Case: 2:20-cv-02471-EAS-KAJ Doc #: 1 Filed: 05/15/20 Page: 1 of 24 PAGEID #: 1

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

ASHUNTE SMITH, )
KAIQUIN WANG, )
CHRISTOPHER MARTIN, and )
TRAVIS WILLIAMS ) CASE NO.
Individually, and on behalf of a class of )
Other similarly situated individuals, ) COMPLAINT
)
Plaintiffs, )
) Civil Rights Action
v. ) 42 U.S.C. § 1983
)
MIKE DEWINE and ) Class Action
ANNETTE CHAMBERS-SMITH )
)
Defendants. )
)

Plaintiffs, Ashunte Smith, Kaiquin Wang, Christopher Martin, and Travis Williams,

individually and on behalf of a class of similarly situated individuals, by their undersigned

attorneys, file this Complaint for declaratory and injunctive relief against the Defendants,

Governor of the State of Ohio Mike DeWine and Ohio Department of Rehabilitation and

Correction Director Annette Chambers-Smith, and allege as follows:

INTRODUCTION

1. Without immediate action by Governor DeWine and the Ohio Department of

Rehabilitation and Correction (hereinafter “ODRC”) to drastically reduce Ohio’s prison

population, COVID-19 will continue to ravage Ohio’s twenty-eight prisons. The fallout

from those infections will reach not only into the community surrounding the prisons but

also into the small and large hospitals in surrounding counties, which will attend to the ill

flooding through their doors in shackles.

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2. As of March 2020, 48,765 individuals were incarcerated in Ohio. Ohio’s prisons utilize

close living quarters, primarily relying on either cells or dorm-style units. The nature of

those units, in conjunction with work, worship, education, and food-service times

guarantee non-compliance with social distancing guidelines as set forth by Ohio’s

Department of Health (hereinafter “ODH”) as well as the United States Centers for Disease

Control (hereinafter “CDC”) and the World Health Organization (hereinafter “WHO”).

The setting is comparable to that seen in nursing homes, cruise ships, and U.S. Navy

warships, all of which have seen devastating outbreaks.

3. As of March 2020, ODRC employed 12,192 staff members, who may have unknowingly

transported the virus into the prisons while asymptomatic. Those staff members were

denied the opportunity to wear appropriate face masks until April 2020, at which time they

were provided with one mask offering limited protection. The nature of prisons poses a

significant risk of transfer between staff and prisoners as well as between staff and their

communities.

4. The devastating COVID-19 attack within Ohio’s prisons has resulted in exponentially

increasing numbers of positive cases and a climbing death toll for both staff and prisoners.

As of May 12, 2020, ODRC has reported that of 7536 tests given, 4439 have been positive.

That is 59% of the tests given.1

5. The majority of correctional institutions have not been subject to wide-spread testing for

COVID-19.

6. Marion Correctional Institution, which has received wide-spread testing, reported 177

members of the correctional staff tested positive and one member of the correctional staff

1
ODRC - COVID-19 Inmate Testing – Updated 5/12/2020.

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died as a result.2 At least 2,147 prisoners in the custody of Marion Correctional Institution

have tested positive for COVID-19.3 As of May 12, 2020, 13 prisoners have died.4

7. On April 8, 2020, Marion Correctional Institution reported having 2,518 prisoners in

quarantine.5 Of that figure, at least 2,147 have tested positive, meaning at least 85% of the

population has been or continues to be COVID-19 positive.

8. Pickaway Correctional Institution, which has also received wide-spread testing, reported

108 members of the correctional staff had tested positive and one member of the

correctional staff had died as a result.6 At least 1,656 prisoners in the custody of Pickaway

Correctional Institution have tested positive for COVID-19.7 As of May 12, 2020, 30

prisoners have died.8

9. On April 8, 2020, Pickaway Correctional reported having 2,013 prisoners in quarantine.9

Of that figure, at least 1,656 have tested positive, meaning at least 82% of the population

has been or continues to be COVID-19 positive.

10. As of May 12, 2020, 49 prisoners have died as a result of COVID-19 while in the custody

of ODRC.10 That figure includes 13 from Marion Correctional Institution, 30 from

2
ODRC - COVID-19 Inmate Testing – Updated 5/12/2020.
3
ODRC - COVID-19 Inmate Testing – Updated 5/12/2020.
4
ODRC - COVID-19 Inmate Testing – Updated 5/12/2020.
5
ODRC - COVID-19 Inmate Testing – Updated 4/8/2020.
6
ODRC - COVID-19 Inmate Testing – Updated 5/12/2020.
7
ODRC - COVID-19 Inmate Testing – Updated 5/12/2020.
8
ODRC - COVID-19 Inmate Testing – Updated 5/12/2020.
9
ODRC - COVID-19 Inmate Testing – Updated 4/8/2020.
10
ODRC - COVID-19 Inmate Testing – Updated 5/12/2020.

