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Judge issues preliminary injunction in ACLU lawsuit against El Paso County Sheriff's Office

Lawsuit claims a failure to provide COVID-19 protections to inmates
ACLU files lawsuit claiming EPC Sheriff failed at providing COVID-19 protections to inmates
Posted at 9:42 AM, Dec 14, 2020
and last updated 2021-01-05 11:02:05-05

EL PASO COUNTY — A lawsuit was filed on Sunday, Dec. 13 against El Paso County Sheriff Bill Elder, claiming inmates were denied masks until early November, and the Criminal Justice Center failed with several public health precautions.

Monday, Jan. 4, the ACLU announced that a judge has issued a preliminary injunction in the case. You can read that document, click here.

The sheriff's office is ordered for the next 90 days to:

  • Require all staff, contractors and inmates to wear masks
  • COVID-19 testing is to continue for all inmates
  • The medical staff must screen and identify individuals at high-risk for COVID-19
  • Provide access to clean drinking water, including water fountains
  • Check and track inmate temperatures; make not of those in excess of 99.4 degrees
  • Isolate COVID-19 positive inmates
  • Follow protocol in treating COVID patients
  • Provide access to recreational facilities as possible, with COVID-19 protocols in place
  • Allow for the practicing of social distancing
  • Provide weekly updates to attorneys about COVID-19 statistics in facilities

The American Civil Liberties Union (ACLU) of Colorado, three private attorneys, and six plaintiffs currently in the El Paso County Jail filed the class action lawsuit in federal court. According to court documents, jail staff have said "we're just going to let this virus run it's course."

Lawyers said five out of the six plaintiffs are considered medically vulnerable. In court documents, one of the plaintiffs alleges they were cellmates with inmates who have tested positive for the virus and fear they will contract it. They also claim there are places where no inmates wear masks, and they were once told by a deputy that "there are not enough masks for everyone to have a second mask."

Another plaintiff, who is pregnant, asserted she was not tested for COVID-19 upon entry at the jail near the end of September. She states she is concerned about how close inmates sleep, and that people who test positive are not kept away from those without the virus. She says she tested positive in mid-November.

Also in court documents, a different plaintiff, who is borderline diabetic and has high blood pressure, said he only received a cloth face mask after the National Guard came to test the inmates at the beginning of November. He claims he washes his own mask because he does not believe deputies are cleaning them. "Up until late October, early November, the sheriff was not providing everybody in the jail with masks," said one of the lawyers on the case, David Maxted.

In the motion for a temporary restraining order, preliminary injunction, and expedited hearing, attorneys write the El Paso County Criminal Justice Center was not giving masks to all the inmates, not requiring masks to be worn throughout the facility, and was "prohibiting inmates from wearing masks in their housing wards."

"People were getting masks to go to court and back, but as soon as they got back, they had to give it up... People were trying to make masks out of underwear, clothing, pull a sheet over, and they were not allowed to do that," said Maxted.

The papers also state the jail failed to carry out proper CDC guidelines. Those include "failing to separate those positive or suspected positive for COVID-19 from those who are negative; failing to quarantine new intakes; failing to identify and protect the medically vulnerable; failing to ensure that all inmates and staff wear masks; and failing to adequately evaluate, monitor, and treat those suffering from COVID-19."

The lawsuit is asking for the court to order a system-wide process within the jail. The full list of requests are as follows:

a. Inmates and staff must be required to wear masks at all times. To allow inmates to wear masks at all times, each inmate must be issued at least two cloth masks, such that when one mask is being washed daily, another mask can be worn. Alternatively, inmates may be issued disposable masks which are replaced at the frequency recommended by the mask manufacturer.

b. COVID-19 positive and suspected COVID-19 positive inmates must be isolated from other inmates, with cohorting used sparingly for COVID-19 positive inmates, and no cohorting used for suspected COVID-19 positive inmates.

c. Newly admitted inmates must be screened to determine if they are medically vulnerable, and all inmates arriving at the jail should be tested for COVID-19 upon arrival if possible.

d. The jail should engage in regular prevalence testing to screen for COVID-19 outbreaks at the jail.

e. Newly admitted inmates who do not test negative for COVID-19 upon arrival at the jail must be quarantined in a transition unit for at least 14 days prior to being moved to a general population unit in the jail.

f. During the quarantine period for newly admitted inmates, the medically vulnerable newly admitted inmates must be placed in single cells to the maximum extent feasible to prevent exposure from other inmates of the transition unit.

g. After leaving the transitional unit, medically vulnerable inmates should be housed and kept separate from other inmates to the maximum extent feasible, so that they do not come into contact with COVID-19 positive inmates.

h. Routine cleaning practices for all hard-metal and other non-porous surfaces must be strictly followed, including for toilets, sinks, showers, tables, telephones, and other areas of the jail. Inmates must be afforded access to cleaning supplies to wipe the surfaces down with cleaners or disinfecting wipes sufficient to eliminate the virus.

i. Inmates must be afforded adequate supplies of soap for basic hygiene and hand-washing multiple times per day.

j. Each COVID-19 positive inmate must be evaluated by medical personnel. Symptomatic inmates must have individual treatment plans consistent with medical best practices. Each COVID-positive inmate must be examined daily, with vital signs taken, to determine if their condition is worsening, and if changes are required for the inmate’s treatment plan.

k. Symptomatic inmates must be afforded treatment consistent with medical best practices, including access to pain relievers and other needed medication without undue delay.

l. All inmates must be afforded ongoing access to clean drinking water from a fountain or other water faucet that does not require the inmate to drink from sinks used for handwashing. Likewise, inmates require access to both hot and cold water so that they can have proper nutrition by using hot water for food preparation such as for soup packets.

m. All inmates must be provided accurate, up-to-date educational materials and information regarding controlling the spread of COVID-19.

