Case 1:20-cv-01590 Document 1 Filed 03/27/20 Page 1 of 37 PageID #: 1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI by his Next Friend Migdaliz Quinones; and JUSTIN RODRIGUEZ by his Next Friend Jacklyn Romanoff,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 1590
CLASS ACTION PETITION SEEKING WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241

Hassan Chunn, Nehemiah McBride, Ayman Rabadi, and Justin Rodriguez (“Petitioners”), on behalf of themselves and others similarly situated, and by and through their attorneys, Emery Celli Brinckerhoff & Abady LLP, the Cardozo Civil Rights Clinic, and Alexander A. Reinert, allege as follows:
PRELIMINARY STATEMENT 1. New York City is the epicenter of the Country’s struggle with the novel COVID19 virus and resulting coronavirus disease (“COVID-19”). As this disease ravages our City, infecting more than 25,000 and killing over 366 to date, the risks posed by COVID-19 to people confined in jails and prisons—in terms of transmission, exposure, and harm—are stark and alarming. For reasons beyond their control, people in jails and prisons cannot practice social distancing, control their exposure to large groups, practice increased hygiene, wear protective clothing, obtain specific products for cleaning or laundry, avoid high-touch surfaces, or sanitize their own environment. People in jails and prisons are more vulnerable and susceptible to the risks of coronavirus because they are more likely to have chronic underlying health conditions,

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such as diabetes, heart disease, chronic lung and liver diseases, asthma, and lower immune systems from HIV. People have limited opportunities to access medical care under normal circumstances in jails; medical facilities are limited, and as staff become sick, fewer people are present to care for those who remain confined. The outbreak of a highly infectious, deadly virus in a closed detention setting is a disaster, calling for urgent and decisive action to protect the health of those confined in the jail, those who work there, and the medical professionals who will treat those who become infected.
2. Five days ago, a person jailed at the Metropolitan Detention Center (“MDC”) in Brooklyn, New York tested positive for COVID-19, the first coronavirus case of a detainee in the federal prison system. As of March 26, 2020, four people in BOP custody in New York City, including one at the MDC, have tested positive. At least four staff members at the MDC have tested positive, with two staff-member cases reported just today. The coronavirus is spreading in the MDC and federal BOP system, fast.
3. Unfortunately, the Warden of the MDC has failed to respond to the urgent and serious threat to the health of people confined at the MDC. Although the Warden has identified that 537 medically vulnerable individuals are confined in his facility according to CDC guidelines, the Warden has failed to release these most vulnerable individuals. Instead, the facility has acted at a slow pace to respond to requests for emergency compassionate relief and to take other measures appropriate for a public health crisis.
4. Petitioners Hassan Chunn, Nehemiah McBride, Ayman Raybadi, and Justin Rodriguez are four of the 537 individuals confined at the MDC who face an imminent risk of serious injury or death at the MDC if exposed to COVID-19. Petitioners suffer variously from conditions such as chronic heart disease, asthma, high blood pressure, and respiratory problems.
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Because of their pre-existing chronic medical conditions and the nature of the jail environment, Petitioners cannot be adequately protected from contracting COVID-19 if they remain confined in the MDC. Instead, they face a risk of serious illness if they become infected.
5. The MDC has a terrible track record of neglecting individuals with serious health needs under ordinary circumstances. And the MDC is grossly ill-equipped to identify, monitor, and treat a COVID-19 epidemic. The combination of an epidemic striking a facility that houses 1,700 people and the MDC’s inability to provide appropriate medical care under normal circumstances is likely to result in serious illness and death, if people remain confined there at current population levels and under current conditions.
6. According to the The New York Times, cities around the country, including New York, are moving to release hundreds of high-risk individuals from jail to stem the spread of the virus among the incarcerated. Courts in this Circuit and around the country have also ordered the release of incarcerated and detained individuals due to their heightened risk of contracting COVID-19-related serious illnesses. See infra n.21. New York State announced this evening that it is releasing 1,100 people from state prisons who are incarcerated on parole violations.1
7. Petitioners and similarly situated medically vulnerable individuals must be released from the MDC in order to avoid serious harm to their health. Now is the time to act to stop the spread of coronavirus to high-risk and older people confined at the MDC, and to protect them and the broader community from the serious risk to their health and safety.
1 Brendan J. Lyons, NY to release 1,100 parole violators as coronavirus spreads, Times Union (Mar. 27, 2020), https://www.timesunion.com/news/article/Deaths-surge-again-in-New-York-from-coronavirus-15160973.php.
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PARTIES 8. Petitioner Hassan Chunn is a 46-year-old man who currently resides in Kings County, New York. At all times relevant to this Complaint, Mr. Chunn was in the custody of the Federal Bureau of Prisons (“BOP”) at the MDC. 9. Petitioner Nehemiah McBride is a 34-year-old man who currently resides in Kings County, New York. At all times relevant to this Complaint, Mr. McBride was in the custody of BOP at the MDC. 10. Petitioner Ayman Rabadi is a 59-year-old man who currently resides in Kings County, New York. At all times relevant to this Complaint, Mr. Rabadi was in the custody of BOP at the MDC. 11. Petitioner Justin Rodriguez is a 26-year-old man who currently resides in Kings County, New York. At all times relevant to this Complaint, Mr. Rodriguez was in the custody of BOP at the MDC. 12. Derek Edge (“Respondent”) is the Warden at the MDC. As Warden of the MDC, Respondent Edge is responsible for and oversees all day-to-day activity at the MDC. He is responsible for all aspects of the operation and function of the MDC. His responsibilities include ensuring the safety of all in the institution and ensuring the orderly running of the institution. Approximately 1,700 people are detained at the MDC. Respondent Edge is aware of and has adopted and enforced a policy that leaves Petitioners and all those similarly situated exposed to infection, severe illness, and death due to COVID-19. Defendant Edge is the immediate physical custodian responsible for the detention of the Petitioners. He is sued in his official capacity.
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JURISDICTION AND VENUE 13. The Petitioners bring this action pursuant to 28 U.S.C. § 2241 for relief from custody in violation of the Fifth and Eighth Amendments to the U.S. Constitution. 14. The Court has subject matter jurisdiction over this Petition pursuant to Article I, § 9, cl. 2 of the U.S. Constitution (Suspension Clause); the Fifth and the Eighth Amendments to the U.S. Constitution; 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 1651 (All Writs Act); and 28 U.S.C. § 2241 (habeas corpus). In addition, the Court has jurisdiction to grant declaratory and injunctive relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201. 15. Venue is proper in the Eastern District of New York pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events and omissions giving rise to these claims occurred and continue to occur in this district.
EXHAUSTION OF ADMINISTRATIVE REMEDIES 16. Petitioners are all excused from 28 U.S.C. § 2241’s prudential exhaustion requirement. The statutory exhaustion requirement of the Prison Litigation Reform Act does not apply to this action. Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001). In cases brought under 28 U.S.C. § 2241, courts may excuse failure to strictly comply with administrative procedures where good cause is found. Exhaustion can be excused where “‘(1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a party has raised a substantial constitutional question.’” Sanchez v. United States, No. 12 Civ. 01540 (CBA), 2012 WL 5987858, at *1 (E.D.N.Y. Nov. 29, 2012) (quoting Beharry v. Aschcroft, 329 F.3d 51, 62 (2d Cir. 2003). 17. The only process ostensibly available to Petitioners is the BOP’s Administrative Remedy Program (“ARP”), a lengthy process that does not purport to provide the requested
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relief of release to home confinement and that here would have been futile. See Ex. 1, Declaration of Deirdre von Dornum, dated March 27, 2020, ¶¶ 22, 23 (“von Dornum Decl.”). As Deirdre von Dornum explains in her declaration, the Federal Defenders of New York, Inc. (“the Federal Defenders”) has engaged in a weeks-long effort to secure release of vulnerable clients and to advocate for the MDC to take steps to mitigate risk. Id. ¶¶ 3-7, 9-11, 20, 21, 23. The MDC has had ample opportunity to take appropriate action, but has failed to do so. Because the ARP does not provide the requested relief, because engaging in the ARP would have been futile given that seasoned advocates with far greater resources could not secure the requested relief, and because Petitioners are likely to experience irreparable injury while waiting for that process to unfold, they are excused from exhaustion.
STATEMENT OF FACTS I. The Covid-19 Crisis
18. The novel coronavirus that causes COVID-19 has led to a global pandemic.2 As of March 26, 2020, there were more than 500,000 reported COVID-19 cases throughout the world and more than 1,000 deaths in the United States. The number of COVID-19 cases in the United States is expected to grow exponentially. Projections by the Centers for Disease Control and Prevention (“CDC”) indicate that over 200 million people in the United States could be infected with COVID-19 over the course of the epidemic without effective public health intervention, with as many as 1.5 million deaths in the most severe projections.3
2 Betsy McKay et al., Coronavirus Declared Pandemic by World Health Organization, WALL ST. J. (Mar. 11, 2020, 11:59 PM), https://www.wsj.com/articles/u-s-coronavirus-cases-top-1-000-11583917794. 3 Chas Danner, CDC’s Worst-Case Coronavirus Model: 214 Million Infected, 1.7 Million Dead, N.Y. Mag. (Mar. 13, 2020), https://nymag.com/intelligencer/2020/03/cdcs-worst-case-coronavirus-model-210m-infected-1-7mdead.html.
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19. The COVID-19 virus can cause severe damage to lung tissue, sometimes leading to a permanent loss of respiratory capacity, and can damage tissues in other vital organs, including the heart and liver. To date, the virus is known to spread from person to person through respiratory droplets, close personal contact, and from contact with contaminated surfaces and objects.
20. People over the age of fifty face greater chances of serious illness or death from COVID-19. In a February 29, 2020 WHO-China Joint Mission Report, the preliminary mortality rate analyses showed that individuals age 60-69 had an overall 3.6% mortality rate and those 7079 years old had an 8% mortality rate. For individuals age 40-49, the mortality rate was 0.4%, and for individuals 40 years and younger, the mortality rate was as low as 0.2%.4
21. People of any age who suffer from certain underlying medical conditions, including lung disease, heart disease, chronic liver or kidney disease (including hepatitis and dialysis patients), diabetes, epilepsy, hypertension, compromised immune systems (such as from cancer, HIV, or autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic disorders, stroke, developmental delay, and asthma, are at elevated risk as well.5 The WHO-China Joint Mission Report provides that the mortality rate for those with cardiovascular disease was 13.2%, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer.6
4 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://www.worldometers.info/coronavirus/coronavirus-age-sex-demographics/ (data analysis based on WHOChina Joint Mission Report). 5 Coronavirus disease (COVID-19) advice for the public: Myth busters, World Health Organization, https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public/myth-busters (“Older people, and people with pre-existing medical conditions (such as asthma, diabetes, heart disease) appear to be more vulnerable to becoming severely ill with the virus.”). 6 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), at 12, https://www.who.int/docs/default-source/coronaviruse/who-china-joint-mission-on-covid-19final-report.pdf (finding fatality rates for patients with COVID-19 and co-morbid conditions to be: “13.2% for those
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22. In many people, COVID-19 causes fever, cough, and shortness of breath. But for people over the age of fifty or with medical conditions that increase the risk of serious COVID19 infection, shortness of breath can be severe. Most people in higher risk categories who develop serious illness will need advanced support. This level of supportive care requires highly specialized equipment that is in limited supply, and an entire team of care providers, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care physicians.
23. COVID-19 can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases, can cause a permanent loss of respiratory capacity. COVID19 may also target the heart muscle, causing a medical condition called myocarditis, or inflammation of the heart muscle. Myocarditis can affect the heart muscle and electrical system, reducing the heart’s ability to pump. This reduction can lead to rapid or abnormal heart rhythms in the short term, and long-term heart failure that limits exercise tolerance and the ability to work.
24. Emerging evidence also suggests that COVID-19 can trigger an over-response of the immune system, further damaging tissues in a cytokine release syndrome that can result in widespread damage to other organs, including permanent injury to the kidneys and neurologic injury. These complications can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner.
with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer”).
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25. Even some younger and healthier people who contract COVID-19 may require supportive care, which includes supplemental oxygen, positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation.
26. The need for care, including intensive care, and the likelihood of death, is much higher from COVID-19 infection than from influenza. According to recent estimates, the fatality rate of people infected with COVID-19 is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care systems.7 For people in the highest risk populations, the fatality rate of COVID-19 infection is about 15 percent.
27. Patients who do not die from serious cases of COVID-19 may face prolonged recovery periods, including extensive rehabilitation from neurologic damage, loss of digits, and loss of respiratory capacity.
28. There is no vaccine against COVID-19 and there is no known medication to prevent or treat infection from COVID-19. Social distancing, or remaining physically separated from known or potentially infected individuals, and vigilant hygiene, including washing hands with soap and water, are the only known effective measures for protecting vulnerable people from COVID-19. II. Incarcerated People and Staff in New York City Are Particularly Vulnerable
29. New York is currently at the epicenter of the coronavirus pandemic. On March 23, 2020, approximately six percent of confirmed coronavirus cases in the world were in New York State. Governor Cuomo declared a state of emergency in New York State on March 7, 2020. Mayor DeBlasio declared a state of emergency in New York City on March 12, 2020.
7 Betsy McKay, Coronavirus vs. Flu Which Virus is Deadlier, WALL ST. J. (Mar. 10, 2020, 12:49 PM) https://www.wsj.com/articles/coronavirus-vs-flu-which-virus-is-deadlier-11583856879.
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30. As of March 27, 2020, there are 44,745 positive cases in New York State with more than 25,000 of those cases being in New York City. To date, there have been 519 deaths from COVID-19 just in New York, with 366 of those deaths in New York City. Ex. 2, Declaration of Jonathan Giftos, MD, dated March 27, 2020, ¶ 7 (Giftos Decl.”).
31. People in congregate environments, which are places where people live, eat, and sleep in close proximity, face increased danger of contracting COVID-19, as already evidenced by the rapid spread of the virus in cruise ships and nursing homes. People who are confined in prisons, jails, and detention centers will find it virtually impossible to engage in the necessary social distancing and hygiene required to mitigate the risk of transmission, even with the bestlaid plans. The CDC also warns of “community spread” where the virus spreads easily and sustainably within a community where the source of the infection is unknown.
32. On March 20, 2020, Governor Cuomo took the strictest measure yet to fight the virus’s spread, issuing a “stay at home” executive order for all residents. In a statement to the public, Governor Cuomo explained that the order prohibits non-essential gatherings of any size, requires all non-essential businesses to close and 100 percent of their employees to work from home, and recommends that people stay at least six feet away from others. “We know the most effective way to reduce the spread of this virus is through social distancing and density reduction measures,” Governor Cuomo said.8
33. Correctional settings increase the risk of contracting an infectious disease, like COVID-19, due to the high numbers of people with chronic, often untreated, illnesses housed in
8 Governor Cuomo Signs the 'New York State on PAUSE’ Executive Order, New York State (Mar. 20, 2020), https://www.governor.ny.gov/news/governor-cuomo-signs-new-york-state-pause-executive-order.
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a setting with minimal levels of sanitation, limited access to personal hygiene, limited access to medical care, and no possibility of staying at a distance from others. Giftos Decl. ¶ 11.
34. Correctional facilities house large groups of people together, and move people in groups to eat, do recreation, and go to court. They frequently have insufficient medical care for the population, and, in times of crisis, even those medical staff cease coming to the facility. Hot water, soap, and paper towels are frequently in limited supply. Incarcerated people, rather than professional cleaners, are responsible for cleaning the facilities and often are not given appropriate supplies. This means there are more people who are susceptible to getting infected all congregated together in a context in which fighting the spread of an infection is nearly impossible.
35. Outbreaks of the flu regularly occur in jails, and during the H1N1 epidemic in 2009, many jails and prisons dealt with high numbers of cases. Giftos Decl. ¶ 12.
36. For this reason, correctional public health experts have recommended the release from custody of people most vulnerable to COVID-19. Release protects the people with the greatest vulnerability to COVID-19 from transmission of the virus, and also allows for greater risk mitigation for all people held or working in a prison, jail, or detention center. Release of the most vulnerable people from custody also reduces the burden on the region’s health care infrastructure by reducing the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time.
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37. Internationally, governments and jail and prison staff have recognized the threat posed by COVID-19 and released detainees. In Iran, for example, more than 70,000 people were temporarily released from jails to curb the spread of coronavirus.9
38. In the United States, the stimulus package that is on the verge of becoming law as of the time of this filing includes funding for federal prisons to purchase protective gear and test kits for COVID-19 and authorizes the Justice Department to lengthen the maximum amount of time that a prisoner can be placed in home confinement during the pandemic.10
39. On March 23, 2020, a bipartisan group of fourteen U.S. Senators sent a letter to U.S. Attorney General Barr and BOP Director Carvajal to express their “serious concern for the health and wellbeing of federal prison staff and inmates . . . especially those who are most vulnerable to infection.” The Senators wrote that they reviewed the BOP’s COVID-19 Action Plan, noting that it did not include any measures to protect the most vulnerable staff and inmates. The Senators urged DOJ and BOP to release to home confinement certain individuals who were elderly, ill, or incarcerated for non-violent offenses and are near release.
40. On March 26, 2020, Attorney General William Barr sent a memo to the Director of BOP “directing [him] to prioritize the use of [his] various statutory authorities to grant home confinement for inmates seeking transfer in connection with the COVID-19 pandemic.” The Attorney General specifically recognized that “there are some at-risk inmates who are non-
9 Iran Temporarily Releases 70,000 Prisoners as Coronavirus Cases Surge, Reuters (Mar. 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases-70000-prisoners-ascoronavirus-cases-surge-idUSKBN20W1E5. 10 Todd Ruger, Prisons and Courts Get Coronavirus Help in Senate Relief Bill, Roll Call (Mar. 25, 2020, 2:21PM) https://www.rollcall.com/2020/03/25/prisons-and-courts-get-coronavirus-help-in-senate-relief-bill/.
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violent and pose minimal likelihood of recidivism and who might be safer serving their sentences
in home confinement rather than BOP facilities.”11
41. Senator Dick Durbin has called on the federal government to take action to
protect staff and people detained in federal prisons. “Federal prisons will inevitably be a hotspot
for the spread of coronavirus, especially among vulnerable staff and inmates,” Durbin said. “It is
imperative for BOP to take immediate action to protect staff and inmates at federal prisons
throughout the country and ensure that facilities are prepared to address this threat.”12
42. Some jurisdictions, including Los Angeles and Chicago, have already taken steps
to protect people in custody from the impending spread of COVID-19 by releasing people in an
effort to reduce populations.13
43. In New York City, public officials, the jail oversight board, and even doctors
working at Rikers Island have acknowledged that the City’s jails are simply unsafe and releasing
people is the only humane option.14 See Statement of New York City Board of Correction,
11 Memo from Attorney General to Director of Bureau of Prisons, March 26, 2020, https://www.politico.com/f/?id=00000171-1826-d4a1-ad77-fda671420000. 12 Durbin Discusses Coronavirus Threat At Federal Prisons With Council Of Prison Locals, Dick Durbin United States Senator Illinois (Mar. 24, 2020), https://www.durbin.senate.gov/newsroom/press-releases/durbin-discussescoronavirus-threat-at-federal-prisons-with-council-of-prison-locals. 13 Thirty-one district attorneys from around the country put out a joint statement calling for a reduction in jail populations. Jurisdictions in California, Illinois, and Ohio have already released people from jail, and officials in Louisiana, Oregon, Pennsylvania, and Virginia have made announcements that they will begin releasing people soon. Other cities are putting plans in place to do the same. See, e.g. Allen Kim, Cities in the US Move to Lower Inmate Populations as Coronavirus Fears Grow, CNN (Mar. 16, 2020), https://www.cnn.com/2020/03/16/us/inmates-released-jail-coronavirus-trnd/index.html; Megan Cassidy, Coronavirus: San Francisco, Contra Costa Prosecutors Join National Call for Jail Releases, San Francisco Chronicle (Mar. 17, 2020) https://www.sfchronicle.com/crime/article/Coronavirus-San-Francisco-Contra-Costa15137291.php. 14 See Ross MacDonald (@RossMacDonaldMD), Twitter (March 18, 9:51 p.m.) https://twitter.com/RossMacDonaldMD/status/1240455796946800641 (Dr. MacDonald is the Chief Medical Officer for Correctional Health Services (“CHS”), which provides healthcare to New York City’s Department of Corrections); Rachel Bedard, (@rachelbedard), Twitter (March 18, 8:34 a.m.) https://twitter.com/rachaelbedard/status/1240255196644741120 (Dr. Bedard is the Director of Geriatrics and Complex Care for CHS); Jonathan Giftos (@JonGiftosMD), Twitter (March 18, 10:37 p.m.)
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March 17, 2020 (calling on the City to release people from criminal custody, prioritizing people over 50, those with underlying health conditions, detained for administrative reasons, and those who have been convicted and sentenced to one year or less).15 On March 20, 2020, Dr. Robert Cohen, a member of New York City’s Board of Correction, said, “The most important thing we can do right now is discharge all of the people who are old and have serious medical issues — those people are likely to die from a coronavirus infection.”16
44. Several doctors working in New York City’s jails have echoed the calls to release vulnerable people. Dr. Rachael Bedard, senior director of the geriatrics and complex care service at Rikers Island, has described depopulation as “[t] he only meaningful public health intervention.”17 In correctional facilities, “if you think about how many excess human contacts [there are], even compared to something like a shelter setting, you can imagine why viral spread in this environment is extra dangerous.”
45. Incarcerated people in New York City have already begun to test positive for COVID-19. Among the 5,200 people incarcerated by the New York City Department of Correction, seventy-five people in city custody have tested positive for coronavirus. This is a higher rate of infection than seen outside of detention facilities.
https://twitter.com/JonGiftosMD/status/1240467288198873088 (until January 2020, Dr. Giftos was the Clinical Director of Substance Use Treatment for CHS). 15 New York City Board of Correction Calls for the City to Begin Releasing People from Jail as Part of Public Health Response to COVID-19 (Mar. 17, 2020), https://www1.nyc.gov/assets/boc/downloads/pdf/News/2020.03.17%20%20Board%20of%20Correction%20Statement%20re%20Release.pdf 16 Jen Ransom and Alan Feuer, ‘A Storm Is Coming’: Fears of an Inmate Epidemic as the Virus Spreads in the Jails, N.Y. Times (March 20, 2020), https://www.nytimes.com/2020/03/20/nyregion/nyc-coronavirus-rikers-island.html. 17 Jennifer Gonnerman, A Rikers Island Doctor Speaks Out to Save Her Elderly Patients From the Coronavirus, New Yorker (Mar. 20, 2020), https://www.newyorker.com/news/news-desk/a-rikers-island-doctor-speaks-out-tosave-her-elderly-patients-from-the-coronavirus.
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46. As of March 26, 2020, four people in BOP custody in New York City, including one at the MDC, have tested positive.18 And the virus is spreading like wildfire across the population held on Rikers Island. Giftos Decl. ¶ 15.
47. Numerous people working in the criminal justice system have also tested positive, increasing the likelihood of exposure to and by incarcerated people: a security officer and an agent in the U.S. Attorney’s Office, SDNY; an NYC Department of Corrections investigator (who has since died from COVID-19)19; a lawyer with an office in Midtown Manhattan (and his wife and son)20; a healthcare worker in Manhattan; an attorney and legal intern in local New York State courts; and an attorney at the Brooklyn Supreme Court.21
48. Just this week, New York City pledged to release approximately 300 nonviolent inmates from Rikers Island. The Mayor intends to release people held on Rikers who are over 70 years-old or who have preexisting conditions that place them at heightened risk from the virus.22
18 Covid-19 Coronavirus, Federal Bureau of Prisons, https://www.bop.gov/coronavirus/ (last accessed March 27, 2020). 19 Aliza Chasan, NYC Corrections Officer Dies of Coronavirus, Pix11, https://www.pix11.com/news/coronavirus/nyc-correction-officer-dies-of-coronavirus. 20 Midtown Lawyer, Family and Friends Test Positive, NBC New York (March 4, 2020), https://www.nbcnewyork.com/news/local/nyc-attorneyin-critical-condition-city-works-to-trace-movements-awaitsmore-tests/2311723/. 21 Information about Coronavirus and New York State Courts, https://www.nycourts.gov/whatsnew/covid.shtml; see also Two People with Coronavirus were in Manhattan and Brooklyn Courts, https://twnews.us/us-news/two-people-with-coronavirus-were-inmanhattanbrooklyn-courts. 22 Noah Higgins-Dunn, Coronavirus: New York City to Release 300 Nonviolent Inmates from Rikers Island, CNBC (Mar. 24, 2020, 7:25PM) https://www.cnbc.com/2020/03/24/coronavirus-new-york-city-to-release-300-nonviolentinmates-from-rikers-island.html.
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49. Over the last several days, judges in this circuit and across the country have
granted habeas petitions and ordered the release of persons who are incarcerated or being
detained.23
50. On March 27, 2020, Governor Cuomo announced that the State of New York is
immediately releasing 1,000 individuals confined on parole violations in state prisons and jails to
supervised release in the community in order to stem the spread of coronavirus among
incarcerated people.
51. Nonetheless, BOP continues to transfer people from facility to facility, ignoring
the pleas of government officials and public health experts, and increasing the likelihood that the
virus will be transmitted within the incarcerated population.24
23 See Coronel, et al., v. Decker et al., 20 Civ. 2472 (AJN) (S.D.N.Y. Mar. 27, 2020) (granting release of four petitioners with medical conditions that render them particularly vulnerable to severe illness or death if infected by COVID-19 from immigration detention); Basank et al. v. Decker et al., 20 Civ. 2518 (AT) (S.D.N.Y. Mar. 26, 2020) (granting release of ten petitioners who “suffer[] from chronic medical conditions, and face[] an imminent risk of death or serious injury in immigration detention if exposed to COVID-19” from immigration detention); U.S. v. Stephens, 15 Cr. 95 (AJN), 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020) (granting motion for reconsideration of defendant’s bail conditions and releasing him from jail to home confinement, recognizing inmates may be at a heightened risk of contracting COVID-19); Umana Jovel v. Decker et al., 20 Civ. 308 (GBD)(SN) (S.D.N.Y. Mar. 26, 2020) (granting emergency request for release of petitioner from immigration detention in light of the COVID19 crisis); People ex rel. Stoughton on behalf of Little et al. v. Brann, Index No. 260154/2020 (Sup Ct, Bronx County Mar. 25, 2020) (releasing 106 individuals held at Rikers Island jail on parole violations who are particularly vulnerable to illness or death if infected by COVID-19); People ex rel. Stoughton on behalf of Hogan et al. v. Brann, (Sup Ct, NY County Mar. 27, 2020) (releasing 16 individuals held at Rikers Island jail on pre-trial detention who were particularly vulnerable to illness or death due to COVID-19); Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir. Mar. 24, 2020) (ordering, sua sponte, that petitioner be immediately released from immigration detention “[i]n light of the rapidly escalating public health crisis” related to COVID-19); USA v. Garlock., No. 18 Cr 00418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (ordering, sua sponte, extension of convicted defendant’s surrender date and noting “[b]y now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided”); Castillo et al. v. Barr, 20 Civ. 605 (C.D. Cal. Mar. 27, 2020) (ordering petitioners be released from immigration detention in light of COVID-19 and noting “the risk of infection in immigration detention facilities – and jails – is particularly high”); U.S.A.v. Matthaei, 19 Civ. 243 (D. Idaho Mar. 16, 2020) (granting convicted defendant additional time to self-surrender to prison in light of defendant’s health problems, which place him at greater risk of complications of COVID-19); Jimenez et al. . Wolf et al., 18 cv 10225 (D. Mass. Mar. 26, 2020) (ordering release of petitioner from immigration detention due to COVID-19 concerns); In re Request to Commute or Suspend County Jail Sentences, Dkt. No. 084230 (N.J. Mar. 22, 2020) (ordering, based on the dangers posed by COVID-19, release of any inmate in New Jersey serving a county jail sentence as a condition of probation or as a result of a municipal court conviction). 24 Luke Barr, Despite Coronavirus Warnings, Federal Bureau of Prisons Still Transferring Inmates: Sources, ABC News (Mar. 23, 2020, 1:22PM) https://abcnews.go.com/Health/warnings-bureau-prisons-transporting-inmatessources/story?id=69747416.
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III. MDC is Failing to Take Proper Precautions, Placing People at an Increased Risk 52. The conditions at the MDC pose a heightened public health risk for the spread of
COVID-19 that is even greater than in non-carceral institutions. People live and work in close quarters and cannot achieve the “social distancing” needed to effectively prevent the spread of COVID-19. They may be unable to maintain the recommended distance of 6.5 feet from others, and may share or touch objects used by others. Toilets, sinks, and showers are shared, without disinfection between each use. Food preparation and service is communal with little opportunity for surface disinfection. Staff arrive and leave on a shift basis, and there is limited ability to adequately screen staff for new, asymptomatic infection.
53. Since March 4, 2020, the Federal Defenders has engaged in extensive efforts to get the MDC to address the risks associated with the spread of COVID-19 at the MDC, to little avail. von Dornum Decl. ¶ 3-7, 9-11, 20, 21, 23.
54. The Federal Defenders initially requested that the BOP put in place the following measures at the MDC:
a. Make public the MDC’s plans and policies for preventing a coronavirus outbreak and responding to detained people who contract coronavirus;
b. Put in place a comprehensive testing protocol for incarcerated people and staff;
c. Increase sanitation and hygiene in the facility, including increased cleaning of the housing units and making soap and tissues freely available to incarcerated people;
d. Provide for isolating anyone who tests positive for the coronavirus at a hospital or other medical facility, not at the jail;
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e. Ensure that the jail is not locked down to social and legal visitors in response to the epidemic sot that lawyers and family members can have continued access to their clients and loved ones;
f. Coordinate with the Courts and U.S. Attorneys’ Offices in advance to ensure that only in extraordinary circumstances should any new arrestee be detained at the jails during the epidemic, and no one should be admitted without testing. von Dornum Decl. ¶ 4.
55. On March 11, 2020, for the first time, MDC officials responded to these concerns, when, at the request of the Chief Judge of the Eastern District of New York, Attorney Holly Pratesi and Associate Warden Andy Cruz attended a special meeting of the EDNY Facilities Security Committee focused on coronavirus issues. At that meeting Associate Warden Cruz indicated that the MDC was still receiving guidance from national BOP leadership as to how to handle the coronavirus epidemic. In response to specific questions, Associate Warden Cruz stated:
a. the facility could not make public its plans or protocols for coronavirus because of security considerations;
b. there was no testing protocol in place, except for the temperature readings of those people being brought to court (by order of the Chief Judge) and the facility did not anticipate having a testing protocol;
c. Staff were being asked to self-report if they had traveled to what were then the designated hotspot countries or had been exposed to someone known to have coronavirus;
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d. It was unclear if staff who presented with risk factors and were sent home

would be on paid or unpaid leave, because that is a national BOP decision;

e. the MDC had placed soap in the lobby bathroom for visitors, intended to

provide a bar of soap to each inmate and to ask the inmate orderlies to

increase cleaning, but could not provide hand sanitizer to inmates, and

neither staff nor visitors would be allowed to bring in hand sanitizer;

f. the MDC did not yet know where any incarcerated person who tested

positive would be placed;

g. the MDC did not believe it would be feasible to use the empty floors in the

East (or “old”) building of the MDC to house people who were

symptomatic or who tested positive;

h. the MDC did not intend to do a lockdown on social or legal visitation;

i.

the MDC would continue to accept new arrests;

j.

the MDC would screen new arrests for symptoms of COVID-19 and

would ask newly arriving inmates if they had traveled recently outside the

United States;

k. the MDC had no plans to move vulnerable inmates but would make an

effort to identify which inmates fell under the CDC’s definition of

vulnerable. Id. ¶ 6.

56. On March 13, 2020, the MDC cancelled all legal and social visitation for the next

thirty days. Id. ¶ 8.

57. Beginning on March 14, 2020 and continuing through March 19, 2020, Federal

Defenders spoke to over a hundred clients by telephone. The clients uniformly observed that:

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a. there had been no change in sanitation practices at the facility;

b. only some of the units had received the bars of soap;

c. education on the symptoms of COVID-19 or how to curb its spread is

limited to posters on the walls and a 10-minute presentation on each unit

to large groups of inmates that consisted of reading from a CDC pamphlet

that largely advised to “Stay at home” and “Avoid gatherings”;

d. no doctors came to the units to check on anyone;

e.

inmates understand that staff are being given temperature checks as they

entered the facility, but staff on the unit were not wearing gloves, masks,

or other protective gear in the facility. Id. ¶ 9.

58. The MDC lacks adequate medical infrastructure to address the spread of

infectious disease and treat the people most vulnerable to COVID-19.

59. Approximately 1,700 people are held at the MDC. The Warden of the MDC has

identified 537 of these individuals as falling into the high-risk groups identified by the CDC. Id.

¶ 11(a).

60. New people arrive at the MDC from all over the world each week. These new

arrivals are screened only for fever and recent travel to designated hotspot countries.

61. Correctional officers who live in New York, New Jersey, and Pennsylvania come

in and out of the facility each day without sufficient medical screening. Staff being screened only

for elevated temperatures as they entered the facility and sent home if they had a temperature

over 100.4 degrees Fahrenheit based on a temporal thermometer. Id. ¶ 11(e).

62. Significantly, in a March 18, 2020 CDC report, an epidemiological investigation

revealed that coronavirus-infected staff members contributed to the outbreak in a nursing home

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facility with ineffective infection control and prevention and staff members working in multiple facilities. IV. MDC Has Failed to React to Tests Confirming the Virus Is Within Its Walls
63. On March 21, 2020, the Federal Defenders learned that an inmate at the MDC had tested positive for COVID-19. Id. ¶ 12.
64. The inmate who tested positive had been housed on the “intake” unit on the 4th floor of the institution for approximately one week before testing positive. Id. ¶ 13. At the time the inmate was admitted to the institution he had been asymptomatic; he developed symptoms within three days of his admission. Id.
65. Between the time the inmate was admitted to the MDC and when he tested positive for COVID-19, he was in contact with many inmates and staff on the intake unit. Id. New inmates from other institutions who are in transit to their designated facilities were added to the intake unit on March 20, 2020, the day before the inmate on that unit tested positive. Id. Inmates from the intake unit, who would have been exposed to the positive inmate, were subsequently transferred into other units within the facility. Id.
66. Others who were housed on the unit with the individual who was recently diagnosed with coronavirus are now themselves showing symptoms, according to a person confined on that unit.
67. People housed in the MDC are terrified and panicked. Some are placing socks over the phone when they call family members to prevent infection from the phones, which are not sanitized or cleaned.
68. No professional or staff cleaners sanitized the intake unit where the inmate who tested positive had been housed, but, instead the inmate orderlies on the adjacent unit were sent
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to clean the intake unit with the same cleaning supplies they regularly use and were provided insufficient gloves and masks. Id.
69. Staff is providing people with industrial hand soap in diluted form to “clean” their own cells.
70. Since, inmates have been directed by executive staff to report other inmates who they believed might be symptomatic, but, inmates were fearful of reporting their own or others’ symptoms because they had heard that if you were symptomatic you would be placed in “the box.” Id.
71. Federal Defenders has not been informed how many inmates are symptomatic, quarantined or isolated, in addition to the inmate who tested positive. Id. ¶ 14.
72. As of March 27, 2020, the Federal Defenders have learned that four staff members at the MDC have tested positive and a number of others are symptomatic.
73. Despite the arrival of COVID-19 at the MDC, the MDC continues to implement practices that put inmates and staff at risk of contracting COVID-19. For example:
a. Female inmates continue to be asked to launder all inmate uniforms, including from the intake unit, where the inmate tested positive. Id. ¶ 16(a).
b. The phones and computers on the units are not being cleaned. Id. ¶ 16(c). c. At mealtime, the inmates are directed to line up shoulder to shoulder. Id. ¶
16(d). d. Inmates at the MDC are housed either in small two-man cells (designed to
hold a single inmate) with a single shared toilet and sink or in large open dormitory units housing up to 70 inmates with shared toilets and sinks and
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sharing a large sleeping space and beds spaced only 3 to 5 feet apart. Id. ¶

26. Windows in the units do not open. Inmates cannot go outside.

e. No hand sanitizer is available to inmates at the MDC.

f. Tissues are not readily available. Inmates use toilet paper to blow their

noses. Each inmate is provided only one roll of toilet paper per week.

g. Each inmate is given one small bar of soap a week, at most. Some units at

the MDC have received no soap since the lockdown of the facility began

on March 13, 2020. Access to additional soap is limited to those inmates

who have sufficient commissary funds to purchase it, and dependent on

the commissary being open; it is routinely closed during lockdowns.

h. Inmates prepare all inmate meals. Meal preparation, with the exception of

kosher and halal meals, is performed in a single kitchen.

i.

Inmates eat meals in large groups.

j.

Inmates are responsible for sanitizing the housing unit common areas, and

frequently lack adequate cleaning supplies to do so.

74. Inmates have not been informed of the symptoms of COVID-19, or of how to

prevent the spread of the infection except through posters on the walls of the units and general

exhortations (delivered in groups) to wash their hands and practice social distancing. Id. ¶ 35.

75. Inmates who are at lower risk of becoming seriously ill from the virus are not

separated from those who are at higher risk (because of age and/or pre-existing medical

conditions). Instead, they are mixed together in small two-man cells and locked together in those

cells for at least 10 out of every 24 hours.

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76. As of March 26, no doctors have come to the units. Medical only visit inmates if the inmates volunteer that they have symptoms. Id. ¶ 16(b).
77. The facility has not informed the inmate population of what the protocol will be for symptomatic inmates; absent a transparent protocol, inmates in correctional settings often fear they will be confined in solitary if they volunteer that they are symptomatic. V. MDC is Not Prepared to Treat to Individuals Who Contract Coronavirus
78. Inmates who do contract COVID-19 are at higher risk for developing acute symptoms than if they were in the community, because the MDC lacks the medical resources to care for symptomatic inmates. 79. Now that COVID-19 is inside the facility, the MDC will be unable to stop the spread of the virus throughout the facility given long-documented inadequacies in BOP’s medical care and in light of how these facilities function. Giftos Decl. ¶ 14.
80. There is no separate medical unit or facility for ill inmates. Unlike many Federal Correctional Institutions and even Rikers’ Island, the MDC has no physical space in which an ill inmate can convalesce that is separate from other inmates, warm, clean and has access to fresh water and regular hand-washing. von Dornum Decl.¶ 41.
81. As of March 20, 2020, MDC had only 9 nasal swab COVID-19 test kits and only one inmate had been tested at the facility. Id. ¶ 11. MDC currently has no ventilators and cannot intubate inmates on-site. Id. ¶¶ 39, 40. MDC does not have any specialized equipment or medical providers. Id. ¶ 42.
82. There are only three doctors available at MDC to care for all 1,700 inmates. Id. Even this highly limited number is likely to decrease as doctors themselves go into quarantine. None of these doctors specialize in infectious diseases.
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83. People who contract COVID-19 can deteriorate rapidly, even before a test result can be received. They need constant monitoring. Most people in the higher risk categories will require more advanced support: positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation. Such care requires specialized equipment in limited supply as well as an entire team of specialized care providers. MDC does not have that specialized equipment or specialized providers.
84. MDC is already short-staffed.25 Now that three staff members have tested positive and several more are symptomatic, correctional officers are understandably hesitant to come to work. This staffing shortage will only increase as employees need to stay home to care for children whose schools are closed, elderly family members, and other personal health situations. With fewer staff, correctional officers are less able to monitor inmates’ health. Giftos Decl. ¶ 18. VI. Petitioners Are Particularly Vulnerable
85. Petitioners in this case are individuals who are particularly vulnerable to serious illness or death if infected by COVID-19 who are currently detained at MDC.
86. Hassan Chunn. Mr. Chunn is 46 years old. Mr. Chunn has been incarcerated for approximately three years. He is due to be released on April 18, 2020. Mr. Chunn has been diagnosed with Coronary Heart Disease. As of 2005, he was diagnosed with chronic heart failure. He has two stents in his heart. He is pre-diabetic. He also suffers from high blood pressure, seizures, hypertension and high cholesterol. During his incarceration at MDC, he has been hospitalized on at least two occasions at outside hospitals for extreme high blood pressure.
25 “Review and Inspection of Metropolitan Detention Center Brooklyn Facilities Issues and Related Impact on Inmates,” OIG Report (Sept. 2019).
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He takes a number of medications including Plavix, Losapril, Norvax, and Lipitor. Mr. Chunn is critically vulnerable to COVID-19 because of his significant health problems.
87. Nehemiah McBride. Mr. McBride is 34 years old. Mr. McBride has been incarcerated since December 17, 2019, and subsequently was sentenced to 4 months’ incarceration. He is due to be released on April 16, 2020. Mr. McBride has been diagnosed with asthma, which is severe, and he suffers from respiratory problems. Mr. McBride is currently experiencing breathing problems and wheezing. Mr. McBride is critically vulnerable to COVID19 because of his significant health problems.
88. Ayman Rabadi. Mr. Rabadi is 59 years old. Mr. Rabadi has been incarcerated for approximately 1 year, after being sentenced to 24 months for a wire fraud-related conviction of which he has served approximately 14 months. Mr. Rabadi has been diagnosed with a serious heart condition, anxiety and diabetes. Mr. Rabadi suffered a heart attack approximately six years ago, and thereafter he had several stents placed in his heart. He has a tumor on one of his kidneys which is being monitored via ultrasound. He takes medication for high blood pressure, cholesterol, and blood thinners. He also suffers from severe anxiety and depression. Mr. Rabadi is critically vulnerable to COVID-19 because of his significant health problems.
89. Justin Rodriguez. Mr. Rodriguez is 26 years old. Mr. Rodriguez is scheduled to be released on June 9, 2020. Mr. Rodriguez suffers from asthma. Mr. Rodriguez is critically vulnerable to COVID-19 because of his significant health problems. Mr. Rodriguez requested an inhaler from BOP staff but as of this filing has not received one.
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LEGAL ALLEGATIONS I. Section 2241 is an Appropriate Vehicle to Address Unconstitutional Conditions of
Confinement 90. Section 2241(c)(3) authorizes courts to grant habeas corpus relief where a person is “in custody in violation of the United States.” The Second Circuit has “long interpreted § 2241 as applying to challenges to the execution of a federal sentence, including such matters as . . . prison conditions.” Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (internal quotation marks omitted). This includes challenges to detention where conditions pose a threat to Petitioners’ medical wellbeing. See Roba v. United States, 604 F.2d 215, 218–19 (2d Cir. 1979) (approving the use of Section 2241 to challenge a prisoner’s transfer where that transfer created a risk of fatal heart failure). 91. The Second Circuit’s decision in Roba is instructive. In that case, Petitioner alleged that an imminent transfer from New York to face charges in California would create a substantial risk of death because of his precarious heart condition. The Second Circuit held that there was Section 2241 jurisdiction to challenge his contemplated transfer, where such custody would threaten his life, citing Estelle v. Gamble, the Supreme Court’s seminal case establishing the Eighth Amendment’s deliberate indifference standard. 604 F.2d at 218–19. Critically, the court held that habeas jurisdiction was appropriate even though the transfer, and hence custody, was imminent: “Petitioner need not wait until the marshals physically lay hands on him; he is entitled now to challenge the allegedly unlawful conditions of his imminent custody.” Id. at 219. 92. In this case, the unconstitutional threat to Petitioners’ health and life posed by being held in Respondent’s custody is ongoing, not simply imminent. Every hour that Petitioners are held in the MDC, they are at a significantly elevated risk of contracting coronavirus, and because of their age and/or medical conditions, their risk of dying from coronavirus is
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significant. For similar reasons, Judge Analisa Torres recently ordered the release of several individuals from federal immigration detention. See Memorandum and Order, Basank et al. v. Decker, et al., No. 20 Civ. 2518 (S.D.N.Y. March 26, 2020) (ECF No. 11).
II. Respondent Edge’s Failure to Take Steps to Mitigate Transmission of Coronavirus Constitutes Deliberate Indifference to the Serious Medical Needs of Plaintiffs 93. Respondent is violating Petitioners’ Fifth and Eighth Amendment rights by
continuing to incarcerate them in conditions where it is virtually impossible to take steps to prevent transmission of an infectious disease that will prove deadly because of Petitioners’ vulnerable condition.
94. All people held in the MDC, whether convicted or not, are entitled to be protected from condition of confinement that create a serious risk to health or safety, including through release from custody when necessary. Brown v. Plata, 563 U.S. 493, 531-32 (2011) (upholding lower court’s order releasing people from state prison even though release was based on prospect of future harm caused by prison overcrowding); see also Farmer v. Brennan, 511 U.S. 825, 834 (correctional official violates Eighth Amendment by consciously failing to prevent “a substantial risk of serious harm”); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“deliberate indifference” to serious medical needs violate the Eighth Amendment).26 The risk of exposure to a deadly infectious disease such as COVID-19 constitutes a serious risk to health, particularly for the Petitioners and the vulnerable class members described herein. Helling v. McKinney, 509 U.S. 25, 34 (1993) (noting with approval Eighth Amendment claims based on exposure to serious
26 Named Petitioners are convicted and therefore their treatment is governed by the Eighth Amendment. Class members who are detained for pretrial purposes, however, are protected from deliberate indifference by the Fifth Amendment. Although pretrial class members may be entitled to even greater protection from unsafe conditions than convicted class members, Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”), for present purposes the distinction is immaterial because Respondent’s continued detention of the class plainly violates the Eighth Amendment.
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contagious diseases). Under the MDC’s current conditions, Respondent has not and cannot protect Petitioners and the class from this risk of serious harm. In these circumstances, release is the only means of protecting Petitioners and the class they seek to represent from unconstitutional treatment.
95. Government officials act with deliberate indifference when they “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” even when “the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33. This Court need not “await a tragic event” to find that Respondent is maintaining unconstitutional conditions of confinement. Id. Instead, showing that the conditions of confinement “pose an unreasonable risk of serious damage to [Petitioners’] future health” is sufficient. Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (quoting Helling, 509 U.S. at 35) (alteration omitted); see also Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012) (incarcerated people “may not be exposed to conditions that pose an unreasonable risk of serious damage to [their] future health.”) (citation and internal quotation marks omitted).
96. The reach of the Fifth and Eighth Amendments includes “exposure of inmates to a serious, communicable disease.” Helling, 509 U.S. at 33; see also Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an affirmative obligation to protect [forcibly confined] inmates from infectious disease”).
97. In this case, as established by the facts above, Petitioners face a significant risk of exposure to coronavirus, with the attendant risk of death that follows given their vulnerable conditions. Respondent is well aware of this risk, having been alerted to it by the CDC, the Attorney General, and advocates such as the Federal Defenders. Indeed, only last week the Second Circuit Court of Appeals, unprompted, acknowledged the “grave and enduring” risk
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posed by COVID-19 in the correctional context. Fed. Defs. of New York, Inc. v. Fed. Bureau of Prisons, No. 19-1778, __ F.3d __, 2020 WL 1320886, at *12 (2d Cir. Mar. 20, 2020); see also Jovel v. Decker, No. 20 Civ. 308, 2020 WL 1467397, at *1 (S.D.N.Y. Mar. 26, 2020) (finding “extraordinary circumstances” of COVID-19 pandemic justified release of immigration detainee from federal detention); United States v. Little, No. 20 Cr. 57, 2020 WL 1439979, at *4 (S.D.N.Y. Mar. 24, 2020) (“As additional people are arrested who have been out in the community as the coronavirus spreads, if they are not symptomatic, they will be brought into the MCC and MDC, and held with the existing population, potentially bringing COVID-19 into this population held in large numbers, close quarters, and low sanitary conditions.”)
98. Finally, as established above, Respondent has not taken steps sufficient to protect Petitioners from the grave risks that are present every moment they are in detention in the MDC. Respondent simply is not capable of managing the risk to Petitioners in the MDC’s current environment. Whether judged under the Fifth or Eighth Amendment, Respondent is holding Petitioners in violation of the Constitution by detaining them in the face of significant threats to their health and safety without taking sufficient steps to prevent that harm. III. Next Friends Have Standing to Assert the Interests of Real Parties In Interest
99. Migdaliz Quinones is the life partner of Petitioner Ayman Rabadi and brings this action on his behalf to seek his release from custody. Ms. Quinones and Mr. Rabadi have known each other for 36 years.
100. Jacklyn Romanoff is the mother of Justin Rodriguez. 101. In the habeas context, a “next friend” may assert the interest of an incarcerated person so long as they have a sufficient personal connection to the real-party-in-interest and there are barriers that prevent the real-party-in-interest from asserting his rights directly. In Whitmore
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v. Arkansas, 495 U.S. 149 (1990), the Supreme Court recognized that “next friend” standing “has long been an accepted basis for jurisdiction in certain circumstances,” usually “on behalf of detained prisoners who are unable, usually because of mental incompetence or inaccessibility, to seek relief themselves.” Id. at 162.
102. The requirement of inaccessibility is met here, where Petitioners Rabadi and Rodriguez cannot easily communicate with counsel because of the current lockdown at the MDC. See Warren v. Cardwell, 621 F.2d 319, 321 n.1 (9th Cir. 1980) (finding next friend standing met where petitioner “could not sign and verify the petition because the prison was locked down”) (internal quotation marks omitted); cf. Padilla v. Rumsfeld, 352 F.3d 695, 703 (2d Cir. 2003), rev'd and remanded on other grounds, 542 U.S. 426, 124 S. Ct. 2711, 159 L. Ed. 2d 513 (2004) (holding that inaccessibility can be established when the petitioner is being held “incommunicado”).
103. The requirement of a close personal relationship is met here as well. See Smith ex rel. Missouri Public Defender Comm’n v. Armontrout, 812 F.2d 1050, 1053 (8th Cir.1987) (sufficiency of brothers' relationship for “next friend” standing undisputed); Hays v. Murphy, 663 F.2d 1004, 1009 (10th Cir.1981) (no dispute that defendant's mother proper party to seek “next friend” action); see also Padilla, 352 F.3d at 703-04 (finding that attorney who had represented petitioner could serve as next friend).
CLASS ACTION ALLEGATIONS 104. Petitioners bring this representative habeas action pursuant to 28 U.S.C. § 2241 and, alternatively, as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on their own behalf and on behalf of all persons similarly situated. 105. Petitioners seek to represent a class consisting of all current and future detainees in custody at the MDC during the course of the COVID-19 pandemic (the “Class”).
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106. The members of the Class are too numerous to be joined in one action, and their joinder is impracticable. Upon information and belief, the class exceeds 1,700 individuals.
107. Common questions of law and fact exist as to all Class members and predominate over questions that affect only the individual members. These common questions of fact and law include but are not limited to: (1) whether the conditions of confinement described in this Petition amounts to Constitutional violations; (2) what measures Respondent took in response to the COVID-19 Crisis; (3) whether Respondent implemented an adequate emergency plan during the COVID-19 Crisis; (4) whether Respondent’s practices during the COVID-19 Crisis exposed people at the MDC to a substantial risk of serious harm; (5) whether the Respondent knew of and disregarded a substantial risk of serious harm to the safety and health of the Class; and (7) what relief should be awarded to redress the harms threatened to members of the Class as a result of the conditions.
108. Absent class certification, individuals detained at the MDC during the COVID-19 pandemic would face a series of barriers in accessing the relief sought. The MDC has suspended visitation and MDC detainees have limited access to communication with the outside world, impeding their ability to obtain legal representation and pursue litigation. A large portion of the Class has limited educational backgrounds. And a significant percent of them suffer from physical or mental impairments.
109. Respondent’s practices and the claims alleged in this Petition are common to all members of the Class.
110. The claims of Petitioners are typical of those of the Class. Petitioners are threatened with imminent inhumane conditions of confinement at the MDC.
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111. The legal theories on which Petitioners rely are the same or similar to those on which all Class members would rely, and the harms suffered by them are typical of those suffered by all the other Class members.
112. Petitioners will fairly and adequately protect the interests of the Class. The interests of the Class representatives are consistent with those of the Class members. In addition, counsel for Petitioners are experienced in class action and civil rights litigation.
113. Counsel for Petitioners know of no conflicts of interest among Class members or between the attorneys and Class members that would affect this litigation.
114. Use of the class action mechanism here is superior to other available methods for the fair and efficient adjudication of the claims and will prevent the imposition of undue financial, administrative, and procedural burdens on the parties and on this Court, which individual litigation of these claims would impose.
115. This class action is superior to any other method for the fair and efficient adjudication of this legal dispute, as joinder of all Class members is impracticable.
116. There will be no extraordinary difficulty in the management of this class action. FIRST CAUSE OF ACTION
(Declaratory and Injunctive Relief for Violation of the Fifth and Eighth Amendments) 117. Petitioners incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 118. Petitioners bring this claim on their own behalf and on behalf of the Class. 119. The Due Process Clauses guarantees pretrial detainees the right to be detained in a safe situation, free from punitive conditions of confinement. See U.S. Const. Amend V. The government violates that guarantee where a widespread outbreak of a contagious disease subjects detainees to inhumane conditions without adequate protection.
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120. The Eighth Amendment guarantees post-conviction detainees the right to necessary and adequate medical care. See U.S. Const. Amend VIII. The Government’s failure to provide adequate medical care in response to a widespread outbreak of a contagious disease constitutes deliberate indifference to the serious medical needs of detainees, thereby establishing a violation of the Eighth Amendment of the United States Constitution.
121. Because of the conditions at the MDC, Petitioners are not able to take steps to protect themselves—such as social distancing, using hand sanitizer, or washing his hands regularly—and the government has not provided adequate protections. As COVID-19 rapidly spreads at the MDC in a matter of days, as experts predict, the already deplorable conditions at the MDC will be exacerbated, and the ability to protect oneself will become even more impossible.
122. Respondent’s failure to adequately protect Petitioners from these punitive conditions, or release them from the conditions altogether, constitutes an egregious violation of Petitioners’ due process rights and deliberate indifference to the serious medical needs of Petitioners, and all members of the Class, thereby establishing a violation of the Eighth Amendment of the United States Constitution.
123. Respondent was aware or should have been aware of these conditions, which were open and obvious throughout the entire jail.
124. Respondent knew of and disregarded an excessive risk to health and safety. 125. Respondent failed to act with reasonable care to mitigate these risks. 126. Because Respondent failed to act to remedy Petitioners’ and the Class’s degrading and inhuman conditions of confinement in violation of their Fifth and Eighth Amendment rights, Petitioners seek relief under this Writ of Habeas Corpus.
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127. Because of the unlawful conduct of Respondent, Petitioners and the Class are threatened with immanent physical injury, pain and suffering, emotional distress, humiliation, and death.
PRAYER FOR RELIEF WHEREFORE, Petitioners and the Class members respectfully request that the Court enter a class-wide judgment:
A. Ordering immediate release of vulnerable persons, with appropriate precautionary public health measures, including Petitioner Chunn (scheduled to be released on 4/18/2020); Petitioner McBride (scheduled to be released on 4/16/2020); Petitioner Rabadi (scheduled to be released on 7/19/2020); Petitioner Rodriguez (scheduled to be released on 6/9/2020); and all others confined at the MDC who Respondent has identified as medically vulnerable due to underlying health conditions or age (“Vulnerable Persons”)—and therefore at higher risk of developing serious COVID-19 illness;
B. Ordering Respondent to mitigate the serious risk of illness, death, and harm from COVID-19 to those who remain confined at the MDC;
C. Certifying this Petition as a Class Action; D. Appointing a Special Master on an emergency basis to Chair a Coronavirus
Release Committee to evaluate Vulnerable Persons and make recommendations for ameliorative action for other persons at the MDC; and E. Ordering such other and further relief as this Court deems just, proper and equitable.
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Dated: New York, New York March 27, 2020