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Pickaway Correctional Institution, 1 from the Correctional Reception Center, 4 from

Franklin Medical Center, and 1 from London Correctional Institution.

11. The number of COVID-19 positive inmates increases daily, but without wide-spread

testing it is impossible to determine the full extent to which COVID-19 has infiltrated the

remaining correctional institutions. Given the percentages at which Marion Correctional

Institution and Pickaway Correctional Institution have tested positive, it is reasonable to

conclude that the majority of prisoners in the custody of ODRC have been, are currently,

or will be COVID-19 positive.

12. The consequences of COVID-19’s raid into the prison system could have been largely

avoided had Governor DeWine and ODRC acted with the same urgency and scope of

restriction used for the state-at-large. Instead, thousands of prisoners have been left to

languish in fear of the coming viral onslaught.

13. ODRC’s manufacturing program, called “Ohio Penal Industries,” has 30 shops in

operation, with 1,506 prisoners working in prison shops. Those workers were not subject

to Ohio’s Stay at Home Order and, as such, continued to work without face masks, social

distancing, or appropriate disinfectant.

14. Thousands of elderly, disabled, and medically vulnerable prisoners could be released to

safely quarantine in their homes. Many of these prisoners are approaching release dates or

are eligible for parole. The reduction of the general population through the release of

prisoners, whether medically vulnerable or not, increases the safety of the remaining

prisoners, staff, and surrounding communities. Those individuals who remain in the

prisons with decreased general populations will be better able to distance and access

adequate sanitation. The surrounding communities and medical facilities benefit if

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prisoners are released to their homes, through the reduced opportunity for uncontrolled

clusters in the prison communities.

15. To effectively reduce the continued spread of COVID-19 through the prisons, the state

must take immediate steps to release or furlough individuals, who may still be subject to

supervision and/or home detention with electronic monitoring.

16. Class members who are elderly and medically vulnerable, as well as those with pathways

to release, must be immediately released. The remaining individuals must be provided

with meaningful sanitation and protective measures including, but not limited to, hand

sanitizer, bleach, soap, gloves, and disposal masks. The state failed to take meaningful

action prior to COVID-19’s silent creep into the prisons, but it is not too late to save lives

and diminish the further spread. Without intervention from this Court, the State will

continue to act without urgency, which will result in the needless deaths of prisoners, staff,

and members of the community-at-large.

JURISDICTION AND VENUE

17. This Court has jurisdiction over the subject matter in this Complaint pursuant to 42 U.S.C.

§ 1983.

18. This Court has original jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 over Plaintiff’s

cause of action arising out of the Constitution of the United States and 42 U.S.C. § 1983

and pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.

19. Venue lies in the United States District Court for the Southern District of Ohio pursuant to

§1391 and §1392, because the events or omissions giving rise to Plaintiffs’ claims stem

from acts and practices across the State of Ohio. Plaintiffs reside in Allen, Marion, and

Richland Counties. ODRC is headquartered in Franklin County, Ohio.

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PARTIES

20. Plaintiff, Ashunte Smith (A330043), at all times herein was a citizen of the United States

and an ODRC prisoner in Marion Correctional Institution located in Marion County, Ohio.

Mr. Smith is one of at least 2,147 prisoners who has contracted COVID-19 while

incarcerated at Marion Correctional Institution. Mr. Smith was fifteen years old at the time

he was arrested and has been in the custody of ODRC since 1996, when he was age

seventeen. Mr. Smith is eligible for parole but was denied release at his first hearing.

21. Plaintiff, Kaiqin Wang (A766639), at all times herein was a citizen of the United States

and an ODRC prisoner in Allen Correctional Institution located in Allen County, Ohio.

Mr. Wang, a first-time offender, is serving an eighteen-month sentence on a non-violent

drug offense and has been in the custody of ODRC since October 3, 2019. Mr. Wang is

eligible for judicial release, but the Wood County Court of Common Pleas has denied his

motion. Mr. Wang has diabetes, for which he takes insulin daily.

22. Plaintiff, Christopher Martin (A770038), at all times herein was a citizen of the United

States and an ODRC prisoner in Richland Correctional Institution located in Richland

County, Ohio. Mr. Martin is serving a fourteen-month sentence and has been in the custody

of ODRC since October 25, 2019 as a result of a fourth-degree felony conviction for

domestic violence in the Erie County Court of Common Pleas. During his incarceration,

Mr. Martin has received support from at least one supervising corrections officer, who

described Mr. Martin’s conduct as that of a leader who has taken responsibility for his

actions and is working to better himself and those around him.

23. Plaintiff, Travis Williams (A428428), at all times herein was a citizen of the United States

and an ODRC prisoner in Marion Correctional Institution located in Marion County, Ohio.

