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BOP Whistles a Happy Tune – Update for August 11, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DEATH DOESN’T TAKE A HOLIDAY, BUT BOP SEEKS NORMALCY

Six more inmates died of COVID-19 last week, bringing the BOP’s death total to 116. Twenty-two have died since July 1. Even while the BOP heralded a drop in the number of sick inmates from 2,476 to 1,395, a reduction of 44%, the number of sick staffers hit 580, an increase of 14% from last week (and all-time high). COVID-9 has now reached a record 114 institutions (93% of all BOP facilities).

whistle200811Still, the BOP bravely whistles a happy tune, seeking a return to normalcy as though it has the virus on the run. The agency announced Phase 9 of its rickety COVID-19 “Action Plan.” Phase 9 relaunches a number of EBRR-sanctioned programming (the programs that earn First Step Act credit), some – like the Residential Drug Treatment Program – to 100% and others to half capacity. UNICOR, the federal prison industry, is to spool up to 80% by September 1 and 100% a month later. Recreation time outside will resume, with limitations on group size and length of rec sessions. Inmate transportation begins again.

Meanwhile, fresh breakouts of COVID-19 were reported at USP Lewisburg (51 ill), FCI Loretto (37 ill), the Victorville, California, prison complex (127), USP Marion (70 ill) and FCI Edgefield (60 ill). Those locations join Coleman, Miami, Elkton, Forrest City, Beaumont, Carswell, Oklahoma City, Three Rivers and scores of other BOP institutions with the virus. CNN last week branded FCI Seagoville as “the hardest-hit federal prison in the United States” where “more than 1,300 of the roughly 1,750 prisoners have tested positive for the virus — a stunning three out of every four inmates.”

Since the beginning of May, when there was only a single coronavirus case at Seagoville, the number of inmates testing positive soared to 1,333, according to BOP. Twenty-eight of the roughly 300 prison employees have also tested positive. The outbreak means that the facility has more coronavirus cases than about 85% of the counties in the US.

covidmap200811The virus has reached FCC Florence (Colorado) and FDC Honolulu as well.

At FCI Miami, in Florida, nearly half of the inmates reportedly have tested positive. Kareen Troitino, the FCI Miami corrections officer union president, told ABC News that the virus was spread by one employee to inmates at the facility and, within a day cases at the facility went from one to four. Troitino says the only protective equipment the BOP issued were surgical masks. “One employee walked into work. He did not show a fever. He passed our screening procedures. He was positive. And that one employee spread it to numerous inmates. And then that’s it. Ever since then, it’s been a disaster.”

Troitino’s union local has sued the BOP and several other federal agencies, seeking hazard pay for at-risk essential workers.

In Washington, D.C., Democratic senators and representatives sponsored legislation in both chambers last Thursday to require the array of agencies that administer the nation’s jails and prisons to collect and report publicly detailed information about the spread of COVID-19 in their facilities. Joe Rojas, southeast regional vice president of the federal prison employees, told ABC News, “The Bureau is the largest agency within the DOJ and there’s no oversight. The BOP director doesn’t even get confirmed he just gets appointed.”

Forbes magazine complained last week that the BOP’s “Phase 9 Action Plan… looks a lot like Phase Eight… which looked a lot like Phase Seven. It begs the question as to whether there is a cohesive plan to address the COVID-19 pandemic that has infected over 10,000 federal inmates and over 1,000 correctional staff… killed 110 inmates and one staff member.”

coronadog200323BOP employees at FCI Tallahassee publicly expressed concern over Phase 9’s inmate transportation. “If we’re going to receive inmates that are positive, if we’re going to be assigned to inmates that have already tested positive it’s pretty shaky from day-to-day,” Yalimany Dudley, CO, told WTXL-TV.

Dr. Kristian Morgan, a nurse at the FCI, said inmates are coming in without being tested beforehand, bringing the virus with them. “We received about eight inmates from the Marshal Service last week. Five of those tested positive as soon as they entered inside the institution when we did rapid testing.”