Maxted hopes to get in front of a judge quickly, calling this an emergency. "There's no question that the jail has failed to comply with basic CDC guidance... These are things that can be done pretty quickly once the jail is forced to act... It's really just been haphazard mismanagement of this facility that led to this skyrocketing outbreak in the jail," said Maxted.

Maxted pointed out that the case is about more than COVID-19 precautionary measures. "It's also making sure that folks are evaluated if they're symptomatic. They're getting appropriate treatment, just like they would if they're in the community," said Maxted.

News5 interviewed Adam Alexander, an inmate at the El Paso County Jail, on November 20. He was booked into the jail on September 1, but said he has seen little change since the outbreaks. Alexander also claimed he has tested positive for the virus while in the jail. "My goal is not to just bash the jail because I'm an inmate, my goal is to hopefully find an improvement. And, I've never ran a mass facility, so I'm not aware of what the best changes are that can be made, but there's ones, especially preventive measures, that could have been taken," said Alexander.

Alexander also said he first received a cloth mask around the beginning of November, and believes they would have made a difference if distributed earlier. "If we we're being transported to court, or anywhere that was in the hallways and not in the ward in jail, we had a mask for then. But then as soon as we entered the ward, they took that mask and threw it away and said that it would be contraband if we kept that mask. However, all the deputies had masks," said Alexander.

When asked what Alexander thought would help, he suggested hand sanitizer. "Monitored hand sanitizer I think would make a huge difference... I'm sure it's not cheap, but at the cost of public health, because not everyone stays in jail. These are people that are going home to their families eventually, they're going to court, the officers are going home to their families out in public," said Alexander.

We reached out to the El Paso County Sheriff's Office about the lawsuit, which told us "we do not comment on pending litigation." They referred us to their website, where their COVID-19 outbreak information is detailed. It says that starting in late October, when COVID-19 case counts began to grow, they instituted a rigorous testing schedule for both staff and inmates.

Since the start of the pandemic and as of Monday, there have been 1,073 inmates with confirmed COVID-19 cases, and 165 staff members. The Sheriff's Office says they have done everything possible to reduce their inmate population, besides compromise public safety.

When it comes to jail operations, the Sheriff's Office website listed these changes, as of November 5:

  • "Quarantine processes for inmates will remain in place and will be reassessed depending on what the community infection rate does as a result of the cessation of the Stay at Home and Safer at Home orders"
  • "Heightened levels of sanitization and germicide spraying of all workspaces, detention wards and transport vehicles continues"
  • "Intensive inmate screening, PPE usage, and limited movement throughout the facility remains in place"
We have Standard Operating Procedures regarding disease prevention and response in the El Paso County Jail. We have coordinated with all law enforcement agencies in the area to keep them informed on our inmate admittance screening process. This screening process consists of answering a series of questions, as well as a temperature check prior to admittance. If jail medical staff identifies a person with symptoms or exposure to an infectious disease such as COVID-19, they may request the arresting agency safely transport the individual to the appropriate medical facility or we may quarantine the person within the jail.

The decision of who gets moved to isolation or which areas are deemed quarantined would be a coordinated effort between our medical provider, WellPath, and our Inmate Classification Unit. For clarification purposes, "quarantine" separates and restricts the movement of people who were exposed to a contagious disease to see if they become sick. "Isolation" separates sick people with a contagious disease from people who are not sick (more restrictive than quarantine). As it pertains to this facility, most inmates who are being observed for COVID-19 symptoms or exposure are in quarantine. We only medically isolate those who are positive, questionable, or presumed positive.

When there is an identified COVID case, Public Health will review the movements of the inmate and make a determination based on the reported information and the protocols that had been followed. They will determine if there is a significant exposure risk to staff and/or inmates. Our medical provider, WellPath, is working diligently around the clock following public health guidance in an attempt to pinpoint potential illnesses before they occur. The practices are thorough, yet non-invasive, and have already proven to be extremely accurate.

Although we have had to change the way inmates are served their meals and what is served, a dietician has reviewed and approved the menu which meets the standard caloric intake, as well as nutritional requirements of the Food and Drug Administration.

We have begun to conduct follow-up testing with those that have been identified as COVID positive. We expect these numbers to start going down within the week.

This current COVID situation remains the top priority of Sheriff Elder and the Staff at the El Paso County Sheriff’s Office. We are working diligently in collaboration with Public Health, other County leadership, and the Colorado Department of Public Health Environment.
El Paso County Sheriff's Office

News5 also asked if Sheriff Elder would be interested in arranging an interview in the future, but that was also declined because of the lawsuit.

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