EMERY CELLI BRINCKERHOFF & ABADY LLP
By: /s/ Katherine R. Rosenfeld Katherine R. Rosenfeld O. Andrew F. Wilson Samuel Shapiro Scout Katovich 600 Fifth Avenue, 10th Floor New York, NY 10020 (212) 763-5000
CARDOZO CIVIL RIGHTS CLINIC Betsy Ginsberg Cardozo Civil Rights Clinic Benjamin N. Cardozo School of Law 55 Fifth Avenue, 11th Floor New York, NY 1003 (212) 790-0871
Alexander A. Reinert 55 Fifth Avenue, Room 1005 New York, NY 1003 (212) 790-0403
Attorneys for Petitioners and Putative Class

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Eastern District of New York - LIVE Database 1.3 (Revision 1.3.6)
Query Reports Utilities Help Log Out
U.S. District Court Eastern District of New York (Brooklyn) CIVIL DOCKET FOR CASE #: 1:20-cv-01590-RPK-RLM

HABEAS,ACO

Chunn et al v. Edge Assigned to: Judge Rachel P. Kovner Referred to: Magistrate Judge Roanne L. Mann Cause: 28:2241 Petition for Writ of Habeas Corpus (federa

Date Filed: 03/27/2020 Jury Demand: None Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: Federal Question

Petitioner
Hassan Chunn TERMINATED: 05/13/2020

represented by Alexander A. Reinert c/o Benjamin N. Cardozo School of Law 55 Fifth Avenue Room 938 New York, NY 10003 212-790-0403 Fax: 212-790-0805 Email: areinert@yu.edu ATTORNEY TO BE NOTICED

Betsy R. Ginsberg Benjamin N. Cardozo School 55 5th Avenue Eleventh Floor New York, NY 10003 (212)790-0871 Fax: (212)790-0256 Email: betsy.ginsberg@yu.edu ATTORNEY TO BE NOTICED

Noelle E. Lyle Debevoise & Plimpton LLP 919 Third Avenue New York, NY 10022 212-909-6000 Email: nelyle@debevoise.com ATTORNEY TO BE NOTICED

O. Andrew F. Wilson Emery, Celli, Brinckerhoff & Abady, LLP 75 Rockerfeller Plaza, 20th Floor New York, NY 10019 212-763-5000 Fax: 212-763-5001 Email: awilson@ecbalaw.com ATTORNEY TO BE NOTICED

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Samuel Shapiro Emery Celli Brinckerhoff & Abady LLP 600 Fifth Avenue 10th Floor New York, NY 10020 212-763-5000 Fax: 212-763-5001 Email: sshapiro@ecbalaw.com ATTORNEY TO BE NOTICED

Scout Katovich Emery Celli Brinckerhoff & Abady LLP 600 Fifth Avenue Ste 10th Floor New York New York, NY 10020 212-763-5000 Email: skatovich@ecbalaw.com ATTORNEY TO BE NOTICED

Yeugenia Jane Shvets Debvoise & Plimpton LLP 919 Third Avenue New York, NY 10022 212-909-6000 Fax: 212-909-6836 Email: jshvets@debevoise.com ATTORNEY TO BE NOTICED

Petitioner
Nehemiah McBride TERMINATED: 05/13/2020

Katherine Ruth Rosenfeld Emery Celli Brinckerhoff Abady Ward & Maazel LLP 600 Fifth Avenue 10th Floor New York, NY 10020 212-763-5000 Email: krosenfeld@ecbawm.com ATTORNEY TO BE NOTICED
represented by Alexander A. Reinert (See above for address) ATTORNEY TO BE NOTICED

Betsy R. Ginsberg (See above for address) ATTORNEY TO BE NOTICED

Noelle E. Lyle (See above for address) ATTORNEY TO BE NOTICED

O. Andrew F. Wilson

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(See above for address) ATTORNEY TO BE NOTICED

Samuel Shapiro (See above for address) ATTORNEY TO BE NOTICED

Scout Katovich (See above for address) ATTORNEY TO BE NOTICED

Yeugenia Jane Shvets (See above for address) ATTORNEY TO BE NOTICED

Petitioner
Ayman Rabadi by his Next Friend Migdaliz Quinones

Katherine Ruth Rosenfeld (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander A. Reinert (See above for address) ATTORNEY TO BE NOTICED

Betsy R. Ginsberg (See above for address) ATTORNEY TO BE NOTICED

Noelle E. Lyle (See above for address) ATTORNEY TO BE NOTICED

O. Andrew F. Wilson (See above for address) ATTORNEY TO BE NOTICED

Samuel Shapiro (See above for address) ATTORNEY TO BE NOTICED

Scout Katovich (See above for address) ATTORNEY TO BE NOTICED

Yeugenia Jane Shvets (See above for address) ATTORNEY TO BE NOTICED

Katherine Ruth Rosenfeld (See above for address) ATTORNEY TO BE NOTICED

Petitioner

Justin Rodriguez

represented by Alexander A. Reinert

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by his Next Friend Jacklyn Romanoff, individually and on behalf of all others similarly situated

Eastern District of New York - LIVE Database 1.3 (Revision 1.3.6)
(See above for address) ATTORNEY TO BE NOTICED
Betsy R. Ginsberg (See above for address) ATTORNEY TO BE NOTICED

Noelle E. Lyle (See above for address) ATTORNEY TO BE NOTICED

O. Andrew F. Wilson (See above for address) ATTORNEY TO BE NOTICED

Samuel Shapiro (See above for address) ATTORNEY TO BE NOTICED

Scout Katovich (See above for address) ATTORNEY TO BE NOTICED

Yeugenia Jane Shvets (See above for address) ATTORNEY TO BE NOTICED

Petitioner Elodia Lopez

Katherine Ruth Rosenfeld (See above for address) ATTORNEY TO BE NOTICED
represented by Noelle E. Lyle (See above for address) ATTORNEY TO BE NOTICED

Yeugenia Jane Shvets (See above for address) ATTORNEY TO BE NOTICED

Petitioner James Hair

Katherine Ruth Rosenfeld (See above for address) ATTORNEY TO BE NOTICED
represented by Noelle E. Lyle (See above for address) ATTORNEY TO BE NOTICED

Yeugenia Jane Shvets (See above for address) ATTORNEY TO BE NOTICED

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Katherine Ruth Rosenfeld
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V. Respondent Warden Derek Edge Warden Derek Edge
Intervenor David S Bralow

Eastern District of New York - LIVE Database 1.3 (Revision 1.3.6)
(See above for address) ATTORNEY TO BE NOTICED
represented by James R. Cho United States Attorneys Ofﬁce, Eastern New York 271 Cadman Plaza East Brooklyn, NY 11201 718-254-6519 Fax: 718-254-7489 Email: james.cho@usdoj.gov ATTORNEY TO BE NOTICED
Joseph Anthony Marutollo U. S. Attorney's Ofﬁce 271 Cadman Plaza East Brooklyn, NY 11201 718-254-6288 Fax: 718-254-7489 Email: joseph.marutollo@usdoj.gov ATTORNEY TO BE NOTICED
Paulina Stamatelos DOJ-USAO 271A Cadman Plaza East Brooklyn, NY 11201 718-254-6198 Email: Pauline.Stamatelos@usdoj.gov ATTORNEY TO BE NOTICED
Seth D. Eichenholtz United States Attorneys Ofﬁce 271 Cadman Plaza East Brooklyn, NY 11201 718-254-7036 Fax: 718-254-6081 Email: seth.eichenholtz@usdoj.gov ATTORNEY TO BE NOTICED
represented by David S. Bralow First Look Media Works, Inc. New York First Look Media Works, Inc. 114 5th Avenue New York, NY 10011 646-784-3287 Email: david.bralow@ﬁrstlook.org ATTORNEY TO BE NOTICED

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Date Filed

# Docket Text

03/27/2020

1 PETITION for Writ of Habeas Corpus Under 28 U.S.C. § 2241 ﬁling fee $ 5, receipt number ANYEDC-12601809, ﬁled by Justin Rodriguez, Hassan Chunn, Ayman Rabadi, Nehemiah McBride. (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons to Respondent Warden Derek Edge, # 3 Proposed Order to Show Cause, # 4 Exhibit 1 Declaration of Deirdre D. von Dornum with Exhibits, # 5 Exhibit 2 - Declaration of Jonathan Giftos, M.D.) (Rosenfeld, Katherine) (Entered: 03/27/2020)

03/27/2020

3 Unsigned Order to Show Cause by Hassan Chunn, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (Bowens, Priscilla) (Entered: 03/30/2020)

03/27/2020

Case Assigned to Judge Rachel P. Kovner. Please download and review the Individual Practices of the assigned Judges, located on our website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Bowens, Priscilla) (Entered: 03/30/2020)

03/27/2020

6 Summons Issued as to Derek Edge. (Bowens, Priscilla) (Entered: 03/30/2020)

03/29/2020

2 Letter Related Case Statement to Clerk of Court by Hassan Chunn (Rosenfeld, Katherine) (Entered: 03/29/2020)

03/30/2020

4 NOTICE of Appearance by Scout Katovich on behalf of Hassan Chunn, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (aty to be noticed) (Katovich, Scout) (Entered: 03/30/2020)

03/30/2020

5 Civil Cover Sheet.. Re 1 Petition for Writ of Habeas Corpus, by Hassan Chunn, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (Rosenfeld, Katherine) (Entered: 03/30/2020)

03/30/2020

7 Notice of Related Case: The Civil Cover Sheet ﬁled in this civil action indicates a related case. (Bowens, Priscilla) (Entered: 03/30/2020)

03/30/2020

8 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notiﬁed that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a ﬁnal judgment. Attached to the Notice is a blank copy of the consent form that should be ﬁlled out, signed and ﬁled electronically only if all parties wish to consent. The form may also be accessed at the following link: http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or ﬁle the consent unless all parties have signed the consent. (Bowens, Priscilla) (Entered: 03/30/2020)

03/30/2020

9 This attorney case opening ﬁling has been checked for quality control. See the attachment for corrections that were made, if any. (Bowens, Priscilla) (Entered: 03/30/2020)

03/30/2020

10 NOTICE of Appearance by Betsy R. Ginsberg on behalf of Hassan Chunn, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (aty to be noticed) (Ginsberg, Betsy) (Entered: 03/30/2020)

03/30/2020

11 NOTICE of Appearance by Alexander A. Reinert on behalf of All Plaintiffs (notiﬁcation declined or already on case) (Reinert, Alexander) (Entered: 03/30/2020)

03/30/2020

12 MOTION for Temporary Restraining Order by Hassan Chunn, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez. (Attachments: # 1 Memorandum in Support Memorandum of Law in Support of Petitioners' Motion for a Temporary Restraining Order, # 2 Declaration Declaration of Katherine Rosenfeld, # 3 Exhibit 1 - Declaration of Carmen Nevarez, # 4 Exhibit 2 - Letter from Kenneth Montgomery, # 5 Exhibit 3 -

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03/30/2020 03/30/2020 03/30/2020 03/30/2020
03/30/2020 03/31/2020 03/31/2020
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Declaration of Tasha Moore, # 6 Exhibit 4 - Letter from Robert Baum, # 7 Exhibit 5 Declaration of Migdaliz Quinones, # 8 Exhibit 6 - Rabadi Medical Attention Form, # 9 Exhibit 7 - Letter from Mr. DuBoulay, # 10 Exhibit 8 - Declaration of Jacklyn Romanoff, # 11 Exhibit 9 - Declaration of Jaime Meyer, # 12 Declaration Supplemental Declaration of Deirdre D. Von Dornum) (Rosenfeld, Katherine) (Entered: 03/30/2020)
13 NOTICE of Appearance by James R. Cho on behalf of Derek Edge (aty to be noticed) (Cho, James) (Entered: 03/30/2020)
14 NOTICE of Appearance by O. Andrew F. Wilson on behalf of Hassan Chunn, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (aty to be noticed) (Wilson, O. Andrew) (Entered: 03/30/2020)
15 NOTICE of Appearance by Samuel Shapiro on behalf of Hassan Chunn, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (aty to be noticed) (Shapiro, Samuel) (Entered: 03/30/2020)
Scheduling Order re: 12 Motion for Temporary Restraining Order: A hearing on Petitioners' motion for a temporary restraining order is hereby scheduled for April 1, 2020 at 11:30 a.m. The hearing will be held by telephone. At 11:30 a.m., the parties shall call into the Court's dedicated conference line at (888) 278-0296 and type in the access code 2012636, followed by the pound (#) key. By 2 p.m. on March 31, 2020, the Government shall ﬁle a written response to Petitioners' motion for a temporary restraining order. Ordered by Judge Rachel P. Kovner on 3/30/2020. (Liss, Jeremy) (Entered: 03/30/2020)
16 NOTICE of Appearance by Alexander A. Reinert on behalf of Hassan Chunn, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (aty to be noticed) (Reinert, Alexander) (Entered: 03/30/2020)
17 Consent MOTION for Extension of Time to File Response/Reply (request for an extension of time until 4 p.m. to ﬁle respondent's response to the motion for a temporary restraining order) by Derek Edge. (Cho, James) (Entered: 03/31/2020)
ORDER granting 17 Motion for Extension of Time to File Response/Reply (request for an extension of time until 4 p.m. to ﬁle respondent's response to the motion for a temporary restraining order). Respondent's deadline to respond to the TRO request is extended until 4 p.m. on 3/31/20. Ordered by Judge Rachel P. Kovner on 3/31/2020. (Kovner, Rachel) (Entered: 03/31/2020)
18 RESPONSE in Opposition re 12 MOTION for Temporary Restraining Order ﬁled by Derek Edge. (Attachments: # 1 Declaration (Declaration of Associate Warden Milinda King), # 2 Exhibit (Associate Warden King Declaration Exhibits 1-3))) (Cho, James) (Entered: 03/31/2020)
19 Letter enclosing courtesy copies of Respondent's Memorandum of Law in Opposition to Petitioners' Motion for a Temporary Restraining Order, and Declaration of Associate Warden Milinda King with Exhibits 1-3 (ECF Nos. 18, 18-1 and 18-2) by Derek Edge (Cho, James) (Entered: 03/31/2020)
20 NOTICE of Appearance by Seth D. Eichenholtz on behalf of Derek Edge (aty to be noticed) (Eichenholtz, Seth) (Entered: 03/31/2020)
ORDER: In preparation for the hearing on petitioners' request for a temporary restraining order, the parties should be prepared to discuss: (1) the extent to which petitioners and other inmates in the proposed class have alternative avenues for obtaining release, including compassionate release and bail, and whether the availability of alternative avenues bears on the TRO analysis; (2) why orders of release from custody, instead of orders directed at constitutionally deﬁcient conditions, are the appropriate remedy for any

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such conditions; and (3) the relevance, if any, of additional BOP measures publicly reported this evening ("BOP COVID-19 Action Plan Phase Five"). If Respondent believes that the new BOP measures are relevant, the Court requests that Respondent submit a supplemental declaration that outlines the additional measures or incorporates a memorandum setting out those measures. Ordered by Judge Rachel P. Kovner on 4/1/2020. (Hershey, Kenneth) (Entered: 04/01/2020)
21 AFFIDAVIT/DECLARATION in Opposition re 12 MOTION for Temporary Restraining Order (supplemental declaration of Associate Warden Milinda King and MDC's implementation of Phase 5 of the COVID-19 Action Plan)) ﬁled by Derek Edge. (Cho, James) (Entered: 04/01/2020)
22 MEMORANDUM in Opposition re 12 MOTION for Temporary Restraining Order supplemental memorandum ﬁled by Derek Edge. (Eichenholtz, Seth) (Entered: 04/01/2020)
Minute Entry for telephonic hearing before Judge Rachel P. Kovner on 04/01/2020. Katherine Rosenfeld, Alexander Reinert, Betsy Ginsberg, and Andrew Wilson appeared for petitioners. James Cho and Seth Eichenholtz appeared for respondent. Argument held on petitioners' request for a temporary restraining order. Decision reserved. (Court Reporter Anthony Frisolone.) (Hershey, Kenneth) (Entered: 04/01/2020)
23 ORDER REFERRING CASE FOR SETTLEMENT DISCUSSIONS: This case is respectfully referred to Magistrate Judge Mann for the purpose of exploring settlement. As further discussed in the attached order, the parties are directed to make themselves available to Judge Mann today for discussion of the issues raised in petitioners' request for a temporary restraining order. Ordered by Judge Rachel P. Kovner on 4/2/2020. (Hershey, Kenneth) (Entered: 04/02/2020)
24 Minute Entry for Settlement Conference held on 4/2/2020 before Magistrate Judge Roanne L. Mann. Settlement discussions held and continued to April 3, 2020 at 9:00 a.m. See attached for appearances. (Proujansky, Josh) (Entered: 04/02/2020)
25 Minute Entry for Settlement Conference held on 4/3/2020 before Magistrate Judge Roanne L. Mann. Further settlement discussions held. The government will provide the Court and petitioner's counsel with a prompt update. See attached for appearances. (Proujansky, Josh) (Entered: 04/03/2020)
26 Letter to Honorable Rachel P. Kovner Regarding Status of Settlement Discussions and Enclosing Supplemental Declaration by Hassan Chunn, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (Attachments: # 1 Supplemental Declaration of Katherine Rosenfeld in Further Support of Petitioners' Request for a Temporary Restraining Order, # 2 Exhibit A - Charts, # 3 Exhibit B - BOP Letter dated April 3, 2020, # 4 Exhibit C Declaration of Homer Venters, # 5 Exhibit D - Transcript of April 1, 2020 Proceeding, # 6 Exhibit E - Declaration of Robert C. Cohen, M.D.) (Rosenfeld, Katherine) (Entered: 04/03/2020)
27 STATUS REPORT on behalf of the government in response to the Court's April 2, 2020 Order (ECF No. 23), and April 3, 2020 Order (ECF No. 25) by Derek Edge (Cho, James) (Entered: 04/03/2020)
28 Letter Updating Court on Respondents' Denials of Petitioners' Compassionate Release Requests by Hassan Chunn (Rosenfeld, Katherine) (Entered: 04/03/2020)
29 MEMORANDUM in Opposition to Petitioners' Supplemental Declarations (ECF No. 26) ﬁled by Derek Edge. (Cho, James) (Entered: 04/03/2020)
SCHEDULING ORDER: A teleconference on the 12 motion for a temporary restraining

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order is hereby scheduled for April 4, 2020 at 10:00 a.m.The parties are directed to call (888) 278-0296 and type in the access code 2012636 to join the conference. Ordered by Judge Rachel P. Kovner on 4/3/2020. (Yaffe, Leah) (Entered: 04/03/2020)

04/03/2020

30 Letter on behalf of the government in response to petitioners' letter to the Court regarding the denials of petitioners' compassionate release requests by Derek Edge (Cho, James) (Entered: 04/03/2020)

04/03/2020

31 NOTICE of Appearance by Joseph Anthony Marutollo on behalf of Derek Edge (aty to be noticed) (Marutollo, Joseph) (Entered: 04/04/2020)

04/04/2020

32 Letter respectfully informing the Court of the Attorney General's April 3, 2020 Memorandum to BOP by Derek Edge (Attachments: # 1 Exhibit) (Marutollo, Joseph) (Entered: 04/04/2020)

04/04/2020

33 Letter respectfully informing the Court of the BOP Memorandum dated April 3, 2020 by Derek Edge (Attachments: # 1 Exhibit) (Marutollo, Joseph) (Entered: 04/04/2020)

04/05/2020

Order and minute entry for telephonic conference before Judge Rachel P. Kovner on 04/04/2020. Katherine Rosenfeld, Alexander Reinert, Betsy Ginsberg, Andrew Wilson, and Scout Katovich appeared for petitioners. James Cho, Seth Eichenholtz, and Allon Lifshitz appeared for respondent. Holly Pratesi joined the call on behalf of the Bureau of Prisons (BOP). Deirdre von Dornum joined the call on behalf of the Federal Defenders. Lisa Olson joined the call on behalf of the Department of Justice. The Court held in abeyance petitioners' 12 motion for a temporary restraining order while petitioners pursue their applications for compassionate release. Respondent shall ﬁle a letter by April 7, 2020, stating whether the BOP has reached a ﬁnal decision on petitioners' applications. If BOP has not yet reached a ﬁnal decision, respondent shall advise the Court when ﬁnal decisions will be reached and whether the government is pressing (or intends to press) failure to fully exhaust administrative remedies as a basis to oppose consideration of applications by petitioners' sentencing courts under 18 U.S.C. 3582(c)(1)(A). (Yaffe, Leah) (Entered: 04/05/2020)

04/07/2020

34 Letter pursuant to the Court's April 5, 2020 Order by Derek Edge (Marutollo, Joseph) (Entered: 04/07/2020)

04/07/2020

35 Letter Response to Government's 4/7/20 Submission by Hassan Chunn, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (Rosenfeld, Katherine) (Entered: 04/07/2020)

04/07/2020

36 Letter addendum to Respondent's April 7 letter, and opposition to Petitioners' April 7 letter by Derek Edge (Marutollo, Joseph) (Entered: 04/07/2020)

04/07/2020

A phone conference in this case is scheduled for April 8 at 5 p.m. The parties are directed to call (888) 278-0296 and type in the access code 2012636 to join the conference. Ordered by Judge Rachel P. Kovner on 4/7/2020. (Hershey, Kenneth) (Entered: 04/07/2020)

04/08/2020

Order and minute entry for telephonic conference before Judge Rachel P. Kovner on 4/08/2020. Katherine Rosenfeld, Alexander Reinert, Betsy Ginsberg, Andrew Wilson, and Scout Katovich appeared for petitioners. James Cho, Seth Eichenholtz, Joseph Marutollo, and Allon Lifshitz appeared for respondent. Holly Pratesi and Darrin Howard joined the call on behalf of the Bureau of Prisons (BOP). Deirdre von Dornum joined the call on behalf of the Federal Defenders. Lisa Olson joined the call on behalf of the Department of Justice. The parties discussed the compassionate-release applications that are pending with the BOP and petitioners' sentencing judges. The Court denied the 12 motion for a temporary restraining order. The parties agreed to confer about an expedited discovery schedule and a date for a preliminary injunction hearing. The parties are directed to submit a joint proposed schedule by 4/10/2020. If the parties cannot agree on a schedule,

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then they should submit letters describing their competing proposals and any points of agreement. Ordered by Judge Rachel P. Kovner on 4/08/2020. (Court Reporter Linda Marino) (Yaffe, Leah) (Entered: 04/08/2020)
ORDER denying 12 motion for a temporary restraining order. As discussed at today's telephonic conference, the motion for a TRO is denied. Ordered by Judge Rachel P. Kovner on 4/08/2020. (Yaffe, Leah) (Entered: 04/08/2020)
37 Letter enclosing parties' proposed case management plan, and setting forth respondent's position regarding discovery, respondent's request to stay discovery and request for entry of a brieﬁng schedule with respect to respondent's anticipated motion to dismiss by Derek Edge (Attachments: # 1 (Proposed Case Management Plan)) (Cho, James) (Entered: 04/10/2020)
38 NOTICE of Appearance by Paulina Stamatelos on behalf of Derek Edge (aty to be noticed) (Stamatelos, Paulina) (Entered: 04/10/2020)
ORDER: Petitioners may respond to 37 respondent's letter motion concerning discovery by 4/11/2020 at 5 p.m. Ordered by Judge Rachel P. Kovner on 4/10/2020. (Kovner, Rachel) (Entered: 04/10/2020)
ORDER: A telephone conference is scheduled in this case for 4/13/20 at 3 p.m. While reserving judgment on respondent's motion to stay, the Court (1) directs petitioners to promptly ﬁle on ECF the discovery demands that they served on 4/10/20; (2) authorizes petitioners to serve their Rule 30(b)(6) notice of deposition on 4/12/20 as proposed; (3) directs petitioners to ﬁle the Rule 30(b)(6) notice on ECF once served; and (4) directs respondent to be prepared to discuss during the teleconference any objections to petitioners' discovery demands, including objections based on burdensomeness. The parties are directed to call (888) 278-0296 and type in the access code 2012636 to join the conference. Ordered by Judge Rachel P. Kovner on 4/11/20. (Kovner, Rachel) (Entered: 04/11/2020)
39 Letter Response to Government's 4/10/20 Letter-Motion by Hassan Chunn, Derek Edge, Ayman Rabadi, Justin Rodriguez (Attachments: # 1 Exhibit Ex. A and B) (Rosenfeld, Katherine) (Entered: 04/11/2020)
ELECTRONIC ORDER re 39 Letter ﬁled by Ayman Rabadi, Derek Edge, Hassan Chunn, Justin Rodriguez. Petitioners neglected to attach Exhibits A (notice of site inspection) and B (Dr. Venters' CV) to their April 11th letter (DE #39). They are directed to promptly cure that omission. Ordered by Magistrate Judge Roanne L. Mann on 4/12/2020. (Proujansky, Josh) (Entered: 04/12/2020)
40 Letter Providing Exhibits A and B to Letter at Dkt. 39 by Hassan Chunn, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (Rosenfeld, Katherine) (Entered: 04/12/2020)
41 Letter Enclosing Notice of 30(b)(6) Deposition by Hassan Chunn, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (Rosenfeld, Katherine) (Entered: 04/12/2020)
42 Letter in response to petitioners' discovery demands and pursuant to the Court's April 11, 2020 Order by Derek Edge (Cho, James) (Entered: 04/13/2020)
Minute entry for telephonic conference before Judge Rachel P. Kovner and Judge Roanne L. Mann on 4/13/2020. Katherine Rosenfeld and Betsy Ginsberg appeared for petitioners. James Cho, Seth Eichenholtz, and Joseph Marutollo appeared for respondent. Holly Pratesi and Darrin Howard joined the call on behalf of the Bureau of Prisons (BOP). Deirdre von Dornum joined the call on behalf of the Federal Defenders. Lisa Olson joined the call on behalf of the Department of Justice. The parties discussed their proposals for discovery. The Court took the proposals and objections under advisement. Ordered by

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Judge Rachel P. Kovner on 4/13/2020. (Court Reporter Sophia Nolan) (Hershey, Kennet) (Entered: 04/13/2020)
43 ORDER: The Court has considered the parties' proposals and objections regarding discovery. The parties are directed to adhere to the schedule for expedited discovery and preliminary injunction brieﬁng set out in the attached order. Ordered by Judge Rachel P. Kovner on 4/14/2020. (Liss, Jeremy) (Entered: 04/14/2020)
44 Letter Supplementing Petitioners' Letter Request dated 4/11/2020 by Hassan Chunn, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (Attachments: # 1 Exhibit A Consent Order Appointing Amicus, # 2 Exhibit B - Administrative Order 2019-03) (Rosenfeld, Katherine) (Entered: 04/14/2020)
45 ORDER: The Court considered the parties' proposals and objections regarding a site inspection and concludes that the petitioners should be permitted to perform an inspection. As further detailed in the attached order, the parties are directed to advise the Court on April 16, 2020, whether they have reached an agreement on the parameters of an inspection. If areas of disagreement remain, the parties shall explain their positions on the disputed issues. Ordered by Judge Rachel P. Kovner on 4/15/2020. (Hershey, Kenneth) (Entered: 04/15/2020)
46 Letter Enclosing Joint Proposed Stipulation and Protective Order by Hassan Chunn, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (Attachments: # 1 Joint Proposed Stipulation and Protective Order) (Rosenfeld, Katherine) (Entered: 04/15/2020)
47 Letter pursuant to the Court's April 14, 2020 discovery order and responsive documents by Derek Edge (Attachments: # 1 (Declaration of Lieutenant Commander D. Jordan, RN/BSN), # 2 (Responsive Documents Bates numbered BOP 1-203)) (Cho, James) (Entered: 04/15/2020)
ORDER: The Court approves and so orders the parties' joint proposed stipulation and protective order (Dkt. No. 46 ), with the following clariﬁcations: (1) Paragraph 6: The Court and court personnel are not required by this paragraph to sign Exhibit A; and (2) Paragraph 9: This paragraph does not apply to the Court's copies of Conﬁdential Material. Ordered by Judge Rachel P. Kovner on 4/15/2020. (Hershey, Kenneth) (Entered: 04/15/2020)
ORDER: Respondent has submitted 47 a letter seeking an extension of certain discovery deadlines. The letter does not state whether petitioners consent and, if not, the reasons given for refusing consent. See Individual Rule of Practice I.F.1. Respondent is requested to promptly advise the Court of his adversary's position on the proposed extension. The Court defers decision until that information is received. Ordered by Judge Rachel P. Kovner on 4/15/2020. (Kovner, Rachel) (Entered: 04/15/2020)
48 Letter in response to the Court's April 15 order by Derek Edge (Marutollo, Joseph) (Entered: 04/15/2020)
ORDER: The Court adopts the brieﬁng schedule for respondent's anticipated motion to dismiss as set forth in the letter at Docket No. 37 . Respondent shall ﬁle his motion to dismiss by April 24, 2020. Petitioners shall ﬁle their opposition by May 8, 2020. Respondent shall ﬁle his reply, if any, by May 15, 2020. Ordered by Judge Rachel P. Kovner on 4/16/2020 (Hershey, Kenneth) (Entered: 04/16/2020)
49 Letter respectfully informing the Court of Petitioners' consent with respect to yesterday's requests by Derek Edge (Marutollo, Joseph) (Entered: 04/16/2020)
ORDER: Respondent's 47 request for a three-business day extension of certain discovery deadlines is granted. Respondent may (1) provide any supplement to his response

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regarding soap purchases and deliveries and (2) provide further information regarding petitioners' request for production of sick-call requests by April 20, 2020. Ordered by Judge Rachel P. Kovner on 4/16/2020. (Hershey, Kenneth) (Entered: 04/16/2020)
50 STATUS REPORT (Parameters for Inspection of the Metropolitan Detention Center, Brooklyn) by Derek Edge (Cho, James) (Entered: 04/16/2020)
SCHEDULING ORDER: The parties may ﬁle letters describing their positions on the parameters of an inspection of the Metropolitan Detention Center (MDC) by 10 AM on 4/17/2020 if they wish. A phone conference is scheduled for 4/17/2020 at 1 PM. The parties are directed to call (888) 278-0296 and type in the access code 2012636 to join the conference. Ordered by Judge Rachel P. Kovner on 4/16/2020. (Kovner, Rachel) (Entered: 04/16/2020)
51 Letter in support of respondent's proposed inspection parameters by Derek Edge (Cho, James) (Entered: 04/17/2020)
52 Letter Regarding Rule 34 Inspection Parameters by Hassan Chunn, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (Rosenfeld, Katherine) (Entered: 04/17/2020)
Minute entry and order for teleconference held before Judge Rachel P. Kovner and Judge Roanne L. Mann on 4/17/2020. Katherine Rosenfeld, Betsy Ginsberg, and Alexander Reinert appeared on behalf of petitioners. James Cho, Seth Eichenholtz, Joseph Marutollo, and Paulina Stamatelos appeared on behalf of respondent. Lisa Olson joined the call on behalf of the Department of Justice. Darrin Howard joined the call on behalf of the Bureau of Prisons. The parties discussed their positions on the parameters of an inspection of the Metropolitan Detention Center by petitioners' expert, Dr. Homer Venters. The inspection will take place on April 23, 2020, from 9 a.m. to 12 p.m. The inspection will include (i) one housing unit not under quarantine or isolation; (ii) the intake unit; (iii) one quarantine unit; (iv) K84 or another appropriate isolation unit as determined by the parties; (v) the Special Housing Unit; and (vi) the Health Services Ofﬁces and Exam Rooms. For petitioners, the inspection is limited to Dr. Venters, one attorney from petitioners' legal team, and Deirdre von Dornum of the Federal Defenders. The parties will resolve amongst themselves whether the inspection team will be permitted to use hand sanitizer during the inspection. The Court also took the parties' alternative proposals for Dr. Venters to speak with inmates during the inspection under advisement. Ordered by Judge Rachel P. Kovner on 4/17/2020. (Court Reporter Sophie Nolan.) (Yaffe, Leah) (Entered: 04/17/2020)
53 ORDER: The Court considered the parties' proposals for petitioners' expert, Dr. Homer Venters, to speak with inmates during the inspection of the Metropolitan Detention Center on April 23, 2020. As further detailed in the attached order, Mr. Venters shall be permitted cell-front access to inmates for brief conversations, subject to the inmates' willingness to speak with Dr. Venters. Ordered by Judge Rachel P. Kovner on 4/17/2020. (Yaffe, Leah) (Entered: 04/17/2020)
54 Letter MOTION to Quash the Deposition Subpoena of Dr. Venters by Hassan Chunn, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez. (Attachments: # 1 Exhibit A Respondent's First Set of Interrogatories, # 2 Exhibit B - Respondent's Request for Documents, # 3 Exhibit C - Respondent's Notices of Depositions for Petitioners Rabadi and Rodriguez, # 4 Exhibit D - Respondent's Notice of Deposition of Dr. Venters) (Rosenfeld, Katherine) (Entered: 04/20/2020)
ORDER: Respondent is directed to respond by 4/22/20 to 54 Letter MOTION to Quash the Deposition Subpoena of Dr. Venters ﬁled by Ayman Rabadi, Hassan Chunn, Justin Rodriguez, Nehemiah McBride. Ordered by Judge Rachel P. Kovner on 4/20/2020. (Kovner, Rachel) (Entered: 04/20/2020)

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55 STATUS REPORT in connection with the Court's April 16, 2020 Order and Respondent's discovery responses by Derek Edge (Cho, James) (Entered: 04/20/2020)
56 Consent MOTION for Leave to File Excess Pages ; Motion for Extension of Page Limit by Derek Edge. (Stamatelos, Paulina) (Entered: 04/22/2020)
ORDER: The parties' 56 consent motion for leave to ﬁle excess pages is granted. The parties shall adhere to the page limits set forth in their motion. Ordered by Judge Rachel P. Kovner on 4/22/2020. (Hershey, Kenneth) (Entered: 04/22/2020)
57 RESPONSE in Opposition re 54 Letter MOTION to Quash the Deposition Subpoena of Dr. Venters and motion to compel deposition of Petitioners' expert, Dr. Homer Venters ﬁled by Derek Edge. (Cho, James) (Entered: 04/22/2020)
ORDER REFERRING MOTION: Petitioners' 54 letter motion to quash the deposition subpoena of Dr. Venters is respectfully referred to Magistrate Judge Mann. Ordered by Judge Rachel P. Kovner on 4/23/2020. (Hershey, Kenneth) (Entered: 04/23/2020)
58 MOTION for Extension of Time to File Respondent's Motion to Dismiss by Derek Edge. (Stamatelos, Paulina) (Entered: 04/23/2020)
59 Minute Entry for Discovery Hearing held before Magistrate Judge Roanne L. Mann on 4/23/2020. The parties call with an emergency application concerning today's site inspection of the MDC. The Court resolves the dispute on the record, ruling that petitioners' expert, Dr. Venters, is to take the lead in the questioning of inmates, but that petitioners' counsel, while observing social distancing, may sparingly ask clarifying questions, and Ms. von Dornum may act as interpreter for Spanish-speaking inmates. See attached. (Proujansky, Josh) (Entered: 04/23/2020)
60 Amended PETITION for Writ of Habeas Corpus ﬁling fee $ 5, receipt number ANYEDC12714502, ﬁled by Justin Rodriguez, Hassan Chunn, Ayman Rabadi, Nehemiah McBride, Elodia Lopez, James Hair. (Attachments: # 1 Exhibit 1 - Declaration of Deirdre D. von Dornum with Exhibits, # 2 Exhibit 2 - Declaration of Jonathan Giftos, M.D.) (Rosenfeld, Katherine) (Entered: 04/23/2020)
ELECTRONIC SCHEDULING ORDER re 54 Letter MOTION to Quash the Deposition Subpoena of Dr. Venters ﬁled by petitioners. A Telephone Conference before Magistrate Judge Roanne L. Mann is set for Saturday, April 25, 2020, at 11:00 AM. The parties are instructed to contact the Court using the following conference line and dial-in information: toll free number 1-877-336-1839; access code 6672833. Ordered by Magistrate Judge Roanne L. Mann on 4/23/2020. (Proujansky, Josh) (Entered: 04/23/2020)
61 RESPONSE to Motion re 58 MOTION for Extension of Time to File Respondent's Motion to Dismiss ﬁled by Hassan Chunn, James Hair, Elodia Lopez, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez. (Attachments: # 1 Red-lined Version of the Amended Petition) (Rosenfeld, Katherine) (Entered: 04/23/2020)
ORDER: Respondent's 58 request to extend the deadline for his motion to dismiss until 4/28/20 is granted. It is not evident whether respondent will need that extra time given the modest changes in the amended petition, which was ﬁled after respondent's extension request was submitted. If respondent avails himself of the extension, petitioners may have a corresponding two-day extension, to 5/12/20, for their response. Ordered by Judge Rachel P. Kovner on 4/23/2020. (Hershey, Kenneth) (Entered: 04/23/2020)
SCHEDULING ORDER: Petitioners' request to amend the brieﬁng schedule for petitioners' preliminary injunction motion is granted. Petitioners' moving brief and supplemental expert report shall be due on April 30. Respondent's opposition papers shall

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be due on May 7. Petitioners' reply shall be due on May 11. Ordered by Judge Rachel P. Kovner on 4/24/2020 (Hershey, Kenneth) (Entered: 04/24/2020)
62 MOTION to Dismiss for Failure to State a Claim , MOTION to Dismiss for Lack of Jurisdiction by Derek Edge. (Attachments: # 1 Memorandum in Support) (Cho, James) (Entered: 04/24/2020)
63 Letter Regarding 30(b)(6) Objection Protocol and Request for Paper Sick-Call Requests by Hassan Chunn, James Hair, Elodia Lopez, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (Rosenfeld, Katherine) (Entered: 04/24/2020)
64 Letter in response to Plaintiffs' Letter (Dkt. No. 63) and in advance of Saturday's conference by Derek Edge (Attachments: # 1 Exhibit Respondent's Letter to Petitioners) (Marutollo, Joseph) (Entered: 04/25/2020)
65 Minute Order for Telephonic Motion Hearing / Discovery Conference held before Magistrate Judge Roanne L. Mann: Magistrate Judge Mann conducts a telephonic hearing, with Judge Kovner on the line. For the reasons stated on the record, and as set forth in greater detail in the attached Minute Entry, Judge Mann rules as follows:

Respondent is improperly pursuing full discovery on an expedited timeline, rather than tailoring his discovery demands to what is needed in advance of the preliminary injunction hearing scheduled for May 12, 2020.

It is premature for the Court to rule on the reasonableness of speciﬁc document demands or interrogatories, or on the length and/or scope of depositions of any of the petitioners, as the parties have not conferred in good faith.

With respect to Dr. Venters, the Court declines to quash the subpoena for his deposition. Respondent is directed to advise petitioners, before noon on April 28, 2020, whether they opt (1) to be served with a Rule 26(a)(2)(B) report prepared and signed by Dr. Venters or, in the alternative, (2) to conduct a deposition of Dr. Venters, in which event petitioners' counsel will prepare and serve disclosures relating to Dr. Venters under Rule 26(a)(2)(C). Similarly, in the event respondent decides to present expert testimony at the May 12th hearing, petitioners will have the same option.

With respect to Monday's Rule 30(b)(6) depositions, the Court rules that any objection that a question is outside the scope of the Rule 30(b)(6) notice should be concisely noted on the record, with the witness' testimony taken subject to that objection; the witness should not be instructed to answer, except in extremely limited circumstances. The deposition of Ms. Vasquez shall be limited to ﬁve hours, and the deposition of Ms. King shall be limited to two hours.

With respect to petitioners' demand for paper sick call requests, the issue is not ripe for a judicial ruling. The parties are directed to confer further in a good faith attempt to resolve this issue. A joint status report is due by April 28, 2020.

See attached Minute Entry for additional discussion. (Vallens, Adrian) (Entered: 04/25/2020)

04/27/2020

66 NOTICE of Appearance by Yeugenia Shvets on behalf of Hassan Chunn, James Hair, Elodia Lopez, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (aty to be noticed) (Shvets, Yeugenia) (Entered: 04/27/2020)

04/27/2020

67 Letter (courtesy copy to the Court of letter advising Petitioners' counsel that Respondent intends to conduct the deposition of Dr. Homer Venters in lieu of production of his expert report by the Court-ordered deadline of April 30, 2020 for the production of Petitioners'

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expert disclosures pursuant to the Court's April 24, 2020 Order (Dkt. No. 65)) by Derek Edge (Cho, James) (Entered: 04/27/2020)
68 TRANSCRIPT of Proceedings held on April 25, 2020 before Judge Mann. Court Transcriber: Transcription Plus II, Inc. Email address: laferrara44@gmail.com. Transcript may be viewed at the court public terminal or purchased through the Court Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.File redaction request using event "Redaction Request Transcript" located under "Other Filings - Other Documents". Redaction Request due 5/19/2020. Redacted Transcript Deadline set for 5/29/2020. Release of Transcript Restriction set for 7/27/2020. (Rocco, Christine) (Entered: 04/28/2020)
69 STATUS REPORT Jointly Submitted By the Parties by Derek Edge (Stamatelos, Paulina) (Entered: 04/28/2020)
STATUS REPORT ORDER re #69: A joint updated status report is due by April 30, 2020. Ordered by Magistrate Judge Roanne L. Mann on 4/29/2020. (LK) (Entered: 04/29/2020)
70 STATUS REPORT Jointly Submitted By the Parties by Derek Edge (Stamatelos, Paulina) (Entered: 04/30/2020)
71 MOTION for Preliminary Injunction by Hassan Chunn, James Hair, Elodia Lopez, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez. (Attachments: # 1 Declaration of Ayman Rabadi, dated April 29, 2020, # 2 Declaration of Elodia Lopez, dated April 28, 2020, # 3 Declaration of James Hair, dated April 30, 2020, # 4 Declaration of Hassan Chunn, dated April 30, 2020, # 5 Declaration of Katherine R. Rosenfeld re: class counsel, dated April 30, 2020, # 6 Declaration of Betsy Ginsberg, dated April 30, 2020, # 7 Declaration of Alex A. Reinert, dated April 30, 2020, # 8 Declaration of Yeugenia (Jane) Shvets dated April 30, 2020) (Rosenfeld, Katherine) (Entered: 04/30/2020)
72 AFFIDAVIT/DECLARATION in Support re 71 MOTION for Preliminary Injunction ﬁled by Hassan Chunn, James Hair, Elodia Lopez, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez. (Attachments: # 1 Facility Evaluation: Report of Metropolitan Detention Center by Dr. Homer Venters dated April 30, 2020) (Rosenfeld, Katherine) (Entered: 05/01/2020)
73 MEMORANDUM in Support re 71 MOTION for Preliminary Injunction ﬁled by Hassan Chunn, James Hair, Elodia Lopez, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez. (Rosenfeld, Katherine) (Entered: 05/01/2020)
ORDER: A status conference will be held on May 2, 2020 at 10 AM. The parties are instructed to call (888) 278-0296 and type in the access code 2012636. The principal subject of the status conference will be logistics for the preliminary injunction hearing to be held on May 12, 2020. Ordered by Judge Rachel P. Kovner on 5/1/2020. (Hershey, Kenneth) (Entered: 05/01/2020)
74 MOTION to Strike expert report of Dr. Homer Venters (Dkt. No. 72-1) or, in the alternative, motion to compel Dr. Venters's re-opened deposition by Derek Edge. (Cho, James) (Entered: 05/01/2020)
75 Letter Opposition to Respondent's Motion to Strike expert report of Dr. Homer Venters (Dkt. No. 72-1) or, in the alternative, motion to compel Dr. Venters's re-opened deposition by Hassan Chunn, James Hair, Elodia Lopez, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (Rosenfeld, Katherine) (Entered: 05/01/2020)
Minute Entry and Order: A telephonic conference was held before the Honorable Rachel P. Kovner and the Honorable Judge Roanne Mann on May 2, 2020. Katherine Rosenfeld,

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Alexander Reinert, Betsy Ginsberg, Andrew Wilson, and Scout Katovich appeared for petitioners. James Cho, Seth Eichenholtz, Joseph Marutollo, and Paulina Stamatelos appeared for respondent. Holly Pratesi joined on behalf of the Bureau of Prisons. The Court ﬁrst heard argument regarding respondent's 74 motion to strike Dr. Venters' expert report and petitioners' 75 opposition thereto. For reasons stated on the record, Judge Mann concluded that petitioners' service of Dr. Venters' expert report did not violate her April 25 order and did not prejudice respondents. Judge Mann therefore denied respondent's motion. The parties also discussed logistics for the preliminary injunction hearing to be held on May 12, 2020. The parties will work together on mechanisms to conduct the hearing remotely, including via video testimony if feasible. The parties agreed to notify the Court on the morning of May 5 of any inmates at the MDC who they plan to have testify at the hearing. The Court adopts the following schedule for submissions relating to that hearing: Petitioners will serve their witness list and exhibit list on respondent by May 7. Respondent will serve his witness list and exhibit list on petitioners by May 8. The parties will ﬁle their ﬁnal witness and exhibit lists by May 9. Any motions in limine will be ﬁled by May 9, with any oppositions ﬁled by May 10. (Court Reporter Denise Parisi.) (Hershey, Kenneth) (Entered: 05/02/2020)
76 EXHIBIT 26 Corrected Declaration of Dino Sanchez, Dkt. No. 72 (p.483-486) by Hassan Chunn, James Hair, Elodia Lopez, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez. Related document: 72 Afﬁdavit in Support of Motion, ﬁled by Ayman Rabadi, Hassan Chunn, Justin Rodriguez, James Hair, Nehemiah McBride, Elodia Lopez. (Rosenfeld, Katherine) (Entered: 05/05/2020)
77 STATUS REPORT - Parties' Joint Report to Court regarding Witness Identities and Other Items by Hassan Chunn, Derek Edge, James Hair, Elodia Lopez, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (Rosenfeld, Katherine) (Entered: 05/05/2020)
ORDER:

Identiﬁcation of MDC witnesses: The Court has received the parties' status update, which does not deﬁnitively identify the incarcerated individuals who may be called at the preliminary injunction hearing, but instead lists 6 such individuals and states that petitioners may call 3 or 4 of those individuals. Petitioners are directed to identify by May 6, 2020 which of the named individuals will be called. The Court needs a deﬁnitive list to coordinate remote testimony from the MDC.

Non-party testimony: The parties' status update notes that respondent objects to the testimony of any non-party inmates. Respondent argues that any such testimony would be duplicative, disproportionate, or a waste of time and resources. Petitioners have represented that inmate testimony will be limited to 3 or 4 witnesses and that each witness's testimony will be "brief" -- "approximately 20 minutes per person." Under these circumstances, the Court cannot ﬁnd that testimony of non-party inmates would be inherently duplicative, disproportionate, or a waste of time. Accordingly, the Court will not categorically preclude testimony from non-party inmates. Respondent may raise any speciﬁc objection to particular testimony of any non-party witnesses when those witnesses testify.

Argument: The parties may give opening statements of no more than ten minutes. The Court anticipates giving the parties an opportunity for closing argument, either on the hearing date or after the hearing date, depending on the duration of the hearing.

Video testimony: The Court is endeavoring to arrange video conferencing for the testimony of the non-inmate witnesses.