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Mr. Williams, like 2,147 other inmates in Marion Correctional Institution has tested

positive for COVID-19. Mr. Williams suffers from numerous health issues including

asthma and chronic pneumonia. His chronic pneumonia has repeatedly resulted in

hospitalization. Mr. Williams requires medication which was not provided as required. He

has been in the custody of ODRC since 2002.

24. Defendant, Mike DeWine, at all relevant times, has been and continues to be the Governor

of the State of Ohio and, as such, is the ultimate executive authority over ODRC. Article

III, Section 5 of the Ohio Constitution vests the “supreme executive power of the state” in

the Governor.

25. Defendant, Annette Chambers-Smith, at all relevant times, has been and continues to be

the Director of the Ohio Department of Rehabilitation and Correction. She is vested with

authority over the ODRC pursuant to Ohio Revised Code § 5120.01, which states that

prisoners committed to ODRC are under her legal custody.

FACTS

26. COVID-19 is a new virus that is spread through person-to-person contact with spread more

likely when people are within six feet of each other.11 The State has stated: “[t]he virus is

spread between individuals who are in close contact with each other (within about six feet)

through respiratory droplets produced when an infected person coughs or sneezes,” and

that “[i]t may be possible that individuals can get COVID-19 by touching a surface or

object that has the virus on it and then touching their own mouth, nose or eyes.”12 Dr. Amy

Acton, Director of the State of Ohio’s Department of Health, has issued orders

11
CDC – Frequently Asked Questions: Coronavirus Disease 2019 (COVID-19) available at
https://www.cdc.gov/coronavirus/2019-ncov/faq.html#Coronavirus-Disease-2019-Basics
12
Ohio Exec. Order, No. 2020-01D (March 9, 2020).

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demonstrating the State’s knowledge that COVID-19 “can easily spread from person to

person.”13

27. The WHO declared the COVID-19 outbreak to be a pandemic. The State of Ohio, through

Governor Mike DeWine’s Executive Order, also declared a state of emergency “for the

entire State” in order “to protect the well-being of the citizens of the [sic] Ohio from the

dangerous effects of COVID-19.” In that declaration, the State of Ohio makes clear that it

is on notice that COVID-19 is a respiratory disease that can result in serious illness or

death.14 The State of Ohio has further acknowledged that COVID-19 constitutes the

presence of “a potentially dangerous condition which may affect the health, safety and

welfare of citizens of Ohio.”15

28. “[P]eople are most contagious [with COVID-19] when they are most symptomatic (the

sickest), however, some spread might be possible before people show symptoms.” (Ohio

Department of Health, Director’s Order to Close Facilities Providing Child Care Services

(March 24, 2020).) The State also acknowledges that “community spread” of COVID-19—

meaning “transmission of an illness for which the source is unknown, means that isolation

of known areas of infection is no longer enough to control spread”—has occurred in the

U.S.16

29. The Ohio Department of Health stated that “a large number of people in the general

population, including the elderly and people with weakened immune systems and chronic

13
(Ohio Department of Health, Director’s Order to Close Facilities Providing Child Care Services (March 24,
2020).
14
Ohio Exec. Order, No. 2020-01D (March 9, 2020).
15
Ohio Exec. Order, No. 2020-02D (March 13, 2020).
16
Ohio Department of Health, Director’s Order to Close Facilities Providing Child Care Services (March 24, 2020).

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medical conditions,” face a “significant risk of substantial harm” due to “high probability

of widespread exposure to COVID-19.”17

30. The State indicated that gatherings of large numbers of people “increase[]s the risk of

transmission of COVID-19.18 The State has cited the “significant risk of substantial harm”

due to “high probability of widespread exposure to COVID-19” as the reason for closure

of all schools, polling stations, childcare facilities, and adult day care facilities and senior

centers.19

31. “Social Distancing Requirements includes maintaining at least six-foot social distancing

from other individuals, washing hands with soap and water for at least twenty seconds as

frequently as possible or using hand sanitizer, covering coughs or sneezes (into the sleeve

or elbow, not hands), regularly cleaning high-touch surfaces, and not shaking hands,” and

required measures include, inter alia:

a. “Designate six-foot distances. Designating with signage, tape, or by other means

six-foot spacing …”

b. “Having hand sanitizer and sanitizing products readily available…”

c. “Separate operating hours for vulnerable populations,” for “elderly and vulnerable”
people.

d. Organizations must “separate employees who appear to have acute respiratory

illness symptoms from other employees and send them home immediately

17
Ohio Department of Health, Director’s Order to Close Facilities Providing Child Care Services (March 24, 2020).
18
Ohio Department of Health, Director’s Order In Re: Closure of the Polling Locations in the State of Ohio (March
16, 2020).
19
Ohio Department of Health, Director’s Order In Re: Order the Closure of All K-12 Schools in the State of Ohio
(March 14, 2020); Ohio Department of Health, Director’s Order In Re: Closure of the Polling Locations in the State
of Ohio (March 16, 2020); Ohio Department of Health, Director’s Order to Close Facilities Providing Child Care
Services (March 24, 2020); Ohio Department of Health, Director’s Order Re: Amended Director’s Order to Close
Facilities Providing Older Adult Day Care Services and Senior Centers (March 24, 2020).

