to
ensure that all staff and prisoners are wearing masks in accordance
with CDC guidelines. (Ex. D, Aff. Director, ¶ 16.)
The MDOC has also opened a previously closed facility and
previously closed housing units and transformed non-traditional areas,
such as gyms and dayrooms, to separate prisoners and cohort PUIs,
close contacts, and prisoners in step-down—a recovery unit for those
medically cleared after having recovered from the virus. (Id., ¶¶ 17,
20.) Portable showers were installed in these new arrangements so
individuals from one cohort would not have to mix with individuals in
another group. (Id., ¶ 19.) This expansion also allowed the MDOC to
reduce the population among the COVID-negative prisoners in dorm-
style housing units to the greatest extent possible. (Id., ¶ 18.)
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Meanwhile, the MDOC is providing COVID-19 testing at all
facilities in accordance with CDC guidelines. To ensure continuing
compliance with CDC guidelines and MDOC’s COVID-19 protocols,
MDOC facilities provide a daily update to the Executive Team
addressing all COVID-19 related developments. (Id., ¶¶ 22, 26.) A
detailed comparison of Plaintiffs’ requests for relief, the CDC
guidelines, and MDOC’s actions is provided in Exhibit K.
The named class representatives are currently housed at
Lakeland Correctional Facility (LCF), Parnall Correctional Facility
(SMT), Cotton Correctional Facility (JCF), and Macomb Correctional
Facility (MRF). (Compl., R. 1, Page ID # 7-17.) The respective Wardens
of these facilities, Warden Morrison, Warden Braman, Warden Nagy,
and Warden Chapman have implemented and are following CDC
guidelines throughout their facilities. As evidenced by the Wardens’
affidavits, each of these facilities is meeting, if not exceeding, CDC
guidelines. (Ex. L, Aff. Morrison; Ex. M, Aff. Braman; Ex. N, Aff. Nagy;
Ex. O, Chapman.) Their affidavits illustrate the effectiveness of the
MDOC’s coordinated COVID-19 response measures at the facility level.
The affidavits also explain the measures being implemented by the
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individual facilities to promote social distancing in housing units, such
as reducing the number of prisoners living in cube, or dorm-style, units
to the extent possible and requiring inmates in bunks sleep head-to-toe
or every other bunk. (Id.)
Acting Assistant Deputy Director (ADD) Jeremy Bush, oversees
all of the facilities in MDOC’s Jackson Region Facilities. (Ex. P, Aff.
ADD Bush, ¶ 3.) The Jackson Region includes LCF, SMT, JCF and
MRF, among additional facilities. (Id. ¶ 2.) ADD Bush began providing
COVID-19 risk-reduction protocols to Wardens at all facilities in the
Jackson Region on March 11, 2020 and receives briefings from these
facilities. (Id. ¶¶ 4, 7.) As evidenced from the affidavits of ADD Bush,
Warden Morrison, Warden Braman, Warden Nagy, and Warden
Chapman, MDOC is in compliance with CDC and MDHHS guidelines
and will continue to implement and enforce COVID-19 risk-reduction
measures for the duration of the pandemic.
III. Population Reduction Efforts
In addition to MDOC’s swift and robust efforts to contain the
spread of COVID-19 within its facilities, as well as its methods for
containment when positive cases are identified, MDOC has also taken
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the following actions to safely reduce its prison population during this
crisis:
On March 30, 2020, after seeking and receiving permission from Wayne County Circuit Court, 26 probationers, who were completing the Westside Residential Alternative to Prison (WRAP) program, were released from custody to community supervision (Ex. D, Director Affidavit, ¶ 28(a)); MDOC accelerated programming for parole violators so they could be re-paroled more quickly (Id., at ¶ 28(b)); All Holmes Youthful Trainee Act cases were reviewed, and release eligible cases were sent to the sentencing judge for consideration. The courts approved the release of trainees housed at the Thumb Correctional Facility (Id., at ¶ 28(c)); Wardens reviewed pre-1998 prisoner cases to determine eligibility for credit restoration, which resulted in 78 prisoners becoming eligible for parole with the Parole Board granting parole in 55 cases (Id., at ¶ 28(d)); MDOC has also worked with the Parole Board to expedite its review process and reduce its number of deferrals, with the priority of moving vulnerable prisoners into the process first, i.e., those over the age of 60. Once the Parole Board grants a parole, MDOC is actively seeking prosecutor waivers of the 28- day wait time before release (Id., at ¶ 28(g)); All of the strategies implemented by the MDOC has resulted in the following parole numbers for weeks ending on Saturday: April 11, 2020: 198 paroles
April 18, 2020: 153 paroles
April 25, 2020: 233 paroles
May 2, 2020: 197 paroles
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May 9, 2020: 214 paroles (Id., at ¶ 28.) On March 13, 2020, the MDOC population was 38,196. As of May 9,
2020, the MDOC population was 36,781, which represents a population
decrease of 1,415 since March 13, 2020. (Id., at ¶ 29.) In April 2020,
the prison population declined by 866. This is the largest monthly
decline in known MDOC history. Previously, the largest prison
population drop in a single month was 592 in July 2007. (Id.)
IV. Medical Treatment and Testing
Under the guidance of MDOC Chief Medical Officer (CMO), Dr.
McIntyre, the MDOC has implemented specific COVID-19 infection
control guidelines. (Ex. F, Aff. Dr. McIntyre, ¶ 5.) In addition to all the
measures taken and described above, a COVID-19 Protocol, most
recently updated on April 29, 2020, was provided to all MDOC
healthcare staff and Wardens. (Id., Attach. 1, MDOC COVID-19
Guidelines Protocol.) The COVID-19 Guidelines Protocol addresses
prevention, screening, evaluation, and management of COVID-19 in
MDOC facilities. (Id., at ¶ 6.) The protocol includes, in part:
Separate housing units dedicated as management units for all COVID-positive prisoners to provide all medically necessary treatment and separate positive inmates from the rest of the population. (Id., Attach. 1, at pp. 10-12.)
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Step-down units for all prisoners who previously tested positive for COVID-19 and have since been cleared by the MDOC’s CMO, are symptom free, and are no longer considered contagious. Prisoners remain in the step-down unit for at least 14 days and until the prisoner tests negative before being returned to general population. (Id., at p. 14.) Updated parole/discharge criteria addressing specific release requirements for COVID-positive prisoners, PUIs, and those in close contact (i.e., COVID-positive prisoners will not be released until they are cleared by health care according to the COVID- 19 protocol). (Id., at pp. 12-14.) Screening procedures for necessary intakes and transfers, incorporating current CDC screening guidelines. (Id., at p. 4- 6.) Staff and prisoner COVID-19 evaluation requirements in accordance with CDC guidelines. (Id., at pp. 15-16.) Social distancing protocols applicable to programs, classrooms, chow lines, staff meetings, and any other type of gathering in accordance with current CDC guidelines. (Id., at pp. 3-4, 30; Ex. Q, social distancing example photos.) Hygiene and facility cleaning requirements in accordance with current CDC guidelines. (Ex. F, Aff. Dr. McIntyre, Attach. 1, at pp. 3, 17-19.)
The MDOC has opened previously closed housing units separate
from the main prison at Carson City Correctional Facility (DRF), G.
Robert Cotton Correctional Facility (JCF) K unit, Green Oaks
Temporary Facility (former Maxey Boys Training School), a wing in the
Duane Waters Health Center (DWH), and a wing in the C unit at the
Charles Egeler Reception & Guidance Center (RGC) to establish
16 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1243 Page 26 of 53
COVID-19 response units and transported COVID-positive prisoners to
these sites. (Ex. D, Director Aff., ¶ 20.) Macomb Correctional Facility
(MRF), Cotton (JCF), Lakeland Correctional Facility (LCF), Women’s
Huron Valley Correctional Facility (WHV), and Detroit Reentry (DRC)
(dialysis) also have their own COVID response units. (Id., at ¶ 21.)
These units are used to separate COVID-positive prisoners from the
rest of the population, to prevent spread of the virus, and to allow for
proper medical care. (Id.) Prisoners remain in these units until
healthcare clears them to be transferred to a step-down unit. (Ex. F,
Aff. Dr. McIntyre, Attach. 1, at pgs. 10-12.)
Testing conducted in the MDOC is more expansive than CDC and
MDHHS guidelines. (Id., ¶¶ 20-21, 48.) COVID-19 tests are given to
all prisoners who show any CDC recognized symptoms, at a minimum.
(Ex D, Director Aff., ¶ 22.) Additionally, the entire prisoner population
of Lakeland Correctional Facility (LCF) and Cotton Correctional
Facility (JCF) have been tested for COVID-19. (Id., ¶ 23.) Further, the
MDOC, with the assistance of the Michigan National Guard, completed
testing of all six MDOC correctional facilities in the upper peninsula
during the week of May 4, 2020, including Baraga Correctional Facility
17 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1244 Page 27 of 53
(AMF), Marquette Branch Prison (MBP), Alger Correctional Facility
(LMF), Newberry Correctional Facility (NCF), Chippewa Correctional
Facility (URF), and Kinross Correctional Facility (KCF), as well as
Oaks Correctional Facility (ECF) in the lower peninsula. (Id.) MDOC
is continuing mass testing, including antibody testing, at facilities in
the lower peninsula. (Id., ¶ 23.)
As of May 11, 2020, at 12:30 PM, of the 13,235 total number of
prisoners tested for COVID-19, 2,152 have tested positive, and there
have been 50 COVID-19 related prisoner deaths, which is a 2.32 percent
death rate of known positives. The death of a single prisoner is tragic,
but through the collective efforts of the MDOC staff, consistent with
CDC guidelines, MDOC continues to minimize these numbers as this
unprecedented pandemic continues to evolve.
As this Court can see, even before the first COVID-19 positive
case was identified within the MDOC, the MDOC had already
developed a comprehensive plan to prevent, contain, and control the
spread of COVID-19 within its 29 facilities with the goal of protecting
the 36,000+ prisoners in the care of MDOC. MDOC continues to meet
18 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1245 Page 28 of 53
and exceed the CDC’s guidelines. Accordingly, Plaintiffs’ motion should
be denied.
ARGUMENT
I. Plaintiffs fail to establish a basis for this Court to grant the extraordinary remedy they seek of a temporary restraining order and/or injunctive relief.
Temporary restraining orders (TRO) and/or preliminary
injunctions “are extraordinary and drastic remedies . . . never awarded
as of right.” Am. Civil Liberties Union Fund of Michigan v. Livingston
Cty., 796 F.3d 636, 642 (6th Cir. 2015) (internal quotations and citation
omitted). The moving party “bears the burden of justifying such relief.”
McNeilly v. Land, 684 F.3d 611, 614-15 (6th Cir. 2012). This requires a
far more stringent showing of proof than that required to survive
summary judgment. See Farnsworth v. Nationstar Mortgage, LLC, 569
Fed. Appx. 421, 425 (6th Cir. 2014). And such relief should be granted
“only if the movant carries his or her burden of proving that the
circumstances clearly demand it.” Overstreet v. Lexington–Fayette
Urban County Gov't, 305 F.3d 566, 573 (6th Cir. 2002); Roghan v. Block,
590 F. Supp. 150, 153 (W.D. Mich. 1984), aff'd 790 F.2d 540 (6th Cir.
1986) (“There is no power the exercise of which requires greater
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caution, deliberation, and sound discretion, or more dangers in a
doubtful case, than the issuing of an injunction.”) (internal quotations
and citation omitted). Thus, Plaintiffs here must affirmatively
demonstrate entitlement to injunctive relief.
A party seeking a TRO or preliminary injunction must establish
four factors: (1) a strong likelihood of success on the merits; (2) that
irreparable injury would result absent an injunction; (3) that granting
the injunction would not cause substantial harm to others; and (4) that
the public interest would be served by granting the injunction.
Northeast Ohio Coal. For Homeless and Serv. Emps. Intern. Union,
Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006).
“Although no one factor is controlling, a finding that there is
simply no likelihood of success on the merits is usually fatal.” Gonzales
v. National Bd. of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000);
Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997)
(“While, as a general matter, none of these four factors are given
controlling weight, a preliminary injunction issued where there is
simply no likelihood of success on the merits must be reversed.”).
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Moreover, the United States Supreme Court has cautioned that
“the operation of our correctional facilities is peculiarly the province of
the Legislative and Executive Branches of Government, not the
Judicial.” Bell v. Wolfish, 441 U.S. 520, 548 (1979). Thus, where a
prisoner seeks to enjoin state prison officials, courts must proceed with
care, recognizing the unique nature of the prison setting. See Kendrick
v. Bland, 740 F.2d 432, 438, n. 3 (6th Cir. 1984).
For the reasons set forth below, Plaintiffs fail to satisfy any of the
factors for a TRO and/or injunctive relief. Therefore, their motion must
be denied.
A. Plaintiffs are not likely to succeed on the merits of their Eighth Amendment deliberate indifference claim.
Plaintiffs allege a violation of their Eighth Amendment right
based on what they deem as MDOC’s inadequate response to the
COVID-19 pandemic. More specifically, Plaintiffs assert that MDOC
has “fail[ed] to provide [them] with reasonably safe living conditions in
the face of the current COVID-19 pandemic.” (Plf.s’ re-filed motion for
TRO, R. 22, Page ID # 826.) Because nothing could be further from the
21 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1248 Page 31 of 53
truth, and because Plaintiffs seek relief that is not available to them,
Plaintiffs are not likely to succeed on the merits of their claim.
1. The Eleventh Amendment prohibits this Court from granting the injunctive relief Plaintiffs seek here—forcing MDOC to follow its already existing COVID-19 policies.
In their complaint,5 Plaintiffs set forth a laundry list of 21 items
that they ask this Court to order MDOC to do what they believe will
reduce the spread of COVID-19. (Compl., R. 1, Page ID # 53-54.) A
majority of these items—all but items 1, 2, 8,6 15, and 16—were already
included in MDOC’s policies and procedures before this lawsuit was
initiated. (Ex. H.)
5 Unlike Plaintiffs’ motion for TRO and/or permanent injunction, which does not indicate exactly what relief Plaintiffs seek, their complaint does set forth a 21-item request for relief. (Complaint, D/E 1, Pg. ID. 53-54.) Defendants rely on that list for purposes of this response brief. Also, it is Defendants understanding that Plaintiffs have conceded that, based on the parties’ discussions and information that has been provided about what MDOC is already doing, items 5, 7, and 21 on Plaintiffs’ list are no longer at issue.
6 To be clear, the MDOC is addressing these items in other ways than what is proposed by Plaintiffs. For specific measures that are being taken, see Director Washington’s affidavit (Ex. D) at ¶¶14, 22, 23, 24, 25, and 28.
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Indeed, Plaintiffs’ counsel has conceded this point7 and
acknowledged that what they really take issue with is the MDOC’s
implementation of its policies. So, for the bulk of Plaintiffs’ requested
relief, they ask this Court to enjoin the State to follow its own laws and
procedures, essentially asking this Court to force MDOC to comply with
its existing policies. But such relief is prohibited by the Eleventh
Amendment and was squarely rejected by our Supreme Court in
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 103-23
(1984) (holding that the Eleventh Amendment prohibits federal courts
from enjoining state facilities to follow state law.)
Pennhurst was recently applied by the Fifth Circuit in the context
of two COVID-19-related prison cases. Valentine, et al. v. Collier, et al.,
Case No. 20-20207, 2020 U.S. App. LEXIS 12941 (5th Cir. Apr. 22,
2020) (Ex. R.); Marlowe v. LeBlanc, Case No. 20-30276, 2020 U.S. App.
LEXIS 14063 (5th Cir. Apr. 27, 2020) (Ex. S). In both of those cases, the
Fifth Circuit stayed the district courts’ injunctions granted against
state correctional departments, finding that plaintiffs were not likely to
7 Plaintiffs’ counsel advised the Court of such during the parties May 4, 2020 telephone status conference. (Not. of Status Conf., R. 16, Page ID # 814.)
23 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1250 Page 33 of 53
succeed on the merits of their Eighth Amendment claims because the
district courts’ orders merely required the departments to implement
their own policies. (Ex. R, Valentine, ** 9-10; Ex. S, Marlowe, ** 5-6.)
The Fifth Circuit reasoned that “the essence of Pennhurst is that a
federal court lacks jurisdiction to sit as a super-state executive by
ordering a state entity to comply with its own law.” (Ex. S, Marlowe,
*6.)
Here, Pennhurst also applies to bar the majority of Plaintiffs’
requested relief because, for all but items 1, 2, 8, 15, and 16, Plaintiffs,
too, are asking this Court to force MDOC to implement its already
existing policies. As such, Plaintiffs’ motion for TRO and/or injunctive
relief must be denied.
2. Plaintiffs cannot maintain an action where they have failed to exhaust their administrative remedies.
Plaintiffs’ motion is subject to the limitations on injunctive relief
set forth in the Prison Litigation Reform Act (PLRA), which states in
part:
Preliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm. The court shall give substantial
24 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1251 Page 34 of 53
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 set out in paragraph (1)(B) in tailoring any preliminary relief.
18 U.S.C. § 3626(a)(2).
It further requires that “[n]o action shall be brought with respect
to prison conditions under section 1983 of this title, or any other
Federal Law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court has deemed
this language as mandatory and has rejected attempts to deviate from
this mandate. Ross v. Blake, 136 S. Ct. 1850, 1856-57 (2016). Thus, “a
court may not excuse a failure to exhaust, even to take [special]
circumstances into account.” Id. The PLRA exhaustion requirement
applies to requests for TROs and injunctive relief. See Farmer v.
Brennan, 511 U.S. 825, 847 (1994).
Further, the Supreme Court has held that “to properly exhaust
administrative remedies prisoners must ‘complete the administrative
review process in accordance with the applicable procedural rules,’ rules
that are defined not by the PLRA, but by the prison grievance process
itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (internal citation
25 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1252 Page 35 of 53
omitted). Indeed, the Sixth Circuit has held that “[a] grievant must
undertake all steps of the MDOC process for his grievance to be
considered fully exhausted.” Surles v. Andison, 678 F.3d 452, 455 (6th
Cir. 2012). Where a grievance is rejected on the basis of policy, “[a]s
long as the state clearly rejects a grievance for a reason explicitly set
forth in the applicable grievance procedure, a subsequent § 1983 claim
based on the grievance will be subject to dismissal for failure to
properly exhaust.” Burnett v. Howard, No. 2:09-cv-37, 2010 U.S. Dist.
LEXIS 30499, at *3 (W.D. Mich. Mar. 30, 2010) (internal citations
omitted) (Ex. T.) MDOC’s grievance policies are set forth in Policy
Directive 03.02.130, “Prisoner/Parolee Grievances,” effective March 18,
2019. (Ex. U, PD 03.02.130, eff. 3/18/19.)
Here, Plaintiffs have failed to properly exhaust their administra-
tive remedies. Plaintiff Elliott Abrams, #974262, filed two grievances
related to COVID-19 issues.8 Both were properly rejected as being too
general, and thus non-grievable, and neither were appealed through
8 Grievance MRF-20-04-0561-27z asserts that Warden Chapman is not creating a sustainable plan that prevents the spread of COVID-19. Grievance MRF-20-04-0562-28a asserts that Director Heidi Washington is putting the grievant (Abrams) at a higher risk by not creating a sustainable plan that prevents the spread of COVID-19.
26 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1253 Page 36 of 53
Step III.9 Plaintiff Craig Seegmiller, #373625, filed one COVID-19
related grievance—Grievance JCF-20-04-0694-27z10—which was
rejected because the proper procedure is to address the issue at the
Warden’s Forum, and it has not been appealed through Step III.
Plaintiff Lamont Heard, #252329, has filed two grievances regarding
COVID-19.11 Again, both were rejected as being too general and they
were also not appealed through Step III.
Plaintiff Jermaine Campbell, #745168, has filed two COVID-19-
related grievances.12 Both claim that a female housing unit staff
member was not wearing her facemask. These grievances are still
pending. Robert Reeves, #222810, has filed one COVID-19-related
9 Grievance MRF-20-04-0561-27z was rejected at Step I for being a non- grievable issue. Abrams appealed the Step I grievance response, and the grievance was upheld at Step II. MRF-20-04-0562-2a was rejected as a duplicate issue. This grievance was also upheld at Step II.
10 In that grievance, Seegmiller made the very general claim that the supervisory level staff are using an unconstitutional practice and custom related to COVID-19 that puts his life in danger.
11 Grievance LCF-20-04-0261-27z asserts that staff failed to protect Heard from the coronavirus. This grievance was rejected at Step I as a non-grievable issue. Grievance LCF-20-04-0026-27z also asserts that staff failed to protect Heard from the virus. This grievance was also rejected at Step I as a non-grievable issue. 12 Grievances JCF-20-04-0795-03b and JCF-20-04-0797-03b.
27 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1254 Page 37 of 53
grievance—grievance SMT-20-04-0491-27z—which alleges that the
Warden and staff failed to protect him, and as a result Reeves was
infected with COVID-19 and was not treated. This grievance was
rejected due to not following the proper procedure to direct comments to
the Warden’s Forum. Plaintiff Vincent Glass, #182453, has not filed
any COVID-19-related grievances.
Plaintiffs attempt to side-step this exhaustion requirement by
arguing that this Court’s “equitable powers” are not impaired by the
PLRA. (Plf.s’ re-filed motion for TRO, R. 22, Page ID # 843-44.)
However, the cases they cite to support this proposition are non-binding
and inapplicable. As an initial point, FTC v. Dean Foods Co., 384 U.S.
597 (1966); Wagner v. Taylor, 836 F.2d 566 (D.C. Cir. 1987); and Foster
v. Gueory, 655 F.2d 1319, 1321-22 (D.C. Cir. 1981) have nothing to do
with the PLRA.13 Further, FTC, Wagner, and Jackson v. D.C., 254 F.3d
262, 268 (D.C. Cir. 2001) discuss entering an injunction to maintain the
status quo pending the outcome of administrative proceedings.
13 The PLRA was enacted in 1996, well after any of the cases were decided.
28 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1255 Page 38 of 53
Plaintiffs here ask this Court to waive their PLRA exhaustion
requirement altogether, and they seek affirmative relief from this
Court, not to simply maintain the status quo. Finally, the district court
decision in Marlowe v. LeBlanc, Case No. CV-18-63, 2020 U.S. Dist.
LEXIS 72146, (M.D. La. Apr. 23, 2020), upon which Plaintiffs rely, has
recently been stayed by the Fifth Circuit. (See Ex. S, Marlowe v.
LeBlanc.) The Fifth Circuit rejected the district court’s PLRA
exhaustion analysis, which excused plaintiff’s failure to exhaust
because “‘the interests of justice’ compelled it to act on an emergency
basis[,]” finding that it “runs counter to Supreme Court precedent.” (Id.
at *9 (internal citation omitted.))
In sum, while Plaintiffs attempted to file COVID-19 related
grievances, none of those grievances were properly exhausted. In every
case, Plaintiffs either failed to appeal their grievances through Step III,
or their grievances were still pending at the time this lawsuit was
commenced. Accordingly, because Plaintiffs have failed to properly
exhaust their administrative remedies, their § 1983 claim fails as a
matter of law.
29 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1256 Page 39 of 53
3. Plaintiffs’ Eighth Amendment claim fails given the MDOC’s swift and robust efforts to prevent and contain the spread of the COVID-19 virus.
Even if Plaintiffs had exhausted their administrative remedies as
required under the PLRA and they were not seeking relief barred by the
Eleventh Amendment, their motion for TRO and/or injunctive relief
must still be denied because MDOC has been anything but deliberately
indifferent to their health and safety during the COVID-19 pandemic.
The Eighth Amendment requires prison officials to provide
humane conditions of confinement. Farmer, 511 U.S. at 832. To
establish an Eighth Amendment deliberate indifference claim, a
plaintiff must satisfy both an objective component and subjective
component. Farmer, 511 U.S. at 834.
Under the objective component of a conditions-of-confinement
claim, a plaintiff must show that he was deprived of “the minimal
civilized measures of life’s necessities.” Id. “In other words, the
prisoner must show that the risk of which he complains is not one that
today’s society chooses to tolerate.” Helling v. McKinney, 509 U.S. 25,
36 (1993). The subjective component, on the other hand, is broken down
into three discrete questions: (1) whether a defendant was “aware of
30 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1257 Page 40 of 53
facts” from which he could draw an inference that the plaintiff was
exposed to a “substantial risk of serious harm”; (2) whether the
defendant actually drew the inference; and (3) whether the defendant
disregarded the risk. Farmer, 511 U.S. at 837. In other words, the
subjective component requires a plaintiff to show that the defendant
possessed a “sufficiently culpable state of mind.” Id. at 834. Mere
negligence, or even gross negligence, will not suffice. Id. at 835-836;
see also Williams v. Mehra, 186 F.3d 685, 691 (6th Cir. 1999) (en banc).
Plaintiffs fail to establish a viable Eighth Amendment claim.
Given the multitude of measures that have been put in place by the
MDOC to combat, contain, and treat COVID-19 within its prisons,
Plaintiffs cannot show that the MDOC has been indifferent to the safety
of its prisoners, including Plaintiffs, during this pandemic.
Indeed, as discussed above and as evidenced in the attached
exhibits, MDOC has gone to great lengths to combat COVID-19. There
has been an unprecedented level of leadership, oversight, and
communication with all MDOC facilities. These efforts began well
before any prisoners or staff tested positive, and even before the CDC
issued its guidelines, and they continue daily as the MDOC works to
31 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1258 Page 41 of 53
reduce the spread of the virus. And these efforts have been done in
conjunction and consultation with MDOC’s partners at the CDC and
MDHHS. (Ex. D, Director Aff., ¶ 8.)14
Plaintiffs point to the following alleged failures as evidence that
Defendants are “disregarding the grave risk posed by COVID-19”: (1)
“fail[ure] to provide adequate space and cleaning/disinfectant supplies”
and (2) failure to “provide[] timely and adequate medical care to
identify, isolate, and treat people who develop symptoms.” (Plf.s’ re-
filed motion for TRO, R. 22, Page ID # 853.) But these claims are belied
by the various affidavits submitted in support of this brief.
Plaintiffs make much ado about the dorm-style settings in some
facilities, arguing they are evidence of the MDOC’s deliberate
indifference. But this argument was recently rejected by the Eleventh
Circuit. Swain v. Junior, Case No. 20-11622-C, 2020 U.S. App. LEXIS
14301 (11th Cir. May 5, 2020). (Ex. V.) There, the Eleventh Circuit
concluded that the district court likely erred in finding that a
14 Director Washington is a member of the Correctional Leaders Association and is an elected representative of the Executive Committee. Director Washington provides guidance to other Midwest states’ directors in developing bests practices to minimize the spread of COVID-19 in correctional facilities. (Ex. D, Director Aff., ¶ 3.)
32 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1259 Page 42 of 53
corrections department’s “inability to achieve meaningful social
distancing” was evidence of the requisite reckless state of mind for an
Eighth Amendment deliberate indifference claim. (Ex. V, Swain, at **
11-12.) Citing Farmer, the court noted that “the inability to take a
positive action likely does not constitute ‘a state of mind more
blameworthy than negligence.’” (Ex. V, Swain, at *12, quoting Farmer,
511 U.S. at 835; see also Nellson v. Barnhart, 20-cv-00756, 2020 U.S.
Dist. LEXIS 66971, *17 (D. Colo. Apr. 16, 2020) (stating that “[a] lack of
social distancing in the law library and communal restrooms . . . does
not demonstrate that defendants have disregarded the risk of COVID-
19.”). (Ex. W.) Further, being housed in these dorm-style units does
not necessarily correlate with a higher incidence of COVID-19, as the
majority of MDOC facilities with these types of units have a very low
rate of COVID-positive prisoners. (Ex. X, Chart.)
MDOC has created space within the confines of its limited
facilities and resources and is requiring social distancing to the
maximum extent possible, including during recreation and dining. To
the extent that six-foot distance cannot always be maintained other
measures have been taken to promote social distancing, such as head-
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to-toe placement of bunks, staggering of prisoners in chow hall lines,
limiting the number of prisoners seated at a table, and delivering meals
to prisoners to eliminate the use of the chow hall. (Ex. L, Aff. Morrison;
Ex. M., Aff. Braman; Ex. N, Nagy; Ex. O, Aff. Chapman.)
Also, prisoners have been provided three reusable face masks that
can be laundered and an ample supply of soap and cleaning materials.
In addition, bleach disinfectant is being supplied for use within living
quarters, in common areas, and on frequently touched items, such as
phones, computers, etc. (Id., Wardens’ Aff.) Likewise, MDOC has put
in place a comprehensive system for identifying, isolating, and treating
people with COVID-19. (Ex. F, Aff. Dr. McIntyre.)
Thus, despite Plaintiffs’ allegations, MDOC has not disregarded
the risk of COVID-19. Rather, MDOC has clearly acted with a
conscious regard toward the safety and security of the offenders and
staff. It has conducted its duties and responsibilities with the highest
degree of integrity and with a great deal of respect for the value and
dignity of human life.
Plaintiffs refer the Court to several cases as support for the
success of their deliberate indifference claim, but those cases are
34 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1261 Page 44 of 53
distinguishable from the instant action, as they deal with detainees (not
convicted prisoners) and they involved habeas claims for compassionate
release. None of these cases support Plaintiffs’ claim of deliberate
indifference in this case, where the MDOC has swiftly implemented and
enforced robust COVID-19 response measures for the specific purpose of
protecting prisoners from the spread and impact of COVID-19.
Courts have determined that there is no likelihood of success on
the merits of a deliberate indifference claim where robust COVID-19-
related measures, similar to those implemented by the MDOC, have
been put in place. Nellson v. Barnhart, 20-cv-00756, 2020 U.S. Dist.
LEXIS 66971 (D. Colo. Apr. 16, 2020) (concluding that plaintiffs were
not likely to succeed on the merits of their Eighth Amendment claim
where defendants took numerous steps to reduce the risk of
transmission of COVID-19) (Ex. W.); Baxley v. Jividen, No. 3:18-1526,
2020 U.S. Dist. LEXIS 61894 (S.D. W.Va. Apr. 8, 2020) (finding no
deliberate indifference where “[d]efendants . . . demonstrated actual
knowledge of the risk of COVID-19, and regard it with the seriousness
it deserves.”) (Ex. Y.); Amos v. Taylor, Case No. 4:20-CV-7, 2020 U.S.
Dist. LEXIS 72532, *28 (N.D. Miss. Apr. 24, 2020) (rejecting Eighth
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Amendment deliberate indifference claim where the defendant “has
taken and continues to take measures—informed by guidance from the
CDC and medical professionals—to abate and control the spread of the
virus.”) (Ex. Z.); Money v. Pritzker, 20-cv-2094, 2020 U.S. Dist. LEXIS
63599, *61 (ND. Ill. Apr. 10, 2020) (holding that plaintiffs had “no
chance of success” on their deliberate indifference claim where
defendants had come forward with “a lengthy list of the actions” they
had taken to protect inmates) (Ex. AA.)
This Court should apply that same logic here to conclude that
Plaintiffs have no likelihood of success on the merits of their Eighth
Amendment claim and deny Plaintiffs’ request/motion for TRO and/or
injunctive relief.
4. Plaintiffs’ request for early release fails because such relief is not available in a § 1983 claim, it violates the PLRA, and the MDOC does not have authority to release prisoners.
In item 8 of their requested relief, Plaintiffs ask this Court to
order MDOC to: “Release lowest-level security inmates to home
confinement after quarantine for 14 days.” (Compl., R. 1, Page ID # 54.)
There are three reasons this request must be rejected.
36 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1263 Page 46 of 53
First and foremost, an Eighth Amendment § 1983 action is not the
appropriate mechanism to seek the release of an inmate. State
prisoners seeking relief in federal court regarding the duration of their
confinement can only do so by a petition writ of habeas. Preiser v.
Rodriguez, 411 U.S. 475, 487-90 (1973) (holding that a state prisoner
requesting immediate release must do so by a habeas petition, not by a
§ 1983 action); see also Gulley v. Ogondo, Case No. 3:19-cv-612, 2020
U.S. Dist. LEXIS 64193 (D. Conn. Apr. 13, 2020) (applying Preiser to
deny a motion for TRO in a COVID-19-related § 1983 action requesting
release). (Ex. BB.)
Second, Plaintiffs’ request for this Court to unilaterally release
them runs afoul of PLRA. Indeed, the PLRA contains special
procedures for consideration of a “prisoner release order.” 18 U.S.C. §
3626(a)(3). Those procedures apply to “any order, including a
temporary restraining order or preliminary injunctive relief, that has
the purpose or effect of reducing or limiting the prison population, or
that directs the release from or nonadmission of prisoners to a prison.”
18 U.S.C. § 3626(g)(4). A court may not enter a prisoner release order
unless it “has previously entered an order for less intrusive relief that
37 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1264 Page 47 of 53
has failed to remedy the deprivation of the Federal right sought to be
remedied” and “the defendant has had a reasonable amount of time to
comply with the previous court orders.” 18 U.S.C. § 3626(a)(1)-(2).
After those requirements have been satisfied, only a three-judge court
can consider and issue a prisoner release order, and only if it finds by
clear and convincing evidence that “crowding is the primary cause of
the violation of a Federal right” and “no other relief will remedy the
violation.” 18 U.S.C. § 3626(a)(3)(E)(i)-(ii). See Money v. Pritzker, 20-
cv-2094, 2020 U.S. Dist. LEXIS 63599, *31 (N.D. Ill. Apr. 10, 2020) (Ex.
AA.).
Finally, MDOC has no authority to unilaterally release a prisoner
unless that prisoner meets the conditions for parole including reaching
their earliest release date as required by Michigan’s truth-in-sentencing
requirements. See, e.g., Mich. Comp. Laws 791.233(1)(a) and 791.234.
And MDOC has taken all reasonable measures within the confines of its
parole-related authority to safely reduce its prison population. (Ex. D,
pp. 21-22, ¶¶ 28-29.) Again, between April 11, 2020 and May 9, 2020,
995 prisoners were paroled due to MDOC’s reduction efforts. (Id.) As
such, Plaintiffs’ release claim fails.
38 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1265 Page 48 of 53
B. Given the breadth of MDOC’s COVID-19 response efforts, Plaintiffs cannot show that they will suffer irreparable injury absent this Court’s intervention.
Plaintiffs have the burden to show that, without injunctive relief,
they “will suffer actual and imminent harm rather than harm that is
speculative or unsubstantiated.” Abney v. Amgen, Inc., 443 F.3d 540,
552 (6th Cir. 2006) (internal quotation marks and citation omitted).
“The failure to show irreparable harm, by itself, can justify the denial of
preliminary injunctive relief without consideration of the other three
factors.” Essroc Cement Corp. v. CPRIN, Inc., 593 F. Supp. 2d 962, 970
(W.D. Mich. 2008). The demonstration of some irreparable injury is a
sine qua non for issuance of an injunction. Patio Enclosures, Inc. v.
Herbst, 39 Fed. Appx. 964, 967 (6th Cir. 2002).
In COVID-19-related cases, courts have held that where the
corrections department is already implementing the measures being
sought, there is no irreparable harm. (Ex. W, Nellson, pp. **13-16.)
Likewise, courts have determined that the irreparable harm element, as
it relates to COVID-19 claims, should be analyzed by asking: “whether
Plaintiffs . . . will suffer irreparable injuries even after accounting for
39 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1266 Page 49 of 53
the protective measures” put in place by the corrections department.
(Ex. R, Valentine, Ex R, at *14.)
MDOC is implementing every measure Plaintiffs ask for that is
allowed by law to the maximum extent feasible. And, like the general
public, they are at risk of contracting the virus even so. Also, like the
general public, and to an even greater degree, the MDOC is constantly
learning, evaluating, and changing to adapt to this pandemic. After
accounting for the extensive protective measures MDOC has put in
place, Plaintiffs cannot establish irreparable harm in the absence of this
Court’s intervention, and their motion for TRO and/or injunctive relief
should be denied.
C. Both the public interest and that of the MDOC strongly weigh against a TRO or injunction.
Departments of Corrections enjoy considerable latitude in the
administration of state prisons. Jones v. North Carolina Prisoners’
Labor Union, 433 U.S. 119, 126 (1977) (“Because the realities of
running a penal institution are complex and difficult, we have also
recognized the wide-ranging deference to be accorded the decisions of
prison administrators.”); see also Hanna v. Toner, 630 F.2d 442, 444
(6th Cir. 1980) (noting that “courts, especially federal courts, should be
40 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1267 Page 50 of 53
reluctant to become involved in the internal administration of state
prisons.”). Thus, MDOC has a strong interest in promulgating and
implementing its own policies for prison management. And an
injunction prohibiting MDOC from doing so would be harmful. See
Maryland v. King, ___ U.S. ___; 133 S. Ct. 1, 3 (2012) (“[A]ny time a
State is enjoined by a court from effectuating statutes15 enacted by
representative of its people, it suffers a form of irreparable injury.”); see
also Glover v. Johnson, 855 F.2d 277, 286-87 (6th Cir. 1988)
(recognizing that any interference by the federal court in the
administration of state prisons is necessarily disruptive).
Further, because responses to this novel and ever-evolving
COVID-19 pandemic necessarily change on a rapid basis, any injunction
requiring the MDOC to implement certain, specific measures, and only
those measures, within certain timeframes, as Plaintiffs seek would
15 While these are MDOC policies and not statutes at issue, this rationale was applied by the Fifth Circuit to corrections policies because the legislature had assigned prison policymaking duties to the corrections department. (Ex. R, Valentine, at *11.) The same is true in Michigan. The MDOC Director has been delegated “full power and authority to supervise and control the affairs of the department, including policymaking authority by the Michigan Legislature.” Mich. Comp. Laws 791.203.
41 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1268 Page 51 of 53
actually inhibit MDOC’s ability to effectively combat this virus and
protect its prisoners. Other courts have already recognized this fact.
Valentine, Ex. R, p. *12, (finding harm to the corrections department
“because the district court’s order interferes with the rapidly changing
and flexible system-wide approach that [it] used to respond to the
pandemic. . . .”); Swain, Ex. V, at *15 (noting that the district court’s
injunction “hamstrings [defendants] with years of experience running
correctional facilities, and the elected officials they report to, from
acting with dispatch to respond to this unprecedented [COVID-19]
pandemic); Money, Ex. AA, at *55 (“The judiciary is ill-equipped to
manage decisions about how best to manage any inmate population—let
alone a statewide population of tens of thousands of people scattered
across more than a dozen facilities. And the concern about institutional
competence is especially great where, as here, there is an ongoing, fast-
moving public health emergency.”)