Ordered by Judge Rachel P. Kovner on 5/5/2020. (Herrera, Isaiah) (Entered: 05/06/2020)

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05/06/2020

78 NOTICE of Appearance by Noelle E. Lyle on behalf of Hassan Chunn, James Hair, Elodia Lopez, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (aty to be noticed) (Lyle, Noelle) (Entered: 05/06/2020)

05/07/2020

ORDER: A hearing on petitioners' motion for a preliminary injunction will be held on May 12, 2020 at 9:30 AM. The parties have been provided information on joining the hearing using an audio and video link. Others can access the hearing by calling the number (571) 353-2300 and typing in the access code 910660277. Ordered by Judge Rachel P. Kovner on 05/07/2020. (Chan, Tsz) (Entered: 05/07/2020)

05/07/2020

79 MEMORANDUM in Opposition to petitioners' motion for a preliminary injunction and in opposition to petitioners' motion for class certiﬁcation ﬁled by Derek Edge. (Cho, James) (Entered: 05/07/2020)

05/07/2020

80 DECLARATION of Health Services Administrator Stacey Vasquez by Derek Edge (Attachments: # 1 (Vasquez Declaration Exhibits A-D)) (Cho, James) (Entered: 05/07/2020)

05/07/2020

81 DECLARATION of Associate Warden Milinda King by Derek Edge (Attachments: # 1 Exhibit (King Declaration Exhibits A-H)) (Cho, James) (Entered: 05/07/2020)

05/07/2020

82 DECLARATION of Associate Warden Caryn Flowers by Derek Edge (Attachments: # 1 Exhibit (Flowers Declaration Exhibits A-B)) (Cho, James) (Entered: 05/07/2020)

05/07/2020

83 DECLARATION of AUSA James R. Cho by Derek Edge (Attachments: # 1 Ex. A (Venters's deposition transcript), # 2 Ex. B (expert report of Jeffrey A. Beard, Ph.D.), # 3 Ex. C (expert report of Asma Tekbali, M.P.H. with exhibits 1-15), # 4 Ex. D (screening form), # 5 Ex. E (CDC guidance)) (Cho, James) (Entered: 05/07/2020)

05/08/2020

84 Letter enclosing courtesy copy of Respondent's opposition to petitioners' motion for preliminary injunction and opposition to petitioners' motion for class certiﬁcation and supporting materials by Derek Edge (Cho, James) (Entered: 05/08/2020)

05/08/2020

85 MEMORANDUM in Opposition re 62 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction ﬁled by Hassan Chunn, James Hair, Elodia Lopez, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez. (Rosenfeld, Katherine) (Entered: 05/08/2020)

05/09/2020

86 MOTION in Limine by Hassan Chunn, James Hair, Elodia Lopez, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez. (Attachments: # 1 Petitioners' Memorandum of Law in Support of Motion in Limine, # 2 Declaration of Katherine Rosenfeld and Exhibits 1-6) (Rosenfeld, Katherine) (Entered: 05/09/2020)

05/10/2020

87 Exhibit List and Witness List submitted on behalf of all parties by Derek Edge., Witness List by Derek Edge (Cho, James) (Entered: 05/10/2020)

05/10/2020

88 REPLY in Support re 62 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction ﬁled by Derek Edge. (Attachments: # 1 Declaration of AUSA James R. Cho, # 2 Exhibit A, # 3 Exhibit B) (Marutollo, Joseph) (Entered: 05/10/2020)

05/10/2020

89 RESPONSE in Opposition re 86 MOTION in Limine ﬁled by Derek Edge. (Attachments: # 1 Declaration of Seth D. Eichenholtz, with Exhibits, # 2 Declaration of Expert Witness Asma Tekbali) (Eichenholtz, Seth) (Entered: 05/10/2020)

05/11/2020

90 REPLY in Support re 71 MOTION for Preliminary Injunction - Reply Memorandum of Law in Further Support of Petitioners' Motion for Preliminary Injunction ﬁled by Hassan Chunn, James Hair, Elodia Lopez, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez. (Rosenfeld, Katherine) (Entered: 05/11/2020)

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ORDER: Petitioners indicate in their reply that they intended to ﬁle a "Supplemental Declaration of Dr. Homer Venters" with their brief, but no such declaration has been ﬁled on the docket. Petitioners are instructed to ﬁle Dr. Venters' Supplemental Declaration. Ordered by Judge Rachel P. Kovner on 5/11/2020. (Hershey, Kenneth) (Entered: 05/11/2020)
91 AFFIDAVIT/DECLARATION in Support re 71 MOTION for Preliminary Injunction Declaration of Alexander A. Reinert ﬁled by Hassan Chunn, James Hair, Elodia Lopez, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez. (Attachments: # 1 Exhibit 1 Declaration of Anthony Sanon dated May 10, 2020, # 2 Exhibit 2 - Respondents Response to Petitioners' Interrogatory 1(f) dated April 27, 2020, # 3 Exhibit 3 Declaration of Justin Rodriguez dated May 5, 2020, # 4 Exhibit 4 - Sick Call Records produced by Respondent (To Be Filed Under Seal), # 5 Exhibit 5 - Declaration of Soffredo Gonzalez dated May 1, 2020, # 6 Exhibit 6 - Supplemental Report of Dr. Homer Venters dated May 11, 2020, # 7 Exhibit 7 - Excerpts from the 30(b)(6) Deposition of Stacey Vasquez, # 8 Exhibit 8 - Excerpts from the 30(b)(6) Deposition of Melinda King, # 9 Exhibit 9 - Declaration of James Hair dated May 11, 2020) (Rosenfeld, Katherine) (Entered: 05/11/2020)
92 Letter re: DOCUMENT SEALING by Hassan Chunn, James Hair, Elodia Lopez, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (Shapiro, Samuel) (Entered: 05/11/2020)
93 Letter enclosing redacted versions of Docket Nos. 83-3 and 89-2 and requesting the Court seal the original ﬁlings by Derek Edge (Attachments: # 1 Redacted Filing for Docket No. 83-3, # 2 Redacted Filing for Docket No. 89-2) (Eichenholtz, Seth) (Entered: 05/11/2020)
94 Exhibit List and Witness List submitted on behalf of all parties (Revised) by Derek Edge. (Marutollo, Joseph) (Entered: 05/11/2020)
ORDER: The hearing on petitioners' motion for a preliminary injunction will be continued on May 13, 2020 at 9:30 AM. The parties have been provided information on joining the hearing using an audio and video link. Others can access the hearing by calling the number (571) 353-2300 and typing in the access code 910660277. Ordered by Judge Rachel P. Kovner on 05/12/20. (Hershey, Kenneth) (Entered: 05/12/2020)
Minute Entry and Order: A hearing was held by video conference on petitioners' motion for a preliminary injunction. Katherine Rosenfeld, Betsy Ginsberg, Scout Katovich, Alexander Reinert, and Andrew Wilson appeared for petitioners. James Cho, Seth Eichenholtz, Joseph Marutollo, and Paulina Stamatelos appeared for respondent. Holly Pratesi from the Bureau of Prisons joined the conference. The Court heard argument on petitioners' motions in limine and has taken the parties' arguments under advisement. The parties agreed that the claims asserted by petitioners Hassan Chunn and Nehemiah McBride are moot, and accordingly, those claims will be dismissed. The Court heard testimony from petitioner's expert witness, Dr. Homer Venters, as well as from two witnesses for respondent: Nicole English and Asma Tekbali. Ordered by Judge Rachel P. Kovner on 05/12/2020. (Court Reporter Anthony Frisolone.) (Hershey, Kenneth) (Entered: 05/13/2020)
Minute Entry and Order: The hearing on petitioners' motion for a preliminary injunction was continued by video conference. Katherine Rosenfeld, Betsy Ginsberg, Scout Katovich, Alexander Reinert, and Andrew Wilson appeared for petitioners. James Cho, Seth Eichenholtz, Joseph Marutollo, and Paulina Stamatelos appeared for respondent. Holly Pratesi from the Bureau of Prisons joined the conference. The Court heard testimony from respondent's witness, James Beard. Summation arguments on the preliminary injunction motion will be held on May 14, 2020 at 2:00 PM. The parties have

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been provided information on joining the hearing using an audio and video link. Others can access the hearing by calling the number (571) 353-2300 and typing in the access code 910660277. Ordered by Rachel P. Kovner on 05/13/20. (Court Reporter Anthony Frisolone.) (Hershey, Kenneth) (Entered: 05/13/2020)

05/13/2020

ORDER: By agreement of the parties, the claims asserted by petitioners Hassan Chunn and Nehemiah McBride are dismissed as moot. Ordered by Judge Rachel P. Kovner on 5/13/2020 (Hershey, Kenneth) (Entered: 05/13/2020)

05/15/2020

Minute Entry and Order: Summation arguments on petitioners' motion for a preliminary injunction were held on 5/14/20 by video conference before the Honorable Rachel P. Kovner. Katherine Rosenfeld, Betsy Ginsberg, Scout Katovich, Alexander Reinert, and Andrew Wilson appeared for petitioners. James Cho, Seth Eichenholtz, Joseph Marutollo, and Paulina Stamatelos appeared for respondent. The Court directed the parties to submit proposed ﬁndings of fact by 5/19/20. The Court directed the parties to confer about a stipulation on the continuation during this case of sanitation and medical practices that petitioner has proposed and that respondent agrees are warranted under its own policies, such as the making available of soap, masks, and cleaning supplies, the cleaning of surfaces in common areas, and the use of masks by staff. The Court directed the parties to consider discussing with a mediator how sick-call requests are being handled and used, and requests that the parties advise the Court by 5/15/20 on the parties' willingness to hold those discussions with a mediator. Ordered by Judge Rachel P. Kovner. (Court Reporter Anthony Frisolone.) (Hershey, Kenneth) (Entered: 05/15/2020)

05/15/2020 95 STATUS REPORT by Derek Edge (Cho, James) (Entered: 05/15/2020)

05/18/2020

96 Letter in Response to Respondent's Status Report (Dkt. No. 95) and for Leave to File Exhibit 88 by Hassan Chunn, James Hair, Elodia Lopez, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (Rosenfeld, Katherine) (Entered: 05/18/2020)

05/19/2020

97 STATUS REPORT in response to the Court's discussion regarding sick call requests and to respectfully submit supplemental declarations by Derek Edge (Attachments: # 1 Declaration of Cdr. Scott A. Grifﬁth, MSN, RN-BC, # 2 Declaration (Supplemental) of Health Services Administrator Stacey Vasquez) (Marutollo, Joseph) (Entered: 05/19/2020)

05/19/2020

98 First MOTION to Unseal Document by David S Bralow. (Attachments: # 1 Exhibit A to Letter Motion, # 2 Notice of Appearance for D. Bralow, # 3 Rule 7 Corporate Disclosure) (Bralow, David) (Entered: 05/19/2020)

05/19/2020

ELECTRONIC ORDER re 98 First MOTION to Unseal Document ﬁled by David S Bralow. This Court grants the request of First Look Media Works, Inc. ("FLMW") to intervene for the limited purpose of opposing the sealing of sick-call request documents, but declines to address the merits of the sealing issue; that matter is pending before District Judge Rachel P. Kovner, who will consider the arguments advanced by FLMW in today's submission to this magistrate judge. Ordered by Magistrate Judge Roanne L. Mann on 5/19/2020. (Proujansky, Josh) (Entered: 05/19/2020)

05/19/2020

ORDER TO SHOW CAUSE: Respondent is directed to respond by May 20, 2020 to the requests of petitioners and intervenor to have Exhibit 88, consisting of redacted sick call requests showing possible COVID-19 symptoms, ﬁled on the public docket. Ordered by Judge Rachel P. Kovner on 5/19/2020. (Hershey, Kenneth) (Entered: 05/19/2020)

05/19/2020

99 Proposed Findings of Fact by Derek Edge (Attachments: # 1 (cover letter enclosing Respondent's [redacted] proposed ﬁndings of fact)) (Cho, James) (Entered: 05/19/2020)

05/19/2020 100 MOTION for Leave to Electronically File Document under Seal (Respondent's [unredacted] post-hearing proposed ﬁndings of fact) by Derek Edge. (Attachments: # 1

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(Respondent's [unredacted] post-hearing proposed ﬁndings of fact) (Cho, James) (Entered: 05/19/2020)
101 Proposed Findings of Fact by James Hair, Elodia Lopez, Ayman Rabadi, Justin Rodriguez (Rosenfeld, Katherine) (Entered: 05/20/2020)
102 Letter Opposing Respondent's Request (Dkt 97) to submit new Declarations and Documents by Hassan Chunn, James Hair, Elodia Lopez, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (Rosenfeld, Katherine) (Entered: 05/20/2020)
103 RESPONSE in Opposition re 98 First MOTION to Unseal Document and Petitioners' request for Leave to File Exhibit 88 at ECF No. 96 ﬁled by Derek Edge. (Stamatelos, Paulina) (Entered: 05/20/2020)
104 STATUS REPORT re: release of Petitioner Ayman Rabadi and Response to (Dkt 102) Petitioners' Letter Opposing Respondent's Request (Dkt 97) to submit new Declarations and Documents by Derek Edge (Stamatelos, Paulina) (Entered: 05/21/2020)
105 REPLY to Response to Motion re 98 First MOTION to Unseal Document ﬁled by David S Bralow. (Bralow, David) (Entered: 05/21/2020)
106 STATUS REPORT notifying the Court that Petitioner James Hair is no longer housed at MDC Brooklyn, and his claims are now moot by Derek Edge (Cho, James) (Entered: 05/26/2020)
107 Letter in response to Respondent's Status Report that the recent release of Petitioners Hair and Rabadi from the custody of the Metropolitan Detention Center renders their claims moot. (Dkt. 104 & 106) by James Hair, Elodia Lopez, Ayman Rabadi, Justin Rodriguez (Rosenfeld, Katherine) (Entered: 05/27/2020)
108 Letter respectfully informing the Court of the supplemental authority in further support of his motion to dismiss by Derek Edge (Attachments: # 1 Exhibit) (Marutollo, Joseph) (Entered: 05/27/2020)
109 Letter re: RELEVANT AUTHORITY by Hassan Chunn, James Hair, Elodia Lopez, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez (Wilson, O. Andrew) (Entered: 05/28/2020)
110 STATUS REPORT re: denial of Petitioner Elodia Lopez's motion for compassionate release at U.S. v. Elodia Lopez, No. 93-CR-306 (N.D.N.Y) (Scullin, J.) by Derek Edge (Attachments: # 1 Exhibit A - Memorandum and Order) (Stamatelos, Paulina) (Entered: 05/29/2020)
111 Letter respectfully informing the Court of supplemental authority in further support of his motion to dismiss and in opposition to Petitioners' motion for a preliminary injunction by Derek Edge (Attachments: # 1 Exhibit Williams v. Wilson, # 2 Exhibit Nellson v. Barnhart, # 3 Exhibit A.S.M. v. Warden, # 4 Exhibit Lucero-Gonzalez v. Kline) (Marutollo, Joseph) (Entered: 06/05/2020)
112 MEMORANDUM AND ORDER: The Court denies petitioners' 71 motion for a preliminary injunction. Petitioners are not entitled to immediate injunctive relief because they have not shown a clear or substantial likelihood that they will prevail on the merits. Ordered by Judge Rachel P. Kovner on 6/09/2020. (Hershey, Kenneth) (Entered: 06/09/2020)
113 ORDER: As explained in the attached order, the Court grants the petitioners' request to ﬁle Exhibit 88 on the public docket. See Dkt. 96 and 98. Petitioners are directed to ensure that all inmate names, register numbers, housing units, and arrival and departure dates are

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redacted before ﬁling. Ordered by Judge Rachel P. Kovner on 6/11/2020. (Yaffe, Leah) (Entered: 06/11/2020)
114 EXHIBIT 88 (Sick Call Records) by Elodia Lopez. Related document: 113 Order on Motion to Unseal Document,. (Rosenfeld, Katherine) (Entered: 06/14/2020)
115 Letter regarding release of last remaining named petitioner Elodia Lopez from the MDC by Derek Edge (Cho, James) (Entered: 07/28/2020)

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 Case 1:20-cv-01590-RPK-RLM Document 39 Filed 04/11/20 Page 1 of 10 PageID #: 511

RICHARD D. EMERY ANDREW G. CELLI, JR. MATTHEW D. BRINCKERHOFF JONATHAN S. ABADY EARL S. WARD ILANN M. MAAZEL HAL R. LIEBERMAN DANIEL J. KORNSTEIN O. ANDREW F. WILSON ELIZABETH S. SAYLOR KATHERINE ROSENFELD DEBRA L. GREENBERGER ZOE SALZMAN SAM SHAPIRO

EMERY CELLI BRINCKERHOFF & ABADY LLP
ATTORNEYS AT LAW 600 FIFTH AVENUE AT ROCKEFELLER CENTER
10TH FLOOR NEW YORK, NEW YORK 10020
TEL: (212) 763-5000 FAX: (212) 763-5001 www.ecbalaw.com

DIANE L. HOUK
EMMA L. FREEMAN DAVID BERMAN HARVEY PRAGER
SCOUT KATOVICH NICK BOURLAND ANDREW K. JONDAHL ANANDA BURRA
MAX SELVER

April 11, 2020
Hon. Rachel P. Kovner United States District Judge United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201
Re: Hassan Chunn et al. v. Warden Derek Edge, 20 Civ. 1590
Dear Judge Kovner:
Along with the Cardozo Civil Rights Clinic, and Alexander A. Reinert, we represent Petitioners in the above the above-referenced case. In response to Respondent’s letter dated April 10, 2020, Dkt. 37, we write to request that the Court permit limited expedited discovery in support of Petitioners’ motion for a preliminary injunction, and to oppose Respondent’s request to stay discovery pending decision on his contemplated motion to dismiss the Petition.
I. Good Cause Exists for Discovery in this Habeas Proceeding
Petitioners in habeas corpus proceedings “are entitled to careful consideration and plenary processing of their claims including full opportunity for presentation of the relevant facts.” Harris v. Nelson, 394 U.S. 286, 298 (1969). The All Writs Act, 28 U.S.C. § 1651, thus gives “federal courts the power to fashion appropriate modes of procedure, including discovery, to dispose of habeas petitions as law and justice require.” Bracy v. Gramley, 520 U.S. 899, 904 (1997) (internal citations and quotation marks omitted). In 1976, the Supreme Court promulgated and Congress adopted, the Rules Governing § 2254 Cases. See id. Rule 6(a) of those rules grants courts the discretion, “for good cause shown,” to allow habeas petitioners “to invoke the processes of discovery available under the Federal Rules of Civil Procedure.” “The simple outline of § 2241 makes clear both that Congress envisioned that habeas petitioners would have some opportunity to present and rebut facts and that courts in cases like this retain some ability to vary the ways in which they do so as mandated by due process.” Hamdi v. Rumsfeld, 542 U.S. 507, 526 (2004) (finding that courts may accept the government’s affidavit evidence only where it allows petitioner to develop factual record).

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“[W]here specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is confined illegally and is therefore entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.” Harris, 394 U.S. at 300.
Good cause exists for the limited discovery Petitioners seek here. Petitioners have alleged:
• “The MDC lacks adequate medical infrastructure to address the spread of infectious disease and treat the people most vulnerable to COVID-19” (Pet. ¶ 58);
• “[N]ew arrivals [at the MDC] are screened only for fever and recent travel to designated hotspot countries” (Pet. ¶ 60);
• An incarcerated person who tested positive for COVID-19 was housed in the intake unit at the MDC where he was in contact with other incarcerated persons and staff (Pet. ¶¶ 6365);
• The MDC staff is giving people diluted soap and asking them to clean their own cells (Pet. ¶ 69);
• No hand sanitizer is available (Pet. ¶ 73(e));
• Tissues are not readily available (Pet. ¶ 73(f));
• Each incarcerated person has received, at most, one bar of soap per week; some units have not received any soap at all (Pet. ¶ 73(g));
• The MDC has not reported how many incarcerated people are symptomatic (Pet. ¶ 71);
• The MDC has no physical space in which an ill inmate can convalesce that is separate from other inmates, warm, clean and has access to fresh water and regular hand-washing (Pet. ¶ 80); and
• Respondent has identified 537 individuals being held at the MDC who fall into the highrisk groups identified by the CDC (Pet. ¶ 59).
There is ample support for these specific allegations. As one court noted, “the MDC is no place for someone considered to be high risk for COVID-19,” going on to state that “by the warden’s own admission, the MDC ‘has not isolated its ‘at risk’ population at this time because the number of inmates who fall into this category is too large to contain and isolate on one or even two units.” United States v. Nkanga, No. 18 Cr. 713 (JMF), 2020 WL 1529535, at *2 (S.D.N.Y. March 31, 2020). Respondent does not even know the extent to which COVID-19 has penetrated the MDC and already spread within the population. As of April 10, 2020, only eleven people had been tested for COVID-19. See Respondent’s Letter Report to Chief Judge Mauskopf dated April 9, 2020.

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A “fully developed” record on Petitioners’ specific allegations would allow Petitioners to “demonstrate that [they are] confined illegally and [are] therefore entitled to relief.” Harris, 394 U.S.at 300. It is well established that incarcerated persons, like Petitioners, are entitled to be protected from conditions of confinement that create a serious risk to health or safety, including through release from custody when necessary. See Brown v. Plata, 563 U.S. 493, 531-32 (2011) (upholding lower court’s order releasing people from state prison even though release was based on prospect of future harm caused by prison overcrowding); see also Farmer v. Brennan, 511 U.S. 825, 834 (1994) (correctional official violates Eighth Amendment by consciously failing to prevent “a substantial risk of serious harm”); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“deliberate indifference” to serious medical needs violate the Eighth Amendment).1 Where, as here, the conditions of confinement “pose an unreasonable risk of serious damage to [Petitioners’] future health,” a constitutional violation is established. Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)) (alteration and internal quotation marks omitted).
Respondent is in unique and sole possession of many of the facts necessary for the Court to dispose of this habeas petition as “law and justice requires.” Bracy, 520 U.S. at 904. No one aside from Respondent’s staff has been permitted to enter the MDC since the facility was locked down several weeks ago. It is difficult for Petitioners to even communicate with their attorneys, and effectively impossible for people incarcerated in the MDC to provide sworn statements in a form that would be admissible in this Court. The information Respondent claims to have provided thus far is nothing more than generalities. For example, Petitioners still do not know the following material facts relevant to their case:
• Whether doctors are available at night and on the weekends;
• Whether MDC has the ability to check oxygenation levels of symptomatic persons;
• How many people at MDC are symptomatic;
• How many people at MDC have been sent to the hospital;
• What are the particular criteria used by the medical staff to decide whether to isolate someone;
• What are the particular criteria used by the medical staff to decide whether to test someone;
• How many test kits are at the MDC;
1 The named Petitioners are convicted and therefore their treatment is governed by the Eighth Amendment. Class members who are detained for pretrial purposes, however, are protected from deliberate indifference by the Fifth Amendment. Although pretrial class members may be entitled to even greater protection from unsafe conditions than convicted class members, Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”), for present purposes the distinction is immaterial because Respondent’s continued detention of the class plainly violates the Eighth Amendment.

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• How many days positive inmates are kept in isolation after testing positive;
• How many sick inmates are requesting care, and how they make such requests;
• What is the availability of soap for hand hygiene on each unit;
• Whether staff who go into quarantined units are being given N-95 masks and gloves;
• Whether staff who are symptomatic are being asked to return to work after 48 hours;
• Whether, when a staff member is positive or presumed positive, inmates who were in contact with that staff member are being isolated;
• Whether, when a staff member is positive or presumed positive, other staff members who were in contact with that staff member are being notified and quarantined;
• How many new people have been admitted to the MDC (both from the community and transfers from other institutions) since March 13, 2020; and
• Where those new people admitted to the facility since March 13, 2020 are in the facility.
Many reports from people inside the MDC contradict the government’s statement to this Court. Compare, e.g., Rosenfeld Decl. dated March 30, 2020 (Dkt. 12-2) ¶ 28 (reports from Petitioner that “we don’t have any soap”) with Resp.’s Mem. Of Law in Opp. To Petrs.’ Mot. For a TRO (Doc. No. 18) at 10 (“All inmates have access to soap and sinks at all times.”). The government’s statements are also apparently contradicted by the reports of employees who work at the MDC. See Internal Prison Guard Email Contradicts Government’s Claims to Judges About Containing Coronavirus at Federal Detention Center, The Intercept (April 10, 2020), available at https://theintercept.com/2020/04/10/prison-coronavirus-mdc-bop/.
Where, as here there are significant discrepancies in the record, and an information gap exists between the parties, discovery is warranted. See Pizzuti v. U.S., 809 F. Supp.2d 164 (S.D.N.Y. 2011) (good cause for discovery in where there is a discrepancy in previouslydisclosed materials). Discovery is particularly necessary here in light of the MDC’s thenWarden’s failure to accurately represent conditions inside the MDC during a crisis. In response to the power failure last winter which left the MDC in frigid darkness for a week, Judge Torres conducted a hearing and ordered an inspection of the MDC, proceedings which revealed that conditions in the jail were significantly worse than the MDC leadership had revealed. See Brooklyn Federal Jail Had Heat Failures Weeks Before Crisis, Employees Say, N.Y. Times (Feb. 5, 2019), available at https://www.nytimes.com/2019/02/05/nyregion/brooklyn-jail-heatpower.html. Cf. Drake v. Portuondo, 321 F.3d 338 (2d Cir. 2003) (finding that prosecution’s “covert and evasive” behavior justified discovery in habeas case).
Recognizing the unique circumstances created by the coronavirus pandemic, other courts have ordered limited discovery in response to recent habeas claims alleging unconstitutional conditions of confinement. See, e.g., Nikolic v. Decker, 20 Civ. 2500 (LGS), Dkt. 14 (S.D.N.Y. Mar. 30, 2020) (ordering Respondents to respond in writing to questions concerning, inter alia,

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the number of confirmed and suspected COVID-19 cases in the Orange County Jail and the procedures and protocols in place for protecting people in the Orange County Jail); Savino v. Hodgson, 20 Civ. 10617 (WGY), Dkt. 60 (D. Mass. Apr. 8, 2020) (granting motion for expedited discovery).
Respondent argues that Petitioners cannot show good cause for discovery here because the Court denied their application for a temporary restraining order. But that argument distorts the record. The Court ruled on the TRO application based solely on the record that was before the Court and specifically ordered the parties to “confer about an expedited discovery schedule and a date for a preliminary injunction hearing.” Order and Minute Entry, Apr. 8, 2020. The Court’s order contemplates that Petitioners should be allowed to supplement the record through limited, expedited discovery in advance of a preliminary injunction hearing. Discovery is appropriate in advance of a preliminary injunction hearing, where, as here, it is “reasonably tailored to the time constraints involved and to the specific issues to be addressed at the preliminary injunction hearing.” Fed. Exp. Corp. v. Fed. Espresso, Inc., No. 97 Civ. 1219, 1997 WL 736530, at *2 (N.D.N.Y. Nov. 24, 1997); see also Fed. R. Civ. P. 26(d), Commentary to 1993 Amendments, Subdivision (d) (noting that early discovery by court order “will be appropriate in some cases, such as those involving requests for a preliminary injunction”).
Respondents’ argument that Petitioners are engaged in a fishing expedition is equally misplaced. Petitioners are seeking limited discovery concerning what is currently happening inside the MDC to protect Petitioners from COVID-19 infections. The information that Petitioners seek exists; Respondent simply refuses to disclose it. See Gonzalez v. U.S., No. 12 Civ. 5226 (JLC), 2013 WL 2350434, at *10 (S.D.N.Y. May 23, 2013) (“Petitioner’s discovery request for IAB records that actually exist is not a fishing expedition, and Petitioner has shown good cause sufficient to grant the motion for discovery” (emphasis in original)).
Unlike in a more typical habeas case, Petitioners are not seeking discovery about the investigation or prosecution that led to their convictions. They are seeking information about current conditions of their confinement that is exclusively available to Respondent and inaccessible to Petitioners’ counsel. Petitioners have therefore established good cause for discovery here.
II. Good Cause Exists for the Limited Expedited Discovery that Petitioners Seek
Petitioners propose to conduct limited discovery in support of their motion for a preliminary injunction consisting of the production of three documents, a single 30(b)(6) deposition, and an inspection of the MDC by Petitioners’ correctional health expert Dr. Homer Venters.
For many of the same reasons that discovery is warranted generally in this habeas proceeding, limited, expedited discovery is necessary in advance of a preliminary injunction hearing. Courts frequently grant expedited discovery in conjunction with preliminary injunction motions. See, e.g., Briggs & Stratton Corp. v. Chongquing Rato Power Co., Ltd., No. 13 Civ. 316, 2013 WL 12134085, at *1 (N.D.N.Y. Apr. 25, 2013); 3M Co. v. HSBC Bank USA, N.A., No. 16 Civ. 5984, 2016 WL 8813992, at *2 (S.D.N.Y. Oct. 21, 2016) (in anticipation of a preliminary injunction motion, granting limited discovery requests regarding document

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production). A reasonableness or “good cause” standard applies to requests for expedited discovery. Rotten Records, Inc. v. Doe, 108 F.Supp.3d 132, 133 (W.D.N.Y. 2015); see also Ayyash v. Bank Al-Madina, 233 F.R.D. 325, 326 (S.D.N.Y. 2005) (noting that a good cause standard is consistent with the Federal Rules).2
Petitioners submit that good cause exists for the Court to order such limited discovery— consisting of a very limited document request within a brief date range, a single deposition, and an on-site inspection—because it is narrowly tailored to gather evidence bearing directly on the key factual and legal disputes in this case.
Petitioners’ request for three documents poses minimal burden to Respondent. Rather than multiple time-consuming depositions, Petitioners seek to conduct a single, streamlined 30(b)(6) deposition to obtain the facts needed for Petitioners’ motion for a preliminary injunction. Respondent has made many untested assertions about the facility’s COVID-19 response. Respondent’s claims often conflict with reports from people who are incarcerated in the MDC as relayed to their counsel and family members. Given the urgent threat posed by the spread of COVID19 to people confined at MDC, which has already resulted in the death of a number of people in federal custody, it is critical for an experienced medical expert (who is not employed by the BOP) to visit the MDC and report about conditions therein.
With respect to documents, Petitioners seek: (1) the testing protocol for COVID-19 in effect at the MDC from February 1, 2020 to date; (2) documents sufficient to show how much soap was received at the MDC from February 1, 2020 to date and (3) the sick call requests for medical care made by people incarcerated at the MDC from March 13, 2020, in redacted form to omit the person’s name and DIN number. Respondent’s objections to these requests, and claims that they will require extensive privilege reviews and custodian searches, are overblown. First, Chief Judge Mauskopf previously ordered Respondent to disclose the same testing protocol that Petitioners seek. See Admin Order No. 2020-14 (requiring Warden of MDC to provide to Court “Protocols for screening and testing inmates, staff, and other entering or leaving each facility.”). Respondent has failed to comply with this order since it has never produced the actual protocols but instead submitted a few paragraphs of generic and vague descriptions of their screening practices and absolutely nothing about their testing protocol. See Respondent’s Letter Report to Chief Judge Mauskopf dated April 9, 2020. Second, documents showing how much soap was received at MDC in the last few months are necessary to rebut Respondent’s assertion that Petitioners are receiving adequate hygiene supplies; people confined in MDC report there is little to no soap available. Third, the request for sick call requests is necessary to show that incarcerated people are requesting medical care from Respondent for COVID-19 symptoms but Respondent fails to test these individuals for the disease, as well as the changing volume of sick call requests over time. People incarcerated in the jail make sick call requests electronically, and there should be minimal burden associated with producing an electronic report. This request in
2 While some courts have adopted a formulation of the preliminary injunction test to determine whether to grant expedited discovery, such a standard “makes little sense” when expedited discovery is sought precisely so that it can be used as part of a request for preliminary injunctive relief. See Ayyash, 233 F.R.D. at 326-27 (considering, and rejecting, this alternative standard because “employing a preliminary-injunction type analysis to determine entitlement to expedited discovery makes little sense, especially when applied to a request to expedite discovery in order to prepare for a preliminary injunction hearing.”).

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no way requires defendants to parse through “hundreds of inmates’ private medical files,” Resp. Ltr. at 6, and to the extent an electronic log of these sick call requests is not available, Petitioners will of course revisit this request to tailor it to current practices for logging requests.
Petitioners are not seeking emails or ESI at this time, or the type of discovery that would involve lengthy internal processes with custodians; these are three straightforward requests for documents sufficient to show whether there is enough soap in the jail, what formal criteria are used to test sick people confined in the jail, and how many people are requesting medical care. In the time that Respondent devoted to its 10-page letter objecting to this discovery, counsel could have made a significant start on collecting the requested materials.
With respect to the 30(b)(6) notice, Petitioners will provide a notice by close of business on Sunday, April 13th. To the extent that there are disputes about the breadth of the notice, the parties will either resolve them internally or with the Court’s assistance. Again, appreciating the competing demands of the current situation on Respondent’s time, Petitioners intend to keep the deposition pointed, efficient, and narrow.
On April 10, 2020, Petitioners served their Notice of Entry on Land on Respondent. See Ex. A. Petitioners seek access to the MDC for their correctional health expert Dr. Homer Venters on April 21, 2020. Respondent objects to the proposed inspection generally but fails to cite any basis. The Court should permit the inspection. Courts routinely permit inspections of jails and prisons for the purpose of expert and counsel’s fact-gathering. See, e.g., Nunez v. City of New York, 11 Civ. 5845 (LS) (expert inspections of Rikers Island jail complex with correctional experts to photograph and inspect premises). Dr. Venters is eminently qualified to inspect the MDC and report on conditions. Dr. Venters is a physician and epidemiologist and a nationally recognized leader in correctional health. He previously served as the Chief Medical Officer for the NYC Jail system. During this time running health care on Riker Island, Dr. Venters managed multiple communicable disease outbreaks including H1N1 in 2009, which impacts almost 1/3 of housing areas inside the adolescent jail, multiple seasonal influenza outbreaks, a recurrent legionella infection and several other smaller outbreaks. Decl. of Dr. Venters ¶ 2 (Dkt. 26-4). A copy of Dr. Venters’ CV is attached as Ex. B.
III. Petitioners’ Proposed Expedited Discovery Plan Is Reasonable
Petitioners’ proposed expedited schedule is necessary given the irreparable harm faced by Petitioners, who remain in detention at the MDC, and reasonable in light of the fast-moving spread of the coronavirus in correctional institutions. As of Friday, April 10, 2020, the BOP reported that it had tested 11 people held at the MDC, and that 3 incarcerated people and 12 staff members had tested positive. (MDC’s report does not specify whether the three positive tests for incarcerated people is a cumulative number or a snapshot of the people who are currently diagnosed.) Public reports in the media suggest that sick people in the MDC are being denied access to medical care, and sent to SHU with little medical care if they become symptomatic. Reports from incarcerated people confirm that the MDC is moving symptomatic people to SHU where they receive minimal if any medical care during their “quarantine,” and that staff are routinely ignoring the emergency call bell requests for medical care from people in housing units, to the point where one sick person (who was later put in quarantine) banged on the cell

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door so hard to get attention that the door broke. Employees of the MDC report that there is not sufficient Personal Protective Equipment (PPE), that staff are not being quarantined even when they have direct contact with incarcerated people who had tested positive or were symptomatic, and that incarcerated people who tested positive were released to general population without sufficient quarantine. See United States v. Rabadi, No. 13 Cr. 353 (KMK), Dkt. 90 (Federal Defenders Letter to the Court dated April 9, 2020).
Respondent’s suggestion that the parties spend the next two months conducting discovery culminating in a preliminary injunction hearing in late June 2020 misses the point; by late June 2020, the coronavirus will either have spread exponentially in the MDC causing serious illness and potentially death, or the facility will have successfully controlled the outbreak of the virus by reducing the jail’s population and implementing large scale testing. If ever there was a situation calling for expedited discovery, it is this one, where a global pandemic threatens the health of people incarcerated in the MDC.
IV. Respondent’s Request to Stay Discovery Should Be Denied
Respondent’s request to stay discovery pending the filing of a motion to dismiss should be denied. The “mere filing of a motion to dismiss” is not automatic grounds for a stay of discovery; rather, Defendants need to make a strong showing that Plaintiffs’ claim has no merit. See Hollins v. U.S. Tennis Ass'n, 469 F. Supp. 2d 67 (E.D.N.Y. 2006); HAHA Glob., Inc. v. Barclays, No. 19 Civ. 4749, 2020 WL 832341, at *1 (S.D.N.Y. Feb. 20, 2020). At the very least, Respondent needs to show that his “arguments are likely to succeed on the merits.” Kirschner v. J.P. Morgan Chase Bank, N.A., No. 17 Civ. 6334, 2020 WL 230183, at *2 (S.D.N.Y. Jan. 15, 2020). That is difficult given that the Respondent has given no indication as to the basis for his motion to dismiss. Mirra v. Jordan, No. 15-CV-4100 AT KNF, 2015 WL 6202339, at *1 (S.D.N.Y. Oct. 16, 2015) (“Absent the defendant's motion to dismiss, it is impossible for the Court to ascertain whether a non-existing motion shows merit on its face.”).
At this time, the only arguments raised by Respondent were raised in opposition to Petitioners’ motion for a TRO, which do not suggest that Petitioners’ substantive claims lack merit. To the extent Respondent addressed the substance of Petitioners’ Eighth Amendment claim (as opposed to whether release is an appropriate remedy at the TRO stage), his argument was based entirely on the factual assertion that the BOP was taking adequate steps to protect Petitioners from harm. See Resp.’s Mem. Of Law in Opp. To Petrs.’ Mot. For a TRO (Doc. No. 18) at 12-14 (asserting that “MDC has instituted numerous provisions and safeguards to protect inmates at the MDC from infection,” that “[t]he government has taken steps to provide all MDC inmates with adequate medical care, both with respect to the prevention of infection with COVID-19 as well as the treatment should they become infected with COVID-19,” and that “the government has taken significant steps to minimize the risk of infection at the MDC.”). This response simply emphasizes how central discovery is to resolving this case, especially because the “passage of time” that would be inherent in any stay of discovery unduly prejudices the Petitioners. Kirschner, 2020 WL 620339, at *3. Moreover, in denying Petitioners’ request for a TRO, this Court notably did not find Petitioners’ Eighth Amendment claims unlikely to succeed on the merits, but focused instead on the balance of equities and the possibility that Petitioners would obtain relief through alternative means.

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V. Respondent’s Objection to the Scope of Petitioner’s Discovery Demands are Without Merit
Petitioners seek limited, expedited discovery aimed at determining how Respondent is undertaking to mitigate Petitioners’ risk of infection, not class-wide discovery. The discovery they seek is aimed at supporting their anticipated motion for a preliminary injunction, and is thus purposefully circumscribed so that it can be completed according to the schedule proposed by Petitioners. Despite Respondent’s claim that he “still does not know the full scope of Petitioners’ anticipated discovery,” Petitioners made clear during the meet and confer that the discovery would consist of an expert inspection of the MDC, one deposition of a Rule 30(b)(6) witness and a request for three specified documents. This was plainly laid out as Petitioners’ position in Section C. of the Proposed Case Management Plan submitted yesterday by Respondents. In their letter, Respondent makes no claim that the specific discovery sought by Petitioners is inappropriate prior to class certification, rather he states that if Petitioners were to seek class discovery, he would object. As no such discovery is sought, the Court need not address Respondent’s hypothetical concern.
The discovery sought by Petitioners is intended to uncover facts concerning what steps MDC has taken to mitigate risk of transmission of COVID-19 to Petitioners. That the discovery Petitioners seek – such as the testing protocol being employed at MDC – necessarily relates to how MDC is handling the pandemic with respect to putative class members as well as the individual Petitioners does not render it class-wide discovery. Petitioner also seeks a Rule 30(b)(6) deposition of a witness with knowledge of the steps Respondent is taking to mitigate risk of infection and does not intend to request information about specific members of the putative class. This is the most efficient way to obtain this information, particularly given the exigencies of the situation. Uni-Sys., LLC v. United States Tennis Ass'n, Inc., No. 17 Civ. 147, 2018 WL 6179433, at *3 (E.D.N.Y. Nov. 27, 2018) (suggesting that Rule 30(b)(6) might be more efficient means than contention interrogatories of obtaining information). Moreover, Petitioners’ notice of inspection is necessary to evaluate the current conditions at the MDC, clearly relevant to Petitioners’ claims, even if also relevant to the class-wide claims. Such discovery is routine in cases involving prison and jail conditions. Kotler v. Donelli, No. 06 Civ. 1308, 2007 WL 2757968, at *2 (N.D.N.Y. Sept. 21, 2007) (granting motion to enforce notice to inspect and photograph prison); see also Guadalupe v. City of New York, 15 Civ. 0220 (CM) (E.D.N.Y.) Dkt. 67-1 (Stipulation and Order governing plaintiff’s counsel access to Rikers Island jail); Berrian v. City of New York, 13 Civ. 1719 (DC) (S.D.N.Y.) Dkt. 28 (same); Mack v. City of New York, No. 14 Civ. 3321 (S.D.N.Y.) Dkt. 36 (same); Filer v. City of New York, 14 Civ. 5672 (PKC/LB) (E.D.N.Y.) Dkt. 60 (Stipulation and order for access to NYPD’s 113th Precinct).
Finally, even if some of Petitioners’ discovery could be construed as only relevant to class-wide relief, court routinely grant pre-certification discovery in the Second Circuit. Bais Yaakov of Spring Valley v. Houghton Mifflin Harcourt Publishers, Inc., 36 F. Supp. 3d 417, 421– 22 (S.D.N.Y. 2014). The Second Circuit itself has recognized that “at least minimal class discovery must be conducted in order to provide the court with the factual information necessary to decide” class certification. Parker v. Time Warner Entm’t Co., L.P., 331 F.3d 13, 21 (2d Cir. 2003). Thus, to the extent that any of the discovery sought by Petitioners is viewed as relevant

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only to class-wide relief, discovery is still available to the extent that discovery bears on the issues of numerosity, typicality, and adequacy of representation. The MDC’s response to the COVID-19 crisis, for example, is relevant not only to Petitioners’ individual claims but also may be relevant to issues that go to class certification.
For the foregoing reasons, Petitioners request that the Court permit limited expedited discovery in this action in support of Petitioners’ motion for a preliminary injunction, and deny Respondent’s request to stay discovery pending decision on his contemplated motion to dismiss.

cc: All Counsel (via ECF)

Respectfully Submitted, /s
Katherine Rosenfeld

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RICHARD D. EMERY ANDREW G. CELLI, JR. MATTHEW D. BRINCKERHOFF JONATHAN S. ABADY EARL S. WARD ILANN M. MAAZEL HAL R. LIEBERMAN DANIEL J. KORNSTEIN O. ANDREW F. WILSON ELIZABETH S. SAYLOR KATHERINE ROSENFELD DEBRA L. GREENBERGER ZOE SALZMAN SAM SHAPIRO

EMERY CELLI BRINCKERHOFF & ABADY LLP
ATTORNEYS AT LAW 600 FIFTH AVENUE AT ROCKEFELLER CENTER
10TH FLOOR NEW YORK, NEW YORK 10020
TEL: (212) 763-5000 FAX: (212) 763-5001 www.ecbalaw.com

DIANE L. HOUK
EMMA L. FREEMAN DAVID BERMAN HARVEY PRAGER
SCOUT KATOVICH NICK BOURLAND ANDREW K. JONDAHL ANANDA BURRA
MAX SELVER

April 12, 2020
Hon. Roanne L. Mann United States Magistrate Judge United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201
Re: Hassan Chunn et al. v. Warden Derek Edge, 20 Civ. 1590
Dear Judge Mann:
Enclosed with this letter please find Exhibits A and B to Petitioners’ Letter dated April 11, 2020, Dkt. 39. When filing the exhibits yesterday, April 11, 2020, I inadvertently filed only the exhibit cover pages, Dkt. 39-1. The two exhibits are now enclosed with this letter. I apologize to the Court for any inconvenience.

Enc. cc: All Counsel (via ECF)

Respectfully Submitted, /s
Katherine Rosenfeld

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EXHIBIT A

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
HASSAN CHUNN, et al, individually and on behalf of all others similarly situated,
Petitioners, -againstWARDEN DEREK EDGE.,
Respondent.

No. 20 Civ. 1590 NOTICE OF ENTRY ON LAND

PLEASE TAKE NOTICE THAT, pursuant to Rule 34(a)(2) of the Federal Rules of Civil Procedure, Petitioners by and through their attorneys, Emery Celli Brinckerhoff & Abady LLP, the Cardozo Civil Rights Clinic, and Alexander A. Reinert, request permission for Dr. Homer Venters, M.D., and two attorneys for Petitioners from the undersigned counsel, to enter the Metropolitan Detention Center (MDC), located at 80 29th Street, Brooklyn, New York, 11232, on April 21, 2020 at 10:00am, to review logbooks and posted orders relevant to the conditions alleged in the Petition, inspect the conditions in the facility alleged in the Petition in the following locations, and speak to incarcerated individuals (confidentially) and staff in these locations about those conditions: the Medical Unit, the Intake Unit, all Housing Units (4, 5, 6, 7, and 8), the Special Housing Unit, the Women’s Unit, the Isolation Unit, the Commissary, the staff screening area, and cleaning and sanitation areas.
During the inspection, counsel and their experts will be permitted to wear personal protective equipment, including facemasks, and carry materials necessary to ensure adequate personal hygiene, including hand sanitizer.

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Dated: April 10, 2020 New York, New York

EMERY CELLI BRINCKERHOFF & ABADY LLP

By:

/s

Katherine Rosenfeld

O. Andrew F. Wilson

Scout Katovich

600 Fifth Avenue, 10th Floor

New York, NY 10020

(212) 763-5000

CARDOZO CIVIL RIGHTS CLINIC Betsy Ginsberg Cardozo Civil Rights Clinic Benjamin N. Cardozo School of Law 55 Fifth Avenue, 11th Floor New York, NY 1003 (212) 790-0871
Alexander A. Reinert 55 Fifth Avenue, Room 1005 New York, NY 1003 (212) 790-0403
Attorneys for Petitioners

2

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EXHIBIT B

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Dr. Homer D. Venters
10 ½ Jefferson St., Port Washington, NY, 11050 hventers@gmail.com, Phone: 646-734-5994

______________________________________________________ __

HEALTH ADMINISTRATOR

PHYSICIAN

EPIDEMIOLOGIST

Professional Profile
• International leader in provision and improvement of health services to patients with criminal justice involvement.
• Innovator in linking care of the incarcerated to Medicaid, health homes, DSRIPs. • Successful implementer of nations’ first electronic health record, performance
dashboards and health information exchange among pre-trial patients. • Award winning epidemiologist focused on the intersection of health, criminal justice
and human rights in the United States and developing nations. • Human rights leader with experience using forensic science, epidemiology and public
health methods to prevent and document human rights abuses.

Professional Experience
President, Community Oriented Correctional Health Services (COCHS), 1/1/2020present. o Lead COCHS efforts to provide technical assistance, policy guidance and research
regarding correctional health and justice reform. o Oversee operations and programmatic development of COCHS o Serve as primary liaison between COCHS board, funders, staff and partners.
Senior Health and Justice Fellow, Community Oriented Correctional Health Services (COCHS), 12/1/18-12/31/2018 o Lead COCHS efforts to expand Medicaid waivers for funding of care for detained
persons relating to Substance Use and Hepatitis C. o Develop and implement COCHS strategy for promoting non-profit models of
diversion and correctional health care.
Medical/Forensic Expert, 3/2016-present o Provide expert input, review and testimony regarding health care, quality
improvement, electronic health records and data analysis in detention settings.
Director of Programs, Physicians for Human Rights, 3/16-11/18. o Lead medical forensic documentation efforts of mass crimes against Rohingya and
Yazidi people. o Initiate vicarious trauma program. o Expand forensic documentation of mass killings and war crimes. o Develop and support sexual violence capacity development with physicians, nurses
and judges. o Expand documentation of attacks against health staff and facilities in Syria and
Yemen.

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Chief Medical Officer/Assistant Vice President, Correctional Health Services, NYC Health and Hospitals Corporation 8/15-3/17.
o Transitioned entire clinical service (1,400 staff) from a for-profit staffing company model to a new division within NYC H + H.
o Developed new models of mental health and substance abuse care that significantly lowered morbidity and other adverse events.
o Connected patients to local health systems, DSRIP and health homes using approximately $5 million in external funding (grants available on request).
o Reduced overall mortality in the nation’s second largest jail system. o Increased operating budget from $140 million to $160 million. o Implemented nation’s first patient experience, provider engagement and racial
disparities programs for correctional health.
Assistant Commissioner, Correctional Health Services, New York Department of Health and Mental Hygiene, 6/11-8/15.
o Implemented nation’s first electronic medical record and health information exchange for 1,400 staff and 75,000 patients in a jail.
o Developed bilateral agreements and programs with local health homes to identify incarcerated patients and coordinate care.
o Increased operating budget of health service from $115 million to $140 million. o Established surveillance systems for injuries, sexual assault and mental health that
drove new program development and received American Public Health Association Paper of the Year 2014. o Personally care for and reported on over 100 patients injured during violent encounters with jail security staff.
Medical Director, Correctional Health Services, New York Department of Health and Mental Hygiene, 1/10-6/11.
o Directed all aspects of medical care for 75,000 patients annually in 12 jails, including specialty, dental, primary care and emergency response.
o Direct all aspects of response to infectious outbreaks of H1N1, Legionella, Clostridium Difficile.
o Developed new protocols to identify and report on injuries and sexual assault among patients.
Deputy Medical Director, Correctional Health Services, New York Department of Health and Mental Hygiene, 11/08-12/09.
o Developed training program with Montefiore Social internal medicine residency program.
o Directed and delivered health services in 2 jails.
Clinical Attending Physician, Bellevue/NYU Clinic for Survivors of Torture, 10/0712/11.
Clinical Attending Physician, Montefiore Medical Center Bronx NY, Adult Medicine, 1/08-11/09.

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Education and Training
Fellow, Public Health Research, New York University 2007-2009. MS 6/2009 Projects: Health care for detained immigrants, Health Status of African immigrants in NYC. Resident, Social Internal Medicine, Montefiore Medical Center/Albert Einstein
University7/2004- 5/2007. M.D., University of Illinois, Urbana, 12/2003. M.S. Biology, University of Illinois, Urbana, 6/03. B.A. International Relations, Tufts University, Medford, MA, 1989.
Academic Appointments, Licensure
Clinical Associate Professor, New York University College of Global Public Health, 5/18-present.
Clinical Instructor, New York University Langone School of Medicine, 2007-2018.
M.D. New York (2007-present).
Media
TV i24 Crossroads re Suicide in U.S. Jails 8/13/19.
i24 Crossroads re re Life and Death in Rikers Island 6/13/19.
Amanpour & Company, NPR/PBS re Life and Death in Rikers Island 4/15/19.
CNN, Christiane Amanpour re Forensic documentation of mass crimes against Rohingya. 7/11/18.
i24 Crossroads with David Shuster re health crisis among refugees in Syria. 7/6/18.
Canadian Broadcasting Corporation TV with Sylvie Fournier (in French) re crowd control weapons. 5/10/18
i24 Crossroads with David Shuster re Cholera outbreak in Yemen. 2/15/18.
China TV re WHO guidelines on HIV medication access 9/22/17.
Radio/Podcast Morning Edition, NPR re Health Risks of Criminal Justice System. 8/9/19.
Fresh Air with Terry Gross, NPR re Life and Death in Rikers Island, 3/6/19.
Morning Edition, NPR re Life and Death in Rikers Island, 2/22/19.
LeShow with Harry Sherer re forensic documentation of mass crimes in Myanmar, Syria,

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Iraq. 4/17/18.
Print articles and public testimony Oped: Four ways to protect our jails and prisons from coronavirus. The Hill 2/29/20.
Oped: It’s Time to Eliminate the Drunk Tank. The Hill 1/28/20.
Oped: With Kathy Morse. A Visit with my Incarcerated Mother. The Hill 9/24/19.
Oped: With Five Omar Muallim-Ak. The Truth about Suicide Behind Bars is Knowable. The Hill 8/13/19.
Oped: With Katherine McKenzie. Policymakers, provide adequate health care in prisons and detention centers. CNN Opinion, 7/18/19. Oped: Getting serious about preventable deaths and injuries behind bars. The Hill, 7/5/19.
Testimony: Access to Medication Assisted Treatment in Prisons and Jails, New York State Assembly Committee on Alcoholism and Drug Abuse, Assembly Committee on Health, and Assembly Committee on Correction. NY, NY, 11/14/18.
Oped: Attacks in Syria and Yemen are turning disease into a weapon of war, STAT News, 7/7/17.
Testimony: Connecticut Advisory Committee to the U.S. Commission on Civil Rights: Regarding the use of solitary confinement for prisoners. Hartford CT, 2/3/17.
Testimony: Venters HD, New York Advisory Committee to the U.S. Commission on Civil Rights: Regarding the use of solitary confinement for juveniles in New York. July 10, 2014. NY NY.
Testimony: New York State Assembly Committee on Correction with the Committee on Mental Health: Regarding Mental Illness in Correctional Settings. November 13, 2014. Albany NY. Testimony: New York State Assembly Committee on Correction with the Committee on Mental Health: Regarding Mental Illness in Correctional Settings. November 13, 2014. Albany NY.
Oped: Venters HD and Keller AS, The Health of Immigrant Detainees. Boston Globe, April 11, 2009.
Testimony: U.S. House of Representatives, House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law: Hearing on Problems with Immigration Detainee Medical Care, June 4, 2008.

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Peer Reviewed Publications
Parmar PK, Leigh J, Venters H, Nelson T. Violence and mortality in the Northern Rakhine State of Myanmar, 2017: results of a quantitative survey of surviving community leaders in Bangladesh. Lancet Planet Health. 2019 Mar;3(3):e144-e153.
Venters H. Notions from Kavanaugh hearings contradict medical facts. Lancet. 10/5/18.
Taylor GP, Castro I, Rebergen C, Rycroft M, Nuwayhid I, Rubenstein L, Tarakji A, Modirzadeh N, Venters H, Jabbour S. Protecting health care in armed conflict: action towards accountability. Lancet. 4/14/18.
Katyal M, Leibowitz R, Venters H. IGRA-Based Screening for Latent Tuberculosis Infection in Persons Newly Incarcerated in New York City Jails. J Correct Health Care. 2018 4/18.
Harocopos A, Allen B, Glowa-Kollisch S, Venters H, Paone D, Macdonald R. The Rikers Island Hot Spotters: Exploring the Needs of the Most Frequently Incarcerated. J Health Care Poor Underserved. 4/28/17.
MacDonald R, Akiyama MJ, Kopolow A, Rosner Z, McGahee W, Joseph R, Jaffer M, Venters H. Feasibility of Treating Hepatitis C in a Transient Jail Population. Open Forum Infect Dis. 7/7/18.
Siegler A, Kaba F, MacDonald R, Venters H. Head Trauma in Jail and Implications for Chronic Traumatic Encephalopathy. J Health Care Poor and Underserved. In Press (May 2017).
Ford E, Kim S, Venters H. Sexual abuse and injury during incarceration reveal the need for reentry trauma screening. Lancet. 4/8/18.
Alex B, Weiss DB, Kaba F, Rosner Z, Lee D, Lim S, Venters H, MacDonald R. Death After Jail Release. J Correct Health Care. 1/17.
Akiyama MJ, Kaba F, Rosner Z, Alper H, Kopolow A, Litwin AH, Venters H, MacDonald R. Correlates of Hepatitis C Virus Infection in the Targeted Testing Program of the New York City Jail System. Public Health Rep. 1/17.
Kalra R, Kollisch SG, MacDonald R, Dickey N, Rosner Z, Venters H. Staff Satisfaction, Ethical Concerns, and Burnout in the New York City Jail Health System. J Correct Health Care. 2016 Oct;22(4):383-392.
Venters H. A Three-Dimensional Action Plan to Raise the Quality of Care of US Correctional Health and Promote Alternatives to Incarceration. Am J Public Health. April 2016.104.
Glowa-Kollisch S, Kaba F, Waters A, Leung YJ, Ford E, Venters H. From Punishment to Treatment: The “Clinical Alternative to Punitive Segregation” (CAPS) Program in New York City Jails. Int J Env Res Public Health. 2016. 13(2),182.
Jaffer M, Ayad J, Tungol JG, MacDonald R, Dickey N, Venters H. Improving Transgender Healthcare in the New York City Correctional System. LGBT Health. 2016 1/8/16.

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Granski M, Keller A, Venters H. Death Rates among Detained Immigrants in the United States. Int J Env Res Public Health. 2015. 11/10/15.
Michelle Martelle, Benjamin Farber, Richard Stazesky, Nathaniel Dickey, Amanda Parsons, Homer Venters. Meaningful Use of an Electronic Health Record in the NYC Jail System. Am J Public Health. 2015. 8/12/15.
Fatos Kaba, Angela Solimo, Jasmine Graves, Sarah Glowa-Kollisch, Allison Vise, Ross MacDonald, Anthony Waters, Zachary Rosner, Nathaniel Dickey, Sonia Angell, Homer Venters. Disparities in Mental Health Referral and Diagnosis in the NYC Jail Mental Health Service. Am J Public Health. 2015. 8/12/15.
Ross MacDonald, Fatos Kaba, Zachary Rosner, Alison Vise, Michelle Skerker, David Weiss, Michelle Brittner, Nathaniel Dickey, Homer Venters. The Rikers Island Hot Spotters. Am J Public Health. 2015. 9/17/15.
Selling Molly Skerker, Nathaniel Dickey, Dana Schonberg, Ross MacDonald, Homer Venters. Improving Antenatal Care for Incarcerated Women: fulfilling the promise of the Sustainable Development Goals. Bulletin of the World Health Organization.2015.
Jasmine Graves, Jessica Steele, Fatos Kaba, Cassandra Ramdath, Zachary Rosner, Ross MacDonald, Nathanial Dickey, Homer Venters. Traumatic Brain Injury and Structural Violence among Adolescent males in the NYC Jail System J Health Care Poor Underserved. 2015;26(2):345-57.
Glowa-Kollisch S, Graves J, Dickey N, MacDonald R, Rosner Z, Waters A, Venters H. DataDriven Human Rights: Using Dual Loyalty Trainings to Promote the Care of Vulnerable Patients in Jail. Health and Human Rights. Online ahead of print, 3/12/15.
Teixeira PA1, Jordan AO, Zaller N, Shah D, Venters H. Health Outcomes for HIV-Infected Persons Released From the New York City Jail System With a Transitional Care-Coordination Plan. 2014. Am J Public Health. 2014 Dec 18.
Selling D, Lee D, Solimo A, Venters H. A Road Not Taken: Substance Abuse Programming in the New York City Jail System. J Correct Health Care. 2014 Nov 17.
Glowa-Kollisch S, Lim S, Summers C, Cohen L, Selling D, Venters H. Beyond the Bridge: Evaluating a Novel Mental Health Program in the New York City Jail System. Am J Public Health. 2014 Sep 11.
Glowa-Kollisch S, Andrade K, Stazesky R, Teixeira P, Kaba F, MacDonald R, Rosner Z, Selling D, Parsons A, Venters H. Data-Driven Human Rights: Using the Electronic Health Record to Promote Human Rights in Jail. Health and Human Rights. 2014. Vol 16 (1): 157-165.
MacDonald R, Rosner Z, Venters H. Case series of exercise-induced rhabdomyolysis in the New York City Jail System. Am J Emerg Med. 2014. Vol 32(5): 446-7.
Bechelli M, Caudy M, Gardner T, Huber A, Mancuso D, Samuels P, Shah T, Venters H. Case Studies from Three States: Breaking Down Silos Between Health Care and Criminal Justice. Health Affairs. 2014. Vol. 3. 33(3):474-81.

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Selling D, Solimo A, Lee D, Horne K, Panove E, Venters H. Surveillance of suicidal and nonsuicidal self-injury in the new York city jail system. J Correct Health Care. 2014. Apr:20(2).
Kaba F, Diamond P, Haque A, MacDonald R, Venters H. Traumatic Brain Injury Among Newly Admitted Adolescents in the New York City Jail System. J Adolesc Health. 2014. Vol 54(5): 6157.
Monga P, Keller A, Venters H. Prevention and Punishment: Barriers to accessing health services for undocumented immigrants in the United States. LAWS. 2014. 3(1).
Kaba F, Lewsi A, Glowa-Kollisch S, Hadler J, Lee D, Alper H, Selling D, MacDonald R, Solimo A, Parsons A, Venters H. Solitary Confinement and Risk of Self-Harm Among Jail Inmates. Amer J Public Health. 2014. Vol 104(3):442-7.
MacDonald R, Parsons A, Venters H. The Triple Aims of Correctional Health: Patient safety, Population Health and Human Rights. Journal of Health Care for the Poor and Underserved. 2013. 24(3).
Parvez FM, Katyal M, Alper H, Leibowitz R, Venters H. Female sex workers incarcerated in New York City jails: prevalence of sexually transmitted infections and associated risk behaviors. Sexually Transmitted Infections. 89:280-284. 2013.
Brittain J, Axelrod G, Venters H. Deaths in New York City Jails: 2001 – 2009. Am J Public Health. 2013 103:4.
Jordan AO, Cohen LR, Harriman G, Teixeira PA, Cruzado-Quinones J, Venters H. Transitional Care Coordination in New York City Jails: Facilitating Linkages to Care for People with HIV Returning Home from Rikers Island. AIDS Behav. Nov. 2012.
Jaffer M, Kimura C, Venters H. Improving medical care for patients with HIV in New York City jails. J Correct Health Care. 2012 Jul;18(3):246-50.
Ludwig A, Parsons, A, Cohen, L, Venters H. Injury Surveillance in the NYC Jail System, Am J Public Health 2012 Jun;102(6).
Venters H, Keller, AS. Psychiatric Services. (2012) Diversion of Mentally Ill Patients from Court-ordered care to Immigration Detention. Epub. 4/2012.
Venters H, Gany, F. Journal of Immigrant and Minority Health (2011) Mental Health Concerns Among African Immigrants. 13(4): 795-7.
Venters H, Foote M, Keller AS. Journal of Immigrant and Minority Health. (2010) Medical Advocacy on Behalf of Detained Immigrants. 13(3): 625-8.
Venters H, McNeely J, Keller AS. Health and Human Rights. (2010) HIV Screening and Care for Immigration Detainees. 11(2) 91-102.
Venters H, Keller AS. Journal of Health Care for the Poor and Underserved. (2009) The Immigration Detention Health Plan: An Acute Care Model for a Chronic Care Population. 20:951-957.

