Whether the Eighth Amendment prohibits state prison officials from exposing inmates to heightened risks of serious communicable diseases during a pandemic without taking reasonable preventive measures

No question identified. : 2. This case concerns the State of Oregon’s efforts to combat and respond to the COVID-19 pandemic across 14 different prison facilities over the first 2 4 years of the pandemic. The petition will present novel, substantial questions of law about the scope of rights under the Eighth Amendment in the context of a global pandemic and the concomitant need for case law to clearly establish those rights for purposes of qualified immunity. Respondents represent a class of more than 5,000 adults in custody (“AICs”) who tested positive for COVID-19 in a state prison between March 8, 2020, and May 31, 2022. They contend that their contraction of COVID-19, standing alone, is a constitutional injury that constitutes cruel and unusual punishment in violation of the Eighth Amendment. Under 42 U.S.C. § 1983, they seek damages from seven leaders of the Oregon Department of Corrections. Broadly, they contend that petitioners could have done more throughout the pandemic to limit the spread of the virus across the state prison system, from releasing AICs en masse to installing and upgrading prison HVAC systems with MERV-13 filtration. The district court denied petitioners’ motion for summary judgment on the basis of qualified immunity, ruling that caselaw put petitioners on notice that they had to respond reasonably to the pandemic and, therefore, a jury should adjudge whether the state’s overall pandemic response—statewide over 2 2 years—was reasonable. The Ninth Circuit affirmed the denial of qualified immunity in an unpublished opinion. Exhibit A, at 1-7. First, the court held that respondents had alleged a violation of the Eighth Amendment under the requisite objective and subjective prongs. Exhibit A, at 7. Objectively, the court reasoned that failing to protect respondents “from heightened exposure to COVID-19” over the course of the pandemic would constitute an objectively, sufficiently serious deprivation. Exhibit A, at 2, 5 (emphasis added). Subjectively, the court held that deliberate indifference was the state of mind required and, further, that respondents’ allegations amounted to deliberate indifference, where respondents challenged the effectiveness of statewide policies on masking, mixing, testing symptomatic AICs, testing asymptomatic AICs, quarantining, and social distancing. Exhibit A, at 6. The court thus concluded that a jury would have to resolve the dispute of fact over the overall reasonableness of the state’s pandemic response. Exhibit A, at 6—7. Second, the panel held that the requisite contours of respondents’ asserted right were clearly established at the time of the conduct at issue to put petitioners on notice that the amalgam of the challenged conduct—from masking to social distancing—would violate the Constitution. Exhibit A, at 6. The panel reasoned, “ee in toto, that “‘‘all reasonable prison officials would have been on notice in 2020 that they could be held liable for exposing inmates to a serious disease, including a serious communicable disease,’ like COVID-19.” Op. 6—7 (quoting Hampton v. California, 83 F.4th 754, 770 (9th Cir. 2023)). The full Ninth Circuit then denied rehearing en banc. Exhibit B. 3. Petitioners request an extension of time because competing deadlines in other time-sensitive matters have prevented counsel from having sufficient time to prepare a petition for certiorari. Undersigned counsel has been handling appeals in this matter personally since March 2022 and also serves as the Attorney-inCharge of Civil and Administrative Appeals for the Oregon Department of Justice, managing and overseeing the civil docket for the Department’s roughly 40-lawyer Appellate Division. In addition, undersigned counsel recently argued in the Oregon Supreme Court in Arnold v. Kotek, No. 8071885 (Or.), which concerns the facial constitutionality of a significant, voter-enacted, firearm-safety initiative. Moreover, undersigned counsel has been providing substantial strategic and brie