COVID-19 Litigation Update and Strategies

What Happened in In re Von Staich?

In re Von Staich (2020) 56 Cal.App.5th 53 found prison officials deliberately indifferent to the health and safety of prisoners at San Quentin State Prison during the COVID-19 pandemic. The deliberate indifference finding was grounded in CDCR’s refusal to implement the necessary 50 percent population reduction set forth in the June 15, 2020, UCSF/Berkeley Public Health “Urgent Memo.” (Von Staich, 56 Cal.App.5th at 80.) The Court of Appeal ordered officials to remedy the constitutional violation by designing a plan to reduce the population of the prison to 50 percent of its June 2020 population, through either additional releases from custody or transfers to other institutions. On December 23, 2020, the California Supreme Court (S265173) granted review, and returned the matter to the Court of Appeal, with instructions to consider whether to order an evidentiary hearing before judgment is pronounced. The matter is pending in the First Appellate District, Div. 2, Case No. A160122. Here is a link to the docket in that case. Panel attorneys should discuss new or ongoing COVID-19 litigation matters with their consulting attorney.

Is FDAP Providing a Sample Superior Court Petition?

We do not currently have a form or template for a superior court COVID-19 petition because the situation throughout CDCR and within individual institutions is changing on a day-by-day basis.  Additionally, as noted earlier, any petition will need to be formulated in light of (1) the conditions at that specific institution, and (2) the client’s age, specific medical conditions, or other considerations relevant to the client’s vulnerability and suitability for release or transfer. As noted throughout this alert, be sure to discuss the matter with the FDAP consulting attorney before commencing work on a petition.

How Do I Stay Informed?

Monitor the CDCR’s Population COVID-19 Tracking tool for the presence and severity of cases in state prisons. Counsel will want to pay attention to youth committed to the Division of Juvenile Justice.   According to the Center on Juvenile and Criminal Justice (CJCJ), 109 youth have tested positive at DJJ, including nearly 40 new cases in just the last few weeks. All told, about 15% of youth at DJJ are known to have contracted COVID-19.  Here is a CJCJ factsheet from November on COVID-19 on conditions at DJJ.  Contact Policy Analyst Maureen Washburn at CJCJ for the most recent information about COVID-19 at DJJ.

As for the Von Staich case, the California Supreme Court, on its own motion, has extended time for ordering review to February 17, 2021.  On November 16, the Attorney General filed a petition for review, which, as of this date, is still pending (S265173).  Here is a link to the docket, so you can stay on top of any developments.