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Venters H, Gany, F. Journal of Immigrant and Minority Health (2009) African Immigrant Health. 4/4/09.
Venters H, Dasch-Goldberg D, Rasmussen A, Keller AS, Human Rights Quarterly (2009) Into the Abyss: Mortality and Morbidity among Detained Immigrant. 31 (2) 474-491.
Venters H, The Lancet (2008) Who is Jack Bauer? 372 (9653).
Venters H, Lainer-Vos J, Razvi A, Crawford J, Shaf’on Venable P, Drucker EM, Am J Public Health (2008) Bringing Health Care Advocacy to a Public Defender’s Office. 98 (11).
Venters H, Razvi AM, Tobia MS, Drucker E. Harm Reduct J. (2006) The case of Scott Ortiz: a clash between criminal justice and public health. Harm Reduct J. 3:21
Cloez-Tayarani I, Petit-Bertron AF, Venters HD, Cavaillon JM (2003) Internat. Immunol. Differential effect of serotonin on cytokine production in lipopolysaccharide-stimulated human peripheral blood mononuclear cells.15,1-8.
Strle K, Zhou JH, Broussard SR, Venters HD, Johnson RW, Freund GG, Dantzer R, Kelley KW, (2002) J. Neuroimmunol. IL-10 promotes survival of microglia without activating Akt. 122, 9-19.
Venters HD, Broussard SR, Zhou JH, Bluthe RM, Freund GG, Johnson RW, Dantzer R, Kelley KW, (2001) J. Neuroimmunol. Tumor necrosis factor(alpha) and insulin-like growth factor-I in the brain: is the whole greater than the sum of its parts? 119, 151-65.
Venters HD, Dantzer R, Kelley KW, (2000) Ann. N. Y. Acad. Sci. Tumor necrosis factor-alpha induces neuronal death by silencing survival signals generated by the type I insulin-like growth factor receptor. 917, 210-20.
Venters HD, Dantzer R, Kelley KW, (2000) Trends. Neurosci. A new concept in neurodegeneration: TNFalpha is a silencer of survival signals. 23, 175-80.
Venters HD, Tang Q, Liu Q, VanHoy RW, Dantzer R, Kelley KW, (1999) Proc. Natl. Acad. Sci. USA. A new mechanism of neurodegeneration: A proinflammatory cytokine inhibits receptor signaling by a survival peptide, 96, 9879-9884.
Venters HD, Ala TA, Frey WH 2nd , (1998) Inhibition of antagonist binding to human brain muscarinic receptor by vanadium compounds. Recept. Signal. Transduct. 7, 137-142.
Venters HD, Tang Q, Liu Q, VanHoy RW, Dantzer R, Kelley KW, (1999) Proc. Natl. Acad. Sci. USA. A new mechanism of neurodegeneration: A proinflammatory cytokine inhibits receptor signaling by a survival peptide, 96, 9879-9884.
Venters HD, Ala TA, Frey WH 2nd , (1998) Inhibition of antagonist binding to human brain muscarinic receptor by vanadium compounds. Recept. Signal. Transduct. 7, 137-142.
Venters HD, Bonilla LE, Jensen T, Garner HP, Bordayo EZ, Najarian MM, Ala TA, Mason RP, Frey WH 2nd, (1997) Heme from Alzheimer's brain inhibits muscarinic receptor binding via thiyl radical generation. Brain. Res. 764, 93-100.

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Kjome JR, Swenson KA, Johnson MN, Bordayo EZ, Anderson LE, Klevan LC, Fraticelli AI, Aldrich SL, Fawcett JR, Venters HD, Ala TA, Frey WH 2nd (1997) Inhibition of antagonist and agonist binding to the human brain muscarinic receptor by arachidonic acid. J. Mol. Neurosci. 10, 209-217.
Honors and Presentations (past 10 years)
Keynote Address, Academic Correctional Health Conference, April 2020, Chapel Hill, North Carolina.
TedMed Presentation, Correctional Health, Boston MA, March 2020.
Finalist, Prose Award for Literature, Social Sciences category for Life and Death in Rikers Island, February, 2020.
Keynote Address, John Howard Association Annual Benefit, November 2019, Chicago IL.
Keynote Address, Kentucky Data Forum, Foundation for a Healthy Kentucky, November 2019, Cincinnati Ohio.
Oral Presentation, Dual loyalty and other human rights concerns for physicians in jails an prisons. Association of Correctional Physicians, Annual meeting. 10/16, Las Vegas.
Oral Presentation, Clinical Alternatives to Punitive Segregation: Reducing self-harm for incarcerated patients with mental illness. American Public Health Association Annual Meeting, November 2015, Chicago IL.
Oral Presentation, Analysis of Deaths in ICE Custody over 10 Years . American Public Health Association Annual Meeting, November 2015, Chicago IL.
Oral Presentation, Medication Assisted Therapies for Opioid Dependence in the New York City Jail System. American Public Health Association Annual Meeting, November 2015, Chicago IL.
Oral Presentation, Pathologizing Normal Human Behavior: Violence and Solitary Confinement in an Urban Jail. American Public Health Association Annual Meeting, November 2014, New Orleans, LA.
Training, International Committee of the Red Cross and Red Crescent, Medical Director meeting 10/15, Presentation on Human Rights and dual loyalty in correctional health.
Paper of the Year, American Public Health Association. 2014. (Kaba F, Lewis A, GlowaKollisch S, Hadler J, Lee D, Alper H, Selling D, MacDonald R, Solimo A, Parsons A, Venters H. Solitary Confinement and Risk of Self-Harm Among Jail Inmates. Amer J Public Health. 2014. Vol 104(3):442-7.)
Oral Presentation, Pathologizing Normal Human Behavior: Violence and Solitary Confinement in an Urban Jail. American Public Health Association Annual Meeting, New Orleans LA, 2014.
Oral Presentation, Human rights at Rikers: Dual loyalty among jail health staff. American Public Health Association Annual Meeting, New Orleans LA, 2014.
Poster Presentation, Mental Health Training for Immigration Judges. American Public Health

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Association Annual Meeting, New Orleans LA, 2014.
Distinguished Service Award; Managerial Excellence. Division of Health Care Access and Improvement, NYC DOHMH. 2013.
Oral Presentation, Solitary confinement in the ICE detention system. American Public Health Association Annual Meeting, Boston MA, 2013.
Oral Presentation, Self-harm and solitary confinement in the NYC jail system. American Public Health Association Annual Meeting, Boston MA, 2013.
Oral Presentation, Implementing a human rights practice of medicine inside New York City jails. American Public Health Association Annual Meeting, Boston MA, 2013.
Poster Presentation, Human Rights on Rikers: integrating a human rights-based framework for healthcare into NYC’s jail system. American Public Health Association Annual Meeting, Boston MA, 2013.
Poster Presentation, Improving correctional health care: health information exchange and the affordable care act. American Public Health Association Annual Meeting, Boston MA, 2013.
Oral Presentation, Management of Infectious Disease Outbreaks in a Large Jail System. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Diversion of Patients from Court Ordered Mental Health Treatment to Immigration Detention. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Initiation of Antiretroviral Therapy for Newly Diagnosed HIV Patients in the NYC Jail System. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Medical Case Management in Jail Mental Health Units. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Injury Surveillance in New York City Jails. American Public Health Association Annual Meeting, Washington DC, 2011.
Oral Presentation, Ensuring Adequate Medical Care for Detained Immigrants. Venters H, Keller A, American Public Health Association Annual Meeting, Denver, CO, 2010.
Oral Presentation, HIV Testing in NYC Correctional Facilities. Venters H and Jaffer M, American Public Health Association, Annual Meeting, Denver, CO, 2010.
Oral Presentation, Medical Concerns for Detained Immigrants. Venters H, Keller A, American Public Health Association Annual Meeting, Philadelphia, PA, November 2009.
Oral Presentation, Growth of Immigration Detention Around the Globe. Venters H, Keller A, American Public Health Association Annual Meeting, Philadelphia, PA, November 2009.
Oral Presentation, Role of Hospital Ethics Boards in the Care of Immigration Detainees. Venters H, Keller A, American Public Health Association Annual Meeting, Philadelphia, PA,

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November 2009.
Oral Presentation, Health Law and Immigration Detainees. Venters H, Keller A, American Public Health Association Annual Meeting, Philadelphia, PA, November 2009.
Bro Bono Advocacy Award, Advocacy on behalf of detained immigrants. Legal Aid Society of New York, October 2009.
Oral Presentation, Deaths of immigrants detained by Immigration and Customs Enforcement. Venters H, Rasmussen A, Keller A, American Public Health Association Annual Meeting, San Diego CA, October 2008.
Poster Presentation, Death of a detained immigrant with AIDS after withholding of prophylactic Dapsone. Venters H, Rasmussen A, Keller A, Society of General Internal Medicine Annual Meeting, Pittsburgh PA, April 2008.
Poster Presentation, Tuberculosis screening among immigrants in New York City reveals higher rates of positive tuberculosis tests and less health insurance among African immigrants. Society of General Internal Medicine Annual Meeting, Pittsburgh PA, April 2008.
Daniel Leicht Award for Achievement in Social Medicine, Montefiore Medical Center, Department of Family and Social Medicine, 2007.
Poster Presentation, Case Findings of Recent Arestees. Venters H, Deluca J, Drucker E. Society of General Internal Medicine Annual Meeting, Toronto Canada, April 2007.
Poster Presentation, Bringing Primary Care to Legal Aid in the Bronx. Venters H, Deluca J, Drucker E. Society of General Internal Medicine Annual Meeting, Los Angeles CA, April 2006.
Poster Presentation, A Missed Opportunity, Diagnosing Multiple Myeloma in the Elderly Hospital Patient. Venters H, Green E., Society of General Internal Medicine Annual Meeting, New Orleans LA, April 2005.
Grants: Program
San Diego County: Review of jail best practices (COCHS), 1/2020, $90,000.
Ryan White Part A - Prison Release Services (PRS). From HHS/HRSA to Correctional Health Services (NYC DOHMH), 3/1/16-2/28/17 (Renewed since 2007). Annual budget $ 2.7 million.
Ryan White Part A - Early Intervention Services- Priority Population Testing. From HHS/HRSA to Correctional Health Services (NYC DOHMH), 3/1/16-2/28/18 (Renewed since 2013). Annual budget $250,000.
Comprehensive HIV Prevention. From HHS to Correctional Health Services (NYC DOHMH), 1/1/1612/31/16. Annual budget $500,000.
HIV/AIDS Initiative for Minority Men. From HHS Office of Minority Health to Correctional Health Services (NYC DOHMH), 9/30/14-8/31/17. Annual budget $375,000.
SPNS Workforce Initiative, From HRSA SPNS to Correctional Health Services (NYC DOHMH), 8/1/14-

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12
7/31/18. Annual budget $280,000.
SPNS Culturally Appropriate Interventions. From HRSA SPNS to Correctional Health Services (NYC DOHMH), 9/1/13-8/31/18. Annual budget $290,000.
Residential substance abuse treatment. From New York State Division of Criminal Justice Services to Correctional Health Services (NYC DOHMH), 1/1/11-12/31/17. Annual budget $175,000.
Community Action for Pre-Natal Care (CAPC). From NY State Department of Health AIDS Institute to Correctional Health Services (NYC DOHMH), 1/1/05-12/31/10. Annual budget $290,000.
Point of Service Testing. From MAC/AIDS, Elton John and Robin Hood Foundations to Correctional Health Services (NYC DOHMH), 11/1/09-10/31/12. Annual budget $100,000.
Mental Health Collaboration Grant. From USDOJ to Correctional Health Services (NYC DOHMH), 1/1/11-9/30/13. Annual budget $250,000.
Teaching
Instructor, Health in Prisons Course, Bloomberg School of Public Health, Johns Hopkins University, June 2015, June 2014, April 2019.
Instructor, Albert Einstein College of Medicine/Montefiore Social Medicine Program Yearly lectures on Data-driven human rights, 2007-present.
Other Health & Human Rights Activities
DIGNITY Danish Institute Against Torture, Symposium with Egyptian correctional health staff regarding dual loyalty and data-driven human rights. Cairo Egypt, September 20-23, 2014.
Doctors of the World, Physician evaluating survivors of torture, writing affidavits for asylum hearings, with testimony as needed, 7/05-11/18.
United States Peace Corps, Guinea Worm Educator, Togo West Africa, June 1990- December 1991.
-Primary Project; Draconculiasis Eradication. Activities included assessing levels of infection in 8 rural villages and giving prevention presentations to mothers in Ewe and French -Secondary Project; Malaria Prevention.
Books
Venters H. Life and Death in Rikers Island. Johns Hopkins University Press. 2/19.
Chapters in Books
Venters H. Mythbusting Solitary Confinement in Jail. In Solitary Confinement Effects, Practices, and Pathways toward Reform. Oxford University Press, 2020.
MacDonald R. and Venters H. Correctional Health and Decarceration. In Decarceration. Ernest

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13
Drucker, New Press, 2017.

Membership in Professional Organizations
American Public Health Association

French Ewe

Proficient Conversant

Foreign Language Proficiency

 
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RICHARD D. EMERY ANDREW G. CELLI, JR. MATTHEW D. BRINCKERHOFF JONATHAN S. ABADY EARL S. WARD ILANN M. MAAZEL HAL R. LIEBERMAN DANIEL J. KORNSTEIN O. ANDREW F. WILSON ELIZABETH S. SAYLOR KATHERINE ROSENFELD DEBRA L. GREENBERGER ZOE SALZMAN SAM SHAPIRO

EMERY CELLI BRINCKERHOFF & ABADY LLP
ATTORNEYS AT LAW 600 FIFTH AVENUE AT ROCKEFELLER CENTER
10TH FLOOR NEW YORK, NEW YORK 10020
TEL: (212) 763-5000 FAX: (212) 763-5001 www.ecbalaw.com

DIANE L. HOUK
EMMA L. FREEMAN DAVID BERMAN HARVEY PRAGER
SCOUT KATOVICH NICK BOURLAND ANDREW K. JONDAHL ANANDA BURRA
MAX SELVER

April 3, 2020
Via ECF
Honorable Rachel P. Kovner United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201
Re: Chunn, et al. v. Edge, No. 20 Civ. 1590
Dear Judge Kovner:
Along with the Cardozo Civil Rights Clinic and Alexander A. Reinert, this office represents Petitioners and the putative class in the above-captioned case. Pursuant to the Court’s Order, the parties have been working for the past two days under the supervision of Judge Mann to attempt to resolve this matter.
Pursuant to the Court’s Order, we write to advise the Court that discussions amongst the parties concluded at 10:00am today. We have not received further updates from Respondents regarding whether they will take the actions discussed with Judge Mann this morning with respect to the four named Petitioners.
In the event a settlement is not possible, we are submitting the enclosed supplemental declaration to address facts that have developed since the April 1, 2020 conference with Your Honor and issues raised at that conference.

c. All counsel (via ECF)

Very truly yours,
/s/ Katherine Rosenfeld

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; and JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 01590
SUPPLEMENTAL DECLARATION OF KATHERINE ROSENFELD

I, Katherine Rosenfeld, an attorney duly admitted to practice in the Eastern District of New York, declare under penalty of perjury and pursuant to 28 U.S.C. § 1746:
1. I am a partner at Emery Celli Brinckerhoff & Abady, LLP. Along with the Cardozo Civil Rights Clinic and Alexander A. Reinert, we represent the Petitioners and putative class.
2. I submit this declaration in further support of Petitioners’ request for a Temporary Restraining Order in the above-captioned case.
3. The COVID-19 virus continues to spread at exponential rates throughout New York City, and in federal correctional facilities around the country. As reflected in the charts attached hereto as Exhibit A, based on the data reported on a daily basis by the Bureau of Prisons (available at https://www.bop.gov/coronavirus/) and as compiled by the Federal Defenders, the number of cases among incarcerated people and corrections staff has risen exponentially over the past two weeks. Over the past three days alone, the number of incarcerated people reported as

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testing positive in BOP facilities has nearly tripled, and since March 20, 2020, the number has increased more than 50-fold.
4. As of yesterday, Thursday, April 2, 2020, MDC reported that it had no cases of COVID-19 in the facility, whereas one week ago, there was one positive individual in the incarcerated population. MDC also reported 4 positive staff members.
5. Today, in response to Chief Judge Mauskopf’s recent Order, the BOP informed the Court that as of Friday, April 3, 2020, MDC has tested 7 incarcerated people and there have been two positive cases. BOP also reported that 5 staff members have tested positive. Today’s BOP-reported data suggests that one new incarcerated person and one new staff member have tested positive for the virus within the last 24 hours. (See BOP Letter Report to Chief Judge Mauskopf dated April 3, 2020, attached hereto as Exhibit B).
6. MDC’s reports about the scale of COVID-19 infection in the facility are grossly unreliable, because MDC has only tested seven people in the facility in total to date out of a population of 1700 people. Attached as Exhibit C is the Declaration of Dr. Homer Venters dated April 2, 2020. Dr. Venters is a physician, internist and epidemiologist who was previously the Medical Director, Assistant Commissioner, and Chief Medical Officer of the NYC Jail Correctional Health Service.
7. Based on MDC’s reported statistics of positive cases as of April 2, 2020, and his knowledge of COVID-19 pathology at other correctional institutions, including facilities in New York City, Dr. Venters opines that he “would expect that many more staff and inmates are currently symptomatic and would have positive tests at this point.” ¶ 5. Dr. Venters further opines that in light of MDC’s reported statistics: “I would be concerned that the facility is not
2

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following accepted infection control and surveillance measures to address COVID-19 among staff and inmates.” ¶ 6.
8. Based on his experience and expertise in correctional health, Dr. Venters opines that: “Anyone who is symptomatic, whether or not they are a known contact of a confirmed case, should be tested.” ¶ 6(b). MDC is violating this accepted standard; it admitted to the Court on April 1, 2020 that it had only tested three people and that it does not automatically test people who report they are symptomatic. (See Transcript, April 1, 2020 (“Tr.”), attached hereto as Ex. D, at 116-17; see also Ex. B (reporting 7 incarcerated people tested to date).).
9. Based on his experience and expertise in correctional health, Dr. Venters opines that: “People held in the quarantine housing area should have their signs and symptoms checked daily, including temperature.” ¶ 6(c). MDC is violating this accepted standard; it is only monitoring people who report symptoms to facility staff, and is not checking everyone it quarantines on a daily basis.
10. Based on his experience and expertise in correctional health, Dr. Venters opines that: “People identified as high risk should be considered for immediate release based on their risk of serious illness and death from COVID-19 infection.” ¶ 6(d). MDC is violating this accepted standard; although it has a list of 537 high-risk individuals in its possession, it is not making use of that list to proactively review whether any individuals in its custody should be released.
11. Based on his experience and expertise in correctional health, Dr. Venters opines that: “People identified as high risk who remain incarcerated should be subject to the same active surveillance (daily sign and symptom checks) as the quarantine group.” ¶ 6(e). MDC is violating this accepted standard; although it has a list of 537 high-risk individuals in its
3

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possession, it is not making use of that list to protect the health of these individuals in any manner. For example, MDC is not using the list to actively medically monitor vulnerable people. According to counsel for Respondent, the list of high-risk individuals “is for staff awareness so that if there is an issue, they are aware of one of those inmates with heightened vulnerability within the facility. Beyond that there is no action . . . there is no affirmative action that has been taken other than being aware, if needed, where those folks are.” Tr. 115:9-15 (Statement of Mr. Eichenholtz); see also Tr. 115:24-116:6 (statement of Ms. Pratesi). In other words, Respondent is taking no additional affirmative steps to protect vulnerable individuals from infection with COVID-19, despite their knowledge that these individuals are at higher risk for complication and death if they contract COVID-19.
12. As Respondent disclosed at oral argument on April 1, 2020, the MDC had tested only three people to date for COVID-19. One out of three of those tests had resulted in a positive finding. Today, two days later, the MDC reports it has tested a total of seven people, and two out of the seven of those tests were positive for COVID-19.
13. Attached as Exhibit E is a Declaration from Robert L. Cohen, M.D., a physician with extensive expertise in correctional health and a member of the New York City Board of Correction. Dr. Cohen is informed that the testing criteria used by the New York City Department of Correction is broader than that in operation at the MDC, namely by testing all symptomatic people and some asymptomatic people who have been exposed to people who are confirmed positive for COVID-19. As Dr. Cohen attests, it is important to have broad testing criteria in correctional settings because people in those settings are unable to self-quarantine.
14. In a facility of 1700 people, in the midst of a global pandemic that can spread rapidly in confined spaces, in the city that is the epicenter of the pandemic, the dearth of testing
4

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suggests the very kind of willful blindness that the Supreme Court equated with subjective deliberate indifference in Farmer v. Brennan, 511 U.S. 825, 843 n.8 (“While the obviousness of a risk is not conclusive and a prison official may show that the obvious escaped him, he would not escape liability if the evidence showed that he merely refused to verify underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist . . .”); Zenon v. Downey, No. 18 Civ. 0458, 2018 WL 6702851, at *7 (N.D.N.Y. Dec. 20, 2018) (noting that supervisor’s “willful blindness” can demonstrate deliberate indifference).
15. At the April 1st hearing, the Court raised questions about the scope of a Special Master’s role. In light of those questions and subsequent events, Petitioners can provide the following additional suggestions for that role. Petitioners continue to submit that a Special Master with correctional health expertise is urgently required at the MDC given the severity of the COVID-19 pandemic. Appointing someone with correctional health knowledge to consult with the Court and the parties will provide relief in two ways: (a) addressing the immediate needs of the most vulnerable at the MDC by quickly coordinating with all stakeholders— Respondents, Petitioners, and the courts; and (b) helping to ameliorate dangerous conditions in the jail. On the first point, an individualized application process to myriad individual judges will exclude many members of the putative class, to the extent that relief can even be obtained in those proceedings over government objections and administrative barriers. Many high-risk persons at the MDC no longer have counsel or are not well enough to adequately advocate for themselves and navigate the barriers to release. For these individuals, a Special Master could be a conduit to the courts for appropriate cases to be distributed to sentencing judges, prioritize the BOP’s list of the most vulnerable, and systematically propose solutions on a group-wide basis to
5

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achieve faster, more consistent results. On the second point, a Special Master with correctional health expertise can help improve conditions at the MDC for those who will remain confined there; he or she could be conduit of information to the courts that would expert reporting on conditions from an independent, medical-based perspective. The Court can direct the Special Master’s responsibilities, reporting schedule, and interaction with stakeholders in a manner that supplements existing frameworks that would otherwise move too slowly to address the immediate needs presented by the pandemic.
16. Respondent’s lethargic pace continues to endanger not only Petitioners but others similarly situated in the MDC. On behalf of other high-risk individuals, lawyers have already requested their release, and the BOP has not responded, much less on the fast timeframe required in this public health crisis. To take just one example, a 63-year old veteran is currently confined at the MDC on a 9-month sentence, who has a release date of 7/17/20, for whom compassionate release was requested by his lawyer on March 27, 2020, and for whom no response was ever received. Securing the release of Petitioners will still leave many other such vulnerable people in the MDC, at the mercy of the BOP’s torpid and discretionary processes, particularly those who are sentenced and no longer have active counsel in their criminal cases.

Executed on: April 3, 2020 New York, New York

/s/ Katherine Rosenfeld Katherine Rosenfeld

6

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Exhibit A

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BOP-reported Positive Tests for COVID-19 Nationwide1

Date
3/19/2020 3/20/2020 3/21/2020 3/22/2020 3/23/2020 3/24/2020 3/26/2020 3/27/2020 3/29/2020 3/28/2020 3/30/2020 3/31/2020 4/1/2020 4/2/2020

Number of Positive Inmates
0 0 1 1 3 6 10 14 19 19 28 29 57 75

Number of Positive Staff
0 2 2 2 3 3 8 13 19 19 24 30 37 39

Number of Inmate Deaths 0 0 0 0 0 0 0 0 0 1 1 1 3 6

1 Numbers obtained from www.bop.gov/coronavirus on a daily basis. Media has reported that this website may understate the number that have tested positive. This report appears to be accurate, given that, e.g., on April 3, 2020, the website reports no positive inmates at MDC Brooklyn, but BOP staff have confirmed to the Chief Judge of EDNY that as of that date there are 2 positive inmates. Accordingly, this chart likely understates significantly the actual number of inmates who have tested positive. BOP does not provide any information on its website as to how many tests have actually been administered.

Case 1:20-cv-01590-RPK-RLM Document 26-2 Filed 04/03/20 Page 3 of 4 PageID #: 294

BOP-reported Positive Tests for COVID-19 Nationwide
80 70 60 50 40 30 20 10
0

Number of Positive Inmates

Number of Positive Staff

Number of Inmate Deaths

BOP-reported Positive Tests for COVID-19 Nationwide
80 70 60 50 40 30 20 10
0

Number of Positive Inmates

Number of Positive Staff

Number of Inmate Deaths

Case 1:20-cv-01590-RPK-RLM Document 26-2 Filed 04/03/20 Page 4 of 4 PageID #: 295

Percentage of Increase of Infected BOP People (Inmates and Staff) Since 3/20/2020

Date
3/21/2020 3/23/2020 3/24/2020 3/26/2020 3/27/2020 3/29/2020 3/30/2020 3/31/2020 4/1/2020 4/2/2020

Percent Increase Since 3/20/2020
50% 200% 350% 800% 1250% 1800% 2500% 2850% 4600% 5600%

Number of Positive Inmates 1 3 6 10 14 19 28 29 57 75

Number of Positive Staff 2 3 3 8 13 19 24 30 37 39

Percentage of Increase of Infected BOP People (Inmates and Staff)
6000%
5000%
4000%
3000%
2000%
1000%
0% 3/20/2020 3/22/2020 3/24/2020 3/26/2020 3/28/2020 3/30/2020 4/1/2020 4/3/2020

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Exhibit B

Case 1:20-cv-01590-RPK-RLM Document 26-3 Filed 04/03/20 Page 2 of 3 PageID #: 297
U.S. DEPARTMENT OF JUSTICE Federal Bureau of Prisons Metropolitan Correctional Center
_________________________________________________________________________________
150 Park Row New York, New York 10007
April 3, 2020
The Honorable Roslynn R. Mauskopf Chief United States District Judge Eastern District of New York 225 Cadman Plaza East Brooklyn, NY 11201
Re: Administrative Order No. 2020-14
Dear Judge Mauskopf:
The Court has ORDERED that the MDC and MCC respond to concerns about the institutions’ response to the COVID-19 pandemic. Specifically, the Court asked about protocols for screening and testing inmates, staff and others entering or leaving each facility; the number of inmates tested and the number of positive tests, the number of staff and/or others testing positive; and all efforts undertaken to mitigate the spread of COVID-19 both generally and in response to any symptomatic inmate(s) and/or positive test(s).
Staff have been tasked with screening each and every staff member who walks in the door at both facilities. Specifically, a temperature is being taken and the staff member is asked to fill out a screening form. If the staff member has a fever or answers yes to any of the questions, a medical professional can deny entry to the institution.
Medical staff are also screening new inmate arrivals to the institution the same way. Specifically, staff who are conducting the screening are to wear appropriate personal protective equipment (PPE) in accordance with guidance promulgated by the Center for Disease Control (CDC). Inmates with a temperature greater than or equal to 100.4 degrees, or overt respiratory symptoms are placed in isolation. New arrivals with a temperature of less than 100.4 degrees are placed in quarantine for fourteen days as a precautionary measure. Inmates leaving either BOP facility are also screened.
Any inmate currently in BOP custody who presents with COVID-19 like symptoms is assessed by the institution health services staff. An inmate exhibiting symptoms consistent with COVID19 will be placed in isolation. The remainder of the inmates on his or her unit will be quarantined to ensure additional inmates do not develop symptoms. The inmates medical isolation will be evaluated by medical staff at least twice a day, and the inmates on a medically quarantined unit will have their temperature checked twice a day.

Case 1:20-cv-01590-RPK-RLM Document 26-3 Filed 04/03/20 Page 3 of 3 PageID #: 298 Currently, the BOP has enacted a national 14-day action plan to increase social distancing in the facilities. Specifically, inmates in every institution will be secured in their assigned cells. At MDC and MCC, the inmates will be released from their cells 3 days per week in order to shower, use the phones, and utilize the TRULINCs system. This will be done in small groups and social distancing has been encouraged. The national action plan will not, however, affect the provision of legal phone calls. Inmates will still be taken out of their cells for legal phone calls.
Inmate orderlies are cleaning the common areas of all housing units, and inmates have been instructed to continue to wipe down and sanitize their living quarters.
MCC and MDC unit team staff and officers are available to the inmate population to address any and all issues, including medical concerns, property concerns, and/or food related requests. Unit team staff are providing legal calls to attorneys. Any inmate can also request medical care from health services providers when they make rounds on the housing units.
With regard to the numbers as of April 3, 2020 for MDC: Inmates tested: 7 Inmates positive: 2 Staff Positive: 5
With regard to the numbers as of April 2, 2020 for MCC: Inmates tested: 5 Inmates positive: 4 Staff Positive: 7
Respectfully submitted,
s/
M. Licon-Vitale Warden MCC New York
s/
D. Edge Warden MDC Brooklyn

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Exhibit C

Case 1:20-cv-01590-RPK-RLM Document 26-4 Filed 04/03/20 Page 2 of 3 PageID #: 300
I, Homer Venters, hereby declare the following:
Background
1. I am a physician, internist and epidemiologist with over a decade of experience in providing, improving and leading health services for incarcerated people. My clinical training includes residency training in internal medicine at Albert Einstein/Montefiore Medical Center (2007) and a fellowship in public health research at the New York University School of Medicine (2009). My experience in correctional health includes two years visiting immigration detention centers and conducting analyses of physical and mental health policies and procedures for persons detained by the U.S. Department of Homeland Security. This work included and resulted in collaboration with ICE on numerous individual cases of medical release, formulation of health-related policies as well as testimony before U.S. Congress regarding mortality inside ICE detention facilities.
2. After my fellowship training, I became the Deputy Medical Director of the NYC Jail Correctional Health Service. This position included both direct care to persons held in NYC’s 12 jails, as well as oversight of medical policies for their care. This role included oversight of chronic care, sick call, specialty referral and emergency care. I subsequently was promoted to the positions of Medical Director, Assistant Commissioner, and Chief Medical Officer. In the latter two roles, I was responsible for all aspects of health services including physical and mental health, addiction, quality improvement, re-entry and morbidity and mortality reviews as well as all training and oversight of physicians, nursing and pharmacy staff. In these roles I was also responsible for evaluating and making recommendations on the health implications of numerous security policies and practices including use of force and restraints. During this time I managed multiple communicable disease outbreaks including H1N1 in 2009, which impacts almost 1/3 of housing areas inside the adolescent jail, multiple seasonal influenza outbreaks, a recurrent legionella infection and several other smaller outbreaks.
3. In March 2017, I left Correctional Health Services of NYC to become the Director of Programs for Physicians for Human Rights. In this role, I oversaw all programs of Physicians for Human Rights, including training of physicians, judges and law enforcement staff on forensic evaluation and documentation, analysis of mass graves and mass atrocities, documentation of torture and sexual violence, and analysis of attacks against healthcare workers.
4. In December 2018 I became the Senior Health and Justice Fellow for Community Oriented Correctional Health Services (COCHS), a nonprofit organization that promotes evidence-based improvements to correctional practices across the U.S. In January 2020, I became the president of COCHS. I also work as a medical expert in cases involving correctional health and I have a book on the health risks of jail (Life and Death in Rikers Island) which was published in early 2019 by Johns Hopkins University Press.
COVID-19 in Brooklyn Federal Prison
5. It is my understanding that one inmate and one or more staff members tested positive for COVID-19 during the week of March 20, 2020. Based on this, and my understanding of COVID-19 pathology and spread in correctional institutions, I would expect that many more staff and inmates are currently symptomatic and would have positive tests at this point. By comparison, after the initial index cases among one correctional officer and one inmate occurred in the NYC jail system, the number of combined cases jumped to 38 and 454 in the two subsequent weeks.

Case 1:20-cv-01590-RPK-RLM Document 26-4 Filed 04/03/20 Page 3 of 3 PageID #: 301
COVID-19 in NYC Jails (all + tests)
500 450 400 350 300 250 200 150 100
50 0
6. If a similar rise in the number of cases has not been observed in the Brooklyn Federal Detention Center, I would be concerned that the facility is not following accepted infection control and surveillance measures to address COVID-19 among staff and inmates. The following measures should be part of the facility plan in place; a. All known contacts with the initial case who are asymptomatic should be quarantined either at home for staff, or in a designated housing area for inmates. b. Anyone who is symptomatic, whether or not they are a known contact of a confirmed case, should be tested. c. People held in the quarantine housing area should have their signs and symptoms checked daily, including temperature. d. People identified as high risk should be considered for immediate release based on their risk of serious illness and death from COVID-19 infection. e. People identified as high risk who remain incarcerated should be subject to the same active surveillance (daily sign and symptom checks) as the quarantine group.
Signed
Homer Venters MD, MS 4/2/20

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Exhibit D

Case 1:20-cv-01590-RPK-RLM Document 26-5 Filed 04/03/20 Page 2 of 147 PageID #: 303

1

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

- - - - - - - - - - - - - - - - X

HASSAN CHUNN, et al.,

:

:

Plaintiffs,

:

:

-against-

:

:

:

:

:

WARDEN DEREK EDGE, et al.,

:

:

Defendants.

:

:

- - - - - - - - - - - - - - - - X

20-CV-1590(RPK)
United States Courthouse Brooklyn, New York
Wednesday, April 1, 2020 11:30 a.m.

TRANSCRIPT OF CIVIL CAUSE FOR TEMPORARY RESTRAINING ORDER BEFORE THE HONORABLE RACHEL P. KOVNER UNITED STATES DISTRICT JUDGE

A P P E A R A N C E S:

For the Petitioners:

EMERY CELLI BRINCKERHOFF & ABADY LLP Attorneys for the Petitioners Hassan Chunn, et al.
600 Fifth Avenue 10th Floor New York, New York 10020 BY: KATHERINE R. ROSENFELD, ESQ. O. ANDREW F. WILSON, ESQ.

BENJAMIN N. CARDOZO SCHOOL OF LAW For the Petitioners Hassan Chunn, et al.
55 Park Avenue Room 938 New York, New York 10003 BY: ALEXANDER A. REINERT, ESQ., ESQ. BETSY R. GINSBURG, ESQ.

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

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2

A P P E A R A N C E S: (Continued.)

For the Respondents:

RICHARD P. DONOGHUE, ESQ. UNITED STATES ATTORNEY EASTERN DISTRICT OF NEW YORK Attorney for the Respondents Warden Derek Edge, et al.
271 Cadman Plaza East Brooklyn, New York 11201 BY: JAMES R. CHO, ESQ. SETH EICHENHOLTZ, ESQ. ALLON LIFSHITZ, ESQ. Assistant United States Attorneys

ALSO PRESENT: Deirdre von Dornum, Federal Defenders of New York, Inc. Holly P. Pratesi, Esq., Federal Bureau of Prisons Nicole McFarland, Esq., Federal Bureau of Prisons Lisa Olson, Justice Department, Federal Programs Eddie Kim, Intern, Columbia Law School

Court Reporter:

Anthony D. Frisolone, FAPR, RDR, CRR, CRI Official Court Reporter Telephone: (718) 613-2487 Facsimile: (718) 613-2694 E-mail: Anthony_Frisolone@nyed.uscourts.gov

Proceedings recorded by computerized stenography. Transcript produced by Computer-aided Transcription.

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

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Telephonic Hearing

3

1

(The following takes place via teleconferencing with

2 all parties dialing in remotely.)

3

(Parties appear via telephone.)

4

THE COURT: Hi, everybody. This is a telephone

5 conversation in Chunn v. Edge, Docket No. 20-CV-5090.

6

I can tell there are a bunch of folks on the line

7 but I'm wondering if the parties can state their appearances.

8

MS. ROSENFELD: Good morning, your Honor this is

9 Katie Rosenfeld from Emery Celli Brinckerhoff & Abady LLP for

10 the petitioners.

11

Would you like all of the petitioners' counsel to

12 give their individual appearances?

13

THE COURT: So I think anybody who is going to be

14 speaking on the call, it would be helpful to identify

15 yourselves so that the Court reporter has that information.

16

MR. REINERT: Sure, your Honor. Good morning, this

17 is Alex Reinert, also counsel for the petitioners.

18

MR. WILSON: Andrew Wilson also counsel for the

19 petitioners.

20

THE COURT: Great. Is that everybody on

21 petitioners' side?

22

MS. GINSBURG: Betsy Ginsburg for petitioners.

23

THE COURT: Is that the whole petitioners' team?

24

MS. ROSENFELD: There are other lawyers who are on

25 the line who are working on the case, your Honor, but I don't

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Telephonic Hearing

4

1 believe anyone else will be speaking other than the people who

2 just gave their appearances.

3

THE COURT: Who do we have for the respondent?

4

MR. CHO: Good morning, your Honor. James Cho with

5 the U.S. Attorney's Office on behalf the respondents.

6

Also on the line on behalf the Government we have

7 Holly Pratesi with the Bureau of Prisons; Seth Eichenholtz,

8 Deputy Chief, Civil Division, U.S. Attorney's Office; Allon

9 Lifshitz, Deputy Chief, Criminal Division, U.S. Attorney's

10 Office; Lisa Olson, Justice Department, Federal Programs; and

11 my intern Eddie Kim with Columbia Law School.

12

THE COURT: Super.

13

MR. EICHENHOLTZ: Your Honor, this is Seth

14 Eichenholtz.

15

I just wanted to let the Court know and the

16 plaintiffs know we did have, in addition to we have filed a

17 declaration from Associate Warden King in response to your

18 Honor's order. We do have a brief we also wanted to file

19 ahead of time. I'm having some technical issues, so if that

20 pops up during the conference, obviously, we didn't get it out

21 before the conference so that is coming. I just wanted to let

22 everyone know.

23

THE COURT: I'm just going -- to so did you just

24 file a declaration or --

25

MR. CHO: Yes. We filed a supplemental declaration

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Telephonic Hearing

5

1 of the associate warden responding to point 3 of your order

2 from last night dealing with MDC's efforts to implement a --

3

THE COURT: Do you mind also e-mailing that to our

4 chambers e-mail address because I'm not seeing it on the

5 docket. I'm also wondering if petitioners have it.

6

MS. ROSENFELD: This is Katie Rosenfeld, your Honor,

7 we do. I have it in front of me, the declaration.

8

THE COURT: Well, it might be just slow in popping

9 up object my docket, but --

10

MR. EICHENHOLTZ: Your Honor, I'm sitting at my

11 laptop now, so I could e-mail it to chambers. If you could

12 give me the e-mail address.

13

THE COURT: I'm hoping that one of my clerks will

14 jump in if I'm saying it wrong, but I believe it's

15 kovner_chambers@edny.uscourts.gov.

16

MR. CHO: The brief that we're filing or attempting

17 to file right now addresses points 1 and 2 in the order as

18 well.

19

THE COURT: So it sounds like it's possible that

20 we'll talk about some things that are duplicating what's in

21 the written filings that are being submitted with the

22 expectation that we'll be covering something that's being

23 addressed in those but we'll see.

24

Let me just, I guess, cover a couple of things at

25 the outset. So it would be helpful, I know there are a lot of

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Telephonic Hearing

6

1 people on this line, if you're not going to be talking, please

2 mute yourself so that we don't pick up background noise.

3

When you're talking, if you don't mind just

4 identifying yourself always before you talk because,

5 otherwise, the Court reporter is going to have a hard time

6 knowing who is is who. And if you also don't mind just being

7 careful about overlapping voices on the call. It's much

8 harder than even in person to take down what's going on if

9 people overlap. So if you can go in sequence for the Court

10 reporter.

11

The other housekeeping issue I wanted to mention to

12 you all is I know that there's been a letter suggesting that

13 this should be designated a related case to the Federal

14 Defenders case. So one thing that I have that letter and

15 Judge Brodie also has that letter. I think we're thinking

16 about the related case issue. But since this one is a TRO, we

17 felt we both agreed that I would handle this now while that

18 request is pending.

19

I think we also say if, I don't know if the

20 Government is intending to put in a letter, I know that the

21 letter from petitioner said the Government consents to the

22 designation. But, certainly, to the extent that the

23 Government has anything else they want to say about that

24 issue, it might be helpful to designate this a related case.

25

So, for this call, I wanted to let you know since

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Telephonic Hearing

7

1 you're putting in this letter or putting in that letter and

2 have not heard anything back, that's where we stand on that.

3

MR. EICHENHOLTZ: Your Honor, I just wanted say that

4 a we do -- I think that the Government's position in terms of

5 relation, especially in terms of whether this is the same, you

6 know, kind of case topic also in the scope of the Federal

7 Defenders case is something where we do have a position that I

8 think we'd want to lay out to the Court as far as that

9 consideration. We weren't going to object to the request, we

10 do disagree with the characterization that it's related in the

11 sense that it's the same subject. We disagree with that. We

12 let that be known to the petitioners when they asked our

13 consent and we're happy to put in the letter whenever the

14 Court would like it but it expands on that position.

15

THE COURT: Okay. Great.

16

Well, then I think probably where we'll end up is

17 we're waiting to receive that letter because it would be

18 helpful to hear the Government's views on that question before

19 addressing the related case issue. I just wanted to flag that

20 that issue is something we're aware of so that you don't think

21 that it's fallen through the cracks.

22

So, I guess, turning to the TRO, I'll tell you that

23 I have a bunch of questions for both parties and then there

24 are the three points I've flagged for you all last night. I

25 think I was particularly hoping that both of you would

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Telephonic Hearing

8

1 address. So I also wanted to make sure that you, you know,

2 obviously, it's a fast-moving case and I wanted to make sure

3 that you all had the opportunity to also say whatever you

4 wanted to say. And it seemed like maybe I'll give you that

5 chance at the outset and I promise to also give you that

6 chance at the end.

7

So I read the briefing and there is absolutely no

8 need to recapitulate stuff that's in the brief just to put it

9 on my radar. But before I get into the specific questions

10 that I have which I think, generally, fall into the -- maybe

11 we can talk some at the outset about the facts and where

12 there's agreement and disagreement on that and then turn to

13 some legal questions that I have. But let me, at the outset

14 just open it up to anything that you all wanted to open with

15 at the start.

16

MS. ROSENFELD: Thank you, your Honor.

17

Consistent with what you just said, I would like to

18 give the Court a brief initial statement of the facts, and

19 then I'll ask my colleague Alex Reinert to specifically

20 address the three questions that the Court asked if that

21 works.

22

THE COURT: Sure.

23

MS. ROSENFELD: So, your Honor, as you know, we're

24 on this TRO, a motion for four specific individuals:

25 Mr. Chunn, Mr. McBride, Mr. Rabaldi, and Mr. Rodriguez. And

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Telephonic Hearing

9

1 just to focus ourselves at this stage, at the TRO stage, the

2 relief that we're seeking is narrow which is that we are

3 seeking the release of these four individuals who are named in

4 the petition and we are seeking appointment of a special

5 master on an emergency basis to convene a release and

6 mitigation committee to include a doctor in order to evaluate

7 everybody else in the putative class for relief and make

8 recommendations.

9

So while, obviously, there are very broad issues

10 about all of the class members for whom are seeking relief at

11 the TRO stage, those are the two significant, but yet, narrow

12 things that we are seeking.

13

As the Court I'm sure is very aware, there's

14 obviously a public health disaster unfolding before all of our

15 eyes in the city and in correctional settings around the city.

16 The Bureau of Prisons's papers relies very heavily on the fact

17 that their mitigation impact is working because there has only

18 been one diagnosed case at MDC among the incarcerated people

19 to date.

20

I did want to point out to the Court that in my

21 declaration, we included statistics that have been gathered

22 from the Legal Aid Society showing that on Rikers Island there

23 was also only one case as of March 19th, and today, I checked

24 this morning, Rikers Island had 180 people. It was 139 people

25 when we filed on Monday.

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

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Telephonic Hearing

10

1

So it's important to know we're very early in the

2 crisis at MDC and that's obviously a good thing from the

3 perspective of we can take action now.

4

I also wanted to let the Court know that, you know,

5 we think that the situation at MDC is very rapidly changing.

6 We're receiving constant communications from people who are

7 incarcerated there. We heard this morning that Unit 53, which

8 has 110 people on it has four to five extremely sick people

9 who were removed and taken to the SHU in the last 24 hours.

10 That's been reported to us by three separate incarcerated

11 people who we've been in contact with. We've also been told

12 this morning that inmate workers are being sent to deliver

13 supplies and to clean infected areas without gloves or masks.

14

We're informed that there was no medical staff at

15 the jail on Monday evening we're informed that people are

16 being told as of yesterday to eat in their cells as part of

17 the new more restrictive measures, but that they are being

18 told that they can return to the tables and socialize at the

19 tables after they eat. So all of this information is just

20 coming in to us in the last few hours.

21

I also wanted to tell you that Deidre von Dornum,

22 who is the attorney in charge of the Eastern District Federal

23 Defenders office, is also on the line and may speak at a

24 certain point to answer the Court's questions.

25

The next point I wanted to make is that when we

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Telephonic Hearing

11

1 looked at the BOP papers, we think there are actually a lot of

2 facts that are not in dispute. There's no dispute that there

3 are 537 people on the BOP's list who were designated as high

4 risks or people who were vulnerable given medical conditions.

5 There's no dispute that right now MDC is only monitoring

6 symptomatic people. The CDC reported yesterday that

7 25 percent of the people with virus are asymptomatic.

8

So the BOP's approach is indisputably, at this point

9 only responds to people showing symptoms. There is no dispute

10 that you cannot socially distance in a jail. There is no

11 dispute that there are multiple positive staff members at the

12 jail, there's five at least. The papers are entirely silent

13 as to who may have been exposed to these staff members and

14 what measures are taken to address that. It is not disputed

15 that the isolated -- that people are locked in their cells. I

16 hear somebody's dog.

17

And that that's a critical point, your Honor. When

18 the BOP is telling you that people are isolated but what that

19 means is that they are in a cell with another person and they

20 are leaving the cell for showers, for legal calls, and for

21 other reasons.

22

It is also important, I think, your Honor, to look

23 at what the BOP doesn't tell you in its papers. You're not

24 being told how many people have been tested, how many people

25 tests are available, how many people are quarantined, how many

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Telephonic Hearing

12

1 are in isolation, or what medical facilities are available.

2 And I suggest, your Honor, that the silence on those very

3 critical facts which are in BOP's possession, not ours, is

4 very, very concerning alarming.

5

Finally, your Honor, in terms of the status of the

6 MDC. The MDC is just not equipped to manage a crisis

7 resulting from a virus. It's not a medical facility and

8 cannot care for ill people. It's not disputed, I believe, it

9 has no ventilators. It has no medical units. When people are

10 sick at the MDC, they either go to the hospital or they stay

11 in their cells. Also, all of the hospitals in the area that

12 MDC is situated in are overwhelmed. Many people go to

13 Kingsbrook Jewish Medical Center which is really at the

14 epicenter, I think, of the problem with hospital capacity.

15 MDC can't intubate people, it does not have negative pressure

16 isolation rooms.

17

And it apparently cannot implement its own best

18 practices, your Honor. The inmate screening tool that is

19 submitted with the BOP's submission recommends that

20 asymptomatic patients who have been exposed to someone who has

21 been diagnosed in the last 14 days be held in a single cell.

22 That cannot occur at MDC. Almost everyone at MDC is

23 double-celled.

24

Finally, your Honor, before my colleague here

25 responds to your specific questions, I think it's very

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Telephonic Hearing

13

1 important to note to the Court that we are seeking the release

2 of our four petitioners today and we are happy to answer any

3 individual questions about their status and their situation.

4 But part of the situation from a public health perspective,

5 and we submitted several medical declarations in support of

6 this, is that the unconstitutional conditions for the

7 petitioners are also a threat to general public health, to the

8 people who work at the MDC, the medical staff at the hospital

9 and at MDC, and in the communicate at large.

10

And so, with that, if the Court would like

11 Mr. Reinert to address more specific requests.

12

MR. REINERT: Good morning, your Honor. This is

13 Alex Reinert for petitioners.

14

And if the Court will bear with me, I think it's

15 important to get a little bit of background as I transition to

16 the Court's questions.

17

I think, you know, the respondent's basic position

18 here as my colleague averted to is they have only one case

19 among the incarcerated people at the MDC and they're taking

20 steps to mitigate risk. And it's instructive to look at the

21 spread of the disease within the Bureau of Prisons over time

22 as the Government has consistently resisted efforts to release

23 vulnerable people all over the country because it bears on

24 your Honor's three questions.

25

And so, the Hamilton case cited by the defendants in

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1 front of Judge Garaufis on March 16, 2020. What did the BOP

2 say? They said, look, don't worry, there have been no

3 confirmed cases of COVID-19 in the Bureau of Prisons including

4 in the MDC, and we're implementing national language to

5 mitigate the spread within prisons. And they responded today

6 and they said the same thing in a March 19th filing in the

7 Western District of Washington.

8

So that was on March 16th, March 19th, don't worry,

9 we don't have any cases, we're taking measures. So fast

10 forward to the Redzepagic case which also is submitted by

11 respondent. Now, we're on March 26th and the BOP files two

12 letters on March 26th because they have to update the Court.

13 The first letter they say is about the MCC, not about the MDC.

14

Now, they focus on the fact that there are no

15 COVID-19 cases at the MCC, although they acknowledge there

16 were three people in BOP facilities throughout the country

17 including staff who tested positive. Then they have to update

18 their letter that same day because now they realize there was

19 a person who tested positive for COVID-19 at MCC. That's on

20 March 26th, they said in that letter that the person was

21 returned to the MCC and placed in isolation. I suggest that's

22 the thing they're doing to prevent the spread.

23

And now, less than a week later, just at the MCC,

24 there are at least three cases among incarcerated people. And

25 we have confidence that we've submitted some information to

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1 justify that confidence that the BOP numbers are under-counts.

2

So now today, or at least as of yesterday, four

3 people in BOP custody through the country we have 29 people

4 incarcerated people, according to the BOP, who tested positive

5 and also at least 30 staff. Back on March 16th, they said

6 nobody, no incarcerated people, no staff. And we've got now

7 at least one death in custody and we're very confident that

8 this was a significant undercount of the actual cases.

9

And so, what we're watching as the BOP asserts to

10 courts around the country including your Honor is the spread

11 of the disease throughout the BOP in real-time even as the BOP

12 is insisting that they're taking mitigating measures. In one

13 week, the cases increased by more than 800 percent. And

14 that's based on the reporting by BOP, and at every stage the

15 Government has said, there is nothing to see here, we're

16 implementing mitigating measures.

17

Rarely is a court and parties, and I think parties

18 on both sides, take the position where we can avert disaster

19 before it strikes. And the Court has instructed us, the

20 Supreme Court has instructed us, we don't have to wait for a

21 tragedy to happen for the Eighth Amendment to kick in and I

22 think it's a fundamental premise on petitioner's request for

23 relief here.

24

So now I want to transition to the Court's specific

25 questions because I think to some degree it answers, that

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1 factual scenario answers, why the relief we seek is so

2 critical here.

3

In terms of whether or not compassionate release on

4 bail is an answer, we'd start with the proposition which --

5 and I hope your Honor will understand our position -- which is

6 that habeas relief doesn't depend on the presence or absence

7 of other means of obtaining release. So even if they were an

8 answer here, that doesn't mean that the petitioners aren't

9 entitled to habeas. And one of your Honor's colleagues in the

10 Southern District, Judge Furman, just in a case involving an

11 individual request for release says we need specific action

12 because a judge can only grant so much in any one case --

13

THE COURT: The congressional and executive action.

14

MR. REINERT: Well, your Honor, that doesn't mean

15 there isn't a role for judicial action in terms of we can

16 establish an entitlement to relief. As for compassionate

17 release, there is requirements for compassionate release that

18 the Government has insisted in opposition to a request for

19 compassionate release.

20

One thing the Government says is you need to wait

21 30. Days we don't have 30 days to wait for people like

22 petitioners. And the Government has even said that even if

23 you wait for 30 days, they've taken the position that the

24 COVID-19 crisis doesn't qualify for people to get released on

25 compassionate release. And although defense attorneys are

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1 taking the opposite position, the Government is saying

2 compassionate release isn't an option here. Bail is not an

3 answer for convicted people as before petitioners are

4 convicted, and for pretrial people it might not be an answer

5 in some cases, it depends on the circumstances of whether

6 someone can even afford bail and it also raises timing issues.

7 And this is exactly why we propose the special master, if

8 necessary, to deal with individualized circumstances.

9

So this is why we think a systemic approach is

10 necessary here especially in light of what we've been

11 observing throughout the BOP which is continued insistence on

12 mitigating measures that do not appear to be working, and

13 we've submitted declarations from medical experts explaining

14 why it's so dangerous to have a disease like this spreading in

15 a correctional setting and respondent has not provided any

16 evidence to the contrary. So that's an explanation for why

17 compassionate release on bail is a sufficient answer area.

18

THE COURT: I don't wasn't to interrupt you at all

19 on that, but before you move on for a minute I did want to ask

20 you a couple of things about that so I don't know if now is

21 the right now.

22

MR. REINERT: Go ahead. I'm all yours.

23

THE COURT: So talking about the named petitioners

24 who are all sentenced. I take your point about compassionate

25 release and the 30-day period. Is there any other reason, so

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1 there is the obstacle that you're pointing out that they can't

2 immediately go to court, they have to make the request and

3 then wait 30 days or wait for the denial as I understand it,

4 so I understand that. Any other obstacle, like, is there a

5 merits obstacle?

6

MR. REINERT: Your Honor, the Government has

7 asserted that there is a merits obstacle.

8

(Cross Talk.)

9

MR. REINERT: Federal Defenders stated their

10 position.

11

THE COURT: From your perspective, these are people

12 who could file a compassionate release claim raising COVID as

13 a ground and any other grounds. Folks are doing that, right,

14 and some of them are getting it, it seems like that. I saw

15 one today.

16

MR. REINERT: Folks are doing that for sure against

17 strident opposition from the Government I would say.

18

MS. ROSENFELD: Your Honor, this is Katie Rosenfeld.

19

For one of our petitioners, Mr. McBride, his lawyer

20 did make a compassionate release request on March 26, 2020,

21 and on March 31, 2020, the response was from the BOP via

22 e-mail, We received the following e-mail in relation," I'm

23 sorry, "Your request has been forwarded to the appropriate

24 department." So that was as of yesterday.

25

THE COURT: That was one of the questions I am going

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1 to ask, and I don't mean to interrupt you, but when you're can

2 you address -- I know there's this material filed indicating

3 that the plaintiffs here, or the petitioners here, sought some

4 kind of relief from the BOP and I was wondering if that making

5 a compassionate release request or seeking discharge to home

6 confinement or something else. It sounds like -- Mr. McBride

7 was a compassionate release request.

8

MS. ROSENFELD: For Mr. McBride, it was

9 compassionate release. And that e-mail, five days later, that

10 has been forwarded with the response. For Mr. Chunn and

11 Mr. Rabaldi, I'm sorry, and Mr. Rodriguez, I believe it was to

12 home confinement generally.

13

So there's a mix, but I think what's the unifying

14 factor is that the BOP hasn't responded to any of these

15 requests; and so, while in the normal course of events, we can

16 appreciate that five days may be a window to acknowledge

17 receipt of something like this in the context of the current

18 literal health crisis putting these particular people who all

19 have serious health conditions that process is too slow.

