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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

At Halftime, It’s Inmates 1, BOP 0 – Update for March 26, 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.

FEDERAL DEFENDERS WIN REMAND AGAINST BOP

Last winter, during the water and electrical breakdowns at MDC Brooklyn, the Federal public defenders organization sued the BOP and then-Warden Herman Quay, claiming they curtailed inmate-attorney visits in violation of the Administrative Procedure Act and the 6th Amendment. A district court threw the suit out, ruling that the Federal Defenders lacked the right to bring the action.

accessdenied191111Last week, the 2nd Circuit reversed. It ruled that the district court failed to consider BOP regulations in its zone-of-interests analysis and misconstrued the 6th Amendment claim: the Federal Defenders invoked the court’s traditional equitable powers in the 6th Amendment claim against Defendants, but the district court treated the claim as arising under the Constitution itself.

The Circuit remanded the case, and directed the district court “to consider appointing a master to mediate the parties’ differences at the earliest possible time to ensure that the Federal Defenders have meaningful, continuous access to their clients either in person or by remote access pending adjudication of these claims, as these claims may be amended to address similar issues of access arising during the current public health emergency.”

On Tuesday, the District Court appointed former Attorney General Loretta Lynch, now a partner at white-shoe law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP, to referee the dispute. My read is that the 2nd Circuit wants this case settled, and wants the attorneys and their clients to come out on top.

Federal Defenders of New York v. BOP, 2020 U.S. App. LEXIS 8845 (2nd Cir Mar 20, 2020)

Law 360, Loretta Lynch To Referee Dispute Over Detainees’ Atty Access (March 24, 2020)

– Thomas L. Root

It Wasn’t a Lie, Just a “Mishandled” Communication – Update for October 4, 2019

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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.

MDC BROOKLYN’S PROBLEMS EXISTED LONG BEFORE LAST JANUARY

Last January’s power outage at MDC Brooklyn did not cause the heating problem that left inmates freezing in their cells, according to a report issued last week by the Dept. of Justice Inspector General. Instead, heat issues at the MDC had been a continuing problem well before the January 2019 fire that caused a partial power outage.

freeze191004Prison officials had known that the heating problem was a longstanding issue that had never been fixed. The heat problems were due to a lack of equipment to monitor temperatures in the jail, which reached as low as 59 degrees a week before the power outage and often went above 80 degrees even in the winter months, the report found.

The investigation also found that prison officials mishandled the power outage.

As half a dozen judges and advocates suspected in the days after the outage, inmates were left trapped inside without access to their lawyers or information about why they couldn’t visit with family members, the report found. “This is particularly problematic in view of the facility’s population of pre-trial detainees, some of whom may have required daily access to counsel to prepare for trial,” Inspector General Michael Horowitz said. Prison officials also didn’t communicate with the legal counsel, relatives and the public and mismanaged two medical issues that happened during the outage, the report said.

liar151213The IG’s report was immediately criticized by some commentators. The MDC warden at the time, Herman Quay, was accused of lying about conditions during the outage to the public, to the media and even to the U.S. Attorney. He has since been promoted and a new warden was installed at MDC.

The Intercept complained that the report “relies heavily on the accounts of the very officials who presided over the crisis, draws minimally from the experiences of the people who endured it, and seems more preoccupied with the episode as a public relations blunder than as a humanitarian disaster. The report does not address the chronic deception in jail officials’ statements during and after the crisis.”

“This report confirms that there have been longstanding management problems at MDC that must be rectified,” said Rep. Nydia Velázquez (D-Brooklyn).

In a response to the investigation, Politico reported, the BOP said it will complete an upgrade to its heating, cooling, and ventilation equipment. It also agreed to begin giving inmates sweat suits and thermal underwear as part of their standard-issue clothing package until all the heating problems are resolved.

DOJ Office of Inspector General, Review and Inspection of Metropolitan Detention Center Brooklyn Facilities Issues and Related Impacts on Inmates (Sept. 26)

Politico, Investigation finds widespread infrastructure, leadership failures at Brooklyn federal jail (Sept. 26)

The Intercept, Inspector General Report Treated Freezing Federal Jail As A PR Blunder Rather Than A Humanitarian Disaster (Sept. 28)

– Thomas L. Root