By Matthew Santoni

Law360 (April 9, 2020, 4:08 PM EDT) -- The Allegheny County Jail in Pittsburgh isn't giving inmates enough space to reduce the risk of spreading the coronavirus, despite making room by releasing hundreds of prisoners, according to a proposed class action lawsuit filed in Pennsylvania federal court.

The suit, filed Wednesday by three medically vulnerable prisoners on behalf of inmates who remain incarcerated at the facility, accuses Allegheny County and Warden Orlando Harper of undoing the positive effects of releasing hundreds of low-risk, nonviolent prisoners by closing now-empty areas of the jail rather than using the extra space to spread inmates out, eliminate double-occupancy cells and keep fewer inmates in common areas.

"Defendants-respondents' actions in confronting the COVID-19 threat have been worse than deliberately indifferent. Defendants-respondents have misused the opportunity provided by Allegheny County courts in reducing its population," the complaint said. "Rather than take advantage of the additional space to operationalize the recommended social distancing, defendants-respondents have consolidated incarcerated persons, thereby intentionally increasing risk of likely contagion and the severe resulting health consequences."

The suit is seeking a court order for the immediate release of the remaining inmates who are allegedly most at risk for complications if they contract the highly contagious coronavirus, including those older than 55 and those with health issues. It is also asking for an order that the jail comply with Centers for Disease Control and Prevention recommendations on social distancing.

The prisoners argue they are subjected to unconstitutional punishment and confinement conditions that violate their 14th Amendment rights, and said the jail's alleged treatment of inmates with medical conditions violates the Americans with Disabilities Act.

Allegheny County had been working with its district attorney's office, public defender's office and courts to identify and release inmates to reduce the population at the jail since mid-March, when confirmed diagnoses of COVID-19 began to climb in the county. When prisoner-rights groups petitioned the Supreme Court of Pennsylvania for the widespread release of inmates from facilities across the state, they cited Allegheny County as a jurisdiction to follow.

While the lawsuit said it could include up to 1,700 inmates in the proposed class, the county released statistics that said there were approximately 1,560 inmates still at the jail as of March 31.

One Allegheny County Jail employee tested positive for the virus March 27, and county officials announced their first case of an inmate testing positive the same day the lawsuit was filed.

County Executive Rich Fitzgerald said in a briefing Wednesday that approximately 900 inmates had been released from the jail since the effort to reduce its population began, and those efforts have continued.

But the prisoners' lawsuit says that instead of using the vacated cells to give inmates more space, the jail closed now-empty sections — known as "pods" — and continues to house two prisoners to a cell, also known as double celling.

"The actions of defendants-respondents are undermining one of the primary purposes of the county courts' release efforts, namely, to open up space inside the jail to enable safe social distancing ... At this time, the majority of occupied cells at ACJ currently house two people, even though empty cells remain available, both on currently open pods as well as on the pods ACJ recently closed," the complaint said. "The cells at ACJ are not big enough to allow cellmates to stay six feet apart. The beds are bunk-style, and the remainder of the cell contains a desk, toilet, and a sink."

The suit says the tables where inmates eat are likewise not big enough to allow the recommended six feet between people, and recreation areas are not big enough to allow safe spacing when staff send out 40 to 50 inmates at a time.

Other commonly used parts of the jail, such as its showers and phones, are not being disinfected between uses, even as the phones are being used more often due to the restriction on visits from outsiders, the suit said.

Although some detainees were issued masks at the beginning of April, no one has been required to wear them and inmates were not instructed on their proper use. Staff did not tell inmates to practice social distancing or enforce it until April 1, the suit said.

"As of April 1, reports emerged that some staff finally began to order incarcerated people to maintain a six-foot distance from each other or staff," the complaint said. "On April 1, defendant Harper came onto pod 4F and personally ordered everybody to stand six-feet apart or else they would all be locked down. He was questioned about double celling and group recreation and meals but only responded by saying he will not discuss 'technicalities.'"

Nor were the inmates being provided with extra soap to comply with the CDC's recommendations for increased hygiene to combat the spread of the virus, the suit said.

The prisoners said an outbreak at the jail would be exacerbated by a lack of medical staff, including vacancies for its health services administrator, its director of nursing, two assistant directors and numerous nursing staff.

"As of February 26, 2020, the jail had 48 health care vacancies out of an expected health care staff of approximately 136 full and part-time positions," the complaint said. "Given the near insurmountable burden that COVID-19 has placed on healthcare systems across the world, there is a near-certain risk that ACJ's under-resourced healthcare staff will be overwhelmed by COVID-19."

Allegheny County declined to respond specifically to the lawsuit, but County Executive Fitzgerald praised the measures taken to limit visits and outside contact in Wednesday's briefing.

"The warden is following all the guidelines of both the [county] health department, the CDC and the state department of health," Fitzgerald said.

An attorney for the prisoners was skeptical.

"Given the current population at ACJ, its physical infrastructure, and the recent troubling closure of an entire floor of the jail, it is difficult to imagine how ACJ is possibly implementing the most crucial guideline from the CDC that people maintain a distance of six square feet from others," said Alexandra Morgan-Kurtz of the Pennsylvania Institutional Law Project. "The reports we have from ACJ are also clear that the jail's efforts regarding sanitation, hygiene, and isolation of potential cases are far from adequate."

The prisoners are represented by Alexandra Morgan-Kurtz of the Pennsylvania Institutional Law Project, Bret D. Grote, Quinn Cozzens, Jaclyn Kurin, Jules Lobel and Swain Uber of the Abolitionist Law Center, Sara J. Rose, Witold J. Walczak and David C. Fathi of the American Civil Liberties Union and Sozi Pedro Tulante, Will W. Sachse, Cory A. Ward, Ryan M. Moore and Rachel Rosenberg of Dechert LLP.

Allegheny County and Warden Harper are represented by John A. Bacharach, Andrew F. Szefi and Dennis R. Biondo Jr. of the Allegheny County Law Department.

The case is Graham et al. v. Allegheny County et al., case number 2:20-cv-00496, in the U.S. District Court for the Western District of Pennsylvania.

--Editing by Jack Karp.

Update: This article has been updated with additional information about the number of inmates at the jail.

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