20

THE COURT: Okay. And then I guess the other

21 mechanism, I don't know if you were going to cover it that you

22 alluded to, is that the BOP can discharge folks to home

23 confinement. So that's another -- and I think, and tell me if

24 I'm wrong, that the sort of Attorney General Barr guidance to

25 the BOP is basically that BOP should be considering that. So

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1 I'm wondering about that as an alternative avenue if that's

2 something that sounds like two of the petitioners have sought

3 from the BOP. And I'm wondering if that you've gotten no

4 response to that, and I'm wondering if your general point

5 about that is basically parallel to the compassionate release

6 point is we don't know how long it's going to take and that

7 makes it unsatisfactory or inadequate.

8

MR. REINERT: I would say that's is a timing issue,

9 your Honor, and I do think that the Court could order release

10 to home confinement through habeas. And it's quite analogous

11 to what courts have done when they use habeas to order release

12 from solitary confinement. What the Court is doing is

13 changing the conditions under which somebody is in detention.

14

And so, again, I come back to our fundamental

15 premise which is that petitioners are being exposed to

16 unconstitutional conditions as we sit here to today because

17 they're being exposed to a substantial risk of harm to their

18 life and well being. And if that's the case, and we believe

19 we have established that with facts that as my colleague

20 pointed out, haven't really been rebutted by respondent, then

21 there's a remedy here, the remedy that they are seeking is

22 cognizable under habeas, it transitions to your Honor's second

23 question but I don't want to transition there if the Court

24 still has questions on compassionate release.

25

THE COURT: The one other question I had just to

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1 close the circle in the alternative avenues piece is with

2 respect to the pretrial detainees seeking bail and it may be

3 that and I guess I welcome your thoughts on this, too, it may

4 be that the pretrial detainees are something that we should be

5 bracketing a little bit because all the relief that you're

6 seeking is about convicted folks.

7

And so, maybe that's what I should be focused on

8 right now but I guess I would still appreciate it since you're

9 seeking at least some relief even today with respect to the

10 other inmates at the MDC who are pretrial. It seems like

11 people are bringing these claims under the Bail Statute. I

12 think they can bring these claims under the Bail Statute. I'm

13 wondering why that isn't an appropriate mechanism for bringing

14 these claims for these folks.

15

MR. REINERT: Well, it's not necessary that it's not

16 an appropriate mechanism, your Honor, and I agree with your

17 Honor folks have been bringing some of these claims through

18 bail, seeking bail. It doesn't, again, and I hate to sound

19 like a broken record, it doesn't, to our mind, give us an

20 appropriate remedy if we show an entitlement to habeas, but it

21 also doesn't address the systemic problems that we think --

22 this is exactly why we propose a special master because there

23 my be individualized circumstances this bail doesn't have an

24 answer for. And no matter what, whether someone is -- whether

25 someone can -- has the resources to seek bail in any

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1 particular given case, that doesn't answer the question as to

2 whether they may be entitled to habeas separately. So on one

3 level --

4

THE COURT: Can I ask you about a couple things that

5 you just said, and I'm sorry, I don't want to cut you off at

6 that point.

7

So, I guess, two. First, I want to say -- I take

8 your point that it may well be that the availability of

9 alternative mechanisms is not something to be considered here

10 at a TRO and a habeas claim. I take that point and I want to

11 come back to it later, but I think just inserting through the

12 question of what are the other available mechanisms, and are

13 there problems with them, meaning, are there reasons why they

14 wouldn't be available to address COVID concerns.

15

Let me ask you about the two things that I think you

16 just said as possible reasons.

17

One is lack of money. And I guess I'm wondering

18 about that because folks are often released on personal

19 recognizance bonds without putting up money. I would think

20 that's actually more common than the secured bonds on the

21 federal side. And I then guess the other question is whether

22 there's some other statutory reason why some inmates, some

23 pretrial inmates, wouldn't be able to raise a COVID claim

24 before a Judge. And, I guess, the statutory language that I'm

25 thinking about here, and I'm wondering what your view is, you

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1 know, it's in the Judge Nathan opinion that you folks rely on

2 where she releases somebody on bail. And she points to the

3 provision that says judges can temporarily release a detainee

4 if the Court determines such release to be necessary for

5 preparation of the person's defense or for another compelling

6 reasons.

7

So it seems to me like a COVID claim could be

8 presented as a compelling reason for a bail application. And,

9 you know, obviously a Court might find in a particular case, I

10 don't find it to be compelling reason in your case and I'm

11 just wondering if there is a legal obstacle to pretrial

12 detainees seeking release.

13

MR. REINERT: Your Honor, I certainly have seen

14 cases throughout the country where people have sought bail and

15 argued that the COVID crisis is a compelling reason and courts

16 have treated that differently. Some have balanced it against

17 the risk to the public. So it balances to the presumption of

18 a flight risk.

19

So this is to say that part of the reason we

20 think -- I'm not trying to dodge on this question, I think

21 there maybe circumstances in which the issue can be raised on

22 a bail application. But, by definition, because of the

23 statute, there will be lots of considerations that go into the

24 bail application. And, in this proceeding, the fundamental

25 question is: Are they being held in violation of the

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1 constitution or not?

2

And so, whether they would get bail or not is a

3 separate issue and it may be that one could argue, and I think

4 one should be able to argue that a compelling circumstance

5 under bail is I'm being held in unconstitutional conditions.

6

I've read the cases, some Courts have considered

7 that and some of the courts balance it more against the other

8 statutory factors in the statute.

9

So I think it's possible, I guess, to say that for

10 some individuals it could be raised on bail. Our position,

11 again, because we see this as a potentially systemic crisis,

12 or more than a potentially systemic, a systemic crisis, is

13 that it calls for a systemic solution.

14

One of the things that Judge Furman said today was,

15 you know, he acknowledged that proceeding here, and he said in

16 an order in the same case, in the Nkanga case, that there's a

17 telephonic hearing. And sort of, I think there is some

18 interest amongst -- and I don't want to speak for other

19 judges -- in seeing this through if not from a systemic lens

20 and there's some value to that.

21

So I guess I will say, yes, there is some potential

22 in some cases for raising it through bail but we don't think

23 that answers every single case that of our class members. And

24 we still think even so, there is virtue in thinking this

25 through from a systemic perspective.

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1

MS. ROSENFELD: Your Honor, just on the back of the

2 envelope side. It appears that more than half of the people

3 on the vulnerable list are not eligible for any bail. About

4 60 percent we would estimate.

5

THE COURT: Why would that be? Because I would

6 think -- and my impression is --

7

MS. ROSENFELD: I'm sorry.

8

(Cross Talk.)

9

THE COURT: -- mostly. Go ahead, sorry.

10

MS. ROSENFELD: You know, your Honor, I might ask

11 Deidre von Dornum on the phone to answer that. My

12 understanding is there is a number of people who are part of

13 the Cadre Program who are on the list. There is a number

14 elderly people. There are people serving very short sentences

15 there for, like, a remand on a violation. So our

16 understanding is that it's about a 40/60 division on that

17 list. That's a very approximate just for your --

18

THE COURT: Meaning, they're sentenced?

19

MS. ROSENFELD: Correct.

20

THE COURT: The division is 40/60 sentenced.

21

MS. ROSENFELD: Very approximately.

22

MS. VON DORNUM: Your Honor, Deidre von Dornum.

23

Just to make one thing clear, I think one thing

24 that's hard for plaintiffs' counsel here is they don't have

25 that list. And as you probably know I've been ordered by the

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26

1 chief judge not to share the list with anybody other than to

2 confirm or deny that an individual person is on the list, or

3 to use it as sort of gross statistics like those that

4 Ms. Rosenfeld was citing.

5

But from my review of the 537, it is about a 40

6 percent pretrial, or at least presentence, some of that 40

7 percent is postconviction/presentence. Then 60 percent

8 sentenced, and that's because MDC is frequently used as a

9 transit or transfer facility. So they have their own cadre,

10 they have the transfer people, and then they have a bunch of

11 people who are sentenced either awaiting designation or

12 designated but not yet moved. And the proportion of those on

13 the at-risk list appears to me to be high because those tend

14 to be older people and people who have been in the system

15 longer. So, unfortunately, tend have chronic medical

16 conditions of the type at issue here.

17

THE COURT: Okay.

18

MR. REINERT: This is Alex Reinert. Should we move

19 on to why release or --

20

THE COURT: That would be great.

21

MR. REINERT: So I think, again, to some degree, we

22 start with the fundamental premise which is that release is an

23 available remedy under §2241 when a petitioner is being held

24 in unconstitutional conditions.

25

We have, we think, shown through our papers that our

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1 petitioners can't be protected under certain -- under the

2 current circumstances and social distancing is impossible;

3 that they need to have an opportunity to ensure adequate

4 personal hygiene. And the BOP has failed to ensure that these

5 conditions obtain.

6

In the MCC, I will refer back to reference to my

7 discussion of the trajectory of the Government's response as

8 has been developing. And we've established, I don't think --

9 you know, I think the Government's position on our entitlement

10 to relief misses the mark. The Government's fundamental

11 position is, well, we're just speculating that our clients

12 will suffer harm. The harm is the substantial risk that

13 they're facing in the conditions that they are held in as we

14 speak and that is cognizable under the Eight Amendment holding

15 that says that specifically. And that distinguishes that the

16 respondent is not engaged.

17

In fact, they make an argument that the respondent

18 is making here is that it's a speculative risk, they haven't

19 suffered any harm yet, they mark an argument that both the

20 state and the United States made as amicus in Helling and

21 rejected exclusively by the Court. The Court says we're not

22 going to deny would be -- of an injunction. We've plainly

23 proved an unsafe, life-threatening condition on the grounds

24 that nothing hasn't happened to them yet.

25

And so, they analogized it in the Second Hand Smoke

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1 case to exposure to an infectious disease. And, if anything,

2 the risk here is greater than the environmental tobacco smoke

3 that was at issue in Helling. And I think we established that

4 our expert affidavits.

5

So if I had to really grapple with that aspect of

6 the difference in the standard -- grapple with the clear loss

7 on the Supreme Court and from the Circuit of hiding

8 irreparable harm both of them, one shows a violation of the

9 constitution. And also, when one of them shows that there's

10 been exposure to a substantial risk of harm. And that's

11 established through our papers.

12

So release is the appropriate remedy under §2241

13 under these circumstances. And, again, I don't want it to be

14 missed, this is especially, this release to home confinement,

15 it is very much analogous to release orders that are obtained

16 by people in solitary and released to general population.

17 They're changing the (indistinguishable) no longer a violation

18 of constitution associated with those conditions and, you

19 know, we just don't have the liberty or the privilege to wait

20 and see whether or not they can remedy this by mitigating when

21 they haven't shown that yet. They're supposed to do it, yet.

22 And when there are specific conditions in the MDC that make

23 that mitigation nearly impossible as we established, I think,

24 in our papers.

25

That's our response on -- I'm happy to take

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1 questions from the Court on that before we move to the

2 particular questions which I think we might move back to

3 Ms. Rosenfeld to that.

4

THE COURT: I think I got to I confirm that I

5 understand the kind of thousand-degree answer which is, is

6 release is appropriate here because there is not really an

7 order to the MDC or to the BOP that would ensure the safety of

8 the petitioners because social distancing is basically

9 impossible here. One can't have an order that says, correct

10 this condition if the only option is for release.

11

Is that the thousand-degree --

12

MR. REINERT: I think it came to the granular level

13 of details even for looking at a reason for the sort of

14 provisions that have been put in case still allow for lots of

15 finagling by people held closely with each other and also with

16 staff.

17

And again, I just -- and the Court is sort of --

18 whether it's okay to do this, sort of, I do think the Second

19 Circuit's decision in Roba is instructive. That was a case in

20 which the Court said we're not going to let you take custody

21 of this person because if you take custody of this person,

22 it's going to threaten his life.

23

Citing to Estelle v. Gamble. Here, what we're

24 saying is we have custody of our petitioners and that -- and

25 circumstances like their custody is threatening their life and

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1 well being. That's from Estelle v. Gamble.

2

So the Court says, the Second Circuit says,

3 petitioner doesn't have to wait until they physically have

4 hands on him, then he's going to -- at which point is life is

5 threatened to transfer he's entitled to challenge it now.

6 He's entitled to challenge it in the Second Circuit before

7 he's even in custody. Certainly, our petitioners are -- the

8 fact that they're in custody now which is exposing them to

9 this risk. I can answer more questions on --

10

MS. ROSENFELD: Your Honor, I just want to clarify

11 something. For Mr. Chunn and Mr. Rodriguez, two of our

12 petitioners, their individual lawyers made requests for relief

13 via letter. Those were never responded to. Mr. Rodriguez and

14 Mr. Chunn were also part of separate requests that the Federal

15 Defenders made for home confinement through the medically

16 vulnerable people, 11 of them, and that request at least since

17 yesterday was denied. So my understanding is that for two of

18 these people that remedy is not -- is already shut off.

19

But with respect to No. 3, your Honor, I just had a

20 chance to very briefly go through the supplemental King

21 declaration that was submitted. If your Honor has it in front

22 of you, I'm looking at the paragraph number, it says

23 Paragraph 4.

24

THE COURT: Just give me a second because I want to

25 pull it up.

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1

Go ahead.

2

MS. ROSENFELD: Paragraph 4, taken these steps.

3 Paragraph 4 it says, Inmates will be secured in their assigned

4 cells to decrease the potential spread. As I said at the

5 beginning, your Honor, they're double celled for the vast

6 majority of people. So that means two people together in a

7 very small cell.

8

Then it goes on to explain how the circumstances in

9 which people will be leaving their cells to shower, to have

10 access to e-mail, to phones, et cetera. So every time one of

11 the two people in their cells leaves the showers to use the

12 phone to do any of these things which we agree are important

13 things, and we're not advocating that people not have those

14 avenues, they're going to come in contact with other people

15 and with the virus and then they're going to come back to

16 their cell.

17

And so, for example, in the federal prison in

18 Louisiana where the first person in federal custody died, you

19 know, now there are dozens of cases from my understanding.

20 There is a rampant outbreak.

21

So the fact that they're going to isolate people in

22 their cells is not going to mitigate the transmission because

23 people will continue to come in and out for things like phone

24 calls, e-mail, showers, et cetera.

25

The other thing, your Honor, is in the declaration

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1 of Dr. Meyer that we submitted. She talks, this is at Docket

2 1211. She talks about why effectively putting everybody is in

3 a disciplinary segregation or sort of lockdown is not an

4 effective way to do this. She point out that it results in

5 decreased medical attention and increased risk of death.

6

She also points out that the virus maybe airborne

7 and transmitted through droplets, and unless you're isolating

8 people in a specialized negative pressure situation, the virus

9 can be transmitted think the air. Your Honor may be aware

10 that as part of the blackout crisis of last winter when MDC

11 lost power and heat, that there was huge problems with the

12 ventilation and the HVAC in the facility with huge amounts of

13 air gushing in and out of people's cells.

14

So the idea that they're going to be locking people

15 in their cells most of the day but letting them in and out to

16 share their cell again with people and to do other things.

17 And then if you notice at Paragraph 8 it says they will limit

18 gathering to facilitate meal preparation, laundry, and

19 commissary access. Again, that's no limitation at all.

20

And finally, your Honor, we're very concerned about

21 all the reports that, you know, we've heard from many people

22 that they received soap at admission or two weeks ago, but

23 have not gotten more soap. We hear that all of the kitchen

24 staff was infected or got sick with COVID and now the officers

25 are cooking.

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1

You know, we've heard that the people who are

2 assigned to clean are being sent to clean infected areas

3 without gloves and masks. All of this, unfortunately, is

4 going to continue as more people get sick and more staff gets

5 sick and there are less staff present.

6

So while we understand that the BOP has issued this

7 new directive and then it's intended to ameliorate the

8 situation, it doesn't actually appear to be any way impactful.

9 It is not supported by any science farce we can tell. There

10 is no medical justification for keeping people in a cell for

11 twelve hours a day as a way that mitigates the threat of

12 disease.

13

THE COURT: Can I ask you about that last point?

14

I mean, I one of the concerns that is raised by the

15 declarations that you submitted is and I think, you know, may

16 have also about social distancing. And my just, you know,

17 consumption of CDC and other guidance as an ordinary person,

18 my sense is that taking steps to reduce the number of people

19 you come into contact with is something that is recommended,

20 and that's recommended even though many people are sheltering

21 with members of their household; sheltering, not part of

22 cells, but with others. And even though those folks may go

23 out either to work or buy groceries or medicine or other

24 things.

25

Again, I think the point is there's no scientific

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1 declaration, but I'm wondering when you say there's no basis

2 for the steps they're seeking it's more like what they're

3 doing is somewhat analogous to what we are all being advised

4 to do.

5

MS. ROSENFELD: Your Honor, I think the issue is, is

6 that in a correctional setting it's a completely -- it's a

7 huge number of people that you're living with in very close

8 quarters. And so, the idea of the measures that we might in

9 the community might be taking to limit our exposure don't

10 really translate into a correctional setting where you're

11 living, eating, using the bathroom, doing your laundry,

12 talking on the phone next to hundreds of other people. And

13 everyone who is also in close quarters with the staff are

14 coming in and out of the building from three different states

15 surrounding it.

16

So the density of the correctional setting, the

17 input/output of people, the lack of hygiene, all of these

18 things make it very difficult to compare what measures might

19 be appropriate in the community and what might be appropriate

20 in the facility.

21

I think that the idea also, your Honor, that in a

22 correctional facility where there is no medical care, there's

23 no medical setting at the MDC, your Honor, and so I think

24 another issue here is conditions in the community being

25 comparable, you can leave your house and go to the hospital if

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1 you need to, you can control that. I think when people are

2 locked in isolated cell with a very taxed medical staff,

3 that's not going to be an equivalent access. And, in fact,

4 we're very worried that if you're in your cell or in the

5 hospital that's not good for the community, it's not good for

6 the medical workers, and it's not good for the people who are

7 incarcerated.

8

THE COURT: Do you want add something to about that.

9

MR. REINERT: I wanted to add one thing.

10

We also submitted, again, expert testimony none of

11 which has been rebutted by respondent that the risk of

12 transmission is by definition higher than in the correctional

13 setting. So all of this my colleague just averted to.

14 Nothing that the respondents put on the table rebuts any of

15 that.

16

So partly because it's of control, partly because of

17 density, partly because for ventilation, right? The part of

18 one thing that Dr. Meyer says is the air droplets are going to

19 find you when you're in because of the ventilation system in

20 the prison setting.

21

So that's, sort of, I think it is a very different

22 setting and it's an explanation for why what the BOP has done

23 is not going to be sufficient to protect the conditions.

24

MS. ROSENFELD: Your Honor, the BOP is actually

25 distributing pamphlets, and you have them in the exhibit, to

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1 people in custody that say, "Stay home." They're distributing

2 pamphlets that are aimed at people living in the community,

3 not people in prison. The advice to give to people who are

4 incarcerated at this moment to stay home is obviously not

5 meaningful.

6

THE COURT: What is the advice that you're alluding

7 to?

8

MS. ROSENFELD: In the exhibit to the King

9 declaration.

10

THE COURT: Yes.

11

MR. REINERT: Exhibit No. 2.

12

MS. ROSENFELD: Exhibit No. 2. I am finding it,

13 your Honor. They attached -- hold on -- I'm sorry, I'm in the

14 response to the declaration in the exhibits themselves. They

15 attached the pamphlets that they're sharing.

16

THE COURT: I see, okay. Got it. Okay.

17

MS. ROSENFELD: So I think that's a challenge that

18 you just pointed out that the difference between the advice

19 you would give and what's being told to people in detention,

20 they are two different worlds and they don't -- the same

21 measures are not effective in protecting people.

22

THE COURT: Okay. I think may it be makes sense to

23 turn it over to respondent. I don't know if you also had

24 anything you wanted to say by way of opening. And also, if

25 you wanted to address the three topics I laid out.

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1

MR. CHO: This is James Cho with the U.S. Attorney's

2 Office. Thank you, your Honor. There are a few points I

3 would like to address.

4

We certainly rest on our pleadings as well and I

5 want to respond to what the parties submitted yesterday and

6 today.

7

I think the important thing for to Court to

8 recognized and not lose sight over is the fact that this is a

9 deliberate indifference case alleging constitutional

10 violations. And there is nothing indifferent about what the

11 MDC has been doing since the outbreak of COVID-19. As our

12 papers have shown, we have taken innumerable steps to address

13 potential concerns of infection at the MDC. And so, again,

14 there is nothing indifferent about what the MDC has been doing

15 and this is a very fluid process.

16

As your Honor recognized even last night after we

17 had submitted our opposition brief, BOP came out with

18 additional guidance, Phase 5 of its efforts to control the

19 spread of the infection within institutions through out the

20 and also at the MDC.

21

The important thing to recognize, and I think your

22 Honor noted it in our order from last night as well, there are

23 alternative remedies available.

24

A TRO is an extraordinary request seeking

25 extraordinary relief. And from what petitioners have claimed,

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1 Judge, there is absolutely nothing narrow about the relief

2 they're seeking. They're seeking the release of these

3 petitioners along with a host of other inmates.

4

There is absolutely no mention at all in any of that

5 papers as to the reasons why these petitioners currently

6 incarcerated; the basis for the sentences; the reasons for the

7 criminal conviction in the first instance, which all go into

8 bearing as to whether these inmates should be released under

9 18 U.S.C. 3582 dealing with compassionate release;

10 18 U.S.C. 3624 dealing with home confinement.

11

All of those conditions when the Court makes these

12 decisions touch upon well what is the risk of the safety to

13 the public and underlying everything that the MDC is doing

14 they're concerned about the inmate population, but of

15 paramount concern to the MDC is what is the risk to the

16 community if these inmates are released into the community and

17 outside the confines of the MDC. And there is no mention at

18 all anywhere in petitioners' papers as to whether they would

19 be a risk or not to the community. And that is the most

20 important thing that this court needs to consider when

21 deciding whether to release these inmates to home confinement

22 or other reasons.

23

So, again, there are alternative remedies available

24 that are available to these petitioners specifically. And as

25 to the petitioners have mentioned, some of them have already

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1 made those requests to their sentencing courts, to their

2 district court judges. And this TRO is an attempt to end run

3 those alternatives that these inmates have to receive release

4 from their sentencing judges.

5

And, in those petitions, when they seek

6 compassionate release or bail for pretrial detainees, the

7 courts undergo a rigorous examination of the underlying

8 conviction, the basis for the incarceration, and safety risk

9 of the, the risk to the community, if these individuals are

10 released. None of which has been addressed in the papers

11 dealing with the TRO.

12

So the Government wants the Court to be mindful that

13 the at the end of the day that's what's at issue here. And

14 this court shouldn't be second guessing what other courts have

15 done in dealing with specific requests for release by other

16 inmates.

17

So, your Honor, those are some of the main points

18 that we want to raise, but in terms of --

19

THE COURT: I want you to say whatever you want to

20 say on alternative avenues, but I do have questions for you

21 before you turn to anything else.

22

MR. CHO: Sure. That's fine, your Honor.

23

THE COURT: Okay. So I'm trying to get a sense of

24 what these alternative remedies look like. And I think the

25 basic point that the plaintiffs are making, or petitioners are

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1 making, we've been making these requests and we've gotten, for

2 instance, on the compassionate release inmate, we've got

3 something back saying, Your request has been forwarded on, and

4 we haven't gotten anything else back. So we may not hear

5 from -- not hearing anything about these conditions for a long

6 time.

7

I'm wondering if you can shed any light on what the

8 timing of this process is. And I'm talking about the

9 compassionate release and then the release to home detention,

10 what is the process that happens, and how long does it take?

11

MR. CHO: Sure. Well, I can say, at the end of the

12 day, these are requests that are made to the Court on motion.

13 So to the extent petitioners claim that the Government is in

14 some way slowing down the process or not responding, the

15 courts are the ones that make these determinations ultimately

16 and the plaintiffs can go to the Court to seek the relief

17 they're seeking here.

18

THE COURT: So just to take it in turn.

19

The compassionate release process, I think you can

20 only go to the Court once your request has been denied or in

21 the alternative 30 days have elapsed. So I'm trying to figure

22 out maybe the answer is generally what's happening in these

23 cases is 30 days elapses and they can go to the Court in

24 30 days, but I guess I'm trying to figure out what the timing

25 of addressing these requests is and how long do you expect

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1 somebody to wait for their request to be adjudicated.

2

MR. CHO: So in terms of the 30-day time period

3 there have been instances where the Government has not

4 objected to that 30-day time period. But, again, I can't say

5 for sure as to each specific case what the time period would

6 be in terms of processing the requests.

7

MR. EICHENHOLTZ: Your Honor, this is Seth

8 Eichenholtz. I also have Holly Pratesi on the line from the

9 Bureau of Prisons. And I honestly I don't know the answer to

10 your Honor's question in terms of generally how long these

11 requests would take for BOP to reach a determination in the

12 first instance which would trigger the ability to go to court.

13 I assume that it is not the case that BOP waits 30 days, but I

14 don't have exact sense of the timing of these requests as I

15 sit here today.

16

THE COURT: Okay. And then on the home detention

17 option, can you tell me anything about the timing on that?

18 And, I guess, the other piece is when you suggested that's

19 ultimately on the Court something you go to court about, I'm

20 wondering if that's the case. Could you go to court and say,

21 I should be released on home detention under the procedure

22 that allows the BOP to release people on home detention?

23

MR. EICHENHOLTZ: I think Mr. Cho is speaking

24 specifically to the compassionate release. As to the home

25 confinement, my understanding is that is an administrative

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1 process by which within a certain amount of time nearest to

2 release, BOP can exercise the discretion to release someone to

3 home confinement.

4

My understanding -- just one correction from

5 something that was said when petitioner was speaking was that

6 she said the petitioners here had made that request and that

7 request had been rejected. That is not accurate.

8

The petitioners had pushed forward the request on

9 Thursday, I believe it was, and submitted the request both to

10 our office and to Bureau of Prisons through, I believe, agency

11 counsel and that our office had voluntarily given our office's

12 view as to whether these individuals should qualify for the

13 early release. And as to the two petitioners here, our office

14 had determined that it would object because of the security

15 issues and the criminal history, et cetera, to those. We had

16 also indicated ones where our office was comfortable with

17 release but there has been no final determination made by the

18 Bureau of Prisons. They are evaluating these requests both in

19 light of their existing policy, and they're also reevaluating

20 their policy in light of the Barr memorandum and the other

21 circumstances that are going on now, but there has not been a

22 final determination by BOP on any of the requests.

23

THE COURT: Okay. Can you tell me anything about

24 the timing on any of these? It does seem like the argument is

25 these are available alternative remedies is relevant however

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1 long we could expect it to take for these to be acted on.

2 These might have been, you know, obviously, in normal

3 circumstances, there's not the time sensitivity that

4 plaintiffs are asserting or petitioners are asserting in this

5 case due to COVID.

6

MR. EICHENHOLTZ: My understanding is the challenge

7 in terms of timing is, just evolving guidance of policies on

8 the BOP. I know in my discussions outside the context of

9 these proceedings with BOP agency counsel, we had hoped to get

10 responses some time this week but that may have changed. What

11 I'd like to do on this issue, and also on the initial issue

12 your Honor had raised to put in perhaps a supplemental letter

13 addressing this issue after we had an opportunity to confer

14 with BOP since they can give an answer about time.

15

THE COURT: Sure. When you're saying hoping to get

16 responses this week, what you're talking about with respect to

17 these particular individuals who put in requests, or you're

18 talk about a broader policy?

19

MR. EICHENHOLTZ: My conversation was specifically

20 about the 11 individuals who Federal Defenders had requested

21 our office and BOP consider for this policy.

22

THE COURT: Got it. And that includes several of

23 these folks but not all of these folks?

24

MR. EICHENHOLTZ: It includes two of them.

25 Petitioner Rodriguez and Petitioner Chunn.

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1

THE COURT: When was the Federal Defenders's request

2 made?

3

MR. EICHENHOLTZ: On Thursday in the evening. Last

4 Thursday in the evening.

5

THE COURT: Okay.

6

MR. EICHENHOLTZ: I think just about 24 hours before

7 this petition for writ of habeas corpus was filed. I

8 completely stepped on Mr. Cho's shoes I'm going to let you

9 take back over.

10

THE COURT: Let me ask one more question on these

11 alternative mechanisms. So you had said if there's no

12 objection, obviously, or there have been cases where the

13 Government hasn't objected to compassionate release in the

14 30-day period, therefore, it doesn't apply. You can bring

15 your judicial claim for compassionate release.

16

Can you tell me what relevance, if any, you think

17 that has? Have you agreed to let these folks bring their

18 compassionate release claim, and are you asserting that

19 there's an ability to go to court immediately whenever the

20 Government agrees that you can, or does the Government need to

21 agree that compassionate release is appropriate.

22

MR. CHO: Your Honor, what we're arguing is that

23 there is a mechanism by which these petitioners can seek

24 compassionate release under Section 3582. And I think, again,

25 that's based on an individual determination by each specific

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1 inmate. These are individual determinations that need to be

2 made regarding their background, their history, the current

3 their medical condition, risk to the community as well if

4 they're released. But I guess the point there is I can't

5 speak to the timing, but if requests are made there are

6 instances where the Government has agreed to not object to

7 those requests.

8

THE COURT: Okay. There is one individual here who

9 has made a compassionate release request; is that right?

10

MR. CHO: I'm not sure. That's something that's

11 been mentioned, I don't know the details behind that.

12

THE COURT: Okay. Because I was going to ask if you

13 knew anything about his compassionate release request and its

14 status, but it sounds like you're not sure of the application,

15 and so, you're not sure of the timing.

16

MR. CHO: Right. Because, again, these are separate

17 alternative proceedings that these individuals are engaged in

18 separate and apart from this TRO proceeding. This is their

19 second bite at the apple, essentially. They're trying to get

20 forms of relief to get released using whatever mechanism they

21 can. So, again, what if one judge rules on that request and

22 denies a request, but your Honor grants a request here then

23 you'll have competing decisions on the same issue.

24

THE COURT: So if that covers the alternative

25 avenues question that I have. I don't know if you wanted to

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1 address the rest.

2

MR. CHO: Sure. The second issue that you raised in

3 your Honor's order from last night dealing with orders of

4 release from custody. It's the Government's position that an

5 order of release from custody in this instance is not

6 appropriate. The MDC doesn't believe there are any

7 unconstitutional conditions of confinement at the MDC.

8 Release from custody is, again, an extraordinary remedy and

9 there are a variety of remedies that the Court can impose if

10 it does recognize there are constitutional conditions of

11 confinement separate and apart from releasing the inmate.

12

So, again, we don't -- the Government doesn't

13 believe that the first choice for the Court could be to

14 release the inmate. To the extent it believes there are

15 unconstitutional conditions of confinement, that can be

16 alleviated short of the release of the maintenance.

17

THE COURT: Okay. Then I think the question I

18 asked, and I don't know if you want to discuss beyond the --

19 they have submitted to the supplemental declaration is what

20 are the new steps and what relevance do they have?

21

MR. CHO: Right. Again, it's a very fluid set of

22 conditions throughout the community in New York, obviously,

23 nationwide and things are changing every day. And these

24 guidances are being disseminated almost on a daily basis.

25 And, again, the guidance came out late last night. MDC is

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1 reviewed it is and incorporating parts of it as best it can

2 within its protocols at the MDC.

3

Again, because it's a very fluid process, we're not

4 being indifferent to the conditions at the MDC. We are taking

5 whatever steps we can to make sure that the threat of the

6 infection doesn't spread at the MDC. So, again, we rest on

7 the supplemental declaration. But, again, things change

8 constantly and things may evolve again tomorrow based on what

9 happens here today.

10

THE COURT: Sure. Okay. I think what might be

11 helpful for me. I think I have questions in two buckets. The

12 things that will be helpful for me to first get a sense of

13 where we are in the facts on the ground as to the ability, and

14 I think there are some continuing assertions I want to talk

15 through. And then the second is to talk about some of the

16 legal questions that I have if that makes sense to you all.

17

On the factual piece, I think I've identified what I

18 think are the main health risks or concerning conditions that

19 petitioners are raising. And I think want to talk through

20 what your view is about the facts now with respect to those

21 conditions.

22

So if you could let me ask first about generally

23 social distancing and what steps you think are being taken

24 there to social distance to the extent that something that's

25 possible in the facility. I think upon reading the, well,

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1 from my own reading of the papers, I think sort of the main

2 points that the petitioners are raising about that are, well,

3 there are shared cells and dorms that people are living

4 together, and then people are using shared dining facilities

5 and shared facilities for showering among other things. And

6 then, in some circumstances, they're in -- they're required to

7 be in close proximity to each other like lining up for meals.

8

So I know there's this new policy that may affect

9 some of that. I'm trying to figure out whether these are

10 basic assertions that petitioners are making about why there's

11 not petitioners have been about to engage in social

12 distancing. And if the Government has a response as to

13 whether these are basically right on the facts or a

14 disagreement on the law, or what the Government thinks that

15 you could do if you're an inmate with a, you know, high-risk

16 condition or older inmate or you have a some condition that

17 places you at risk and you want to socially distance what's

18 the maximum you can do?

19

MR. EICHENHOLTZ: So, your Honor, this is Seth

20 Eichenholtz.

21

I think that there is somewhat of a, I mean,

22 obviously it is an institutional environment. There is a

23 shared -- there are shared cells and it, you know, up till

24 this point, you know, a lot of the mitigation procedures were

25 designed less at, you know, to, of course, allow to the

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1 greatest extent possible socially distancing. MDC Brooklyn

2 has for some time reduced the amount of interaction that was

3 necessary, but also tried to be careful at keeping the

4 institutional -- keeping the institution kind of separated

5 from itself as much as possible, so that if there was a

6 COVID-19 positives as we know there ultimately was at one

7 point, and that was actually a holdover inmate who was brought

8 into the facility. And it was shortly after he was brought

9 into the facility because of his symptoms that he was tested.

10 It wasn't someone who was incarcerated at the facility for a

11 along period of time. That there would be separation so it

12 wouldn't spread.

13

Now, you know, I feel like I would, unfortunately, I

14 wish we were in a better position to give the Court more

15 details about how the current guidance affects the social

16 distancing; for example, the care that is taken to ensure when

17 inmates are allowed to use the showers facilities or these

18 other, you know, activities. Whether they're brought out

19 individually or with their cellmates, or in a whole group.

20 Unfortunately, we don't have at this time have that detail.

21 Obviously, something came out last night and got the

22 declaration this morning, but they are to the maximum extent

23 possible, trying to minimize those interactions.

24

And one of the places also where I think the

25 Government really does challenge the plaintiff's assertion is

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1 that there was, "No medical care," at MDC Brooklyn. And that

2 term as thrown out at some point. MDC does have a health

3 services unit. That health services unit has, I believe, at

4 the current time, Ms. Pratesi can correct me if I'm wrong,

5 three doctors on staff.

6

Holly, am I right about that?

7

MS. PRATESI: This is Holly. That's correct.

8

MR. EICHENHOLTZ: And inmates -- no, just three

9 doctors who -- yeah, sorry.

10

Holly can you answer that?

11

MS. PRATESI: This is Holly again.

12

I may have missed the last portion of the question.

13 There are three physicians. We also do have additional

14 registered nurses and nurse practitioners, contractors, things

15 like that.

16

THE COURT: Okay. There are three total doctors and

17 there are varying schedules?

18

MR. EICHENHOLTZ: Correct. Okay. Right.

19

And, obviously, to the extent that there is a more

20 serious medical condition and an inmate need to be taken to

21 the hospital, an inmate can be taken to the hospital, I feel

22 like in the presentation of the medical facts it was made to

23 sound as if it, you know, and an if you need medical care

24 regarding these sort of conditions that it needs to be taken

25 to the hospital, that's simply not the case. Such as some

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1 people who experience COVID-19 have certain symptoms, isolate

2 at home, keep themselves at home until such time they need a

3 higher level of care. Here, that would actually be what would

4 be the equivalent of their urgent care facility in the

5 MDC Brooklyn. And there are -- and I believe there is

6 once-a-day sick calls that inmates can go and visit the

7 medical staff at the health center. So part of one of the

8 institutional benefits is that readily available health

9 services unit. So I think that that's also another challenge.

10

Certainly, you know, obviously, in terms of the soap

11 issue, the soap issue was raised. Again, we have a challenge

12 specifically responding to these anecdotal rumors that are

13 brought out, and I'm not dismissing them, I'm certainly not,

14 and in my capacity as someone who has tried to eliminate

15 issues over the past few weeks along with Ms. Pratesi and the

16 staff at MDC, I find them useful to investigate whether

17 something is a problem or not. But in terms of soap, my

18 understanding is that, you know, consistent with the

19 declaration we did yesterday, inmates are given a bar soap and

20 can request additional soap if needed, and have access to

21 sanitation all the time.

22

So, you know, I would put that forward as well. And

23 if the Court has any other questions about conditions

24 specifically, you know, to the extent I'm able to answer them.

25

THE COURT: The areas that I was going to ask about,

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1 but let me ask you about a couple others.

2

So I think another concern that the petitioners

3 raise is about the extent of cleaning that's going on in the

4 facilities and I think in particular about not cleaning phones

5 and computers, using -- providing inmates with only diluted

6 hand soap to clean cells, and having incarcerated persons

7 cleaning the common areas with inadequate supplies.

8

So I think those are the basic allegations aside

9 from the soap allegation that you discussed that go to the

10 cleaning of the facility and I wonder if what --

11

MR. EICHENHOLTZ: I would refer the Court back to

12 Associate Warden King's declaration where I believe and the,

13 again, I will invite Holly to interrupt me if I'm wrong about

14 any of this, but I believe that MDC has started using stronger

15 cleaning products. But with the inmates who clean, and staff,

16 I believe inmates are provided the personal protective

17 equipment for inmates who do clean and that cleaning is done

18 regular basis.

19

Holly, is there anything that I missed that you

20 think specifically addresses those points?

21

MS. PRATESI: This is Holly.

22

I believe that was fairly accurate. I would say

23 with personal protective equipment that's generally given when

24 they're cleaning where we believe there has been a risk of

25 exposure to the virus. I do know that after the deep clean

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1 that was conducted following the one positive case, personal

2 protective equipment was provided for that.

3

THE COURT: Okay. Can I ask the petitioners?

4

So one of the claims I wanted to make sure I

5 understood is this argument about lack of medical care or

6 adequate medical care on site. And I guess I want to draw out

7 a little bit that concern.

8

So there are doctors on the staff and you observe, I

9 think, undisputedly there is not a hospital at the facility

10 and there are not ventilators at the facility and people can't

11 be intubated at the facility. So somebody had a need for any

12 of that, they would need to be taken to the hospital. I think

13 that's undisputed, but I guess I'm wondering why that's even

14 particularly unusual, and I think that would be the case for

15 almost everybody in the world that we don't have doctors, you

16 know, we probably have a little bit less proximity to doctors.

17 And in the event that we need any of those intensive

18 interventions that you mentioned that would probably have to

19 happen at the hospital.

20

So I guess I'm wondering why MDC is different in

21 that respect.

22

MS. ROSENFELD: Sure. I think a couple points,

23 first of all, obviously, if you're not incarcerated and you

24 have an emergency at night or on the weekend, you can --

25 sorry, let me go back I'm explaining two things.

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1

First of all, my understanding is that on the

2 evenings and the weekends there are not doctors at the

3 facility; and so, for example, we were informed by one

4 putative class member that they needed to a doctor on Monday a

5 person night who was cleaning an infected area, who is

6 asthmatic, and that there was no doctor on site Monday night,

7 for example.

8

So I don't know if that was the normal thing or an

9 aberration. I think there's a staffing by doctors on evenings

10 and weekends is uncertain. Just for context, your Honor, MDC

11 has had serious problems providing medical care to people in

12 normal circumstances, that was an issue during the blackout

13 where people didn't get access to medical care. The doctors,

14 to my understanding, and again, you can correct me, are not

15 going to the unit; that is PA staff that is going to the unit.

16 So there is not an opportunity for people who are in

17 isolation, for example, in the units to see medical staff.

18

In terms of, like, well you're right if there's no

19 hospital why is that surprising. There are ask jails, your

20 Honor, where they would have medical ward or a unit. So if

21 you were please sick, you could go and within the jail is a

22 medical setting and that is when I said MDC doesn't have X, Y,

23 Z that is what I meant. There is no medical unit at MDC where

24 sick people can be treat. They're either in their cell or at

25 the hospital. So that is particularly concerning where we

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1 know the hospitals in Brooklyn are totally overwhelmed already

2 and in this particular community, you know, there are no

3 hospital beds. So if people at MDC start to get sick, there's

4 nowhere other than in their cells that they can be. Again,

5 your Honor, with another person.

6

In terms of some of the specific things that

7 Mr. Eichenholtz and Ms. Pratesi said, you know, I don't think

8 it's fair to characterize what we're reporting to the Court as

9 a rumor. We make an effort to match the report with what the

10 people inside the jail are telling us. We can't go there, we

11 can't get in there. All we can do is relay this information

12 and try to make sure it's reliable and given to us by

13 different people so it's not just one person. We're hearing

14 that people are not getting medical attention that they need.

15 We're hearing that people who are being forced to clean are

16 not given give condition adequate PPE. People are asthmatic

17 and being asked to clean without masks and are using very

18 harsh chemicals.

19

So there's a disconnect here, I think, between what

20 you're hearing from the facility about readily available and

21 adequate medical care and what people are telling us who are

22 in the facility.

23

Same thing with soap, your Honor. We had multiple

24 people telling us they had asked for soap and they are told

25 there is no more soap on the unit. They have gone to the

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1 commissary and they cannot buy soap.

2

So the same disconnect that was present during the

3 blackout where the courts were being told everything is fine

4 and people were in freezing cells without blankets wearing

5 T-shirts.

6

So I think that just to go back to a couple other

7 points that the Government has made if it's okay, your Honor.

8 Our petitioners, two of our petitioners, your Honor, Mr. Chunn

9 and Mr. McBride, are supposed to be released. Mr. Chunn on

10 April 18th and Mr. McBride on April 15th. So we're really

11 talking about a matter of weeks.

12

So the alternative processes that have been

13 discussed on this call at the pace that the Government pursues

14 them, even under the circumstances where we appreciate

15 everybody they're being overwhelmed, that is going to be two

16 weeks. Mr. Chunn is really an ill person, your Honor, I don't

17 think that's in dispute. He has very serious medical

18 conditions: -- he has coronary heart disease, he's had a

19 heart attack, he's taking multiple medications, he's been

20 hospitalized twice since he's been at MDC.

21

And so, you know, Mr. McBride similarly has serious

22 asthma. He apparently has had several asthma attacks. Now,

23 he's locked in his cell pursuant to this new BOP reg with

24 another person. And if we sit and wait for several weeks for

25 these individuals to go through these alternative processes,

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1 their release dates will be here and they may already have

2 caught or be seriously sick. So I think the problem with

3 these alternative procedures when we have a pending petition

4 which we legitimately can seek relief from the Court is their

5 slowness.

6

And I would say, your Honor, that in terms of this

7 exhaustion issue that you raised would require people first to

8 go to the Court and wait 30 days. The Government is asserting

9 that people need to wait the 30 days in certain cases that are

10 before Court. So while somebody on said they are in some

11 cases not opposing requests on the ground of exhaustion and in

12 other cases they are.

13

So waiting for these very disparate processes to

14 play out in a very piecemeal way all over the system, and at a

15 very slow pace which I appreciate is not anyone's intention

16 but it is the nature of these kinds of the bureaucracy is not

17 going to protect people's safety and health. And that's why

18 as part of the TRO application we're asking that the Court

19 appoint a single person to oversee and bring these processes

20 together and make recommendations to the Court in a very

21 expedited fashion; right, not a million different things going

22 on all over the courthouse in such a small manner that people

23 end up becoming extremely sick and potentially dying.

24

Mr. Chunn, if he catches COVID-19, he will be in a

25 very serious condition. And so, I think there is a tension

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1 between the Government's position that, well, you can go into

2 a compassionate release application, you can go into a home

3 confinement request the with BOP.

4

The reality is we're not getting response, we're

5 getting opposition from the Government, in some cases the need

6 to exhaust. And while that's happening people have already

7 been exposed within the facility. The staff and the person

8 who are positive at the facility were all over the facility.

9 They were in an intake unit with many, many people. All the

10 people from that intake unit went all over the building. This

11 has already happened.

12

And, you know, the new rules that went into effect

13 last night don't even meet the CDC requirements for how people

14 are supposed to be separated in correctional facilities. If

15 you have multiple people in a big dorm room together, that's

16 not consistent with the CDC is saying. If you have multiple

17 people in small cells, it's not, even under the correctional

18 standard, adequate.

19

So to sort go back to the original TRO request,

20 right now there are people who are being exposed, as

21 Mr. Reinert said, to a very serious risk of harm, but because

22 of the nature of the setting at MDC, and thankfully, because

23 of some of the topics that we've been talking about today, are

24 not being held in constitutional conditions. And, in

25 particularly, for petitioners, who have very close release

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1 dates, and I think have made a showing that they have a place

2 to go and if your Honor wanted to hear the individual facts,

3 we can give them. But I think this is the idea of the special

4 master process.

5

THE COURT: So I don't mean to interrupt you. Well,

6 I guess I am deliberately interrupting you. But I just want

7 to close the loop on the factual conditions to make sure I

8 understand what the competing claims are about the facts on

9 the ground. And then I promised -- I both have some questions

10 for you about the topics that you are addressing now and also

11 I absolutely promised that I will not close out this

12 proceeding before giving you the opportunity to add additional

13 things that I'm overlooking and respond to other things. But

14 I want to close the loop on the factual point before we go on

15 to too many other issues.

16

I think we were talking about this issue of

17 inadequate medical care and that the Government had explained

18 what staff is there and some points that the petitioners had

19 made about this to be. It's not actually clear that there is

20 a doctor on the e available on evenings or on the weekends.

21 And also, it's not clear if people who are in isolation have

22 the opportunity to see a doctor if they have a medical

23 complaint or a sick call. I'm wondering if the Government can

24 respond to that.

25

MR. EICHENHOLTZ: Your Honor, I'll respond as to my

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1 understanding and then I'll probably rely on Ms. Pratesi to

2 have to expand on it.

3

The one thing I do want to say very quickly as well

4 as the Government does dispute, you know, since we are talking

5 about very serious issues with serious consequences. The

6 Government does dispute a lot of what Ms. Rosenfeld said in

7 terms of medical care previously provided. The MDC can't

8 provide care in the best of times. The Government disputes

9 that. The Government is disputing that allegation, you know,

10 in other contexts and in this context.

11

In terms of when the medical unit is staffed by

12 doctors versus other kinds of medical staff, you know, nurse

13 practitioners, et cetera, I'm not entirely sure; and so, I

14 think I need Ms. Pratesi to answer that.

15

MS. PRATESI: I'll jump in.

16

I'm also not fully aware of the exact schedules.

17 But what I will say is that there is always a duty PA on call.

18 Whether or not there are health services staff at the facility

19 at any time. It is my general understanding, I believe, that

20 health services staff of any kind is on site from 6:00 a.m. to

21 10:00 p.m.

22

And then also I just want to make clear that if

23 there is ever an emergency situation whether you have a doctor

24 on staff at the time or not, if it's a medical emergency, an

25 inmate will be transferred to the hospital.

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1

And then backtracking a minute, I believe you asked

2 about inmates in isolation. Health services staff are

3 conducting rounds throughout the unit in the institution. So

4 they would be able to make their complaints then. You also

5 have -- twice a day -- again, healthcare providers going

6 through the units. And whether it's a doctor or not, if it's

7 an issue that a provider thinks is relevant to bring to the

8 attention to a physician, they can also do that for

9 appropriate follow-up care.

10

THE COURT: Okay. Then one other factual point that

11 I think that you just raised that I wonder what the

12 Government's response is about the guidance that exists for

13 correctional facilities. And I think early in this call that

14 petitioners referenced BOP recommendations that asymptomatic

15 patients who are exposed should be held in cells. And I think

16 a moment ago, the petitioners referenced CDC guidance on

17 correctional facilities.

18

I'm not sure I actually have any of those documents

19 or any of their contents. But I'm wondering if both parties

20 can speak to what that guidance is and whether the facility is

21 in compliance with it.

22

MR. CHO: Your Honor, James Cho.

23

With respect to the guidance that petitioners

24 alluded to. Exhibit 2 to the associate warden's declaration

25 from yesterday. Again, these are the CDC posters that the BOP

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1 obtained. While these may be more applicable to people in the

2 public, the overall guidance is the same and applies whether

3 you are incarcerated or not. So I think that's where the

4 posters came from. These were from the CDC generally.

5

MR. EICHENHOLTZ: Your Honor, just to answer that.

6

There were also inmate town halls where the

7 information about how to prevent, you know, proper hand

8 washing, proper sanitary techniques, among other things. This

9 is also in the A. W. King declaration what was provided to the

10 inmates. I think the posters, right, the posters are not

11 specific to a correctional setting. I'm not familiar with any

12 CDC guidance as to correctional settings. I understand from

13 the final -- how to works is CDC, I'm sorry, BOP consults with

14 CDC guidance, amongst other guidance, in creating this

15 nationwide guidance through Phase 5 which came out last night.

16

And, Holly, if I'm wrong about that, let me know.

17 But I think that's how it works is the medical.

18

And then, to the extent there are medical issues,

19 the medical staff at MDC ensures that everything that is being

20 done is compliant with CDC and BOP guidance.

21

Is that right, Holly?

22

MS. PRATESI: Yes, that sounds correct. Also, our

23 institutional staff have any questions they can raise it to

24 the regional level, central office level, and resources at any

25 and all levels can reach out to community resources including

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1 the CDC to make sure we're taking the appropriate action.

2

THE COURT: Is there a BOP recommendation that

3 asymptomatic patients who have been exposed should be held in

4 single cells, and is the MDC complying with that

5 recommendation if it exists?

6

MS. PRATESI: Can you say it one more time?

7

THE COURT: Sure. Is there a BOP recommendation or

8 BOP guidance saying that asymptomatic patients who have been

9 exposed should be held in single cells?

10

MS. PRATESI: I would want to follow up because I

11 don't want to misspeak. But my general understanding is that

12 if we were very much concerned of a risk of exposure, that

13 they might actually be single-celled then. Again, I want to

14 follow up and get absolute confirmation on that.

15

MS. ROSENFELD: Just to be clear, what document.

16 I'm talking about the inmate screening tool that is at Page 42

17 of the King original declaration of the exhibits, and it's the

18 screening tool for people coming in. And at question 3-B, of

19 the screening tool that they submitted, it indicates that

20 asymptomatic people under this screening tool are supposed to

21 be housed in a single cell and those words are in red.

22

THE COURT: Got it. I'm seeing what you're looking

23 at and this is the exhibit that the Government submitted the

24 other day.

25

MS. ROSENFELD: Yes.

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1

MR. EICHENHOLTZ: Your Honor, my understanding, and

2 I'll let Holly again correct me if I'm wrong.

3

So if an inmate is new to the institution that's the

4 medical screening form that they use to assess the potential

5 of risk of the exposure. And if there is, I believe,

6 initially a concern based on that screening form about initial

7 risk of exposure, that is the guidance I believe that has put

8 them in a single cell. I just don't want that to be conflated

9 with the issue of there is some institutional exposure. And I

10 think that, you know, that there was someone in the

11 constitution who tested positive so that everyone goes into

12 separate cells until that -- until the 14 days or something

13 like that. That guidance is specifically for people who are

14 new to the institution.

15

MS. ROSENFELD: I agree, your Honor, with what.

16 Mr. Eichenholtz just said I think the implication of this

17 document is that if you have been in contact with someone who

18 known to have coronavirus, you should be single celled. And

19 now there are hundreds of people probably in MDC who have been

20 in contact with infected people. Whether it was the person

21 who went through the intake unit and was housed with hundreds

22 of other people and moved to different units, or the staff

23 works there, or the staff who are coming in and out.

24

So I don't think that it's, yes, this form is about

25 the intake process but I have to believe that the process for

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1 exposed people isn't just limited to new people coming into

2 this facility.

3

THE COURT: Can I ask you a question about your

4 reading of that form? So I'm looking at it and it seems to

5 say the guidance on 3-B, I think, is if you answered yes to

6 the questions in 2, but then the questions in 2 are all about

7 do you have symptoms? So I'm not sure that this guidance is

8 saying for people who are new to the facility, if you were

9 exposed you should automatically be single celled but am I

10 misreading it.

11

MS. ROSENFELD: It's a little confusing because it

12 says if you're an asymptomatic patient then you're right, your

13 Honor. It says if you have these symptoms, and the form is a

14 little internally contradictory, and I don't want to say that

15 the whole case rests on this form. I think it's an example of

16 best practices and I think Mr. Reinert actually was going to

17 address your Honor's prior question about the CDC guidance.

18

MR. REINERT: Your Honor, if may I address the CDC?

19

I have to say I find it both striking and concerning

20 that we've got representatives of the Government on the phone

21 who are unaware that the CDC has issued guidance on detention

22 in correctional facilities. And the guidance is inconsistent

23 with what the BOP just issued. And the guidance says that

24 people should first preferably be held in single cells because

25 if they're not held in single cells that they have to have six

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1 feet of space between each other. And I think in answer to --

2 and it gets back to the answer by the response to the Court's

3 question about both socially distancing and soap because in

4 the things that counsel did not say that I think some critical

5 insights can be gleaned.

6

So one of the things that respondent's counsel said

7 was, up until this point, mitigation has been about reducing

8 the amount of congregate activity. And I'm not in a good

9 position to say how the current guidelines will affect it, but

10 we can look at the current guidelines, your Honor, they're not

11 going to cut off congregate activity, that is, going to cut

12 out congregate activity for many of these, not just because

13 there should be congregate activity amongst people who are

14 held at the MDC, but there's still going to be still staff

15 contact, of course, there has to be staff contact.

16

And never does the respondent's counsel deny that

17 socially distancing, in a way that 75 percent of the

18 U.S. population has now been instructed to operate their

19 lives, can't be done under currently conditions. Even if

20 they're going to house people together, the CDC recommends

21 that there be an empty cell between occupied cells creating at

22 least six feet of space between individuals.

23

So this is the CDC, right, this is the arm of the

24 federal government telling people, telling correction

25 facilities how to handle this crisis.

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1

On soap --

2

THE COURT: I didn't see the guidance that you all

3 followed and I think --

4

MR. REINERT: I don't know, I can't speak about

5 that. It's easy to find, the Court can take judicial notice

6 of it and we're certainly happy to follow up and provide a

7 copy of it to the Court.

8

What's striking to me is that counsel for the

9 Government is unaware of it. In the same breath, by telling

10 this court we're doing what we're supposed to be doing on

11 soap, again, listen to what's not being said. Yes, soap is

12 distributed, provided when people in come in and maybe people

13 get it while they're there if they ask for it. But we

14 presented evidence for why that's not happening.

15

These are the two critical things, right? If we

16 think of, again, just backup to 10,000 feet. Again, if we

17 think of the Eighth Amendment involving standards of decency

18 think what we all agree we need to do. These are the things

19 everyone is being told to do -- socially distance and being

20 able to wash your hands as much as possible during the day.

21 These are things they can't provide here.

22

So it's in their failure to grapple with those

23 questions that your Honor asked that I think the weakness of

24 their opposition to this request lies.

25

MR. CHO: Your Honor, James Cho.

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1

So taking counsel's argument to the logical end, it

2 seems to me, it applies to all of the inmates at the MDC.

3 That's the impression I'm getting. I'm not saying there's no

4 sort of percentage by where she's agreeable to not reach a

5 certain number of inmates within the MDC.