BOP Memorandum, Coronavirus (COVID-19) Phase Nine Action Plan (August 5, 2020)

CNN, Inside the federal prison where three out of every four inmates have tested positive for coronavirus (August 8, 2020)

KTVT, Inside the Federal Prison Where Three Out of Every Four Inmates Have Tested Positive for Coronavirus (August 9, 2020)

Canon City Daily Record, 3 new cases of COVID-19 in Fremont County; Bureau of Prisons reporting 3 cases (August 3, 2020)

Honolulu Civil Beat, First Hawaii Inmate Tests Positive for COVID-19 Along With 4 Corrections Officers (August 7, 2020)

ABC News, As coronavirus spreads through nation’s jails and prisons, lawmakers demand more transparency on toll (August 6, 2020)

WXII-TV News, ‘We’re Risking Our Lives’: Front-Line Federal Workers Sue For Hazard Pay (August 7, 2020)

Forbes, As Bureau of Prisons Enters “Phase 9” Of COVID-19 Plan, BOP Staff Wonder If There Is A Real Plan (August 7, 2020)

WTXL-TV, FCI Tallahassee employees fear the worst as inmate transportation restarts (August 6, 2020)

– Thomas L. Root

BOP 4, Inmates 0 in COVID-19 Litigation – Update for June 15, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THE WEEK IN COVID-19 LITIGATION

prisonhealth200313As of last night, June 14th, the number of Federal Bureau of Prisons inmates with COVID-19 had dropped from 2,109 a week ago to 1,341. The number of BOP facilities with COVID-19 on premises rose from 62 to 65, and then fell back to 62 as of last night. Deaths continued to climb, however, from 81 a week ago to 87 last night.

The numbers aren’t bad for the BOP. Inmate sickness has been fluctuating between 1,300 and 2,100 for a few weeks, and the number of prisons affected has leveled. But the BOP’s big advances last week were in the courtroom, not the medical suite.

Besides the 6th Circuit’s stay in FCI Elkton litigation, last Tuesday, Judge Rachel P. Kovner of the U.S. District Court for the Eastern District of New York denied prisoners a preliminary injunction because of inept medical care they claim amounts to cruel and unusual punishment, reasoning that despite deficiencies in MDC Brooklyn’s COVID-19 response, officials likely did not act with “deliberate indifference” to the health threat.

“Petitioners have not shown a clear likelihood that MDC officials have acted with deliberate indifference to substantial risks in responding to COVID-19,” Judge Kovner ruled. “Rather than being indifferent to the virus, MDC officials have recognized COVID-19 as a serious threat and responded aggressively.”

Nevertheless, the court cited significant problems with the BOP’s response to the pandemic. In particular, the judge noted the prison was way too slow responding to sick-calls requests and generally failed to isolate symptomatic inmates. “The MDC appears not to be isolating individuals who report COVID-19 symptoms,” in “tension with the CDC’s guidance” that they should be kept away from other inmates, Judge Kovner wrote. “Under standards of care that both parties have accepted, MDC officials’ apparent failure to fully implement the CDC guidance in these areas constitutes a deficiency in the MDC’s response to COVID-19.”

destroyevidence200615Judge Kovner also held the BOP had destroyed evidence by shredding the paper sick call requests used as the pandemic worsened. She sanctioned the BOP by drawing the inference that “the destroyed records would have contained additional reports of COVID-19 symptoms.” Still, the judge accepted the prison’s claims that it was doing the best it could under the circumstances, ruling that the evidence before the court did not clearly show that the inmates were at risk of serious harm, considering the MDC’s virus response, or that the prison did not care enough to shield them from that risk.

Meanwhile, last Thursday, a Massachusetts district court dealt a blow to the inmate habeas corpus/8th Amendment action against FMC Devens. The court held that the action – while calling itself a habeas corpus petition – was really a suit about prison conditions subject to the Prison Litigation Reform Act. The plaintiffs were given until the end of this week to show compliance with the PLRA, which mandates exhaustion of BOP administrative remedies as a jurisdictional condition. This holding conflicts with the 6th Circuit’s Wilson holding of three days before.