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32. Up to one in four people who contract COVID-19 remain asymptomatic, and contagion

begins up to 48 hours before symptoms appear.20 Transmission does not require coughing,

and COVID-19 can be spread through merely breathing in the same area.21 It is impossible

to determine whether asymptomatic prisoners have COVID-19 and pose a risk to other

prisoners unless or until they show symptoms of the virus.

33. ODRC does not have the capacity to provide constitutionally adequate medical care for all

prisoners who may contract COVID-19. Overwhelmingly, Ohio prisons do not have

adequate in-house health care facilities or medical staff to screen prisoners. The medical

units of most ODRC prison facilities do not have ventilators or other medical equipment

necessary to treat the number of people likely to contract COVID-19 that will require

treatment. In the case of an outbreak, Ohio prisons do not have the means to transport high

volumes of prisoners for off-site care.

34. ODRC only has two specialized medical facilities: the Franklin Medical Center and the

Frazier Health Center at Pickaway Correctional Institution.22 These two facilities do not

have enough ICU beds, ventilators, or other space and equipment necessary to service the

entire population of ODRC. Both locations are already facing substantial outbreaks.

35. In addition to equipment deficiencies, ODRC’s staffing levels are unable to maintain safety

standards as staff continues to contract COVID-19. ODRC staff in at least two prisons to-

20
S. Whitehead, “CDC Director On Models For The Months To Come: 'This Virus Is Going To Be With Us',” NPR
(April 2, 2020), available at https://www.npr.org/sections/health-shots/2020/03/31/824155179/cdc-director-on-
models-for-the-months-to-come-this-virus-is-going-to-be-with-us.

21
E. Cohen, “Experts tell White House coronavirus can spread through talking or even just breathing,” CNN (April
2, 2020), available at https://www.cnn.com/2020/04/02/health/aerosol-coronavirus-spread-white-house-
letter/index.html.
22
Ohio Department of Rehabilitation and Correction, “Office of Correctional Health Care,” available at
https://drc.ohio.gov/medical.

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date, Marion Correctional and Pickaway Correctional, have been compromised so

significantly that the Ohio National Guard has been sent to staff the prisons.23

36. Carceral settings are ideal for the spread of COVID-19. Prisons are places that are

particularly susceptible to contagions, and incarceration poses a grave public health threat

during this crisis. It is well-known in the epidemiological community that such facilities

are “associated with high transmission probabilities for infectious diseases.”24

37. When outbreaks occur in custodial facilities, those illnesses lead directly to increased

spread beyond those institutions.25 As stated by Chris Breyer, MD, MPH, Professor of

Epidemiology at Johns Hopkins Bloomberg School of Public Health, “[i]t is therefore an

urgent priority in this time of national public health emergency to reduce the number of

persons in detention as quickly as possible.”26

38. When outbreaks occur, prisoners inside prison walls have nowhere to shelter.27

23
10TV WBNS – State: Ohio National Guard members to help in 2 nd prison: https://www.10tv.com/article/state-
ohio-national-guard-members-help-2nd-prison-2020-apr
24
Declaration of Chris Breyer, MD, MPH, Professor of Epidemiology, Johns Hopkins Bloomberg School of Public
Health, filed in United States v. Toro, E.D. CA Case No. 19-cr-256, Dkt.145 (filed March 23, 3030) at ¶ 11; see also
J. A. Bick, “Infection Control in Jails and Prisons,” Clinical Infectious Diseases 45(8):1047-1055 (2007), available
at https://doi.org/10.1086/521910; L. M. Maruschak, et al., “Medical Problems of State and Federal Prisoners and
Jail Inmates, 2011-12,” U.S. Dept. of Justice, Bureau of Justice Statistics, NCJ 248491 (2015), available at
https://www.bjs.gov/content/pub/
pdf/mpsfpji1112.pdf.
25
See Beyrer Dec. ¶ 12.
26
Beyrer Dec. at ¶ 17 (emphasis added).
27
A. Sweeney and M. Crepeau, “Alarm grows as Cook County, state struggle with what to do with the incarcerated
in the face of COVID-19,” Chicago Tribune (March 31, 2020), available at
https://www.chicagotribune.com/coronavirus/ct-inmate-release-coronavirus-concerns-20200331-
ehtae5q2rfcihitehdx2wwruiu-story.html; K. Kindy, E. Brown, D. Bennett, “‘Disaster waiting to happen’: Thousands
of Inmates Released as Jails And Prisons Face Coronavirus Threat,” Washington Post (March 25, 2020), available at
https://www.washingtonpost.com/national/disaster-waiting-to-happen-thousands-of-inmates-released-as-jails-face-
coronavirus-threat/2020/03/24/761c2d84-6b8c-11ea-b313-df458622c2cc_story.html.