Finally, while the public certainly has an interest in ensuring the
safety and well-being of prison inmates, it also has an interest in a well-
regulated and operated prison system, as well as an interest in ensuring
convicted offenders complete their required sentences.
42 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1269 Page 52 of 53
For all these reasons, both the public interest and that of MDOC
weigh heavily against the grant of a TRO and/or injunction.
CONCLUSION AND RELIEF REQUESTED
Plaintiffs are not likely to succeed on the merits of their Eighth
Amendment claim—their requested relief is barred by the Eleventh
Amendment, they have failed to exhaust their administrative remedies
as required by the PLRA, they cannot show that MDOC has acted
deliberately indifferent to their health and safety in the face of the
COVID-19 pandemic, and they cannot seek release in the context of a §
1983 action. Additionally, given the multitude of protections that have
already put in place by MDOC, Plaintiffs cannot establish that they will
be irreparably harmed in the absence of this Court’s intervention.
Finally, both the public and MDOC’s interests weigh heavily against a
grant of injunctive relief.
Therefore, MDOC respectfully requests that this Court deny
Plaintiffs’ motion for a TRO and/or preliminary injunction and award
costs and attorney fees associated with defending this motion.
Respectfully submitted,
Dana Nessel Attorney General
43 Case 2:20-cv-11053-MAG-RSW ECF No. 27 filed 05/12/20 PageID.1270 Page 53 of 53
/s/Kevin J. O’Dowd Kevin J. O’Dowd (P39383) Assistant Attorney General Attorney for State Defendants Michigan Dept. of Attorney General MDOC Division P.O. Box 30217 Lansing, MI 48909 (517) 335-3055 [email protected]
Dated: May 12, 2020
CERTIFICATE OF SERVICE
I hereby certify that on May 12, 2020, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing as well as via US Mail to all non-ECF participants.
/s/Kevin J. O’Dowd Kevin J. O’Dowd (P39383)
44 Case 2:20-cv-11053-MAG-RSW ECF No. 27-1 filed 05/12/20 PageID.1271 Page 1 of 3
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
ELLIOTT ABRAMS, CRAIG SEEGMILLER, VINCENT GLASS, ROBERT REEVES, and LAMONT HEARD, individually, and on No. 2:20-cv-11053 behalf of all others similarly situated, HON. MARK A. GOLDSMITH
Plaintiffs, MAG. R. STEVEN WHALEN
INDEX OF EXHIBITS WILLIS CHAPMAN, NOAH NAGY, MELINDA BRAMAN, BRYAN MORRISON, and HEIDI WASHINGTON,
Defendants.
Daniel Manville (P39731) Kevin J. O’Dowd (P39383) Attorney for Plaintiffs Kristin M. Heyse (P64353) Civil Rights Clinic, Scott A. Mertens (P60069) MSU College of Law Sara E. Trudgeon (P82155) P.O. Box 1570 Cori E. Barkman (P61470) East Lansing, MI 48823 Allan J. Soros (P43702) (517) 432-6866 Assistants Attorney General [email protected] Attorneys for MDOC Defendants MDOC Division P. O. Box 30217 Lansing, MI 48909 (517) 335-3055 [email protected]
Case 2:20-cv-11053-MAG-RSW ECF No. 27-1 filed 05/12/20 PageID.1272 Page 2 of 3
Kevin Ernst (P44223) Attorney for Plaintiffs Ernst Charara & Lovell, PLC 645 Griswold, Ste 4100 Detroit, MI 48226 313-965-5555 [email protected] /
DEFENDANTS’ RESPONSE BRIEF IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER & INJUNCTIVE RELIEF
INDEX OF EXHIBITS
Exhibit A ...... 1-21-20 CDC Press Release Exhibit B ...... Executive Order 2020-4 Exhibit C ...... CDC 3-23-20 Interim Guidelines Exhibit D ...... Dir. Washington Affidavit Exhibit E ...... 3-17-20 MDOC Press Release Exhibit F ...... Dr. McIntyre Affidavit Exhibit G ...... Executive Order 2020-29 Exhibit H ...... DOM 2020-30 Exhibit I ...... 4-3-20 CDC Recommendation Exhibit J ...... Executive Order 2020-59 Exhibit K ...... Comparison of CDC Guidelines & MDOC Actions Exhibit L ...... Warden Morrison Affidavit Exhibit M ...... Warden Braman Affidavit Exhibit N ...... Warden Nagy Affidavit Exhibit O ...... Warden Chapman Affidavit Exhibit P ...... ADD Bush Affidavit Exhibit Q ...... Social Distancing Example Photos Exhibit R ...... Valentine, et al. v Collier, et al. Exhibit S ...... Marlowe v LeBlanc Exhibit T ...... Burnett v Howard Exhibit U ...... PD 03.02.130, eff. 3-18-10 Exhibit V ...... Swain v Junior Exhibit W ...... Nellson v Barnhart Exhibit X ...... Dorm Chart
Case 2:20-cv-11053-MAG-RSW ECF No. 27-1 filed 05/12/20 PageID.1273 Page 3 of 3
Exhibit Y ...... Baxley v Jividen Exhibit Z ...... Amos v Taylor Exhibit AA ...... Money v Pritzker Exhibit BB ...... Gulley v Ogondo
Case 2:20-cv-11053-MAG-RSW ECF No. 27-2 filed 05/12/20 PageID.1274 Page 1 of 3 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT A
Case 2:20-cv-11053-MAG-RSW ECF No. 27-2 filed 05/12/20 PageID.1275 Page 2 of 3
CDC Newsroom
First Travel-related Case of 2019 Novel Coronavirus Detected in United States Press Release
For Immediate Release: Tuesday, January 21, 2020 Contact: Media Relations (404) 639-3286
The Centers for Disease Control and Prevention (CDC) today confirmed the first case of 2019 Novel Coronavirus (2019- nCoV) in the United States in the state of Washington. The patient recently returned from Wuhan, China, where an outbreak of pneumonia caused by this novel coronavirus has been ongoing since December 2019. While originally thought to be spreading from animal-to-person, there are growing indications that limited person-to-person spread is happening. It’s unclear how easily this virus is spreading between people.
The patient from Washington with confirmed 2019-nCoV infection returned to the United States from Wuhan on January 15, 2020. The patient sought care at a medical facility in the state of Washington, where the patient was treated for the illness. Based on the patient’s travel history and symptoms, healthcare professionals suspected this new coronavirus. A clinical specimen was collected and sent to CDC overnight, where laboratory testing yesterday confirmed the diagnosis via CDC’s Real time Reverse Transcription-Polymerase Chain Reaction (rRT-PCR) test.
CDC has been proactively preparing for the introduction of 2019-nCoV in the United States for weeks, including:
First alerting clinicians on January 8, 2020, to be on the look-out for patients with respiratory symptoms and a history of travel to Wuhan, China. Developing guidance for clinicians for testing and management of 2019-nCoV, as well as guidance for home care of patients with 2019-nCoV. Developing a diagnostic test to detect this virus in clinical specimens, accelerating the time it takes to detect infection. Currently, testing for this virus must take place at CDC, but in the coming days and weeks, CDC will share these tests with domestic and international partners On January 17, 2020, CDC began implementing public health entry screening at San Francisco (SFO), New York (JFK), and Los Angeles (LAX) airports. This week CDC will add entry health screening at two more airports – Atlanta (ATL) and Chicago (ORD). CDC has activated its Emergency Operations Center to better provide ongoing support to the 2019-nCoV response.
CDC is working closely with the state of Washington and local partners. A CDC team has been deployed to support the ongoing investigation in the state of Washington, including potentially tracing close contacts to determine if anyone else has become ill.
Coronaviruses are a large family of viruses, some causing respiratory illness in people and others circulating among animals including camels, cats and bats. Rarely, animal coronaviruses can evolve and infect people and then spread between people, such as has been seen with Severe Acute Respiratory Syndrome (SARS) and Middle East Respiratory Syndrome (MERS). When person-to-person spread has occurred with SARS and MERS, it is thought to happen via respiratory droplets with close contacts, similar to how influenza and other respiratory pathogens spread. The situation with regard to 2019-nCoV is still unclear. While severe illness, including illness resulting in several deaths, has been reported in China, other patients have had milder illness and been discharged. Symptoms associated with this virus have included fever, cough and trouble breathing. The confirmation that some limited person-to-person spread with this virus is occurring in Asia raises the level of concern about this virus, but CDC continues to believe the risk of 2019-nCoV to the American public at large remains low at this time. Case 2:20-cv-11053-MAG-RSW ECF No. 27-2 filed 05/12/20 PageID.1276 Page 3 of 3
This is a rapidly evolving situation. CDC will continue to update the public as circumstances warrant.
For more information about the current outbreak in China, visit: https://www.cdc.gov/coronavirus/novel-coronavirus- 2019.html
For more information about Coronaviruses: https://www.cdc.gov/coronavirus/index.html For travel health information: https://wwwnc.cdc.gov/travel/notices/watch/pneumonia-china
### U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
CDC works 24/7 protecting America’s health, safety and security. Whether disease start at home or abroad, are curable or preventable, chronic or acute, or from human activity or deliberate attack, CDC responds to America’s most pressing health threats. CDC is headquartered in Atlanta and has experts located throughout the United States and the world.
Page last reviewed: January 21, 2020 Case 2:20-cv-11053-MAG-RSW ECF No. 27-3 filed 05/12/20 PageID.1277 Page 1 of 4 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT B
5/6/2020 Case 2:20-cv-11053-MAG-RSWWhitmer ECF- Executive No. Order 27-3 2020-04 filed - Declaration 05/12/20 of State PageID.1278 of Emergency Page 2 of 4
Executive Order 2020-04 - Declaration of State of Emergency
EXECUTIVE ORDER
No. 2020-4
Declaration of State of Emergency
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus that had not been previously identified in humans and can easily spread from person to person.
COVID-19 has been identified as the cause of an outbreak of respiratory illness first detected in Wuhan City in the Hubei Province of China. Person-to-person spread of the virus has occurred in the United States, with some of those occurring in people with no travel history and no known source of exposure. On January 31, 2020, the United States Department of Health and Human Services Secretary Alex Azar declared a public health emergency for COVID-19, and affected state and local governments have also declared states of emergency.
The State of Michigan has been taking proactive steps to prevent and prepare for the spread of this disease. On February 3, 2020, the Michigan Department of Health and Human Services (MDHHS) activated the Community Health Emergency Coordination Center, and has been working diligently with local health departments, health systems, and medical providers throughout Michigan to make sure appropriate screening and preparations for COVID-19 are being made. On February 28, 2020, I activated the State Emergency Operations Center to maximize coordination with state, local and federal agencies, as well as private partners, and to help prevent the spread of the disease. On March 3, 2020, I created four task forces comprising key state government agencies to coordinate the state’s response and work closely with the appropriate community and non-governmental stakeholders to combat the spread of COVID-19 and assess the impact it may have on Michiganders’ day-to-day lives. And
https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-521576--,00.html 1/3 5/6/2020 Case 2:20-cv-11053-MAG-RSWWhitmer ECF- Executive No. Order 27-3 2020-04 filed - Declaration 05/12/20 of State PageID.1279 of Emergency Page 3 of 4 throughout this time, the State has been working with schools, businesses, medical providers, local health departments, and residents to make sure they have the information they need to prepare for potential cases.
On March 10, 2020, MDHHS identified the first two presumptive-positive cases of COVID-19 in Michigan.
Section 1 of article 5 of the Michigan Constitution of 1963 vests the executive power of the State of Michigan in the governor.
The Emergency Management Act, 1976 PA 390, as amended, MCL 30.403(4), provides that “[t]he governor shall, by executive order or proclamation, declare a state of emergency if he or she finds that an emergency has occurred or that the threat of an emergency exists.”
The Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31(1), provides that “[d]uring times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, . . . the governor may proclaim a state of emergency and designate the area involved.”
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. A state of emergency is declared across the State of Michigan.
2. The Emergency Management and Homeland Security Division of the Department of State Police must coordinate and maximize all state efforts that may be activated to state service to assist local governments and officials and may call upon all state departments to utilize available resources to assist.
https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-521576--,00.html 2/3 5/6/2020 Case 2:20-cv-11053-MAG-RSWWhitmer ECF- Executive No. Order 27-3 2020-04 filed - Declaration 05/12/20 of State PageID.1280 of Emergency Page 4 of 4 3. The state of emergency is terminated when emergency conditions no longer exist and appropriate programs have been implemented to recover from any effects of the emergency conditions, consistent with the legal authorities upon which this declaration is based and any limits on duration imposed by those authorities.
Given under my hand and the Great Seal of the State of Michigan.
https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-521576--,00.html 3/3 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1281 Page 1 of 27 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT C
Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1282 Page 2 of 27 Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities
Tis interim guidance is based on what is currently known about the transmission and severity of corona- virus disease 2019 (COVID-19) as of March 23, 2020. Te US Centers for Disease Control and Prevention (CDC) will update this guidance as needed and as additional information becomes available. Please check the following CDC website periodically for updated interim guidance: https://www.cdc.gov/coronavirus/2019-ncov/index.html. Tis document provides interim guidance specific for correctional facilities and detention centers during the outbreak of COVID-19, to ensure continuation of essential public services and protection of the health and safety of incarcerated and detained persons, staff, and visitors. Recommendations may need to be revised as more information becomes available.
Who is the intended audience In this guidance for this guidance? • Who is the intended audience for this Tis document is intended to guidance? provide guiding principles for • Why is this guidance being issued? healthcare and non-healthcare • What topics does this guidance administrators of correctional include? and detention facilities (including but not limited • Definitions of Commonly Used Terms to federal and state prisons, • Facilities with Limited Onsite local jails, and detention centers), Healthcare Services law enforcement agencies that have custodial authority for detained populations (i.e., US • COVID-19 Guidance for Correctional Immigration and Customs Enforcement and US Marshals Facilities Service), and their respective health departments, to assist in • Operational Preparedness preparing for potential introduction, spread, and mitigation of COVID-19 in their facilities. In general, the document uses • Prevention terminology referring to correctional environments but can also • Management be applied to civil and pre-trial detention settings. • Infection Control Tis guidance will not necessarily address every possible • Clinical Care of COVID-19 Cases custodial setting and may not use legal terminology specific • Recommended PPE and PPE Training to individual agencies’ authorities or processes. Te guidance may need to be adapted based on individual facilities’ for Staff and Incarcerated/Detained physical space, staffing, population, operations, and Persons other resources and conditions. Facilities should contact • Verbal Screening and Temperature CDC or their state, local, territorial, and/or tribal public health Check Protocols for Incarcerated/ department if they need assistance in applying these principles Detained Persons, Staff, and Visitors or addressing topics that are not specifically covered in this guidance.
cdc.gov/coronavirus
CS 316182-A 03/27/2020 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1283 Page 3 of 27 Why is this guidance being issued? Correctional and detention facilities can include custody, housing, education, recreation, healthcare, food service, and workplace components in a single physical setting. Te integration of these components presents unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors. Consistent application of specific preparation, prevention, and management measures can help reduce the risk of transmission and severe disease from COVID-19. • Incarcerated/detained persons live, work, eat, study, and recreate within congregate environments, heightening the potential for COVID-19 to spread once introduced. • In most cases, incarcerated/detained persons are not permitted to leave the facility. • Tere are many opportunities for COVID-19 to be introduced into a correctional or detention facility, including daily staff ingress and egress; transfer of incarcerated/detained persons between facilities and systems, to court appearances, and to outside medical visits; and visits from family, legal representatives, and other community members. Some settings, particularly jails and detention centers, have high turnover, admitting new entrants daily who may have been exposed to COVID-19 in the surrounding community or other regions. • Persons incarcerated/detained in a particular facility often come from a variety of locations, increasing the potential to introduce COVID-19 from different geographic areas. • Options for medical isolation of COVID-19 cases are limited and vary depending on the type and size of facility, as well as the current level of available capacity, which is partly based on medical isolation needs for other conditions. • Adequate levels of custody and healthcare staffing must be maintained to ensure safe operation of the facility, and options to practice social distancing through work alternatives such as working from home or reduced/alternate schedules are limited for many staff roles. • Correctional and detention facilities can be complex, multi-employer settings that include government and private employers. Each is organizationally distinct and responsible for its own operational, personnel, and occupational health protocols and may be prohibited from issuing guidance or providing services to other employers or their staff within the same setting. Similarly, correctional and detention facilities may house individuals from multiple law enforcement agencies or jurisdictions subject to different policies and procedures. • Incarcerated/detained persons and staff may have medical conditions that increase their risk of severe disease from COVID-19. • Because limited outside information is available to many incarcerated/detained persons, unease and misinformation regarding the potential for COVID-19 spread may be high, potentially creating security and morale challenges. • Te ability of incarcerated/detained persons to exercise disease prevention measures (e.g., frequent handwashing) may be limited and is determined by the supplies provided in the facility and by security considerations. Many facilities restrict access to soap and paper towels and prohibit alcohol-based hand sanitizer and many disinfectants. • Incarcerated persons may hesitate to report symptoms of COVID-19 or seek medical care due to co-pay requirements and fear of isolation. CDC has issued separate COVID-19 guidance addressing healthcare infection control and clinical care of COVID-19 cases as well as close contacts of cases in community-based settings. Where relevant, commu- nity-focused guidance documents are referenced in this document and should be monitored regularly for updates, but they may require adaptation for correctional and detention settings.
2 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1284 Page 4 of 27 Tis guidance document provides additional recommended best practices specifically for correctional and detention facilities. At this time, different facility types (e.g., prison vs. jail) and sizes are not differ- entiated. Administrators and agencies should adapt these guiding principles to the specific needs of their facility. What topics does this guidance include? Te guidance below includes detailed recommendations on the following topics related to COVID-19 in correc- tional and detention settings: √ Operational and communications preparations for COVID-19 √ Enhanced cleaning/disinfecting and hygiene practices √ Social distancing strategies to increase space between individuals in the facility √ How to limit transmission from visitors √ Infection control, including recommended personal protective equipment (PPE) and potential alternatives during PPE shortages √ Verbal screening and temperature check protocols for incoming incarcerated/detained individuals, staff, and visitors √ Medical isolation of confirmed and suspected cases and quarantine of contacts, including considerations for cohorting when individual spaces are limited √ Healthcare evaluation for suspected cases, including testing for COVID-19 √ Clinical care for confirmed and suspected cases √ Considerations for persons at higher risk of severe disease from COVID-19 Defnitions of Commonly Used Terms Close contact of a COVID-19 case—In the context of COVID-19, an individual is considered a close contact if they a) have been within approximately 6 feet of a COVID-19 case for a prolonged period of time or b) have had direct contact with infectious secretions from a COVID-19 case (e.g., have been coughed on). Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient). Cohorting—Cohorting refers to the practice of isolating multiple laboratory-confirmed COVID-19 cases together as a group, or quarantining close contacts of a particular case together as a group. Ideally, cases should be isolated individually, and close contacts should be quarantined individually. However, some correctional facilities and detention centers do not have enough individual cells to do so and must consider cohorting as an alternative. See Quarantine and Medical Isolation sections below for specific details about ways to implement cohorting to minimize the risk of disease spread and adverse health outcomes. Community transmission of COVID-19—Community transmission of COVID-19 occurs when individuals acquire the disease through contact with someone in their local community, rather than through travel to an affected location. Once community transmission is identified in a particular area, correctional facilities and detention centers are more likely to start seeing cases inside their walls. Facilities should consult with local public health departments if assistance is needed in determining how to define “local community” in the context of COVID-19 spread. However, because all states have reported cases, all facilities should be vigilant for introduction into their populations.
3 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1285 Page 5 of 27 Confirmed vs. Suspected COVID-19 case—A confirmed case has received a positive result from a COVID-19 laboratory test, with or without symptoms. A suspected case shows symptoms of COVID-19 but either has not been tested or is awaiting test results. If test results are positive, a suspected case becomes a confirmed case. Incarcerated/detained persons—For the purpose of this document, “incarcerated/detained persons” refers to persons held in a prison, jail, detention center, or other custodial setting where these guidelines are generally applicable. Te term includes those who have been sentenced (i.e., in prisons) as well as those held for pre-trial (i.e., jails) or civil purposes (i.e, detention centers). Although this guidance does not specifically reference individuals in every type of custodial setting (e.g., juvenile facilities, community confinement facil- ities), facility administrators can adapt this guidance to apply to their specific circumstances as needed. Medical Isolation—Medical isolation refers to confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission. Medical isolation ends when the individual meets pre-established clinical and/or testing criteria for release from isolation, in consultation with clinical providers and public health officials (detailed in guidance below). In this context, isolation does NOT refer to punitive isolation for behavioral infractions within the custodial setting. Staff are encouraged to use the term “medical isolation” to avoid confusion. Quarantine—Quarantine refers to the practice of confining individuals who have had close contact with a COVID-19 case to determine whether they develop symptoms of the disease. Quarantine for COVID-19 should last for a period of 14 days. Ideally, each quarantined individual would be quarantined in a single cell with solid walls and a solid door that closes. If symptoms develop during the 14-day period, the individual should be placed under medical isolation and evaluated for COVID-19. If symptoms do not develop, movement restrictions can be lifted, and the individual can return to their previous residency status within the facility. Social Distancing—Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic). Social distancing strategies can be applied on an individual level (e.g., avoiding physical contact), a group level (e.g., canceling group activities where individuals will be in close contact), and an operational level (e.g., rearranging chairs in the dining hall to increase distance between them). Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID-19. Additional information about social distancing, including information on its use to reduce the spread of other viral illnesses, is available in this CDC publication. Staff—In this document, “staff” refers to all public sector employees as well as those working for a private contractor within a correctional facility (e.g., private healthcare or food service). Except where noted, “staff” does not distinguish between healthcare, custody, and other types of staff including private facility operators. Symptoms—Symptoms of COVID-19 include fever, cough, and shortness of breath. Like other respiratory infections, COVID-19 can vary in severity from mild to severe. When severe, pneumonia, respiratory failure, and death are possible. COVID-19 is a novel disease, therefore the full range of signs and symptoms, the clinical course of the disease, and the individuals and populations most at risk for disease and complications are not yet fully understood. Monitor the CDC website for updates on these topics. Facilities with Limited Onsite Healthcare Services Although many large facilities such as prisons and some jails usually employ onsite healthcare staff and have the capacity to evaluate incarcerated/detained persons for potential illness within a dedicated healthcare space, many smaller facilities do not. Some of these facilities have access to on-call healthcare staff or providers who visit the facility every few days. Others have neither onsite healthcare capacity nor onsite medical isolation/quarantine space and must transfer ill patients to other correctional or detention facilities or local hospitals for evaluation and care.
4 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1286 Page 6 of 27 Te majority of the guidance below is designed to be applied to any correctional or detention facility, either as written or with modifications based on a facility’s individual structure and resources. However, topics related to healthcare evaluation and clinical care of confirmed and suspected COVID-19 cases and their close contacts may not apply directly to facilities with limited or no onsite healthcare services. It will be especially important for these types of facilities to coordinate closely with their state, local, tribal, and/or territorial health department when they encounter confirmed or suspected cases among incarcerated/detained persons or staff, in order to ensure effective medical isolation and quarantine, necessary medical evaluation and care, and medical transfer if needed. Te guidance makes note of strategies tailored to facilities without onsite healthcare where possible. Note that all staff in any sized facility, regardless of the presence of onsite healthcare services, should observe guidance on recommended PPE in order to ensure their own safety when interacting with confirmed and suspected COVID-19 cases. Facilities should make contingency plans for the likely event of PPE shortages during the COVID-19 pandemic. COVID-19 Guidance for Correctional Facilities Guidance for correctional and detention facilities is organized into 3 sections: Operational Preparedness, Prevention, and Management of COVID-19. Recommendations across these sections can be applied simulta- neously based on the progress of the outbreak in a particular facility and the surrounding community. • Operational Preparedness. Tis guidance is intended to help facilities prepare for potential COVID-19 transmission in the facility. Strategies focus on operational and communications planning and personnel practices. • Prevention. Tis guidance is intended to help facilities prevent spread of COVID-19 from outside the facility to inside. Strategies focus on reinforcing hygiene practices, intensifying cleaning and disinfection of the facility, screening (new intakes, visitors, and staff), continued communication with incarcerated/ detained persons and staff, and social distancing measures (increasing distance between individuals). • Management. Tis guidance is intended to help facilities clinically manage confirmed and suspected COVID-19 cases inside the facility and prevent further transmission. Strategies include medical isolation and care of incarcerated/detained persons with symptoms (including considerations for cohorting), quarantine of cases’ close contacts, restricting movement in and out of the facility, infection control practices for individuals interacting with cases and quarantined contacts or contaminated items, intensified social distancing, and cleaning and disinfecting areas visited by cases. Operational Preparedness Administrators can plan and prepare for COVID-19 by ensuring that all persons in the facility know the symptoms of COVID-19 and how to respond if they develop symptoms. Other essential actions include developing contingency plans for reduced workforces due to absences, coordinating with public health and correctional partners, and communicating clearly with staff and incarcerated/detained persons about these preparations and how they may temporarily alter daily life. Communication & Coordination √ Develop information-sharing systems with partners. ο Identify points of contact in relevant state, local, tribal, and/or territorial public health departments before cases develop. Actively engage with the health department to understand in advance which entity has jurisdiction to implement public health control measures for COVID-19 in a particular correctional or detention facility. ο Create and test communications plans to disseminate critical information to incarcerated/detained persons, staff, contractors, vendors, and visitors as the pandemic progresses.
5 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1287 Page 7 of 27 ο Communicate with other correctional facilities in the same geographic area to share information including disease surveillance and absenteeism patterns among staff. ο Where possible, put plans in place with other jurisdictions to prevent confirmed and suspected COVID-19 cases and their close contacts from being transferred between jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding. ο Stay informed about updates to CDC guidance via the CDC COVID-19 website as more information becomes known. √ Review existing pandemic flu, all-hazards, and disaster plans, and revise for COVID-19. ο Ensure that physical locations (dedicated housing areas and bathrooms) have been identified to isolate confirmed COVID-19 cases and individuals displaying COVID-19 symptoms, and to quarantine known close contacts of cases. (Medical isolation and quarantine locations should be separate). Te plan should include contingencies for multiple locations if numerous cases and/ or contacts are identified and require medical isolation or quarantine simultaneously. See Medical Isolation and Quarantine sections below for details regarding individual medical isolation and quarantine locations (preferred) vs. cohorting. ο Facilities without onsite healthcare capacity should make a plan for how they will ensure that suspected COVID-19 cases will be isolated, evaluated, tested (if indicated), and provided necessary medical care. ο Make a list of possible social distancing strategies that could be implemented as needed at different stages of transmission intensity. ο Designate officials who will be authorized to make decisions about escalating or de-escalating response efforts as the epidemiologic context changes. √ Coordinate with local law enforcement and court officials. ο Identify lawful alternatives to in-person court appearances, such as virtual court, as a social distancing measure to reduce the risk of COVID-19 transmission. ο Explore strategies to prevent over-crowding of correctional and detention facilities during a community outbreak. √ Post signage throughout the facility communicating the following: ο For all: symptoms of COVID-19 and hand hygiene instructions ο For incarcerated/detained persons: report symptoms to staff ο For staff: stay at home when sick; if symptoms develop while on duty, leave the facility as soon as possible and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms including self-isolating at home, contacting their healthcare provider as soon as possible to determine whether they need to be evaluated and tested, and contacting their supervisor. ο Ensure that signage is understandable for non-English speaking persons and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision. Personnel Practices √ Review the sick leave policies of each employer that operates in the facility. ο Review policies to ensure that they actively encourage staff to stay home when sick. ο If these policies do not encourage staff to stay home when sick, discuss with the contract company. ο Determine which officials will have the authority to send symptomatic staff home.
6 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1288 Page 8 of 27 √ Identify staff whose duties would allow them to work from home. Where possible, allowing staff to work from home can be an effective social distancing strategy to reduce the risk of COVID-19 transmission. ο Discuss work from home options with these staff and determine whether they have the supplies and technological equipment required to do so. ο Put systems in place to implement work from home programs (e.g., time tracking, etc.). √ Plan for staff absences. Staff should stay home when they are sick, or they may need to stay home to care for a sick household member or care for children in the event of school and childcare dismissals. ο Allow staff to work from home when possible, within the scope of their duties. ο Identify critical job functions and plan for alternative coverage by cross-training staff where possible. ο Determine minimum levels of staff in all categories required for the facility to function safely. If possible, develop a plan to secure additional staff if absenteeism due to COVID-19 threatens to bring staffing to minimum levels. ο Consider increasing keep on person (KOP) medication orders to cover 30 days in case of healthcare staff shortages. √ Consider offering revised duties to staff who are at higher risk of severe illness with COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions including lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Facility administrators should consult with their occupational health providers to determine whether it would be allowable to reassign duties for specific staff members to reduce their likelihood of exposure to COVID-19. √ Offer the seasonal influenza vaccine to all incarcerated/detained persons (existing population and new intakes) and staff throughout the influenza season. Symptoms of COVID-19 are similar to those of influenza. Preventing influenza cases in a facility can speed the detection of COVID-19 cases and reduce pressure on healthcare resources. √ Reference the Occupational Safety and Health Administration website for recommendations regarding worker health. √ Review CDC’s guidance for businesses and employers to identify any additional strategies the facility can use within its role as an employer. Operations & Supplies √ Ensure that sufficient stocks of hygiene supplies, cleaning supplies, PPE, and medical supplies (consistent with the healthcare capabilities of the facility) are on hand and available, and have a plan in place to restock as needed if COVID-19 transmission occurs within the facility. ο Standard medical supplies for daily clinic needs ο Tissues ο Liquid soap when possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing. ο Hand drying supplies ο Alcohol-based hand sanitizer containing at least 60% alcohol (where permissible based on security restrictions) ο Cleaning supplies, including EPA-registered disinfectants effective against the virus that causes COVID-19
7 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1289 Page 9 of 27 ο Recommended PPE (facemasks, N95 respirators, eye protection, disposable medical gloves, and disposable gowns/one-piece coveralls). See PPE section and Table 1 for more detailed information, including recommendations for extending the life of all PPE categories in the event of shortages, and when face masks are acceptable alternatives to N95s. ο Sterile viral transport media and sterile swabs to collect nasopharyngeal specimens if COVID-19 testing is indicated √ Make contingency plans for the probable event of PPE shortages during the COVID-19 pandemic, particularly for non-healthcare workers. ο See CDC guidance optimizing PPE supplies. √ Consider relaxing restrictions on allowing alcohol-based hand sanitizer in the secure setting where security concerns allow. If soap and water are not available, CDC recommends cleaning hands with an alcohol-based hand sanitizer that contains at least 60% alcohol. Consider allowing staff to carry individual-sized bottles for their personal hand hygiene while on duty. √ Provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing. (See Hygiene section below for additional detail regarding recommended frequency and protocol for hand washing.) ο Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing. √ If not already in place, employers operating within the facility should establish a respiratory protection program as appropriate, to ensure that staff and incarcerated/detained persons are fit tested for any respiratory protection they will need within the scope of their responsibilities. √ Ensure that staff and incarcerated/detained persons are trained to correctly don, doff, and dispose of PPE that they will need to use within the scope of their responsibilities. See Table 1 for recommended PPE for incarcerated/detained persons and staff with varying levels of contact with COVID-19 cases or their close contacts. Prevention Cases of COVID-19 have been documented in all 50 US states. Correctional and detention facilities can prevent introduction of COVID-19 from the community and reduce transmission if it is already inside by reinforcing good hygiene practices among incarcerated/detained persons, staff, and visitors (including increasing access to soap and paper towels), intensifying cleaning/disinfection practices, and implementing social distancing strategies. Because many individuals infected with COVID-19 do not display symptoms, the virus could be present in facilities before cases are identified. Both good hygiene practices and social distancing are critical in preventing further transmission. Operations √ Stay in communication with partners about your facility’s current situation. ο State, local, territorial, and/or tribal health departments ο Other correctional facilities √ Communicate with the public about any changes to facility operations, including visitation programs.
8 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1290 Page 10 of 27 √ Restrict transfers of incarcerated/detained persons to and from other jurisdictions and facilities unless necessary for medical evaluation, medical isolation/quarantine, clinical care, extenuating security concerns, or to prevent overcrowding. ο Strongly consider postponing non-urgent outside medical visits. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to properly isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport. √ Implement lawful alternatives to in-person court appearances where permissible. √ Where relevant, consider suspending co-pays for incarcerated/detained persons seeking medical evaluation for respiratory symptoms. √ Limit the number of operational entrances and exits to the facility. Cleaning and Disinfecting Practices √ Even if COVID-19 cases have not yet been identified inside the facility or in the surrounding community, begin implementing intensified cleaning and disinfecting procedures according to the recommendations below. These measures may prevent spread of COVID-19 if introduced. √ Adhere to CDC recommendations for cleaning and disinfection during the COVID-19 response. Monitor these recommendations for updates. ο Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones). ο Staff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs). ο Use household cleaners and EPA-registered disinfectants effective against the virus that causes COVID-19 as appropriate for the surface, following label instructions. Tis may require lifting restrictions on undiluted disinfectants. ο Labels contain instructions for safe and effective use of the cleaning product, including precautions that should be taken when applying the product, such as wearing gloves and making sure there is good ventilation during use. √ Consider increasing the number of staff and/or incarcerated/detained persons trained and responsible for cleaning common areas to ensure continual cleaning of these areas throughout the day. √ Ensure adequate supplies to support intensified cleaning and disinfection practices, and have a plan in place to restock rapidly if needed.
9 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1291 Page 11 of 27 Hygiene √ Reinforce healthy hygiene practices, and provide and continually restock hygiene supplies throughout the facility, including in bathrooms, food preparation and dining areas, intake areas, visitor entries and exits, visitation rooms and waiting rooms, common areas, medical, and staff-restricted areas (e.g., break rooms). √ Encourage all persons in the facility to take the following actions to protect themselves and others from COVID-19. Post signage throughout the facility, and communicate this information verbally on a regular basis. Sample signage and other communications materials are available on the CDC website. Ensure that materials can be understood by non-English speakers and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision. ο Practice good cough etiquette: Cover your mouth and nose with your elbow (or ideally with a tissue) rather than with your hand when you cough or sneeze, and throw all tissues in the trash immediately after use. ο Practice good hand hygiene: Regularly wash your hands with soap and water for at least 20 seconds, especially after coughing, sneezing, or blowing your nose; after using the bathroom; before eating or preparing food; before taking medication; and after touching garbage. ο Avoid touching your eyes, nose, or mouth without cleaning your hands first. ο Avoid sharing eating utensils, dishes, and cups. ο Avoid non-essential physical contact. √ Provide incarcerated/detained persons and staff no-cost access to: ο Soap—Provide liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin, as this would discourage frequent hand washing. ο Running water, and hand drying machines or disposable paper towels for hand washing ο Tissues and no-touch trash receptacles for disposal √ Provide alcohol-based hand sanitizer with at least 60% alcohol where permissible based on security restrictions. Consider allowing staff to carry individual-sized bottles to maintain hand hygiene. √ Communicate that sharing drugs and drug preparation equipment can spread COVID-19 due to potential contamination of shared items and close contact between individuals. Prevention Practices for Incarcerated/Detained Persons √ Perform pre-intake screening and temperature checks for all new entrants. Screening should take place in the sallyport, before beginning the intake process, in order to identify and immediately place individuals with symptoms under medical isolation. See Screening section below for the wording of screening questions and a recommended procedure to safely perform a temperature check. Staff performing temperature checks should wear recommended PPE (see PPE section below). ο If an individual has symptoms of COVID-19 (fever, cough, shortness of breath): Require the individual to wear a face mask. Ensure that staff who have direct contact with the symptomatic individual wear recommended PPE. Place the individual under medical isolation (ideally in a room near the screening location, rather than transporting the ill individual through the facility), and refer to healthcare staff for further evaluation. (See Infection Control and Clinical Care sections below.) Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective medical isolation and necessary medical care.
10 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1292 Page 12 of 27 ο If an individual is a close contact of a known COVID-19 case (but has no COVID-19 symptoms): Quarantine the individual and monitor for symptoms two times per day for 14 days. (See Quarantine section below.) Facilities without onsite healthcare staff should contact their state, local, tribal, and/or territorial health department to coordinate effective quarantine and necessary medical care. √ Implement social distancing strategies to increase the physical space between incarcerated/ detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms). Strategies will need to be tailored to the individual space in the facility and the needs of the population and staff. Not all strategies will be feasible in all facilities. Example strategies with varying levels of intensity include: ο Common areas: Enforce increased space between individuals in holding cells, as well as in lines and waiting areas such as intake (e.g., remove every other chair in a waiting area) ο Recreation: Choose recreation spaces where individuals can spread out Stagger time in recreation spaces Restrict recreation space usage to a single housing unit per space (where feasible) ο Meals: Stagger meals Rearrange seating in the dining hall so that there is more space between individuals (e.g., remove every other chair and use only one side of the table) Provide meals inside housing units or cells ο Group activities: Limit the size of group activities Increase space between individuals during group activities Suspend group programs where participants are likely to be in closer contact than they are in their housing environment Consider alternatives to existing group activities, in outdoor areas or other areas where individuals can spread out ο Housing: If space allows, reassign bunks to provide more space between individuals, ideally 6 feet or more in all directions. (Ensure that bunks are cleaned thoroughly if assigned to a new occupant.) Arrange bunks so that individuals sleep head to foot to increase the distance between them Rearrange scheduled movements to minimize mixing of individuals from different housing areas ο Medical: If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. If this is not feasible, consider staggering sick call. Designate a room near the intake area to evaluate new entrants who are flagged by the intake screening process for COVID-19 symptoms or case contact, before they move to other parts of the facility.