Lose200615The North Carolina habeas corpus case against FCC Butner likewise suffered a setback on Thursday, when the Eastern District of North Carolina federal court denied a preliminary injunction. Like the 6th Circuit in the Elkton case, the district court ruled that while the inmate plaintiffs met the objective prong of the deliberate indifference showing, by showing that COVID-19 “poses significant health risks to both the world and community at large” and that the “disease’s uncontrolled spread within FCC Butner therefore presents a substantial risk of serious or substantial physical injury resulting from the challenged conditions,” they had not shown that the BOP was ignoring the spread of the illness.”

Chunn v. Edge, Case No. 20-cv-1590, 2020 U.S. Dist. LEXIS 100930 (E.D.N.Y., June 9, 2020)

Grinis v. Spaulding, Case No. 1:20-cv-10738-GAO, 2020 U.S. Dist. LEXIS 103251 (D.Mass., June 11, 2020)

Hallinan v. Scarantino, Case No. 5:20hc2088, 2020 U.S. Dist. LEXIS 103409 (E.D.N.C., June 11, 2020)

– Thomas L. Root

6th Circuit FCI Elkton Holding a Mixed Bag – Update for June 11, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THREE WINS AND A LOSS AT THE 6TH CIRCUIT

winloss200611On the third try, the Federal Bureau of Prisons finally succeeded in getting a higher court to issue a stay in the FCI Elkton (Ohio) habeas corpus/8th Amendment case, stopping for the moment the U.S. District Court for the Northern District of Ohio’s injunction demanding that the BOP identify and either transfer or release medically vulnerable inmates.

On Tuesday, the U.S. Court of Appeals for the Sixth Circuit ruled that the preliminary injunction – which can only issue if a moving party can show irreparable harm and likelihood that it will succeed on the merits of the case – should be set aside. This does not mean that the inmate plaintiffs in the class action cannot win, but I suspect the BOP is betting that time (and attrition of the medically vulnerable inmates, as one after another comes down with COVID-19), will render the whole lawsuit moot before it’s done.

Technically, the lawsuit is a petition for writ of habeas corpus, addressed to unconstitutional conditions of confinement. The remedy in a habeas action is release of the prisoner or abatement of the unconstitutional condition. Here, the prisoners claimed that the BOP was violating the 8th Amendment, exacting “cruel and unusual punishment” by the Elkton administration’s “deliberate indifference” to a deadly medical condition, COVID-19.

plague200406In a 2-1 decision, the 6th Circuit panel struck down the district court’s order to thin the ranks of the 2,000 inmates at Elkton (located in Lisbon, Ohio, about 65 miles southeast of Cleveland), where more than a quarter have tested positive for the coronavirus and 19 inmates have died. U.S. District Judge James Gwin ruled in April that the administration was not doing enough to protect inmates, and ordered that the BOP transfer or release elderly or medically compromised prisoners.

“Deliberate indifference” has two components, one objective and one subjective. The Circuit ruled that while the plaintiffs had shown that objectively, COVID-19 was a genuine medical danger at the facility, they were unlikely to prove that the steps the BOP had taken as of April 22 — such as screening for symptoms, limiting visitation, increasing cleaning and providing masks — were insufficient to raise the administration’s response above the “deliberate indifference” standard. The majority on the panel agreed that the BOP’s “actions show it has responded reasonably to the risk posed by Covid-19 and that the conditions at Elkton cannot be found to violate the Eighth Amendment.”

Chief Judge R. Guy Cole Jr. dissented, writing that he was “left with the inescapable conclusion that the BOP’s failure to make use of its home confinement authority at Elkton, even as it stared down the escalating spread of the virus and a shortage of testing capacity, constitutes sufficient evidence for the district court to have found that petitioners were likely to succeed on their Eighth Amendment claim.”

habeasB191211Inmate advocates were disappointed with the ruling, but I think there were three wins in the decision for inmates. First, the BOP has argued in this case as well as in other pending cases elsewhere that inmates could not proceed on habeas corpus, but instead had to use a cumbersome procedure that would not have permitted as a remedy the release of inmates. The Court roundly dismissed this argument, holding that the claim being made can proceed on a 28 USC § 2241 habeas corpus petition.