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39. As noted by Director Chambers-Smith on April 30, 2020, once COVID-19 has entered an

institution, there is virtually no way to stop its progression.28

40. As of May 12, 2020, COVID-19 has entered all but four of Ohio’s correctional

institutions.29 Of those four, however, two have prisoners with pending results from

COVID-19 testing.

41. Outbreaks within the dense prison populations will quickly exhaust the resources of the

rural communities in which the majority of Ohio’s prisons are located. Cuyahoga County,

Franklin County, and Hamilton County have the highest quality of health care

facilities and the highest treatment capabilities in the state. Together, these three

counties have nearly 1500 ICU beds.

42. Cuyahoga displaces 11,167 county residents to rural prisons to serve their sentences;

Franklin County displaces 4,706 county residents into rural prisons to serve their

sentences; and Hamilton County displaces 5,235 county residents to rural prisons to

serve their sentences.30 Ross County, Richland County, Pickaway County, Marion

County, and Madison County each house well over 4,000 out-of-county prisoners.31

Hospitals in these counties are woefully underprepared to handle institutional

outbreaks. Richland county has only 37 ICU beds; Marion County has only 15 ICU

28
Governor Mike DeWine – 4-30-2020 – COVID-19 Update: https://ohiochannel.org/video/governor-mike-dewine-
4-30-2020-covid-19-update
29
ODRC - COVID-19 Inmate Testing – Updated 5/12/2020.
30
P. Wagner, R. Heyer, “Importing Constituents: Prisoners and Political Clout in Ohio,” Prison Policy Initiative
(2004), https://www.prisonersofthecensus.org/ohio/importing.html.
31
Id.

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beds; Madison County has only 13 ICU beds; Ross County has only 12 ICU beds; and

Pickaway County has only 8 ICU beds.32

43. Ohio still lacks the ability to institute broad testing among the incarcerated and civilian

populations.

44. ODRC implemented testing of all prisoners in three of the prisons: Marion Correctional,

Pickaway Correction, and Franklin Medical Center. The results of those tests demonstrate

a dangerous trend that is hurdling out of control within Ohio’s prisons. As of May 12,

2020, 4,439 of the 7,536 of the tested prisoners have received positive test results.33 Only

approximately 15% of the prisoners in the custody of ODRC have been tested. Despite the

lack of wide-spread testing, at least 9% of the prisoners in the custody of ODRC have tested

positive for COVID-19. These numbers are staggering in light of the fact that meaningful

testing is only occurring at three prisons. The actual number of infected individuals is

unquestionably higher.

45. According to the CDC, WHO, and ODH, individuals at greatest risk include those over 65

years of age and/or those who have one or more of the following serious medical

conditions34:

a. People with chronic lung disease, including COPD or moderate to severe asthma;

b. People who have serious heart conditions;

c. People who are immunocompromised, including those receiving cancer treatments;

32
F. Schulte, E. Lucas, J. Rau, L. Szabo, J. Hancock, “Millions of Older Americans Live in Counties with No ICU
Beds as Pandemic Intensifies,” Kaiser Health News (March 20, 2020), available at https://khn.org/news/as-
coronavirus-spreads-widely-millions-of-older-americans-live-in-counties-with-no-icu-beds/.
33
ODRC - COVID-19 Inmate Testing – Updated 5/12/2020.
34
Center for Disease Control and Prevention, “People Who Are at the Highest Risk for Severe Illness,” CDC.gov
(April 15, 2020), available at https://www.cdc.gov/coronavirus/
2019-ncov/need-extra-precautions/people-at-higher-risk.html.

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d. People of any age with severe obesity (body mass index [BMI] >40) or certain
underlying medical conditions, particularly if not well controlled, such as those
with diabetes, renal failure, or liver disease;

e. People who are pregnant;

f. People with chronic kidney disease;

g. People with chronic liver disease; and,

h. People with diabetes.