6

MR. EICHENHOLTZ: And the one thing that I also

7 would like to add is because while I appreciate Mr. Reinert's

8 characterization of the various comments, I don't think it's

9 accurate. He didn't say, well, maybe they could get more

10 soap. What we said was they can request more soap if needed.

11 So to then draw these conclusions that inmates can't wash

12 their hands because they can't have soap is not a

13 representation that the Government makes.

14

I also said that I was not personally -- that I had

15 not personally reviewed the CDC guidance and I've explained

16 that what happened was the BOP central office and the health

17 services staff at MDC individually, and the ones who are

18 making these decisions consults with the relevant CDC

19 guidance.

20

So to make it appear as if in the past 24 hours,

21 opposing plaintiffs' motion for an Order to Show Cause that

22 somehow the Government is unaware of this guidance, or the

23 guidance is not taken into consideration, again, as your Honor

24 pointed out, is not in the submission at all. I personally

25 have not seen it, so I can't speak to it on today's call. But

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1 the reason is because the guidance, taking into account in the

2 BOP guidance, and at the institutional level.

3

So just because I may not personally be aware of it

4 does not follow the BOP does not consider and utilize the

5 guidance in protecting the safety of inmates at MDC Brooklyn.

6

MS. ROSENFELD: Your Honor, I think the guidance has

7 become important because of the evening, the idea last night

8 that people would go into this 14-day full isolation. And so,

9 I think that the idea is there is a conflict between the BOP's

10 recommendation last night and the guidance is what has brought

11 it to the forefront and we're happy to submit it to the Court

12 immediately.

13

THE COURT: That would be helpful.

14

Let me ask you, and if you don't mind. So I want to

15 turn to the question of what scope of the claim that's being

16 pressed here is and what the scope of the relief is that's

17 being sought?

18

So I guess one thing is what you all think BOP could

19 do to fix this problem and do we have an Eight Amendment

20 violation at the MDC, if anything.

21

MR. CHO: Your Honor, if I may? We believe the

22 Government has taken --

23

THE COURT: I'm directing this question more at

24 petitioners.

25

MR. CHO: That's fine.

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1

THE COURT: I am trying to figure out what do --

2 what the petitioners are going to do and what would fix that

3 violation?

4

MR. REINERT: So I think I will try to answer this.

5

I think we should break this into two categories,

6 right? We've got four petitioners in front of the Court who

7 have put forth a claim that they're at risk under the current

8 conditions. And our position is the answer to them is to

9 release them, they have very little time on their sentences.

10 And that's how we solve the problem for them.

11

Now, the whole reason, again, because we recognize

12 that this is a complex issue, and that as the facility has

13 fewer people, what the facility can manage, what the facility

14 can do to mitigate harms, especially mitigate harms of local

15 people might change. So that's why this has to have a

16 systemic approach, the Court has to have a certain systemic

17 approach and that's why a special master is appropriate to the

18 circumstances.

19

So what we need to do is figure out how, under

20 current circumstances, the BOP can mitigate the harm to the

21 people who remain. Some of these maybe the special master

22 recommends and maybe the parties could agree should be

23 released. And as population decreases, then there is more

24 opportunity for the BOP in the MDC to practice the kind of

25 mitigation that's necessary to protect people from harm.

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1

So, to some degree, I understand why the Court is

2 going for this scope the relief. This is exactly why we think

3 it's important to have a process by which we can gather more

4 facts as necessary, figure out who is in the vulnerable

5 category. Which of those might be most -- might have the best

6 prospects for release. And then as things change to the

7 facility, and hopefully change fast, we're able to understand

8 better and ameliorate the risks better. I think that's where

9 we stand.

10

THE COURT: Yes. I guess for me, I feel like I need

11 to analyze this TRO request by asking, is there an

12 Eighth Amendment violation or is there a substantial

13 likelihood of that as part of the TRO analysis. Have you made

14 a showing that you're likely to prevail on that claim?

15

And I'm trying to understand what your argument is

16 about where the Eighth Amendment violation is. And I guess to

17 be more specific about it, you know, I think that many of the

18 claims you're making are claims that are going to be true in

19 most federal facilities and probably in most jails, period.

20 Which is to say, you know, I've read the declaration of the

21 epidemiologist. It's talking about conditions that are common

22 to jails. It's just, you know, jails involve people in closer

23 interactions than the outside world, for instance. Jails

24 involve a population with elevated health risks. Jails are at

25 risk of experiencing staffing shortages when, you know, in

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1 light of this crisis.

2

So I guess it may well be that your claim is

3 basically inmates who are at health risks like these inmates

4 cannot be held unless they're held in conditions where they

5 can socially distance, meaning, they can be kept apart from

6 other folks and not interact with them for things like sharing

7 showers. That maybe your claim, I just want to understand

8 whether your claim si the MDC should fix the following things

9 or MDC has the following specific attributes that make there

10 be a constitutional problem here, or whether it's the other

11 claim that I've articulated because I think it's the other

12 claim.

13

MR. REINERT: So I don't think it's the claim that

14 just by definition per se there's a constitutional violation

15 in any incarcerated person's facility. Number one, we're

16 talking about people who are particularly vulnerable, I've

17 identified that as our class. And so -- and we're talking

18 about a specific kind of transmission of a particular ailment,

19 of a particular disease that at this point poses these strict

20 health risks precisely because it's novel.

21

And I think also it's true that there's a relational

22 aspect to this. And this has been observed, this is what

23 people are seeing at Rikers; this is what people are seeing in

24 other correctional contexts as there is a population then

25 within the facilities. We are reducing the risk within the

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1 facilities.

2

So I don't -- so that's why I think it's now not

3 just jail is unconstitutional in all cases. We've identified

4 some specific problems for our petitioners. We've identified

5 some specific issues with respect to the MDC. So I think

6 we've identified a pattern within the MDC. So this is all, to

7 our mind, specific in our case to the MDC.

8

THE COURT: Okay. So what's the MDC's view, or what

9 is BOP's view to alter the conditions of confinement so that

10 there were being no Eighth Amendment violations with respect

11 to the --

12

MR. WILSON: Andrew Wilson, your Honor.

13

I think that the reason that our TRO is focused on

14 appointing a special master is that the best answer to your

15 Honor's question would come from a deliberative process where

16 a healthcare professional and interested parties from the BOP

17 and the petitioners and potentially an additional special

18 master, I mean, Loretta Lynch has already been appointed to

19 deal with access to counsel issues, could have a discussion

20 amongst themselves and come up with recommendations for the

21 Court.

22

And so, it's at this emergency stage our proposal is

23 that the Court appoint a special master and then report back

24 to the Court to answer that question as soon as possible with

25 it to inform your Honor's decision to give you just a

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1 high-level awareness of how we anticipate that process might

2 unfold, there have been proposals made that there would be a

3 multi-tiered process. The first step would be to take

4 immediate measures to alleviate the crisis right now.

5

The MDC has an east building that is largely vacant,

6 floors could be sanitized per the CDC guidelines, and then

7 those 537 at-risk inmates could be moved into that facility

8 and spread out because there's space for them there. Every

9 inmate could be immediately given soap and access to regular

10 hot water which you heard there's a dispute about that on that

11 call, but what we're being told is that that does not

12 currently exist and the special master could oversee

13 confirmation of that.

14

Similarly, the provision of gloves and surgical

15 masks that could be replaced daily for inmates. The provision

16 of immediate access to medical attention which could be

17 supplemented due to the attention that people exist right now.

18

THE COURT: Are there things that the MDC if you

19 recommend -- I just, more specifically, do you think that the

20 MDC is violating the Eighth Amendment unless inmates can say

21 that is not correct, whether inmates

22 can -- (indistinguishable).

23

MR. WILSON: I would defer to Alex to some degree to

24 answer that question. But I think the simple answer is, yes,

25 that the status quo violates the Eighth Amendment and that is

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1 why we need immediate action to remedy that. And absent

2 immediate action, the petitioners, the four who are before you

3 for this TRO, and the broader class are being subjected to

4 unconstitutional conditions.

5

THE COURT: I don't mean to belabor it, but it's

6 your position there is an Eighth Amendment violation for all

7 of the following class members taken together -- and a bunch

8 of concerns about the MDC. But some of those concerns were

9 addressed like soap or a doctor at a particular time. There

10 might not have been an Eight Amendment violation, or is your

11 position what you said a moment ago what is being alleged here

12 that by itself is an Eighth Amendment violation from the.

13

MR. REINERT: I think it's certainly true that

14 social distancing and ability to engage in just regular

15 personal hygiene is critical. But any Eight Amendment claim

16 is context specific and we have identified, in addition to

17 those concerns, concerns about how people are screened;

18 concerns about how people when they are sick; how they are --

19 whether or not people are exposed to them; concerns about

20 asymptomatic people.

21

So I think it is possible that these facilities

22 could make it easier to socially distance and also ameliorate

23 all these other risks and still be in a position and be in a

24 position where they're not violating the Eighth Amendment.

25

THE COURT: If that's the case, why isn't the

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1 appropriate remedy be to direct, it's not there's a structural

2 problem with the MDC where folks can't practicably be -- at

3 least high-risk folks can't be incarcerated there without

4 violating the Eighth Amendment. Why isn't the appropriate

5 remedy to direct those steps that can be taken at the MDC to

6 remedy the conditions?

7

MR. REINERT: This gets back to Mr. Wilson's point.

8 I think that's the idea behind a special master is the special

9 master can work to identify those with the assistance of an

10 expert. As to our four petitioners, two of whom have very

11 little time, all of them have very little time, two of whom

12 have basically two weeks left. We're trying to mitigate the

13 conditions now. And as to those are the four who are in front

14 of the Court, they're seeking to represent to everybody else

15 that they're the four who are in front of the Court. And as

16 to those, at this point, they are facing unconstitutional

17 conditions because of the combination of factors. And so,

18 holding them in those conditions are exposing them to a risk,

19 basically, by the hour.

20

THE COURT: Okay. So, I guess, another question I

21 have about the contours of the claim here is your friend on

22 the other side alluded to the fact that in a bail hearing or a

23 compassionate release proceeding, the Court would consider

24 other statutory factors and they include dangerousness and

25 risk of flight.

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1

Is it your contention that those are relevant, or

2 that those are not relevant in a case where somebody is

3 bringing an Eighth Amendment claim?

4

MR. REINERT: So I think those could be relevant as

5 long as they're either, for instance, we identify somebody who

6 is at risk, but there are concerns about dangerousness or risk

7 of flight, although risk of flight has not, I mean, we could

8 say this for pretrial folks. Then the question becomes what

9 other measures individually could we take for that person to

10 ensure we would mitigate the Eighth Amendment risk. And

11 either dealt with risk of flight by putting certain conditions

12 on release or if we decide we can ameliorate the conditions

13 within facility taking those steps.

14

I guess, again, we're not asking the Court to -- the

15 individuals in front of the Court are the four petitioners.

16 They're not -- it's not about risk of flight for them. So if

17 the special master is appointed and is considering people who

18 are in the same category as petitioners in terms of their

19 health conditions, but also with the pretrial then maybe those

20 considerations would come into play. But this again is what

21 calls for a systemic approach, rather than a judge-by-judge

22 approach because it allows the facility and the special master

23 and the parties to think about the population and how many

24 people are in the facility and how as the population increases

25 greater risks and more can be mitigated within the facility.

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1

THE COURT: So, I'm sorry, I'm just not getting the

2 answer to my question, I think, which is about how the

3 Eighth Amendment analysis works on your view.

4

So is it under the Eighth Amendment could you look

5 at a particular defendant and say, I find there is no

6 Eighth Amendment violation because this person poses a grave

7 danger to the community if he's released and I don't find that

8 climate would mitigate that danger. Those are kinds of

9 analyses you would do at bail.

10

I will tell you my reaction to the Eighth Amendment

11 analysis you're putting forward. Those factors just wouldn't

12 just be relevant. There might be at the TRO stage a question

13 of balancing of equities where those might play in. But the

14 merits of the Eighth Amendment question I think the answer is

15 there is no -- those factors don't play into an Eighth

16 Amendment analysis. Do you think I'm right or I'm wrong?

17

MR. REINERT: I think your intuition is right in the

18 sense that the formal contours of the Eighth Amendment claim

19 don't consider those factors alone. But in terms of what the

20 remedy is, I think the Court could consider those factors if

21 that would make sense.

22

MS. ROSENFELD: Your Honor, with respect to the four

23 people here and I think our position being right now today

24 there's an Eight Amendment violation, they're being held in

25 unconstitutional conditions, each of them have very short

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1 release dates, there is no contention in the Government's

2 papers, and I'm happy to go through with your Honor if you're

3 curious if any of these people pose a risk to the community or

4 violence or an inappropriate to leave. The two people who are

5 closed out, Mr. Chunn who is being released on the 18th and

6 Mr. McBride on the 15th, they're essentially out.

7 Mr. Rabaldi, who is almost 60 years old and has heart disease

8 and diabetes, and is scheduled for July 19th. He's in on a

9 wire fraud related matter that is almost, you know --

10 Mr. Rodriguez is supposed to be released in early June; he has

11 a drug case, first and only federal conviction, we believe,

12 and he has been in custody for three years and I don't think

13 there is any concerns with him.

14

Again, your Honor, if the Eighth Amendment is being

15 violated, I think that what happens in terms of where people

16 go and under what conditions goes to remedy and we don't

17 expect the Court would adjudicate all 537 people and that's

18 why the judge appoint someone to oversee that with the input

19 from a doctor, from a correctional health expert to say this

20 person is going to get really sick and do really badly if they

21 stay in this facility and without that.

22

Your Honor has been incredibly patient and may I

23 just add one thing on the medical issues before that you were

24 asking about before. I think another concern that we have,

25 your Honor, is that it seems that the solution that MDC is

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1 putting forward in terms of how people are being confined is

2 now turning to an isolation procedure which is that people

3 have to stay in their cell all the time except when they come

4 out to use showers or use phones or those kinds of things. I

5 think it's very unclear both to people that we have been

6 speaking with who are class members and had us on the phone,

7 how do people in isolation obtain medical care? Because the

8 process for normally obtaining medical care is that you have

9 to put in a sick call request and then time elapses, and then

10 you might get brought down to the clinic in several weeks.

11 How will the medical staff take care of hundreds and hundreds

12 of people seeking medical care in isolation?

13

THE COURT: I don't mean to interrupt you.

14

Maybe what would make sense is if you all would have

15 areas that you want to go back to because I realize I'm trying

16 to move things into a particular area I'm concerned about.

17 Maybe just make a note of it and I promise that I will give

18 you time to address all the things at the end, but otherwise

19 I'm just worried about we're going to jump around so much it's

20 going to be hard.

21

MS. ROSENFELD: Understood.

22

THE COURT: So where I took the analysis to be is,

23 tell me if I got it right, as to whether an Eighth Amendment

24 violation occurs because conditions for a vulnerable person,

25 the Eight Amendment analysis doesn't turn on considerations

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1 like or even really allow considerations like dangerousness

2 and risk of flight in your view but those considerations would

3 be relevant in deciding the remedy, the release, I guess,

4 release in a TRO context. And your point is here you think

5 there are good reasons to release these folks, they have very

6 little time on their sentence, and you also outline some of

7 the facts about the offense.

8

I guess, what do you -- I think your friends on the

9 other side are saying those are factors that the BOP evaluates

10 and then a Court would evaluate if there were a compassionate

11 release application that were made. There's a process for

12 that. It sounds like several folks in this case, BOP is

13 involved in that process now. But at an initial stage they

14 expressed concerns about their suitability for release based

15 on those types of criteria.

16

I guess I'm wondering as sort of an equitable matter

17 why should I short circuit that and be ordering temporary

18 relief based on a very limited record where I don't have the

19 kind of evidence before me if this were even a standard bail

20 application or compassionate release application.

21

MS. ROSENFELD: Well, your Honor, the reason would

22 be that we have made a showing that they are all four of them

23 very medically compromised and that the conditions are

24 dangerous and we put forward information from the family

25 members that they have a place to go and we haven't met with

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1 any opposition delivering papers from the Government on

2 Friday, the 27th that any of them are, in fact, a danger and

3 can't be released to their home. And so it's an emergent

4 situation where every day matters, and your Honor made a lot

5 of attempts to get an answer to the question of the timeframe

6 for the processes that are the alternative mechanisms and

7 there was no answer.

8

So the answer is because it's an emergency and

9 because people are going to get very sick and potentially

10 worse, and because we have made a threshold showing that it is

11 that serious and there is no countervailing showing that it

12 would be dangerous for any reason or bad to release people who

13 are on the cusp of release anyway.

14

Your Honor, the lack of a timeframe for these

15 alternative procedures is really concerning for people who are

16 very sick and like Mr. Rabaldi at this 59 years hold, for

17 example. Waiting several weeks, I mean, even we got that our

18 question was has been forwarded to appropriate department in

19 Mr. McBride's request, what does that mean in the context of

20 an emergency?

21

So, you know, I think this is a public health crisis

22 and jails around the country are releasing people in large

23 swaths for exactly these reasons. Under normal circumstances,

24 I understand that each person would go to a court and there

25 would be a very lengthy deliberative process. And the

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1 question is whether the Eighth Amendment requires the parties

2 and the Court to move more quickly to protect people from

3 these dangerous conditions absent a very compelling reason not

4 to.

5

THE COURT: And the special master you're

6 envisioning would be involved in this? What is it you're

7 envisioning the special master would do?

8

MS. ROSENFELD: Well, we have a list, a BOP list of

9 537 people minus hour our four petitioners before the Court

10 today. I think that the idea would be to very, very quickly,

11 on an expedited schedule, get people's information in front of

12 that person and get a correctional health expert to assist

13 that person and the Federal Defenders and, you know, Pretrial

14 or Parole or the U.S. Attorney's Office get the stakeholders

15 very quickly create information for that person to make

16 recommendations about, okay, here are 50 people who are really

17 sick and they need to get out on Friday; and here are a

18 hundred people who are also, you know, really at risk and they

19 need to get out on Tuesday; and here a hundred people who have

20 serious sentences and can't get out, but we're going to put

21 them in the East Building.

22

So I think it's really trying make recommendations

23 to the Court to take very, very expeditious action. And, you

24 know, I appreciate that the U.S. attorneys and everybody at

25 the BOP has procedures they have to follow, but right now, in

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1 an emergency like this, we need to move much faster. And so,

2 that person would be tasked with moving apace and reporting to

3 you or to the Court about these recommendations to get people

4 out or whatever and help them.

5

THE COURT: So if the rule is a sort of information

6 gathering about these individuals generally and maybe the

7 particular focus on these 500-some individuals and making a

8 recommendation, I guess I'm wondering -- I mean, this is the

9 sort of thing that attorneys do for their clients typically --

10 they make an application or a recommendation, the Government

11 responds, and then the Court acts based on that. I'm

12 wondering why you have a special master to, I guess, serve as

13 a person who is an additional step in that. I'm not really

14 sure why that would speed things up?

15

MS. ROSENFELD: I think the first is that there's

16 common conditions affecting hundreds and hundreds and hundreds

17 of people, so it doesn't need to be separately analyzed and

18 adjudicated in 537 different proceedings, right? So there's a

19 common problem that's affecting many, many people that most

20 efficiently could be looked at in one forum with one answer.

21

THE COURT: Is that true when you're talking about

22 release petitions?

23

MS. ROSENFELD: I think there is really an

24 efficiency in going at this from one place, your Honor. I

25 think there are people who have similar conditions, for

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1 example, who may all be subject to an initial sweep through

2 the list. I think there are people who have similar statuses

3 in terms of their criminal cases who might be swept out of the

4 list. I think there is a lack of efficiency somebody

5 overlooking this and make recommendations and not have 537

6 different applications pending before judges who, frankly, are

7 busy and can't necessarily decide these things on the schedule

8 that they need to in order for it could be meaningful for the

9 class members.

10

THE COURT: Is that right? I mean, I've been seeing

11 these bail applications being addressed in our court I think

12 quite quickly. Are you experiencing a delay in having these

13 applications addressed?

14

MS. ROSENFELD: I think if 1,500 -- there have been

15 no delays, your Honor. I think if 500 applications come in in

16 the next three days and we could do that. There are people

17 who are, you know, at the end of their sentence, for example,

18 who don't even have contact with their lawyers anymore. So

19 not everybody in there has the ability to martial a lawyer and

20 get before a Court at this point. And I think there's

21 opposition from the Government, there's briefing schedules. I

22 think it's just the normal court procedures that would apply

23 not in a massive public health emergency don't work here,

24 right? And the people who are sick, or who are quarantined or

25 who have illnesses are not always able to use the phone. I

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1 spoke to Mr. McBride's partner who I spoke with this morning

2 and told me that he had one phone call at 9:00, another phone

3 call tomorrow at 9:00. So I think the exigencies of the

4 situation, your Honor, mean that everybody's running around in

5 a panicked mode in the middle of a crisis trying to file

6 different things and get people's attention and make different

7 agreements with the U.S. Attorney's Office is not going to be

8 effective. And I don't think that in this case having a

9 medical expert assist a neutral in evaluating lists that have

10 been compiled already and gathering facts and having this

11 happen in a quick but efficient way will be the extra layer.

12 I think it's the critical link here that's missing right now

13 in order to get people out who should be out or to protect

14 people who can't get out who are there.

15

THE COURT: Can I ask about how this works under the

16 rule which I think is §53, the appointment of special masters

17 because it seems to me it says should be limited to three

18 types of situations, and first, I have to give the parties

19 notice and an opportunity to be heard. And then the master

20 has to file a particular kind of affidavit. I'm wondering how

21 you're seeing all of this fit in with what you're proposing.

22

MR. REINERT: I think it is not unusual at all for

23 courts to appoint special masters when there's factual

24 complexities in the case when -- and I've got this case from

25 the Eastern District involving the Vulcan Society class action

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1 which the Court says, In light of this Court's workload, a

2 pressing need for relief, the Court will be unable to

3 expeditiously resolve the complex issues in this case, so it

4 appoints a special master.

5

We're not asking the special master to resolve

6 liability issues that what's most the case that the

7 respondents cited to the Court are about. It's to do, you

8 know, to be focused on figuring out the facts on the ground

9 and identifying sort of the transfers to different people who

10 might, as Ms. Rosenfeld said, might fall under different

11 categories and try and come up with solutions promptly and I

12 think it's not uncommon for a special master to be involved in

13 that kind of mix of fact development and maybe some mediation,

14 et cetera.

15

THE COURT: Just to track the rule, you're saying

16 because appointment that would be under §53(2) making a --

17 also recommending findings of fact or --

18

MR. REINERT: I would say, your Honor, §53(a)(1)(c)

19 which is sort of the catch-all that courts use a lot for this

20 kind of --

21

THE COURT: If there is a problem that cannot be

22 effectively addressed or --

23

MR. REINERT: Yes, exactly. There's a timeliness

24 issue here, there's an efficiency issue, and we think it would

25 reduce the burden on the Court. It would give one person with

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1 a single-minded focus on the issue. Obviously, the Court's

2 focused on the issue, we recognize that, but there's also a

3 lot of other things that the Court has done.

4

THE COURT: So can you help me understand what

5 exactly the relief that's requested. How you conceive of it

6 with respect to these four individuals. Is it a request for

7 bail pending the determination of the habeas because I know,

8 and I'm sure you all looked at Judge Nathan's decision, and

9 that seems to be what she awards there in a case involving a

10 similar claim.

11

Is that what you're seeking, or is there something

12 else?

13

MR. REINERT: Your Honor, again, the Court -- we

14 haven't framed it as a request for bail. The Court could

15 frame it as a release to home confinement under conditions,

16 right? And then it's not even necessarily technically a

17 release from custody or from the supervision of the BOP.

18

And if there are conditions that make sense that for

19 that relief, then the Court -- we phrase the order in a way

20 and I think it gives the Court some flexibility. The most

21 important thing is to take the individuals out of the

22 situation there and put them in a situation where the risk can

23 be ameliorated.

24

THE COURT: Okay. So on the substantive piece, let

25 me ask you about the deliberate indifference standard which I

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1 know your friends on the other side alluded to.

2

So, I mean, it seems -- I think the argument is this

3 is a very difficult and new health risk. It is a challenge

4 for jails to address this health risk and to figure out how to

5 do that. BOP is taking steps to address that health risk, you

6 know, as you see by the fact that there's new guidance that

7 was issued today under steps taken today. And so, I guess the

8 question is how that's conscious disregard even if there is a

9 question about, you know, legitimate question, about whether

10 BOP should be doing one thing versus another thing. Even if I

11 thought myself BOP should be doing an additional step of some

12 kind, I'm wondering how I would get to conscious disregard.

13

MR. REINERT: Sure, your Honor.

14

So I think there's a few things that are key to

15 that. One is who these petitioners are, right? They're

16 particularly vulnerable if they are infected by COVID to the

17 risk of death. The increased risk to them is upwards of 40

18 fold compared to another person who is just exposed to COVID

19 who doesn't have some of these conditions. So that is a

20 substantial risk of harm that is imposed by the COVID-19

21 infection.

22

And the respondent is on notice of the conditions

23 that we've identified. And just because they've responded

24 doesn't mean that they've responded in a way that meets their

25 obligations to these petitioners. So the -- you know, and

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1 we've had a lot of back and forth, obviously, on the

2 sufficiency of the response about whether or not they can

3 whether or not the petitioners are going to be able to engage

4 in the social distancing and personal hygiene that's necessary

5 to mitigate their risks.

6

And our position is at this point they're not, and

7 so, there's plenty of cases that say just because you've

8 responded doesn't mean that you haven't been deliberately

9 indifferent. It's also the shape of injunctive relief or

10 equitable remedies in a case like this where the harm is

11 ongoing. And our position is, as long as what the BOP has

12 done does not actually reduce the harm to a constitutional

13 level, then the fact that they've responded doesn't actually

14 cure the Eighth Amendment violation.

15

THE COURT: I do think you have to hit the

16 deliberate indifference standard for there to be a violation,

17 I think.

18

MR. REINERT: We have a deliberate indifference

19 standard. There is a footnote in Farmer v. Brennan which says

20 in the injunctive context being put on notice is sufficient

21 and we have put them on notice. Our position is that they

22 have we have given them notice of problem and, in fact, the

23 Federal Defenders had a given them notice for some time. And

24 the measures that have been taken doesn't ameliorate the risk.

25 So the risk still exists and we, you know, as long as they're

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1 being held then, then our position is they are conscious, the

2 respondent is conscious they are being held in conditions that

3 exposes them to the risk, that's deliberate indifference.

4 It's not about -- we're not required to show somehow that

5 they're acting in bad faith, right or anything like that. It

6 is how they've taken steps that that solves a problem.

7

THE COURT: Is that it? I guess I'm wonder if it's

8 more than that. That seems to be did they, gosh, did they

9 solve the COVID problem is a high standard. I'm wondering if

10 the standard is akin to recklessness.

11

MR. REINERT: We're not asking for them to be solve

12 the COVID problem, that's not what we're asking for these

13 individuals. We're asking to solve the problem of the risk to

14 the individuals. So it is -- the state of mind, of course, is

15 akin to recklessness, right, a conscious disregard of the

16 risk. So, to some degree, I don't want to be repetitive.

17

THE COURT: Yes. We've identified the risk.

18

MR. REINERT: We've explained why the measures that

19 have been taken don't address the risk and can't address the

20 risk for these individuals. So to continue to hold them is to

21 be in conscious disregard of that risk. That's the structure

22 of the argument.

23

THE COURT: Can I ask? This is a kind of doctrinal

24 question that relates to this I'm struggling with a little

25 bit. I'm not sure that anything turns on it, I think these

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1 may just be different formulations of the same basic inquiry

2 but I think that you framed this as a question of deliberate

3 indifference to unmet medical needs. And I've seen at least

4 one other case, you know, I think Judge Nathan has framed this

5 question in the same way. I'm struggling with it and I'm

6 wondering why this isn't a kind of basic conditions of

7 confinement test situation which is I think that test is

8 failure to remedy conditions that pose an unreasonable risk to

9 health and I think that's what you are basically asserting.

10

There are unmet medical needs questions. I'm not

11 really sure, like, I looked at Charles it's touching about

12 there being some condition that a person has that's going to

13 produce death or extreme pain and then doctors fail to treat

14 it. And that just seems like a hard one for me to mask that

15 on to this.

16

MR. REINERT: Yes. If that was what I communicated

17 that's my -- that mistake is on me. We have cited to many

18 cases that talk about risk, about creating a risk from

19 conditions. Some of those risks are medical, some of those

20 are risks to others depends on the nature of our argument.

21 There is a substantial risk of harm, future harm, that's

22 caused by these conditions.

23

THE COURT: Okay. And I guess, so looking at these

24 cases. I mean one of the things that they talk about is

25 unreasonable risk and I wonder if you could speak specifically

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1 on that and I guess, you know, there's part of, I think, the

2 risk that's being asserted here is a risk from delay if one

3 undergoes a process that BOP would undertake and would

4 eventually get you get into court and that process would

5 involve BOP assessing things like the risk to the community

6 and I think the Attorney General has also determined we want

7 to quarantine these individuals before release in order to

8 protect the community.

9

So those are the objectives that are being served by

10 the delay and I take your point to be -- over the

11 countervailing health consideration which is there is a risk

12 for every day that these folks are in the facility. I'm

13 wondering since we have these two conflicting objectives how

14 do I figure out it's an unreasonable risk?

15

MR. REINERT: This gets back to sort of what is

16 considered in the scope of an Eighth Amendment violation. But

17 the risk is the risk of harm to being held where they are. To

18 the extent there's a concern about exposure to the community,

19 they can self-quarantine at home. The question about sort of

20 should the BOP should be involved or not, if there is -- if

21 holding them in these conditions exposes them to a substantial

22 risk of harm, that is an unreasonable risk, right? I think

23 that's how the courts -- I don't think the courts are adding

24 some additional analysis by using the term "unreasonable."

25 The question is, do you have a substantially increased risk of

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1 serious illness or death that's also going to constitute

2 irreparable injury and that's going to satisfy the

3 Eighth Amendment claim. The other factors, again, could

4 theoretically be balancing and maybe on remedy as my colleague

5 said we've identified these individuals, there's nothing that

6 the respondent said about what stakes there are on the other

7 side other than general statements, two of them have release

8 dates within the next two weeks. It's hard to imagine that in

9 order to the ameliorate the condition immediately for them as

10 is necessary, that need to wait two weeks because if we let

11 them out two weeks early, somehow that's going to be balancing

12 equities somehow goes in the public's favor. So I don't think

13 unreasonableness adds a whole lot to the deliberate

14 indifference standard.

15

THE COURT: Can I ask a sort of evidence question

16 about the irreparable harm piece? So I've read, I think, all

17 the materials that have been submitted and I take the

18 submission that the epidemiologist makes and consistent with

19 the other submissions you're making it be, these individuals

20 are at an elevated risk when they are custody. They're just

21 much more at risk than others suffering complications.

22 There's an assertion of elevated risk and I get that. And I

23 guess I'm wonder going is there anything I can look at to

24 assess the magnitude of the risk with what I'm trying it

25 figure out is if basically the alternative process is there

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1 is -- they're going to be there for some additional period of

2 time. It's hard for me to figure out what the risk associated

3 with that in particular is.

4

MR. REINERT: I mean, in a paper from the WHO

5 fatality rates, mortality rates, for people in this category.

6 And for some, the mortality rate is as high as 15 or

7 16 percent. Basically, what we're saying is there is a

8 one-in-six chance to die.

9

THE COURT: Maybe the other statistic that doesn't

10 exist in the world is what somebody's elevated risk of getting

11 the coronavirus if they are in a facility like this.

12

MS. ROSENFELD: Your Honor, this is Katie Rosenfeld.

13

The Legal Aid Society's stats on this are actually

14 helpful because they do have a chart which shows you, and it's

15 in the declaration that I submitted as part of the initial

16 papers. The different infection rates for depending on

17 whether you're in custody or in the community. And I think

18 from that I'm sorry, your Honor, I'm trying to find it while

19 I'm speaking. I think it's clear that if you're at a much

20 higher risk of infection because you're incarcerated than you

21 are at a higher risk of negative outcomes and health problems.

22 And so, those things might be helpful to your Honor.

23

THE COURT: Yes. Okay. That's helpful. I'll look

24 for this.

25

So I have some questions for the respondent if

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1 that's all right, too, and I if there is anything you want to

2 add to this.

3

MS. ROSENFELD: No, your Honor.

4

THE COURT: So I've read some of the other decisions

5 that are addressing conditions of confinement cases like this

6 including the decision by Judge Nathan and a decision by

7 Judge Torres. Can you kind of tell me why the steps that the

8 MDC is taking aren't basically analogous to the steps that

9 those judges were found were deficient in the ICE facility

10 they were considering.

11

MR. CHO: Well, I think there's a big distinction

12 between ICE detention and detention at the MDC. Again, those

13 in ICE detention are incarcerated under immigration laws as

14 opposed to the criminal defendants in the MDC. So there's a

15 big distinction there because in the ICE context, most courts

16 have held that in terms of risk to the community, these

17 inmates are released to the community is not as grave

18 necessarily as those who are convicted for inmates.

19

So there's one distinction between the ICE types of

20 cases and cases involving MDC type facilities and BOP

21 facilities. But the important thing also to keep in mind as,

22 your Honor is aware, many judges in the Eastern District

23 itself reviewing bail applications, requests for compassionate

24 release, have reviewed the same evidence that's been submitted

25 to your Honor in this case dealing with high risk of

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1 developing the infection, conditions within the MDC, all

2 within the past week. And many of those judges have denied

3 those requests for relief under bail petitions, under request

4 for compassionate release.

5

So I think those are the more applicable cases to be

6 looking at as opposed to those cases belonging in ICE

7 detention. These are different types of situations involving

8 did types of inmates.

9

THE COURT: Do you think the conditions are

10 different?

11

MR. CHO: Well, the MDC is a high-rise, secure

12 facility with a wide variety of inmates in there from

13 low-level inmates to highest maximum security inmates,

14 terrorism inmates as well. So, again, ICE detention is

15 different from BOP detention. Yes, there's a difference.

16

THE COURT: I'm asking about the conditions of

17 confinement and maybe you don't have an answer to that or

18 don't have those cases on hand which is fine. But it does

19 seem to me like, for instance, the stuff that you all are

20 doing as of today makes this case, make the conditions when

21 people are being held makes it different from the prior cases

22 but that's the question I'm asking.

23

MR. CHO: I think that is correct. Again, the

24 conditions at MDC are changing rapidly and they're constantly

25 evolving. The steps that they are taking to prevent an

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1 outbreak of the infection. So, again, cases are different

2 from our cases here.

3

THE COURT: Are there any steps that you all are

4 taking that are directed at folks who are in high-risk

5 categories in particular. I guess, the one step you have

6 available is the compassionate release mechanism. But is

7 there anything else that you all have available to those

8 inmates?

9

MR. CHO: Well, the Government, we have been

10 proactive about this whole process. We created that list of

11 500 or so of potential high-risk inmates that was overly

12 inclusive that goes well above and beyond the risk factors

13 found in the CDC guidance. The age is much lower than the CDC

14 guidance and other conditions as well. The BOP is obviously

15 very proactive by identifying high-risk inmates to decide

16 what's going to be done with them.

17

THE COURT: What are you doing with the list? I

18 guess part of it has been conveyed to Federal Defenders and

19 that facilitates applications for bail or compassionate

20 release. Are you using that list, or do people who fall in

21 those categories in the list have the ability to get any kind

22 of special protection?

23

MR. EICHENHOLTZ: This is Seth Eichenholtz.

24

The list was originally developed not to be given to

25 the Court or to Federal Defenders. It is actually identifies

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1 individuals. So if there was a positive amongst others, those

2 individuals can be addressed with the greatest urgency. We

3 can know where they were. The warden and the medical staff

4 would know they were at risk. We would be able to take

5 appropriate steps if they were exposed. The list is updated,

6 I believe, and Holly can correct me. I believe it's updated

7 on a daily basis. But that is the purpose of the list, so

8 that there is awareness of where these individuals are

9 throughout the facility so that their specific needs and

10 specific risks canning addressed in the event that it needs to

11 be addressed.

12

THE COURT: Okay. So part of the argument you're

13 making in the papers is there's only been one exposure area.

14 And how can we say that these inmates are subject to a risk of

15 irreparable harm when there's only one exposure and we're

16 taking, you know, a number of steps to address the coronavirus

17 crisis. And I guess I wanted to ask you about the advice

18 we're all getting about social distancing. It does seem like

19 we're being generally told to minimize our contacts with other

20 people. And I'm wondering if to the extent that you can't

21 really do that in a facility, isn't it just common sense that

22 there's an increased risk, that there's a risk in particular

23 of irreparable harm.

24

MR. CHO: Your Honor, to the extent there's an

25 increased risk. The BOP's is actually trying to minimize,

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1 obviously, group settings. A whole unit is not being moved

2 all at the same time. There's procedure to move unit by unit

3 or cell by cell as opposed to entire units all at once. So

4 the BOP is taking steps to try to increase socially distancing

5 for the inmates. Certainly, there is always limitations

6 because they're incarcerated, but to the extent it can it's

7 taking steps to do so.

8

THE COURT: Okay. I guess the analysis that your

9 friends on the other side are offering about irreparable harm

10 is when there is a constitutional violation that's alleged,

11 then irreparable harm is alleged. And when a risk to life is

12 alleged, then irreparable harm is alleged.

13

Do you think that's off base?

14

MR. CHO: I think a lot of the arguments that

15 they're raising are very speculative. Again, it would be a

16 different situation. The four petitioners had confirmed

17 symptoms or had the virus itself. I mean that's a different

18 situation. But they're only talking about risk here or

19 potential risk.

20

THE COURT: What about the Secondhand Smoke case?

21 Again, I don't want to butcher the name. It contemplates the

22 idea that the risk is something that can qualify as an

23 actionable harm, it doesn't have to be actual exposure before

24 you reach that point?

25

MR. CHO: The remedy they're seeking here is for

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1 these four inmates their complete release from the MDC, right?

2 Again, there's risk outside the MDC as well. There's risk

3 everywhere. So I don't know if there is an inflated risk

4 because they're at the MDC or not in the MDC. The risk is

5 inherent in the situation we're in now.

6

THE COURT: That was the piece I was asking about

7 with respect to social distancing. If you can't do at the MDC

8 the things that we're being hold to do, or at least maybe that

9 premise is not correct given the recent guidance but it sounds

10 like there are substantial challenges to social distancing

11 there. So then I'm not really sure it's speculative to say

12 there's an increased risk.

13

MR. CHO: Right. But the logical flow to all that

14 is they're staying everyone at the MDC needs to be released

15 all of them, all the inmates.

16

MR. EICHENHOLTZ: Your Honor, I just want to also

17 add that I think that one of the problems with the term, I

18 think, Mr. Reinert keeps using is "grappling with these

19 issues" in the sort of expedited proceeding is exactly that.

20

My understanding is that the social distancing is

21 both about preventing people from getting infected and

22 preventing the spread of the illness. There are obviously

23 situations in the world as well where the social distancing,

24 you know, isn't possible or doesn't happen; for example, if

25 you have family members who you live with regularly and all

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1 are asymptomatic, there is a recommendation that you all live

2 in different parts of the house. So I think that, you know,

3 you getter start to get into this realm of a certain expertise

4 which why earlier I pointed out the fact that the BOP and the

5 medical staff at MDC are the ones who are making these

6 guidance to balance the concerns and the risk, to mitigate the

7 risks, while also handling the institutional need for a safe

8 and secure operation of the needs of the institution.

9 Plaintiffs need to show that, you know, their attempts to do

10 are, you know, deliberately indifferent.

11

And on this summary proceeding I kept hearing, the

12 Government didn't oppose this, the Government didn't oppose

13 that. In part that's true because of the nature of this kind

14 of proceeding, your Honor pointed out there isn't a complete

15 evidentiary record. And so, you know, I found also striking,

16 for example, on the other side that you asked petitioners'

17 counsel and the answer to that question is, well, we don't

18 know.

19

So what it sounds like to me is the argument is more

20 akin to an argument of, you know, we believe that in this case

21 MDC isn't doing what we feel it should be doing and there may

22 be very good reasons for that. And there may be that a

23 suggestion they have is -- what the MDC do but that doesn't

24 rise to the level of deliberate indifference.

25

THE COURT: So §2241 has the exhaustion standard,

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1 exhaustion requirement. Are you all conceding that that's not

2 something to worry about in this case because there's the

3 carve out for when somebody's alleging, I'm going to butcher

4 the carve out, but it's basically an imminent injury and

5 that's what they're alleging here.

6

MR. EICHENHOLTZ: That's correct.

7

THE COURT: One thing, I don't know if either of you

8 can tell me -- so you all have helpfully pointed me to cases

9 that address either bail applications or to ICE detention

10 cases recently and some compassionate release cases. Are

11 there any other suits out that there that are like this? I

12 guess when I say like this, I mean Eighth Amendment

13 challenges, coronavirus, federal prisoners, or pretrial

14 detainees.

15

MR. EICHENHOLTZ: Your Honor, to my understanding,

16 there is a TRO application that was just filed in the District

17 of Colorado. I believe the Government may have put in an

18 opposition to that today. It's the only one that I'm aware

19 of.

20

THE COURT: And petitioners, anything else you got?

21

MR. REINERT: Your Honor, we cite to the Court a

22 number of cases in which courts have releases some of I would

23 say that the cases that responded to cites in there are

24 distinguishable with cases in which there was no evidence that

25 anyone at the facility that had COVID and just didn't.

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1

Some of the arguments made by the respondents were

2 the cases where -- is making arguments about the procedural

3 requirements of the First Step Act. So we got a long list of

4 cite.

5

THE COURT: I've looked at those and the closest --

6 I would say the closest thing found in those cases are

7 Eighth Amendment claims in ICE facilities. I didn't' see any

8 claims that involved federal or convicted or pretrial inmates

9 facing a similar challenge. But I just want to make sure

10 there is something out there that's closely related to this

11 case.

12

MR. REINERT: The case --

13

MS. VON DORNUM: Your Honor, I wanted to bring your

14 attention that Judge Furman about an hour ago referred a

15 habeas in front of him over to the Eastern District because

16 it's a person detained at the MDC.

17

THE COURT: Yeah. I saw that one. Is that the

18 person I believe it was --

19

MS. VON DORNUM: He was represented by Daniel Parker

20 and I think he had an additional counsel appointed. The

21 Government refused to waive venue over there, so my

22 understanding is it's about to be filed here and raises, you

23 know, similar claims in an individual context.

24

THE COURT: Okay. Got it.

25

MR. REINERT: In that order, Judge Furman cites to a

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1 letter from the warden saying that, at least as Judge Furman

2 triggered it, but there was no place for something like

3 Mr. Acondos for seeking relief.

4

THE COURT: You all have been very patient with me

5 and very helpful and I promised that after I asked the stuff

6 that was on my mind, I would give you the opportunity to

7 respond to anything that I didn't give you a full opportunity

8 to respond to or anything else you wanted to add.

9

MS. ROSENFELD: Thank you, your Honor, you have been

10 incredibly patient with us. I will keep it brief.

11

I need three or four final points. The first is

12 that we have not come to your Honor lightly at all and I think

13 if you look at the initial application by Ms. von Dornum, it

14 details attempts by Federal Defenders since early March to

15 work with the BOP and to work with MDC to try and address the

16 situation. And I think what the declaration shows,

17 unfortunately, is very little movement and not action that's

18 consistent with a crisis. And so, I just want to make it

19 clear that we have not filed this quickly. There was a lot of

20 attempts made to work with the facility and they haven't

21 worked and that is why we're here.

22

With respect to the list that was created,

23 Judge McMahon ordered the BOP to order respondents to create

24 that list. That was not created voluntarily or, you know,

25 independently. That was Judge Judge McMahon said make this

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1 list and there have been no steps taken by respondents to

2 protect people on that list, specifically. So they have held

3 the list of particularly vulnerable people for many weeks now,

4 and in response to applications and requests for release for

5 different people on the list, there has been opposition in

6 some cases, it sounds like there may be corroboration on a few

7 people. But the Government continues to oppose relief for

8 people on that list on both substantive and exhaustion-related

9 grounds.

10

In terms of the statistics, your Honor, and the

11 issue of how many people have this. We believe that the

12 number of cases in the MDC is higher than what the BOP is

13 reporting. Your Honor may have seen that the facility in

14 Louisiana where there's an outbreak has stopped testing people

15 because they are working under the assumption now that

16 everybody there has coronavirus.

17

I think it's very telling that the question of how

18 many people have been tested at the MDC so far. How many

19 tests are at MDC. Those two questions, they are nowhere in

20 the Government's papers. So we have no idea if they think

21 that one person has coronavirus because they've only tested

22 five people or if they've tested 500 people and one person has

23 it. But I think for purposes of this analysis today, your

24 Honor, we have shown that they have not followed proper

25 protocols in terms of people coming into the building and

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1 moving around it who have been exposed to someone who has

2 coronavirus. And unfortunately, I think that's sufficient to

3 show, in addition to the five staff members, that it's very

4 likely that there is coronavirus spreading within the building

5 as we are all talking. And when it gets tested and when those

6 get reported on the BOP's website are separate.

7

Finally, your Honor, I know your Honor has been

8 exploring the issue of alternative mechanisms here and what

9 else is available. And again, I would just stress one last

10 time that time is of the essence here. And if the BOP decides

11 to grant a conditional release or a humanitarian relief, I'm

12 sorry, a relief for humanitarian compassionate release.

13 That's going to take several days, however long it takes, days

14 weeks plus 14 days quarantine that your Honor mentioned. If

15 they're denied relief, then there's the time that it takes to

16 reach that denial of us going to the Court for release and we

17 simply can't wait. We have people that are all 537 or whether

18 it's subgroup of them who will get very sick if they're

19 infected in an environment where they can't be properly

20 protected.

21

And then finally, your Honor, with respect to the

22 four individuals. I think that, you know, Mr. Reinert made

23 the point they have release dates that are coming up in weeks

24 and a few months. It's very hard to mention any reason they

25 cannot be released to home confinement and a changed

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1 conditions order from your Honor. And we believe we've met

2 more than met our burden that continuing to stay in the

3 facility is dangerous to them and we thank your Honor for your

4 all and careful attention to the petition.

5

THE COURT: I appreciate your helpful responses and

6 your helpful filings both sides.

7

MR. EICHENHOLTZ: Your Honor, may I have just a few

8 closing comments as well?

9

THE COURT: Take as long as want.

10

MR. EICHENHOLTZ: First of all, I want to address

11 and this is one in the same thing things I find problematic.

12 Again, I keep calling it a summary proceeding, that's probably

13 not the correct technical the posture we're on granting

14 sweeping relief.

15

Ms. Rosenfeld just said the list was created at the

16 order of Judge McMahon and asserted that as just that it's

17 fact. That is not correct. As far as I'm aware, that is not

18 accurate. The list was created because this is the step that

19 MDC Brooklyn was taking. The list was then ultimately used by

20 the Court system and the courts used it for other purposes.

21

But BOP before Judge McMahon and Judge Mauskopf

22 ultimately asked for the lists were already compiling this

23 information together.

24

THE COURT: Just so I understand. Is there any

25 dispute about that from petitioners? I take it that you're

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1 relying on the fact that Judge McMahon asked for the list, but

2 do you have any basis to contest that they were creating a

3 list beforehand?

4

MS. VON DORNUM: Your Honor, I was in a Southern

5 District meeting with Chief Judge McMahon; the warden of the

6 MCC; Nicole McFarland, who supervises both facilities; Jeff

7 Ostriker, the Chief of the Civil Division; and Judge Caproni

8 on March 12th prior to the lockdown and we were inquiring how

9 many people are vulnerable within the meaning, the criteria of

10 the CDC. Ms. McFarland and the warden at the MCC said they

11 have no idea. And we were saying that, you know, we thought

12 that was a very important question to answer to know what

13 steps the facility should take.

14

So Chief Judge McMahon at that juncture said to

15 Ms. McFarland, who supervises both facilities' legal staff and

16 the warden, I want a list like that from both facilities.

17 That was then communicated to, I believe, through Magistrate

18 Judge Pollak but perhaps by Chief Judge Mauskopf directly to

19 the MDC as well. The MDC soon thereafter created just that

20 list. We waited an additional week and a half for the MCC to

21 create theirs, but no one at any point said we're already

22 doing. That, again, they have could have been, we did not

23 know. But at the time they inquired, they said they did not

24 have that data.

25

THE COURT: I probably shouldn't have interrupted

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1 you.

2

MR. EICHENHOLTZ: Your Honor, I don't mean to,

3 again, I understand why from Ms. von Dornum's perspective that

4 appeared to be the way that happened. I understand now where

5 this is coming from and, you know, that was also a point that

6 the Government had alluded to in its papers that sometimes

7 when you're not on you're not seeing the development because

8 BOP does have certain security concerns they're not always up

9 front about everything that they're doing, it could lead to

10 this impression they're not doing something. And often, I

11 found that sometimes it gets cited as actually not doing when,

12 in fact, it may not be accurate and it's just something I

13 wanted to raise when I heard that.

14

I also, you know, wanted to emphasize that this is

15 about MDC Brooklyn. It's not about MCC, it's not about a

16 situation in Louisiana where they are no longer testing. And

17 I also finally wanted to mention that I think that the

18 Government in its brief, just to point to it, put forth a very

19 compelling argument as to why a special master is

20 inappropriate to make these sort of determinations. For

21 example, the compassionate release, the motion to be brought

22 was to be brought in the sentencing court which is for some of

23 the inmates it may be in the Southern District, it may be

24 other districts.

25

And one of the things that concern me, when I kept

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1 hearing Ms. Rosenfeld said, oh, the Government doesn't, the

2 Government didn't set forth an argument that these inmates

3 would be a danger to the community to release these

4 individuals or why they would be a danger to the community.

5 The Government's argument was this wasn't the appropriate

6 forum in which to have that discussion. The Government, you

7 know, we cannot make -- we have not made any sort of

8 concession that the prosecutors or those involved in making

9 those evaluations that those criminal defendants are neither

10 our office or the relevant office in the Southern District of

11 New York does not have concerns.

12

In fact, as we alluded to earlier, our office has

13 expressed concerns and two of the -- about Mr. Chunn who is

14 the Eastern District defendant getting out on home

15 confinement. As you know, the office is divided into civil

16 and criminal, and so, I don't know the details of those

17 concerns. But it's not true that the Government does not have

18 concerns. It is true that the Government did not put that in

19 its response but, again, that's because we are in this sort of

20 summary proceeding, expedited proceeding posture here and that

21 this is one of the things that pieces that I think falls out

22 of that in this case in addition to a fully developed

23 evidentiary record.

24

And which would bring me to my final point about the

25 problem with the special master. And I understand in the

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1 current situation it sounds tempting to say, all right, let's

2 just appoint someone to take away the decision-making

3 authority of BOP and the prosecutor and the other judges.

4 They could just do it all quickly and they could do it all for

5 everyone. But, again, what falls out of that is a detailed

6 analysis that a judge, a prosecutor, might take to a

7 particular case. And in terms of making decisions that are

8 either BOP administrative decisions that are supposed to be

9 made by the Executive Branch or decisions that are supposed to

10 be fully litigated before a court as we stated in our brief we

11 believe it would highly inappropriate for a special master to

12 make those sort of determinations and could have serious

13 separation of power implications and certainly should not be

14 done on this kind of expedited proceeding.

15

THE COURT: Great. I have a couple of follow-ups

16 just based on the things that you all have said. Maybe just

17 to address that last point first which is about the special

18 master. And part of this seems like a difficult question and

19 I think part of the lens I'm viewing this through is a TRO

20 lens. It seems unusual to appoint a special master through a

21 TRO. And I guess if I were to articulate the case for

22 appointing a special master for a TRO through a TRO, I think

23 it would have to be this idea that the special master would be

24 very quickly addressing claims on the merits of a very large

25 class of individuals at MDC. And I guess there I'm wondering

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1 it seems like it turns on the resolution of a whole bunch of

2 hard questions that I'm not sure the other piece of the TRO

3 request requires addressing. But things like, is this an

4 appropriate class action when there are, I think, individual

5 issues that would go to release, individual issues that could

6 go to the medical circumstances.

7

So, I guess, I wonder if you could speak to the

8 special master in the TRO context which is something appealing

9 to me about saying this is not a TRO remedy for the reasons

10 that I just articulated but I wanted to give a chance to

11 respond to it.

12

MS. ROSENFELD: Alex, do you want to respond?

13

MR. REINERT: Sure. I think I hear what your

14 Honor's saying and I think it's true that this is an

15 extraordinary examples. I don't think anybody at all

16 understands that. And so, it is unusual, I think, in this

17 context to go to a special master. So, again, I don't want to

18 lose cite of the fact that we're asking for two separate

19 pieces of relief. I want to maybe one for petitioners and one

20 for a special master. The reason is because we have this

21 class of people who are trying to obtain relief for and a

22 special master with help facilitate that.

23

But I think there will be a number of other steps

24 that we'd have to engage in as we work toward a special master

25 would only be part of it. But at least a special master would

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1 get started on identifying this sort of broad categories of

2 people who might be eligible for release or some other kind of

3 mitigation of the harm.

4

So I don't want to avoid your Honor's intuition

5 which is that this is unusual in this posture. I don't think

6 the release is unusual in the sense that it's directed at the

7 individuals who are in front of the Court with facts

8 justifying release. But precisely because of the time

9 problem, and precisely because of the procedures that the

10 respondent is pointing to, are all procedures, number one, in

11 which they have opposed use of reliance on the COVID-19

12 epidemic as a ground for relief in those contexts and

13 precisely because of the time requirement. An extraordinary

14 circumstances calls for perhaps an extraordinary remedy such

15 as this. So I don't know if that answers your Honor's

16 question.

17

THE COURT: That's helpful. And I wanted to get

18 your responses.

19

Let me ask the Government just because two things

20 that I think came up when you all were wrapping up one about

21 the use of the vulnerable persons list and as you said before,

22 and I think your friend on the other side articulated, it

23 sounds like this is a list created so that you know who these

24 folks are in the event that there's an exposure is there any

25 other list that you --

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1

MR. EICHENHOLTZ: Your Honor, I lost the last part

2 of that.

3

THE COURT: Your friends on other side said

4 basically you're not using the list to do anything with

5 respect to these inmates. Is that a fair characterization

6 that you created it and use it basically in the event that

7 there is an exposure you would be able to address those

8 persons at that point?

9

MR. EICHENHOLTZ: Yes. The list is for staff

10 awareness so that if there is an issue, they are aware of one

11 of these inmates with heightened vulnerability inside the

12 facility. Beyond that there is no action and, again, Holly,

13 my colleague can correct me, but there is no affirmative

14 action that has been taken other than being aware, if needed,

15 where these folks are.

16

THE COURT: Are vulnerable inmates otherwise being

17 treated in the same way as folks within a facility, that is,

18 you know, separate housing or other accommodations that are

19 being made. For instance, these inmates who were saying here

20 we have a serious medical conditions that are put in elevated

21 risk.

22

MR. EICHENHOLTZ: Yes, I believe so. And Holly, if

23 you can confirm that for me.

24

MS. PRATESI: Yes. Using the list again to keep an

25 eye on them, know where they are, and also, this way we can

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1 use it that if they are complaining of medical issues we

2 realize in terms of triaging those might be more necessary to

3 address first to administer certain medication where aware of

4 them keeping up with those prescriptions, things like that.

