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Some regional jail inmates are turning again to a judge for protection against the pandemic, claiming they’ve been kept in the same quarters with cellmates who’ve contracted COVID-19, and they are not regularly tested for the virus.

The inmates are seeking a federal injunction to require Division of Corrections and Rehabilitation Commissioner Betsey Jividen and regional jail wardens to “immediately engage in adequate prevention and management of COVID-19.”

U.S. District Judge Robert “Chuck” Chambers will hear arguments from officials and inmates Wednesday. He denied a similar injunction request in April 2020.

Since then, jails neither have tested regularly nor isolated inmates from others infected with the virus, attorneys Jennifer Wagner and Lydia Milnes of Mountain State Justice wrote in an Oct. 12 motion.

“Defendant’s failure to consistently abide by basic requirements for the prevention and treatment of COVID-19 has dramatic, real-world impact: People in Defendant’s custody are sick and dying as the result of these failures,” Wagner wrote.

The inmates want Chambers to order corrections officials to update COVID-19 policies to reflect the latest treatments and practices regarding and to better implement and practice them in the state’s jails.

The inmates’ motion is part of an ongoing lawsuit filed in December 2018 in which they claim Corrections and Rehabilitation failed to provide them adequate health care.

None of the inmates who are plaintiffs in the lawsuit is seeking release based on their claims.

Corrections officials noted that Chambers in April 2020 said officials had demonstrated they had taken into consideration guidance from the Centers for Disease Control early in the pandemic.

Chambers then said while there was a substantial threat to inmates and jail and prison employees, the state Division of Corrections and Rehabilitation officials had the discretion to implement policies and manage inmates without a court mandate.

Officials maintain that discretion should remain intact. It has allowed corrections officials to adapt and modify policies throughout the pandemic to meet “available resources, security and administrative concerns as well as address quickly changing situations,” lawyer Webster Arceneaux III wrote in the state’s response to the motion.

Others representing the Division of Corrections and Rehabilitation include Richard Gottlieb, Valery Raupp and Anna Casto, all of the Lewis Glasser law firm in Charleston.

“Defendant has done what is reasonable and used her best efforts and resources to mitigate outbreaks and to contain outbreaks as they occur, including through quarantine,” Arceneaux said. “Based on this, Defendant’s COVID-19 response plan and implementation is adequate, reasonable and that she is mitigating the risks to jail inmates reasonably in accordance with her resources with regard to quarantine.”

Both parties rely on data compiled by the West Virginia Department of Health and Human Resources on COVID-19 cases and outcomes in jails and prisons as well as Dr. Homer Venters’ September inspections of Western, Tygart Valley and Northern regional jails.

Venters wrote in a report about his inspection that he is a physician and epidemiologist expert in correctional health. Mountain State Justice tapped Venters for the inspections.

Inmates’ attorneys said it’s impossible to know the true number of COVID-19 cases and outcomes because officials don’t routinely test in the jails, even when people are found to have been directly exposed.

Corrections officials said one inmate has died of COVID-19 and three more died “while COVID-19 positive,” pending a report from the state Medical Examiner’s Office on cause of death.

On the day corrections’ attorneys filed their brief in the case, 39 inmates were positive for COVID-19 among almost 5,500 incarcerated that day.

West Virginia’s jails are equipped to house 4,265 people.

In his report, Venters wrote he was “deeply concerned “ about jail practices that “actively and needlessly expose people to COVID-19 infection, morbidity, and morality.”

“The lack of basic medical isolation, combined with a lack of adequate testing, has created an extremely dangerous situation in which departmental practices are causing more cases than would be occurring with adherence to CDC guidelines, and the lack of testing is masking the true extent of these outbreaks,” he said. “This is the most dangerous approach to medical isolation I have encountered since the outset of the pandemic, when the mixing of people with and without COVID-19 occurred in the early weeks of response.”

Lacie Pierson covers politics. She can be reached at 304-348-1723 or Follow @laciepierson on Twitter.

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