46. The CDC has reported an increased rate of COVID-19 mortality in persons with underlying

chronic conditions such as heart disease and diabetes, that may be underreported as they

are not being directly recognized as COVID-19-related.35

47. More than 9,000 of Ohio’s prisoners are over the age of 50.36

48. According to ODRC’s 2019 Annual Report, thousands of prisoners have relevant

diagnosed medical conditions. Of those prisoners, thousands have chronic respiratory or

lung disease, creating an especially acute risk for COVID-19, including:

a. 2,704 prisoners diagnosed with chronic medical issues categorized as “Asthma”;

b. 1,068 prisoners diagnosed with chronic medical issues categorized as “COPD”;

c. 23 prisoners diagnosed with chronic medical issues categorized as “ID-TB

Disease”;

d. 276 prisoners diagnosed with chronic medical issues categorized as “ID-Latent TB

Infection”; and,

35
Preliminary Estimate of Excess Mortality During the COVID-19 Outbreak – New York City, March 11 – May 2,
2020: https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e5.htm.
36
Ohio Department of Rehabilitation and Correction 2019 Annual Report, available at
https://drc.ohio.gov/Portals/0/Annual%20report%20final%20ODRC.pdf.

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e. 140 prisoners diagnosed with chronic medical issues categorized as “ID-Latent TB

Surveillance.”37

49. According to ODRC’s 2019 Annual Report, 9,036 prisoners have diagnosed heart

conditions categorized as “Cardiac/HTN.”38

50. According to ODRC’s 2019 Annual Report, nearly 1,000 prisoners are

immunocompromised, creating an especially acute risk for COVID-19, including:

a. 396 prisoners diagnosed with chronic medical issues categorized as “ID-HIV”;

b. 148 prisoners diagnosed with chronic medical issues categorized as “Cancer

Active”; and

c. 428 prisoners diagnosed with chronic medical issues categorized as “Cancer

Remission.”39

51. According to ODRC’s 2019 Annual Report, thousands have underlying medical

conditions, particularly if not well-controlled or treated—as is likely the case due to the

quality of prison medical care—create an especially acute risk for COVID-19, including:

a. 31 prisoners who are pregnant;

b. 6,339 prisoners diagnosed with chronic medical issues categorized as “Liver”;

c. 2,862 prisoners diagnosed with chronic medical issues categorized as “Diabetes”;

d. 5,574 prisoners diagnosed with chronic medical issues categorized as “Lipid”;

e. 4,076 prisoners diagnosed with chronic medical issues categorized as “Gen Med”;

37
Id.
38
Id.
39
Id.

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f. 1,122 prisoners diagnosed with chronic medical issues categorized as “Seizure”;

and,

g. 275 prisoners diagnosed with chronic medical issues categorized as “Chronic

Pain.”40

52. Medicaid Pre-Release Enrollment Program demonstrates thousands of prisoners with high-

risk chronic medical issues: in 2017 and 2018, 3,373 prisoners participated in the program

while demonstrating “Critical risk indicators”—which include “HIV, HEPC, Pregnancy,

MAT, Recovery Service Level 3, Chronic Medical Condition, Serious Mental Illness.”41

53. Significant percentages of Ohio’s prison population are especially vulnerable to serious

complications from COVID-19.

54. Ohio’s prisons, already over-populated, are especially susceptible to community spread.

55. The skyrocketing infection rate within Ohio’s prisons demonstrates that the State’s current

policies are not functional, but, rather, are subjecting tens of thousands of Ohioans to

infection, serious medical complications, and the statistically significant possibility of

death.

56. In March 2020, ODRC suspended visitation including that for attorneys. To date, that

visitation remains suspended.

57. The ability to engage in attorney-client communication confidentially is handled on an

institution-by-institution basis, with some institutions having no means by which attorneys

can communicate with their clients confidentially.

40
Id.
41
Id.

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58. There is no projected end to the COVID-19 pandemic. It is anticipated that multiple

infection spikes will happen across the country, but at this time there is no end in sight

without medical intervention by way of antiviral medications and vaccines, or through herd

immunity if it is determined that immunity to COVID-19 can be achieved after infection.42

59. There is no timeline for the mass implementation of vaccinations in response to COVID-

19. Currently, there is no vaccine nor is there any specific medication that can be used to

prevent or treat COVID-19.43

60. Currently, scientists do not know whether surviving a COVID-19 infection will provide

immunity against future infections.44

61. As COVID-19 rages, ODRC will continue to take prisoners from all of Ohio’s 88 counties.

62. Although ODRC has temporarily suspended the transport of prisoners between facilities,

this policy cannot remain permanent as the ongoing need to house prisoners of various

categories remains ongoing.

CLASS ACTION ALLEGATIONS

63. Plaintiffs bring this action pursuant to Rules 23(b)(1), 23(b)(2), and, in the alternative,

23(c)(4) of the Federal Rules of Civil Procedure on behalf of themselves and a class of

similarly situated individuals.

42
Yale School of Medicine – COVID-19 is Here. Now How Long Will it Last? https://medicine.yale.edu/news-
article/23446/ and Scientific American – How the COVID-19 Pandemic Could End:
https://www.scientificamerican.com/article/how-the-covid-19-pandemic-could-end1/.
43
WHO – Coronavirus disease (COVID-19) advice for the public: Myth busters:
https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public/myth-busters.
44
CDC – Clinical Questions about COVID-19: Questions and Answers: https://www.cdc.gov/coronavirus/2019-
ncov/hcp/faq.html.