11 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1293 Page 13 of 27 √ Communicate clearly and frequently with incarcerated/detained persons about changes to their daily routine and how they can contribute to risk reduction. √ Note that if group activities are discontinued, it will be important to identify alternative forms of activity to support the mental health of incarcerated/detained persons. √ Consider suspending work release programs and other programs that involve movement of incarcerated/detained individuals in and out of the facility. √ Provide up-to-date information about COVID-19 to incarcerated/detained persons on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Reminders to report COVID-19 symptoms to staff at the first sign of illness √ Consider having healthcare staff perform rounds on a regular basis to answer questions about COVID-19. Prevention Practices for Staff √ Remind staff to stay at home if they are sick. Ensure that staff are aware that they will not be able to enter the facility if they have symptoms of COVID-19, and that they will be expected to leave the facility as soon as possible if they develop symptoms while on duty. √ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all staff daily on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο In very small facilities with only a few staff, consider self-monitoring or virtual monitoring (e.g., reporting to a central authority via phone). ο Send staff home who do not clear the screening process, and advise them to follow CDC- recommended steps for persons who are ill with COVID-19 symptoms. √ Provide staff with up-to-date information about COVID-19 and about facility policies on a regular basis, including: ο Symptoms of COVID-19 and its health risks ο Employers’ sick leave policy ο If staff develop a fever, cough, or shortness of breath while at work: immediately put on a face mask, inform supervisor, leave the facility, and follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. ο If staff test positive for COVID-19: inform workplace and personal contacts immediately, and do not return to work until a decision to discontinue home medical isolation precautions is made. Monitor CDC guidance on discontinuing home isolation regularly as circumstances evolve rapidly. ο If a staff member is identified as a close contact of a COVID-19 case (either within the facility or in the community): self-quarantine at home for 14 days and return to work if symptoms do not develop. If symptoms do develop, follow CDC-recommended steps for persons who are ill with COVID-19 symptoms. √ If a staff member has a confirmed COVID-19 infection, the relevant employers should inform other staff about their possible exposure to COVID-19 in the workplace, but should maintain confidentiality as required by the Americans with Disabilities Act. ο Employees who are close contacts of the case should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
12 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1294 Page 14 of 27 √ When feasible and consistent with security priorities, encourage staff to maintain a distance of 6 feet or more from an individual with respiratory symptoms while interviewing, escorting, or interacting in other ways. √ Ask staff to keep interactions with individuals with respiratory symptoms as brief as possible. Prevention Practices for Visitors √ If possible, communicate with potential visitors to discourage contact visits in the interest of their own health and the health of their family members and friends inside the facility. √ Perform verbal screening (for COVID-19 symptoms and close contact with cases) and temperature checks for all visitors and volunteers on entry. See Screening section below for wording of screening questions and a recommended procedure to safely perform temperature checks. ο Staff performing temperature checks should wear recommended PPE. ο Exclude visitors and volunteers who do not clear the screening process or who decline screening. √ Provide alcohol-based hand sanitizer with at least 60% alcohol in visitor entrances, exits, and waiting areas. √ Provide visitors and volunteers with information to prepare them for screening. ο Instruct visitors to postpone their visit if they have symptoms of respiratory illness. ο If possible, inform potential visitors and volunteers before they travel to the facility that they should expect to be screened for COVID-19 (including a temperature check), and will be unable to enter the facility if they do not clear the screening process or if they decline screening. ο Display signage outside visiting areas explaining the COVID-19 screening and temperature check process. Ensure that materials are understandable for non-English speakers and those with low literacy. √ Promote non-contact visits: ο Encourage incarcerated/detained persons to limit contact visits in the interest of their own health and the health of their visitors. ο Consider reducing or temporarily eliminating the cost of phone calls for incarcerated/detained persons. ο Consider increasing incarcerated/detained persons’ telephone privileges to promote mental health and reduce exposure from direct contact with community visitors. √ Consider suspending or modifying visitation programs, if legally permissible. For example, provide access to virtual visitation options where available. ο If moving to virtual visitation, clean electronic surfaces regularly. (See Cleaning guidance below for instructions on cleaning electronic surfaces.) ο Inform potential visitors of changes to, or suspension of, visitation programs. ο Clearly communicate any visitation program changes to incarcerated/detained persons, along with the reasons for them (including protecting their health and their family and community members’ health). ο If suspending contact visits, provide alternate means (e.g., phone or video visitation) for incarcerated/detained individuals to engage with legal representatives, clergy, and other individuals with whom they have legal right to consult. NOTE: Suspending visitation would be done in the interest of incarcerated/detained persons’ physical health and the health of the general public. However, visitation is important to maintain mental health.
13 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1295 Page 15 of 27 If visitation is suspended, facilities should explore alternative ways for incarcerated/detained persons to communicate with their families, friends, and other visitors in a way that is not financially burdensome for them. See above suggestions for promoting non-contact visits. √ Restrict non-essential vendors, volunteers, and tours from entering the facility. Management If there has been a suspected COVID-19 case inside the facility (among incarcerated/detained persons, staff, or visitors who have recently been inside), begin implementing Management strategies while test results are pending. Essential Management strategies include placing cases and individuals with symptoms under medical isolation, quarantining their close contacts, and facilitating necessary medical care, while observing relevant infection control and environmental disinfection protocols and wearing recommended PPE. Operations √ Implement alternate work arrangements deemed feasible in the Operational Preparedness section. √ Suspend all transfers of incarcerated/detained persons to and from other jurisdictions and facilities (including work release where relevant), unless necessary for medical evaluation, medical isolation/quarantine, care, extenuating security concerns, or to prevent overcrowding. ο If a transfer is absolutely necessary, perform verbal screening and a temperature check as outlined in the Screening section below, before the individual leaves the facility. If an individual does not clear the screening process, delay the transfer and follow the protocol for a suspected COVID-19 case— including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the transfer must still occur, ensure that the receiving facility has capacity to appropriately isolate the individual upon arrival. Ensure that staff transporting the individual wear recommended PPE (see Table 1) and that the transport vehicle is cleaned thoroughly after transport. √ If possible, consider quarantining all new intakes for 14 days before they enter the facility’s general population (SEPARATELY from other individuals who are quarantined due to contact with a COVID-19 case). Subsequently in this document, this practice is referred to as routine intake quarantine. √ When possible, arrange lawful alternatives to in-person court appearances. √ Incorporate screening for COVID-19 symptoms and a temperature check into release planning. ο Screen all releasing individuals for COVID-19 symptoms and perform a temperature check. (See Screening section below.) If an individual does not clear the screening process, follow the protocol for a suspected COVID-19 case—including putting a face mask on the individual, immediately placing them under medical isolation, and evaluating them for possible COVID-19 testing. If the individual is released before the recommended medical isolation period is complete, discuss release of the individual with state, local, tribal, and/or territorial health departments to ensure safe medical transport and continued shelter and medical care, as part of release planning. Make direct linkages to community resources to ensure proper medical isolation and access to medical care. Before releasing an incarcerated/detained individual with COVID-19 symptoms to a community- based facility, such as a homeless shelter, contact the facility’s staff to ensure adequate time for them to prepare to continue medical isolation, or contact local public health to explore alternate housing options.
14 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1296 Page 16 of 27 √ Coordinate with state, local, tribal, and/or territorial health departments. ο When a COVID-19 case is suspected, work with public health to determine action. See Medical Isolation section below. ο When a COVID-19 case is suspected or confirmed, work with public health to identify close contacts who should be placed under quarantine. See Quarantine section below. ο Facilities with limited onsite medical isolation, quarantine, and/or healthcare services should coordinate closely with state, local, tribal, and/or territorial health departments when they encounter a confirmed or suspected case, in order to ensure effective medical isolation or quarantine, necessary medical evaluation and care, and medical transfer if needed. See Facilities with Limited Onsite Healthcare Services section. Hygiene √ Continue to ensure that hand hygiene supplies are well-stocked in all areas of the facility. (See above.) √ Continue to emphasize practicing good hand hygiene and cough etiquette. (See above.) Cleaning and Disinfecting Practices √ Continue adhering to recommended cleaning and disinfection procedures for the facility at large. (See above.) √ Reference specific cleaning and disinfection procedures for areas where a COVID-19 case has spent time (below). Medical Isolation of Confirmed or Suspected COVID-19 Cases NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities with Limited Onsite Healthcare Services, or without sufficient space to implement effective medical isolation, should coordinate with local public health officials to ensure that COVID-19 cases will be appropriately isolated, evaluated, tested (if indicated), and given care. √ As soon as an individual develops symptoms of COVID-19, they should wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals. √ Keep the individual’s movement outside the medical isolation space to an absolute minimum. ο Provide medical care to cases inside the medical isolation space. See Infection Control and Clinical Care sections for additional details. ο Serve meals to cases inside the medical isolation space. ο Exclude the individual from all group activities. ο Assign the isolated individual a dedicated bathroom when possible. √ Ensure that the individual is wearing a face mask at all times when outside of the medical isolation space, and whenever another individual enters. Provide clean masks as needed. Masks should be changed at least daily, and when visibly soiled or wet. √ Facilities should make every possible effort to place suspected and confirmed COVID-19 cases under medical isolation individually. Each isolated individual should be assigned their own housing space and bathroom where possible. Cohorting should only be practiced if there are no other available options.
15 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1297 Page 17 of 27 ο If cohorting is necessary: Only individuals who are laboratory confirmed COVID-19 cases should be placed under medical isolation as a cohort. Do not cohort confirmed cases with suspected cases or case contacts. Unless no other options exist, do not house COVID-19 cases with individuals who have an undiagnosed respiratory infection. Ensure that cohorted cases wear face masks at all times. √ In order of preference, individuals under medical isolation should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls and a solid door that closes fully. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in a large, well-ventilated cell with solid walls but without a solid door. Employ social distancing strategies related to housing in the Prevention section above. ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section above. ο Safely transfer individual(s) to another facility with available medical isolation capacity in one of the above arrangements (NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.) If the ideal choice does not exist in a facility, use the next best alternative. √ If the number of confirmed cases exceeds the number of individual medical isolation spaces available in the facility, be especially mindful of cases who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other infected individuals. If cohorting is unavoidable, make all possible accommodations to prevent transmission of other infectious diseases to the higher-risk individual. (For example, allocate more space for a higher-risk individual within a shared medical isolation space.) ο Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. ο Note that incarcerated/detained populations have higher prevalence of infectious and chronic diseases and are in poorer health than the general population, even at younger ages. √ Custody staff should be designated to monitor these individuals exclusively where possible. These staff should wear recommended PPE as appropriate for their level of contact with the individual under medical isolation (see PPE section below) and should limit their own movement between different parts of the facility to the extent possible. √ Minimize transfer of COVID-19 cases between spaces within the healthcare unit.
16 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1298 Page 18 of 27 √ Provide individuals under medical isolation with tissues and, if permissible, a lined no-touch trash receptacle. Instruct them to: ο Cover their mouth and nose with a tissue when they cough or sneeze ο Dispose of used tissues immediately in the lined trash receptacle ο Wash hands immediately with soap and water for at least 20 seconds. If soap and water are not available, clean hands with an alcohol-based hand sanitizer that contains at least 60% alcohol (where security concerns permit). Ensure that hand washing supplies are continually restocked. √ Maintain medical isolation until all the following criteria have been met. Monitor the CDC website for updates to these criteria. For individuals who will be tested to determine if they are still contagious: Te individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND Te individual’s other symptoms have improved (e.g., cough, shortness of breath) AND Te individual has tested negative in at least two consecutive respiratory specimens collected at least 24 hours apart For individuals who will NOT be tested to determine if they are still contagious: Te individual has been free from fever for at least 72 hours without the use of fever-reducing medications AND Te individual’s other symptoms have improved (e.g., cough, shortness of breath) AND At least 7 days have passed since the first symptoms appeared For individuals who had a confirmed positive COVID-19 test but never showed symptoms: ο At least 7 days have passed since the date of the individual’s first positive COVID-19 test AND ο Te individual has had no subsequent illness √ Restrict cases from leaving the facility while under medical isolation precautions, unless released from custody or if a transfer is necessary for medical care, infection control, lack of medical isolation space, or extenuating security concerns. ο If an incarcerated/detained individual who is a COVID-19 case is released from custody during their medical isolation period, contact public health to arrange for safe transport and continuation of necessary medical care and medical isolation as part of release planning. Cleaning Spaces where COVID-19 Cases Spent Time Toroughly clean and disinfect all areas where the confirmed or suspected COVID-19 case spent time. Note—these protocols apply to suspected cases as well as confirmed cases, to ensure adequate disinfection in the event that the suspected case does, in fact, have COVID-19. Refer to the Definitions section for the distinction between confirmed and suspected cases. ο Close off areas used by the infected individual. If possible, open outside doors and windows to increase air circulation in the area. Wait as long as practical, up to 24 hours under the poorest air exchange conditions (consult CDC Guidelines for Environmental Infection Control in Health-Care Facilities for wait time based on different ventilation conditions), before beginning to clean and disinfect, to minimize potential for exposure to respiratory droplets. ο Clean and disinfect all areas (e.g., cells, bathrooms, and common areas) used by the infected individual, focusing especially on frequently touched surfaces (see list above in Prevention section).
17 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1299 Page 19 of 27 √ Hard (non-porous) surface cleaning and disinfection ο If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection. ο For disinfection, most common EPA-registered household disinfectants should be effective. Choose cleaning products based on security requirements within the facility. Consult a list of products that are EPA-approved for use against the virus that causes COVID-19. Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., concentration, application method and contact time, etc.). Diluted household bleach solutions can be used if appropriate for the surface. Follow the manufacturer’s instructions for application and proper ventilation, and check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be effective against coronaviruses when properly diluted. Prepare a bleach solution by mixing: - 5 tablespoons (1/3rd cup) bleach per gallon of water or - 4 teaspoons bleach per quart of water √ Soft (porous) surface cleaning and disinfection ο For soft (porous) surfaces such as carpeted floors and rugs, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. After cleaning: If the items can be laundered, launder items in accordance with the manufacturer’s instructions using the warmest appropriate water setting for the items and then dry items completely. Otherwise, use products that are EPA-approved for use against the virus that causes COVID-19 and are suitable for porous surfaces. √ Electronics cleaning and disinfection ο For electronics such as tablets, touch screens, keyboards, and remote controls, remove visible contamination if present. Follow the manufacturer’s instructions for all cleaning and disinfection products. Consider use of wipeable covers for electronics. If no manufacturer guidance is available, consider the use of alcohol-based wipes or spray containing at least 70% alcohol to disinfect touch screens. Dry surfaces thoroughly to avoid pooling of liquids. Additional information on cleaning and disinfection of communal facilities such can be found on CDC’s website. √ Ensure that staff and incarcerated/detained persons performing cleaning wear recommended PPE. (See PPE section below.) √ Food service items. Cases under medical isolation should throw disposable food service items in the trash in their medical isolation room. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves. √ Laundry from a COVID-19 cases can be washed with other individuals’ laundry. ο Individuals handling laundry from COVID-19 cases should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. Tis will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely.
18 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1300 Page 20 of 27 ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered. √ Consult cleaning recommendations above to ensure that transport vehicles are thoroughly cleaned after carrying a confirmed or suspected COVID-19 case. Quarantining Close Contacts of COVID-19 Cases NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity, or without sufficient space to implement effective quarantine, should coordinate with local public health officials to ensure that close contacts of COVID-19 cases will be effectively quarantined and medically monitored. √ Incarcerated/detained persons who are close contacts of a confirmed or suspected COVID-19 case (whether the case is another incarcerated/detained person, staff member, or visitor) should be placed under quarantine for 14 days (see CDC guidelines). ο If an individual is quarantined due to contact with a suspected case who is subsequently tested for COVID-19 and receives a negative result, the quarantined individual should be released from quarantine restrictions. √ In the context of COVID-19, an individual (incarcerated/detained person or staff) is considered a close contact if they: ο Have been within approximately 6 feet of a COVID-19 case for a prolonged period of time OR ο Have had direct contact with infectious secretions of a COVID-19 case (e.g., have been coughed on) Close contact can occur while caring for, living with, visiting, or sharing a common space with a COVID-19 case. Data to inform the definition of close contact are limited. Considerations when assessing close contact include the duration of exposure (e.g., longer exposure time likely increases exposure risk) and the clinical symptoms of the person with COVID-19 (e.g., coughing likely increases exposure risk, as does exposure to a severely ill patient). √ Keep a quarantined individual’s movement outside the quarantine space to an absolute minimum. ο Provide medical evaluation and care inside or near the quarantine space when possible. ο Serve meals inside the quarantine space. ο Exclude the quarantined individual from all group activities. ο Assign the quarantined individual a dedicated bathroom when possible. √ Facilities should make every possible effort to quarantine close contacts of COVID-19 cases individually. Cohorting multiple quarantined close contacts of a COVID-19 case could transmit COVID-19 from those who are infected to those who are uninfected. Cohorting should only be practiced if there are no other available options. ο If cohorting of close contacts under quarantine is absolutely necessary, symptoms of all individuals should be monitored closely, and individuals with symptoms of COVID-19 should be placed under medical isolation immediately. ο If an entire housing unit is under quarantine due to contact with a case from the same housing unit, the entire housing unit may need to be treated as a cohort and quarantine in place. ο Some facilities may choose to quarantine all new intakes for 14 days before moving them to the facility’s general population as a general rule (not because they were exposed to a COVID-19 case). Under this scenario, avoid mixing individuals quarantined due to exposure to a COVID-19 case with individuals undergoing routine intake quarantine.
19 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1301 Page 21 of 27 ο If at all possible, do not add more individuals to an existing quarantine cohort after the 14-day quarantine clock has started. √ If the number of quarantined individuals exceeds the number of individual quarantine spaces available in the facility, be especially mindful of those who are at higher risk of severe illness from COVID-19. Ideally, they should not be cohorted with other quarantined individuals. If cohorting is unavoidable, make all possible accommodations to reduce exposure risk for the higher-risk individuals. (For example, intensify social distancing strategies for higher-risk individuals.) √ In order of preference, multiple quarantined individuals should be housed: ο Separately, in single cells with solid walls (i.e., not bars) and solid doors that close fully ο Separately, in single cells with solid walls but without solid doors ο As a cohort, in a large, well-ventilated cell with solid walls, a solid door that closes fully, and at least 6 feet of personal space assigned to each individual in all directions ο As a cohort, in a large, well-ventilated cell with solid walls and at least 6 feet of personal space assigned to each individual in all directions, but without a solid door ο As a cohort, in single cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells creating at least 6 feet of space between individuals. (Although individuals are in single cells in this scenario, the airflow between cells essentially makes it a cohort arrangement in the context of COVID-19.) ο As a cohort, in multi-person cells without solid walls or solid doors (i.e., cells enclosed entirely with bars), preferably with an empty cell between occupied cells. Employ social distancing strategies related to housing in the Prevention section to maintain at least 6 feet of space between individuals housed in the same cell. ο As a cohort, in individuals’ regularly assigned housing unit but with no movement outside the unit (if an entire housing unit has been exposed). Employ social distancing strategies related to housing in the Prevention section above to maintain at least 6 feet of space between individuals. ο Safely transfer to another facility with capacity to quarantine in one of the above arrangements (NOTE—Transfer should be avoided due to the potential to introduce infection to another facility; proceed only if no other options are available.) √ Quarantined individuals should wear face masks if feasible based on local supply, as source control, under the following circumstances (see PPE section and Table 1): ο If cohorted, quarantined individuals should wear face masks at all times (to prevent transmission from infected to uninfected individuals). ο If quarantined separately, individuals should wear face masks whenever a non-quarantined individual enters the quarantine space. ο All quarantined individuals should wear a face mask if they must leave the quarantine space for any reason. ο Asymptomatic individuals under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear face masks. √ Staff who have close contact with quarantined individuals should wear recommended PPE if feasible based on local supply, feasibility, and safety within the scope of their duties (see PPE section and Table 1). ο Staff supervising asymptomatic incarcerated/detained persons under routine intake quarantine (with no known exposure to a COVID-19 case) do not need to wear PPE.
20 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1302 Page 22 of 27 √ Quarantined individuals should be monitored for COVID-19 symptoms twice per day, including temperature checks. ο If an individual develops symptoms, they should be moved to medical isolation immediately and further evaluated. (See Medical Isolation section above.) ο See Screening section for a procedure to perform temperature checks safely on asymptomatic close contacts of COVID-19 cases. √ If an individual who is part of a quarantined cohort becomes symptomatic: ο If the individual is tested for COVID-19 and tests positive: the 14-day quarantine clock for the remainder of the cohort must be reset to 0. ο If the individual is tested for COVID-19 and tests negative: the 14-day quarantine clock for this individual and the remainder of the cohort does not need to be reset. Tis individual can return from medical isolation to the quarantined cohort for the remainder of the quarantine period. ο If the individual is not tested for COVID-19: the 14-day quarantine clock for the remainder of the cohort must be reset to 0. √ Restrict quarantined individuals from leaving the facility (including transfers to other facilities) during the 14-day quarantine period, unless released from custody or a transfer is necessary for medical care, infection control, lack of quarantine space, or extenuating security concerns. √ Quarantined individuals can be released from quarantine restrictions if they have not developed symptoms during the 14-day quarantine period. √ Meals should be provided to quarantined individuals in their quarantine spaces. Individuals under quarantine should throw disposable food service items in the trash. Non-disposable food service items should be handled with gloves and washed with hot water or in a dishwasher. Individuals handling used food service items should clean their hands after removing gloves. √ Laundry from quarantined individuals can be washed with other individuals’ laundry. ο Individuals handling laundry from quarantined persons should wear disposable gloves, discard after each use, and clean their hands after. ο Do not shake dirty laundry. Tis will minimize the possibility of dispersing virus through the air. ο Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. ο Clean and disinfect clothes hampers according to guidance above for surfaces. If permissible, consider using a bag liner that is either disposable or can be laundered. Management of Incarcerated/Detained Persons with COVID-19 Symptoms NOTE: Some recommendations below apply primarily to facilities with onsite healthcare capacity. Facilities without onsite healthcare capacity or without sufficient space for medical isolation should coordinate with local public health officials to ensure that suspected COVID-19 cases will be effectively isolated, evaluated, tested (if indicated), and given care. √ If possible, designate a room near each housing unit for healthcare staff to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. √ Incarcerated/detained individuals with COVID-19 symptoms should wear a face mask and should be placed under medical isolation immediately. Discontinue the use of a face mask if it inhibits breathing. See Medical Isolation section above.
21 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1303 Page 23 of 27 √ Medical staff should evaluate symptomatic individuals to determine whether COVID-19 testing is indicated. Refer to CDC guidelines for information on evaluation and testing. See Infection Control and Clinical Care sections below as well. √ If testing is indicated (or if medical staff need clarification on when testing is indicated), contact the state, local, tribal, and/or territorial health department. Work with public health or private labs as available to access testing supplies or services. ο If the COVID-19 test is positive, continue medical isolation. (See Medical Isolation section above.) ο If the COVID-19 test is negative, return the individual to their prior housing assignment unless they require further medical assessment or care. Management Strategies for Incarcerated/Detained Persons without COVID-19 Symptoms √ Provide clear information to incarcerated/detained persons about the presence of COVID-19 cases within the facility, and the need to increase social distancing and maintain hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19. ο Ensure that information is provided in a manner that can be understood by non-English speaking individuals and those with low literacy, and make necessary accommodations for those with cognitive or intellectual disabilities and those who are deaf, blind, or low-vision. √ Implement daily temperature checks in housing units where COVID-19 cases have been identified, especially if there is concern that incarcerated/detained individuals are not notifying staff of symptoms. See Screening section for a procedure to safely perform a temperature check. √ Consider additional options to intensify social distancing within the facility. Management Strategies for Staff √ Provide clear information to staff about the presence of COVID-19 cases within the facility, and the need to enforce social distancing and encourage hygiene precautions. ο Consider having healthcare staff perform regular rounds to answer questions about COVID-19 from staff. √ Staff identified as close contacts of a COVID-19 case should self-quarantine at home for 14 days and may return to work if symptoms do not develop. ο See above for definition of a close contact. ο Refer to CDC guidelines for further recommendations regarding home quarantine for staff. Infection Control Infection control guidance below is applicable to all types of correctional facilities. Individual facilities should assess their unique needs based on the types of exposure staff and incarcerated/ detained persons may have with confirmed or suspected COVID-19 cases. √ All individuals who have the potential for direct or indirect exposure to COVID-19 cases or infectious materials (including body substances; contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air) should follow infection control practices outlined in the CDC Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. Monitor these guidelines regularly for updates.
22 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1304 Page 24 of 27 ο Implement the above guidance as fully as possible within the correctional/detention context. Some of the specific language may not apply directly to healthcare settings within correctional facilities and detention centers, or to facilities without onsite healthcare capacity, and may need to be adapted to reflect facility operations and custody needs. ο Note that these recommendations apply to staff as well as to incarcerated/detained individuals who may come in contact with contaminated materials during the course of their work placement in the facility (e.g., cleaning). √ Staff should exercise caution when in contact with individuals showing symptoms of a respiratory infection. Contact should be minimized to the extent possible until the infected individual is wearing a face mask. If COVID-19 is suspected, staff should wear recommended PPE (see PPE section). √ Refer to PPE section to determine recommended PPE for individuals persons in contact with confirmed COVID-19 cases, contacts, and potentially contaminated items. Clinical Care of COVID-19 Cases √ Facilities should ensure that incarcerated/detained individuals receive medical evaluation and treatment at the first signs of COVID-19 symptoms. ο If a facility is not able to provide such evaluation and treatment, a plan should be in place to safely transfer the individual to another facility or local hospital. ο Te initial medical evaluation should determine whether a symptomatic individual is at higher risk for severe illness from COVID-19. Persons at higher risk may include older adults and persons of any age with serious underlying medical conditions such as lung disease, heart disease, and diabetes. See CDC’s website for a complete list, and check regularly for updates as more data become available to inform this issue. √ Staff evaluating and providing care for confirmed or suspected COVID-19 cases should follow the CDC Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19) and monitor the guidance website regularly for updates to these recommendations. √ Healthcare staff should evaluate persons with respiratory symptoms or contact with a COVID-19 case in a separate room, with the door closed if possible, while wearing recommended PPE and ensuring that the suspected case is wearing a face mask. ο If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit. √ Clinicians are strongly encouraged to test for other causes of respiratory illness (e.g., influenza). √ The facility should have a plan in place to safely transfer persons with severe illness from COVID-19 to a local hospital if they require care beyond what the facility is able to provide. √ When evaluating and treating persons with symptoms of COVID-19 who do not speak English, using a language line or provide a trained interpreter when possible. Recommended PPE and PPE Training for Staf and Incarcerated/Detained Persons √ Ensure that all staff (healthcare and non-healthcare) and incarcerated/detained persons who will have contact with infectious materials in their work placements have been trained to correctly don, doff, and dispose of PPE relevant to the level of contact they will have with confirmed and suspected COVID-19 cases.
23 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1305 Page 25 of 27 ο Ensure that staff and incarcerated/detained persons who require respiratory protection (e.g., N95s) for their work responsibilities have been medically cleared, trained, and fit-tested in the context of an employer’s respiratory protection program. ο For PPE training materials and posters, please visit the CDC website on Protecting Healthcare Personnel. √ Ensure that all staff are trained to perform hand hygiene after removing PPE. √ If administrators anticipate that incarcerated/detained persons will request unnecessary PPE, consider providing training on the different types of PPE that are needed for differing degrees of contact with COVID-19 cases and contacts, and the reasons for those differences (see Table 1). Monitor linked CDC guidelines in Table 1 for updates to recommended PPE. √ Keep recommended PPE near the spaces in the facility where it could be needed, to facilitate quick access in an emergency. √ Recommended PPE for incarcerated/detained individuals and staff in a correctional facility will vary based on the type of contact they have with COVID-19 cases and their contacts (see Table 1). Each type of recommended PPE is defined below. As above, note that PPE shortages are anticipated in every category during the COVID-19 response. ο N95 respirator See below for guidance on when face masks are acceptable alternatives for N95s. N95 respirators should be prioritized when staff anticipate contact with infectious aerosols from a COVID-19 case. ο Face mask ο Eye protection—goggles or disposable face shield that fully covers the front and sides of the face ο A single pair of disposable patient examination gloves Gloves should be changed if they become torn or heavily contaminated. ο Disposable medical isolation gown or single-use/disposable coveralls, when feasible If custody staff are unable to wear a disposable gown or coveralls because it limits access to their duty belt and gear, ensure that duty belt and gear are disinfected after close contact with the individual. Clean and disinfect duty belt and gear prior to reuse using a household cleaning spray or wipe, according to the product label. If there are shortages of gowns, they should be prioritized for aerosol-generating procedures, care activities where splashes and sprays are anticipated, and high-contact patient care activities that provide opportunities for transfer of pathogens to the hands and clothing of staff. √ Note that shortages of all PPE categories are anticipated during the COVID-19 response, particularly for non-healthcare workers. Guidance for optimizing the supply of each category can be found on CDC’s website: ο Guidance in the event of a shortage of N95 respirators Based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for staff engaging in activities that would expose them to respiratory aerosols, which pose the highest exposure risk. ο Guidance in the event of a shortage of face masks ο Guidance in the event of a shortage of eye protection ο Guidance in the event of a shortage of gowns/coveralls
24 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1306 Page 26 of 27 Table 1. Recommended Personal Protective Equipment (PPE) for Incarcerated/Detained Persons and Staff in a Correctional Facility during the COVID-19 Response
N95 Face Eye Gown/ Classifcation of Individual Wearing PPE respirator mask Protection Gloves Coveralls Incarcerated/Detained Persons Asymptomatic incarcerated/detained persons (under Apply face masks for source control as feasible based on local supply, quarantine as close contacts of a COVID-19 case*) especially if housed as a cohort Incarcerated/detained persons who are confrmed or suspected COVID-19 cases, or showing symptoms of – – – – COVID-19 Incarcerated/detained persons in a work placement handling laundry or used food service items from a – – – COVID-19 case or case contact Incarcerated/detained persons in a work placement Additional PPE may be needed based on cleaning areas where a COVID-19 case has spent time the product label. See CDC guidelines for more details. Staff Staf having direct contact with asymptomatic incarcerated/detained persons under quarantine Face mask, eye protection, and gloves as as close contacts of a COVID-19 case* (but not – – local supply and scope of duties allow. performing temperature checks or providing medical care) Staf performing temperature checks on any group of people (staf, visitors, or incarcerated/detained – persons), or providing medical care to asymptomatic quarantined persons Staf having direct contact with (including transport) or ofering medical care to confrmed or suspected ** COVID-19 cases (see CDC infection control guidelines) Staf present during a procedure on a confrmed or suspected COVID-19 case that may generate – respiratory aerosols (see CDC infection control guidelines) Staf handling laundry or used food service items – – – from a COVID-19 case or case contact Staf cleaning an area where a COVID-19 case has Additional PPE may be needed based on spent time the product label. See CDC guidelines for more details. * If a facility chooses to routinely quarantine all new intakes (without symptoms or known exposure to a COVID-19 case) before integrating into the facility’s general population, face masks are not necessary. ** A NIOSH-approved N95 is preferred. However, based on local and regional situational analysis of PPE supplies, face masks are an acceptable alternative when the supply chain of respirators cannot meet the demand. During this time, available respirators should be prioritized for procedures that are likely to generate respiratory aerosols, which would pose the highest exposure risk to staf.
25 Case 2:20-cv-11053-MAG-RSW ECF No. 27-4 filed 05/12/20 PageID.1307 Page 27 of 27 Verbal Screening and Temperature Check Protocols for Incarcerated/Detained Persons, Staf, and Visitors Te guidance above recommends verbal screening and temperature checks for incarcerated/detained persons, staff, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody. Below, verbal screening questions for COVID-19 symptoms and contact with known cases, and a safe temperature check procedure are detailed. √ Verbal screening for symptoms of COVID-19 and contact with COVID-19 cases should include the following questions: ο Today or in the past 24 hours, have you had any of the following symptoms? Fever, felt feverish, or had chills? Cough? Difficulty breathing? ο In the past 14 days, have you had contact with a person known to be infected with the novel coronavirus (COVID-19)? √ The following is a protocol to safely check an individual’s temperature: ο Perform hand hygiene ο Put on a face mask, eye protection (goggles or disposable face shield that fully covers the front and sides of the face), gown/coveralls, and a single pair of disposable gloves ο Check individual’s temperature ο If performing a temperature check on multiple individuals, ensure that a clean pair of gloves is used for each individual and that the thermometer has been thoroughly cleaned in between each check. If disposable or non-contact thermometers are used and the screener did not have physical contact with an individual, gloves do not need to be changed before the next check. If non-contact thermometers are used, they should be cleaned routinely as recommended by CDC for infection control. ο Remove and discard PPE ο Perform hand hygiene
26 Case 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1308 Page 1 of 38 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT D
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
ELLIOTT ABRAMS, CRAIG SEEGMILLER, VINCENT GLASS, ROBERT REEVES, and LAMONT HEARD, individually, and on No. 2:20-cv-11053 behalf of all others similarly situated, HON. MARK A. GOLDSMITH
Plaintiffs, MAG. R. STEVEN WHALEN V AFFIDAVIT OF WILLIS CHAPMAN, NOAH HEIDI E. WASHINGTON NAGY, MELINDA BRAMAN, BRYAN MORRISON, and HEIDI WASHINGTON,
Defendants.
Daniel Manville (P39731) Kevin J. O’Dowd (P39383) Attorney for Plaintiffs Kristin M. Heyse (P64353) Civil Rights Clinic, Scott A. Mertens (P60069) MSU College of Law Sara E. Trudgeon (P82155) P.O. Box 1570 Cori E. Barkman (P61470) East Lansing, MI 48823 Allan J. Soros (P43702) (517) 432-6866 Assistants Attorney General [email protected] Attorneys for MDOC Defendants MDOC Division P. O. Box 30217 Lansing, MI 48909 (517) 335-3055 [email protected]
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Kevin Ernst (P44223) Attorney for Plaintiffs Ernst Charara & Lovell, PLC 645 Griswold, Ste 4100 Detroit, MI 48226 313-965-5555 [email protected] /
AFFIDAVIT OF HEIDI E. WASHINGTON
Heidi E. Washington, being first duly sworn, deposes and says as
follows:
1. I make this affidavit on personal knowledge, and, if called
upon to testify, I can competently testify as to the matters contained
herein.
2. I am the Director of the Michigan Department of Corrections
(MDOC) and a named defendant in the above-captioned lawsuit. I have
been employed with the MDOC in positions of increasing responsibility
since 1998, including serving as Warden at two facilities and acting
Operations Administrator for the Correctional Facilities Administration
(CFA). I have been the Director of MDOC since July of 2015.
3. I serve as an elected representative on the Executive
Committee of the Correctional Leaders Association. In my role as
representative I lead other Midwest directors in weekly conference
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calls, where we share information related to other states’ responses to
COVID-19, and I provide guidance and collaborate with other states’
directors in developing best practices to minimize the spread of COVID-
19 within our facilities.
4. As part of my official dues as Director, and in collaboration
with the Deputy Directors, Assistant Deputy Directors, Administrative
Management Team, Chief Medical Officer, Wardens, Deputy Wardens,
Assistant Deputy Wardens, and staff, I manage and direct the activities
of a multi-disciplinary team responsible for providing for the physical,
medical, and psychological well-being of the inmate population.
5. With respect to COVID-19, specifically, I am involved daily
in the identification, planning, creation, and implementation of all
MDOC policies and directives for preventing the spread of COVID-19
within MDOC facilities. Through this role, I have knowledge of the
MDOC’s directives relating to COVID-19 within MDOC facilities, and I
have personal knowledge regarding the numerous measures discussed
below that have been swiftly implemented throughout MDOC facilities
state-wide in order to minimize and manage the spread of COVID-19.
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6. The MDOC acted swiftly in responding to the risk of COVID-
19 impacting its facilities, well before any prisoners or staff tested
positive, and before the CDC issued its Interim Guidance on
Management of Coronavirus Disease 2019 (COVID-19) in Correctional
and Detention Facilities (“Interim Guidelines for Correctional
Facilities”), which was posted on March 23, 2020.
7. On March 10, 2020, Michigan Governor Gretchen Whitmer
declared a state of emergency after announcing two Michigan residents
had tested presumptive positive for COVID-19.
8. On March 11, 2020, the MDOC issued a press release
(Attachment 1) advising that it was taking a series of measures to
protect its staff, prison population, and the community from COVID-19,
though there were no known cases impacting the MDOC. By this time,
the MDOC was already consulting with local health departments, the
Michigan Department of Health and Human Services (MDHHS), and
the Center for Disease Control and Prevention (CDC) to examine
whether it should disallow all visits and outside contact from anyone
other than MDOC personnel. This press release further advised that
information on prevention was being provided to the prison population
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and MDOC staff, and that facilities had undergone additional and more
frequent cleaning.
9. On March 13, 2020, the MDOC issued a second press release
(Attachment 2) advising that, effective immediately, it was ceasing all
in-person visitation of prisoners for the safety of staff, prisoner and the
public. As noted in this press release, at this time there were only 12
known community cases of COVID-19 in the State of Michigan, but
none impacting the MDOC. This press release discussed staff screening
measures being implemented by the MDOC, and that staff displaying
any signs or symptoms (i.e. temperature above 100.4) would not be
allowed to return to work.
10. On March 16, 2020, the MDOC posted “MDOC Coronavirus
(COVID-19) Response Q&A” (Attachment 3) on social media platforms,
advising the public of early measures taken to ensure the safety and
well-being of the prison population, staff and the public, including but
not limited to the following:
a. That the MDOC had ceased all in-person visitation effective March 13, 2020, but while visits were suspended, enhanced services were being made for prisoners to communicate with family and friends, including two free phone call and two free JPay stamps per week.
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b. That transfers between facilities would not be authorized without the approval of the Assistant Deputy Director or higher.
c. That all persons seeking entry into the facility would be subject to screening questions and a temperature check.
d. That extra care was going into cleaning prisons and sanitizing cells, including more frequent cleaning and the authorization to use bleach, and that cleaning products were being placed next to phones and in other high traffic areas.
e. That all prisoners had access to soap, there was an adequate supply, and that an increased supply of soap was being provided in bathrooms and upon prisoner request.
f. CDC posters detailing proper hygiene practices were posted and displayed digitally on TV screens and throughout the facilities.
g. That the MDOC was encouraging and enforcing social distancing throughout its facilities, including running smaller groups for programs and classrooms, and limiting the number of people going to the chow hall at any one time to seat prisoners further apart.
h. That the MDOC would continue to process paroles and releases as scheduled but the Parole Board would be modifying its procedures to minimize in-person attendance, including having personal representatives conduct parole interviews by video.