Second, the Court swept aside BOP arguments that the inmates had to “exhaust” administrative remedies under the Prison Litigation Reform Act. This would have required each inmate plaintiff to file administrative remedies to the warden, then the regional BOP office, and final with the BOP in Washington, a cumbersome and largely futile procedure that would have consumed six months before a suit could even be brought.

Finally, the Court held that

“petitioners have provided evidence that they are ‘incarcerated under conditions posing a substantial risk of serious harm.’ The COVID-19 virus creates a substantial risk of serious harm leading to pneumonia, respiratory failure, or death. The BOP acknowledges that ‘[t]he health risks posed by COVID-19 are significant.’ The infection and fatality rates at Elkton have borne out the serious risk of COVID-19, despite the BOP’s efforts. The transmissibility of the COVID-19 virus in conjunction with Elkton’s dormitory-style housing—which places inmates within feet of each other—and the medically-vulnerable subclass’s health risks, presents a substantial risk that petitioners at Elkton will be infected with COVID-19 and have serious health effects as a result, including, and up to, death. Petitioners have put forth sufficient evidence that they are ‘incarcerated under conditions posing a substantial risk of serious harm’.”

tryhard200611This is a powerful foil to the government’s oft-repeated claim in opposing compassionate release motions that the BOP is adequately meeting inmate medical needs despite COVID-19, and that there is thus no need to protect vulnerable inmates by compassionate release under 18 USC § 3582(c)(1). In other words, the 6th said that the BOP was trying, but that it was not succeeding.

That may save the BOP from 8th Amendment claims – at least at the preliminary stage of litigation such as the Elkton case – but it refutes any government claim that no one needs to go home, because the BOP is keeping everyone safe.

Wilson v. Williams, Case No. 20-3447, 2020 U.S. App. LEXIS 18087 (6th Cir. June 9, 2020)

– Thomas L. Root

No COVID-19 Curve Flattening in the BOP – Update for June 9, 2020

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COVID-19 ROUNDUP

Talk about illness… Everyone’s sick to death about COVID-19 talk. But wishing it gone is a little bit different than having it gone. That’s somewhat the problem that the Federal Bureau of Prisons has with the coronavirus in general, and that BOP Director Michael Carvajal has with it in particular.

The BOP’s active coronavirus count jumped 23% this past week, from 1,710 sick inmates on June 1 to 2,109 yesterday. Staff infection ticked up from 171 to 185, and the number of BOP facilities reporting the virus jumped 7%, from 57 to 62. Cumulative inmate COVID-19 deaths increased last week from 70 to 81.

flatten200609The numbers keep ticking up, and – what’s worse – at the same pace. Nevertheless, when the Senate Judiciary Committee held a hearing a week ago today, Director Carvajal told the senators that “at this point, we have more recoveries than new infections. I believe that this shows that we are now flattening the curve.”

That’s not what flattening the curve means. “Flattening the curve” means to stagger the number of new infections over a longer period of time, although I suppose that eventually – when the BOP runs out of inmates yet to be infected – the curve will necessarily flatten when there’s no one left to get sick. But whatever else is happening, the BOP’s curve is not flattening.

Something else that’s not happening is a decrease in inmate class actions against the BOP. Those are proceeding apace around the country:

Massachusetts: A class of inmate plaintiffs who had conditions identified by the Centers for Disease Control and Prevention that heightened their risk for contracting COVID-19 or having a worse outcome from it (the “medically vulnerable”) sued the Federal Medical Center at Devens, Massachusetts, seeking proper and complete home confinement relief from the administration there. The Massachusetts federal district court denied the inmates an emergency injunction in May, but they asked for reconsideration last week. The court had denied the injunction in part because there had only been a single COVID-19 case at Devens when the injunction was denied. But since then, 24 inmates have been diagnosed as having the virus.