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64. The class that Plaintiffs seek to represent is defined as all prisoners currently or who will

in the future be in the custody of ODRC and housed in an ODRC prison during the COVID-

19 pandemic, the duration of which is yet unknown.

65. Plaintiff’s request for release from physical custody includes:

a. Prisoners serving a sentence for one or more convictions of a felony of the fifth
degree or fourth degree;

b. Prisoners serving a sentence for one or more convictions of a felony of the third
degree if either of the following apply:

i. The prisoner is serving a sentence on their first felony conviction; or,

ii. The prisoner has served a minimum of half of their stated sentence;

c. Prisoners serving a sentence for one or more convictions of a felony of the first
degree, a felony of the second degree, or a mandatory prison term for an offense of
violence if both of the following apply:

i. The prisoner is fifty-five (55) years old or older; and,

ii. The prisoner has served the greater of:

1. ten (10) years; or,

2. two-thirds of their sentence;

d. Prisoners serving a sentence for aggravated murder, murder, or rape if all of the
following apply:

i. The prisoner is categorized at a security level not higher than Level Two;

ii. The prisoner is fifty-five (55) years old or older; and,

iii. The prisoner has served the greater of:

1. The minimum term of their indefinite sentence; or,

2. A term of at least twenty-five years of incarceration;

e. Prisoners serving a sentence for any classified felony who have been determined a
level one security level for a period of five or more years if all the following apply:

i. The prisoner is serving a non-mandatory term;

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ii. The prisoner is forty-six (46) years old or older; and,

iii. The prisoner has served the greater of eight (8) years or half of his or her
sentence;

f. Prisoners serving a sentence for any non-violent drug offense who either have no
mandatory sentence or who have served the mandatory portion of their imposed
term;

g. Prisoners with a documented medical diagnosis which render them uniquely

vulnerable to COVID-19 if:

i. The prisoner presents a certificate from a physician that the prisoner’s

condition or diagnosis renders the prisoner vulnerable to COVID-19; or,

ii. The prisoner has a documented diagnosis of any of the following:

1. chronic lung disease or moderate to severe asthma;

2. Serious heart condition;
3. Diabetes;
4. Severe obesity;
5. Renal failure or liver disease;
6. Long-running Hepatitis C;
7. Any diagnosis stating that the prisoner is immunocompromised,
including but not limited to diagnoses of HIV or AIDS or cancer
treatment.

66. A class action is the only practical means by which the individual named Plaintiffs and the

class members can challenge the Defendants’ unconstitutional actions. Many members of

the class are without the means to retain an attorney to represent them in a civil rights

lawsuit.

67. The class is so numerous that joinder of all members is impractical. Ohio’s prisoner

population exceeds 48,000 individuals. The number of prisoners currently diagnosed with

relevant medical conditions is not available, but according to the ODRC’s 2019 Annual

Report more than 15,000 prisoners were diagnosed with relevant medical conditions.

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FIRST CAUSE OF ACTION

UNLAWFUL VIOLATION OF THE EIGHTH AMENDMENT

68. Plaintiffs restate the allegations contained in paragraphs 1-67 as if fully restated herein and

are Class Members being held post-trial.

69. The Eighth Amendment to the United States Constitution, as incorporated against the

States pursuant to the Fourteenth Amendment to the United States Constitution, guarantees

that prisoners may not be subjected to cruel and unusual punishment by state actors. Here,

the state actors are required to provide adequate protection, prevention, and healthcare to

the medically vulnerable Plaintiffs, but have been deliberately indifferent to the serious

risk COVID-19 poses.

70. ODRC facilities lack the ability to adequately prevent COVID-19 and its spread and are

unable to appropriately care for and ensure the safety of Plaintiff Class Members.

71. Defendants’ actions and inactions have resulted in the exponential increase in COVID-19

infections within ODRC as they have failed to test, treat, and prevent COVID-19 outbreaks,

resulting in a violation of Plaintiff’s constitutional rights to treatment and adequate medical

care.

72. Defendants’ refusal to reduce prisoner population through immediate release have directly

contributed to the unchecked spread throughout the prisons as release would increase the

safety not only of the released prisoners but also of those remaining prisoners, staff, and

communities.

73. By operating the ODRC facilities without the capacity to treat, test, or prevent a COVID-

19 outbreak, Defendants, as participants and policy makers, have violated the rights of

Plaintiff Class Members guaranteed by the Eighth Amendment to the United States

Constitution.