11. On March 23, 2020, the CDC posted its Interim Guidelines
for Correctional Facilities. This document provided, among other
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things, specific “guidance” to correctional and detention facilities
related to COVID-19, outlining “best practices” concerning: (1)
operational and communications preparations for COVID-19; (2)
enhanced cleaning, disinfecting and hygiene practices; (3) social
distancing strategies; (4) visitor policies; (5) infection control; (6)
screening of staff, inmate and visitors; (7) medial isolation for those
testing positive; (8) healthcare for suspected cases; (9) and
considerations for persons at higher risk of COVID-19. By this time,
the MDOC was already incorporating these best practices in its COVID-
19 response strategies.
12. On March 29, 2020, Governor Whitmer issued Executive
Order (EO) 2020-29. This order immediately halted all transfers from
county jails and local lockups to MDOC. This order also provided that
the MDOC “must continue to implement risk reduction protocols to
address COVID-19 (“risk reduction protocols”), which [the MDOC] has
already developed and implemented at the facilities it operates.” (Ex G
to Defendants’’ response brief.)
13. On April 8, 2020, in furtherance of risk-reduction protocols
already in place and the Governor’s EO, I issued Director’s Office
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Memorandum (DOM) 2020-30 (Ex. H to Defendants’ response brief) to
the MDOC’s Executive Policy Team, the Administrative Management
Team and Wardens, regarding the subject of COVID-19. As noted in
the first paragraph of the DOM, “[t]he MDOC is taking many steps to
protect staff and prisoners from the spread of COVID-19, including
developing isolation areas to place and treat prisoner who tested
positive for COVID-19 or who are under investigation for having
COVID-19, as well as those who have had close contact with a known-
positive COVID-19 individual.” (Id., pg. 1.)
14. In addition to the early measures discussed above, the DOM
includes a detailed outline of the many steps MDOC is taking to
address the COVID-19 pandemic, discussing the precautions staff are
directed to take to help prevent COVID-19 from spreading. These
precautions include, but are not limited to, the following advisories:
a. PERSONAL PROTECTIVE EQUIPMENT (PPE)
All staff and prisoners are required to wear a mask. Staff are always required to wear PPE when they are in an isolation area, when transporting a prisoner with a confirmed or suspected case of COVID -19, or at any time the staff member has close contact (i.e., within six feet) with a prisoner who has a confirmed or suspected case of COVID-19. PPE worn in an isolation area shall be removed before
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going to another area of the facility. PPE shall include an N95 or other mask, a gown, eye protection, and gloves.
b. SCREENING OF INDIVIDUALS BEFORE ENTERING A FACILITY OR OFFICE BUILDING
All individuals shall be screened for potential signs and symptoms of COVID-19 before entering a correctional facility or office building. Any individual who shows symptoms of COVID-19 or answers “yes” to any screening question is denied entry. Consistent with Executive Order 2020-36, employees who are feeling sick with any illness must stay home.
c. SOCIAL DISTANCING
In accordance with the CDC recommendations, social distancing recommendations shall always be followed. This requires that there be a distance of at least six feet between all individuals, including programming, classrooms, chow lines, staff screenings, office buildings, etc. Staff meetings and other group interactions of 10 or more individuals shall be limited and technology must be used in place of group interactions, when possible.
d. ISOLATION AREAS
The CFA Deputy Director shall determine where isolation areas are located. A prisoner who tests positive for COVID-19 shall be placed in quarantine in a designated isolation area as soon as resources permit, regardless of their security level or prior criminal history.
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Staffing levels in an isolation area shall be determined by the Warden and only staff approved by the Warden or designee may enter an isolation area. The Bureau of Healthcare Services (BHCS) Administrator shall ensure cleaning procedures are in place for isolation areas. A prisoner shall only be released from an isolation area after they have been cleared by a Physician, and approval from the BHCS Administrator or Chief Medical Officer/Assistant Chief Medical Officer has been obtained.
e. PRISONERS UNDER INVESTIGATION FOR COVID-19
Separate isolation areas shall also be developed for prisoners who are under investigation (PUIs) for having COVID-19 as well as for those who have had close contact with a PUI or known-positive COVID-19 individual (Close Contacts), as necessary. The isolation areas for PUIs shall follow the same criteria as the isolation areas for prisoners with confirmed cases of COVID-19. A PUI shall be placed alone in a cell pending the outcome of their test results. Staff transporting a PUI shall wear the same PPE that is required for transporting a prisoner with confirmed COVID-19.
f. PRISONER PERSONAL PROPERTY
To control the spread of the COVID-19 virus that may be lying dormant, facility staff shall secure and inventory the property of prisoners with confirmed COVID-19, as well as PUIs and Close Contacts if the prisoner is placed in an isolation area. Prisoner property shall not be allowed while in an isolation area. Staff shall wear gowns, face shields, masks, and gloves when handling the property.
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g. ADDITIONAL PRECAUTIONS IN MDOC FACILITIES
i. Alcohol-Based Hand Sanitizer and Wipes
Alcohol-based hand sanitizer and wipes that are provided to correctional facilities by the Department are permitted within the secure perimeter of a correctional facility for use by staff. Hand sanitizer shall not be used in place of good hand washing technique. When not in use, the hand sanitizer and wipes shall be stored in accordance with Chapter 12 of the Environmental and Waste Management Plan. Staff are not be permitted to bring personal alcohol- based hand sanitizer or wipes through the gate.
ii. Gate Security
During the pendency of this pandemic only, Directors of Nursing (DONs) are authorized to possess their Department-issued cellular telephones inside the secure perimeter of a facility. Staff are permitted to bring in the following items without a gate manifest: o Department-issued hand sanitizer and wipes; o Acceptable gloves made of vinyl, nitrile, or latex; o Surgical masks made from polypropylene, polystyrene, polycarbonate, polyethylene, cotton, or polyester. They may be disposable or reusable (require washing); and o Disposable or reusable fabric gowns.
iii. Visits, Telephone Calls, and JPay (email)
Prisoner visits are suspended until further notice, including visits/programming from volunteers.
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In lieu of visits, prisoners are given two free phone calls (each lasting five minutes) and two free JPay stamps per week.
iv. Attorney Visits
To reduce the number of people entering facilities, attorneys shall be encouraged to speak with their clients via phone instead of conducting an in-person visit. While prisoners may continue to use the GTL phone system to call their attorneys, attorneys may contact the facility to request the opportunity to speak with their clients in lieu of an attorney visit. Accommodations shall also be made to assist attorneys with getting documents signed and returned via email or fax, if requested, to prevent unnecessary attorney visits to the facility. All in-person attorney visits must be approved by the appropriate ADD.
v. Parole Board Representatives
Prisoners are allowed one representative at Parole Board hearings, but the representative may only attend via telephone or other available electronic means.
vi. Large Gatherings
All large in-person gatherings shall be canceled including graduations, trainings, and job fairs. Other events requiring large gatherings are postponed as necessary.
vii. Transfers and cell moves
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No transfers shall be made unless approved by the CFA Deputy Director. Cell moves shall only be made if absolutely necessary (e.g., medical). If a prisoner needs to be transferred to an isolation area, transportation staff shall wear all required PPE.
viii. School and Programming
School classes and programming may be canceled as determined by the Warden or their designee in consultation with the appropriate ADD. The number of prisoners in each program shall be reduced to allow for appropriate social distancing. When possible, prisoners attending the class/program shall be seated a minimum of six feet apart. Face-to-face college courses shall be suspended.
ix. Searches
Clothed-body or thorough pat-down searches of prisoners are suspended for (1) prisoners who have tested positive for COVID-19, (2) PUIs, and (3) are a Close Contact. Similarly, the searches of prisoner living areas are suspended for cells or areas whose occupants (1) have tested positive for COVID-19, (2) are a PUI, and (3) Close Contacts. The search of common areas is still required and shall be completed when prisoners are not present. In the event a suspended pat-down search or cell search is required, the staff conducting the search shall wear PPE.
x. Prisoner Hygiene and Housing Unit Cleanliness
Prisoners shall always have an adequate supply of soap.
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An increased production of soap is authorized to maintain adequate supplies. Bleach is permitted to be used and stored in the housing units, and other areas of the facility as determined by the Warden. Only prisoners who are assigned as a porter may clean with bleach, and they shall be under direct staff supervision while cleaning with bleach.
xii. Food Service
The Business Manager shall ensure extra food is ordered (14 days on hand). The number of prisoners allowed to attend a meal at one time shall be reduced as determined by the Warden. Prisoners eating in the dining hall shall be seated in a fashion that allows them to avoid close contact with each other (i.e., six feet apart) and tables shall be sanitized between use. Prisoners shall stand at least six feet apart while waiting in line to receive their meal.
(DOM 2020-30, Ex. H to Defendants’ response brief.)
15. On April 20, 2020, in furtherance of the DOM, a COVID-19
Protocol Update was provided to all MDOC Healthcare Staff and
Wardens, in recognition of the fact that COVID-19 information,
including protocols and procedures, was changing rapidly as the MDOC
received updated information from the CDC, MDHHS, local health
departments and staff. These updated protocols and procedures include
but are not limited to:
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a. Creating separate housing units dedicated as management units for all COVID-positive prisoners to provide all medically necessary treatment and separate the positive inmates from the rest of the population.
b. Creating a step-down unit for all prisoners who previously tested positive for COVID-19 and have since been cleared by the MDOC’s chief medical officer, are symptom free, and are no longer considered contagious. Prisoners remain in the step-down unit for at least 14 days and until a negative COVID test is obtained before being released to general population.
c. Establishing updated parole/discharge criteria, addressing specific release requirements for COVID positive prisoners, PUIs and those in close contact (i.e., COVID positive prisoners will not be released until they are cleared by health care according to the COVID protocol).
d. Updating screening procedures for necessary intakes and transfers, incorporating current CDC screening guidelines.
e. Updating staff and prisoner COVID-19 evaluation requirements in accordance with CDC guidelines.
f. Updating social distancing protocols applicable to MDOC staff meetings, programs, classrooms, chow lines, and any other type of “gathering” in accordance with current CDC guidelines.
g. Updating hygiene and facility cleaning requirements in accordance with current CDC guidelines.
16. As of April 6, 2020, the MDOC has provided over 152,000
reusable cloth masks to staff and prisoners and continues to ensure that
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all staff and prisoners are wearing masks in accordance with CDC
guidelines (every staff and prisoner received three masks to rotate
through while soiled masks were laundered).
17. The MDOC is using non-traditional areas, such as gym
areas, to cohort PUIs, Close Contacts, and prisoners going through step-
down.
18. The MDOC is reducing the number of prisoners housed in
communal living arrangements (dorm-style settings or “cubes”) to the
fullest extent feasible to further promote social distancing. Additional
measures such as sleeping head-to-toe and every other bunk where
space allows have been implemented at the facilities. The MDOC’s
normal dorm-style capacity is 12,924 across all MDOC facilities, but
presently, the occupancy is closer to 11,300, and will be further reduced
whenever feasible as prisoners are further separated, isolated, and
paroled. The MDOC is taking unprecedented measures and utilizing
previously closed units to house inmates to the extent available staffing
levels allow.
19. Portable showers have been purchased and installed for use
by prisoners in non-traditional areas to minimize movement of
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prisoners through the housing units and avoid contact with other
cohorts to minimize individuals congregating in shower areas.
20. The MDOC has established a COVID positive response unit
(“COVID response units”) separated from housing units where non-
positive COVID-19 inmates are housed. These COVID response units
are located at Carson City Correctional Facility (DRF), G. Robert Cotton
Correctional Facility (JCF) K Unit, Green Oaks Temporary Facility
(formerly Maxey Boys Training School), a wing in the Duane Waters
Health Center (DWH), and a wing in the C unit at the Charles Egeler
Reception & Guidance Center (RGC). These units are used to provide
proper medical care to COVID-positive prisoners and to house them
separately from the rest of the prison population to contain the virus.
Gus Harrison Correctional Facility (ARF) has a step-down unit where
recovering inmates are sent.
21. Several MDOC facilities have their own COVID response
unit for their own inmates who test positive: JCF (in addition to K
Unit), Lakeland Correctional Facility (LCF), Women’s Huron Valley
Correctional Facility (WHV), Detroit Reentry Center (DRC) (dialysis),
and Macomb Correctional Facility (MRF).
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22. The MDOC is providing COVID testing at all facilities in
accordance with CDC guidelines.
23. Mass testing of all prisoners has already occurred at LCF
and JCF, including nasal swab testing of all prisoners and antibody
testing of prisoners who previously tested negative for COVID-19.
Additionally, the Michigan National Guard assisted in nasal swab
testing of all inmates housed in MDOC facilities in the Upper Peninsula
the week of May 4, 2020. On May 11, 2020, the Guard also assisted in
nasal swab testing all inmates housed at Oaks Correctional Facility.
On May 12, 2020, all inmates housed at ARF and Thumb Correctional
Facility (TCF) will be nasal swab tested, and all inmates housed at
Parnall Correctional Facility (SMT) who previously tested negative will
receive antibody testing. On May 13, 2020, all inmates at WHV will be
nasal swab tested and all inmates housed at DWH and C-unit will
receive both a nasal swab test and an antibody test. On May 14, 2020,
all inmates housed at St. Louis (SLF) and Central Michigan (STF)
Correctional Facilities will receive a nasal swab test.
24. The MDOC is developing a COVID-19 testing plan for staff.
For example, on May 13, 2020, about 400 staff in the Jackson area will
18
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receive voluntary nasal swab testing and antibody testing—this testing
was offered to all staff in the Jackson area. On May 14, 2020 we will
begin conducting the same staff testing at SLF and STF. Additional
plans to offer testing of staff are ongoing.
25. It is not feasible to verbally assess and take the temperature
of all 36,000+ prisoners in MDOC custody everyday due to staffing and
time constraints. However, PUIs, Close Contacts, and positive cases
are closely monitored and assessed daily in accordance with CDC
guidelines.
26. Further, to ensure continuing compliance with CDC
guidelines and MDOC’s COVID-19 protocols, I conduct daily meetings
(remotely, using Microsoft Teams) with my Deputy Directors, Assistant
Deputy Directors, the Healthcare Administrator and other top-level
staff, and near-daily telephonic meetings with every facility (including
Wardens and healthcare), to discuss MDOC’s ongoing COVID-19
response. Further, all MDOC facilities, through their Wardens, provide
a daily update that is distributed to the Executive Team addressing all
COVID-19 related developments, including but not limited to:
a. Procedures for movement of prisoners within the facility to maintain social distancing.
19
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b. Staffing levels and staffing issues in daily meetings.
c. Staggering of breaks and lunch times for staff to maintain social distancing.
d. Procedures for maintaining social distancing in chow halls and other areas, such as painting lines in food service area to maintain six-foot minimum distance between prisoners and restricting numbers of individuals per table.
e. Restricting access to programs, classrooms and other gatherings to maintain social distancing.
f. Updated procedures for cleaning cells, including procedures for using bleach.
g. Ensuring that prisoners receive frequent updates and are well informed of any changes in COVID-19 policies and procedures.
h. Ensuring that supplies of masks, soap, gloves and other PPE for prisoners remain in adequate supply, including N95 masks for prisoner transfers when necessary.
i. Ensuring that staff have an adequate supply hand- sanitizer, cleaning materials and PPE.
27. As of May 11, 2020, at 12:30 PM, of the 13,235 total number
of prisoners tested for COVID-19, 2,152 have tested positive, and there
have been 50 COVID-19 related prisoner deaths, which is a 2.32 percent
death rate of known positives. Test results for URF, KCF, and ECF,
where there are no known cases, are still pending. We have also had
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two COVID-19 related staff member deaths. While the death of a single
prisoner or staff member is tragic, through the collective efforts
discussed above, the MDOC has implemented numerous measures
consistent with, and, in some cases exceeding, CDC guidelines to
minimize these numbers as this unprecedented situation evolves.
28. In addition to MDOC’s swift and robust efforts to contain the
spread of COVID-19 within its facilities, as well as its methods for
containment when positive cases are identified, MDOC has also taken
the following actions to safely reduce its prison population during this
crisis:
a. On March 30, 2020, after seeking and receiving permission from Wayne County Circuit Court, 26 probationers, who were completing the reentry program, were released from custody to community supervision;
b. MDOC accelerated programming for parole violators (such violators are generally only returned for serious issues), so they could be re-paroled quicker;
c. All Holmes Youthful Trainee Act cases were reviewed, and release-eligible cases were sent to the sentencing judge for consideration, resulting in release of 22 trainees;
d. Wardens reviewed files of prisoners who were sentenced prior to Truth-in-Sentencing laws and were eligible for good-time credit but had previously forfeited earned time due to misconduct. In 79 cases, Wardens determined that prisoners were eligible for restoration of forfeited time. Of
21
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those 79 cases, 55 prisoners were paroled and 15 are still under review (9 received continuances);
e. The Parole Board can request a circuit court sentencing judge or their successor judge to allow the Parole Board to parole a habitual offender prior to the calendar minimum date. The Parole Board sent out 18 letters making such a request and to date have received 3 approvals;
f. The Parole Board has identified cases for public hearing for prisoners who were sentenced to life with the possibility of parole, and those hearings will resume virtually on June 1, 2020;
g. MDOC has also worked with the Parole Board to expedite its review process and reduce its number of deferrals, with the focus being on vulnerable prisoners, i.e., those over the age of 60; and
h. Once the Parole Board grants a parole, MDOC is actively seeking prosecutor waivers of the 28-day wait time before release.
These unprecedented population-reduction methods MDOC has
implemented have resulted in the following parole numbers for weeks
ending on Saturday:
April 11, 2020: 198 paroles
April 18, 2020: 153 paroles
April 25, 2020: 233 paroles
May 2, 2020: 197 paroles
May 9, 2020: 214 paroles
22
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29. On March 13, 2020, the MDOC population was 38,196. As of
May 9, 2020, the MDOC population was 36,781, which represents a
population decrease of 1,415 since March 13, 2020. In April 2020, the
prison population declined by 866. This is the largest monthly decline
in known MDOC history. Previously, the largest prison population drop
in a single month was 592 in July, 2007.
30. The MDOC is taking unprecedented measures to address
this pandemic, ranging from the opening of closed facilities to help
isolate PUIs, Close Contacts, and COVID-positive prisoners, and
expediting the review of parole eligibility wherever feasible, while
balancing MDOC’s responsibility to protect the safety of the public, and
minimizing the risk of releasing COVID-positive prisoners who may
endanger their communities.
31. In sum, acting in collaboration with my executive team and
staff, and in anticipation of the risks this unprecedented pandemic
presents to MDOC’s prison population, staff, and surrounding
communities, I have directed the swift implementation of COVID-19
policies and procedures, in consultation with local, state, and national
public health officials, to minimize the spread of COVID-19 to the
23
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fullest extent possible. The MDOC will continue to utilize every means
available, along with CDC guidelines, to combat the spread of COVID-
19 as this unprecedented situation evolves.
32. I make this affidavit on personal knowledge, and, if called
upon to testify, I can competently testify as to the matters contained
herein.
______Heidi E. Washington, Director
Subscribed and sworn before me in accordance with Executive Order 2020-74 this ______12 day of May, 2020.
______Notary Public, State of Michigan County of ______Eaton My commission expires: ______8/24/2023 Notarized using electronic/remote technology
24 Case 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1333 Page 26 of 38 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
Attachment 1
Affidavit of Heidi E. Washington
Case 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1334 Page 27 of 38 Contact MDOC FAQs MDOC Home MI.gov
CORRECTIONS / NEWS & PUBLICATIONS / PRESS RELEASES
MDOC Puts Screening Measures in Place to Protect Facilities Contact: Chris Gautz, Public Information Officer 517-241-0363, [email protected] FOR IMMEDIATE RELEASE MDOC Puts Screening Measures in Place to Protect Facilities
Lansing, Mich. - The Michigan Department of Corrections (MDOC) is taking a series of measures to protect its staff, the prison population and the community as the first presumptive positive cases of coronavirus disease 2019 (COVID-19) have been identified in the state. These are community cases and there is no known connection between these cases and the MDOC. Until further notice, anyone coming into a prison facility will be asked a series of screening questions and may have their temperature checked before being allowed entrance into a prison. This includes all staff, visitors, volunteers and contractors. On Tuesday night, Gov. Gretchen Whitmer declared a state of emergency after announcing two Michigan residents have tested presumptive positive for COVID-19. “Our primary focus is on public safety,” said MDOC Dir. Heidi Washington. “We take this issue seriously and we will do all we can to keep the public safe, as well as those we supervise across this state.” In communities where there are outbreaks, the department will consult with the local health department and the Michigan Department of Health and Human Services (MDHHS) and will potentially disallow all visits and outside contact from anyone other than MDOC personnel. If visits are cancelled, prisoners will have increased time for phone calls and for sending electronic messages to family and friends. Information on prevention is being provided to the prison population and MDOC staff. For the past week, facilities have undergone additional and more frequent cleaning of all facilities. The department is also reviewing all previously scheduled large events including graduations, corrections officer training academies and other training events. Staff and visitors can also access information about their facility by signing up for Nixle alerts.
/ To signCase up for 2:20-cv-11053-MAG-RSW Nixle alerts, go to www.michigan.gov/corrections ECF No. 27-5 filed 05/12/20 and select PageID.1335 the page for the Page correctional 28 of 38 facility in your area to register via the Nixle Widget, or text the zip code of the facility you would like to receive updates from to 888777. Information around this outbreak is changing rapidly. The latest information is available at Michigan.gov/Coronavirus and CDC.gov/Coronavirus.
Michigan.gov Home FOIA MDOC Home State Web Sites
Policies Michigan News ADA
Copyright 2020 State of Michigan
/ Case 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1336 Page 29 of 38 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
Attachment 2
Affidavit of Heidi E. Washington
Case 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1337 Page 30 of 38 Contact MDOC FAQs MDOC Home MI.gov
CORRECTIONS / NEWS & PUBLICATIONS / PRESS RELEASES
MDOC Halts All Visits at State Prisons Contact: Chris Gautz, Public Information Officer
[email protected], 517-241-0363
FOR IMMEDIATE RELEASE MDOC Halts All Visits at State Prisons
LANSING, MICH. The Michigan Department of Corrections (MDOC) will cease in-person visiting of prisoners effective immediately for the safety of staff, prisoners and the public. This will also include outside volunteers and other tours and groups who routinely come into the prisons.
There are now 12 cases of coronavirus disease 2019 (COVID-19) in the state, and in seven counties. These are community cases and there is no known connection between these cases and the MDOC.
“This was not a decision we arrived at lightly, as we understand and recognize the importance of family contact with the prison population,” said MDOC Director Heidi Washington. “Our primary concern has to be public safety and reducing the number of people who enter our facilities is a key factor in limiting the potential spread of this illness into our prisoner population.”
The department will monitor the situation to determine when visits will be restored.
During the period without visits, the department is working with its vendors that provide communication services to the prison population on enhanced services that may be able to be offered.
For staff working in the facilities, all will be asked a series of screening questions and will have their temperature checked before being allowed entrance into the prison. For those with a temperature above 100.4, they will not be allowed to work.
Information on prevention has been provided to the prison population and MDOC staff. For the past week, facilities have undergone additional and more frequent cleaning of the prisons.
Staff and visitors can also access information about their facility by signing up for Nixle alerts. To sign up for Nixle alerts, go to www.michigan.gov/corrections and select the page for the correctional facility in your area to register via the Nixle Widget, or text the zip code of the facility you would like to receive updates from to 888777.
Information around this outbreak is changing rapidly. The latest information is available at Michigan.gov/Coronavirus and CDC.gov/Coronavirus.
Michigan.gov Home MDOC Home FOIA State Web Sites
Policies Michigan News ADA
Copyright 2020 State of Michigan
/ Case 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1338 Page 31 of 38 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
Attachment 3
Affidavit of Heidi E. Washington
Case 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1339 Page 32 of 38
MDOC Coronavirus (COVID-19) Response Q&A
MI Dept. of Corrections Follow Mar 16 · 7 min read
The Michigan Department of Corrections is committed to ensuring the safety and well-being of staff, the public and those under our supervision. The following information will help address many commonly-asked questions regarding the MDOC’s response to coronavirus (COVID-19) and preventative steps we’re taking to help protect the health of employees, prisoners and those in the community.
1. Q. Is the MDOC allowing visitors at this time?
A. No, the Michigan Department of Corrections has ceased all in-person visiting of prisoners effective March 13. This also includes outside volunteers and other tours and groups who routinely come into the prisons.
2. Q. Does this include visits to my local county jail? Case 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1340 Page 33 of 38 A. The Michigan Department of Corrections does not operate or have jurisdiction over county jails. Please contact your local county or sheriff’s office for information on county jails.
3. Q. Will COVID-19 disrupt or delay the transfer of inmates between facilities?
A. During this time, transfers between facilities will not be authorized without the approval of the Assistant Deputy Director or higher.
4. Q. Will the MDOC continue to process paroles and release prisoners as scheduled?
A. The MDOC will continue to process paroles and release prisoners as scheduled at this time.
5. Q. Is the Parole Board still having public hearings?
A. The Parole Board has started to schedule public hearings, which will be held remotely, while ensuring those who need it have access. Links to these public hearings and information on when they are taking place are being provided on our website here.
6. Q: Is the parole board still having parole interviews?
A. The parole board will continue to conduct parole interviews via video conference as scheduled at this time.
7. Q. Can representatives still attend parole board interviews?
A. UPDATE: March 31, 2020. We are no longer allowing parole representatives to come into the prison for interviews. Please contact the facility the prisoner is housed at to see about options to phone in.
8. Q. Are attorney visits allowed?
A. Yes, attorney visits will continue at this time. All attorneys are subject to the same screening process as facility staff. Case 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1341 Page 34 of 38 9. Q. Since we can’t see our loved ones is the department offering enhanced communication services?
A. During this time when visits are suspended, we have worked with GTL and JPay to provide enhanced services for you to communicate with your family and friends. Detailed information from those companies is being relayed to the prisoner population, but initially GTL has offered two free, five-minute phone calls each week and JPay is offering two free stamps per week. These both begin Tuesday, March 17.
UPDATE: As of April 15, 2020, in addition to the weekly 2-free JPay Stamps that are credited to your account, JPay will be offering MORE JPay Stamps in the JPay Stamp packages at no additional cost. This Stamp Package promotion will be available through May 6, 2020.
Current Offering:
20 JPay Stamp Bundle: $5.00
50 JPay Stamp Bundle: $10.00
100 JPay Stamp Bundle: $20.00
Bonus Offering:
22 Stamp Bundle: $5.00
TWO additional JPay Stamp
55 Stamp Bundle: $10.00
FIVE additional JPay Stamps
110 Stamp Bundle: $20.00
TEN additional JPay Stamps
We will continue to work with the companies on anything else they may be willing to provide. Case 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1342 Page 35 of 38 10. Q. Do you know when the visitation suspension will be lifted?
A. Not at this time. The department will monitor the situation to determine when visits will be restored.
11. Q. Are deliveries of food and cleaning supplies still being accepted at the facilities? People are worried there is a shortage of food or sanitation supplies.
A. Yes. Deliveries continue as scheduled. The MDOC currently has adequate supplies of food and sanitation items and is monitoring supply levels continually.
12. Q. Will inmates still get their SecurePak orders?
A. Yes. SecurePak is on schedule.
13. Q. Is MDOC handing out bars of soap? What precautions is MDOC implementing regarding inmates washing their hands longer?
A. All prisoners have access to soap. We have increased soap in bathrooms as well as have directed MSI to increase production. CDC posters detailing proper hygiene practices have been posted in prisons and have also been recreated digitally so they play on TV screens throughout our facilities. These are the same posters you will see in your community and throughout State of Michigan office buildings.
14. Q. What is the department doing to encourage social distancing in the facilities?
A. The department continues to urge prisoners not to gather in unnecessary small or large groups and to practice social distancing when possible. We are running smaller groups, such as programs and classrooms, and we have limited the number of people going to the chow hall at any one time so we can seat prisoners further apart.
15. Q. Are prisoners being tested for COVID-19?
A. Facility healthcare staff will meet with prisoners who have presented with symptoms of coronavirus. The MDOC does not make the diagnosis of the coronavirus. The department is following the Michigan Department of Health and Case 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1343 Page 36 of 38 Human Services protocol. The department also started a system of mass testing that began at Lakeland and G. Robert Cotton Correctional Facilities in April. The department partnered with the Michigan National Guard to begin facility-wide testing for COVID-19 at facilities in the Upper Peninsula beginning May 4. Every prisoner at each of the six U.P. facilities will be tested during this process with the help of medical specialists from the Michigan National Guard.
16. Q. Do you have tests on site?
A. The department has secured testing kits so the prison population who meet the criteria can be tested quickly.
17. Q. Do prisoners have to pay to get tested?
A. Co-pays will be waived for any prisoner being tested for COVID-19.
18. Q. Are prisoners still receiving regular health care, dental care and medications?
A. Consistent with Gov. Gretchen Whitmer’s Executive Order 2020–17, the MDOC is postponing all non-urgent and emergent healthcare visits. To be clear, if a prisoner is sick, they will still be seen. There are no co-pays for urgent and emergent care as well as for suspected cases of the flu and COVD-19. Appointments for chronic care cases and med lines continue to operate. Medication renewals continue as well. Routine medical and dental visits, including annual health care screenings, will be rescheduled when the issue passes.
19. Q. My loved one has a scheduled release date. Am I still allowed to pick them up at the facility? Can I bring them clothes to change in to?
A. Yes, as of March 23, family and friends of prisoners who are being released may still pick them up at the facility. We are asking that you remain in the parking lot until they come out. The facilities will provide dress out clothing for prisoners being released.
20. Q. Are the classes that inmates take also cancelled? Case 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1344 Page 37 of 38 A. Face-to-face college classes at all facilities have been suspended. This is also a proactive step to keep all staff, volunteers, contractors, and prisoners safe. The MDOC will work with higher education institutions willing and able to deliver classes as correspondence courses. Core programming and school classes will continue at those facilities not currently under an Influenza quarantine.
21. Q. Is extra care going into cleaning prisons and sanitizing cells?
A. Facilities have undergone increased and more frequent cleaning. Bleach was also authorized for use to clean all facilities. Additional soap is being provided for prisoners and in the bathrooms. Cleaning products haven been placed next to the phones and in other high traffic areas.
22. Q. What actions are being taken to protect officers?
A. For staff working in the facilities, all will be asked a series of screening questions and will have their temperature checked before being allowed entrance into the prison. For those with a temperature above 100.4, they will not be allowed to work. Information on prevention has been provided to the prison population and MDOC staff. Facilities have also undergone additional and more frequent cleaning and the use of bleach has been authorized. The MDOC also provided masks to all prison employees and they are required to wear them at all times during their shift. They can also bring in their own PPE if they prefer theirs over the what the department provides.
23. Q. I’m a staff member and I had training and/or out of state travel scheduled. Is it cancelled?
A. No out-of-state business travel will be allowed through May 15. All in-state business travel should be for essential matters only. We are encouraging staff to refrain from conducting large meetings and instead use email or conference calls. If you had any travel or training scheduled between now and May 15, please speak with your immediate supervisor.
24. Q. Are you going to release prisoners early? Case 2:20-cv-11053-MAG-RSW ECF No. 27-5 filed 05/12/20 PageID.1345 Page 38 of 38 A. No. The MDOC has no legal authority to release prisoners before their earliest release date. The Parole Board is working seven days a week to expedite paroles for parole eligible prisoners at this time.
25. Q. Are you testing prisoners before they are released on parole?
A. The MDOC is working to expedite the parole release of those individuals who can safely and legally be released at this time. There are a number of steps that are included in the parole release process, which now includes testing for COVID-19 to ensure the individual will not pose a risk to loved ones or the community upon release. As a result, a limited number of parole dates may be changed to accommodate these processes.
Michigan Corrections Public Health Case 2:20-cv-11053-MAG-RSW ECF No. 27-6 filed 05/12/20 PageID.1346 Page 1 of 2 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT E
Case 2:20-cv-11053-MAG-RSW ECF No. 27-6 filed 05/12/20 PageID.1347 Page 2 of 2 Contact MDOC FAQs MDOC Home MI.gov
CORRECTIONS / NEWS & PUBLICATIONS / PRESS RELEASES
UPDATE -Two MDOC Employees Test Positive For COVID-19
Contact: Chris Gautz, Public Information Officer
[email protected], 517-241-0363
FOR IMMEDIATE RELEASE Two MDOC Employees Test Posi ve for COVID-19
LANSING, MICH. On Tuesday, March 17, the Michigan Department of Corrections was notified that two of its employees have tested positive for coronavirus disease 2019 (COVID-19).
One is an employee at the Jackson County Probation Office, who had a recent history of international travel. The second is an employee at the Detroit Detention Center, who does not have a history of domestic or international travel.
These are the first two MDOC employees who have tested positive for COVID-19.
The MDOC has been in contact with the individuals and the department is proactively working to determine any other employees and offenders these individuals have been in contact with.
“Our primary focus is the health and safety of our staff, the offenders and the public,” said MDOC Director Heidi Washington. “This is a matter we take seriously and are taking the advice of public health professionals and have notified employees who need to be quarantined.”
The Detroit Detention Center operates under an interagency agreement between the Detroit Police Department and the Michigan Department of Corrections and holds all pre-arraigned detainees 17 years of age or older in the City of Detroit for up to 72 hours. The detainees are arrested by the Detroit Police
Department and are not prisoners of the MDOC. Offenders at that facility are not transferred to MDOC facilities.
The department will provide further information as it becomes available.
Information around this outbreak is changing rapidly. The latest information is available at Michigan.gov/Coronavirus and CDC.gov/Coronavirus.
Information about steps the MDOC is taking in response to the virus is also available here.
Michigan.gov Home MDOC Home State Web Sites FOIA
Policies Michigan News ADA
Copyright 2020 State of Michigan
/ Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1348 Page 1 of 80 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT F
Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1349 Page 2 of 80
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
ELLIOTT ABRAMS, CRAIG SEEGMILLER, VINCENT GLASS, ROBERT REEVES, and LAMONT HEARD, individually, and on No. 2:20-cv-11053 behalf of all others similarly situated, HON. MARK A. GOLDSMITH
Plaintiffs, MAG. R. STEVEN WHALEN V AFFIDAVIT OF DR. CARMEN WILLIS CHAPMAN, NOAH MCINTYRE NAGY, MELINDA BRAMAN, BRYAN MORRISON, and HEIDI WASHINGTON,
Defendants.
Daniel Manville (P39731) Kevin J. O’Dowd (P39383) Attorney for Plaintiffs Kristin M. Heyse (P64353) Civil Rights Clinic, Scott A. Mertens (P60069) MSU College of Law Sara E. Trudgeon (P82155) P.O. Box 1570 Cori E. Barkman (P61470) East Lansing, MI 48823 Allan J. Soros (P43702) (517) 432-6866 Assistants Attorney General [email protected] Attorneys for MDOC Defendants MDOC Division P. O. Box 30217 Lansing, MI 48909 (517) 335-3055 [email protected]
Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1350 Page 3 of 80
Kevin Ernst (P44223) Attorney for Plaintiffs Ernst Charara & Lovell, PLC 645 Griswold, Ste 4100 Detroit, MI 48226 313-965-5555 [email protected] /
AFFIDAVIT OF DR. CARMEN MCINTYRE
Dr. Carmen McIntyre, being first duly sworn, deposes and says as
follows:
1. I am the Chief Medical Officer for the Michigan Department
of Corrections where I have been employed since December 17, 2017.
2. In general my responsibilities are to help set policy
respective to the clinical delivery of healthcare within the MDOC; to
chair various committees related to practice oversight and quality
improvement including Gender Dysphoria Review Committee,
Mortality Review, Infectious Disease Control, Pharmacy and
Therapeutics, Medical Services Advisory Committee, and Quality
Improvement. I liaise with Corizon Healthcare leadership to improve
practice standards and outcomes.
3. I am also employed with Wayne State University where I am
Associate Chair of Community Affairs, Director of Public Psychiatry 2
Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1351 Page 4 of 80
Fellowship, Assistant Professor for the Department of Psychiatry and
Behavioral Neurosciences.
4. The first case of a prisoner testing positive for COVID-19
was on March 22, 2020. However, he was hospitalized for a non-COVID
related health issue at War Memorial Hospital on March 11, 2020. He
was transferred to McClaren Northern hospital March 17, 2020, where
he was tested for COVID-19 on March 20, 2020 and reported positive
March 22, 2020. On March 25, 2020, he was discharged to DWHC to a
negative pressure room and was not released from COVID isolation
until repeat testing was negative.
5. March 24, 2020 was the first date any inmates tested
positive at an MDOC facility. The inmates were isolated and tested on
March 22, 2020, when they first became symptomatic.
6. Under my guidance and supervision, the MDOC has
implemented specific COVID-19 Infection Control Guidelines. (Attach.
1.)
7. These Infection Control Guidelines address three main
issues: Prevention, Screening and Evaluation, and Management.
3
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Prevention:
8. The MDOC has implemented and advised employees and
inmates of the following COVID-19 prevention steps:
Hygiene:
i. Wash your hands often with soap and water. If not available, use hand sanitizer with at least 60% alcohol content (staff). ii. Avoid touching your eyes, nose or mouth with unwashed hands. iii. Cover your mouth and nose with a tissue when coughing, and promptly dispose of the tissue. iv. Stay home if you are sick. v. Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, keyboards, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label. vi. No additional disinfection beyond routine cleaning is recommended at this time. vii. MDOC is requiring that a facemask always be worn by inmates and by staff.