COVID joints200609

The injunction was also denied because the BOP had convinced the judge that it was “immediately reviewing all inmates who have COVID-19 risk factors… to determine which inmates are suitable for home confinement.” But then Devens’ warden, testifying in a different proceeding last month (one seeking compassionate release for an inmate), admitted that medical vulnerability to COVID-19 has not been considered a factor by the Devens front office in its compassionate release decisions, and that Devens refuses to transfer any prisoner to home confinement due to COVID-19, regardless of age or medical vulnerability, until the prisoner has served at least 50% of his sentence or at least 25% of his sentence with under 18 months left to serve.

The judge who originally heard the warden’s testimony in the compassionate release action found the policy to be “utterly inconsistent” with the Attorney General’s direction to maximize the use of home confinement as a tool to combat COVID-19, leaving “at-risk inmates who are not being individually assessed for release. And some of them may get very sick. Some of them may die.”

That reconsideration motion is pending.

Connecticut: In litigation over FCI Danbury, the judge has ordered the parties to give inmates a release form that would let the court release their presentence reports to the plaintiffs’ lawyers. The plaintiffs say access to the PSRs – which include a section on the defendants’ medical conditions – would help inmates vulnerable to the virus.

Inmate deaths200609

New York: U.S. District Judge Edgardo Ramos was preparing to rule on an inmate motion for injunction after a doctor tasked with inspecting MCC New York issued a scathing report proclaiming basic sanitation and virus screening failures. In a May 26 filing, Dr. Homer S. Venters criticized poor inmate screening and concluded that the prison has “ignored” signs that the virus may be widespread. Dr. Venters also reported a lack of access to basic sanitation, including soap. and he saw evidence that the facility is “widely infested with mice and roaches.”

Ohio: The FCI Elkton injunction came to a screeching halt after the BOP went back to the Supreme Court last week and this time convinced Associate Justice Sonia Sotomayor to grant its stay request. The Northern District of Ohio injunction issued by Judge James Gwin is now on hold, pending an appeal to the 6th Circuit Court.

North Carolina: An inmate suit over conditions at the several prisons making up the Butner Federal Correctional Complex, like the ones in Massachusetts, Ohio and Connecticut, seeks a court order that the Butner administration accelerate home confinement and compassionate release due to the rampant coronavirus at Butner (which has 571 active inmate cases and 18 deaths).

The BOP has moved to dismiss the suit, arguing that things are not as bad as the plaintiffs say they are because a lower percentage of infected inmates are dying than victims in the general public. Yesterday, the inmates replied,

More than 900 men incarcerated at Butner—almost 21 percent of Butner’s population—have tested positive for the virus that causes COVID-19. Nineteen people (including a BOP staff member) have died1—far more than at any other BOP facility. Half of those deaths happened in the 13 days since Petitioners filed this lawsuit. Infections and deaths are rapidly rising. The situation gets worse by the day.

Despite these harrowing and undisputed facts, Respondents contend that “FCC Butner’s efforts have been effective in managing infections and treating inmates.” Because they have purportedly taken some steps to mitigate the spread (however ineffective and late), Respondents argue their response to this deadly outbreak cannot possibly be deemed constitutionally defective. But that is not the law.

California: The inmates in a habeas corpus action against FCI Terminal Island and FCC Lompoc have asked the Central District of California federal court to order “a highly expedited process — for completion within no more than 48 hours — for BOP to use procedures available under the law to review members of the Class for enlargement of custody… in order to reduce the density of the prison population… and subsequently ordering the release of those granted temporary enlargement.” Separately, the complaint requests injunctive relief under the 8th Amendment to order improved conditions for all prisoners remaining at the institutions in the form of social distancing and provision of hygiene products.