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SECOND CAUSE OF ACTION

UNLAWFUL VIOLATION OF
ARTICLE I, SECTION 9 OF THE OHIO CONSTITUTION

74. Plaintiffs restate the allegations contained in paragraphs 1-73 as if fully restated herein.

75. Article I, Section 9 of the Ohio Constitution protects all persons from cruel and unusual

punishments.

76. Defendants’ failure to implement preventative measures for COVID-19, including testing,

adequate sanitation, and the distribution of protective equipment to staff and prisoners

allowed for the exponential spread of COVID-19 within the prisons. The prisons lack

appropriate medical care, testing, and treatments for those infected. Defendants’ continued

confinement of Plaintiff Class Members constitutes a violation of Article I, Section 9 of

the Ohio Constitution.

THIRD CAUSE OF ACTION

UNLAWFUL VIOLATION OF THE SIXTH AMENDMENT

77. Plaintiffs restate the allegations contained in paragraphs 1-76 as if fully restated herein.

78. The Sixth Amendment to the United States Constitution, as incorporated against the States

pursuant to the Fourteenth Amendment to the United States Constitution, guarantees the

right to the assistance of counsel for defense. Here, the state actors have foreclosed

counsel’s ability to confidentially communicate with prisoners.

79. ODRC does not have a plan for attorney-client communications that applies to each and

every prison. Rather, individual prisons determine what communications methods will be

employed.

80. In at least one prison, Richland Correctional Institution, legal mail sent by counsel to

prisoners has been intercepted.

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81. Multiple prisons have no unrecorded or unsupervised video or telephonic communication

methods.

82. Visitation, a means by which attorneys were previously able to confidentially communicate

with prisoner-clients, has been indefinitely suspended since March 2020.

83. Defendants’ failure to institute a policy enabling the continuation of confidential attorney-

client communications has violated the rights of Plaintiff Class Members guaranteed by

the Sixth Amendment to the United States Constitution.

REQUEST FOR RELIEF

84. Defendants’ actions and inactions have violated Plaintiff Class Members’ constitutionally

guaranteed rights as outlined above and, as such, Plaintiffs are entitled a judgment against

Defendants.

85. Plaintiff Class Members are entitled to injunctive relief ordering Defendants to provide

adequate COVID-19 prevention, testing, and care including:

a. Provisions for adequate spacing of at least six feet between ODRC prisoners so that

compliance with physical distancing guidelines may be achieved to prevent the

continued spread of COVID-19;

b. Creation and institution of a safety plan to prevent additional COVID-19 outbreaks

at institutions now or in the future;

c. Allow reasonable access to disinfecting products for the purpose of cleaning and

disinfecting cells, common areas, dormitories, eating areas, worship areas, and

individual items;

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d. The immediate release of Plaintiff Class Members in order to preserve their safety

and the safety of the remaining prisoners through population reduction so that

adequate social distancing, quarantining, and treating may be accomplished;

e. The accelerated scheduling of parole hearings and re-hearings to review and re-

review prisoners who have served their minimum terms of incarceration and are

otherwise eligible for release;

f. If necessary, the implementation of a three-judge panel to reduce the prison

population for the aforementioned reasons;

g. Test all Plaintiffs and correctional staff in all Ohio correctional institutions for

COVID-19;

h. Waive all grievances during the COVID-19 pandemic;

i. Ensure adequate supplies of medications, including those currently subject to

shortage, for the treatment of COVID-19 and the treatment of other underlying or

routine medical conditions;

j. Provide medications upon request to inmates in need of those medications, which

may be used more frequently during a COVID-19 infection;

k. Provide disposable protective face masks for all prisoners and corrections staff to

prevent the spread of COVID-19 in the prisons;

l. Enjoin Defendants and their agents from retaliating against prisoners for reporting

symptoms, or seeking redress administratively or from this Court;

m. Provide quarantine of persons who have come into contact with persons known to

have COVID-19 or who are displaying symptoms of COVID-19 with medical

checks without additional disciplinary characteristics of segregation;

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n. Ensure COVID-19 positive correctional staff does not return to work without proof

of COVID-19 negative status;

o. Any and all other remedies this Court see as necessary and just to address the

constitutional violations set forth above in order to prevent long-term consequences

and loss of life.

CONCLUSION

WHEREFORE, Plaintiffs pray for judgment against Defendants as follows:

I. For injunctive relief;

II. For reasonable attorneys’ fees and costs pursuant to 42 U.S.C. §§ 1988; and

III. Such other relief as the court deems just and proper

Respectfully submitted,

By: /s/ Joseph C. Patituce______

Joseph C. Patituce (0081384)
Megan M. Patituce (0081064)
Kimberly Kendall Corral (0089866)
Patituce & Associates, LLC.
16855 Foltz Industrial Parkway
Strongsville, Ohio 44149
(440) 471-7784 (office)
(440) 398-0536 (fax)
[email protected]

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