Social Distancing:
i. In accordance with the CDC recommendations to prevent transmission of the COVID-19 virus, it is directed that the social distancing recommendation be followed in all programs, classrooms, chow lines, staff screenings, and any other types of “gatherings.” ii. This means that there should be a distance of at least six feet between prisoners and staff to the extent 4
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feasible. Given the diversity of room sizes throughout CFA, some facilities may be able to accommodate the current group sizes. However when the normal group size cannot be accommodated with social distancing, rather than removing participants from the activity, it is directed that staff seek a larger space or schedule additional times to run those activities with smaller cohorts so that opportunities for prisoners are not reduced. iii. Staff meetings and other group interactions of 10 or more should be limited. It is recommended that technology be used in place of group interactions when possible. If technology cannnot be used, it is imperative that social distancing be practiced.
Screening and Evaluation:
Intake:
9. The MDOC, with my guidance, has also developed a
comprehensive screening and evaluation protocol that either meets or
exceeds guidelines established by the Centers for Disease Control and
Prevention (CDC) as they pertain to correctional facilities.
10. All inmates arriving to the reception center or transferring
from facility to facility complete basic screening questions with a nurse.
(Attach. 2.)
5
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11. Inmates complete the same screening questions prior to
being sent to any offsite appointments, i.e. doctor appointments,
WRITs, etc….
12. The inmate screening evaluation is also completed on all
inmates who parole or discharge.
Evaluation:
13. If an inmate reports signs or symptoms of fever, new onset
(within 14 days) or worsening cough, or shortness of breath, (screening,
kite or telephone contact) or answers “yes” to any of the travel screening
questions, the inmate is examined immediately by an RN and referred
directly to a medical provider for evaluation.
14. If the inmate is symptomatic:
• The inmate is provided with a facemask as quickly as possible. • The inmate is triaged and assessed in an area that is separate from other inmates separated by six or more feet. • Healthcare workers assessing the inmate implement standard, contact, and airborne precautions, including the use of Personal Protection Equipment (PPE) and eye protection during evaluation. • Escorting officers/staff also implement standard, contact, and airborne precautions, including the use of PPE and eye protection during evaluation. 6
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15. The PPE mandated by the MDOC is consistent with or
exceeds CDC Guidelines and at a minimum consists of gowns, gloves,
NIOSH-certified disposable N95 respirator, and eye protection.
16. If the inmate is an asymptomatic close contact:
• The inmate is provided with a facemask. • The inmate is triaged and assessed in an area that is separate from other inmates separated by six or more feet. • Healthcare workers assessing the inmate implement standard, contact, and airborne precautions, including the use of Personal Protection Equipment (PPE) and eye protection during evaluation. • Escorting officers/staff also implement standard, contact, and airborne precautions, including the use of PPE and eye protection during evaluation.
17. The MDOC, with my guidance, has also developed a
comprehensive protocol for diagnosing COVID-19 that either meets or
exceeds guidelines established by the CDC as they pertain to
correctional facilities. This protocol is subject to change as additional
information becomes available.
18. Currently, healthcare looks for the following symptoms to
determine whether or not an individual is a Person Under Investigation
(PUI): 7
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• Fever and/or • Acute respiratory illness (e.g., cough, difficulty breathing). Clinicians are strongly encouraged to test for other causes of respiratory illness, including infections such as influenza. • Other symptoms include chills, muscle pain, headache, sore throat, repeated shaking with chills, and loss of taste or smell. • Epidemiologic factors that may help guide decisions on whether to test for COVID-19 include: any persons, including healthcare workers, who have had close contact with a laboratory-confirmed COVID-19 inmate within 14 days of symptom onset, or a history of travel from affected geographic areas within 14 days of symptom onset.
19. A PUI is specifically defined as a person suspected of
having symptoms of COVID-19. This designation is made by the
Michigan Department of Health and Human Services (MDHHS) or the
primary care provider based on travel history, exposure to confirmed
cases of COVID-19, and the presence of symptoms.
20. Consistent with CDC and MDHHS guidelines, the
following priorities are observed for testing:
• Priority 1 o Ensures optimal care options for all hospitalized inmates, lessen the risk of healthcare-associated infections, and maintain the integrity of the U.S. healthcare system o Hospitalized inmates
8
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o Healthcare facility workers with symptoms • Priority 2 o Ensures those at highest risk of complication of infection are rapidly identified and appropriately triaged o Inmates in long-term care facilities (including prison) with symptoms o Inmates 65 years of age and older with symptoms o Inmates with underlying conditions with symptoms o First responders with symptoms
21. If MDHHS determines the inmate meets the criteria for a
PUI, specimen testing will be recommended.
22. Inmates are informed of their result promptly, and educated
on their healthcare condition, including prevention and management.
Management:
23. The MDOC, with my guidance, has established a
comprehensive inmate management protocol.
24. Inmates are managed, in large part, based on the criteria set
forth in the attached Acuity Scoring & Management Guide (Attach. 3.)
25. For inmates who are to remain onsite or who are discharged
from the hospital, very specific protocols have been implemented (see
Attach. 1, Sec. 3.), including but not limited to:
9
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• The facilities are to designate a sick room or cell for isolation, i.e a single cell. An inmate who is a PUI is isolated in the sick room or isolation cell. Signs are posted outside of the sick room or cell that clearly describes the type of precautions needed and required PPE. • The inmate has access to PPE. • The PUI is evaluated by nursing daily and referred to a medical provider for signs/symptoms of deterioration. Temperature, pulse oximetry, heart rate, and respiratory rate is documented along with screening for worsening symptoms. • Close contacts are identified, evaluated, and quarantined. • The close contacts have their vitals obtained once a day by the RN or any medically licensed/certified personnel and complete the symptom screen. Temperature, pulse oximetry, heart rate, and respiratory rate is documented. If the inmate develops symptoms, they are referred to the medical provider immediately for evaluation and placed in isolation. • A COVID positive inmate is evaluated by nursing twice daily utilizing the MDOC COVID-19 Acuity Scoring and Management Guide. • Appropriate PPE devices are used by health care and custody staff during each encounter. Signs are posted outside of the sick room or cell that clearly describes the type of precautions needed and required PPE. • Access in and out of the cells for the PUI and close contacts who are isolated is limited. Meals are administered in the cell. Inmates are allowed access to showers three times per week. If the inmate must leave the cell, they must wear a mask. Any equipment that is used is sanitized.
10
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• Quarantine duration for close contacts is 14 days from the date of last contact with the PUI.
26. A lab positive PUI can be housed with another lab positive
PUI. PUI’s who have a pending lab test are not housed with other
PUI’s with a pending test. They are isolated in a single cell.
27. When possible, close contacts are isolated in a single cell.
When this is not possible, close contacts of a single PUI can be cohorted.
Housing together cohorts of close contacts from multiple PUI cases
should be avoided when feasible. When close contacts of multiple PUIs
must be housed together, they are masked, and bunks are arranged
head to toe to maximize social distancing and to minimize viral
transmission.
28. In accordance with MDHHS guidelines, an inmate is eligible
for consideration to be released from COVID isolation following:
• At least 30 days have passed since the onset of symptoms, or since the date of test-confirmation of COVID-19, when onset date is unknown. • A negative test for COVID-19 has been returned no sooner than day 29 since onset, or date of test when onset date is unknown. • Resolution of COVID-19 symptoms.
11
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29. Close contacts of a COVID positive inmate are quarantined
for 14 days from the last contact with the COVID positive inmate.
30. If a PUI has a negative test, the PUI and close contacts are
released from COVID related precautions if the inmates are
asymptomatic. If symptoms remain including fever, they are evaluated
by a medical provider prior to release.
31. A PUI or close contact who is being discharged or released
will be advised to self-isolate for the appropriate time frame upon
discharge.
32. A COVID positive inmate may be housed/remain at the
current facility for some or all of the stages toward their recovery.
33. A COVID positive inmate may be transferred to a COVID
positive cohort unit.
34. Consideration for transfer is made on a case by case basis by
utilizing the MDOC COVID Placement Flow Chart. (Attach. 4.)
Factors for consideration include:
• The number of positive cases and close contacts at the current facility. • The arrangement of housing at the facility. Cubes, dorms, pods, and open bar cells are given preference for consideration to transfer. 12
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35. The MDOC has established specialized units to help
treat COVID positive inmates. Eligibility for these units is determined
on a case by case basis by the onsite medical team, the regional Medical
Director, and the Chief Medical Officer.
36. All staff and contractors are screened prior to entering the
facility utilizing the Michigan Department of Corrections Staff
Screening Questionnaire. (Attach. 5.)
37. The individual’s temperature is also taken before entry.
38. If a staff member or contractor is deemed to be symptomatic,
the individual is sent home where they must isolate for a minimum of
seven days since the onset of symptoms.
39. In order to return to work, the individual must be symptom
and fever free for 72 hours without the use of fever reducing
medications.
40. If a staff member or contractor has traveled outside of the
United States to a country designated as a warning level three in the
last 14 days, they are sent home and instructed to isolate for a period of
14 days from the time they returned to the United States.
13
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41. If a staff member or contractor has been a close contact with
a COVID positive person without wearing appropriate PPE, the
individual is sent home and must quarantine for 14 days from the date
of last contact.
42. In order to return to work, the individual must be symptom
and fever free for 72 hours without the use of fever reducing
medications and completed the 14-day quarantine.
43. For healthcare workers, if in the past 14 days, they have
been a close contact of a COVID positive person without wearing
appropriate PPE the healthcare worker must check their temperature
twice a day, preferably eight hours apart, and self-monitor for any
COVID symptoms.
44. If their temperature is 100.0 degrees Fahrenheit or greater
or symptoms develop, the licensed healthcare worker is sent home
where they must isolate at home for a minimum of seven days since the
onset of the fever.
45. In order to return to work, the individual must be symptom
and fever free for 72 hours without the use of fever reducing
medications. 14
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46. If the individual develops any additional symptoms or have
been a close contact of a confirmed COVID positive patient, they must
seek out medical attention.
Plaintiffs’ Dr. Adam Lauring:
47. I have reviewed the declaration of Dr. Adam Lauring. (Ex.
25 of Plaintiffs’ motion).
48. In response to paragraph 7 of his declaration, while it is
generally true that congregate living settings carry a higher contagion
transmission risk than the general community, and incarcerated
persons have higher rates of comorbid general and behavioral health
disorders than the general population, one must consider the
comparators. The majority of our prison population upon release would
be returning to the City of Detroit, and Wayne County Michigan. Their
cohorts in those settings have higher rates of comorbid disorders and
other health and social risks than the general community, which is part
of the reason why Michigan, in particular, Detroit/Wayne County are
such hotspots for COVID-19. Based on May 6, 2020 data found on the
Detroit and MDHHS websites, Detroit has tested 20,272 persons, which
is only 2.8% of their population, received results for 18,113, has an 15
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average wait time of 4.9 days for test results, has had 8,332 cases and
786 deaths. Most would concur that there is vast under identification of
the disease, and COVID-related deaths, as well as actual incidence and
prevalence are under-reported, in part due to poor testing availability.
Detroit’s death rate is 9.4%. Wayne County has reported 17,571 cases,
1,973 deaths, a mortality rate of 11%. The MDOC, however, is testing
all individuals who are complaining of symptoms, typically at the point
of the complaint. We are also conducing mass testing of all individuals,
whether symptomatic or not, in many of our facilities. Once persons
suspected of having COVID-19 are identified, they are immediately
isolated, their close contacts are isolated and clinically assessed, and
COVID positive persons cohorted and isolated separately. These
positive patients receive nursing assessments daily, including oxygen
saturation and other vital signs. The MDOC as of May 3, 2020 has
tested 11% of our population, will have completed mass testing of all the
upper peninsula facilities by week’s end, and will move on to mass
testing of numerous other facilities soon including antibody testing.
The mortality rate has been at 2% when the testing was only conducted
16
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on symptomatic patients. Now that we are identifying asymptomatic
positive cases, I expect our mortality rate to decrease.
49. Hence, within a reasonable degree of medical certainty,
I would argue that our prisoners, compared to their Southeastern
Michigan comparators, while likely equal in pre-morbid health
conditions, have far greater access to healthcare, testing, and quality
clinical care resulting in better outcomes than those in the communities
from where they came.
50. In response to paragraph 8 of his declaration, the
MDOC does not allow visitors, and most contractors and vendors have
been excluded as well. Anyone currently entering any MDOC facility is
screened including temperature prior to being allowed in the facility.
Of course, there are asymptomatic carriers throughout the community.
We do not have rapid turnover in the prisons, we have restricted any
movement between facilities except for medical management or
significant security concerns. Court proceedings have been electronic or
postponed.
17
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51. In response to paragraph 9 of his declaration, it is true
that many prisoners live in close quarters allowing person-to-person
transmission of contagious diseases. However, the MDOC has greater
control of the movement of its residents than is available to the
community. Therefore, we have a greater ability to isolate effectively
COVID positive persons. The MDOC has taken measures to maximize
the opportunities for social distancing, including movement by small
units to meals, outdoor activities, reducing the size of or temporarily
eliminating groups and classes. The need to sanitize the phones after
every use along with community bathrooms and kiosks is in place. The
facilities have taken measures to mark out places where prisoners
should stand to reinforce social distancing. This information has been
reinforced through ongoing JPay messages to the population,
communication with the Warden’s Forum and regular communication
with the population.
52. In response to paragraph 12 of his declaration, while
our infection rate is higher than Michigan county communities, our
testing rates are much higher, a large proportion of our positive cases
were asymptomatic cases found through mass testing, and our 18
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mortality rates are lower than many Michigan communities including
Detroit and Wayne County.
53. In response to paragraph 13 of his declaration, the
MDOC does not use disciplinary segregation for infection control. PUIs
are housed singly pending the testing results, which are typically
received within 24 hours. If positive, prisoners are cohorted together.
Close contacts are cohorted together, separated by PUI when possible,
until the PUI’s test results are known. Hospitals are known to isolate
individually due to illness, for example, tuberculosis, chicken pox,
shingles, measles…, to minimize contagion risk. At the MDOC we do
the same, including negative pressure rooms when appropriate for
tuberculosis. The short-term use of single cells for medical isolation is
not punitive and is within community standards for management of
diseases which spread through droplets and fomites.
54. In response to paragraph 14 of his declaration, the MDOC
makes soap readily available. During outbreaks, we make bleach-based
cleaning solutions more readily available and have done so with this
pandemic. In fact, special authorization was provided to allow
prisoners to use bleach-based cleaning materials during this pandemic. 19
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With this pandemic we have added alcohol-based sanitizers available
for staff as well.
55. In response to paragraph 15 of his declaration, the MDOC
has made several masks available, and required, for all prisoners and
staff. PPE is available for staff, both corrections officers and health
care staff, as appropriate to the setting.
56. In response to paragraphs 17 and 18, every facility has on-
site health care. Many have on-site 24-hour health care, and all have
on-call medical providers for all off hours. Our care is evidence- and
best-practice based. We are working closely with MDHHS, CDC,
infectious disease specialists, and our community hospital providers to
develop and constantly update our management protocols. Our access
to testing kits and laboratory services has outpaced reported
community access.
57. In response to paragraph 19 of his declaration, the MDOC
does refer urgent cases to area hospital emergency departments. We
have not experienced as many denials of care that members of the
community have reported from their emergency departments. We have
close relationships and pre-existing contractual relationships with 20
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many community hospitals, and are having frequent planning meetings
with the hospitals, often facilitated by the MDHHS Bureau of EMS,
Trauma and Preparedness (BETP) Medical Director Dr. Fales. A
majority of our community hospital resources are not in Wayne and
Oakland Counties, so their lack of capacity does not significantly impact
us.
58. In response to paragraph 20 of his declaration, the MDOC
has increased its use of technology to support telemedicine to fulfill our
medical provider needs. We have been aggressive in pursuing adequate
testing supplies and capacity to address our assertive testing strategy.
We have been innovative in getting masks, gowns and other PPE made
within our facilities. We have not had disruptions to our medication
availability. Any supply chain disruptions that would impact us would
at least equally disrupt community care as well. We are monitoring
supplies daily to ensure we have the appropriate supplies through
our emergency management process. As for providers, we continue to
shift coverage as needed and added resources to COVID positive
prisons as needed. We continue to recruit for staff throughout this
21
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process and have even secured resources through MDHHS, and our
temporary staffing contracts.
59. In response to paragraph 27 of his declaration, the MDOC
has been planning and updating our plan and response since February,
in conjunction with MDHHS and the Michigan CDC representatives.
We have had a plan in place that has gone through updates throughout
the pandemic.
60. In response to paragraphs 28 and 29 of his declaration, we
do not endorse the prisoners’ claims and disagree that we are “obviously
under-equipped and ill prepared…”. The facts show otherwise.
61. In response to paragraphs 34 and 35, every facility has on-
site health care. Many have on-site 24-hour health care, and all have
on-call medical providers for all off hours. MDOC’s health care policy
(Attach. 6.), specifically addresses in detail the availability of medical
services in response to prisoner requests for routine health services and
urgent/emergent health services.
62. In response to paragraph 36, MDOC is testing all individuals
who are complaining of symptoms, typically at the point of the
complaint. We are also conducting mass testing of all individuals, 22
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whether symptomatic or not, in many of our facilities. Once persons are
suspected of having COVID-19 are identified, they are immediately
isolated, their close contacts are isolated and clinically assessed, and
COVID positive persons cohorted and isolated separately. These
positive patients receive nursing assessments daily, including oxygen
saturation and other vital signs.
63. In response to paragraph 37, MDOC is following the order of
preference for housing of individuals under medical isolation as outlined
by the CDC Updated Guidance on Management of Coronavirus Disease
2019 in Correctional and Detention Facilities.
64. In response to paragraph 39, MDOC’s objective is to
minimize COVID-19 transmission within its facilities to the fullest
extent feasible through the implementation of the specific COVID-19
Infection Control Guidelines discussed above.
65. In response to paragraph 40, we have used the Corizon Risk
Scores to help identify persons whose comorbid conditions put them at
higher risk for more severe presentation of COVID-19. We have used
these scores, as well as our Acuity Scores for persons who are COVID-
19 positive, baseline lab testing, and frequent monitoring of vital signs 23
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to identify groups that should receive more assertive monitoring,
supportive care, and earlier transition to community hospital.
66. In response to paragraph 41, I can verify that the MDOC is
complying with the CDC’s guidelines.
Plaintiffs’ Dr. Jeremy D. Young:
67. I have reviewed the declaration of Dr. Jeremy D. Young.
(Ex. 26 of Plfs.’ motion.)
68. In response to paragraph 5, I re-state my responses in
paragraphs 47-49 supra.
69. In response to paragraph 6, it is true that many prisoners
live in close quarters allowing person-to-person transmission of
contagious diseases. However, the MDOC has greater control of the
movement of its residents than is available to the community.
Therefore, we have a greater ability to isolate effectively COVID
positive persons. We control the visitors (none currently), contractors
and vendors (the few allowed in are all screened prior to entry) and
have limited movement between facilities.
24
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70. In response to paragraph 7, the MDOC has taken many
measures to maximize the opportunities for social distancing, including
moving prisoners in small groups, placing social distancing markers
throughout the facility, staggering visits to dining areas, minimizing
the number of prisoners seated at a table, enforcing rules against
groups congregating in common areas, delivering meals in lieu of using
dining halls, suspending group activities, classes and programs as
necessary and/or significantly reducing the size of groups and classes.
71. In response to paragraph 8, I restate my response in
paragraph 53 regarding the availability of soap and bleach-based
cleaning solutions.
72. In response to paragraph 9, I restate my response in
paragraph 54 above regarding the availability of masks and PPE.
73. In response to paragraph 10, I restate my response to
paragraph 55 above regarding on-site health care.
74. In response to paragraph 11, I restate my response to
paragraph 56 above regarding referral of urgent cases to area hospital
emergency departments.
25
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75. In response to paragraph 12, I incorporate my response to
paragraph 5 of Dr. Young’s declaration wherein I re-state my responses
in paragraphs 47-49 supra. By way of further response, I state that as
compared to the community, we are well-aware of the medical history
and current chronic conditions and medications that our prisoners have.
We are able identify those at highest risk for severe outcomes from
COVID and monitor them closely so we can provide supports and
baseline labs.
76. In response to paragraph 22, I can verify that the MDOC has
appropriate medical isolation, social distancing, hand hygiene and PPE
protocols at all our facilities.
77. In response to paragraph 23, persons in nursing homes
typically are limited by cognitive disorders or physical frailty from
complying with social distancing and other infection control
interventions. While some of our population are similarly disabled,
most can understand the education around COVID-19 prevention and
can choose to comply or not. Unlike people in some congregate settings,
many of our residents are not able to refuse to comply with social
distancing and medical cohorting. 26
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78. In response to paragraph 29, MDOC’s policies have been
well informed by and formulated in accordance with the CDC’s specific
guidance for carceral settings and have been developed with the input
from the CDC’s Dr. McFadden, a medical epidemiologist.
79. I make this affidavit on personal knowledge, and, if called
upon to testify, I can competently testify as to the matters contained
herein.
______Dr. Carmen McIntyre Chief Medical Officer, MDOC
Subscribed and sworn in accordance with Executive Order 2020-74 before me This __12____ day of May, 2020.
______Notary Public, State of Michigan County of _Eaton______My commission expires: _8/24/2023______Notarized using electronic/remote technology
27 Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1376 Page 29 of 80 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
Attachment 1
Affidavit of Dr. Carmen McIntyre
Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1377 Page 30 of 80 Michigan Department of Corrections Coronavirus 2019 (COVID-19) Guidelines Updated 4/29/2020
OVERVIEW: Coronaviruses are a large family of viruses. Some cause illness in people, and others, such as canine and feline coronaviruses, only infect animals. Rarely, animal coronaviruses have emerged to infect people and can then spread between people. This is suspected to have occurred for the virus that causes COVID-19. Middle East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS) are two other examples of coronaviruses that originated from animals and then spread to people. SARS-CoV-2 is a new coronavirus that has not been previously identified. This virus causes the disease of COVID-19. The virus causing COVID-19 is not the same as the coronavirus that commonly circulate among humans and cause mild illness, like the common cold. This virus was first detected in Wuhan City, Hubei Province, China. The first infections were linked to a live animal market, but the virus is now spreading from person-to-person. It’s important to note that person-to-person spread can happen on a continuum. Some viruses are highly contagious (like measles), while other viruses are less so.
Information regarding COVID-19 in Michigan can be found here: https://www.michigan.gov/Coronavirus
Who is at risk:
Currently, COVID-19 exposure is rapidly increasing in Michigan. Persons at risk for severe disease include people aged 65 years and older; and people with certain health conditions such as chronic lung disease or moderate to severe asthma; serious heart conditions; compromised immune systems; severe obesity; or uncontrolled diabetes. To minimize the risk of spread State health officials are working with healthcare providers to promptly identify, evaluate, and complete diagnostic testing on suspected cases.
The MDOC will comply with all State orders and directives issued intended to address risk and manage illness, which can be found here:
https://www.michigan.gov/coronavirus/0,9753,7-406-98178_98455---,00.html
Suspected cases are classified as persons under investigation (PUI). This designation is made by the Michigan Department of Health and Human Services (MDHHS) in conjunction with the CDC guidelines and medical providers performing assessments. Transmission:
The virus that causes COVID-19 seems to be spreading easily and sustainably in the community (community spread) in some affected geographic areas. Community spread means people have
1
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been infected with the virus within a specified area, including those who are not sure how or where they became infected.
The virus is thought to spread mainly from person-to-person via respiratory droplets, resembling the spread of influenza.
It could be spread through:
the air by coughing and sneezing. close personal contact, such as touching or shaking hands. touching an object or surface with the virus on it, then touching your mouth, nose, or eyes. in rare cases, contact with feces.
It is possible that a person can contract COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes. According to the World Health Organization (WHO), coronaviruses may survive on surfaces for just a few hours or several days. Many factors will influence this, including surface material and weather.
Symptoms: People who have been diagnosed with COVID-19 have reported symptoms that may appear in as few as two days or as long as 14 days after exposure to the virus. Most cases are occurring approximately five days after exposure. Symptoms may include fever, cough, and difficulty breathing (shortness of breath). Other symptoms may include body aches, sore throat, diarrhea, nausea and vomiting. Pneumonia appears to be the most frequent serious manifestation of infection. Older people and people of all ages with severe underlying health conditions such as heart disease, lung disease and diabetes, seem to be at higher risk of developing serious COVID-19 illness.
DEFINITIONS: Close Contact: a) Being within approximately 6 feet of an individual with COVID-19 for a period of 10 minutes or longer. Close contact can occur while caring for, living with, visiting, or sharing a health care waiting area or room with a COVID-19 case while the patient was symptomatic. b) Having direct contact with infectious secretions of a COVID-19 case. One example of this would be being coughed or sneezed on.
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c) To identify close contacts, you determine the date of onset of symptoms and go back two days prior to the onset of symptoms. COVID-19: An infectious disease caused by the virus SARS-Cov-2 Fever: A temperature of 100.4 F or higher. Persons Under Investigation (PUI): Persons suspected of having symptoms of COVID-19. This designation is made by the Michigan Department of Health and Human Services (MDHHS) or your primary care provider based on travel history, exposure to confirmed cases of COVID-19, and the presence of symptoms. A PUI has a pending confirmation test. COVID positive: A PUI who now has a lab confirmed/positive test. Isolation: Separation of people who are/may be contagious from those who are not sick. Quarantine: A state, period, or place of isolation. A patient may be placed in quarantine if they have been diagnosed as a PUI by MDHHS or their PCP. A person may also self-quarantine. Self- quarantine is not considered a PUI.
INFECTION CONTROL: 1. PREVENTION: Steps you can take to prevent spread of flu and the common cold will also help prevent COVID-19. a. Hygiene: 1. Wash your hands often with soap and water. If not available, use hand sanitizer with at least 60% alcohol content. 2. Avoid touching your eyes, nose or mouth with unwashed hands. 3. Cover your mouth and nose with a tissue when coughing, and promptly dispose of the tissue. 4. Stay home if you are sick. 5. Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, keyboards, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label. 6. No additional disinfection beyond routine cleaning is recommended at this time. 7. MDOC is requiring that a facemask be worn during your shift.
b. Social Distancing:
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1. In accordance with the CDC recommendations to prevent transmission of the Covid-19 virus, it is directed that the social distancing recommendation be followed in all programs, classrooms, chow lines, staff screenings, and any other types of “gatherings.” 2. This means that there should be a distance of at least 6 feet between prisoners and staff. Given the diversity of room sizes throughout CFA, some facilities may be able to accommodate the current group sizes. However when the normal group size cannot be accommodated with social distancing, rather than removing participants from the activity, it is directed that staff seek a larger space or schedule additional times to run those activities with smaller cohorts so that opportunities for prisoners are not reduced. 3. Staff meetings and other group interactions of 10 or more should be limited. It is recommended that technology be used in place of group interactions when possible. If technology can’t be used, its imperative that social distancing be practiced. 4. Additional information and resources can be found at the CDC, Michigan Department of Health and Human Services (MDHHS), and World Health Organization (WHO): https://www.cdc.gov/coronavirus/2019-ncov/index.html https://www.michigan.gov/mdhhs/0,5885,7-339-71550_5104_97675--- ,00.html https://www.who.int/
2. SCREENING AND EVALUATION for COVID-19 Due to the severity of the COVID-19 disease, the Michigan Department of Corrections has developed a screening and evaluation protocol. As part of the protocol, it will be necessary to screen and limit MDOC visitors and staff into the MDOC facilities. This is an important step to reduce the risk of exposure to the prison population, staff, and attempt to minimize the spread of the virus. a. Screening 1. Intakes: All inmates arriving to the reception center or transferring from facility to facility will complete basic screening questions with a nurse. This can be completed during the normal intake/transfer assessments. A brief discussion about the screening will be
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entered into COMS if the patient screens negative. If the patient screens positive, the screening form will be scanned into COMS.
Screening questions: o Have you traveled or reside in an area with coronavirus activity within the last 14 days? a. If yes, where: b. Dates: o Have you been in close contact with a Person Under Investigation (PUI) who has tested positive for COVID-19 in the last 14 days? a. Where: b. Date: Presence of symptoms: o Fever Temperature Sweats or chills Sore throat o Lower Respiratory Illness New onset (within 14 days) or worsening cough New onset of shortness of breath o GI symptoms New onset of nausea New onset of diarrhea 2. Offsite appointments/WRITs:
Patients will complete the same screening questions prior to being sent to their offsite appointment, ie doctor appointments, WRITs, etc.
3. Paroles/discharges: The prisoner screening evaluation will be completed on all inmates who parole or discharge. If the prisoner screens positive the HUM will notify Elizabeth Turner, Stephanie Smoyer, and Marti Kay Sherry via email. The provider will complete an evaluation of the patient. Screening for paroles and discharges: complete within 24 hours before leaving – the closer to the time of leaving the facility, the better.
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Screening for offsites and WRITS: complete within 1-2 hours before they leave. It is recognized that there are times when the facility will not have health care staff 1-2 hours prior to their leaving (i.e. no night shift nurse), in that case, you need to conduct the screening at the latest time possible.
b. Evaluation: 1. If a patient reports signs or symptoms of fever, new onset (within 14 days) or worsening cough, or shortness of breath, (screening, kite or telephone contact) or answers “yes” to any of the travel screening questions, the patient will be examined immediately by an RN and referred directly to a medical provider for evaluation. If there is high concern for COVID-19, based on the initial screening, follow the below PPE recommendations.
2. If the patient is symptomatic: The patient will be provided with a facemask as quickly as possible. The patient will be triaged and assessed in an area that is separate from other patients. Separated by 6 or more feet. Healthcare workers assessing the patient will implement standard, contact, and airborne precautions, including use of eye protection during evaluation (PPE). If there are escorting officers/staff they will implement standard, contact, and airborne precautions, including use of eye protection during evaluation (PPE). Personal Protection Equipment (PPE): a. Recommended personal protective equipment: gowns, gloves, NIOSH-certified disposable N95 respirator, eye protection b. *For donning instructions, see attachment.
3. Evaluating an asymptomatic close contact The patient will be provided with a facemask The patient will be triaged and assessed in an area that is separate from other patients. Separated by 6 or more feet. Healthcare workers assessing the patient including taking a temperature, will put on a facemask, eye protection, gown, and gloves. If they are not taking a temperature, PPE required would
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be a facemask, eye protection, and gloves. N95 mask is not necessary. If there are escorting officers/staff they will put on a facemask, eye protection, and gloves. N95 mask is not necessary. If the patient is found to be symptomatic, the patient now becomes a PUI and you would follow the PPE recommendations for a symptomatic PUI. After hours: If a medical provider is not available on site for evaluation, the RN will evaluate the patient, complete the MDHHS PUI form and contact the on call medical provider for direction. If there is not an RN onsite, custody shift command will contact the on call medical provider for direction.
4. History/Assessment:
The medical provider will complete the Human Infection with 2019 Novel Coronavirus Person Under Investigation (PUI) and Case Report Form. https://www.michigan.gov/documents/coronavirus/MDHHS_PUI_For m_Fillable_v04.09.2020_686599_7.pdf The evaluation will be documented in the electronic prisoner health record (COMS). After hours: If a medical provider is not onsite to complete the case report form and evaluation, an RN will complete the form and discuss the results of the form with the on call medical provider. c. Diagnosis: The CDC clinical criteria for COVID-19 PUIs has been developed based on available information about this novel virus, as well as what is known about Severe Acute Respiratory Syndrome (SARS) and Middle East Respiratory Syndrome (MERS). The criteria is subject to change as additional information becomes available.
1. Criteria Fever and/or Acute respiratory illness (e.g., cough, difficulty breathing). Clinicians are strongly encouraged to test for other causes of respiratory illness, including infections such as influenza.
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Other symptoms include chills, muscle pain, headache, sore throat, repeated shaking with chills, and loss of taste or smell. Epidemiologic factors that may help guide decisions on whether to test for COVID-19 include: any persons, including healthcare workers, who have had close contact with a laboratory- confirmed COVID-19 patient within 14 days of symptom onset, or a history of travel from affected geographic areas within 14 days of symptom onset 2. If a prisoner meets the Person Under Investigation (PUI) criteria, the medical provider must: A. Call the Michigan COVID-19 Laboratory Emergency Response Network (MI-CLERN) at: 888-277-9894. Between hours of 8 am and 8 pm seven days per week.
B. The Human Infection with 2019 Novel Coronavirus Person Under Investigation (PUI) and Case Report Form will be emailed to the MDOC Covid-19 distribution group: MDOC-COMS- [email protected]
C. The COVID-19 notification form will also be emailed to the MDOC COVID distribution group.
D. The medical provider will notify ACMO Buskirk and facility HUM. The HUM will notify the Warden/warden designee.
After hours: If a medical provider is not onsite, the on call medical provider will be responsible for contacting the MI- CLERN hotline or the regional epidemiologist to discuss the case and confirm the patient meets criteria for testing If the MI-CLERN hotline is closed. Proceed with the protocol and call the next day when the hotline is open. d. Lab testing 1. Effective March 26, 2020 the following priorities will be observed for testing of patients with suspected COVID-19 infection consistent with CDC and MDHHS guidelines: Priority 1 a. Ensures optimal care options for all hospitalized patients, lessen the risk of healthcare-associated infections, and maintain the integrity of the U.S. healthcare system b. Hospitalized patients
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c. Healthcare facility workers with symptoms Priority 2 a. Ensures those at highest risk of complication of infection are rapidly identified and appropriately triaged b. Patients in long-term care facilities (including prison) with symptoms c. Patients 65 years of age and older with symptoms d. Patients with underlying conditions with symptoms e. First responders with symptoms
2. If MDHHS determines the patient meets the criteria for a PUI, specimen testing will be recommended. Specimen testing is only to be completed if specifically recommended by MDHHS. The specimen test kit will be completed by the medical provider when the provider is onsite and the test kit will be sent to the Garcia Laboratory. Specimens are sampled from the upper respiratory tract (nasopharyngeal and oropharyngeal swab). If a provider is not onsite, an RN can complete the specimen test kit. Please ensure that the NP swab is completed with precise technique. The current testing kits from MDHHS can continue to be used and sent to Garcia. The lab test is listed as “SARS COV 2 RNA, RT PCR (COV19)” in COMS, you can find it in the ID Tab or can search for COV 19 and it will take you to the “S” section for all labs and to the test.
3. The COVID-19 lab test kit inventory worksheet must be completed each time a kit is used for testing. The HUM will secure the tests with the critical tools so they can be accessed after hours.
4. Consider a complete blood count (CBC) and complete metabolic profile (CMP). WBC abnormalities and elevated aminotransferase levels are common abnormalities.
5. Garcia Laboratory must be contacted when a COVID testing kit is completed. https://www.garcialab.com/covid-19-coronavirus-testing- update/
1-800-888-8598
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6. Prisoners must be informed of the result promptly, and educated on their healthcare condition, including prevention, management, etc. 7. If the patient is currently admitted to a hospital, RN Stephanie Smoyer will notify the hospital case manager of the positive result during normal business hours: Mon-Friday 8 am to 430 pm. If the positive result is received after business hours or during the weekend, Dr Coleman will be notified by RN Smoyer and Dr Coleman or designee will notify the hospital of the positive test.
3. MANAGEMENT a. Facility Isolation 1. If the patient is a candidate to remain onsite or discharged from the hospital, the following precautions will be implemented: Designate a sick room or cell for isolation, ie a single cell. A patient who is now a PUI (fever, acute respiratory symptoms, diagnosed after consult with MDHSS), will be isolated in the sick room or isolation cell. Post signs outside of the sick room or cell that clearly describes the type of precautions needed and required PPE. The patient has access to PPE (surgical mask) Close contacts identified, evaluated, and quarantined. At this time, close contacts will not be tested unless. The PUI will be evaluated by nursing daily and referred to a medical provider for signs/symptoms of deterioration. Temperature, pulse oximetry, heart rate, and respiratory rate must be documented along with screening for worsening symptoms. Obtaining a blood pressure is optional. The close contacts will have their vitals obtained once a day by the RN or any medically licensed/certified personnel and complete the symptom screen. Temperature, pulse oximetry, heart rate, and respiratory rate must be documented, BP optional. If they develop symptoms, they will be referred to the medical provider immediately for evaluation and placed in isolation. The COVID positive patient will be evaluated by nursing twice daily utilizing the MDOC COVID-19 Acuity Scoring and Management Guide. Appropriate PPE devices will be used by health care and custody staff during each encounter. Appropriate PPE is defined under
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the evaluation section. Post signs outside of the sick room or cell that clearly describes the type of precautions needed and required PPE. Limit access in and out of the cell for the PUI and close contacts who are isolated. Meals will be administered in cell. Allow access to shower three times per week. Allow access to J pay, tablets, and cordless phones. Yard time is allowed but must be separate from general population yard time. If they must leave the room, have them wear a mask. Sanitize any equipment that is used. Quarantine duration for close contacts is 14 days from the date of last contact with the PUI. When a facility has a suspected or confirmed COVID-19 case appropriate notification must be made, including facility postings which must be up for 14 days. Those postings are provided by DTMB to the warden. When a patient returns from an inpatient hospital stay, ER evaluation (does not apply to DWHC), or returning from a WRIT; that patient will be placed in isolation for 24 hours and evaluated by an RN after 24 hours using the COVID prisoner screening evaluation. If the patient screens negative, the patient will be discharged from isolation. If the patient screens positive, the patient will be evaluated by the medical provider. The 24 hr isolation requirement for inpatient stays or ER evaluation does not apply to DWHC. 2. Housing A lab positive PUI can be housed with another lab positive PUI. PUI’s who have a pending lab test should not be housed with other PUI’s with pending test. They should be isolated in a single cell. Close contacts: a. Ideally, close contacts should be isolated in a single cell. b. When this is not possible, close contacts of a single PUI can be cohorted. Housing together cohorts of close contacts from multiple PUI cases should be avoided when possible. c. When close contacts of multiple PUIs must be housed together, it is recommended that they be masked, and arrange bunks head to toe to minimize viral transmission. 3. Duration of isolation:
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As of April 2020 the MDHHS reports RECOVERY data for those alive 30 days since the onset of symptoms. To align with this timeframe MDOC will determine that a person is eligible for consideration to be released from COVID isolation following: a. At least 30 days have passed since the onset of symptoms, or since the date of test-confirmation of COVID-19, when onset date is unknown. b. A negative test for COVID-19 has been returned no sooner than day 29 since onset, or date of test when onset date is unknown. c. Resolution of COVID-19 symptoms. There are three stages in the management of COVID-19 a. Stage 1: This acute care follows initial onset of symptoms and/or identification of infection. This period is for at least two weeks after onset of symptoms. Persons at this stage are considered to be infectious, and are typically most symptomatic at this stage. Some infected persons never develop noticeable symptoms. b. Stage 2: This is a period of recovery, where severe symptoms are gone, and persons are medically stable. They may still test positive for COVID-19 genetic material, but are thought to be less infectious when no longer symptomatic. This stage is at least through 30 days since the onset of symptoms. c. Stage 3: Recovered. People at this stage have seen their symptoms resolve, and have had a negative COVID-19 test for viral genetic material. 4. PUIs and Close Contacts Close contacts of a Covid positive prisoner will be quarantined for 14 days from last contact with the Covid positive patient. PUI and close contacts of a PUI: If a PUI has a negative test, the PUI and close contacts will be released from COVID related precautions if the patients are asymptomatic. If symptoms remain including fever, they must be evaluated by a medical provider prior to release. a. Consider alternative diagnosis. Confirm influenza negative, RSV, allergic rhinitis. b. Consider false negative COVID test for the PUI and consider need to retest.