(The May 10 spike represented the explosion of cases at FCI Terminal Island)
                         (The May 10 spike represented the explosion of cases at FCI Terminal Island)

The BOP has moved to dismiss the California suit for the same reasons it has raised elsewhere, that the court lacks the power to grant the asked-for relief and that the plaintiffs have not exhausted remedies. The court should decide the issue this week.

Grinis v. Spaulding, Case No 1:20cv10738 (D. Massachusetts)

Martinez-Brooks v. Easter, Case No 3:20cv569 (D Connecticut)

Hallinan v. Scarantino, Case No 5:20hc2088 (Eastern District of North Carolina)

Wilson v. Williams, Case No 4:20cv794 (Northern District of Ohio)

Fernandez-Rodriguez v. Licon-Vitale, Case No 1:20-cv-03315 (Southern District of New York)

Wilson v. Ponce, Case No 2:20cv4451 (Central District of California)

– Thomas L. Root

BOP Misses a Base, and SCOTUS Calls the Agency Out – Update for May 27, 2020

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BUT WAIT, THERE’S MORE…

More in the continuing saga of Judge James Gwin versus FCI Elkton – in which the Cleveland-based Federal Judge issued a preliminary injunction against the Federal Bureau of Prisons facility because the conditions of confinement of inmates especially vulnerable to COVID-19 was likely to constitute “deliberate indifference” (a term loaded with 8th Amendment implications)… and the BOP ran to the Supreme Court to complain about an (allegedly) out-of-control federal district court.

yerout200527Yesterday, the Supreme Court denied the BOP’s request that it stay the Judge’s injunction by a 6-3 vote. It reminded me of my Little League umpiring days… an exuberant base runner chugging around the diamond on his way to a home run misses touching second base by a foot or so. When he makes it to home, I have to call him out. A lot of parents boo.

Like that, the Supreme Court called the BOP out on an obvious blunder: the BOP effectively wanted a stay of last Tuesday’s District Court order that directed it to take specific steps to get Elkton inmates moving to home confinement. But the BOP did not seek a stay in the Court of Appeals first. Like base running, you can’t get away with crossing home plate if you don’t tag all of the preceding bases.

Practically speaking, the Supremes’ denial means that the District Court’s demand that the BOP actually address its disastrous management of COVID-19 at FCI Elkton may proceed unimpeded.

Last month, as I described at the time, Judge James Gwin of the U.S. District Court for the Northern District of Ohio granted a preliminary injunction ordering BOP officials at FCI Elkton (located about 70 miles southeast of Cleveland) to identify, and then to start transferring or releasing to home confinement medically vulnerable prisoners. The BOP promptly appealed this order to the U.S. Court of Appeals for the Sixth Circuit, but the Sixth bounced the appeal in a brief order finding that Judge Gwin had not abused his discretion.

slowroll200421After that (at least according to the plaintiffs and Judge Gwin) the BOP slow-walked the identification and transfer of vulnerable inmates. After all, judges retire, pandemics fade… if the agency could only do nothing long enough, the problem might take care of itself.

A week ago, Judge Gwin had had enough, and let the BOP know it. Finding that that BOP had not complied with his directive from last month to clear out Elkton in order to protect vulnerable people from the spread of coronavirus (which has already killed nine Elkton inmates and 64 federal inmates nationally), the Judge said the BOP had “made only minimal effort to get at-risk inmates out of harm’s way.” As of May 8, 2020, five subclass members were “pending [home confinement] community placement. Six inmates were identified as maybe qualifying for home confinement. No inmates were deemed eligible for furlough transfer. But to date, Respondents have not identified any inmates whose confinement has actually been enlarged as a consequence of the preliminary injunction.”