5 So I think awareness is one of our best tools with respect to

6 those individuals right now.

7

THE COURT: The other point counsel raised that I

8 wanted to respond to directly. You point out that there's

9 been one positive test among inmates, but we don't know what

10 the denominator is. We have a pleading, sorry, what the

11 actual do not agree? Do you know how many people have been

12 tested at the facility?

13

MR. EICHENHOLTZ: I believe there have been two

14 other tests.

15

Holly?

16

MS. PRATESI: There have been two other tests that

17 have come back negative. I'm not 100 percent sure if there

18 have been additional tests since that date. I can find out

19 and get back to the Court if you like.

20

THE COURT: Okay. I guess the follow-on question

21 would be if that's the case, then how probative is it that

22 there's only been one positive test? We're taking one out of

23 three.

24

MR. EICHENHOLTZ: And I don't, I'm just -- it's a

25 challenging question, your Honor, because it's the same kind

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1 of, I think, issue that we face in the world handling this

2 generally which is, you know, it's not probative in the sense

3 of do you know if you ever tested anyone who would come back

4 positive.

5

My understanding, and Holly can correct me if I'm

6 wrong, is every inmate who has these concerning symptoms, who

7 is symptomatic, who has a fever, they would test. So it's

8 showing that at least as far as staff is aware that these were

9 the three individuals who met the criteria to be tested and

10 was tested.

11

Holly, did I get that right?

12

MS. PRATESI: I believe so more or less. Again,

13 each case is going to be evaluated on its own merits, the

14 symptoms presented, the severity, and our staff will, you

15 know, evaluate whether testifying is appropriate. And

16 further, obviously, if it's more severe whether they need to

17 be sent to the hospital regardless for testing just to make

18 sure their symptoms, whether it's consistent with COVID-19 or

19 the flu or another illness, can be properly addressed.

20

MS. ROSENFELD: Your Honor, I don't want to

21 interrupt anybody but at the end of this colloquy I would like

22 to respond to that information that was just provided.

23

THE COURT: Sure. Go ahead.

24

MS. ROSENFELD: That's extremely alarming, your

25 Honor, that three people in the facility have been tested

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1 because what that means is that the number of people who

2 likely have the coronavirus there is exponentially higher.

3 They have over a hundred people in isolation. They have two

4 units of people in isolation, Unit 82 or 83, I believe, and

5 Unit 42. So hundreds of people are in isolation but none of

6 them have been tested. I don't really understand the

7 representation that, I'm sorry, I'm at a loss for words.

8

Two units of people are in isolation because they've

9 been exposed to people with coronavirus. It sounds like three

10 people total have been tested. So that means that at least

11 probably around a hundred people may have coronavirus but

12 haven't been tested. And then, in addition, your Honor, we

13 know of many people who are, well, I shouldn't say "many

14 people," but, you know, Ms. von Dornum and myself and her

15 staff and people are e-mailing us are reporting that they have

16 people in their cells who are coughing, people who are, you

17 know, sick and who have not been tested. So I would really

18 strongly dispute the assertion that everybody who is

19 symptomatic is being tested. So I don't think there is any

20 basis to say that there are many people in the facility who

21 are sick and who have not been tested.

22

THE COURT: Yes. Maybe I would follow up with

23 counsel for the Government about that because I heard two

24 different things. I think, first, and I apologize if I had

25 butchered anyone's name.

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1

Mr. Eichenholtz said if they are symptomatic they

2 are being tested. And I think I heard Ms. Pratesi say

3 something that was different from that which is doctors are

4 making decisions about whether to test under all of the

5 circumstances which is I think pretty different.

6

Let me ask, are you saying that you're testing

7 everybody who is, you know, has a fever and cough or other

8 symptoms? What are you testing.

9

MS. PRATESI: This is Holly. If I can answer that

10 to clarify a bit better.

11

Counsel for the other side is saying their detainees

12 are reporting that they have these symptoms. Our staff first

13 has to evaluate, correct, if an inmate says, I have a fever

14 somebody take the temperature and they don't have a fever,

15 then we're in a different circumstance. So we first have to

16 do an evaluation. Are you, in fact, coughing? Are you, in

17 fact, symptomatic and then from there whether testing is

18 appropriate.

19

THE COURT: So you do that. So let's say you do the

20 evaluation and you determine that somebody is showing

21 symptoms. Are you doing a test or it depends?

22

MS. PRATESI: I don't want to speak for the medical

23 staff that actually makes that evaluation, but my assumption

24 would they would that they would then be tested. That is not

25 ultimately my call, that would be the medical department and

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1 they should be calling and seeking guidance from the clinical

2 director, potentially the region, or outside hospitals whether

3 testing would be appropriate at that point.

4

THE COURT: So if that's where we are then, I

5 shouldn't rely on the assertion that people who are

6 symptomatic are being tested, right?

7

MR. EICHENHOLTZ: Yes, your Honor. Yes, I was the

8 one who said that was, again, my general understanding which I

9 also share the test is. But it is a clinical determination

10 so, I guess, you know, I think that's more accurate to say

11 what Ms. Pratesi just said.

12

MS. ROSENFELD: Your Honor, another problem here is

13 that as of two and a half week ago it was reported that there

14 were only nine test kits in the facility. So I think there

15 are also concerns about whether those test kits, how testing

16 is being done. But I think, your Honor, just to pull the lens

17 back. I think that what we're looking at here goes to the

18 question you raised about, you know, what is the

19 appropriateness of a special master at this point and these

20 kinds of issues. This is a TRO proceeding, we have asked for

21 the release of our four clients.

22

Mr. Eichenholtz says that the Government doesn't

23 agree that it doesn't have (indistinguishable) and we would

24 submit that those people should be released now. They've had

25 plenty of opportunity to say if there is a danger or a

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1 problem, they haven't said to and I think we've met the bar.

2 But in terms of the more general situation there. This is

3 exactly why, your Honor, we thought that the appointment of

4 somebody who is a correctional health expert who could

5 evaluate what is happening in the facility and report to your

6 Honor about these kinds of facts would be very helpful to

7 everybody because, of course, petitioners' counsel are not

8 doctors and neither is Ms. Pratesi. And maybe there's a

9 protocol where testing is appropriate and it's not and they

10 have to implement that. But the idea that your court is being

11 told that only three people have been tested in a facility

12 where there have been five staff persons who are sick and one

13 confirmed case and a hundred people in isolation, it seems to

14 a layperson very concerning.

15

And so, we do think that in this kind of emergency

16 epidemic, started with Rikers Island with one person, that was

17 in mid-March and we have 180 today that the Court could act to

18 appoint somebody to evaluate groups of people who are most at

19 risk and try and expedite their release and to consult with

20 the Court about steps to protect people and increase the

21 health and safety of the facility is appropriate.

22

THE COURT: Counsel, one follow-up about that. So

23 is there any difference between these four folks for the

24 purposes of Eighth Amendment analysis than for the entire list

25 of vulnerable persons and 500-some people, I guess, that list

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1 is the vulnerable folks. I assume the answer is no.

2

MS. ROSENFELD: I was going to say there is no

3 difference in the fact that they're all people that the

4 facility identified as medically vulnerable to COVID and

5 therefore we believe we face increased risk. The only -- so

6 there's no legal difference between, I think, the difference

7 right now in terms of the Court is that we've been able to

8 make a decision with more detailed information to the Court

9 for these four people, and you have the declarations from

10 their family members, and you have some medical records and

11 you have some indication about their charges and what's been

12 requested and so the Court could make a determination today

13 for those four people that it might be in a position to reach,

14 obviously, for everybody else on the list.

15

THE COURT: But the analysis, I think, would be for

16 those individuals like a basically a separate, equitable

17 analysis about, I would think, it's been sort of equities of

18 release in the TRO context. But I think if you were correct

19 about an Eighth Amendment violation for these four with the

20 analysis would be the same for the others.

21

MS. ROSENFELD: Yes, absolutely.

22

THE COURT: Can I just ask one factual follow-up

23 question for the Government because I think that you --

24 petitioners' counsel said a couple people there are two units

25 of people in isolation and that adds up to hundreds of people

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1 because of potential exposure; is that correct?

2

MS. PRATESI: Not entirely. There was one unit that

3 had been isolated and those were the inmates that were housed

4 with the inmate who tested positive the day he went to the

5 hospital. Those individuals are actually coming off

6 isolation, I believe today.

7

Another unit that had been quarantined, not

8 isolated, because two individuals from that unit were tested.

9 Once those test results came back negative, they were all

10 released from quarantine status.

11

The intake unit is quarantined right now just

12 because, well, with the addition of the guidance that the

13 quarantine be put into place so that the individuals who come

14 into the facility who may be asymptomatic can remain there for

15 the 14 days without going into general population to make sure

16 that they don't develop symptoms and they, in turn, were

17 isolated so that each time a new person came in it didn't

18 restart the 14-day clock. So that's not because of potential

19 exposure.

20

I believe there may be one other unit right now that

21 is quarantined pending review but I would have to verify that

22 so. I don't think a hundred inmates or those numbers are

23 fully accurate as reported by petitioners.

24

MS. ROSENFELD: Our understanding is that Unit 53,

25 Ms. Pratesi, is also under some kind of isolation or

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1 quarantine status and that was the unit I was referring to.

2

MS. PRATESI: Again, I'm not going to give specific

3 numbers but that was the one that I believe -- one unit was

4 more recently quarantined. But that at this point that would

5 only be unit and the intake unit. This is not because of a

6 positive case or exposure that's just because they're coming

7 in. So, at this time, I believe there's only one unit on

8 quarantine status pending an evaluation of whether inmates are

9 or are not symptomatic.

10

THE COURT: Okay. Thank you all for answering so

11 many questions.

12

Anything else that you want to add?

13

MS. ROSENFELD: No, your Honor.

14

MR. CHO: No, your Honor.

15

MR. LIFSHITZ: Allon Lifshitz.

16

MR. CHO: Allon, go ahead.

17

THE COURT: I wonder if he dropped.

18

MR. LIFSHITZ: Your Honor, can you hear me? Sorry.

19

THE COURT: Yes.

20

MR. LIFSHITZ: This is Allon Lifshitz. I work in

21 the Criminal Division at the U.S. Attorney's Office.

22

The Court asked a couple of times about what use is

23 being made of the list of the 500 or so inmates who are deemed

24 high risk and I think that's been asked for the BOP and I

25 don't want to be silent about that.

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Case 1:20-cv-01590-RPK-RLM Document 26-5 Filed 04/03/20 Page 126 of 147 PageID #: 427

Telephonic Hearing

125

1

The U.S. Attorney's Office consults that list

2 constantly because of bail motions and other applications in

3 real-time and we're always considering whether someone is on

4 the list and it's certainly been a factor in our consenting in

5 a few cases. And we're even considering actively whether to

6 proactively reach out to defense lawyers in cases where a

7 motion has not been made, but someone is on the list. Of

8 course, it's not automatic. Someone on the list may

9 constitute a danger or a risk of flight but it is something we

10 look at daily throughout the Office.

11

THE COURT: Okay. Anything else?

12

MR. CHO: Thank you, your Honor.

13

MS. ROSENFELD: Thank you, your Honor.

14

THE COURT: I appreciate all the help with this.

15 It's a hard situation, obviously. And so, I appreciate

16 your -- and complicated legal issues -- so I appreciate your

17 help working through them. I am going to turn this around

18 fast as I can but it's probably going to be tomorrow.

19

MR. CHO: Thank you.

20

MS. ROSENFELD: Thank you.

21

(WHEREUPON, this matter was adjourned.)

22

23

* * *

24

25

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Case 1:20-cv-01590-RPK-RLM Document 26-5 Filed 04/03/20 Page 127 of 147 PageID #: 428

Telephonic Hearing

126

1

2

CERTIFICATE OF REPORTER

3 I certify that the foregoing is a correct transcript of the
4 record of proceedings in the above-entitled matter.

5

6

7

8

9 ________________________________________ Anthony D. Frisolone, FAPR, RDR, CRR, CRI
10 Official Court Reporter

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Case 1:20-c(v1-0-15a9h0e-RadP)K-RLM
1
1 [2] - 1:7, 5:17 1,500 [1] - 85:14 10,000 [1] - 67:16 100 [1] - 116:17 10003 [1] - 1:21 10020 [1] - 1:16 10:00 [1] - 60:21 10th [1] - 1:15 11 [2] - 30:16, 43:20 110 [1] - 10:8 11201 [1] - 2:5 11:30 [1] - 1:8 1211 [1] - 32:2 12th [1] - 109:8 139 [1] - 9:24 14 [4] - 12:21, 64:12, 107:14, 123:15 14-day [2] - 69:8, 123:18 15 [1] - 95:6 15th [2] - 56:10, 79:6 16 [2] - 14:1, 95:7 16th [2] - 14:8, 15:5 18 [2] - 38:9, 38:10 180 [2] - 9:24, 121:17 18th [2] - 56:10, 79:5 19th [4] - 9:23, 14:6, 14:8, 79:8
2
2 [6] - 5:17, 36:11, 36:12, 61:24, 65:6 20-CV-1590(RPK [1] - 1:3 20-CV-5090 [1] - 3:5 2020 [4] - 1:7, 14:1, 18:20, 18:21 24 [3] - 10:9, 44:6, 68:20 25 [1] - 11:7 26 [1] - 18:20 26th [3] - 14:11, 14:12, 14:20 271 [1] - 2:4 27th [1] - 82:2 29 [1] - 15:3
3
3 [2] - 5:1, 30:19 3-B [2] - 63:18, 65:5 30 [11] - 15:5, 16:21, 16:23, 18:3, 40:21, 40:23, 40:24, 41:13, 57:8, 57:9 30-day [4] - 17:25, 41:2, 41:4, 44:14 31 [1] - 18:21 3582 [2] - 38:9, 44:24 3624 [1] - 38:10
4
4 [3] - 30:23, 31:2, 31:3 40 [3] - 26:5, 26:6, 89:17 40/60 [2] - 25:16, 25:20 42 [2] - 63:16, 118:5

Document 26-5 Filed 04/03/20 Page 12P8aogfe1417 PageID #:

429 5

acknowledged [1] - 24:15

Acondos [1] - 105:3

5 [2] - 37:18, 62:15 50 [1] - 83:16 500 [4] - 85:15, 98:11, 106:22, 124:23 500-some [2] - 84:7, 121:25 53 [2] - 10:7, 123:24 537 [8] - 11:3, 26:5, 74:7, 79:17, 83:9, 84:18, 85:5, 107:17 55 [1] - 1:20 59 [1] - 82:16

act [1] - 121:17 Act [1] - 104:3 acted [1] - 43:1 acting [1] - 91:5 action [13] - 10:3, 16:11, 16:13, 16:15, 63:1, 75:1, 75:2, 83:23, 86:25, 105:17, 113:4, 115:12, 115:14 actionable [1] - 100:23 actively [1] - 125:5 activities [1] - 49:18

activity [4] - 66:8, 66:11, 66:12, 66:13

6

acts [1] - 84:11

actual [3] - 15:8, 100:23, 116:11

60 [3] - 25:4, 26:7, 79:7 600 [1] - 1:15 613-2487 [1] - 2:16 613-2694 [1] - 2:17 6:00 [1] - 60:20

add [9] - 35:8, 35:9, 59:12, 68:7, 79:23, 96:2, 101:17, 105:8, 124:12
adding [1] - 93:23 addition [6] - 4:16, 75:16, 107:3, 111:22, 118:12, 123:12 additional [12] - 37:18, 50:13, 51:20,

7

59:12, 73:17, 84:13, 89:11, 93:24, 95:1, 104:20, 109:20, 116:18

address [27] - 5:4, 5:12, 8:1, 8:20,

718 [2] - 2:16, 2:17

11:14, 13:11, 19:2, 21:21, 22:14, 36:25,

75 [1] - 66:17

37:3, 37:12, 46:1, 65:17, 65:18, 80:18, 89:4, 89:5, 91:19, 99:16, 103:9, 105:15,

8

108:10, 112:17, 115:7, 116:3

addressed [10] - 5:23, 39:10, 75:9,

8 [1] - 32:17 800 [1] - 15:13 82 [1] - 118:4 83 [1] - 118:4

85:11, 85:13, 87:22, 99:2, 99:10, 99:11, 117:19
addresses [2] - 5:17, 52:20 addressing [7] - 7:19, 40:25, 43:13, 59:10, 96:5, 112:24, 113:3

adds [2] - 94:13, 122:25

9

adequate [5] - 27:3, 53:6, 55:16,

55:21, 58:18

938 [1] - 1:21 9:00 [2] - 86:2, 86:3

adjourned [1] - 125:21 adjudicate [1] - 79:17 adjudicated [2] - 41:1, 84:18

A

administer [1] - 116:3 administrative [2] - 41:25, 112:8

admission [1] - 32:22

a.m [2] - 1:8, 60:20

advice [4] - 36:3, 36:6, 36:18, 99:17

Abady [1] - 3:9

advised [1] - 34:3

ABADY [1] - 1:13

advocating [1] - 31:13

aberration [1] - 54:9

affect [2] - 48:8, 66:9

ability [6] - 41:12, 44:19, 47:13, 75:14,

affecting [2] - 84:16, 84:19

85:19, 98:21

affects [1] - 49:15

able [11] - 22:23, 24:4, 51:24, 61:4,

affidavit [1] - 86:20

67:20, 71:7, 85:25, 90:3, 99:4, 115:7, 122:7
above-entitled [1] - 126:4 absence [1] - 16:6 absent [2] - 75:1, 83:3 absolute [1] - 63:14

affidavits [1] - 28:4 afford [1] - 17:6 age [1] - 98:13 agency [2] - 42:10, 43:9 ago [5] - 32:22, 61:16, 75:11, 104:14, 120:13

absolutely [5] - 8:7, 38:1, 38:4, 59:11, 122:21

agree [8] - 21:16, 31:12, 44:21, 64:15, 67:18, 70:22, 116:11, 120:23

access [8] - 31:10, 32:19, 35:3, 51:20,

agreeable [1] - 68:4

54:13, 73:19, 74:9, 74:16 accommodations [1] - 115:18 according [1] - 15:4 account [1] - 69:1 accurate [7] - 42:7, 52:22, 68:9,
108:18, 110:12, 120:10, 123:23

agreed [3] - 6:17, 44:17, 45:6 agreement [1] - 8:12 agreements [1] - 86:7 agrees [1] - 44:20 ahead [6] - 4:19, 17:22, 25:9, 31:1, 117:23, 124:16

acknowledge [2] - 14:15, 19:16

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Case 1:20-(cAv-i0d15-90b-aRiPlK)-RLM
Aid [2] - 9:22, 95:13 aided [1] - 2:19 ailment [1] - 72:18 aimed [1] - 36:2 air [3] - 32:9, 32:13, 35:18 airborne [1] - 32:6 akin [3] - 91:10, 91:15, 102:20 al [5] - 1:3, 1:7, 1:14, 1:20, 2:4 alarming [2] - 12:4, 117:24 Alex [6] - 3:17, 8:19, 13:13, 26:18, 74:23, 113:12 ALEXANDER [1] - 1:22 allegation [2] - 52:9, 60:9 allegations [1] - 52:8 alleged [5] - 75:11, 100:10, 100:11, 100:12 alleging [3] - 37:9, 103:3, 103:5 alleviate [1] - 74:4 alleviated [1] - 46:16 ALLON [1] - 2:6 Allon [4] - 4:8, 124:15, 124:16, 124:20 allow [3] - 29:14, 48:25, 81:1 allowed [1] - 49:17 allows [2] - 41:22, 77:22 alluded [6] - 19:22, 61:24, 76:22, 89:1, 110:6, 111:12 alluding [1] - 36:6 almost [5] - 12:22, 46:24, 53:15, 79:7, 79:9 alone [1] - 78:19 ALSO [1] - 2:8 alter [1] - 73:9 alternative [19] - 20:1, 21:1, 22:9, 37:23, 38:23, 39:20, 39:24, 40:21, 42:25, 44:11, 45:17, 45:24, 56:12, 56:25, 57:3, 82:6, 82:15, 94:25, 107:8 alternatives [1] - 39:3 ameliorate [6] - 33:7, 71:8, 75:22, 77:12, 90:24, 94:9 ameliorated [1] - 88:23 Amendment [6] - 27:14, 69:19, 75:10, 75:15, 78:24, 80:25 amicus [1] - 27:20 amount [3] - 42:1, 49:2, 66:8 amounts [1] - 32:12 analogized [1] - 27:25 analogous [4] - 20:10, 28:15, 34:3, 96:8 analyses [1] - 78:9 analysis [14] - 71:13, 78:3, 78:11, 78:16, 80:22, 80:25, 93:24, 100:8, 106:23, 112:6, 121:24, 122:15, 122:17, 122:20 analyze [1] - 71:11 analyzed [1] - 84:17 ANDREW [1] - 1:17 Andrew [2] - 3:18, 73:12 anecdotal [1] - 51:12 answer [38] - 10:24, 13:2, 16:4, 16:8, 17:3, 17:4, 17:17, 21:24, 22:1, 25:11, 29:5, 30:9, 40:22, 41:9, 43:14, 50:10, 51:24, 60:14, 62:5, 66:1, 66:2, 70:4, 70:8, 73:14, 73:24, 74:24, 78:2, 78:14, 82:5, 82:7, 82:8, 84:20, 97:17, 102:17, 109:12, 119:9, 122:1 answered [1] - 65:5

Document 26-5 Filed 04/03/20 Page 129Paogf e1427 PageID #:

answering [1] - 12443:100

assess [2] - 64:4, 94:24

answers [4] - 15:25, 16:1, 24:23,

assessing [1] - 93:5

114:15

assigned [2] - 31:3, 33:2

Anthony [2] - 2:15, 126:9

assist [2] - 83:12, 86:9

anticipate [1] - 74:1

assistance [1] - 76:9

anyway [1] - 82:13

Assistant [1] - 2:7

apace [1] - 84:2

Associate [2] - 4:17, 52:12

apart [3] - 45:18, 46:11, 72:5

associate [2] - 5:1, 61:24

apologize [1] - 118:24

associated [2] - 28:18, 95:2

appealing [1] - 113:8

assume [2] - 41:13, 122:1

appear [4] - 3:3, 17:12, 33:8, 68:20

assumption [2] - 106:15, 119:23

appearances [3] - 3:7, 3:12, 4:2

asthma [2] - 56:22

appeared [1] - 110:4

asthmatic [2] - 54:6, 55:16

apple [1] - 45:19

asymptomatic [10] - 11:7, 12:20,

applicable [2] - 62:1, 97:5

61:14, 63:3, 63:8, 63:20, 65:12, 75:20,

application [12] - 23:8, 23:22, 23:24,

102:1, 123:14

45:14, 57:18, 58:2, 81:11, 81:20, 84:10,

at-risk [2] - 26:13, 74:7

103:16, 105:13

attached [2] - 36:13, 36:15

applications [9] - 85:6, 85:11, 85:13,

attack [1] - 56:19

85:15, 96:23, 98:19, 103:9, 106:4,

attacks [1] - 56:22

125:2

attempt [1] - 39:2

applies [2] - 62:2, 68:2

attempting [1] - 5:16

apply [2] - 44:14, 85:22

attempts [4] - 82:5, 102:9, 105:14,

appoint [7] - 57:19, 73:23, 79:18,

105:20

86:23, 112:2, 112:20, 121:18

attention [8] - 32:5, 55:14, 61:8, 74:16,

appointed [3] - 73:18, 77:17, 104:20

74:17, 86:6, 104:14, 108:4

appointing [2] - 73:14, 112:22

attorney [1] - 10:22

appointment [4] - 9:4, 86:16, 87:16,

ATTORNEY [1] - 2:2

121:3

Attorney [3] - 2:3, 19:24, 93:6

appoints [1] - 87:4

Attorney's [8] - 4:5, 4:8, 4:9, 37:1,

appreciate [10] - 19:16, 21:8, 56:14,

83:14, 86:7, 124:21, 125:1

57:15, 68:7, 83:24, 108:5, 125:14,

attorneys [3] - 16:25, 83:24, 84:9

125:15, 125:16

Attorneys [2] - 1:14, 2:7

approach [6] - 11:8, 17:9, 70:16,

attributes [1] - 72:9

70:17, 77:21, 77:22

authority [1] - 112:3

appropriate [24] - 18:23, 21:13, 21:16, 21:20, 28:12, 29:6, 34:19, 44:21, 46:6, 61:9, 63:1, 70:17, 76:1, 76:4, 82:18, 99:5, 111:5, 113:4, 117:15, 119:18, 120:3, 121:9, 121:21
appropriateness [1] - 120:19 approximate [1] - 25:17

automatic [1] - 125:8 automatically [1] - 65:9 availability [1] - 22:8 available [15] - 11:25, 12:1, 22:12, 22:14, 26:23, 37:23, 38:23, 38:24, 42:25, 51:8, 55:20, 59:20, 98:6, 98:7, 107:9

April [3] - 1:7, 56:10 area [5] - 12:11, 17:17, 54:5, 80:16, 99:13 areas [5] - 10:13, 33:2, 51:25, 52:7, 80:15 argue [2] - 24:3, 24:4 argued [1] - 23:15 arguing [1] - 44:22 argument [15] - 27:17, 27:19, 42:24, 53:5, 68:1, 71:15, 89:2, 91:22, 92:20, 99:12, 102:19, 102:20, 110:19, 111:2, 111:5 arguments [3] - 100:14, 104:1, 104:2 arm [1] - 66:23

Avenue [1] - 1:15 avenue [1] - 20:1 avenues [4] - 21:1, 31:14, 39:20, 45:25 avert [1] - 15:18 averted [2] - 13:18, 35:13 avoid [1] - 114:4 awaiting [1] - 26:11 awards [1] - 88:9 aware [12] - 7:20, 9:13, 32:9, 60:16, 69:3, 96:22, 103:18, 108:17, 115:10, 115:14, 116:3, 117:8 awareness [4] - 74:1, 99:8, 115:10, 116:5

articulate [1] - 112:21

B

articulated [3] - 72:11, 113:10, 114:22

aside [1] - 52:8 aspect [2] - 28:5, 72:22 asserted [3] - 18:7, 93:2, 108:16 asserting [5] - 43:4, 44:18, 57:8, 92:9 assertion [4] - 49:25, 94:22, 118:18, 120:5 assertions [2] - 47:14, 48:10 asserts [1] - 15:9

background [3] - 6:2, 13:15, 45:2 backtracking [1] - 61:1 backup [1] - 67:16 bad [2] - 82:12, 91:5 badly [1] - 79:20 bail [31] - 16:4, 17:2, 17:6, 17:17, 21:2, 21:18, 21:23, 21:25, 23:2, 23:8, 23:14,

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Case 1:2(0B-cavi-l01-59c0h-RarPgKe-)RLM
23:22, 23:24, 24:2, 24:5, 24:10, 24:22, 25:3, 39:6, 76:22, 78:9, 81:19, 85:11, 88:7, 88:14, 96:23, 97:3, 98:19, 103:9, 125:2
Bail [2] - 21:11, 21:12 balance [2] - 24:7, 102:6 balanced [1] - 23:16 balances [1] - 23:17 balancing [3] - 78:13, 94:4, 94:11 bar [2] - 51:19, 121:1 Barr [2] - 19:24, 42:20 base [1] - 100:13 based [8] - 15:14, 44:25, 47:8, 64:6, 81:14, 81:18, 84:11, 112:16 basic [6] - 13:17, 39:25, 48:10, 52:8, 92:1, 92:6 basis [9] - 9:5, 34:1, 38:6, 39:8, 46:24, 52:18, 99:7, 109:2, 118:20 bathroom [1] - 34:11 bear [1] - 13:14 bearing [1] - 38:8 bears [1] - 13:23 become [1] - 69:7 becomes [1] - 77:8 becoming [1] - 57:23 beds [1] - 55:3 BEFORE [1] - 1:11 beforehand [1] - 109:3 beginning [1] - 31:5 behalf [2] - 4:5, 4:6 behind [2] - 45:11, 76:8 belabor [1] - 75:5 believes [1] - 46:14 belonging [1] - 97:6 benefits [1] - 51:8 BENJAMIN [1] - 1:18 best [7] - 12:17, 47:1, 60:8, 65:16, 71:5, 73:14, 116:5 BETSY [1] - 1:22 Betsy [1] - 3:22 better [4] - 49:14, 71:8, 119:10 between [11] - 36:18, 55:19, 58:1, 66:1, 66:21, 66:22, 69:9, 96:12, 96:19, 121:23, 122:6 beyond [3] - 46:18, 98:12, 115:12 big [3] - 58:15, 96:11, 96:15 bit [6] - 13:15, 21:5, 53:7, 53:16, 91:25, 119:10 bite [1] - 45:19 blackout [3] - 32:10, 54:12, 56:3 blankets [1] - 56:4 bonds [2] - 22:19, 22:20 BOP [79] - 11:1, 11:18, 11:23, 14:1, 14:11, 14:16, 15:1, 15:3, 15:4, 15:9, 15:11, 15:14, 17:11, 18:21, 19:4, 19:14, 19:22, 19:25, 20:3, 27:4, 29:7, 33:6, 35:22, 35:24, 37:17, 41:11, 41:13, 41:22, 42:2, 42:22, 43:8, 43:9, 43:14, 43:21, 56:23, 58:3, 61:14, 61:25, 62:13, 62:20, 63:2, 63:7, 63:8, 65:23, 68:16, 69:2, 69:4, 69:18, 70:20, 70:24, 73:16, 81:9, 81:12, 83:8, 83:25, 88:17, 89:5, 89:10, 89:11, 90:11, 93:3, 93:5, 93:20, 96:20, 97:15, 98:14, 100:4, 102:4, 105:15, 105:23, 106:12, 107:10, 108:21, 110:8, 112:3, 112:8, 124:24

Document 26-5 Filed 04/03/20 Page 130 oPfa1g4e7 3PageID #:

BOP's [8] - 11:3, 1413:81, 12:3, 12:19,

100:20, 102:20, 103:2, 104:11, 104:12,

69:9, 73:9, 99:25, 107:6

111:22, 112:7, 112:21, 116:21, 117:13,

bracketing [1] - 21:5

121:13, 124:6

Branch [1] - 112:9

cases [43] - 14:3, 14:9, 14:15, 14:24,

break [1] - 70:5

15:8, 15:13, 17:5, 23:14, 24:6, 24:22,

breath [1] - 67:9 Brennan [1] - 90:19 brief [8] - 4:18, 5:16, 8:8, 8:18, 37:17, 105:10, 110:18, 112:10 briefing [2] - 8:7, 85:21 briefly [1] - 30:20 Brinckerhoff [1] - 3:9 BRINCKERHOFF [1] - 1:13 bring [7] - 21:12, 44:14, 44:17, 57:19, 61:7, 104:13, 111:24 bringing [4] - 21:11, 21:13, 21:17, 77:3 broad [2] - 9:9, 114:1 broader [2] - 43:18, 75:3 Brodie [1] - 6:15 broken [1] - 21:19 Brooklyn [9] - 1:5, 2:5, 49:1, 50:1, 51:5, 55:1, 69:5, 108:19, 110:15 brought [8] - 49:7, 49:8, 49:18, 51:13, 69:10, 80:10, 110:21, 110:22 buckets [1] - 47:11 Building [1] - 83:21 building [5] - 34:14, 58:10, 74:5, 106:25, 107:4 bunch [5] - 3:6, 7:23, 26:10, 75:7, 113:1 burden [2] - 87:25, 108:2 Bureau [9] - 2:10, 2:11, 4:7, 9:16, 13:21, 14:3, 41:9, 42:10, 42:18 bureaucracy [1] - 57:16 busy [1] - 85:7 butcher [2] - 100:21, 103:3 butchered [1] - 118:25 buy [2] - 33:23, 56:1 BY [3] - 1:16, 1:22, 2:5

31:19, 40:23, 44:12, 57:9, 57:11, 57:12, 58:5, 73:3, 85:3, 90:7, 92:18, 92:24, 96:5, 96:20, 97:5, 97:6, 97:18, 97:21, 98:1, 98:2, 103:8, 103:10, 103:22, 103:23, 103:24, 104:2, 104:6, 106:6, 106:12, 125:5, 125:6
catch [1] - 87:19 catch-all [1] - 87:19 catches [1] - 57:24 categories [5] - 70:5, 87:11, 98:5, 98:21, 114:1 category [3] - 71:5, 77:18, 95:5 caught [1] - 57:2 CAUSE [1] - 1:10 caused [1] - 92:22 CDC [23] - 11:6, 33:17, 58:13, 58:16, 61:16, 61:25, 62:4, 62:12, 62:13, 62:14, 62:20, 63:1, 65:17, 65:18, 65:21, 66:20, 66:23, 68:15, 68:18, 74:6, 98:13, 109:10 cell [17] - 11:19, 11:20, 12:21, 31:7, 31:16, 32:16, 33:10, 35:2, 35:4, 54:24, 56:23, 63:21, 64:8, 66:21, 80:3, 100:3 celled [5] - 12:23, 31:5, 63:13, 64:18, 65:9 Celli [1] - 3:9 CELLI [1] - 1:13 cellmates [1] - 49:19 cells [24] - 10:16, 11:15, 12:11, 31:4, 31:9, 31:11, 31:22, 32:13, 32:15, 33:22, 48:3, 48:23, 52:6, 55:4, 56:4, 58:17, 61:15, 63:4, 63:9, 64:12, 65:24, 65:25, 66:21, 118:16 Center [1] - 12:13 center [1] - 51:7

C

central [2] - 62:24, 68:16 certain [11] - 10:24, 27:1, 42:1, 51:1,

57:9, 68:5, 70:16, 77:11, 102:3, 110:8,

Cadman [1] - 2:4

116:3

Cadre [1] - 25:13

certainly [11] - 6:22, 23:13, 30:7, 37:4,

cadre [1] - 26:9

51:10, 51:13, 67:6, 75:13, 100:5,

canning [1] - 99:10

112:13, 125:4

cannot [9] - 11:10, 12:8, 12:17, 12:22,

CERTIFICATE [1] - 126:2

56:1, 72:4, 87:21, 107:25, 111:7

certify [1] - 126:3

capacity [2] - 12:14, 51:14

cetera [5] - 31:10, 31:24, 42:15, 60:13,

Caproni [1] - 109:7

87:14

CARDOZO [1] - 1:18

challenge [9] - 30:5, 30:6, 36:17, 43:6,

care [20] - 12:8, 34:22, 49:16, 50:1,

49:25, 51:9, 51:11, 89:3, 104:9

50:23, 51:3, 51:4, 53:5, 53:6, 54:11,

challenges [2] - 101:10, 103:13

54:13, 55:21, 59:17, 60:7, 60:8, 61:9,

challenging [1] - 116:25

80:7, 80:8, 80:11, 80:12

chambers [2] - 5:4, 5:11

careful [3] - 6:7, 49:3, 108:4

chance [5] - 8:5, 8:6, 30:20, 95:8,

carve [2] - 103:3, 103:4

113:10

case [62] - 3:25, 6:13, 6:14, 6:16, 6:24,

change [4] - 47:7, 70:15, 71:6, 71:7

7:6, 7:7, 7:19, 8:2, 9:18, 9:23, 13:18,

changed [2] - 43:10, 107:25

13:25, 14:10, 16:10, 16:12, 20:18, 22:1,

changing [5] - 10:5, 20:13, 28:17,

23:9, 23:10, 24:16, 24:23, 28:1, 29:14,

46:23, 97:24

29:19, 37:9, 41:5, 41:13, 41:20, 43:5,

characterization [3] - 7:10, 68:8,

50:25, 53:1, 53:14, 65:15, 73:7, 75:25,

115:5

77:2, 79:11, 81:12, 86:8, 86:24, 87:3,

characterize [1] - 55:8

87:6, 88:9, 90:10, 92:4, 96:25, 97:20,

charge [1] - 10:22

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Cas(ec1h:a2r0g-ecsv-0-15c9o0n-sRiPsKt-eRnLtMly)Document 26-5 Filed 04/03/20 Page 131 of 147PPaaggeeI4D #:

charges [1] - 122:11

closer [1] - 71:22 432

concerned [4] - 32:20, 38:14, 63:12,

Charles [1] - 92:11

closest [2] - 104:5, 104:6

80:16

chart [1] - 95:14

closing [1] - 108:8

concerning [7] - 12:4, 47:18, 54:25,

checked [1] - 9:23

cognizable [2] - 20:22, 27:14

65:19, 82:15, 117:6, 121:14

chemicals [1] - 55:18

colleague [7] - 8:19, 12:24, 13:18,

concerns [19] - 22:14, 33:14, 37:13,

chief [1] - 26:1

20:19, 35:13, 94:4, 115:13

75:8, 75:17, 75:18, 75:19, 77:6, 79:13,

Chief [6] - 4:8, 4:9, 109:5, 109:7,

colleagues [1] - 16:9

81:14, 102:6, 110:8, 111:11, 111:13,

109:14, 109:18

colloquy [1] - 117:21

111:17, 111:18, 120:15

CHO [29] - 2:5, 4:4, 4:25, 5:16, 37:1,

Colorado [1] - 103:17

concession [1] - 111:8

39:22, 40:11, 41:2, 44:22, 45:10, 45:16,

Columbia [2] - 2:13, 4:11

conclusions [1] - 68:11

46:2, 46:21, 61:22, 67:25, 69:21, 69:25,

combination [1] - 76:17

condition [10] - 27:23, 29:10, 45:3,

96:11, 97:11, 97:23, 98:9, 99:24,

comfortable [1] - 42:16

48:16, 50:20, 55:16, 57:25, 92:12, 94:9

100:14, 100:25, 101:13, 124:14,

coming [11] - 4:21, 10:20, 34:14,

conditional [1] - 107:11

124:16, 125:12, 125:19

63:18, 64:23, 65:1, 106:25, 107:23,

conditions [67] - 11:4, 13:6, 19:19,

Cho [5] - 4:4, 37:1, 41:23, 61:22, 67:25 110:5, 123:5, 124:6

20:13, 20:16, 24:5, 26:16, 26:24, 27:5,

Cho's [1] - 44:8

comments [2] - 68:8, 108:8

27:13, 28:18, 28:22, 34:24, 35:23,

chronic [1] - 26:15 CHUNN [1] - 1:3 Chunn [14] - 1:14, 1:20, 3:5, 8:25, 19:10, 30:11, 30:14, 43:25, 56:8, 56:9, 56:16, 57:24, 79:5, 111:13 circle [1] - 21:1 Circuit [1] - 28:7 circuit [1] - 81:17 Circuit's [1] - 29:19 circumstance [2] - 24:4, 119:15 circumstances [19] - 17:5, 17:8, 21:23, 23:21, 27:2, 28:13, 29:25, 31:8, 42:21, 43:3, 48:6, 54:12, 56:14, 70:18, 70:20, 82:23, 113:6, 114:14, 119:5 cite [3] - 103:21, 104:4, 113:18 cited [4] - 13:25, 87:7, 92:17, 110:11 cites [2] - 103:23, 104:25 citing [2] - 26:4, 29:23 city [2] - 9:15 civil [1] - 111:15 CIVIL [1] - 1:10 Civil [2] - 4:8, 109:7 claim [22] - 18:12, 22:10, 22:23, 23:7, 40:13, 44:15, 44:18, 69:15, 70:7, 71:14, 72:2, 72:7, 72:8, 72:11, 72:12, 72:13, 75:15, 76:21, 77:3, 78:18, 88:10, 94:3 claimed [1] - 37:25 claims [12] - 21:11, 21:12, 21:14, 21:17, 53:4, 59:8, 71:18, 104:7, 104:8, 104:23, 112:24 clarify [2] - 30:10, 119:10 class [13] - 9:7, 9:10, 24:23, 54:4, 72:17, 75:3, 75:7, 80:6, 85:9, 86:25, 112:25, 113:4, 113:21 clean [9] - 10:13, 33:2, 52:6, 52:15, 52:17, 52:25, 55:15, 55:17 cleaning [8] - 52:3, 52:4, 52:7, 52:10, 52:15, 52:17, 52:24, 54:5 clear [8] - 25:23, 28:6, 59:19, 59:21, 60:22, 63:15, 95:19, 105:19 clerks [1] - 5:13 clients [3] - 27:11, 84:9, 120:21 climate [1] - 78:8 clinic [1] - 80:10 clinical [2] - 120:1, 120:9 clock [1] - 123:18 close [8] - 21:1, 34:7, 34:13, 48:7, 58:25, 59:7, 59:11, 59:14 closed [1] - 79:5 closely [2] - 29:15, 104:10

commissary [2] - 32:19, 56:1 committee [1] - 9:6 common [6] - 22:20, 52:7, 71:21, 84:16, 84:19, 99:21 communicate [1] - 13:9 communicated [2] - 92:16, 109:17 communications [1] - 10:6 community [23] - 34:9, 34:19, 34:24, 35:5, 36:2, 38:16, 38:19, 39:9, 45:3, 46:22, 55:2, 62:25, 78:7, 79:3, 93:5, 93:8, 93:18, 95:17, 96:16, 96:17, 111:3, 111:4 comparable [1] - 34:25 compare [1] - 34:18 compared [1] - 89:18 compassionate [39] - 16:3, 16:16, 16:17, 16:19, 16:25, 17:2, 17:17, 17:24, 18:12, 18:20, 19:5, 19:7, 19:9, 20:5, 20:24, 38:9, 39:6, 40:2, 40:9, 40:19, 41:24, 44:13, 44:15, 44:18, 44:21, 44:24, 45:9, 45:13, 58:2, 76:23, 81:10, 81:20, 96:23, 97:4, 98:6, 98:19, 103:10, 107:12, 110:21 compelling [7] - 23:5, 23:8, 23:10, 23:15, 24:4, 83:3, 110:19 competing [2] - 45:23, 59:8 compiled [1] - 86:10 compiling [1] - 108:22 complaining [1] - 116:1 complaint [1] - 59:23 complaints [1] - 61:4 complete [2] - 101:1, 102:14 completely [2] - 34:6, 44:8 complex [2] - 70:12, 87:3 complexities [1] - 86:24 compliance [1] - 61:21 compliant [1] - 62:20 complicated [1] - 125:16 complications [1] - 94:21 complying [1] - 63:4 compromised [1] - 81:23 Computer [1] - 2:19 Computer-aided [1] - 2:19 computerized [1] - 2:18 computers [1] - 52:5 conceding [1] - 103:1 conceive [1] - 88:5 concern [7] - 38:15, 52:2, 53:7, 64:6, 79:24, 93:18, 110:25

38:11, 40:5, 46:7, 46:10, 46:15, 46:22, 47:4, 47:18, 47:21, 50:24, 51:23, 56:18, 58:24, 59:7, 66:19, 70:8, 71:21, 72:4, 73:9, 75:4, 76:6, 76:13, 76:17, 76:18, 77:11, 77:12, 77:19, 78:25, 79:16, 80:24, 81:23, 83:3, 84:16, 84:25, 88:15, 88:18, 89:19, 89:22, 91:2, 92:6, 92:8, 92:19, 92:22, 93:21, 96:5, 97:1, 97:9, 97:16, 97:20, 97:24, 98:14, 108:1, 115:20
conducted [1] - 53:1 conducting [1] - 61:3 confer [1] - 43:13 conference [2] - 4:20, 4:21 confidence [2] - 14:25, 15:1 confident [1] - 15:7 confined [1] - 80:1 confinement [22] - 19:6, 19:12, 19:23, 20:10, 20:12, 28:14, 30:15, 38:10, 38:21, 41:25, 42:3, 46:7, 46:11, 46:15, 58:3, 73:9, 88:15, 92:7, 96:5, 97:17, 107:25, 111:15 confines [1] - 38:17 confirm [3] - 26:2, 29:4, 115:23 confirmation [2] - 63:14, 74:13 confirmed [3] - 14:3, 100:16, 121:13 conflated [1] - 64:8 conflict [1] - 69:9 conflicting [1] - 93:13 confusing [1] - 65:11 congregate [4] - 66:8, 66:11, 66:12, 66:13 congressional [1] - 16:13 conscious [6] - 89:8, 89:12, 91:1, 91:2, 91:15, 91:21 consent [1] - 7:13 consenting [1] - 125:4 consents [1] - 6:21 consequences [1] - 60:5 consider [6] - 38:20, 43:21, 69:4, 76:23, 78:19, 78:20 consideration [3] - 7:9, 68:23, 93:11 considerations [5] - 23:23, 77:20, 80:25, 81:1, 81:2 considered [3] - 22:9, 24:6, 93:16 considering [5] - 19:25, 77:17, 96:10, 125:3, 125:5 consistent [6] - 8:17, 51:18, 58:16, 94:18, 105:18, 117:18 consistently [1] - 13:22

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Case 1(:2co0n-csvt-a0n1t59-0-RdePlKa-yRsL)M
constant [1] - 10:6 constantly [3] - 47:8, 97:24, 125:2 constitute [2] - 94:1, 125:9 constitution [4] - 24:1, 28:9, 28:18, 64:11 constitutional [7] - 37:9, 46:10, 58:24, 72:10, 72:14, 90:12, 100:10 consult [1] - 121:19 consults [3] - 62:13, 68:18, 125:1 consumption [1] - 33:17 contact [8] - 10:11, 31:14, 33:19, 64:17, 64:20, 66:15, 85:18 contacts [1] - 99:19 contemplates [1] - 100:21 contention [2] - 77:1, 79:1 contents [1] - 61:19 contest [1] - 109:2 context [13] - 19:17, 43:8, 54:10, 60:10, 75:16, 81:4, 82:19, 90:20, 96:15, 104:23, 113:8, 113:17, 122:18 contexts [3] - 60:10, 72:24, 114:12 continue [3] - 31:23, 33:4, 91:20 Continued [1] - 2:1 continued [1] - 17:11 continues [1] - 106:7 continuing [2] - 47:14, 108:2 contours [2] - 76:21, 78:18 contractors [1] - 50:14 contradictory [1] - 65:14 contrary [1] - 17:16 control [3] - 35:1, 35:16, 37:18 convene [1] - 9:5 conversation [2] - 3:5, 43:19 conveyed [1] - 98:18 convicted [5] - 17:3, 17:4, 21:6, 96:18, 104:8 conviction [3] - 38:7, 39:8, 79:11 cooking [1] - 32:25 copy [1] - 67:7 coronary [1] - 56:18 coronavirus [11] - 64:18, 95:11, 99:16, 103:13, 106:16, 106:21, 107:2, 107:4, 118:2, 118:9, 118:11 corpus [1] - 44:7 correct [21] - 25:19, 29:9, 50:4, 50:7, 50:18, 54:14, 62:22, 64:2, 74:21, 97:23, 99:6, 101:9, 103:6, 108:13, 108:17, 115:13, 117:5, 119:13, 122:18, 123:1, 126:3 correction [2] - 42:4, 66:24 correctional [18] - 9:15, 17:15, 34:6, 34:10, 34:16, 34:22, 35:12, 58:14, 58:17, 61:13, 61:17, 62:11, 62:12, 65:22, 72:24, 79:19, 83:12, 121:4 corroboration [1] - 106:6 cough [1] - 119:7 coughing [2] - 118:16, 119:16 counsel [19] - 3:11, 3:17, 3:18, 25:24, 42:11, 43:9, 66:4, 66:6, 66:16, 67:8, 73:19, 102:17, 104:20, 116:7, 118:23, 119:11, 121:7, 121:22, 122:24 counsel's [1] - 68:1 countervailing [2] - 82:11, 93:11 country [6] - 13:23, 14:16, 15:3, 15:10, 23:14, 82:22 counts [1] - 15:1

Document 26-5 Filed 04/03/20 Page 132 of 1P4a7gePa5geID #:

couple [9] - 5:24, 4173:230, 22:4, 52:1,

29:24, 29:25, 30:7, 30:8, 31:18, 36:1,

53:22, 56:6, 112:15, 122:24, 124:22

46:4, 46:5, 46:8, 79:12, 88:17, 94:20,

course [6] - 19:15, 48:25, 66:15,

95:17

91:14, 121:7, 125:8

cut [3] - 22:5, 66:11

court [17] - 15:17, 18:2, 38:20, 39:2,

39:14, 41:12, 41:19, 41:20, 44:19,

D

67:10, 82:24, 85:11, 85:22, 93:4,

110:22, 112:10, 121:10 Court [95] - 2:15, 2:16, 3:15, 4:15, 6:5,
6:9, 7:8, 7:14, 8:18, 8:20, 9:13, 9:20, 10:4, 13:1, 13:10, 13:14, 14:12, 15:19, 15:20, 20:9, 20:12, 20:23, 23:4, 23:9, 27:21, 28:7, 29:1, 29:17, 29:20, 30:2, 37:7, 38:11, 39:12, 40:12, 40:16, 40:20, 40:23, 41:19, 46:9, 46:13, 49:14, 51:23, 52:11, 55:8, 57:4, 57:8, 57:10, 57:18, 57:20, 67:5, 67:7, 69:11, 70:6, 70:16, 71:1, 73:21, 73:23, 73:24, 76:14, 76:15, 76:23, 77:14, 77:15, 78:20, 79:17, 81:10, 83:2, 83:9, 83:23, 84:3, 84:11, 85:20, 87:1, 87:2, 87:7, 87:25, 88:3,

daily [4] - 46:24, 74:15, 99:7, 125:10 danger [7] - 78:7, 78:8, 82:2, 111:3, 111:4, 120:25, 125:9 dangerous [5] - 17:14, 81:24, 82:12, 83:3, 108:3 dangerousness [3] - 76:24, 77:6, 81:1 Daniel [1] - 104:19 data [1] - 109:24 date [2] - 9:19, 116:18 dates [5] - 57:1, 59:1, 79:1, 94:8, 107:23 days [19] - 12:21, 16:21, 16:23, 18:3, 19:9, 19:16, 40:21, 40:23, 40:24, 41:13,

88:13, 88:14, 88:19, 88:20, 98:25, 103:21, 107:16, 108:20, 114:7, 116:19,

57:8, 57:9, 64:12, 85:16, 107:13, 107:14, 123:15

121:17, 121:20, 122:7, 122:8, 122:12,

deal [2] - 17:8, 73:19

124:22, 126:10

dealing [7] - 5:2, 38:9, 38:10, 39:11,

Court's [6] - 10:24, 13:16, 15:24, 66:2, 39:15, 46:3, 96:25

87:1, 88:1

dealt [1] - 77:11

Courthouse [1] - 1:5

death [5] - 15:7, 32:5, 89:17, 92:13,

courthouse [1] - 57:22

94:1

Courts [1] - 24:6 courts [16] - 15:10, 20:11, 23:15, 24:7,

decency [1] - 67:17 decide [3] - 77:12, 85:7, 98:15

39:1, 39:7, 39:14, 40:15, 56:3, 86:23,

decides [1] - 107:10

87:19, 93:23, 96:15, 103:22, 108:20

deciding [2] - 38:21, 81:3

cover [2] - 5:24, 19:21

decision [7] - 29:19, 73:25, 88:8, 96:6,

covering [1] - 5:22

112:2, 122:8

covers [1] - 45:24

decision-making [1] - 112:2

COVID [13] - 18:12, 22:14, 22:23, 23:7,

decisions [8] - 38:12, 45:23, 68:18,

23:15, 32:24, 43:5, 89:16, 89:18, 91:9,

96:4, 112:7, 112:8, 112:9, 119:4

91:12, 103:25, 122:4

declaration [21] - 4:17, 4:24, 4:25, 5:7,

COVID-19 [11] - 14:3, 14:15, 14:19,

9:21, 30:21, 31:25, 34:1, 36:9, 36:14,

16:24, 37:11, 49:6, 51:1, 57:24, 89:20,

46:19, 47:7, 49:22, 51:19, 52:12, 61:24,

114:11, 117:18

62:9, 63:17, 71:20, 95:15, 105:16

cracks [1] - 7:21

declarations [4] - 13:5, 17:13, 33:15,

create [3] - 83:15, 105:23, 109:21

122:9

created [8] - 98:10, 105:22, 105:24, 108:15, 108:18, 109:19, 114:23, 115:6

decrease [1] - 31:4 decreased [1] - 32:5

creating [4] - 62:14, 66:21, 92:18,

decreases [1] - 70:23

109:2

deemed [1] - 124:23

CRI [2] - 2:15, 126:9

deep [1] - 52:25

Criminal [2] - 4:9, 124:21

defendant [2] - 78:5, 111:14

criminal [6] - 38:7, 42:15, 85:3, 96:14,

defendants [4] - 1:8, 13:25, 96:14,

111:9, 111:16

111:9

crisis [15] - 10:2, 12:6, 16:24, 19:18,

Defenders [12] - 2:9, 6:14, 7:7, 10:23,

23:15, 24:11, 24:12, 32:10, 66:25, 72:1, 18:9, 30:15, 43:20, 83:13, 90:23, 98:18,

74:4, 82:21, 86:5, 99:17, 105:18

98:25, 105:14

criteria [3] - 81:15, 109:9, 117:9

Defenders's [1] - 44:1

critical [7] - 11:17, 12:3, 16:2, 66:4,

defense [3] - 16:25, 23:5, 125:6

67:15, 75:15, 86:12

defer [1] - 74:23

Cross [2] - 18:8, 25:8

deficient [1] - 96:9

CRR [2] - 2:15, 126:9

definition [3] - 23:22, 35:12, 72:14

cure [1] - 90:14

degree [7] - 15:25, 26:21, 29:5, 29:11,

curious [1] - 79:3

71:1, 74:23, 91:16

current [10] - 19:17, 27:2, 45:2, 49:15,

Deidre [3] - 10:21, 25:11, 25:22

50:4, 66:9, 66:10, 70:7, 70:20, 112:1

Deirdre [1] - 2:9

cusp [1] - 82:13

delay [3] - 85:12, 93:2, 93:10

custody [17] - 15:3, 15:7, 29:20, 29:21,

delays [1] - 85:15

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Case(1d:2el0i-cbve-r0a1t5e90--REPiKg-hRtLhM)
deliberate [8] - 37:9, 88:25, 90:16, 90:18, 91:3, 92:2, 94:13, 102:24
deliberately [3] - 59:6, 90:8, 102:10 deliberative [2] - 73:15, 82:25 deliver [1] - 10:12 delivering [1] - 82:1 denial [2] - 18:3, 107:16 denied [4] - 30:17, 40:20, 97:2, 107:15 denies [1] - 45:22 denominator [1] - 116:10 density [2] - 34:16, 35:17 deny [3] - 26:2, 27:22, 66:16 department [3] - 18:24, 82:18, 119:25 Department [2] - 2:12, 4:10 Deputy [2] - 4:8, 4:9 DEREK [1] - 1:7 Derek [1] - 2:4 designate [1] - 6:24 designated [3] - 6:13, 11:3, 26:12 designation [2] - 6:22, 26:11 designed [1] - 48:25 detail [1] - 49:20 detailed [2] - 112:5, 122:8 details [5] - 29:13, 45:11, 49:15, 105:14, 111:16 detained [1] - 104:16 detainee [1] - 23:3 detainees [6] - 21:2, 21:4, 23:12, 39:6, 103:14, 119:11 detention [14] - 20:13, 36:19, 40:9, 41:16, 41:21, 41:22, 65:21, 96:12, 96:13, 97:7, 97:14, 97:15, 103:9 determination [7] - 41:11, 42:17, 42:22, 44:25, 88:7, 120:9, 122:12 determinations [4] - 40:15, 45:1, 110:20, 112:12 determine [1] - 119:20 determined [2] - 42:14, 93:6 determines [1] - 23:4 develop [1] - 123:16 developed [2] - 98:24, 111:22 developing [2] - 27:8, 97:1 development [2] - 87:13, 110:7 diabetes [1] - 79:8 diagnosed [2] - 9:18, 12:21 dialing [1] - 3:2 didn't' [1] - 104:7 die [1] - 95:8 died [1] - 31:18 difference [7] - 28:6, 36:18, 97:15, 121:23, 122:3, 122:6 different [28] - 34:14, 35:21, 36:20, 53:20, 55:13, 57:21, 64:22, 84:18, 85:6, 86:6, 87:9, 87:10, 92:1, 95:16, 97:7, 97:10, 97:15, 97:21, 98:1, 100:16, 100:17, 102:2, 106:5, 118:24, 119:3, 119:5, 119:15 differently [1] - 23:16 difficult [3] - 34:18, 89:3, 112:18 diluted [1] - 52:5 dining [1] - 48:4 direct [2] - 76:1, 76:5 directed [2] - 98:4, 114:6 directing [1] - 69:23 directive [1] - 33:7