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c. Discuss case with RMD. d. When requesting the release of a person with a negative test who remains symptomatic, it should be communicated that these additional assessments have occurred. A PUI or close contact who is being discharged or released will be advised to self-isolate for the appropriate time frame upon discharge. 5. Location of Isolation for COVID positive patient: A COVID positive patient may be housed/remain at the current facility for some or all of the stages toward their recovery A COVID positive patient may be transferred to a COVID positive cohort unit. a. Consideration for transfer will be made on a case by case basis by utilizing the MDOC COVID Placement Flow Chart. Factors for consideration: i. The number of positive cases and close contacts at the current facility. ii. The arrangement of housing at the facility. Cubes, dorms, pods, open bar cells, etc pose a significant challenge for housing and will be given preference for consideration to transfer. b. Staff are to follow COVID-19 processes for prisoner movement in transitioning between housing settings. Specialized Units a. Eligibility for these units is determined on a case by case basis by the onsite medical team, RMD, and CMO/designee and includes meeting all of the following requirements: b. Stage 1 i. Prisoner has a confirmed COVID-19 diagnosis ii. Less than 14 days since the onset of symptoms, or the prisoner continues to be symptomatic. iii. Determination of which unit will house a prisoner is based on their medical support needs, and available appropriate housing. c. Stage 2
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i. Prior to release to Stage 2 the following must be met: 1. The patient is free from fever without the use of fever-reducing medications for 72 hours AND 2. The patient’s other symptoms have resolved (cough, shortness of breath...) AND 3. At least 14 days have passed since the onset of symptoms ii. Once the patient is cleared to be released, the patient may be released to a step down unit, or may remain in their Stage 1 housing depending on prisoner needs and bed availability. They will continue to be isolated away from general population. iii. The patient will remain housed at Stage 2, until at least 29 days after symptom onset, or date of first positive test if onset date is unknown, and until a negative COVID test is obtained. The first test can be completed at day 29. If the test returns positive, the patient will remain in Stage 2 and a second test will be completed after 5 days. Subsequent tests will be completed every five days if the until testing returns negative. d. PPE for the step down unit: MDHHS has updated their recommendation and full PPE (COVID positive PPE protocol) will be worn by all staff working in the step down unit and healthcare staff entering the unit or evaluating patients. Stage 3 i. Once the above criteria have been met, a prisoner may be discharged from COVID medical isolation. ii. Patients may be discharged to a COVID-recovered unit rather than to general population. iii. The PPE requirements are the same as for the general population. iv. When requesting to discontinue isolation it should be communicated that the onsite medical team and RMD have reviewed the cases. b. Management:
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1. WHO and CDC recommend glucocorticoids not be used in patients with COVID-19 pneumonia unless there are other indications (exacerbation of COPD, sepsis.) 2. Symptomatic treatment with antipyretics, cough suppressants, anti- nausea medications, antidiarrhea medications, or IV fluids as clinically indicated. 3. MDOC COVID-19 Acuity Scoring and Management Guide has been created to assist in management of COVID positive patients. 4. The COVID Placement Flow Chart has been created to assist in identifying appropriate housing for COVID positive patients based on their medical needs and stability. c. Hospitalization 1. If the patient is in respiratory distress, pneumonia is suspected, or meets criteria on the Risk Scoring and Management Guide, the patient will be transferred to the local ER. The ER and paramedics must be notified this is a PUI confirmed by MDHHS. 2. Transporting officers should implement standard, contact, and airborne precautions, including eye protection (PPE). d. Emergency response/CPR 1. If a PUI/Covid positive/close contact requires CPR: a. The patient should have a mask. b. Responding staff should have full PPE. N95, eye protection, gloves, and gown. c. Chest compression only CPR should be initiated until the ambu bag is available. d. Once the ambu bag is available with appropriate filter, the patient’s mask can be removed and the ambu bag applied and CPR continued. e. Incoming Visitors/Staff/Contractors 1. It is highly recommended that anyone who is not feeling well refrain from working, visiting inmates, etc. especially if they have a fever or cough. Now that there are confirmed cases in Michigan, staff will initiate a basic screening for everyone entering the facility. If anyone screens positive, the visit will be canceled.
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Effective March 15, 2020 prisoner visitation has been temporarily suspended.
3. Staff Screening If a staff person is screened positive, then they should be sent home and then notify Jonathan Patterson ([email protected]) letting him know a staff person was sent home. Staff who report contact with a PUI: a. If you come in contact with a PUI who has not received a confirmed diagnosis (lab specimen positive), ie the lab is pending or a lab was never completed, you can come to work and do not require any additional isolation or quarantine measures. b. If the lab specimen of the PUI that you have come into close contact with is positive for COVID-19, you should not come to work and should contact your local health department and primary care provider for additional recommendations. c. Screening questions: See staff screening form.
4. Screener PPE requirements: For staff who are screening and taking a temperature, it is recommended that they wear a face mask and gloves. This should be implemented as supplies are received. There is no need to change gloves between screening unless contact is made with the person being screened or potentially contaminated secretions.
d. Outbreak 1. An outbreak will be declared by the CMO on a case by case basis. Considerations for an outbreak would include if two or more PUI are identified at the facility or one confirmed case identified at the facility. In the event that an outbreak is declared, facility movement will follow the Seasonal Influenza Plan. Please reference the FACILITY ACTIVITIES DURING OUTBREAK section of the influenza protocol. 2. Once an outbreak has been declared at a facility, close contact prisoners no longer require daily assessments. They shall be advised to contact healthcare immediately if they become symptomatic. They would then follow the protocol for a PUI including isolation and testing.
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3. Environmental Cleaning: The facility will seek approval from the regional sanitation officer to use bleach during cleaning of the facility.
e. Test Kits 1. Obtain and send the following test kits as follows: Insert a swab into nostril parallel to the palate. Swab should reach a depth equal to the distance from nostrils to outer opening of the ear. Leave swab in place for several seconds to absorb secretion. Slowly remove the swab while rotating it. Place the swab inside of the Multi-Collect transport tube and break off the swabs so the tip is in solution and the stick is below the cap (make sure the cap is on TIGHT). Pack up each Multi-Collect transport tube in ITS OWN bio- hazard bag. Place the bio-hazard bag upright in the foam provided, inside the shipping boxes (paperwork and Multi-Collect can be placed with other bloodwork sent that day). Place ice-pack inside the box with the specimen. 2. Please notify lab of incoming COVID testing by either phone or email. Phone: 1-800-888-8598 Email: [email protected]
CLEANING Laundry Recommendations:
Wear disposable gloves and gown when handling dirty laundry from an ill person and then discard after each use. If using reusable gloves, those gloves should be dedicated for cleaning and disinfection of surfaces for COVID-19 and should not be used for other household purposes. Clean hands immediately after gloves are removed. If no gloves are used when handling dirty laundry, be sure to wash hands afterwards. If possible, do not shake dirty laundry. This will minimize the possibility of dispersing virus through the air. Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and
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dry items completely. Dirty laundry from an ill person can be washed with other people’s items. Clean and disinfect clothes hampers according as you would for cleaning surfaces. If possible, consider placing a bag liner that is either disposable (can be thrown away) or can be laundered. Training must be provided to Laundry Operations prisoner workers – based on written policies (Job Safety Analysis): • Use of equipment (Washers and Dryers) Safety features and cautions Correct operation • Procedures – Cross contamination (surfaces, including carts and tables, contacted by soiled laundry disinfected prior to contact with clean laundry). No items on the floor. Biohazards General cleanliness of room and hygiene Personal Protective Equipment (PPE) available and used (elbow – length rubber gloves, waterproof apron and chemical splash goggles) Handling and dispensing laundry chemicals Floors, walls ceilings and attached equipment (i.e. plumbing, light fixtures) easily cleanable, non-absorbent. Lighting – minimum of 50-foot candles recommended. MRSA informational poster (Infection Control In Laundry Areas); spray disinfectant available. Eye wash station (if laundry chemicals SDS’s specify); weekly check. Sorting tables non-absorbent materials; separate for clean and dirty laundry recommended or disinfected between uses. Laundry carts must be constructed of non-absorbent materials and capable of being cleaned and disinfected; separate for clean and dirty laundry recommended or disinfected between uses. Hand washing sink available and equipped with hot and cold or tempered water, anti- bacterial soap dispenser, paper towels (or electric hand drying device) and fire-safe waste basket. Cleaning cordless phones and tablets: Use the previously approved surface sanitizing wipes for Healthcare. Clorox Health Care Hydrogen Peroxide Cleaner Disinfectant Wipes. Make sure they are not dripping or oversaturated and wipe down the tablet or phone thoroughly giving manufacturers recommended contact time before reissue. Sanitization:
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Facilities need to ensure they are sanitizing equipment for staff use. Telephones; handcuffs; radios, restraint chairs; emergency equipment (e.g. shields, helmets, gear); and other equipment exchanged by staff should be cleaned frequently. Facilities should also sanitize any equipment that is being used by prisoners. An example would be pull up bars and other equipment in the weight pit.
Recommendations on Cleaning and Securing Property: A. PROPERTY 1) The inmate’s property may be secured immediately, but it is preferable to wait for 24 hours before cleaning and disinfecting the areas most used by the inmate. 2) PPE for those securing the property. For officers who are securing the inmates property, they should wear disposable gloves and a gown when handling belongings and dirty laundry from an ill person and then discard after each use. Clean hands immediately after gloves are removed. Avoid shaking dirty laundry to minimize the possibility of dispersing virus through the air. Keep soiled items away from your body. Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely. Place all used disposable gloves and other contaminated items in a lined container before disposing of them with other waste. Clean your hands (with soap and water or an alcohol-based hand sanitizer) immediately after handling these items. Soap and water should be used preferentially if hands are visibly dirty. Clean and disinfect clothes hampers according to guidance below for surfaces. If possible, consider placing a bag liner that is either disposable (can be thrown away) or can be laundered. 3) Recommendations for a Bay or Pod with a large group of inmates living together: the PUI should be isolated and the bay cleared of all close contacts. The room should be cleaned and disinfected as recommended by the CDC. If possible, wait at least 24 hours before conducting the cleaning and disinfection of the pod. The disinfection process will kill any remaining alive virus instantly. Once that process is completed, the other inmates may return as they do after routine cleaning of any pod. B. CLEANING AND DISINFECTION CDC recommendations: It is recommended to close off areas used by the ill persons and wait as long as practical before beginning cleaning and disinfection to minimize potential for exposure to respiratory droplets. Open outside doors and windows to increase air circulation in the area. If possible, wait up to 24 hours before beginning cleaning and disinfection.
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Close off areas used by the patient. Open outside doors and windows to increase air circulation in the area and then begin cleaning and disinfection. Cleaning staff should clean and disinfect all areas (e.g., offices, bathrooms, and common areas) used by the COVID-19 patient focusing especially on frequently touched surfaces. If surfaces are dirty, they should be cleaned using a detergent or soap and water prior to disinfection. For disinfection most common EPA- registered household disinfectants should be effective. For soft (porous) surfaces such as carpeted floor, rugs, and drapes, remove visible contamination if present and clean with appropriate cleaners indicated for use on these surfaces. Launder items as appropriate in accordance with the manufacturer’s instructions. If possible, launder items using the warmest appropriate water setting for the items and dry items completely, or use products with the EPA-approved emerging viral pathogens claims that are suitable for porous surfaces. C. PPE for CLEANING AND DISINFECTION Cleaning staff should wear disposable gloves and gowns for all tasks in the cleaning process, including handling trash. Gloves and gowns should be compatible with the disinfectant products being used. Additional PPE might be required based on the cleaning/disinfectant products being used and whether there is a risk of splash. Gloves and gowns should be removed carefully to avoid contamination of the wearer and the surrounding area. Be sure to clean hands immediately after removing gloves. Cleaning staff should immediately report breaches in PPE (e.g., tear in gloves) or any potential exposures to their supervisor. Cleaning staff should wear disposable gloves and gowns for all tasks in the cleaning process, including handling trash. Gloves and gowns should be compatible with the disinfectant products being used. Additional PPE might be required based on the cleaning/disinfectant products being used and whether there is a risk of splash. Gloves and gowns should be removed carefully to avoid contamination of the wearer and the surrounding area. Be sure to clean hands immediately after removing gloves. Cleaning staff should immediately report breaches in PPE (e.g., tear in gloves) or any potential exposures to their supervisor. Relevant sections of each of the following CDC guidance documents were compiled to create these recommendations for this unique population and setting: https://www.cdc.gov/coronavirus/2019-ncov/prepare/cleaning-disinfection.html https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning- disinfection.html https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-ihe-response.html https://www.cdc.gov/coronavirus/2019-ncov/hcp/guidance-prevent-spread.html
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Attachment I: Pandemic Situation: Pandemic COVID-19 Plan.
I. Specific Planning
In the event that the World Health Organization, CDC, and Chief Medical Officer have declared an MDOC institution to have a highly virulent coronavirus outbreak, the institution Emergency Management System and the Central Office Emergency Services Manager shall be notified. The Chief Medical Officer, Medical Practitioner and Health Unit Manager (HUM) shall be included in the institution command staff. The institution shall provide contact information for the warden, and another person who will serve as the alternate decision maker.
In the event of a declared outbreak of highly virulent coronavirus in the MDOC, all activities shall be coordinated through the MDOC Emergency Services Manager and local and state health agencies. All internal and external offender movement will be strictly curtailed. A written plan must be in place to include:
A. Deliver medications to prisoner cells if medication lines have to be canceled due to a declared emergency at the institution.
B. Maintain sanitation levels within the facility with minimum staff and prisoner workers.
C. Reporting increase in coronavirus cases, and medical resources available in the institution. (Note: This information must be sent daily during a Declared Emergency, due to coronavirus, to the Health Services Administrator, Assistant Health Services Administrator, Assistant Chief Medical Officers, and Chief Medical Officer.)
D. All contingency plans, which are to be immediately implemented, including: food and re-hydration bags delivered to housing units designated for housing offenders with confirmed coronavirus. Actions that will be triggered if the outbreak is declared a disaster, including the initiation of the Institutional Disaster Plan.
PANDEMIC CORONAVIRUS PLAN:
Mode 1: Standby Mode
WHO Phase 4: Small cluster(s) with limited human-to-human transmission but spread is highly localized, suggesting that the virus is not well adapted to humans.
FGR Stage 2: Confirmed human outbreak overseas. Command and Management: (address facility management and where work occurs)
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Michigan Department of Community Health (MDCH) is in Standby Mode for Non- Pharmaceutical Measure Implementation (NPI). State Emergency Operating Center (SEOC) would be in a Standby Mode. Ensure inter-pandemic and pandemic alert activities/responses are accomplished or in place. Review COOPs, complete cross training.
Human Resources: (address HR tools and absenteeism)
Review COOPs-all staff. Educate staff on the impact of pandemic coronavirus (Management of Human Capital). Alternate Work Sites/Telecommuting, Modification of Assigned Duties, Cross- Training of Personnel, Conversion to 24/7 Operations – Department-Wide, Rotation of Staff, Just-in-Time Training for Personnel and Managing an Unpredictable Work Force and Environment. Ensure understanding of impact of pandemic coronavirus on employees (Professional- Personal Preparedness). Family Emergency Preparedness Plan (mandatory departmental training). Job Go-Kits with critical document and equipment. Employee awareness of their 24/7 roles/responsibilities in PH emergency response. Establish/implement policies to be employed during a period of pandemic. Inter-agency mutual aid agreements to augment essential functions. Departmental policies to recognize and support employees who demonstrate extraordinary commitment in time of public health emergency.
Communications: (address internal and external communications and tools used)
Public service announcements, a central hotline (including link to current hotline information on the MDOC website), shall be prepared to be activated in the event of a coronavirus pandemic in the MDOC. The Chief Medical Officer and MDOC Public Information Officer shall be responsible for maintaining the accuracy of the information posted on the hotline. Medical briefings shall be scheduled based on the declared pandemic phase. Time, place, and content of the briefing will be determined by the Chief Medical Officer and the Public Information Officer.
Education: (address need to protect employees/offenders if needed)
The Bureau of Health Care Services in conjunction with the Professional Development Section shall develop a comprehensive program of education, for offenders and staff, related to pandemic coronavirus that includes the following topics: Signs and symptoms of coronavirus.
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Infection prevention and control procedures including proper hand washing techniques, cough etiquette, and the use of isolation and segregation to control spread of coronavirus.
Response/Operations: (address department’s response as needed)
Institution nurses shall utilize the Electronic Medical Record Nursing Assessment for Respiratory Illness to document assessments of patients that complain of symptoms strongly suggestive of coronavirus. If the nurse conducting the assessment notes all sentinel symptoms of coronavirus noted on the form, the HUM shall be notified immediately. Additionally, the nurse conducting the assessment shall clearly note the presence of coronavirus symptoms in the patient’s electronic medical record. (These records shall also note laboratory confirmation of the pandemic coronavirus virus, as needed.) The HUM or Nursing Supervisor will daily review the electronic medical records of any prisoners presenting with symptoms of pandemic coronavirus, diagnostic testing will be performed, and antiviral medication will be administered as available. The institution HUM or designee shall review appointment information to ascertain those patients being treated for the common symptoms of coronavirus daily during a pandemic coronavirus outbreak.
Case Reporting:
Each HUM shall report the number of cases of pandemic coronavirus to following, Health Services Administrator, Chief Medical Officer, and State Infection Control Coordinator daily.
Mode 2: Standby Mode WHO Phase 5: Larger cluster(s) but human-to-human spread still localized, suggesting that the virus is becoming increasingly better adapted to humans, but may not yet be fully transmissible (substantial pandemic risk). FGR Stage 2: Confirmed human outbreak overseas. Command and Management: (address facility management and where work occurs)
MDCH is in Alert mode for NPI. SEOC is in Standby Mode and can be elevated if situation deems necessary. Ensure inter-pandemic and pandemic alert activities/responses are accomplished or in place. Provide fit testing and a supply of respirators for all employees who have the potential of coming into contact with anyone who has pandemic. This includes custody, healthcare, or any staff who may be assigned in a position where there is potential contact with prisoners quarantined for pandemic coronavirus.
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Human Resources: (address HR tools and absenteeism)
Prepare for increased absenteeism of staff and assess sick leave/administration policies for employees. Ensure capability for cross training within agency. Ensure compensation for those performing outside of job description. Communicate with third party insurance and relay to employees any pertinent information.
Communications: (address internal and external communications and tools used)
All external communications will be addressed by the Public Information Officer in consultation with the Chief Medical Officer.
Education: (address need to protect employees/offenders if needed)
Space and accommodation for meals and sleep must be identified for those staff who will not be returning to their homes during the coronavirus outbreak.
Response/Operations: (address department’s response as needed)
All institutions shall designate an area that may be used for quarantine purposes when the number of infectious and exposed contacts exceeds the number of single cells. The quarantine area must be self-contained (i.e. have bathing and toilet facilities), for exclusive use by ill offenders.
Case Reporting:
Each HUM shall report the number of cases of pandemic coronavirus to the Health Services Administrator, Assistant Health Services Administrator, Assistant Chief Medical Officers, Chief Medical Officer, and State Infection Control Coordinator daily.. The BHCS State Infection Control Coordinator shall be responsible for reporting outbreaks of pandemic coronavirus to the Michigan Department of Community Health, Chief Medical Officer, Deputy Director CFA/FOA, and the MDOC Director’s Office as soon as the presence of an outbreak in an institution is confirmed. The Human Resources Office upon notification must report all self-reported cases of pandemic coronavirus among staff that have been confirmed by their medical practitioner, to the facility HUM/designee without employee identifiers. All employee cases shall be self-reported. The HUM/designee shall also report these cases to the Regional Infection Control Coordinator.
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Mode 3: Alert Mode
WHO Phase 6: Pandemic phase: increased and sustained transmission in general population.
FGR Stage 3: Widespread human outbreaks in multiple locations overseas.
Command and Management: (address facility management and where work occurs)
MDCH is in Alert mode for NPI. SEOC is in Standby Mode and can be elevated if situation deems necessary. Ensure inter-pandemic and pandemic alert activities/responses accomplished or in place. Complete review COOP’s, complete cross training.
Human Resources: (address HR tools and absenteeism)
Continue employee education/risk messaging. Update policies for sick or administrative leave as needed. Assess potential gaps in critical functions. Communicate with third party insurance and relay to employees any pertinent information.
Communications: (address internal and external communications and tools used)
All external communications will be addressed by the Public Information Officer in consultation with the Chief Medical Officer. Address rumor control.
Mode 4: Alert Mode
WHO Phase 6: Pandemic phase: increased and sustained transmission in general population.
FGR Stage 3: Widespread human outbreaks in multiple locations overseas.
Command and Management: (address facility management and where work occurs)
MDCH is in Alert Mode for NPI. Ensure inter-pandemic and pandemic alert activities/responses are accomplished or in place. Complete review COOPs, complete cross training.
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Human Resources: (address HR tools and absenteeism)
Continue Employee Education/risk messaging. Review COOP’s Prepare for increased absenteeism of staff and assess sick leave/administration policies for employees. Ensure capability for cross training within agency. Ensure compensation for those performing outside of job description. Communicate with third party insurance and relay to employees any pertinent information. Address Rumor Control
Communications: (address internal and external communications and tools used)
All external communications will be addressed by the Public Information Officer in consultation with the Chief Medical Officer.
Employee Health/Education: (address need to protect employees/offenders if needed)
Ensure that the institution has a full 5-day supply of personal protective equipment (PPE) including gloves, surgical masks, N95 respirator masks, eye shields and gowns for all medical staff. Ensure that the institution has a 5-day supply of gloves and surgical masks for all staff having direct contact with offenders.
Response/Operations (as appropriate): (address department’s response as needed)
All institutions shall follow normal operations. All MDOC institutions shall maintain adequate emergency medical pandemic coronavirus supplies which includes antiviral medication (as available), vaccines (as available), gloves, and respirators of all sizes for use by health care staff in the health services area and an emergency non-medical coronavirus supply cart to be kept where needed in a secured and locked area. Supplies must include: A minimum of a 30 day supply of all routinely used medical supplies including respirator masks, vaccine (as available), anti-viral medication (as available), non-alcohol based hand sanitizer, gloves, and masks (for at least 10% of the offender population). Mode 5: Monitoring Mode
WHO Phase 6: Pandemic phase: increased and sustained transmission in general population.
FGR Stage 4: First human case in North America.
Command and Management: (address facility management and where work occurs).
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If not done already, activate CHECC protocols and Incident Management System. SEOC will be in Monitoring or Activation Mode, depending on the situation. Coordination with SEOC, regional and local partners.
Human Resources: (address HR tools and absenteeism).
Assess employee absenteeism/cross-training needs/preparedness. Implement emergency policies as needed.
Communications: (address internal and external communications and tools used).
In the event of a pandemic coronavirus outbreak at a MDOC facility, a prepared notice of the coronavirus outbreak shall be posted at the facility entrance. The Chief Medical Officer and the MDOC Public Information Office shall be responsible for disseminating information to the families and visitors of MDOC inmates as needed during periods of social distancing. Public service announcements, a central hotline (including link to current hotline information on the MDOC website), shall be activated in the event of an coronavirus pandemic in the MDOC. The Chief Medical Officer and MDOC Public Information Officer shall be responsible for maintaining the accuracy of the information posted on the hotline.
Employee Health/Education: (address need to protect employees if needed).
Social distancing within an institution shall be implemented when the institution is declared to be at Pandemic Phase 4. Health care and other staff who must have close contact with the pandemic coronavirus patient (i.e. with-in 6 feet) shall wear a respirator.
Response/Operations (as appropriate): (address department’s response as needed).
All institution pharmacies shall secure a 30-day supply of medications deemed necessary to maintain life or prevent progression of a life-threatening disease. MDOC will not independently stockpile vaccines or antiviral medications. MDOC will follow Centers for Disease Control guidelines for procurement and distribution of vaccines and antiviral medications. “Re-hydration Bags” and re-hydration formula; the re-hydration bag is for offenders who have contracted the flu and are experiencing hydration problems due to vomiting. The re-hydration bags contain powdered broth packets, juice and saltine crackers and shall be obtained from Foodservice. Social distancing within an institution shall be implemented when the institution is declared to be at Pandemic Phase 4. Social distancing includes the following actions:
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Cancellation of all elective or nonessential trips outside of the institution including elective clinic appointments, scheduled elective tests and surgical procedures, intersystem transfers and court visits upon the direction of the Chief Medical Officer in conjunction with the Deputy Director CFA/FOA. All recreational activities outside of the housing units shall be stopped upon the direction of the Chief Medical Officer in conjunction with the Deputy Director CFA/FOA. Suspension of visits as determined by the Chief Medical Officer in conjunction with the Deputy Director CFA/FOA. Offenders whose work assignment places them in close contact with others, e.g., porters, meal distribution, shall be required to wear surgical masks while on duty. Masks may be worn up to 6 hours. Efficacy is dependent on how much the mask is soiled with saliva or respiratory secretions. Isolation and Quarantine: Patients with confirmed pandemic coronavirus shall be admitted to single cells in the institution when space allows. Additionally, the patients may be admitted to a multi-bed housing unit. When admitted to these locations, respiratory/droplet isolation techniques shall be employed. The institution nurses and Medical Practitioner shall be responsible for ordering isolation when necessary. The MDOC Chief Medical Officer shall be responsible for declaring the necessity of quarantine of a facility. Co-pay shall be waived for an offender exhibiting coronavirus symptoms during a pandemic coronavirus setting, as provided for in PD 03.04.101, Prisoner Health Care Co-payment.
Mode 6: Monitoring Mode
WHO Phase 6: Pandemic phase: increased and sustained transmission in general population.
Command and Management: (address facility management and where work occurs).
CHECC activated, ICS used to manage the incident. Activate COOP plans if needed. Monitor agency-wide on daily basis to identify number of staff available. Predict future unavailability of staff.
Human Resources: (address HR tools and absenteeism).
Monitor stressors on staff. Monitor absenteeism. Assess adequacy of leave polices.
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Monitor third party insurance coverage.
Communications: (address internal and external communications and tools used).
All external communications will be addressed by the Public Information Officer in consultation with the Chief Medical Officer. The Chief Medical Officer and MDOC Public Information Officer shall be responsible for maintaining the accuracy of the information posted on the hotline.
Employee Health/Education: (address need to protect employees if needed).
Surgical Masks shall be used for actively coughing patients during movement and mandatory programming during phase 4-6 as long as supplies are available.
Response/Operations (as appropriate): (address department’s response as needed).
MDOC will not independently stockpile vaccines or antiviral medications. MDOC will follow Centers for Disease Control guidelines for procurement and distribution of vaccines and antiviral medications. “Re-hydration Bags” and re-hydration formula. The re-hydration bag is for offenders who have contracted the flu and are experiencing hydration problems due to vomiting. The re- hydration bags contain powdered broth packets, juice and saltine crackers and shall be obtained from Foodservice. Social distancing within an institution shall continue. Social distancing includes the following actions: Cancellation of all elective or nonessential trips outside of the institution including elective clinic appointments scheduled elective tests and surgical procedures, intersystem transfers and court visits, upon the direction of the Chief Medical Officer in conjunction with the Deputy Director CFA/FOA. All recreational activities outside of the housing units shall be stopped upon the direction of the Chief Medical Officer in conjunction with the Deputy Director CFA/FOA. Suspension of visits as determined by the Chief Medical Officer in conjunction with the Deputy Director CFA/FOA. Isolation and Quarantine: Patients with confirmed pandemic coronavirus shall be admitted to single cells in the institution when space allows. Additionally, the patients may be admitted to a multi- bed Housing Unit. When admitted to these locations, respiratory/droplet isolation techniques shall be employed. The institution nurses and Medical Practitioner shall be responsible for ordering isolation when necessary. The MDOC Chief Medical Officer shall be responsible for declaring the necessity of quarantine of a facility.
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Co-pay shall be waived for an offender exhibiting coronavirus symptoms during a pandemic coronavirus setting, as provided for in PD 03.04.101, Prisoner Health Care Co-payment.
Mode 7: Recovery Mode
WHO Phase 6: Pandemic phase: increased and sustained transmission in general population.
FGR Stage 6: Recovery and preparation for subsequent waves.
Command and Management: (address facility management and where work occurs).
Return CHECC to Watch or Alert Phase as indicated. Return SEOC to Standby or Monitoring Mode. Develop hotwash. Create after action report.
Human Resources: (address HR tools and absenteeism).
Assess impact staff, need for TISM. Assess third party payer/payee benefits. Review leave policies and revise if necessary.
Communications: (address internal and external communications and tools used).
Information on the central hotline (including link to current hotline information on the MDOC website), shall be updated as the coronavirus outbreak subsides. The Chief Medical Officer and MDOC Public Information Officer shall be responsible for maintaining the accuracy of the information posted on the hotline.
Employee Health/Well-being: (address need to protect employees if needed).
Make TISM available to staff as needed. Make Human Resources available to staff as needed.
Response/Operations (as appropriate): (address department’s response as needed).
All internal and external offender movement shall be strictly curtailed. Movement shall be limited to in-unit movement, except that movement which is necessary for health and safety. Treatment of offenders with confirmed pandemic coronavirus shall continue as medical supplies, medication, and staff resources allow. Each institution will refer to its local disaster plan provide direction on local activities.
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The institution medical staff shall continue strict surveillance procedures by reporting confirmed cases of coronavirus to the BHCS Infection Control Coordinator on a daily basis. The Infection Control Coordinator will analyze and report morbidity and mortality cases weekly and as needed to the Michigan Department of Community Health, and the Chief Medical Officer.
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Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1409 Page 62 of 80 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
Attachment 2
Affidavit of Dr. Carmen McIntyre
Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1410 Page 63 of 80 Updated 4/30/2020
MDOC COVID-19 Prisoner Screening Questions Demographics Prisoner Name: Number: Date of Screening:
Time of Screening: Facility: Lock: Location of Screening:
Date of Birth: Age: Sex:
Male ☐ Female ☐ Travel Screen Yes/No Additional Information Have you traveled or reside in an area with Coronavirus Yes ☐ Where: within the last 14 days? No ☐ Date: Have you been in close contact with a Person Under Yes ☐ Where: Investigation (PUI) who has tested positive for COVID-19 in No ☐ Date: the last 14 days? Physical Screen Additional Information In the past 24 hours, have you experienced any of the Temperature: F/C following symptoms: ☐ New/worsening cough ☐ Fever ☐ Sweats/Chills/Shaking ☐ Sudden fatigue ☐ New sore throat ☐ Muscle aches/pain ☐ Muscle aches/pain ☐ Loss of taste/smell ☐ New onset of headache ☐ Nausea ☐ Diarrhea ☐ New/worsening shortness of breath
Evaluation If a patient reports signs or symptoms listed under the physical screen or answers “yes” to any of the travel screening questions, the patient will be examined immediately by a RN and referred directly to a Medical Provider for evaluation.
Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1411 Page 64 of 80 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
Attachment 3
Affidavit of Dr. Carmen McIntyre
Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1412 Page 65 of 80 MDOC COVID-19 ACUITY SCORING and MANAGEMENT GUIDE
04-2020
COVID-19 PATIENT ASSESSMENT MEASUREMENT/POINTS 3* 2 1 0 1 2 3* POINTS AGE <65 65+ RESPIRATORY RATE 1-minute walking if <92* 92-93 94-95 96+ feasible) SUPPLEMENTAL OXYGEN Yes No MENTAL STATUS Normal/Usual Altered SYSTOLIC BLOOD PRESSURE
If on supplemental oxygen: LPM:
*CONTACT PROVIDER IMMEDIATELY FOR CONSIDERATION OF TRANSPORT TO HOSPITAL IF: Ambulatory or resting oxygen saturation < 92% (or, for patients on chronic oxygen, >2 LPM above baseline O2). Or three (3) points on any one parameter (unless the only three points is based on age alone).
NURSING PROTOCOL (at a minimum)** SCORE 0 Vital signs (as above) attempt twice a day 1-4 Vital signs (as above) twice a day and report to physician/PA/NP (ASAP if 02 Sat abnormal) 5+ Immediately contact physician/PA/NP
** Guidelines, which may be exceeded and/or supplemented, including with more frequent monitoring, based on professional judgement. Adapted from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7042184/.
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On-Site Clinical Management Principles (As of 04/09/2020)
DO these:
1. Know the current local/referral hospital (and EMS) position on accepting COVID-19 cases. This may change daily. If transferring, call (pre transport if possible) with a concise summary of the patient 2. To improve oxygenation, treat fever. Fever increases oxygen demand and worsens hypoxia. Up to 2 grams acetaminophen daily is safe unless decompensated cirrhosis. No credible evidence indicates NSAIDs worsen outcome. Consider prone positioning up to 12 hours daily to improve oxygenation. 3. Continue and complete antimicrobials started at the hospital, including hydroxychloroquine, azithromycin and others. Hydroxychloroquine can increase QTc interval, so check for and stop nonessential co-administered meds that increase risk of absorption and hold if QTc > 500ms. If > 450, follow QTc daily 4. Test for influenza as long as community activity is significant, and treat as appropriate 5. Use DVT prophylaxis for appropriate patients 6. For patients being monitored pre-hospital, include comp panel, CBC, ferritin, vitamin D level and CRP in initial lab studies 7. Know the risk factors for severe disease (older age, especially > 65, cancer, immunosuppression, diabetes, CKD, cardiovascular diagnosis, HTN, COPD, severe obesity), and the “typical” clinical symptoms (rhinitis/pharyngitis, fever, myalgia, with progression heralded by cough/pneumonia, dyspnea, GI symptoms, mental status changes). Around 80% not severe, 20% severe, and progression can occur rapidly after days of non-severe symptom
DO NOT do these:
1. Stop or start ACE inhibitors or ARBs based on COVID-19 infection. There is currently no credible evidence that these change outcome 2. Routinely administer systemic steroids pre-hospital, OR stop inhaled steroids based solely on COVID-19 diagnosis. No evidence suggests inhaled steroids change outcome. WHO and CDC recommend against starting systemic steroids unless indicated for a non-COVID-19 diagnosis. 3. Give inhaled beta agonists by nebulizer for wheezing unless using a negative pressure or dedicated isolation room and an MDI tube spacer. 4. Aggressively administer fluids 5. Initiate hydroxychloroquine +/- azithromycin for non-hospitalized patients, pending more data on outcomes, inpatient supply & regulatory approval of chloroquine products for COVID-19 in non-hospitalized patients
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Considerations for supportive care for persons who are COVID-19 exposed: COVID-19 positive persons will be offered: Vitamin C 1000 mg PO BID X 7 days Vitamin D 5,000 IU daily X 7 days Thiamine 200 mg (2-100 mg) bid X 7 days Zinc Sulfate 220 mg PO BID X 7 days Counsel on the benefits of lying prone or on the side if comfortable. Close contacts will be offered a multivitamin.
Page 3 of 3
Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1415 Page 68 of 80 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
Attachment 4
Affidavit of Dr. Carmen McIntyre
Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1416 Page 69 of 80
COVID Placement Flowchart INITIAL PLACEMENT
COVID-19 Test Positive
Comorbidities: Comorbidities? Yes No *BMI>30, Hypertension, cardiovascular Wheelchair/Stair disease Yes No No Accomodations? *Steroid or statin use Intensive Support Yes No No *Asthma/COPD, Needs diabetes, cancer, immunocompro Independent ADLS, No mised, elderly Yes No Yes Yes incontinence
C-Unit or DWHC JCF DRF Placement Green Oaks
Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1417 Page 70 of 80
INCREASING MEDICAL NEEDS WHILE ON COVID+ UNIT
Twice Daily DRF/JCF RN Assessments
Daily RN Assessments: ↑ Needs? Yes No Twice daily for respiratory rate, heart rate, temperature, O2 saturation (with exertion if feasible). Can needs be met by Remain at Yes No C-Unit or Green Oaks? DRF or JCF Follow-up: *Risk Score 0, none
*Risk Score 1-4, or change in Can needs be met by C-Unit or Yes No risk score report to medical Green Oaks DWHC? provider; urgently if O2 saturation abnormal.
*Risk score 5+, emergent Transfer to DWHC Hospital contact to medical provider. *Transport to hospital if O2
saturation <92%, or O2 needs rise >2 liters per minute above baseline
Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1418 Page 71 of 80
STABLE OR IMPROVING CONDITION
Stable or Improving Yes
Stage 2 (Recovering) Criteria:
Current Facility DWHC Stage 1 Unit *At least 14 days since onset of symptoms
Meets Stage 2 (Recovering) No but no *In the last 72 hours: Yes Yes No Criteria? DWHC needs No fever, off fever-reducing medications Stage 2/Recovery Stage 2 Remains Unit that meets Stage 1 Unit as No shortness of breath Placement Unit in Stage medical needs appropriate 1 Unit Cough improved or resolved
Stage 3 (Recovered) Criteria
Yes Yes *Negative test no earlier than 29 Meets Stage 3 (Recovered) days since onset of symptoms Criteria? Stage 3 Stage 3 *Resolution of symptoms. Unit Unit
STAGE 1 DESIGNATED UNITS INCLUDE: DWHC, C-UNIT, DRF, GREEN OAKS AND JCF. OTHER FACILITIES MAY BE MANAGING STAGE 1 AS WELL.