The Judge ordered the BOP to loosen requirements on who qualifies for placement on home confinement under the Bureau’s CARES Act authority by

• eliminating requirements about length of his or her sentence an inmate has served (reversing the BOP’s position that an inmate had to have served 50% of his or her entire sentence, or 25% and have less than 18 months to go, in order to be eligible);

• disregarding whether they committed had certain low or moderate offenses within the past 12 months (reversing the BOP’s position that any disciplinary report in the past 12 months – from possessing a shank or taking an apple from the chow hall to eat later) – was automatically disqualifying);

• eliminating a BOP requirement that the inmate be a U.S. citizen in order to get CARES Act home confinement placement;

• eliminating the requirement that an inmate with a “low” PATTERN risk score be denied CARES Act home confinement placement; and

• disregarding the fact that an inmate is serving time for a “violent” crime (and “violence” is being defined more broadly by the BOP than by any other government agency interpreting federal law) if the crime occurred more than five years ago.

The Court instructed the BOP to explain in detail to the court why any inmate was denied CARES Act placement or Bureau recommendation for compassionate release furloughed or moved to another facility, the prisons bureau must also explain why.

The judge’s order observed that “[b]y thumbing their nose at their authority to authorize home confinement, Respondents threaten staff and they threaten low security inmates.”

Calvin thumb on nosePreviously, the BOP had tried without success to get the Sixth Circuit to stay the injunction. After last week’s order from the Judge spelling out what Elkton was to do right away, the BOP an application for a Supreme Court stay of Judge Gwin’s preliminary injunction “pending appeal of that injunction to the United States Court of Appeals for the Sixth Circuit and, if the court of appeals affirms the injunction, pending the filing and disposition of a petition for a writ of certiorari and any further proceedings in this Court.”

The problem with the BOP’s Supreme Court filing was evident from the get-go. Although it claimed to be seeking a stay of the April injunction, the BOP spent much of its brief complaining about last Tuesday’s order. As the inmate plaintiffs cheerfully pointed out in their response filed last Friday, the BOP had never asked the Sixth Circuit to review last week’s order, and jumping the appeals court to straight to SCOTUS is not allowed.

Yesterday, the Supremes agreed, but with a caveat:

[O]n May 19, the District Court issued a new order enforcing the preliminary injunction and imposing additional measures. The Government has not sought review of or a stay of the May 19 order in the U.S. Court of Appeals for the Sixth Circuit. Particularly in light of that procedural posture, the Court declines to stay the District Court’s April 22 preliminary injunction without prejudice to the Government seeking a new stay if circumstances warrant.

The Care Bears did not mean the Court cared much for the BOP's application for stay...
          The Care Bears did not mean the Court cared much for the BOP’s application for stay…

The Court seemed to be leaving the door open a crack, inviting the BOP to come back if it was unsuccessful in getting the Court of Appeals to stay the latest order.

Justices Thomas, Alito and Gorsuch voted to grant the stay, meaning that Chief Justice Roberts, Kavanaugh, Breyer, Ginsburg, Kagan and Sotomayor were in the majority, denying the stay.

Williams v. Wilson, Case No. 19A-1041, 2020 U.S. LEXIS 2951 (Supreme Court, May 26, 2020)

– Thomas L. Root

The World Turned Upside Down – Update for May 21, 2020

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BOP SCURRIES TO SUPREME COURT IN BID TO STOP DISTRICT COURT ORDER TO PROTECT VULNERABLE INMATES

Now for the continuing saga of Judge Gwin versus FCI Elkton – in which the Cleveland-based federal judge issued a preliminary injunction against the Federal Bureau of Prisons facility because the conditions of confinement of inmates especially vulnerable to COVID-19 was likely to constitute “deliberate indifference” (a term loaded with 8th Amendment implications)… as the BOP runs to the Supreme Court to complain about an (allegedly) out-of-control federal district court.

bartleby200521Last month, as we described at the time, Judge James Gwin of the U.S. District Court for the Northern District of Ohio granted a preliminary injunction ordering BOP officials at FCI Elkton (located about 70 miles southeast of Cleveland) to identify, and then to start transferring or releasing to home confinement medically vulnerable prisoners. The BOP promptly appealed this order to the U.S. Court of Appeals for the Sixth Circuit, but the Sixth bounced the appeal in a brief order finding that Judge Gwin had not abused his discretion.

