Tulare County Sheriff adopts COVID policy under judge’s orders

Sheriff Mike Boudreaux says policies were in place all along but were not formally adopted until a class action lawsuit was filed by four inmates

TULARE COUNTY – Tulare County Sheriff Mike Boudreaux, known for his “Mask Up Tulare County” campaigns to distribute free facemasks to residents in unincorporated communities throughout the pandemic, is now doing the same for inmates. And while the Sheriff contends he has enforced face masks, social distancing and quarantine protocols since March, a federal judge ordered him to write it down after he could not produce a documented plan in court.

“[Sheriff Boudreaux] has also not presented any evidence to the court of an adoption of any sort of comprehensive social distancing policy,” U.S. District Court Judge Dale A. Drozd wrote in his Sept. 3 ruling. “Instead, defendant asserts that a handful of distinct efforts have been implemented (though it is unclear when those efforts were undertaken, or if they are memorialized anywhere in writing).”

Drozd’s ruling in the Eastern District Court in Fresno ordered the Sheriff to complete the plan by Sept. 14 and submit it to the court, both of which happened by the deadline.

“Those procedures have been standard protocol for some time,” Boudreaux said. “The judge’s ruling directed for a written policy versus directives only. The Sheriff’s Office is in compliance with the judge’s procedural formats, but will also place those formats into written policy.”

The ruling was in regards to a class action lawsuit filed on July 29 by the ACLU Foundation of Northern California and the law firm Munger, Tolles & Olson LLP on behalf of four inmates who argued Sheriff Boudreaux had a “callous indifference to their health and safety.” Charles Criswell, Levi Johnson, Samuel Camposeco, Adam Ibarra stated in the complaint they were filing the lawsuit to compel the Sheriff to take immediate precautions to prevent a severe spread of COVID-19 that would expose approximately 1,900 incarcerated people to serious illness or death. They claim Boudreaux “flatly refused” a Tulare County judge’s order to begin testing all inmates, refused to force inmates to wear masks and refused their requests to social distancing despite available bed space. The ACLU said when one of the plaintiffs made his own mask, jail officials confiscated it and inmates who developed flu-like symptoms and requested COVID-19 tests were told Tulare County jails don’t conduct them. Based on the positivity rate of the small number of inmates and staff testing in June, the ACLU says there were likely more than 150 positive cases that went undetected.

“The Tulare County sheriff has not only failed to establish and enforce proper policies and protocols to prevent the virus’ spread, he has actively taken steps to prevent incarcerated people from taking simple precautions like donning cloth face coverings,” said Kathleen Guneratne, a senior staff attorney with the ACLU Foundation of Northern California.  “What few actions Tulare County has taken in response to COVID-19 have been woefully inadequate, creating conditions that virtually ensure that COVID-19 will spread like wildfire in Tulare County facilities – if it hasn’t already.”

The ACLU also claims the Sheriff “stymied” their efforts to meet confidentially with the plaintiffs about their complaints, a violation of their First, Sixth and Fourteenth Amendment rights. The ACLU said its investigators witnessed this first-hand.

On May 18 and May 28, Ibarra spoke with an ACLU investigator about his concerns. Not long after the second interview, one of the TCSO sergeants took Ibarra out of his housing unit to ask him about conversations with the ACLU. Ibarra refused to speak with the investigator and was returned to his cell. Since then, Ibarra has not been able to meet confidentially with ACLU staff. Ibarra’s only contact with ACLU attorneys takes place over recorded, non-confidential phone lines. And those conversations are constrained by his limited out-of-cell time.

After writing a letter about his complaints in early June 2020, Camposeco did not schedule another in-person legal visit with ACLU. Camposeco can only write letters or call the ACLU attorneys on a non-confidential line during the brief time he spends outside his cell each day, making it difficult for him to discuss the lack of COVID-19 protocols with his legal representative.

“In response to the decision made by the Eastern District Court, Sheriff Boudreaux respects the court’s process in ensuring fair treatment of all parties involved,” the Sheriff’s Department said in a released statement. “That being said, the information the judge was relying on when making his decision was based on outdated procedures of the Tulare County Sheriff’s Office.”

In its response to the complaint, the Sheriff’s Department said a wide variety of precautions were already in place in the jails to prevent the spread of COVID-19, including posting of CDC posters regarding steps to prevent the spread of germs for all inmates; access to bar soap and water for inmates, enhanced sanitation protocols; a 14 day quarantine period and testing for all new intakes, access to hygiene and cleaning supplies for inmates, segregation and isolation of symptomatic, exposed, or positive inmates and detainees in three housing locations; wearing of masks by detentions staff in the facilities; wearing of masks by inmates/detainees when outside their cells with daily replacements provided, temperature checks on inmates when they enter and exit the facility or perform work details; and a verbal screening and temperature checks of all staff entering a facility.

“There are protocol directives in place at the Tulare County Sheriff’s Office that guarantee legal visits to incarcerated individuals. There are also procedures and directives in place regarding infectious disease and COVID-19 protocols,” the Sheriff’s Department stated. “Furthermore, any allegations of intimidation against inmates seeking legal direction have no evidence to support them.”

All other requests by the plaintiff’s were denied, including the request inmates be released early as a safety measure to protect inmates from COVID-19. “If a municipality cannot provide, or cannot afford to provide, adequate social distancing in Jails, it should release people—at the very least, it should consider releasing those in greatest danger from the virus, the Medically Vulnerable, to home confinement—until social distancing becomes possible. Failure to do so is deliberate indifference,” the complaint reads.

The Sheriff’s Department said it had done “what the court requested by the required dates.” All testing questions and results will be submitted to the court when the health provider puts the report together. We are confident in our COVID protocol procedures and believe those procedures are what have enabled us to keep Coronavirus exposure in our jail facilities to a minimum.”

A copy of the policy can be found on the Sheriffs Department website by selecting “Policy and Training” on the “Divisions” drop down in the main menu. There you can find a link in the sidebar menu titled “Coronavirus Prevention & Protection.” Policy 716 includes face mask and shield provisions, social distancing, isolation, quarantine, observation, COVID-19 testing, and a revised legal visitation policy.

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