STAGE 2 DESIGNATED UNITS INCLUDE: ARF. OTHER FACILITIES MAY BE MANAGING STAGE 2 AS WELL.
STAGE 3 DESIGNATED UNITS INCLUDE: STF. OTHER FACILITIES MAY BE MANAGING STAGE 3 AS WELL.
Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1419 Page 72 of 80 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
Attachment 5
Affidavit of Dr. Carmen McIntyre
Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1420 Page 73 of 80 Updated 4/30/2020
Michigan Department of Corrections Staff Screening Questionnaire Demographics Name: Facility: Date of Screening:
Employee ID (if applicable):
1) In the past 24 hours, have you experienced any of the following symptoms
☐ New/worsening cough ☐ New/worsening shortness of breath ☐ Fever
☐ Sweats/Chills/Shaking ☐ New sore throat ☐ Sudden fatigue
☐ Muscle aches/pain ☐ New onset of headache ☐ Loss of taste/smell
If “yes” to any of the above symptoms, the employee will be sent home. o You will isolate at home for a minimum of 7 days since the onset of symptoms. o In order to return to work, you must be symptom and fever free for 72 hours without the use of fever reducing medications. If “no”, proceed to question 2. 2) Have you traveled outside of the USA to a country designated as a warning level 3 (see attachment, #2) in the last 14 days?
If “yes” you will be sent home and instructed to isolate for a period of 14 days from the time you returned to the USA. If “no”, proceed to question 3. 3) Are you a licensed healthcare worker: Any healthcare employee with direct patient contact. This includes, primary care providers, nurses (RN, LPN, CAN, medical assistant), dentist, dental hygienist, dental assistants, psychiatric providers, QMHPs, and x-ray technicians.
If “yes” proceed to question 6. If “no” proceed to question 4. 4) In the past 14 days, have you been a close contact without wearing appropriate PPE of a COVID positive person?
If “yes,” date of contact: o The employee will be sent home and will quarantine for 14 days from the date of last contact. o In order to return to work, you must be symptom and fever free for 72 hours without the use of fever reducing medications and completed the 14 day quarantine. If “no” proceed to question 5. 5) Check to see if the employee has a temperature of 100.4 degrees F or greater. Temperature: ______
If “yes” the employee will be sent home. o You will isolate at home for a minimum of 7 days since the onset of the fever.
1
Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1421 Page 74 of 80 Updated 4/30/2020
o In order to return to work, you must be symptom and fever free for 72 hours without the use of fever reducing medications. o If you develop any additional symptoms or have been a close contact of a confirmed COVID positive patient, you should seek out medical attention. o If your temperature is 99.0 to 100.3, you will be given a mask and allowed to work. You must wear the mask and will repeat your temperature check in 2 hrs. If you are 100.4 or greater, you will be sent home. If your temperature is <100.4, you may continue to work with a mask. If “no,” you are able to work. It is recommended that you wear a mask during your shift.
Licensed Healthcare Worker
6) In the past 14 days, has the licensed healthcare worker been a close contact without wearing appropriate PPE of a COVID positive person?
If “yes”, the healthcare worker must check their temperature twice a day, preferably 8 hours apart, and self-monitor for any COVID symptoms (question 1). If the temperature is 100.0 degrees F or greater or symptoms develop, the licensed healthcare worker will be sent home. Follow question 7 guidelines for returning to work. If “no” proceed to question 7. 7) Check to see if the licensed healthcare worker has a temperature of 100.0 degrees F or greater. Temperature______
If “yes” the licensed healthcare worker will be sent home. o You will isolate at home for a minimum of 7 days since the onset of the fever. o In order to return to work, you must be symptom and fever free for 72 hours without the use of fever reducing medications. o If you develop any additional symptoms or have been a close contact of a confirmed COVID positive patient, you should seek out medical attention. o If your temperature is 99.0 to 99.9, you will be given a mask and allowed to work. You must wear the mask and will repeat your temperature check in 2 hrs. If you are 100.0 or greater, you will be sent home. If your temperature is <100.0, you may continue to work with a mask. If “no” the licensed healthcare worker may work. It is recommended that you wear a mask during your shift.
I do hereby attest that this information is true, accurate and complete to the best of my knowledge and I understand that any falsification, omission or concealment of material fact may subject me to.
Signature: ______Date: ______
2
Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1422 Page 75 of 80 Updated 4/30/2020
Attachment 1 1) Close contact: a) Being within approximately 6 feet of an individual with COVID-19 for a period of 10 minutes or longer. Close contact can occur while caring for, living with, visiting, or sharing a health care waiting area or room with a COVID-19 case. b) Having direct contact with infectious secretions of a COVID-19 case. One example of this would be being coughed or sneezed on. 2) Level 3 Travel Health Notice: Widespread ongoing transmission with restrictions on entry to the United States CDC recommends that travelers avoid all nonessential travel to the following destinations. Most foreign nationals who have been in one of these countries during the previous 14 days will not be allowed to enter the United States.
China
Iran
Most European Countries
United Kingdom and Ireland 3) Licensed healthcare worker: Any healthcare employee with direct patient contact. This includes, primary care providers, nurses (RN, LPN, CNA, medical assistant), dentist, dental hygienist, dental assistants, psychiatric providers, QMHPs and x-ray technicians.
3
Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1423 Page 76 of 80 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
Attachment 6
Affidavit of Dr. Carmen McIntyre
Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1424 Page 77 of 80
MICHIGAN DEPARTMENT OF CORRECTIONS EFFECTIVE DATE NUMBER 05/20/2019 03.04.125 POLICY DIRECTIVE SUBJECT SUPERSEDES MEDICAL EMERGENCIES 03.04.125 (04/01/2019) AUTHORITY MCL 333.1032, MCL 333.1033, MCL 750.411, MCL 791.203 PAGE 1 OF 4
POLICY STATEMENT:
Employees shall provide appropriate and timely response to medical emergencies consistent with the employee's training and the use of universal precautions.
RELATED POLICY:
04.06.110 Deaths: Natural, Accidental, Suicide, Homicide
DEFINITIONS:
A. Medical Provider: A qualified health professional who is a physician, physician assistant, or nurse practitioner licensed to practice in the State of Michigan.
B. Qualified Health Professional (QHP): A physician, psychiatrist, nurse practitioner, physician assistant, psychologist, social worker, licensed professional counselor, dentist, or registered nurse who is licensed and registered/certified by the State of Michigan to practice within the scope of his or her training.
POLICY:
GENERAL INFORMATION
C. For purposes of this policy, "employee" refers to Department employees, employees of other state agencies, and contractual employees whose primary work location is in a correctional facility or Field Operations Administration (FOA) field office, unless otherwise specified.
D. Central Office and each correctional facility and FOA field office shall have first aid kits available in standardized locations where they will be readily available to employees. Each correctional facility shall also have cardiopulmonary resuscitation (CPR) emergency kits available in standardized locations. The first aid kit and CPR kit may be combined into one kit. The Administrator of the Bureau of Health Care Services (BHCS) or designee shall identify those items required to be included in the CPR emergency kit. However, the kit shall include at least two resuscitation devices and protective gloves. Each Warden and Field Office Supervisor and, for Central Office, the Manager of the Emergency Management Section in the Operations Division, Correctional Facilities Administration (CFA), shall ensure that employees in their respective areas are notified as to the location of all kits, that all kits are inspected at least quarterly, and that non-serviceable items are replaced immediately.
E. Uniformed custody employees shall carry the approved resuscitation device and protective gloves while on duty. The uniformed custody employees shall inspect the resuscitation device issued to them at least monthly to ensure that the device is serviceable. Non-serviceable devices shall be reported to a supervisor and replaced immediately.
F. Personal protective clothing and equipment shall be available for employee use, inspected, and replaced if unserviceable as specified in the Exposure Control Plan developed pursuant to PD 03.04.120 "Control of Communicable Bloodborne Diseases.”
G. Department employees, as determined by the appropriate Deputy Director, shall be required to attend training in first aid and CPR. Training shall be made available both as a component of new employee training offered pursuant to PD 02.05.100 "New Employee Training Program" and as mandatory training offered pursuant to PD 02.05.101 "In-Service Training.” Medical providers and nurses also shall be Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1425 Page 78 of 80
DOCUMENT TYPE EFFECTIVE DATE NUMBER POLICY DIRECTIVE 05/20/2019 03.04.125 PAGE 2 OF 4
trained in first aid and CPR. Dentists, dental hygienists, and dental assistants shall be trained in CPR as part of continuing certification process.
H. At least one automatic external defibrillator (AED) shall be available at Central Office and each correctional facility. an AED shall be available in the Control Center of every correctional facility, and additional AEDs may also be available in other locations of the facility as determined by the Warden. On-site supervisors and, for Central Office, the Emergency Management Section Manager shall identify employees in their respective areas who shall be trained in the use of an AED. AEDs shall be used only by employees trained in their use. Worksite supervisors and, for Central Office, the Emergency Management Section Manager shall ensure for their respective areas that employees trained in the use of the AED are notified as to its location, that AEDs are inspected at least quarterly, and that non-serviceable AEDs are replaced immediately. Worksite supervisors and, for Central Office, the Emergency Management Section Manager shall ensure that a list of employees in their respective areas who are trained in the use of an AED is available to all employees at that worksite.
MEDICAL EMERGENCIES IN A CORRECTIONAL FACILITY
I. Whenever a person is determined to be in need of emergency medical attention, employee response to that emergency shall be as soon as possible and in accordance with their training. Employees first upon the scene shall ensure emergency medical assistance is summoned. If available, the AED shall be automatically sent to all medical emergencies. Employees shall initiate emergency first aid as they are qualified to provide as soon as possible, including using the appropriate resuscitation device, unless the victim is clearly deceased and has obvious signs of irreversible death. Once initiated, emergency first aid shall continue until one of the following occurs:
1. Relief is provided by an emergency medical response team.
2. A QHP verifies an executed Prisoner Advance Directive form (CHJ-233) exists.
3. A medical provider, emergency medical service provider or registered nurse has pronounced the victim deceased.
J. A seriously ill or injured person, unless clearly deceased, shall be transported to an appropriate medical facility as soon as his/her medical condition permits. Movement of a seriously ill or injured person, including mode of transportation, shall be consistent with accepted principles of first aid and as directed by Health Care employees unless there is an immediate physical threat to the injured person (e.g., fire, assault). PD 04.06.110 "Deaths: Natural, Accidental, Suicide, Homicide" shall be followed if the person is deceased.
K. If a person is found unconscious or unresponsive and correctional facility employees suspect a possible drug overdose due to witness statement(s) of drug use, or the presence of drug paraphernalia in the immediate area, NARCAN (Naloxone) shall be administered in accordance with the employee’s training.
L. In a correctional facility, NARCAN (Naloxone) will be kept in the Control Center in the AED box and in the Mailroom sealed in the first aid kit. Healthcare shall be contacted whenever the medication has been used or expires. Inventory and the checking of expiration date shall be completed quarterly by facility Health Care employees when AED checks are performed. Training on NARCAN (Naloxone) use shall be provided by the facility Human Resources Developer (HRD) to appropriate personnel. Employees need to be aware that possible side effects of NARCAN (Naloxone) use can cause the recipient to become easily angered or annoyed or become agitated and should be prepared to address these symptoms in accordance with their training.
M. Employees shall immediately call emergency medical services and notify the on-call medical provider when NARCAN (Naloxone) is administered. Employees shall also monitor the recipient and ensure an AED is applied to them until emergency medical services arrives.
N. The Michigan State Police or other appropriate law enforcement agency shall be contacted if criminal behavior is suspected or whenever personal injuries appear to have been inflicted with a deadly weapon. Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1426 Page 79 of 80
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In such cases, employees shall secure the scene and other appropriate areas, using caution to not disturb physical evidence unnecessarily, until otherwise directed by the Michigan State Police or other appropriate law enforcement agency.
O. Medical emergencies shall be reported in accordance with PD 01.05.120 "Critical Incident Reporting - Correctional facilities Administration (CFA)" and PD 06.04.136 “Critical Incident Reporting - Field Operations Administration (FOA) and Reentry Services.” Prisoner injuries shall be reported using the Prisoner Injury Report (CSJ-156). Employee injuries shall be reported using the State of Michigan Accident/Illness Report (CS-1836). All other injuries shall be reported using the Visitor Accident Report (CAJ-243).
P. The Warden shall ensure that an immediate investigation of the circumstances surrounding a medical emergency is conducted. The Internal Affairs Section, Office of Executive Affairs, shall be contacted as set forth in PD 01.01.140 "Internal Affairs,” if appropriate.
MEDICAL EMERGENCIES IN FOA
Q. FOA employees who observe a medical emergency in the office or while on duty in the field shall immediately call 911 for medical assistance.
R. FOA employees who witness, or suspect, an offender overdose, either in the office or field, shall administer NARCAN (Naloxone), if available, and then immediately call 911 for medical assistance. Employees need to be aware that possible side effects of NARCAN (Naloxone) use can cause the recipient to become easily angered or annoyed or become agitated and should be prepared to address these symptoms in accordance with their training.
MEDICAL EMERGENCIES INVOLVING PRISONER SEXUAL ABUSE
S. Medical emergencies involving prisoner sexual abuse shall be handled as set forth below and in accordance with PD 03.03.140 “Prison Rape Elimination Act (PREA) and Prohibited Sexual Conduct Involving Prisoners” and the PREA Manual. Upon learning of an allegation of sexual abuse occurring within the previous 96 hours and where forensic evidence may be present, initial employee response shall be as follows:
1. Non-Custody employees shall immediately notify their chain of command and an appropriate custody supervisor. The non-custody employee shall request that the prisoner victim not take any action that could destroy potential evidence such as washing, drinking, brushing teeth, changing clothes, urinating, defecating, or eating.
2. Custody employees shall separate the alleged victim and abuser and preserve and protect any crime scene until appropriate steps can be taken to collect any evidence. Custody employees shall ensure that the victim and abuser do not take any action that could destroy potential evidence such as washing, drinking, brushing teeth, changing clothes, urinating, defecating, or eating.
3. The victim shall be transported to a local hospital for a forensic medical examination.
NOTIFICATION IN CASE OF MEDICAL EMERGENCY
EMPLOYEES
T. Upon initial hire, each Department employee shall complete an Emergency Notification form (CAJ-184) and enter this information on the MI HR Employee Self Service database. The Department employee shall be responsible for updating this information on the MI HR Employee Self Service database whenever there is a change. Supervisors shall have access to this information for employees under their direct supervision for notification purposes in case of an emergency. The employee’s emergency contact person must be at least 18 years of age.
U. If an employee dies or requires medical care while at work and is physically unable to notify his/her Case 2:20-cv-11053-MAG-RSW ECF No. 27-7 filed 05/12/20 PageID.1427 Page 80 of 80
DOCUMENT TYPE EFFECTIVE DATE NUMBER POLICY DIRECTIVE 05/20/2019 03.04.125 PAGE 4 OF 4
emergency contact person, a supervisor or, in a correctional facility or an FOA field office, the Warden, field office supervisor, or designee shall immediately notify the emergency contact in person or by telephone. When deemed appropriate, local law enforcement may be asked to provide this notification. All attempts to contact the emergency contact person shall be documented in the employee's Human Resources file. Deaths and hospitalizations shall be reported to the Michigan Occupational Safety and Health Administration (MIOSHA) as set forth in the Department’s “Occupational Safety and Health Plan” Manual.
OFFENDERS
V. Each offender received at a reception facility or Special Alternative Incarceration facility (SAI) shall be requested to provide the name and telephone number of a person to be contacted in case of an emergency. The emergency contact person must be at least 18 years of age. Designated employees shall enter this information in the Department’s computerized database and document the information on the Basic Information Sheet (CSX-104). The offender shall be responsible for providing the Department with updated information whenever there is a change. The offender will also be offered the ability to update the information during their annual health screen. Designated employees shall enter the updated information in the Department’s computerized database and issue and distribute a revised Basic Information Sheet (CSX-104).
W. The appropriate Warden or field office supervisor or designee shall be notified when an offender dies or, as determined by the medical provider, is seriously or critically injured or becomes seriously or critically ill. The Warden or field office supervisor shall ensure that attempts are made to immediately notify the offender's emergency contact person by telephone or, if contact cannot be made by telephone, by certified mail. BHCS employees shall assist in this process upon request. When deemed appropriate, local law enforcement may be asked to provide this notification. All attempts by Department employees to notify the offender's emergency contact person shall be documented in the offender's Record Office file, or in FOA, in the Department’s computerized database.
RELEASE OF INFORMATION
X. An offender’s medical information shall be released only as set forth in PD 03.04.108 "Prisoner Health Information.”
Y. If an offender is transported off-site to a medical care facility, the location of the medical care facility shall not be released to the emergency contact person or others. unless the offender is critically ill, as determined by the appropriate medical provider. Visiting shall be permitted for a CFA/FOA offender only as set forth in PD 05.03.140 "Prisoner Visiting.”
Z. Information regarding a medical emergency shall be released to news media representatives in accordance with PD 01.06.130 "Media Relations.”
PROCEDURES
AA. If necessary, to implement requirements set forth in this policy directive, Wardens, in conjunction with the BHCS Administrator or designee, and the FOA Deputy Director shall ensure that operating procedures are developed or updated.
AUDIT ELEMENTS
BB. A Primary Audit Elements List has been developed and is available on the Department’s Document Access System to assist with self-audit of this policy pursuant to PD 01.05.100 "Self-Audits and Performance Audits.”
APPROVED: HEW 04/10/2019 Case 2:20-cv-11053-MAG-RSW ECF No. 27-8 filed 05/12/20 PageID.1428 Page 1 of 6 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT G
5/7/2020 Case 2:20-cv-11053-MAG-RSW ECFWhitmer No. - Executive27-8 filedOrder 2020-2905/12/20 (COVID-19) PageID.1429 Page 2 of 6
Executive Order 2020-29 (COVID-19)
EXECUTIVE ORDER
No. 2020-29
Temporary COVID-19 protocols for entry into Michigan Department of Corrections facilities and transfers to and from Department custody;
temporary recommended COVID-19 protocols and enhanced early-release authorization for county jails, local lockups, and juvenile detention centers
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.
On March 10, 2020, the Michigan Department of Health and Human Services identified the first two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended, MCL 30.401-.421, and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31-.33.
The Emergency Management Act vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945 provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1).
https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--,00.html 1/5 5/7/2020 Case 2:20-cv-11053-MAG-RSW ECFWhitmer No. - Executive27-8 filedOrder 2020-2905/12/20 (COVID-19) PageID.1430 Page 3 of 6 To mitigate the spread of COVID-19, protect the public health, and provide essential protections to vulnerable Michiganders who work at or are incarcerated in prisons, county jails, local lockups, and juvenile detention centers across the state, it is reasonable and necessary to implement limited and temporary COVID-19-related protocols and procedures regarding entry into facilities operated by the Michigan Department of Corrections and transfers to and from the Department’s custody; to recommend limited and temporary COVID-19-related protocols and measures for county jails, local lockups, and juvenile detention centers; and to temporarily suspend certain rules and procedures to facilitate the implementation of those recommendations.
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. The Michigan Department of Corrections (the “Department”) must continue to implement risk reduction protocols to address COVID-19 (“risk reduction protocols”), which the Department has already developed and implemented at the facilities it operates and which include the following:
a. Screening all persons arriving at or departing from a facility, including staff, incarcerated persons, vendors, and any other person entering the facility, in a manner consistent with guidelines issued by the Centers for Disease Control and Prevention (“CDC”). Such screening includes a temperature reading and obtaining information about travel and any contact with persons under investigation for COVID-19 infection.
b. Restricting all visits, except for attorney-related visits, and conducting those visits without physical contact to the extent feasible.
c. Limiting off-site appointments for incarcerated persons to only appointments for urgent or emergency medical treatment.
d. Developing and implementing protocols for incarcerated persons who display symptoms of COVID-19, including methods for evaluation and processes for testing, notification of the Department of Health and Human Services (“DHHS”), and isolation during testing, while awaiting test results, and in the event of positive test results. These protocols should be developed in consultation with local public health departments. https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--,00.html 2/5 5/7/2020 Case 2:20-cv-11053-MAG-RSW ECFWhitmer No. - Executive27-8 filedOrder 2020-2905/12/20 (COVID-19) PageID.1431 Page 4 of 6
e. Notifying DHHS of any suspected case that meets the criteria for COVID-19 through communication with the applicable local public health department.
f. Providing, to the fullest extent possible, appropriate personal protective equipment to all staff as recommended by the CDC.
g. Conducting stringent cleaning of all areas and surfaces, including frequently touched surfaces (such as doorknobs, handles, light switches, keyboards, etc.), on a regular and ongoing basis.
h. Ensuring access to personal hygiene products for incarcerated persons and correctional staff, including soap and water sufficient for regular handwashing.
i. Ensuring that protective laundering protocols are in place.
j. Posting signage and continually educating on the importance of social distancing, handwashing, and personal hygiene.
k. Practicing social distancing in all programs and classrooms—meaning a distance of at least six feet between people in any meeting, classroom, or other group.
Minimizing crowding, including interactions of groups of 10 or more people, which may include scheduling more times for meal and recreation to reduce person-to-person contact.
2. To mitigate the risk of COVID-19 spreading in county jails, strict compliance with the capacity and procedural requirements regarding county jail overcrowding states of emergency in the County Jail Overcrowding Act (“CJOA”), 1982 PA 325, MCL 801.51 et seq., is temporarily suspended. While this order is in effect, all actions that would be authorized under the CJOA in the event of a declaration of a county jail overcrowding state of emergency are authorized and shall remain authorized without regard to any https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--,00.html 3/5 5/7/2020 Case 2:20-cv-11053-MAG-RSW ECFWhitmer No. - Executive27-8 filedOrder 2020-2905/12/20 (COVID-19) PageID.1432 Page 5 of 6 reduction in jail population or any other such limitations on the duration of authorization imposed by the CJOA.
3. Anyone authorized to act under section 2 of this order is strongly encouraged to consider early release for all of the following, so long as they do not pose a public safety risk:
a. Older people, people who have chronic conditions or are otherwise medically frail, people who are pregnant, and people nearing their release date.
b. Anyone who is incarcerated for a traffic violation.
c. Anyone who is incarcerated for failure to appear or failure to pay.
d. Anyone with behavioral health problems who can safely be diverted for treatment.
4. Effective immediately, all transfers into the Department’s custody are temporarily suspended. Beginning seven (7) days from the effective date of this order, and no more than once every seven (7) days, a county jail or local lockup may request that the director of the Department determine that the jail or lockup has satisfactorily implemented risk reduction protocols as described in section 1 of this order. Upon inspection, if the director of the Department determines that a county jail or local lockup has satisfactorily implemented risk reduction protocols, transfers from that jail or lockup will resume in accordance with the Department’s risk reduction protocols. The director of the Department may reject transfers that do not pass the screening protocol for entry into a facility operated by the Department.
5. Parole violators in the Department’s custody must not be transported to or lodged in a county jail or local lockup unless the director of the Department has determined that such county jail or local lockup has satisfactorily implemented risk reduction protocols as described in section 1 of this order.
https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--,00.html 4/5 5/7/2020 Case 2:20-cv-11053-MAG-RSW ECFWhitmer No. - Executive27-8 filedOrder 2020-2905/12/20 (COVID-19) PageID.1433 Page 6 of 6 6. The State Budget Office must immediately seek a legislative transfer so that counties may be reimbursed for lodging incarcerated persons that would have been transferred into the Department’s custody if not for the suspension of transfers described in section 4 of this order.
7. Juvenile detention centers are strongly encouraged to reduce the risk that those at their facilities will be exposed to COVID-19 by implementing as feasible the following measures:
a. Removing from the general population any juveniles who have COVID-19 symptoms.
b. Eliminating any form of juvenile detention or residential facility placement for juveniles unless a determination is made that a juvenile is a substantial and immediate safety risk to others.
c. Providing written and verbal communications to all juveniles at such facilities regarding COVID-19, access to medical care, and community-based support.
d. To the extent feasible, facilitating access to family, education, and legal counsel through electronic means (such as telephone calls or video conferencing) at no cost, rather than through in-person meetings.
8. Unless otherwise directed by court order, for juveniles on court-ordered probation, the use of out-of-home confinement for technical violations of probation and any requirements for in-person meetings with probation officers are temporarily suspended.
9. This order is effective immediately and continues through April 26, 2020 at 11:59 pm.
Given under my hand and the Great Seal of the State of Michigan.
https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-523422--,00.html 5/5 Case 2:20-cv-11053-MAG-RSW ECF No. 27-9 filed 05/12/20 PageID.1434 Page 1 of 9 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT H
Case 2:20-cv-11053-MAG-RSW ECF No. 27-9 filed 05/12/20 PageID.1435 Page 2 of 9
STATE OF MICHIGAN
GRETCHEN WHITMER DEPARTMENT OF CORRECTIONS HEIDI E. WASHINGTON GOVERNOR DIRECTOR LANSING
DIRECTOR'S OFFICE MEMORANDUM 2020 - 30 EFFECTIVE: Immediately
DATE: April 8, 2020
TO: Executive Policy Team Administrative Management Team Wardens
FROM: Heidi E. Washington, Director
SUBJECT: COVID-19
The MDOC is taking many steps to protect staff and prisoners from the spread of COVID-19, including developing isolation areas to place and treat prisoners who have tested positive for COVID-19 or who are under investigation for having COVID-19, as well as those who have had close contact with a known-positive COVID-19 individual. This DOM outlines the precautions staff shall take to help prevent COVID-19 from spreading. This DOM controls when in conflict with any other DOM or Department policy or procedure.
PERSONAL PROTECTIVE EQUIPMENT (PPE)
At a minimum, all staff and prisoners shall always wear a mask. Additionally, required PPE shall be worn by staff at all times when they are in an isolation area, transporting a prisoner with a confirmed or suspected case of COVID-19, packing the property of a prisoner with a confirmed or suspected case of COVID-19, or at any time the staff member has close contact (i.e., within six feet) with an offender (i.e., prisoner, parolee, probationer) who has a confirmed or suspected case of COVID-19. As outlined in the approved protocol, PPE shall include an N95 or other mask, a gown, eye protection, and gloves. PPE worn in an isolation area shall be removed before going to another area of the facility.
SCREENING OF INDIVIDUALS BEFORE ENTERING A FACILITY OR OFFICE BUILDING
All individuals shall be screened for potential signs and symptoms of COVID-19 before entering a correctional facility or office building. Any individual who shows symptoms of COVID-19 shall be denied entry. Consistent with Executive Order 2020-36, employees who are feeling sick with any illness must stay home.
GRANDVIEW PLAZA • P.O. BOX 30003 • LANSING, MICHIGAN 48909 www.michigan.gov • (517) 335-1426 Case 2:20-cv-11053-MAG-RSW ECF No. 27-9 filed 05/12/20 PageID.1436 Page 3 of 9 2020-30 PAGE 2
SOCIAL DISTANCING
In accordance with the Centers of Disease Control (CDC) recommendations, social distancing recommendations shall be followed at all times, including programing, classrooms, chow lines, staff screenings, office buildings, etc. This means that there shall be a distance of at least six feet between all individuals. Staff meetings and other group interactions of 10 or more individuals shall be limited. Technology must be used in place of group interactions, when possible.
ISOLATION AREAS
The CFA Deputy Director shall determine where isolation areas are located. A prisoner who tests positive for COVID-19 shall be placed in quarantine in a designated isolation area as soon as resources permit regardless of their security level or prior criminal history. All of the requirements set forth in PD 03.03.130 “Humane Treatment and Living Conditions for Prisoners” apply to prisoners in an isolation area with the exception of two hours of indoor/outdoor recreation. Psychological services shall be provided to a prisoner in an isolation area only when immediate intervention is needed as determined by the Chief Psychiatric Officer (CPO). The CFA Deputy Director shall consult with the Office of Legal Affairs Administrator and the BHCS Administrator to determine what movement and activities may take place in an isolation area including access to programming, religious services, and law library material. At no time shall a prisoner who is placed in an isolation area be permitted outside of the area, unless it is for an emergency, or as approved by the Assistant Deputy Director (ADD). If a prisoner becomes extremely disruptive while in an isolation area, staff may use management techniques and equipment as set forth in PD 04.05.112 “Managing Disruptive Prisoners.” Staffing levels in an isolation area shall be determined by the Warden.
A sign shall be placed outside of each isolation area that notifies staff that they are about to enter a restricted area, and what PPE shall be worn before entering the area. Only staff approved by the Warden or designee may enter an isolation area, unless an emergent situation (e.g., any situation that would require a critical incident report to be written) arises.
The BHCS Administrator shall ensure cleaning procedures are in place for isolation areas. Volunteer prisoner porters will be assigned to the isolation area and will clean as needed. Prisoner porters will be provided with appropriate PPE, when available. Staff shall document that PPE was provided to the porters in the logbook.
A prisoner shall only be released from an isolation area after they have been cleared by a Physician, and approval from the BHCS Administrator or Chief Medical Officer/Assistant Chief Medical Officer has been obtained.
PRISONERS UNDER INVESTIGATION FOR COVID-19
Separate isolation areas shall also be developed for prisoners who are under investigation (PUIs) for having COVID-19 as well as for those who have had close contact with a PUI or known-positive COVID-19 individual (Close Contacts), as necessary. The isolation areas for PUIs shall follow the same criteria as the isolation areas for prisoners with confirmed cases of COVID-19. A PUI shall be placed alone in a cell pending the outcome of their test results. Staff transporting a PUI shall wear the
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same PPE that is required for transporting a prisoner with confirmed COVID-19.
PRISONER PERSONAL PROPERTY
To control the spread of the COVID-19 virus that may be lying dormant, facility staff shall secure and inventory the property of prisoners with confirmed COVID-19 as well as PUIs and Close Contacts if the prisoner is placed in an isolation area. Prisoner property shall not be allowed while in an isolation area. Staff shall wear gowns, face shields, masks, and gloves when handling the property. Perishable food items that are not in a sealed or unopened container shall be discarded. A prisoner’s property shall be immediately returned to them once they are released from the isolation area.
PRECAUTIONS IN CFA FACILITIES
Alcohol-Based Hand Sanitizer and Wipes
Until further notice, alcohol-based hand sanitizer and wipes that are provided to correctional facilities by the Department shall be permitted within the secure perimeter of a correctional facility for use by staff. Hand sanitizer shall not be used in place of good hand washing technique. When not in use, the hand sanitizer and wipes shall be stored in accordance with Chapter 12 of the Environmental and Waste Management Plan. Staff shall not be permitted to bring personal alcohol-based hand sanitizer or wipes through the gate.
Gate Security
During the pendency of this pandemic only, Directors of Nursing (DONs) are authorized to possess their Department-issued cellular telephones inside the secure perimeter of a facility.
Staff are permitted to bring in the following items without a gate manifest:
Department-issued hand sanitizer and wipes Acceptable gloves made of vinyl, nitrile, or latex; Surgical masks made from polypropylene, polystyrene, polycarbonate, polyethylene, cotton, or polyester. They may be disposable or reusable (require washing); and Disposable or reusable fabric gowns.
Reassignment of Staff
Staff shall be reassigned as necessary to meet the needs of the facility or the Department. Corrections Transportation Officers (CTOs) shall be reassigned to facilities as necessary to augment custody staff.
Visits, Telephone Calls, and JPay
Prisoner visits shall be suspended until further notice, including visits/programming from volunteers. In lieu of visits, prisoners shall be given two free phone calls (each lasting five minutes) and two free JPay stamps per week. Security Threat Group (STG) prisoners shall also be allowed the two free phone calls and two free JPay stamps per week.
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Attorney Visits
To reduce the number of people entering facilities, attorneys shall be encouraged to speak with their clients via phone instead of conducting an in-person visit. While prisoners may continue to use the GTL phone system to call their attorneys, attorneys may contact the facility to request the opportunity to speak with their clients in lieu of an attorney visit. If requested, staff shall promptly arrange calls between attorneys and their clients and provide the prisoners with an opportunity to make this call. Accommodations shall also be made to assist attorneys with getting documents signed and returned via email or fax, if requested, to prevent unnecessary attorney visits to the facility. All in-person attorney visits must be approved by the appropriate ADD.
Parole Board Representatives
Prisoners are allowed one representative at Parole Board hearings, but the representative may only attend via telephone or other available electronic means.
Large Gatherings
All large in-person gatherings shall be canceled including graduations, trainings, and job fairs. Annual fit testing shall be postponed. The following training shall be permitted:
Weapons SCBA Expirations CCMW Court-ordered/settlements Deaf and/or Hard of Hearing Prisoners New Orientation
All staff are still required to complete computer-based training (CBT).
Transfers and Cell Moves
No transfers shall be made unless approved by the CFA Deputy Director. Cell moves shall only be made if absolutely necessary (e.g., medical, PREA). If a prisoner needs to be transferred to an isolation area, transportation staff shall wear all required PPE.
Overtime Procedures for Security Unit Employees
With approval of the appropriate ADD, probationary employees may be authorized to work voluntary and mandatory overtime prior to completing six months of satisfactory service. During the pendency of this pandemic, mandatory overtime shall be assigned using 100 percent of the shift seniority list for the departing shift on a rotational basis. Mandatory overtime shall be tracked in accordance with DOM 2020-26 “Overtime Distribution Process for Security Unit Employees.”
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School and Programming
School classes and programming may be canceled as determined by the Warden or their designee in consultation with the appropriate ADD. The number of prisoners in each program shall be reduced to allow for appropriate social distancing. When possible, prisoners attending the class/program shall be seated a minimum of six feet apart. Face-to-face college courses shall be suspended.
Searches
Clothed-body or thorough pat-down searches of prisoners, as outlined in PD 04.04.110 “Search and Arrest in Correctional Facilities” Paragraph T, are suspended for (1) prisoners who have tested positive for COVID-19, (2) PUIs, and (3) are a Close Contact. Similarly, the searches of prisoner living areas, as outlined in PD 04.04.110 Paragraph V, are suspended for cells or areas whose occupants (1) have tested positive for COVID-19, (2) are a PUI, and (3) Close Contacts. The search of common areas is still required and shall be completed when prisoners are not present.
In the event a suspended pat-down search or cell search is required, the staff conducting the search shall wear PPE.
Prisoner Hygiene and Housing Unit Cleanliness
Adequate soap shall be provided to prisoners at all times. Bleach is permitted to be used and stored in the housing units, and other areas of the facility as determined by the Warden. Only prisoners who are assigned as a porter may clean with bleach, and they shall be under direct staff supervision while cleaning with bleach. When the bleach is not in use, it shall be stored in accordance with Chapter 12 of the Environmental and Waste Management Plan. The bleach shall be inventoried daily on the Hazardous Material Inventory Checklist (CAH-159) even if the NFPA/HMIS hazardous rating is not two or higher.
Health Care
Prisoners shall not be charged a copay for COVID-19 testing and management. All non-urgent and non-emergent Health Care appointments, including dental, shall be postponed. All annual Health Care screens shall be postponed and rescheduled. TB testing for employees shall also be postponed. Prisoners who are paroling shall be provided with a 60-day supply of medication due to possible shortages in the community. Due to the need for nurses to be on duty, nurses shall be allowed to accrue up to a maximum of 80 hours of compensatory time. Prisoner Palliative Care Aids shall not be utilized unless there is a prisoner in vigil status.
Due to the COVID-19 Emergency Declaration, employees responding to victims of cardiac and/or respiratory emergencies are directed to respond as follows:
When delivering Cardiopulmonary Resuscitation (CPR), employees shall follow the American Heart Association (AHA) guidelines for “Hands-Only” CPR. Hands-Only CPR eliminates the delivery of rescue breaths by non-Health Care employees while delivering consistent compressions to the victim at a rate of 120 bpm.
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Rescue breaths will only be delivered by Health Care employees using the Ambu bag with the spacer and filter. Non-Health Care employees will continue to assist with compressions, scene safety, and the AED as trained. This direction includes any victim found to be unconscious due to an obstructed airway, opiate overdose, or all other emergencies that may require CPR or rescue breaths.
Food Service
The Business Manager shall ensure extra food is ordered (14 days on hand). The number of prisoners allowed to attend a meal at one time shall be reduced as determined by the Warden. Prisoners eating in the dining hall shall be seated in a fashion that allows them to avoid close contact with each other (i.e., six feet apart) and tables shall be sanitized between use. Prisoners shall stand at least six feet apart while waiting in line to receive their meal.
Gate Traffic
The number of individuals allowed in the gate area has decreased from eight to four.
Warden’s Forum
Warden’s forum may continue to be held in the units and counted as a monthly meeting.
Prisoner Store
A prisoner may spend up to $150 plus any applicable sales tax once every two weeks (i.e., 26 times per calendar year) to purchase Standardized Store List items from the vendor.
Additional Suspensions/Postponements
Along with the items noted above, the following shall be suspended or postponed in CFA:
Mobilizations shall be suspended. Weight pits for prisoners and staff weight rooms shall be closed at facilities on quarantine status. Gate pass prisoners may be laid in and will only be assigned in essential positions. Performance audits and all inspections that are not conducted at the facility level shall be postponed. Hiring shall be suspended except for Corrections Officers, Food Service, and Health Care staff. Pest control shall be postponed unless there is an urgent need. Construction projects shall be postponed unless they are emergent.
Any other decision to change or suspend facility operations shall be made on a case by case basis as determined by the CFA Deputy Director.
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CREDIT RESTORATIONS
The following requirements for credit restorations listed in PD 03.01.100 “Good Time Credits” and PD 03.01.101 “Disciplinary Credits” will be modified:
Restorations may be initiated at a Warden’s discretion and may impanel committee members to assist in providing recommendation for restoration. Initiation of a restoration will not be limited to an annual review period or exemplary or meritorious acts. Prisoners are not automatically ineligible for restoration of credits because of their disciplinary history; however, a Warden may consider disciplinary history when deciding whether or not to restore credits. All recommendations for restoration must continue to be referred to the CFA Deputy Director for approval.