Bartleby the Scrivener has nothing on the BOP. Having lost its interlocutory attempt to force the inmate plaintiffs into interminable trench warfare over their habeas corpus action – and thus let time and inmate attrition take care of Elkton’s coronavirus outbreak – the BOP simply chose to ignore the Judge’s injunction. Last Tuesday, an apparently fed-up Judge Gwin let the BOP know who in the case had a robe and gavel, and who did not.

On Tuesday, the Court ruled that BOP officials had not complied with his directive from last month to clear out Elkton to address the spread of coronavirus, which has already killed nine Elkton inmates (out of 58 federal inmates nationally) and infected over 100 others. The Judge noted that of 837 inmates identified as medically vulnerable to COVID-19, the BOP had “made only minimal effort to get at-risk inmates out of harm’s way. As of May 8, 2020, five subclass members were “pending [home confinement] community placement.” Six inmates were identified as maybe qualifying for home confinement. No inmates were deemed eligible for furlough transfer. But to date, Respondents have not identified any inmates whose confinement has actually been enlarged as a consequence of the preliminary injunction.”

Charitably characterizing the BOP’s efforts to date as “limited,” Judge Gwin ordered the BOP to loosen requirements on who qualifies for placement on home confinement under the Bureau’s CARES Act authority by

• eliminating requirements about length of his or her sentence an inmate has served (reversing the BOP’s position that an inmate had to have served 50% of his or her entire sentence, or 25% and have less than 18 months to go, in order to be eligible);

• disregarding whether they committed had certain low or moderate offenses within the past 12 months (reversing the BOP’s position that any disciplinary report in the past 12 months – from possessing a shank or taking an apple from the chow hall to eat later) – was automatically disqualifying);

• eliminating a BOP requirement that the inmate be a U.S. citizen in order to get CARES Act home confinement placement;

• eliminating the requirement that an inmate with a “low” PATTERN risk score be denied CARES Act home confinement placement; and

• disregarding the fact that an inmate is serving time for a “violent” crime (and “violence” is being defined more broadly by the BOP than by any other government agency interpreting federal law) if the crime occurred more than five years ago.

The judge instructed the BOP to explain in detail to the court why any inmate was denied CARES Act placement or Bureau recommendation for compassionate release furloughed or moved to another facility, the prisons bureau must also explain why.

Calvin thumb on noseThe judge’s order observed that “[b]y thumbing their nose at their authority to authorize home confinement, Respondents threaten staff and they threaten low security inmates.”

But the BOP immediately struck back. Late yesterday, the BOP filed an application for a Supreme Court stay of Judge Gwin’s preliminary injunction “pending appeal of that injunction to the United States Court of Appeals for the Sixth Circuit and, if the court of appeals affirms the injunction, pending the filing and disposition of a petition for a writ of certiorari and any further proceedings in this Court.”

donothing200521

After the predictable self-serving explanations to the Supreme Court that “the Federal Bureau of Prisons (BOP) is working assiduously to mitigate those risks within its facilities by implementing a multi-phase plan it developed in January 2020,” the application for stay complains that “the district court’s injunction — now augmented by the court’s sweeping May 19 order — would undermine BOP’s systemic response to the COVID-19 pandemic; intrude the Judicial Branch on policy decisions that have been assigned to expert prison administrators; and require BOP to defy the CDC’s guidance to restrict prisoner movements during the pandemic to avoid unnecessary risk of spreading the virus.”

Justice Sonia Sotomayor, who is assigned as Circuit Justice for the Sixth Circuit, has ordered the inmate petitioners to file a response by tomorrow morning.

Order, Dkt. 85, Wilson v. Williams, Case No. 4:20cv00794 (N.D. Ohio, issued May 19, 2020)

Application for a Stay of the Injunction Issued by the United States District Court for the Northern District of Ohio and for an Administrative Stay, Williams v. Wilson, Case No. 19A-____ (Supreme Court, May 20, 2020)

– Thomas L. Root