Court: CT prison official not protected from claims in COVID case

A federal appeals court has ruled that a former Connecticut prison official is not protected from facing accusations in civil court that she improperly allowed incarcerated people to be exposed to the coronavirus.

The decision was issued Tuesday to reject qualified immunity for former Osborn Correctional Institution Deputy Warden Nicole Thibeault and therefore affirm an earlier ruling by the United States District Court for the District of Connecticut. Qualified immunity protects officials from liability unless they violate a constitutional right.

The ruling sets the stage for people who were incarcerated at the brunt of the pandemic to take their civil cases to trial, a noteworthy circumstance given the lingering concerns about how the state handled the care of prisoners at the time.

Christopher Nazario, who was incarcerated at Osborn in March and April 2020, filed the lawsuit against Thibeault in 2021, claiming that the former deputy warden violated his Eighth Amendment rights, which prohibit cruel and unusual punishment.

In court filings, Nazario, who worked as a laundry worker while incarcerated at Osborn, says that he and his coworkers were transferred from a cell block with windows and solid metal doors to one with no windows and bar doors that were open to a hallway.

Nazario and his fellow laundry workers claim that they expressed concerns to Thibeault about COVID-19-positive and symptomatic people housed in the cell block they were being transferred to.

But Thibeault warned that if they did not move to the designated cell block, referred to as the E-Block, “they would lose their jobs, receive a negative work evaluation, get a ticket for refusing housing, and lose their single cells,” according to court documents.

“As soon as they arrived at the top tier of E-Block, Plaintiff and five other laundry workers report that they heard and saw other inmates coughing and sneezing on the bottom tier of the unit and in the cells ‘all around’ the laundry workers,” the documents state.

The laundry workers also reported “dust, dirt, and trash in the cells, the toilets smelled of urine and feces and the sinks smelled of sewage, and, in one of their cells, there was vomit on the walls near the toilet and the bars were caked with dried food and liquid.”

They claim in the lawsuit that while working they were denied personal protective equipment, such as Tyvek suits, shields, N95 masks and boots.

Nazario contracted COVID-19, the lawsuit states. He was transferred to the now-closed Northern Correctional Institution, the facility that the Department of Correction designated for the medical isolation of sick people, and later to a University of Connecticut medical facility.

After experiencing the “after effects” of the coronavirus, including damage to his heart and circulatory system, Nazario suffered a heart attack at Northern. Following a trip to the ICU at Hartford Hospital, “Plaintiff’s heart stopped twice, and hospital staff revived him both times,” according to court documents. “Due to his heart attack, Plaintiff had a pacemaker permanently implanted in his chest.”

Thibeault, who is being represented by Connecticut Attorney General William Tong’s office, filed a motion for summary judgment, which, if granted, would have prompted the court to decide the case based on the statements and evidence provided without going to trial.

Tong’s office sought the motion and qualified immunity on grounds that Nazario couldn’t present sufficient evidence demonstrating that the former deputy warden was aware of “any risk of harm to Plaintiff by changing his housing assignment, that Plaintiff was deprived of PPE, and that Defendant was personally involved in any constitutional violations.”

U.S. District Judge Vanessa L. Bryant denied the motion and request for qualified immunity, which was upheld in Tuesday’s ruling by the U.S. Court of Appeals for the Second Circuit.

“This order does not foreclose Thibeault from raising timely legal challenges regarding the sufficiency of the evidence or qualified immunity at a later stage before the district court or on appeal from a final judgment,” the ruling says. “In sum, we determine only that Thibeault is not entitled to qualified immunity at this time. We have considered Thibeault’s remaining arguments and find them to be without merit.”

In response to an interview request on Wednesday, Elizabeth Benton, director of communications for the Office of the Attorney General, said, “We are reviewing the decision and evaluating next steps.”

Nazario’s lawyer, Alexander T. Taubes, previously unsuccessfully sought to consolidate the case of Nazario — currently incarcerated at Cheshire Correctional Institution — with others who were incarcerated at Osborn and making similar claims against prison leadership.

Following Tuesday’s decision, the New Haven-based civil rights attorney said he plans to renew the request to combine the cases, potentially as a class action lawsuit.

“Institutional responsibility for violations of human rights — it’s a relatively new concept. It’s a fragile one,” Taubes said in an interview with The Connecticut Mirror on Wednesday, adding that he believes Attorney General Tong’s “extremely broad reading” of qualified immunity threatens to ensure that prisons aren’t held accountable.

“But this ruling sets forth precedent that the prisons cannot simply turn their backs and ignore threats — invisible, deadly threats within the confines of the big house,” Taubes said. “And we’re proud to continue this fight on their behalf.”

Sidney Wade, one of the people formerly incarcerated at Osborn who filed a complaint about the prison’s conditions during the pandemic, told the CT Mirror that he sees the federal appeals court ruling as just a start.

“The world needs to see how people get treated in these prison systems, even the guys that work for the prison and keep things afloat,” he said.

The pandemic presented a bevy of concerns and frustrations from lawmakers, advocates and loved ones of incarcerated people, many of whom felt like the state wasn’t doing enough to protect those behind bars from sickness.

As COVID-19 raged through the state’s correctional facilities, Gov. Ned Lamont’s administration faced swift criticism for its early refusal to release people nearing the end of their sentences, as states across the country had started doing to combat the spread of the virus.

The ACLU of Connecticut filed a lawsuit at the time to force Lamont and then-DOC Commissioner Rollin Cook to reduce the number of people confined in prisons and jails.

Despite objections from incarcerated people that the consensus wasn’t enough, the state and the ACLU agreed to a settlement mandating increased medical monitoring for people who tested positive for the coronavirus and that facilities make a serious effort to return people quarantined for COVID-19 to their prior housing, jobs and programs.

The DOC was also required to provide prisoners with cleaning materials and personal protective equipment. The agreement established a five-member monitoring panel to review the DOC’s ongoing responses to the pandemic.

During this year’s legislative session, lawmakers came up short on a bill that would have allowed a panel under the Board of Pardons and Paroles to grant compassionate release during a major disaster, an emergency declaration by the president of the United States covering any part of the state or an emergency declaration issued by the governor.

If an incarcerated person met the eligibility requirements, the panel would have held the power to grant their release if it found that circumstances exist, such as COVID-19, that pose a higher risk of harm to a person than if the individual remained behind bars, or if the person presented a “reduced risk” of presenting a danger to society.

The proposal also would have mandated the DOC to award “public health emergency release credits” during any emergency declaration to certain people whose scheduled release date was within a year of the declaration.

The state’s ongoing response to the pandemic in correctional facilities has set the framework for the legal battles, spearheaded by the people directly affected by officials’ decisions, likely to play out in the months and years to come.

Wade, who said he currently lives out of a halfway house, works for a Bloomfield glass company and attends a tractor-trailer school, said his and others’ hope is that people will listen and “hear our stories out.”