PRECAUTIONS TO BE TAKEN BY FOA
The following precautions shall be taken by FOA to protect staff, parolees, and probationers:
In-person contacts (IPC) shall be held by telephone or video whenever possible. IPCs that cannot be held by telephone or video shall be limited as much as possible. No Preliminary Breath Tests (PBT) shall be administered. Telehealth shall be utilized for community programming when feasible. Case notes can document why forms were not signed/initialed in person when not able to be signed/initialed in person. Parole Board public hearings are placed on hold. In-reach services may be accelerated. The ADD of OPPS must approve all return-to-prison parole violation decisions. Because Absconder Recovery Unit (ARU) investigators are currently working at a facility, the standards listed in the ARU Operations Manual are suspended. Suspend placing parole violators (PVs) in the Intensive Detention Reentry Programs (IDRP) at Clinton and Ingham counties. Only PV returns will be held in custody; reinstatements will be expedited. All PV intake at the Detroit Reentry Center (DRC) has been suspended. Detroit Detention Center (DDC) parole arrestees shall not be sent to DRC; Arrests that are returns shall be sent directly to Charles Egeler Reception and Guidance Center (RGC), Women’s Huron Valley Correctional Facility (WHV), or Marquette Branch Prison (MBP), as appropriate. Masks and hand sanitizer shall be given to field staff. Oral swabs have been purchased for substance abuse testing. Instructions have been provided on how to eliminate face-to-face installation of EMS. A phone call from the transportation officer to the Agent shall replace a signature when dropping off a parolee at their destination.
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Parolee Substance Abuse Testing
The standard of six months with no positive alcohol or drug tests (and no refusals) and no arrests, or citations for drug or alcohol-related offenses will be reduced to three. After three months of sobriety, the Substance Abuse (SA) designation can be removed and testing thereafter will be at the discretion of the Agent. However, if at any time the parolee’s behavior warrants reinstatement of the SA designation, it shall remain until the parolee has maintained sobriety for a term of three months and has completed any required SA programming.
Screening of New Parolees
All new parolees must be screened by Health Care staff for COVID-19 symptoms prior to release and provided instruction on what to do if they become symptomatic. Additionally, all known-positive COVID-19 parolees, PUIs, and Close Contacts shall be reported to the local county health department.
DISCIPLINARY CONFERENCES
All investigations, including those in progress, shall be postponed except for stop orders and investigations involving PREA. Notification shall be sent to the Office of Executive Affairs (OEA) Administrator or designee of all investigations that are continued. All new allegations shall be entered into AIM and left as pending.
WORKING REMOTELY
All staff who have the ability to work remotely shall be required to do so, as approved by their supervisor. Staff shall be permitted to take their work computers and any other supplies that are required for them to perform their duties outside of the office to work remotely. Staff working remotely are required to check their work e-mail, work voice mail, and shall be available by phone during business hours. Staff working remotely shall also keep a daily log of their activities, and the log shall be turned into their immediate supervisor at the end of the week.
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EXHIBIT I
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Coronavirus Disease 2019 (COVID-19)
Recommendation Regarding the Use of Cloth Face Coverings, Especially in Areas of Signi cant Community-Based Transmission CDC continues to study the spread and effects of the novel coronavirus across the United States. We now know from recent studies that a significant portion of individuals with coronavirus lack symptoms (“asymptomatic”) and that even those who eventually develop symptoms (“pre-symptomatic”) can transmit Use of Cloth Face Coverings to Help Slow the Spread of COVID-19 the virus to others before showing symptoms. This means that the virus can spread between people interacting in close proximity—for example, speaking, coughing, or sneezing—even if those people are not exhibiting symptoms. In light of this new evidence, CDC recommends wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies) especially in areas of significant community-based transmission.
It is critical to emphasize that maintaining 6-feet social distancing remains important to slowing the spread of the virus. CDC is additionally advising the use of simple cloth face coverings to slow the spread of the virus and help people who may have the virus and do not know it from transmitting it to others. Cloth face coverings fashioned from household items or made at home from common materials at low cost can be used as an additional, voluntary public health measure.
The cloth face coverings recommended are not surgical masks or N-95 respirators. Those are critical supplies that must continue to be reserved for healthcare workers and other medical first responders, as recommended by current CDC guidance.
This recommendation complements and does not replace the President’s Coronavirus Guidelines for America, 30 Days to Slow the Spread , which remains the cornerstone of our national effort to slow the spread of the coronavirus. CDC will make additional recommendations as the evidence regarding appropriate public health measures continues to develop.
How to Make Your own Face Covering
Recent Studies: Rothe C, Schunk M, Sothmann P, et al. Transmission of 2019-nCoV Infection from an Asymptomatic Contact in Germany. The New England journal of medicine. 2020;382(10):970-971. Zou L, Ruan F, Huang M, et al. SARS-CoV-2 Viral Load in Upper Respiratory Specimens of Infected Patients. The New England journal of medicine. 2020;382(12):1177-1179. Pan X, Chen D, Xia Y, et al. Asymptomatic cases in a family cluster with SARS-CoV-2 infection. The Lancet Infectious diseases. 2020. Bai Y, Yao L, Wei T, et al. Presumed Asymptomatic Carrier Transmission of COVID-19. Jama. 2020. Kimball A HK, Arons M, et al. Asymptomatic and Presymptomatic SARS-CoV-2 Infections in Residents of a Long-Term Care Skilled Nursing Facility — King County, Washington, March 2020. MMWR Morbidity and mortality weekly report. 2020; ePub: 27 March 2020. Wei WE LZ, Chiew CJ, Yong SE, Toh MP, Lee VJ. Presymptomatic Transmission of SARS-CoV-2 — Singapore, January 23–March 16, 2020. MMWR Morbidity and mortality weekly report. 2020;ePub: 1 April 2020. Li R, Pei S, Chen B, et al. Substantial undocumented infection facilitates the rapid dissemination of novel coronavirus (SARS-CoV2). Science (New York, NY). 2020.
Page last reviewed: April 3, 2020
/ Case 2:20-cv-11053-MAG-RSW ECF No. 27-11 filed 05/12/20 PageID.1445 Page 1 of 13 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT J
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EXECUTIVE ORDER
No. 2020-59
Temporary requirement to suspend activities that are not necessary to sustain or protect life
Rescission of Executive Order 2020-42
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.
On March 10, 2020, the Department of Health and Human Services identified the first two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended, MCL 30.401 et seq., and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31 et seq.
In the three weeks that followed, the virus spread across Michigan, bringing deaths in the hundreds, confirmed cases in the thousands, and deep disruption to this state’s economy, homes, and educational, civic, social, and religious institutions. On April 1, 2020, in response to the widespread and severe health, economic, and social harms posed by the COVID-19 pandemic, I issued Executive Order 2020-33. This order expanded on Executive Order 2020-4 and declared both a state of emergency and a state of disaster across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, and the Emergency Powers of the Governor Act of 1945.
The Emergency Management Act vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945, provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1).
GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov PRINTED IN-HOUSE
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To suppress the spread of COVID-19, to prevent the state’s health care system from being overwhelmed, to allow time for the production of critical test kits, ventilators, and personal protective equipment, to establish the public health infrastructure necessary to contain the spread of infection, and to avoid needless deaths, it is reasonable and necessary to direct residents to remain at home or in their place of residence to the maximum extent feasible. To that end, on March 23, 2020, I issued Executive Order 2020-21, ordering all people in Michigan to stay home and stay safe, and then extended that order through April 30, 2020, with Executive Order 2020-42. The orders limited gatherings and travel, and required all workers who are not necessary to sustain or protect life to stay home.
The measures put in place by Executive Orders 2020-21 and 2020-42 have been effective: the number of new confirmed cases each day has started to drop. Although the virus remains aggressive and persistent—on April 23, 2020, Michigan reported 35,291 confirmed cases and 2,977 deaths—the strain on our health care system has begun to relent, even as our testing capacity has increased. We can now start the process of gradually resuming in- person work and activities that were temporarily suspended under my prior orders. But in doing so, we must move with care, patience, and vigilance, recognizing the grave harm that this virus continues to inflict on our state and how quickly our progress in suppressing it can be undone. Accordingly, with this order, I find it reasonable and necessary to reaffirm the measures set forth in Executive Order 2020-42, amend their scope, and extend their duration to May 15, 2020, unless modified earlier. With this order, Executive Order 2020-42 is rescinded.
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. This order must be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.
2. Subject to the exceptions in section 7 of this order, all individuals currently living within the State of Michigan are ordered to stay at home or at their place of residence. Subject to the same exceptions, all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited.
3. All individuals who leave their home or place of residence must adhere to social distancing measures recommended by the Centers for Disease Control and Prevention (“CDC”), including remaining at least six feet from people from outside the individual’s household to the extent feasible under the circumstances.
4. No person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life, to conduct minimum basic operations, or to perform a resumed activity within the meaning of this order.
(a) For purposes of this order, workers who are necessary to sustain or protect life are defined as “critical infrastructure workers,” as described in sections 8 and 9 of this order.
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(b) For purposes of this order, workers who are necessary to conduct minimum basic operations are those whose in-person presence is strictly necessary to allow the business or operation to maintain the value of inventory and equipment, care for animals, ensure security, process transactions (including payroll and employee benefits), or facilitate the ability of other workers to work remotely.
Businesses and operations must determine which of their workers are necessary to conduct minimum basic operations and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave the home or place of residence for work.
Any in-person work necessary to conduct minimum basic operations must be performed consistently with the social distancing practices and other mitigation measures described in section 11 of this order.
(c) Workers who perform resumed activities are defined in section 10 of this order.
5. Businesses and operations that employ critical infrastructure workers or workers who perform resumed activities may continue in-person operations, subject to the following conditions:
(a) Consistent with sections 8, 9, and 10 of this order, businesses and operations must determine which of their workers are critical infrastructure workers or workers who perform resumed activities and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave the home or place of residence for work. Businesses and operations need not designate:
(1) Workers in health care and public health.
(2) Workers who perform necessary government activities, as described in section 6 of this order.
(3) Workers and volunteers described in section 9(d) of this order.
(b) In-person activities that are not necessary to sustain or protect life or to perform a resumed activity must be suspended.
(c) Businesses and operations maintaining in-person activities must adopt social distancing practices and other mitigation measures to protect workers and patrons, as described in section 11 of this order. Stores that are open for in-
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person sales must also adhere to the rules described in section 12 of this order.
(d) Any business or operation that employs workers who perform resumed activities under section 10(a) of this order, but that does not sell necessary supplies, may sell any goods through remote sales via delivery or at the curbside. Such a business or operation, however, must otherwise remain closed to the public.
6. All in-person government activities at whatever level (state, county, or local) that are not necessary to sustain or protect life, or to support those businesses and operations that are maintaining in-person activities under this order, are suspended.
(a) For purposes of this order, necessary government activities include activities performed by critical infrastructure workers, including workers in law enforcement, public safety, and first responders.
(b) Such activities also include, but are not limited to, public transit, trash pick- up and disposal (including recycling and composting), activities necessary to manage and oversee elections, operations necessary to enable transactions that support the work of a business’s or operation’s critical infrastructure workers, and the maintenance of safe and sanitary public parks so as to allow for outdoor activity permitted under this order.
(c) For purposes of this order, necessary government activities include minimum basic operations, as described in section 4(b) of this order. Workers performing such activities need not be designated.
(d) Any in-person government activities must be performed consistently with the social distancing practices and other mitigation measures to protect workers and patrons described in section 11 of this order.
7. Exceptions.
(a) Individuals may leave their home or place of residence, and travel as necessary:
(1) To engage in outdoor recreational activity, consistent with remaining at least six feet from people from outside the individual’s household. Outdoor recreational activity includes walking, hiking, running, cycling, boating, golfing, or other similar activity, as well as any comparable activity for those with limited mobility.
(2) To perform their jobs as critical infrastructure workers after being so designated by their employers. (Critical infrastructure workers who need not be designated under section 5(a) of this order may leave their home for work without being designated.)
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(3) To conduct minimum basic operations, as described in section 4(b) of this order, after being designated to perform such work by their employers.
(4) To perform resumed activities, as described in section 10 of this order, after being designated to perform such work by their employers.
(5) To perform necessary government activities, as described in section 6 of this order.
(6) To perform tasks that are necessary to their health and safety, or to the health and safety of their family or household members (including pets). Individuals may, for example, leave the home or place of residence to secure medication or to seek medical or dental care that is necessary to address a medical emergency or to preserve the health and safety of a household or family member (including in-person procedures or veterinary services that, in accordance with a duly implemented non-essential procedure or veterinary services postponement plan, have not been postponed).
(7) To obtain necessary services or supplies for themselves, their family or household members, their pets, and their motor vehicles.
(A) Individuals must secure such services or supplies via delivery to the maximum extent possible. As needed, however, individuals may leave the home or place of residence to purchase groceries, take-out food, gasoline, needed medical supplies, and any other products necessary to maintain the safety, sanitation, and basic operation of their residences or motor vehicles.
(B) Individuals may also leave the home to pick up or return a motor vehicle as permitted under section 9(i) of this order, or to have a motor vehicle or bicycle repaired or maintained.
(C) Individuals should limit, to the maximum extent that is safe and feasible, the number of household members who leave the home for any errands.
(8) To pick up non-necessary supplies at the curbside from a store that must otherwise remain closed to the public.
(9) To care for a family member or a family member’s pet in another household.
(10) To care for minors, dependents, the elderly, persons with disabilities, or other vulnerable persons.
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(11) To visit an individual under the care of a health care facility, residential care facility, or congregate care facility, to the extent otherwise permitted.
(12) To visit a child in out-of-home care, or to facilitate a visit between a parent and a child in out-of-home care, when there is agreement between the child placing agency, the parent, and the caregiver about a safe visitation plan, or when, failing such agreement, the individual secures an exception from the executive director of the Children’s Services Agency.
(13) To attend legal proceedings or hearings for essential or emergency purposes as ordered by a court.
(14) To work or volunteer for businesses or operations (including both religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
(15) To attend a funeral, provided that no more than 10 people are in attendance.
(16) To attend a meeting of an addiction recovery mutual aid society, provided that no more than 10 people are in attendance.
(b) Individuals may also travel:
(1) To return to a home or place of residence from outside this state.
(2) To leave this state for a home or residence elsewhere.
(3) Between two residences in this state, including moving to a new residence.
(4) As required by law enforcement or a court order, including the transportation of children pursuant to a custody agreement.
(c) All other travel is prohibited, including all travel to vacation rentals.
8. For purposes of this order, critical infrastructure workers are those workers described by the Director of the U.S. Cybersecurity and Infrastructure Security Agency in his guidance of March 19, 2020 on the COVID-19 response (available here). This order does not adopt any subsequent guidance document released by this same agency.
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Consistent with the March 19, 2020 guidance document, critical infrastructure workers include some workers in each of the following sectors:
(a) Health care and public health.
(b) Law enforcement, public safety, and first responders.
(c) Food and agriculture.
(d) Energy.
(e) Water and wastewater.
(f) Transportation and logistics.
(g) Public works.
(h) Communications and information technology, including news media.
(i) Other community-based government operations and essential functions.
(j) Critical manufacturing.
(k) Hazardous materials.
(l) Financial services.
(m) Chemical supply chains and safety.
(n) Defense industrial base.
9. For purposes of this order, critical infrastructure workers also include:
(a) Child care workers (including workers at disaster relief child care centers), but only to the extent necessary to serve the children or dependents of critical infrastructure workers, workers who conduct minimum basic operations, workers who perform necessary government activities, or workers who perform resumed activities. This category includes individuals (whether licensed or not) who have arranged to care for the children or dependents of such workers.
(b) Workers at suppliers, distribution centers, or service providers, as described below.
(1) Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate another business’s or operation’s critical infrastructure work may designate their workers as critical infrastructure workers, provided
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that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(2) Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate the necessary work of suppliers, distribution centers, or service providers described in subprovision (1) of this subsection may designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(3) Consistent with the scope of work permitted under subprovision (2) of this subsection, any suppliers, distribution centers, or service providers further down the supply chain whose continued operation is necessary to enable, support, or facilitate the necessary work of other suppliers, distribution centers, or service providers may likewise designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(4) Suppliers, distribution centers, and service providers that abuse their designation authority under this subsection shall be subject to sanctions to the fullest extent of the law.
(c) Workers in the insurance industry, but only to the extent that their work cannot be done by telephone or remotely.
(d) Workers and volunteers for businesses or operations (including both religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
(e) Workers who perform critical labor union functions, including those who administer health and welfare funds and those who monitor the well-being and safety of union members who are critical infrastructure workers, provided that any administration or monitoring should be done by telephone or remotely where possible.
(f) Workers at retail stores who sell groceries, medical supplies, and products necessary to maintain the safety, sanitation, and basic operation of residences or motor vehicles, including convenience stores, pet supply stores, auto supplies and repair stores, hardware and home maintenance stores, and home appliance retailers.
(g) Workers at laundromats, coin laundries, and dry cleaners.
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(h) Workers at hotels and motels, provided that the hotels or motels do not offer additional in-house amenities such as gyms, pools, spas, dining, entertainment facilities, meeting rooms, or like facilities.
(i) Workers at motor vehicle dealerships who are necessary to facilitate remote and electronic sales or leases, or to deliver motor vehicles to customers, provided that showrooms remain closed to in-person traffic.
10. For purposes of this order, workers who perform resumed activities are defined as follows:
(a) Workers who process or fulfill remote orders for goods for delivery or curbside pick-up.
(b) Workers who perform bicycle maintenance or repair.
(c) Workers for garden stores, nurseries, and lawn care, pest control, and landscaping operations, subject to the enhanced social-distancing rules described in section 11(h) of this order.
(d) Maintenance workers and groundskeepers who are necessary to maintain the safety and sanitation of places of outdoor recreation not otherwise closed under Executive Order 2020-43 or any order that may follow from it, provided that the places and their workers do not provide goods, equipment, supplies, or services to individuals, and subject to the enhanced social-distancing rules described in section 11(h) of this order.
(e) Workers for moving or storage operations, subject to the enhanced social- distancing rules described in section 11(h) of this order.
11. Businesses, operations, and government agencies that remain open for in-person work must adhere to sound social distancing practices and measures, which include but are not limited to:
(a) Developing a COVID-19 preparedness and response plan, consistent with recommendations in Guidance on Preparing Workplaces for COVID-19, developed by the Occupational Health and Safety Administration and available here. Such plan must be available at company headquarters or the worksite.
(b) Restricting the number of workers present on premises to no more than is strictly necessary to perform the in-person work permitted under this order.
(c) Promoting remote work to the fullest extent possible.
(d) Keeping workers and patrons who are on premises at least six feet from one another to the maximum extent possible.
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(e) Increasing standards of facility cleaning and disinfection to limit worker and patron exposure to COVID-19, as well as adopting protocols to clean and disinfect in the event of a positive COVID-19 case in the workplace.
(f) Adopting policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19.
(g) Any other social distancing practices and mitigation measures recommended by the CDC.
(h) For businesses and operations whose in-person work is permitted under sections 10(c) through 10(e) of this order, the following additional measures must also be taken:
(1) Barring gatherings of any size in which people cannot maintain six feet of distance from one another.
(2) Limiting in-person interaction with clients and patrons to the maximum extent possible, and barring any such interaction in which people cannot maintain six feet of distance from one another.
(3) Providing personal protective equipment such as gloves, goggles, face shields, and face masks as appropriate for the activity being performed.
(4) Adopting protocols to limit the sharing of tools and equipment to the maximum extent possible and to ensure frequent and thorough cleaning of tools, equipment, and frequently touched surfaces.
12. Any store that remains open for in-store sales under section 9(f) or section 10(c) of this order:
(a) Must establish lines to regulate entry in accordance with subsection (b) of this section, with markings for patrons to enable them to stand at least six feet apart from one another while waiting. Stores should also explore alternatives to lines, including by allowing customers to wait in their cars for a text message or phone call, to enable social distancing and to accommodate seniors and those with disabilities.
(b) Must adhere to the following restrictions:
(1) For stores of less than 50,000 square feet of customer floor space, must limit the number of people in the store (including employees) to 25% of the total occupancy limits established by the State Fire Marshal or a local fire marshal.
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(2) For stores of more than 50,000 square feet, must:
(A) Limit the number of customers in the store at one time (excluding employees) to 4 people per 1,000 square feet of customer floor space.
(B) Create at least two hours per week of dedicated shopping time for vulnerable populations, which for purposes of this order are people over 60, pregnant women, and those with chronic conditions like heart disease, diabetes, and lung disease.
(3) The director of the Department of Health and Human Services is authorized to issue an emergency order varying the capacity limits described in this subsection as necessary to protect the public health.
(c) May continue to sell goods other than necessary supplies if the sale of such goods is in the ordinary course of business.
(d) Must consider establishing curbside pick-up to reduce in-store traffic and mitigate outdoor lines.
13. No one shall rent a short-term vacation property except as necessary to assist in housing a health care professional aiding in the response to the COVID-19 pandemic or a volunteer who is aiding the same.
14. Michigan state parks remain open for day use, subject to any reductions in services and specific closures that, in the judgment of the director of the Department of Natural Resources, are necessary to minimize large gatherings and to prevent the spread of COVID-19.
15. Effective on April 26, 2020 at 11:59 pm:
(a) Any individual able to medically tolerate a face covering must wear a covering over his or her nose and mouth—such as a homemade mask, scarf, bandana, or handkerchief—when in any enclosed public space.
(b) All businesses and operations whose workers perform in-person work must, at a minimum, provide non-medical grade face coverings to their workers.
(c) Supplies of N95 masks and surgical masks should generally be reserved, for now, for health care professionals, first responders (e.g., police officers, fire fighters, paramedics), and other critical workers who interact with the public.
(d) The protections against discrimination in the Elliott-Larsen Civil Rights Act, 1976 PA 453, as amended, MCL 37.2101 et seq., and any other protections against discrimination in Michigan law, apply in full force to persons who wear a mask under this order.
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16. Nothing in this order should be taken to supersede another executive order or directive that is in effect, except to the extent this order imposes more stringent limitations on in-person work, activities, and interactions. Consistent with prior guidance, neither a place of religious worship nor its owner is subject to penalty under section 20 of this order for allowing religious worship at such place. No individual is subject to penalty under section 20 of this order for violating section 15(a) of this order.
17. Nothing in this order should be taken to interfere with or infringe on the powers of the legislative and judicial branches to perform their constitutional duties or exercise their authority.
18. This order takes effect immediately, unless otherwise specified in this order, and continues through May 15, 2020 at 11:59 pm. Executive Order 2020-42 is rescinded. All references to that order in other executive orders, agency rules, letters of understanding, or other legal authorities shall be taken to refer to this order.
19. I will evaluate the continuing need for this order prior to its expiration. In determining whether to maintain, intensify, or relax its restrictions, I will consider, among other things, (1) data on COVID-19 infections and the disease’s rate of spread; (2) whether sufficient medical personnel, hospital beds, and ventilators exist to meet anticipated medical need; (3) the availability of personal protective equipment for the health care workforce; (4) the state’s capacity to test for COVID- 19 cases and isolate infected people; and (5) economic conditions in the state.
20. Consistent with MCL 10.33 and MCL 30.405(3), a willful violation of this order is a misdemeanor.
Given under my hand and the Great Seal of the State of Michigan.
Date: April 24, 2020 ______GRETCHEN WHITMER Time: 11:00 am GOVERNOR
By the Governor:
______SECRETARY OF STATE
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Case 2:20-cv-11053-MAG-RSW ECF No. 27-12 filed 05/12/20 PageID.1458 Page 1 of 8 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT K
Case 2:20-cv-11053-MAG-RSW ECF No. 27-12 filed 05/12/20 PageID.1459 Page 2 of 8 Exhibit K – Comparison Chart Plaintiffs’ Request CDC Recommendation1 MDOC’s Action(s)2 1. Provide testing for Medical staff should MDOC tests all inmates who have all prisoners within evaluate symptomatic symptoms of COVID-19. Mass testing 14 days individuals to determine of the entire population at eight whether COVID-19 testing facilities has been completed. Mass is indicated. Pg. 22. testing at additional facilities will be conducted as more testing kites, lab resources and nursing become available. 2. Test all COs, prison Staff should be reminded to All staff is screened daily upon entry to staff within 14 days stay home if they are sick. the facility. Staff must answer a series A verbal screening and of questions, have their temperature temperature checks should taken, and show no COVID-19 be completed. If staff show symptoms. Staff with symptoms or symptoms of COVID, they with a fever over 100.4 are not should follow CDC- permitted to enter the facility. Like recommended steps for members of the community, staff are persons who are ill with responsible for their own COVID COVID-19 symptoms.3 Pg. testing. 12. However, a voluntary testing plan is being developed for staff. 3. Provide immediate The facility should have a MDOC uses an acuity chart4 to assess referral to hospital plan in place to safely the health conditions of inmates. The upon display of transfer persons with severe acuity chart indicates that a prisoner severe symptoms for illness from COVID-19 to a must be transported to a hospital in any inmate with a local hospital if they require specific circumstances. positive test care beyond what the facility can provide. Pg. 23. 4. Sanitize all Several times per day, clean Bleach is available for cleaning and commonly touched and disinfect surfaces and disinfecting in all common areas areas after every use objects that are frequently including at telephones, JPay touched, especially in machines, and dayrooms. common areas. Pg. 9.
1 Exhibit C of Defendants’ response brief 2 The sources for the information in this column are the Affidavits of MDOC Director Washington, Dr. McIntyre, ADD Bush, and Wardens Morrison, Braman, Nagy, and Chapman, exhibits D, F, P, L, M, N, and O, respectively and the attachments thereto. 3 https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/steps-when-sick.html 4 Attachment 3 to Dr. McIntyre’s Affidavit (Ex. F).
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Case 2:20-cv-11053-MAG-RSW ECF No. 27-12 filed 05/12/20 PageID.1460 Page 3 of 8 Exhibit K – Comparison Chart 5. Immediate stop all Restrict transfers of All transfers, unless necessary for inmate and CO incarcerated persons to and medical or intake purposes, were transfers except for from other jurisdictions and suspended on March 16, 2020. those related to facilities unless necessary for Authorized approval from the separating COVID-19 medical evaluation, medical Assistant Deputy Director or high inmates/Cos isolation, clinical care, authority is required for any and all extenuating security concerns, transfers. or to prevent overcrowding. Pg. 9. 6. Make disinfectant Provide incarcerated persons Soap and disinfectant products are supplies available at and staff no-cost access to available to prisoners at all times at all times, free of soap, running water, hand no costs. Paper towels and/or hand charge drying machines or disposable dryers are also available to paper towel, tissues, and no- prisoners. touch trash receptacles. Pg. 8, 10. 7. Provide instruction Ensure that all staff and MDOC staff and inmate porters that materials on proper incarcerated persons who will clean COVID areas complete use of PPE to prevent have contact with infectious bloodborne pathogen training that cross-contamination, materials in their work includes proper donning and doffing especially with gloves placements have been trained PPE instructions. Additionally, and masks. to correctly don, doff, and there are posters throughout the dispose of PPE relevant to the facilities that show proper hand level of contact they will have washing, PPE usage, and social with confirmed and suspected distancing. COVID-19 cases. Pg. 23. 8. Release lowest-level None Due to the Truth-in-Sentencing Act, security inmates to this request is illegal. However, home confinement MDOC has paroled 995 prisoners after quarantine for 14 through population-reduction days. measures in response to COVID-19.
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Case 2:20-cv-11053-MAG-RSW ECF No. 27-12 filed 05/12/20 PageID.1461 Page 4 of 8 Exhibit K – Comparison Chart 9. Provide and require Asymptomatic incarcerated All inmates are provided three use of PPE for all persons that are quarantined reusable fabric face masks that can inmates as a close contact of a known be laundered. The face masks are COVID-19 case should wear a replaced as needed. face mask as feasible based on Prisoners are provided additional local supply. PPE based on need. For example, Incarcerated persons who are an inmate porter cleaning a COVID- confirmed or suspected COVID area would also be provided an eye cases or are showing COVID protection, face mask, gloves, and symptoms should wear a face gown. Additionally, inmates mask. handling food or laundry are Incarcerated persons in a work provided a face mask, gloves, and a placement handling laundry or gown. used food service items should wear gloves and a gown. Incarcerated persons in a work placement that are cleaning areas where a COVID case has spent time should wear a mask, gloves, and gown. Pg. 25. 10. Enforce social Implement social distancing MDOC implements many CDC distancing of at least strategies to increase the strategies where feasible including six feet at all times physical space between enforcing social distancing in lines incarcerated persons (ideally 6 and waiting areas by marking lines feet between all individuals, on the ground; staggering yard regardless of the presence of times; restricting yard time to a symptoms). Strategies will single housing unit at a time; need to be tailored to the staggering meal times; marking off individual space in the facility seating in chow halls to increase and the needs of the space in between seats; providing population and staff. Not all meals inside housing units and cells strategies will be feasible in all where feasible; limiting the size of facilities. Pg. 11. (emphasis programs and classes; reassigning added) bunks; and arranging bunks so inmates sleep head-to-toe.
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Case 2:20-cv-11053-MAG-RSW ECF No. 27-12 filed 05/12/20 PageID.1462 Page 5 of 8 Exhibit K – Comparison Chart 11. Frequently Communicate clearly and CDC information cards are communicate to all frequently with incarcerated posted throughout MDOC incarcerated people persons about changes to their facilities. Additional safety and information about daily routine and how they can hygiene information is displayed COVID-19, measures contribute to risk reduction. Pg. on TV monitors throughout the taken to reduce the 12. facilities as well. risk of transmission, Provide clear information to MDOC also sends mass emails and any changes in incarcerated/detained persons (through JPAY) to prisoners to policies or practices about the presence of COVID-19 keep them informed of COVID-19 cases within the facility, and the updates. need to increase social distancing and maintain hygiene precautions. Pg. 22. 12. Ensure that each See response to #4 and #6 See response to #4 and #6 incarcerated person receives, free of charge, an individual supply of hand soap and paper towels sufficient to allow frequent hand washing and drying each day; an adequate supply of clean implements for cleaning such as sponges and brushes and disinfectant hand wipes or disinfectant products effective against the virus that causes COVID-19 for daily cleanings 13. Require that all Staff having direct contact with Staff are required to wear a face prison staff wear asymptomatic mask at all times. Other person protective incarcerated persons under required PPE depends on where equipment, including quarantine as close contacts of a they are working and what they CDC-recommended COVID-19 case (but not are doing. For instance, if a CO surgical masks, when performing temperature checks is working in a housing unit with interacting with any or providing medical care) no positive cases, he or she would person or when should wear a face mask, eye be required to wear a mask and touching surfaces in protection, and gloves as local only wear gloves when making cells or common areas supply and scope of duties allow. physical contact with an inmate Staff handling laundry or used (transport, pat down). A CO that food service items should wear has direct contact with a COVID- gloves and a gown. positive inmate or PUI would be
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Case 2:20-cv-11053-MAG-RSW ECF No. 27-12 filed 05/12/20 PageID.1463 Page 6 of 8 Exhibit K – Comparison Chart Staff that are cleaning areas required to wear a face mask, where a COVID case has spent gloves, and eye protection, and a time should wear a mask, gown. gloves, and gown. Staff performing temperature checks on any group of people or providing medical care to asymptomatic quarantined persons should were a face mask, eye protection, gloves, and a gown. Staff having direct contact with a confirmed or suspected COVID-19 case should wear a N95 respirator, eye protection, gloves, and a gown. Pg. 25. 14. Require that all Consider relaxing restrictions on Staff are required to follow CDC prison staff wash their allowing alcohol-based hand guidelines for personal hygiene. sanitizer in the secure setting hands, apply hand Alcohol-based hand sanitizer is where security concerns allow. sanitizer containing at readily available throughout the If soap and water are not least 60% alcohol, or facilities for staff use. They also change their gloves available, CDC recommends follow procedure to ensure there both before and after cleaning hands with an alcohol- is no cross contamination interacting with any based hand sanitizer that through gloves. person or touching contains at least 60% alcohol. surfaces in cells or Consider allowing staff to carry common areas individual sized bottles for their personal hand hygiene while on duty. Pg. 8 Reinforce healthy hygiene practices. Pg. 10.
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Case 2:20-cv-11053-MAG-RSW ECF No. 27-12 filed 05/12/20 PageID.1464 Page 7 of 8 Exhibit K – Comparison Chart 15. Take each Temperature checks are It is not feasible to take the incarcerated person's recommended for temperature of all 36,000+ inmates temperature daily incarcerated individuals every day. (with a functioning who enter correctional The temperature of COVID-positive and properly operated facilities, are transferred to inmates is taken twice a day. and sanitized another facility, or are thermometer) to released from custody. Pg. Close Contacts are separated and identify potential new 9, 10, 14, 26. monitored. COVID-19 infections Quarantined individuals Inmates that are symptomatic but do should have their not notify staff of symptoms are temperature checked twice a identified through monitoring of JPay day. Pg. 21. emails and phone calls. Implement daily The temperature of inmate food temperature checks in service workers is taken at the housing units where beginning of every shift. COVID-19 cases have been The temperature of an inmate that identified, especially if there transfers into a facility or is released is concern that from a facility is also taken. incarcerated/detained individuals are not notifying staff of symptoms. Pg. 22. 16. Assess (through Verbal screening is See response to #15. These identified questioning) each recommended for individuals are also verbally screened. incarcerated person incarcerated individuals daily to identify who enter correctional potential COVID-19 facilities, are transferred to infections another facility, or are released from custody. Pg. 9, 10, 14, 26. 17. Conduct immediate As soon as an individual MDOC immediately isolates and tests testing for anyone develops symptoms of any inmate that shows symptoms of displaying known COVID-19, they should COVID-19. symptoms of COVID- wear a face mask (if it does 19 and quarantine not restrict breathing) and pending results should be immediately The inmate’s Close Contacts are also placed under medical separated, monitored, and largely isolation in a separate tested. environment from other individuals. Pg. 15, 21 Medical staff should evaluate symptomatic individuals to determine whether COVID-19 testing is indicated. Pg. 22.
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Case 2:20-cv-11053-MAG-RSW ECF No. 27-12 filed 05/12/20 PageID.1465 Page 8 of 8 Exhibit K – Comparison Chart 18. Ensure that Incarcerated individuals All inmates are given three reusable inmates identified as with COVID-19 symptoms fabric masks that can be laundered. having COVID-19 or should wear a face mask Confirmed COVID-positive inmates, having been exposed and should be placed under persons under investigation (PUIs), to COVID-19 receive medical isolation and Close Contacts, are isolated from adequate medical care immediately. Pg. 21 the general population. and are properly quarantined in a non- None regarding isolation Personal property is removed in order punitive setting, with amenities. to better contain the virus. continued access to Isolated inmates have access to mail, showers, recreation, telephones, JPay, yard, medical mental health health services (including mental services, reading health), and showers. materials, phone and video visitation with loved ones, communications with counsel, and personal property 19. Respond to all None Emergent Medical conditions are emergency (as defined addressed as soon as staff are aware by the medical of the emergency. Please refer to community) requests Policy Directives 03.04.100 and for medical attention 03.04.125.5 within an hour 20. Provide sufficient See response to #4 and #6 See response to #4 and #6 disinfecting supplies, free of charge, so inmates can clean high-touch areas or items (including, but not limited to, phones and headphones) between each use 21. Waive all medical Where relevant, consider The MDOC has already waived all co-pays for those suspending co-pays for medical co-pays for those with COVID experiencing COVID- incarcerated/detained symptoms. 19-related symptoms persons seeking medical evaluation for respiratory symptoms. Pg. 9.
5 Available publicly at https://www.michigan.gov/corrections/0,4551,7-119-1441_44369-- -,00.html.
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Case 2:20-cv-11053-MAG-RSW ECF No. 27-13 filed 05/12/20 PageID.1466 Page 1 of 31 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT L
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
ELLIOTT ABRAMS, CRAIG SEEGMILLER, VINCENT GLASS, ROBERT REEVES, and LAMONT HEARD, individually, and on No. 2:20-cv-11053 behalf of all others similarly situated, HON. MARK A. GOLDSMITH
Plaintiffs, MAG. R. STEVEN WHALEN V AFFIDAVIT OF BRYAN WILLIS CHAPMAN, NOAH MORRISON NAGY, MELINDA BRAMAN, BRYAN MORRISON, and HEIDI WASHINGTON,
Defendants.
Daniel Manville (P39731) Kevin J. O’Dowd (P39383) Attorney for Plaintiffs Kristin M. Heyse (P64353) Civil Rights Clinic, Scott A. Mertens (P60069) MSU College of Law Sara E. Trudgeon (P P82155) P.O. Box 1570 Cori E. Barkman (P61470) East Lansing, MI 48823 Allan J. Soros (P43702) (517) 432-6866 Assistants Attorney General [email protected] Attorneys for MDOC Defendants MDOC Division P. O. Box 30217 Lansing, MI 48909 (517) 335-3055 [email protected]
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Attachment A
Affidavit of Bryan Morrison
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Attachment B
Affidavit of Bryan Morrison
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Case 2:20-cv-11053-MAG-RSW ECF No. 27-14 filed 05/12/20 PageID.1497 Page 1 of 27 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
EXHIBIT M
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Attachment 1
Affidavit of Melinda Braman
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SMT - Chow Hall Lines Case 2:20-cv-11053-MAG-RSW ECF No. 27-14 filed 05/12/20 PageID.1517 Page 21 of 27
SMT - So ial is an in - Cones Case 2:20-cv-11053-MAG-RSW ECF No. 27-14 filed 05/12/20 PageID.1518 Page 22 of 27
SMT - Me Line Case 2:20-cv-11053-MAG-RSW ECF No. 27-14 filed 05/12/20 PageID.1519 Page 23 of 27
SMT - es a a Sha Case 2:20-cv-11053-MAG-RSW ECF No. 27-14 filed 05/12/20 PageID.1520 Page 24 of 27
SMT - es a iel So all en e Case 2:20-cv-11053-MAG-RSW ECF No. 27-14 filed 05/12/20 PageID.1521 Page 25 of 27 Abrams, et al. v. Chapman USDC-ED No. 2:20-cv-11053 Honorable Mark A. Goldsmith Magistrate Judge R. Steven Whalen
Attachment 2
Affidavit of Melinda Braman
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SMT - Con e e Case 2:20-cv-11053-MAG-RSW ECF No. 27-14 filed 05/12/20 PageID.1523 Page 27 of 27
SMT - sola ion ea