Document 26-5 Filed 04/03/20 Page 133 of 14P7agPeag6eID #:

directly [2] - 109:1483, 1416:8

109:4

director [1] - 120:2

Dornum [6] - 2:9, 10:21, 25:11, 25:22,

disagree [2] - 7:10, 7:11

105:13, 118:14

disagreement [2] - 8:12, 48:14

Dornum's [1] - 110:3

disaster [2] - 9:14, 15:18

double [2] - 12:23, 31:5

discharge [2] - 19:5, 19:22

double-celled [1] - 12:23

disciplinary [1] - 32:3

down [3] - 6:8, 40:14, 80:10

disconnect [2] - 55:19, 56:2

dozens [1] - 31:19

discretion [1] - 42:2

Dr [2] - 32:1, 35:18

discuss [1] - 46:18

draw [2] - 53:6, 68:11

discussed [2] - 52:9, 56:13

droplets [2] - 32:7, 35:18

discussion [3] - 27:7, 73:19, 111:6

dropped [1] - 124:17

discussions [1] - 43:8

drug [1] - 79:11

disease [8] - 13:21, 15:11, 17:14, 28:1,

due [2] - 43:5, 74:17

33:12, 56:18, 72:19, 79:7

duplicating [1] - 5:20

dismissing [1] - 51:13

during [4] - 4:20, 54:12, 56:2, 67:20

disparate [1] - 57:13

duty [1] - 60:17

dispute [11] - 11:2, 11:5, 11:9, 11:11,

dying [1] - 57:23

56:17, 60:4, 60:6, 74:10, 108:25,

118:18

E

disputed [2] - 11:14, 12:8

disputes [1] - 60:8 disputing [1] - 60:9 disregard [4] - 89:8, 89:12, 91:15, 91:21 disseminated [1] - 46:24 distance [6] - 11:10, 47:24, 48:17, 67:19, 72:5, 75:22 distancing [17] - 27:2, 29:8, 33:16, 47:23, 48:12, 49:1, 49:16, 66:3, 66:17, 75:14, 90:4, 99:18, 100:4, 101:7, 101:10, 101:20, 101:23 distinction [3] - 96:11, 96:15, 96:19 distinguishable [1] - 103:24 distinguishes [1] - 27:15 distributed [1] - 67:12 distributing [2] - 35:25, 36:1 DISTRICT [4] - 1:1, 1:1, 1:11, 2:3 district [1] - 39:2 District [11] - 10:22, 14:7, 16:10, 86:25, 96:22, 103:16, 104:15, 109:5, 110:23, 111:10, 111:14 districts [1] - 110:24 divided [1] - 111:15 division [2] - 25:16, 25:20 Division [4] - 4:8, 4:9, 109:7, 124:21 Docket [2] - 3:5, 32:1 docket [2] - 5:5, 5:9 doctor [9] - 9:6, 54:4, 54:6, 59:20, 59:22, 60:23, 61:6, 75:9, 79:19 doctors [13] - 50:5, 50:9, 50:16, 53:8, 53:15, 53:16, 54:2, 54:9, 54:13, 60:12, 92:13, 119:3, 121:8 doctrinal [1] - 91:23 document [2] - 63:15, 64:17 documents [1] - 61:18 dodge [1] - 23:20 dog [1] - 11:16 done [11] - 20:11, 35:22, 39:15, 52:17, 62:20, 66:19, 88:3, 90:12, 98:16, 112:14, 120:16 DONOGHUE [1] - 2:2 dorm [1] - 58:15 dorms [1] - 48:3 DORNUM [4] - 25:22, 104:13, 104:19,

E-mail [1] - 2:17 e-mail [8] - 5:4, 5:11, 5:12, 18:22, 19:9, 31:10, 31:24 e-mailing [2] - 5:3, 118:15 early [6] - 10:1, 42:13, 61:13, 79:10, 94:11, 105:14 easier [1] - 75:22 East [2] - 2:4, 83:21 east [1] - 74:5 EASTERN [2] - 1:1, 2:3 Eastern [5] - 10:22, 86:25, 96:22, 104:15, 111:14 easy [1] - 67:5 eat [2] - 10:16, 10:19 eating [1] - 34:11 Eddie [2] - 2:13, 4:11 EDGE [1] - 1:7 Edge [2] - 2:4, 3:5 effect [1] - 58:12 effective [3] - 32:4, 36:21, 86:8 effectively [2] - 32:2, 87:22 efficiency [3] - 84:24, 85:4, 87:24 efficient [1] - 86:11 efficiently [1] - 84:20 effort [1] - 55:9 efforts [3] - 5:2, 13:22, 37:18 EICHENHOLTZ [32] - 2:6, 4:13, 5:10, 7:3, 41:7, 41:23, 43:6, 43:19, 43:24, 44:3, 44:6, 48:19, 50:8, 50:18, 52:11, 59:25, 62:5, 64:1, 68:6, 98:23, 101:16, 103:6, 103:15, 108:7, 108:10, 110:2, 115:1, 115:9, 115:22, 116:13, 116:24, 120:7 Eichenholtz [9] - 4:7, 4:14, 41:8, 48:20, 55:7, 64:16, 98:23, 119:1, 120:22 Eight [6] - 27:14, 69:19, 75:10, 75:15, 78:24, 80:25 Eighth Amendment [30] - 15:21, 67:17, 71:12, 71:16, 73:10, 74:20, 74:25, 75:6, 75:12, 75:24, 76:4, 77:3, 77:10, 78:3, 78:4, 78:6, 78:10, 78:14, 78:15, 78:18, 79:14, 80:23, 83:1, 90:14, 93:16, 94:3, 103:12, 104:7, 121:24,

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Case 1:2(e0i-ctvh-e0r15-90F-RarPmKe-rR)LM
122:19 either [9] - 12:10, 26:11, 33:23, 54:24,
77:5, 77:11, 103:7, 103:9, 112:8 elapsed [1] - 40:21 elapses [2] - 40:23, 80:9 elderly [1] - 25:14 elevated [5] - 71:24, 94:20, 94:22,
95:10, 115:20 eligible [2] - 25:3, 114:2 eliminate [1] - 51:14 emergency [10] - 9:5, 53:24, 60:23,
60:24, 73:22, 82:8, 82:20, 84:1, 85:23, 121:15
emergent [1] - 82:3 Emery [1] - 3:9 EMERY [1] - 1:13 emphasize [1] - 110:14 empty [1] - 66:21 end [10] - 7:16, 8:6, 39:2, 39:13, 40:11, 57:23, 68:1, 80:18, 85:17, 117:21 engage [4] - 48:11, 75:14, 90:3, 113:24 engaged [2] - 27:16, 45:17 ensure [5] - 27:3, 27:4, 29:7, 49:16, 77:10 ensures [1] - 62:19 entire [2] - 100:3, 121:24 entirely [3] - 11:12, 60:13, 123:2 entitled [5] - 16:9, 22:2, 30:5, 30:6, 126:4 entitlement [3] - 16:16, 21:20, 27:9 envelope [1] - 25:2 environment [2] - 48:22, 107:19 environmental [1] - 28:2 envisioning [2] - 83:6, 83:7 epicenter [1] - 12:14 epidemic [2] - 114:12, 121:16 epidemiologist [2] - 71:21, 94:18 equipment [3] - 52:17, 52:23, 53:2 equipped [1] - 12:6 equitable [3] - 81:16, 90:10, 122:16 equities [3] - 78:13, 94:12, 122:17 equivalent [2] - 35:3, 51:4 especially [4] - 7:5, 17:10, 28:14, 70:14 ESQ [9] - 1:16, 1:17, 1:22, 1:22, 2:2, 2:5, 2:6, 2:6 Esq [2] - 2:10, 2:11 essence [1] - 107:10 essentially [2] - 45:19, 79:6 establish [1] - 16:16 established [5] - 20:19, 27:8, 28:3, 28:11, 28:23 Estelle [2] - 29:23, 30:1 estimate [1] - 25:4 et [10] - 1:3, 1:7, 1:14, 1:20, 2:4, 31:10, 31:24, 42:15, 60:13, 87:14 evaluate [6] - 9:6, 81:10, 117:15, 119:13, 121:5, 121:18 evaluated [1] - 117:13 evaluates [1] - 81:9 evaluating [2] - 42:18, 86:9 evaluation [4] - 119:16, 119:20, 119:23, 124:8 evaluations [1] - 111:9

Document 26-5 Filed 04/03/20 Page 134 ofP1a4g7e P7ageID #:

evening [4] - 10:145,3454:3, 44:4, 69:7

123:1, 123:19, 124:6

evenings [3] - 54:2, 54:9, 59:20

expressed [2] - 81:14, 111:13

event [4] - 53:17, 99:10, 114:24, 115:6

extent [14] - 6:22, 40:13, 46:14, 47:24,

events [1] - 19:15

49:1, 49:22, 50:19, 51:24, 52:3, 62:18,

eventually [1] - 93:4

93:18, 99:20, 99:24, 100:6

everywhere [1] - 101:3

extra [1] - 86:11

evidence [6] - 17:16, 67:14, 81:19,

extraordinary [6] - 37:24, 37:25, 46:8,

94:15, 96:24, 103:24

113:15, 114:13, 114:14

evidentiary [2] - 102:15, 111:23

extreme [1] - 92:13

evolve [1] - 47:8

extremely [3] - 10:8, 57:23, 117:24

evolving [2] - 43:7, 97:25

eye [1] - 115:25

exact [2] - 41:14, 60:16

eyes [1] - 9:15

exactly [8] - 17:7, 21:22, 71:2, 82:23,

87:23, 88:5, 101:19, 121:3

F

examination [1] - 39:7

example [12] - 31:17, 49:16, 54:3, 54:7, 54:17, 65:15, 82:17, 85:1, 85:17, 101:24, 102:16, 110:21
examples [1] - 113:15 except [1] - 80:3 exclusively [1] - 27:21 executive [1] - 16:13 Executive [1] - 112:9 exercise [1] - 42:2 exhaust [1] - 58:6 exhaustion [5] - 57:7, 57:11, 102:25, 103:1, 106:8 exhaustion-related [1] - 106:8 exhibit [3] - 35:25, 36:8, 63:23 Exhibit [3] - 36:11, 36:12, 61:24 exhibits [2] - 36:14, 63:17 exigencies [1] - 86:3 exist [3] - 74:12, 74:17, 95:10 existing [1] - 42:19 exists [3] - 61:12, 63:5, 90:25 expand [1] - 60:2 expands [1] - 7:14 expect [3] - 40:25, 43:1, 79:17 expectation [1] - 5:22

face [2] - 117:1, 122:5 facilitate [2] - 32:18, 113:22 facilitates [1] - 98:19 facilities [20] - 12:1, 14:16, 48:4, 48:5, 49:17, 52:4, 58:14, 61:13, 61:17, 65:22, 66:25, 71:19, 72:25, 73:1, 75:21, 96:20, 96:21, 104:7, 109:6, 109:16 facilities' [1] - 109:15 facility [57] - 12:7, 26:9, 32:12, 34:20, 34:22, 47:25, 49:8, 49:9, 49:10, 51:4, 52:10, 53:9, 53:10, 53:11, 54:3, 55:20, 55:22, 58:7, 58:8, 60:18, 61:20, 65:2, 65:8, 70:12, 70:13, 71:7, 72:15, 74:7, 77:13, 77:22, 77:24, 77:25, 79:21, 93:12, 95:11, 96:9, 97:12, 99:9, 99:21, 103:25, 105:20, 106:13, 108:3, 109:13, 115:12, 115:17, 116:12, 117:25, 118:20, 120:14, 121:5, 121:11, 121:21, 122:4, 123:14 facing [3] - 27:13, 76:16, 104:9 Facsimile [1] - 2:17 fact [23] - 9:16, 14:14, 27:17, 30:8, 31:21, 35:3, 37:8, 76:22, 82:2, 87:13, 87:17, 89:6, 90:13, 90:22, 102:4,

expedite [1] - 121:19

108:17, 109:1, 110:12, 111:12, 113:18,

expedited [5] - 57:21, 83:11, 101:19,

119:16, 119:17, 122:3

111:20, 112:14

factor [2] - 19:14, 125:4

expeditious [1] - 83:23 expeditiously [1] - 87:3

factors [10] - 24:8, 76:17, 76:24, 78:11, 78:15, 78:19, 78:20, 81:9, 94:3, 98:12

experience [1] - 51:1

facts [17] - 8:11, 8:18, 11:2, 12:3,

experiencing [2] - 71:25, 85:12

20:19, 47:13, 47:20, 48:13, 50:22, 59:2,

expert [7] - 28:4, 35:10, 76:10, 79:19,

59:8, 71:4, 81:7, 86:10, 87:8, 114:7,

83:12, 86:9, 121:4

121:6

expertise [1] - 102:3

factual [7] - 16:1, 47:17, 59:7, 59:14,

experts [1] - 17:13

61:10, 86:23, 122:22

explain [1] - 31:8

fail [1] - 92:13

explained [3] - 59:17, 68:15, 91:18

failed [1] - 27:4

explaining [2] - 17:13, 53:25

failure [2] - 67:22, 92:8

explanation [2] - 17:16, 35:22

fair [2] - 55:8, 115:5

exploring [1] - 107:8

fairly [1] - 52:22

exponentially [1] - 118:2

faith [1] - 91:5

exposed [16] - 11:13, 12:20, 20:15,

fall [3] - 8:10, 87:10, 98:20

20:17, 58:7, 58:20, 61:15, 63:3, 63:9,

fallen [1] - 7:21

65:1, 65:9, 75:19, 89:18, 99:5, 107:1,

falls [2] - 111:21, 112:5

118:9

familiar [1] - 62:11

exposes [2] - 91:3, 93:21

family [3] - 81:24, 101:25, 122:10

exposing [2] - 30:8, 76:18

FAPR [2] - 2:15, 126:9

exposure [17] - 28:1, 28:10, 34:9,

far [4] - 7:8, 106:18, 108:17, 117:8

52:25, 63:12, 64:5, 64:7, 64:9, 93:18, 99:13, 99:15, 100:23, 114:24, 115:7,

farce [1] - 33:9 Farmer [1] - 90:19

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Case 1:(2f0a-schv-i0o1n59-0-hRaPbKe-aRsL)M
fashion [1] - 57:21 fast [4] - 8:2, 14:9, 71:7, 125:18 fast-moving [1] - 8:2 faster [1] - 84:1 fatality [1] - 95:5 favor [1] - 94:12 Federal [17] - 2:9, 2:10, 2:11, 2:12, 4:10, 6:13, 7:6, 10:22, 18:9, 30:14, 43:20, 44:1, 83:13, 90:23, 98:18, 98:25, 105:14 federal [8] - 22:21, 31:17, 31:18, 66:24, 71:19, 79:11, 103:13, 104:8 feet [3] - 66:1, 66:22, 67:16 felt [1] - 6:17 fever [4] - 117:7, 119:7, 119:13, 119:14 few [8] - 10:20, 37:2, 51:15, 89:14, 106:6, 107:24, 108:7, 125:5 fewer [1] - 70:13 Fifth [1] - 1:15 figure [10] - 40:21, 40:24, 48:9, 70:1, 70:19, 71:4, 89:4, 93:14, 94:25, 95:2 figuring [1] - 87:8 file [6] - 4:18, 4:24, 5:17, 18:12, 86:5, 86:20 filed [8] - 4:16, 4:25, 9:25, 19:2, 44:7, 103:16, 104:22, 105:19 files [1] - 14:11 filing [2] - 5:16, 14:6 filings [2] - 5:21, 108:6 finagling [1] - 29:15 final [5] - 42:17, 42:22, 62:13, 105:11, 111:24 finally [6] - 12:5, 12:24, 32:20, 107:7, 107:21, 110:17 findings [1] - 87:17 fine [4] - 39:22, 56:3, 69:25, 97:18 first [22] - 14:13, 22:7, 31:18, 38:7, 41:12, 47:12, 47:22, 53:23, 54:1, 57:7, 65:24, 74:3, 79:11, 84:15, 86:18, 105:11, 108:10, 112:17, 116:3, 118:24, 119:12, 119:15 First [1] - 104:3 first choice [1] - 46:13 fit [1] - 86:21 five [7] - 10:8, 11:12, 19:9, 19:16, 106:22, 107:3, 121:12 fix [3] - 69:19, 70:2, 72:8 flag [1] - 7:19 flagged [1] - 7:24 flexibility [1] - 88:20 flight [8] - 23:18, 76:25, 77:7, 77:11, 77:16, 81:2, 125:9 Floor [1] - 1:15 floors [1] - 74:6 flow [1] - 101:13 flu [1] - 117:19 fluid [3] - 37:15, 46:21, 47:3 focus [4] - 9:1, 14:14, 84:7, 88:1 focused [4] - 21:7, 73:13, 87:8, 88:2 fold [1] - 89:18 folks [26] - 3:6, 18:13, 18:16, 19:22, 21:6, 21:14, 21:17, 22:18, 23:1, 33:22, 43:23, 44:17, 72:6, 76:2, 76:3, 77:8, 81:5, 81:12, 93:12, 98:4, 114:24, 115:15, 115:17, 121:23, 122:1 follow [11] - 61:9, 63:10, 63:14, 67:6,

Document 26-5 Filed 04/03/20 Page 135 of P1a4g7ePa8geID #:

69:4, 83:25, 112:154,31166:20, 118:22,

Ginsburg [1] - 3:22

121:22, 122:22

GINSBURG [2] - 1:22, 3:22

follow-on [1] - 116:20

given [12] - 11:4, 22:1, 42:11, 51:19,

follow-up [3] - 61:9, 121:22, 122:22

52:23, 55:12, 55:16, 74:9, 90:22, 90:23,

follow-ups [1] - 112:15

98:24, 101:9

followed [2] - 67:3, 106:24

gleaned [1] - 66:5

following [6] - 3:1, 18:22, 53:1, 72:8,

gloves [3] - 10:13, 33:3, 74:14

72:9, 75:7

gosh [1] - 91:8

footnote [1] - 90:19

Government [59] - 4:6, 6:20, 6:21,

FOR [1] - 1:10

6:23, 13:22, 15:15, 16:18, 16:20, 16:22,

forced [1] - 55:15

17:1, 18:6, 18:17, 39:12, 40:13, 41:3,

forefront [1] - 69:11

44:13, 44:20, 45:6, 46:12, 48:12, 48:14,

foregoing [1] - 126:3

49:25, 56:7, 56:13, 57:8, 58:5, 59:17,

form [6] - 64:4, 64:6, 64:24, 65:4,

59:23, 60:4, 60:6, 60:8, 60:9, 63:23,

65:13, 65:15

65:20, 67:9, 68:13, 68:22, 69:22, 82:1,

formal [1] - 78:18 forms [1] - 45:20 formulations [1] - 92:1 forth [4] - 70:7, 90:1, 110:18, 111:2 forum [2] - 84:20, 111:6 forward [6] - 14:10, 42:8, 51:22, 78:11, 80:1, 81:24 forwarded [4] - 18:23, 19:10, 40:3, 82:18 four [24] - 8:24, 9:3, 10:8, 13:2, 15:2, 70:6, 75:2, 76:10, 76:13, 76:15, 77:15, 78:22, 81:22, 83:9, 88:6, 100:16, 101:1,

84:10, 85:21, 98:9, 102:12, 103:17, 104:21, 106:7, 110:6, 110:18, 111:1, 111:2, 111:6, 111:17, 111:18, 114:19, 118:23, 120:22, 122:23
government [1] - 66:24 Government's [11] - 7:4, 7:18, 27:7, 27:9, 27:10, 46:4, 58:1, 61:12, 79:1, 106:20, 111:5 grant [2] - 16:12, 107:11 granting [1] - 108:13 grants [1] - 45:22 granular [1] - 29:12

105:11, 107:22, 120:21, 121:23, 122:9,

grapple [3] - 28:5, 28:6, 67:22

122:13, 122:19

grappling [1] - 101:18

frame [1] - 88:15

grave [2] - 78:6, 96:17

framed [3] - 88:14, 92:2, 92:4

great [4] - 3:20, 7:15, 26:20, 112:15

frankly [1] - 85:6

greater [2] - 28:2, 77:25

fraud [1] - 79:9

greatest [2] - 49:1, 99:2

freezing [1] - 56:4

groceries [1] - 33:23

frequently [1] - 26:8

gross [1] - 26:3

Friday [2] - 82:2, 83:17 friend [2] - 76:21, 114:22 friends [4] - 81:8, 89:1, 100:9, 115:3

ground [6] - 18:13, 47:13, 57:11, 59:9, 87:8, 114:12
grounds [3] - 18:13, 27:23, 106:9

Frisolone [2] - 2:15, 126:9 front [11] - 5:7, 14:1, 30:21, 70:6, 76:13, 76:15, 77:15, 83:11, 104:15,

group [2] - 49:19, 100:1 groups [1] - 121:18 guess [45] - 5:24, 7:22, 19:20, 21:3,

110:9, 114:7

21:8, 22:7, 22:17, 22:21, 22:24, 24:9,

full [2] - 69:8, 105:7 fully [4] - 60:16, 111:22, 112:10, 123:23 fundamental [5] - 15:22, 20:14, 23:24, 26:22, 27:10 Furman [5] - 16:10, 24:14, 104:14, 104:25, 105:1 future [1] - 92:21

24:21, 40:24, 41:18, 45:4, 53:6, 53:13, 53:20, 59:6, 69:18, 71:10, 71:16, 72:2, 76:20, 77:14, 81:3, 81:8, 81:16, 84:8, 84:12, 89:7, 91:7, 92:23, 93:1, 94:23, 98:5, 98:18, 99:17, 100:8, 103:12, 112:21, 112:25, 113:7, 116:20, 120:10, 121:25
guessing [1] - 39:14 guidance [42] - 19:24, 33:17, 37:18,

G

43:7, 46:25, 49:15, 61:12, 61:16, 61:20, 61:23, 62:2, 62:12, 62:14, 62:15, 62:20,

63:8, 64:7, 64:13, 65:5, 65:7, 65:17,

Gamble [2] - 29:23, 30:1

65:21, 65:22, 65:23, 67:2, 68:15, 68:19,

Garaufis [1] - 14:1

68:22, 68:23, 69:1, 69:2, 69:5, 69:6,

gather [1] - 71:3

69:10, 89:6, 98:13, 98:14, 101:9, 102:6,

gathered [1] - 9:21

120:1, 123:12

gathering [3] - 32:18, 84:6, 86:10

guidances [1] - 46:24

general [9] - 13:7, 20:4, 28:16, 60:19,

guidelines [3] - 66:9, 66:10, 74:6

63:11, 94:7, 120:8, 121:2, 123:15

gushing [1] - 32:13

General [2] - 19:24, 93:6

generally [10] - 8:10, 19:12, 40:22,

H

41:10, 47:22, 52:23, 62:4, 84:6, 99:19,

117:2 getter [1] - 102:3

habeas [11] - 16:6, 16:9, 20:10, 20:11,

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Case 1:(2h0a-lcfv-0-15i9n0d-iRcPaKt-eRdL)M
20:22, 21:20, 22:2, 22:10, 44:7, 88:7, 104:15
half [3] - 25:2, 109:20, 120:13 halls [1] - 62:6 Hamilton [1] - 13:25 hand [3] - 52:6, 62:7, 97:18 Hand [1] - 27:25 handle [2] - 6:17, 66:25 handling [2] - 102:7, 117:1 hands [3] - 30:4, 67:20, 68:12 happy [6] - 7:13, 13:2, 28:25, 67:6, 69:11, 79:2 hard [9] - 6:5, 25:24, 80:20, 92:14, 94:8, 95:2, 107:24, 113:2, 125:15 harder [1] - 6:8 harm [24] - 20:17, 27:12, 27:19, 28:8, 28:10, 58:21, 70:20, 70:25, 89:20, 90:10, 90:12, 92:21, 93:17, 93:22, 94:16, 99:15, 99:23, 100:9, 100:11, 100:12, 100:23, 114:3 harms [2] - 70:14 harsh [1] - 55:18 HASSAN [1] - 1:3 Hassan [2] - 1:14, 1:20 hate [1] - 21:18 health [31] - 9:14, 13:4, 13:7, 19:18, 19:19, 47:18, 50:2, 50:3, 51:7, 51:8, 57:17, 60:18, 60:20, 61:2, 68:16, 71:24, 72:3, 72:20, 77:19, 79:19, 82:21, 83:12, 85:23, 89:3, 89:4, 89:5, 92:9, 93:11, 95:21, 121:4, 121:21 healthcare [2] - 61:5, 73:16 hear [7] - 7:18, 11:16, 32:23, 40:4, 59:2, 113:13, 124:18 heard [9] - 7:2, 10:7, 32:21, 33:1, 74:10, 86:19, 110:13, 118:23, 119:2 hearing [8] - 24:17, 40:5, 55:13, 55:15, 55:20, 76:22, 102:11, 111:1 heart [3] - 56:18, 56:19, 79:7 heat [1] - 32:11 heavily [1] - 9:16 heightened [1] - 115:11 held [22] - 12:21, 23:25, 24:5, 26:23, 27:13, 29:15, 58:24, 61:15, 63:3, 63:9, 65:24, 65:25, 66:14, 72:4, 78:24, 91:1, 91:2, 93:17, 96:16, 97:21, 106:2 Helling [2] - 27:20, 28:3 help [5] - 84:4, 88:4, 113:22, 125:14, 125:17 helpful [15] - 3:14, 5:25, 6:24, 7:18, 47:11, 47:12, 69:13, 95:14, 95:22, 95:23, 105:5, 108:5, 108:6, 114:17, 121:6 helpfully [1] - 103:8 hi [1] - 3:4 hiding [1] - 28:7 high [13] - 11:3, 26:13, 48:15, 74:1, 76:3, 91:9, 95:6, 96:25, 97:11, 98:4, 98:11, 98:15, 124:24 high-level [1] - 74:1 high-rise [1] - 97:11 high-risk [5] - 48:15, 76:3, 98:4, 98:11, 98:15 higher [6] - 35:12, 51:3, 95:20, 95:21, 106:12, 118:2 highest [1] - 97:13

Document 26-5 Filed 04/03/20 Page 136 of P1a4g7ePa9geID #:

highly [1] - 112:11437

118:11, 121:13, 123:22

history [2] - 42:15, 45:2

hundreds [10] - 34:12, 64:19, 64:21,

hit [1] - 90:15

80:11, 84:16, 118:5, 122:25

hold [4] - 36:13, 82:16, 91:20, 101:8

HVAC [1] - 32:12

holding [3] - 27:14, 76:18, 93:21

hygiene [4] - 27:4, 34:17, 75:15, 90:4

holdover [1] - 49:7

Holly [20] - 2:10, 4:7, 41:8, 50:6, 50:7,

I

50:10, 50:11, 52:13, 52:19, 52:21,

62:16, 62:21, 64:2, 99:6, 115:12, 115:22, 116:15, 117:5, 117:11, 119:9
home [24] - 19:5, 19:12, 19:22, 20:10, 28:14, 30:15, 36:1, 36:4, 38:10, 38:21, 40:9, 41:16, 41:21, 41:22, 41:24, 42:3, 51:2, 58:2, 82:3, 88:15, 93:19, 107:25, 111:14
honestly [1] - 41:9 Honor [129] - 3:8, 3:16, 3:25, 4:4, 4:13, 5:6, 5:10, 7:3, 8:16, 8:23, 11:17, 11:22, 12:2, 12:5, 12:18, 12:24, 13:12, 15:10, 16:5, 16:14, 18:6, 18:18, 20:9, 21:16, 21:17, 23:13, 25:1, 25:10, 25:22, 30:10, 30:19, 30:21, 31:5, 31:25, 32:9, 32:20, 34:5, 34:21, 34:23, 35:24, 36:13, 37:2, 37:16, 37:22, 39:17, 39:22, 41:7, 43:12, 44:22, 45:22, 48:19, 54:10, 54:20, 55:5, 55:23, 56:7, 56:8, 56:16, 57:6, 59:2, 59:25, 61:22, 62:5, 64:1, 64:15, 65:13, 65:18, 66:10, 67:23, 67:25, 68:23, 69:6,

ICE [9] - 96:9, 96:12, 96:13, 96:15, 96:19, 97:6, 97:14, 103:9, 104:7
idea [13] - 32:14, 34:8, 34:21, 59:3, 69:7, 69:9, 76:8, 83:10, 100:22, 106:20, 109:11, 112:23, 121:10
identified [10] - 47:17, 72:17, 73:3, 73:4, 73:6, 75:16, 89:23, 91:17, 94:5, 122:4
identifies [1] - 98:25 identify [3] - 3:14, 76:9, 77:5 identifying [4] - 6:4, 87:9, 98:15, 114:1 ill [2] - 12:8, 56:16 illness [3] - 94:1, 101:22, 117:19 illnesses [1] - 85:25 imagine [1] - 94:8 immediate [4] - 74:4, 74:16, 75:1, 75:2 immediately [5] - 18:2, 44:19, 69:12, 74:9, 94:9 immigration [1] - 96:13

69:21, 73:12, 78:22, 79:2, 79:14, 79:22,

imminent [1] - 103:4

79:25, 81:21, 82:4, 82:14, 84:24, 85:15,

impact [1] - 9:17

86:4, 87:18, 88:13, 89:13, 95:12, 95:18,

impactful [1] - 33:8

95:22, 96:3, 96:22, 96:25, 99:24,

implement [3] - 5:2, 12:17, 121:10

101:16, 102:14, 103:15, 103:21,

implementing [2] - 14:4, 15:16

104:13, 105:9, 105:12, 106:10, 106:13,

implication [1] - 64:16

106:24, 107:7, 107:14, 107:21, 108:1,

implications [1] - 112:13

108:3, 108:7, 109:4, 110:2, 115:1,

important [13] - 10:1, 11:22, 13:1,

116:25, 117:20, 117:25, 118:12, 120:7, 13:15, 31:12, 37:7, 37:21, 38:20, 69:7,

120:12, 120:16, 121:3, 121:6, 124:13,

71:3, 88:21, 96:21, 109:12

124:14, 124:18, 125:12, 125:13

impose [1] - 46:9

Honor's [12] - 4:18, 13:24, 16:9, 20:22,

imposed [1] - 89:20

41:10, 46:3, 65:17, 73:15, 73:25, 113:14, 114:4, 114:15
HONORABLE [1] - 1:11 hope [1] - 16:5 hoped [1] - 43:9

impossible [3] - 27:2, 28:23, 29:9 impression [3] - 25:6, 68:3, 110:10 inadequate [3] - 20:7, 52:7, 59:17 inappropriate [3] - 79:4, 110:20, 112:11

hopefully [1] - 71:7

Inc [1] - 2:9

hoping [3] - 5:13, 7:25, 43:15

incarcerated [19] - 9:18, 10:7, 10:10,

hospital [17] - 12:10, 12:14, 13:8,

13:19, 14:24, 15:4, 15:6, 35:7, 36:4,

34:25, 35:5, 50:21, 50:25, 53:9, 53:12,

38:6, 49:10, 52:6, 53:23, 62:3, 72:15,

53:19, 54:19, 54:25, 55:3, 60:25,

76:3, 95:20, 96:13, 100:6

117:17, 123:5

incarceration [1] - 39:8

hospitalized [1] - 56:20

include [2] - 9:6, 76:24

hospitals [3] - 12:11, 55:1, 120:2

included [1] - 9:21

host [1] - 38:3

includes [2] - 43:22, 43:24

hot [1] - 74:10

including [5] - 14:3, 14:17, 15:10,

hour [3] - 76:19, 83:9, 104:14

62:25, 96:6

hours [5] - 10:9, 10:20, 33:11, 44:6,

inclusive [1] - 98:12

68:20

inconsistent [1] - 65:22

house [3] - 34:25, 66:20, 102:2

incorporating [1] - 47:1

housed [3] - 63:21, 64:21, 123:3

increase [2] - 100:4, 121:20

household [1] - 33:21

increased [8] - 15:13, 32:5, 89:17,

housekeeping [1] - 6:11

93:25, 99:22, 99:25, 101:12, 122:5

housing [1] - 115:18

increases [1] - 77:24

huge [3] - 32:11, 32:12, 34:7

incredibly [2] - 79:22, 105:10

humanitarian [2] - 107:11, 107:12

independently [1] - 105:25

hundred [6] - 83:18, 83:19, 118:3,

indicated [1] - 42:16

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Case 1(:2in0d-civc-a0t1e5s90--RlPaKi-dR)LM
indicates [1] - 63:19 indicating [1] - 19:2 indication [1] - 122:11 indifference [8] - 37:9, 88:25, 90:16, 90:18, 91:3, 92:3, 94:14, 102:24 indifferent [5] - 37:10, 37:14, 47:4, 90:9, 102:10 indisputably [1] - 11:8 indistinguishable [2] - 28:17, 120:23 indistinguishable) [1] - 74:22 individual [12] - 3:12, 13:3, 16:11, 26:2, 30:12, 44:25, 45:1, 45:8, 59:2, 104:23, 113:4, 113:5 individualized [2] - 17:8, 21:23 individually [3] - 49:19, 68:17, 77:9 individuals [34] - 8:24, 9:3, 24:10, 39:9, 42:12, 43:17, 43:20, 45:17, 56:25, 66:22, 77:15, 84:6, 84:7, 88:6, 88:21, 91:13, 91:14, 91:20, 93:7, 94:5, 94:19, 99:1, 99:2, 99:8, 107:22, 111:4, 112:25, 114:7, 116:6, 117:9, 122:16, 123:5, 123:8, 123:13 infected [8] - 10:13, 32:24, 33:2, 54:5, 64:20, 89:16, 101:21, 107:19 infection [8] - 37:13, 37:19, 47:6, 89:21, 95:16, 95:20, 97:1, 98:1 infectious [1] - 28:1 inflated [1] - 101:3 inform [1] - 73:25 information [12] - 3:15, 10:19, 14:25, 55:11, 62:7, 81:24, 83:11, 83:15, 84:5, 108:23, 117:22, 122:8 informed [3] - 10:14, 10:15, 54:3 inherent [1] - 101:5 initial [7] - 8:18, 43:11, 64:6, 81:13, 85:1, 95:15, 105:13 injunction [1] - 27:22 injunctive [2] - 90:9, 90:20 injury [2] - 94:2, 103:4 inmate [20] - 10:12, 12:18, 38:14, 40:2, 45:1, 46:11, 46:14, 48:15, 48:16, 49:7, 50:20, 50:21, 60:25, 62:6, 63:16, 64:3, 74:9, 117:6, 119:13, 123:4 inmates [55] - 21:10, 22:22, 22:23, 38:3, 38:8, 38:16, 38:21, 39:3, 39:16, 49:17, 50:8, 51:6, 51:19, 52:5, 52:15, 52:16, 52:17, 61:2, 62:10, 68:2, 68:5, 68:11, 69:5, 72:3, 74:7, 74:15, 74:20, 74:21, 96:17, 96:18, 97:8, 97:12, 97:13, 97:14, 98:8, 98:11, 98:15, 99:14, 100:5, 101:1, 101:15, 104:8, 110:23, 111:2, 115:5, 115:11, 115:16, 115:19, 116:9, 123:3, 123:22, 124:8, 124:23 Inmates [1] - 31:3 innumerable [1] - 37:12 input [1] - 79:18 input/output [1] - 34:17 inquired [1] - 109:23 inquiring [1] - 109:8 inquiry [1] - 92:1 inserting [1] - 22:11 inside [2] - 55:10, 115:11 insights [1] - 66:5 insisted [1] - 16:18 insistence [1] - 17:11 insisting [1] - 15:12

Document 26-5 Filed 04/03/20 Page 137 ofP1a4g7e P1a0geID #:

instance [8] - 38:74, 3408:2, 41:12, 46:5,

55:10, 73:3

71:23, 77:5, 97:19, 115:19

jails [8] - 54:19, 71:19, 71:22, 71:23,

instances [2] - 41:3, 45:6

71:24, 82:22, 89:4

institution [5] - 49:4, 61:3, 64:3,

James [4] - 4:4, 37:1, 61:22, 67:25

64:14, 102:8

JAMES [1] - 2:5

institutional [7] - 48:22, 49:4, 51:8,

Jeff [1] - 109:6

62:23, 64:9, 69:2, 102:7

Jewish [1] - 12:13

institutions [1] - 37:19

judge [7] - 16:12, 26:1, 45:21, 77:21,

instructed [3] - 15:19, 15:20, 66:18

79:18, 112:6

instructive [2] - 13:20, 29:19

JUDGE [1] - 1:11

intake [6] - 58:9, 58:10, 64:21, 64:25,

Judge [26] - 6:15, 14:1, 16:10, 22:24,

123:11, 124:5

23:1, 24:14, 38:1, 88:8, 92:4, 96:6,

intended [1] - 33:7

96:7, 104:14, 104:25, 105:1, 105:23,

intending [1] - 6:20

105:25, 108:16, 108:21, 109:1, 109:5,

intensive [1] - 53:17

109:7, 109:14, 109:18

intention [1] - 57:15

judge-by-judge [1] - 77:21

interact [1] - 72:6

judges [9] - 23:3, 24:19, 39:2, 39:4,

interaction [1] - 49:2

85:6, 96:9, 96:22, 97:2, 112:3

interactions [2] - 49:23, 71:23

judicial [3] - 16:15, 44:15, 67:5

interest [1] - 24:18

July [1] - 79:8

interested [1] - 73:16

jump [3] - 5:14, 60:15, 80:19

intern [1] - 4:11

juncture [1] - 109:14

Intern [1] - 2:13

June [1] - 79:10

internally [1] - 65:14

Justice [2] - 2:12, 4:10

interrupt [6] - 17:18, 19:1, 52:13, 59:5,

justification [1] - 33:10

80:13, 117:21

justify [1] - 15:1

interrupted [1] - 109:25

justifying [1] - 114:8

interrupting [1] - 59:6

interventions [1] - 53:18

K

intubate [1] - 12:15

intubated [1] - 53:11 intuition [2] - 78:17, 114:4 investigate [1] - 51:16 invite [1] - 52:13 involve [3] - 71:22, 71:24, 93:5 involved [6] - 81:13, 83:6, 87:12, 93:20, 104:8, 111:8 involving [6] - 16:10, 67:17, 86:25, 88:9, 96:20, 97:7 irreparable [8] - 28:8, 94:2, 94:16, 99:15, 99:23, 100:9, 100:11, 100:12 isolate [2] - 31:21, 51:1 isolated [6] - 11:15, 11:18, 35:2, 123:3, 123:8, 123:17 isolating [1] - 32:7 isolation [18] - 12:1, 12:16, 14:21, 54:17, 59:21, 61:2, 69:8, 80:2, 80:7, 80:12, 118:3, 118:4, 118:5, 118:8, 121:13, 122:25, 123:6, 123:25 issue [34] - 6:11, 6:16, 6:24, 7:19, 7:20, 20:8, 23:21, 24:3, 26:16, 28:3, 34:5, 34:24, 39:13, 43:11, 43:13, 45:23, 46:2, 51:11, 54:12, 57:7, 59:16, 61:7, 64:9, 70:12, 87:24, 88:1, 88:2, 106:11, 107:8, 115:10, 117:1 issued [4] - 33:6, 65:21, 65:23, 89:7 issues [19] - 4:19, 9:9, 17:6, 42:15, 51:15, 59:15, 60:5, 62:18, 73:5, 73:19, 79:23, 87:3, 87:6, 101:19, 113:5, 116:1,

KATHERINE [1] - 1:16 Katie [4] - 3:9, 5:6, 18:18, 95:12 keep [5] - 51:2, 96:21, 105:10, 108:12, 115:24 keeping [4] - 33:10, 49:3, 49:4, 116:4 keeps [1] - 101:18 kept [3] - 72:5, 102:11, 110:25 key [1] - 89:14 kick [1] - 15:21 Kim [2] - 2:13, 4:11 kind [22] - 7:6, 19:4, 29:5, 49:4, 60:20, 70:24, 72:18, 81:19, 86:20, 87:13, 87:20, 89:12, 91:23, 92:6, 96:7, 98:21, 102:13, 112:14, 114:2, 116:25, 121:15, 123:25 kinds [6] - 57:16, 60:12, 78:8, 80:4, 120:20, 121:6 King [5] - 4:17, 30:20, 36:8, 62:9, 63:17 King's [1] - 52:12 Kingsbrook [1] - 12:13 kitchen [1] - 32:23 kits [2] - 120:14, 120:15 knowing [1] - 6:6 known [2] - 7:12, 64:18 KOVNER [1] - 1:11
kovner_chambers@edny.uscourts. gov [1] - 5:15

120:20, 125:16

itself [4] - 49:5, 75:12, 96:23, 100:17

L

J
jail [6] - 10:15, 11:10, 11:12, 54:21,

lack [5] - 22:17, 34:17, 53:5, 82:14, 85:4
laid [1] - 36:25

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Case(1l:2an0g-cuva-g0e15-90m-RedPiKc-aRlL)M
language [2] - 14:4, 22:24 laptop [1] - 5:11 large [3] - 13:9, 82:22, 112:24 largely [1] - 74:5 last [21] - 5:2, 7:24, 10:9, 10:20, 12:21, 32:10, 33:13, 37:16, 37:22, 44:3, 46:3, 46:25, 49:21, 50:12, 58:13, 62:15, 69:7, 69:10, 107:9, 112:17, 115:1 late [1] - 46:25 laundry [2] - 32:18, 34:11 Law [2] - 2:13, 4:11 law [1] - 48:14 LAW [1] - 1:19 laws [1] - 96:13 lawyer [2] - 18:19, 85:19 lawyers [4] - 3:24, 30:12, 85:18, 125:6 lay [1] - 7:8 layer [1] - 86:11 layperson [1] - 121:14 lead [1] - 110:9 least [16] - 11:12, 14:24, 15:2, 15:5, 15:7, 21:9, 26:6, 30:16, 66:22, 76:3, 92:3, 101:8, 105:1, 113:25, 117:8, 118:10 leave [2] - 34:25, 79:4 leaves [1] - 31:11 leaving [2] - 11:20, 31:9 left [1] - 76:12 Legal [2] - 9:22, 95:13 legal [7] - 8:13, 11:20, 23:11, 47:16, 109:15, 122:6, 125:16 legitimate [1] - 89:9 legitimately [1] - 57:4 lengthy [1] - 82:25 lens [4] - 24:19, 112:19, 112:20, 120:16 less [5] - 14:23, 33:5, 48:25, 53:16, 117:12 letter [15] - 6:12, 6:14, 6:15, 6:20, 6:21, 7:1, 7:13, 7:17, 14:13, 14:18, 14:20, 30:13, 43:12, 105:1 letters [1] - 14:12 letting [1] - 32:15 level [10] - 22:3, 29:12, 51:3, 62:24, 69:2, 74:1, 90:13, 97:13, 102:24 levels [1] - 62:25 liability [1] - 87:6 liberty [1] - 28:19 lies [1] - 67:24 life [6] - 20:18, 27:23, 29:22, 29:25, 30:4, 100:11 life-threatening [1] - 27:23 LIFSHITZ [4] - 2:6, 124:15, 124:18, 124:20 Lifshitz [3] - 4:9, 124:15, 124:20 light [6] - 17:10, 40:7, 42:19, 42:20, 72:1, 87:1 lightly [1] - 105:12 likelihood [1] - 71:13 likely [3] - 71:14, 107:4, 118:2 limit [2] - 32:17, 34:9 limitation [1] - 32:19 limitations [1] - 100:5 limited [3] - 65:1, 81:18, 86:17 line [6] - 3:6, 3:25, 4:6, 6:1, 10:23, 41:8

Document 26-5 Filed 04/03/20 Page 138 of 1P4a7gePa1g1eID #:

lining [1] - 48:7 439

70:17, 70:21, 73:14, 73:18, 73:23,

link [1] - 86:12

74:12, 76:8, 76:9, 77:17, 77:22, 83:5,

Lisa [2] - 2:12, 4:10

83:7, 84:12, 86:19, 87:4, 87:5, 87:12,

list [48] - 11:3, 25:3, 25:13, 25:17,

110:19, 111:25, 112:11, 112:18,

25:25, 26:1, 26:2, 26:13, 83:8, 85:2,

112:20, 112:22, 112:23, 113:8, 113:17,

85:4, 98:10, 98:17, 98:20, 98:21, 98:24, 113:20, 113:22, 113:24, 113:25, 120:19

99:5, 99:7, 104:3, 105:22, 105:24,

masters [2] - 86:16, 86:23

106:1, 106:2, 106:3, 106:5, 106:8,

match [1] - 55:9

108:15, 108:18, 108:19, 109:1, 109:3,

material [1] - 19:2

109:16, 109:20, 114:21, 114:23,

materials [1] - 94:17

114:25, 115:4, 115:9, 115:24, 121:24,

matter [6] - 21:24, 56:11, 79:9, 81:16,

121:25, 122:14, 124:23, 125:1, 125:4,

125:21, 126:4

125:7, 125:8

matters [1] - 82:4

listen [1] - 67:11

Mauskopf [2] - 108:21, 109:18

lists [2] - 86:9, 108:22

maximum [3] - 48:18, 49:22, 97:13

literal [1] - 19:18

McBride [8] - 8:25, 18:19, 19:6, 19:8,

litigated [1] - 112:10

56:9, 56:10, 56:21, 79:6

live [2] - 101:25, 102:1

McBride's [2] - 82:19, 86:1

lives [1] - 66:19

MCC [10] - 14:13, 14:15, 14:19, 14:21,

living [4] - 34:7, 34:11, 36:2, 48:3

14:23, 27:6, 109:6, 109:10, 109:20,

LLP [2] - 1:13, 3:9

110:15

local [1] - 70:14

McFarland [4] - 2:11, 109:6, 109:10,

lockdown [2] - 32:3, 109:8

109:15

locked [3] - 11:15, 35:2, 56:23

McMahon [7] - 105:23, 105:25,

locking [1] - 32:14

108:16, 108:21, 109:1, 109:5, 109:14

logical [2] - 68:1, 101:13

MDC [97] - 9:18, 10:2, 10:5, 11:5, 12:6,

look [10] - 11:22, 13:20, 14:2, 39:24, 66:10, 78:4, 94:23, 95:23, 105:13,

12:10, 12:12, 12:15, 12:22, 13:8, 13:9, 13:19, 14:4, 14:13, 21:10, 26:8, 28:22,

125:10

29:7, 32:10, 34:23, 37:11, 37:13, 37:14,

looked [5] - 11:1, 84:20, 88:8, 92:11, 104:5

37:20, 38:13, 38:15, 38:17, 46:6, 46:7, 46:25, 47:2, 47:4, 47:6, 49:1, 50:1,

looking [7] - 29:13, 30:22, 63:22, 65:4, 92:23, 97:6, 120:17
loop [2] - 59:7, 59:14 Loretta [1] - 73:18 lose [2] - 37:8, 113:18 loss [2] - 28:6, 118:7 lost [2] - 32:11, 115:1 Louisiana [3] - 31:18, 106:14, 110:16 low [1] - 97:13 low-level [1] - 97:13 lower [1] - 98:13 Lynch [1] - 73:18

50:2, 51:5, 51:16, 52:14, 53:20, 54:10, 54:22, 54:23, 55:3, 56:20, 58:22, 60:7, 62:19, 63:4, 64:19, 66:14, 68:2, 68:5, 68:17, 69:5, 69:20, 70:24, 72:8, 72:9, 73:5, 73:6, 73:7, 74:5, 74:18, 74:20, 75:8, 76:2, 76:5, 79:25, 96:8, 96:12, 96:14, 96:20, 97:1, 97:11, 97:24, 101:1, 101:2, 101:4, 101:7, 101:14, 102:5, 102:21, 102:23, 104:16, 105:15, 106:12, 106:18, 106:19, 108:19, 109:19, 110:15, 112:25
MDC's [2] - 5:2, 73:8 meal [1] - 32:18

M

meals [1] - 48:7 mean [23] - 16:8, 16:14, 19:1, 33:14,

48:21, 59:5, 73:18, 75:5, 77:7, 80:13,

Magistrate [1] - 109:17

82:17, 82:19, 84:8, 85:10, 86:4, 89:2,

magnitude [1] - 94:24

89:24, 90:8, 92:24, 95:4, 100:17,

mail [9] - 2:17, 5:4, 5:11, 5:12, 18:22,

103:12, 110:2

19:9, 31:10, 31:24

meaning [4] - 22:13, 25:18, 72:5,

mailing [2] - 5:3, 118:15

109:9

main [3] - 39:17, 47:18, 48:1

meaningful [2] - 36:5, 85:8

maintenance [1] - 46:16

means [5] - 11:19, 16:7, 31:6, 118:1,

majority [1] - 31:6

118:10

manage [2] - 12:6, 70:13

meant [1] - 54:23

manner [1] - 57:22 March [14] - 9:23, 14:1, 14:6, 14:8, 14:11, 14:12, 14:20, 15:5, 18:20, 18:21,

measures [13] - 10:17, 11:14, 14:9, 15:12, 15:16, 17:12, 34:8, 34:18, 36:21, 74:4, 77:9, 90:24, 91:18

105:14, 109:8, 121:17

mechanism [6] - 19:21, 21:13, 21:16,

mark [2] - 27:10, 27:19 martial [1] - 85:19 mask [1] - 92:14 masks [4] - 10:13, 33:3, 55:17, 74:15 massive [1] - 85:23 master [35] - 9:5, 17:7, 21:22, 59:4,

44:23, 45:20, 98:6 mechanisms [5] - 22:9, 22:12, 44:11,
82:6, 107:8 mediation [1] - 87:13 Medical [1] - 12:13 medical [60] - 10:14, 11:4, 12:1, 12:7,

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Case(1m:2ed0i-ccva-l0l1y59-0-ROfPfKi-cReL)M
12:9, 13:5, 13:8, 17:13, 26:15, 32:5, 33:10, 34:22, 34:23, 35:2, 35:6, 45:3, 50:1, 50:20, 50:22, 50:23, 51:7, 53:5, 53:6, 54:11, 54:13, 54:17, 54:20, 54:22, 54:23, 55:14, 55:21, 56:17, 59:17, 59:22, 60:7, 60:11, 60:12, 60:24, 62:17, 62:18, 62:19, 64:4, 74:16, 79:23, 80:7, 80:8, 80:11, 80:12, 86:9, 92:3, 92:10, 92:19, 99:3, 102:5, 113:6, 115:20, 116:1, 119:22, 119:25, 122:10
medically [3] - 30:15, 81:23, 122:4 medication [1] - 116:3 medications [1] - 56:19 medicine [1] - 33:23 meet [1] - 58:13 meeting [1] - 109:5 meets [1] - 89:24 member [1] - 54:4 members [12] - 9:10, 11:11, 11:13, 24:23, 33:21, 75:7, 80:6, 81:25, 85:9, 101:25, 107:3, 122:10 memorandum [1] - 42:20 mention [5] - 6:11, 38:4, 38:17, 107:24, 110:17 mentioned [4] - 38:25, 45:11, 53:18, 107:14 merits [5] - 18:5, 18:7, 78:14, 112:24, 117:13 met [5] - 81:25, 108:1, 108:2, 117:9, 121:1 Meyer [2] - 32:1, 35:18 mid [1] - 121:17 mid-March [1] - 121:17 middle [1] - 86:5 might [29] - 5:8, 6:24, 17:4, 23:9, 25:10, 29:2, 34:8, 34:9, 34:18, 34:19, 43:2, 47:10, 63:13, 70:15, 71:5, 74:1, 75:10, 78:12, 78:13, 80:10, 85:3, 87:10, 95:22, 112:6, 114:2, 116:2, 122:13 million [1] - 57:21 mind [9] - 5:3, 6:3, 6:6, 21:19, 69:14, 73:7, 91:14, 96:21, 105:6 minded [1] - 88:1 mindful [1] - 39:12 minimize [3] - 49:23, 99:19, 99:25 minus [1] - 83:9 minute [2] - 17:19, 61:1 misreading [1] - 65:10 missed [3] - 28:14, 50:12, 52:19 misses [1] - 27:10 missing [1] - 86:12 misspeak [1] - 63:11 mistake [1] - 92:17 mitigate [11] - 13:20, 14:5, 31:22, 70:14, 70:20, 76:12, 77:10, 78:8, 90:5, 102:6 mitigated [1] - 77:25 mitigates [1] - 33:11 mitigating [4] - 15:12, 15:16, 17:12, 28:20 mitigation [7] - 9:6, 9:17, 28:23, 48:24, 66:7, 70:25, 114:3 mix [2] - 19:13, 87:13 mode [1] - 86:5 moment [3] - 36:4, 61:16, 75:11 Monday [4] - 9:25, 10:15, 54:4, 54:6

Document 26-5 Filed 04/03/20 Page 139 of 1P4a7gePa1g2eID #:

money [2] - 22:174, 2420:19

never [2] - 30:13, 66:16

monitoring [1] - 11:5

new [13] - 10:17, 33:7, 46:20, 48:8,

months [1] - 107:24

56:23, 58:12, 64:3, 64:14, 65:1, 65:8,

morning [9] - 3:8, 3:16, 4:4, 9:24,

89:3, 89:6, 123:17

10:7, 10:12, 13:12, 49:22, 86:1

NEW [2] - 1:1, 2:3

mortality [2] - 95:5, 95:6

New [9] - 1:5, 1:16, 1:21, 2:5, 2:9,

most [10] - 32:15, 38:19, 71:5, 71:19,

46:22, 111:11

84:19, 87:6, 88:20, 96:15, 121:18

next [4] - 10:25, 34:12, 85:16, 94:8

mostly [1] - 25:9

Nicole [2] - 2:11, 109:6

motion [5] - 8:24, 40:12, 68:21,

night [14] - 5:2, 7:24, 37:16, 37:22,

110:21, 125:7

46:3, 46:25, 49:21, 53:24, 54:5, 54:6,

motions [1] - 125:2

58:13, 62:15, 69:7, 69:10

move [8] - 17:19, 26:18, 29:1, 29:2,

nine [1] - 120:14

80:16, 83:2, 84:1, 100:2

Nkanga [1] - 24:16

moved [4] - 26:12, 64:22, 74:7, 100:1

nobody [1] - 15:6

movement [1] - 105:17

noise [1] - 6:2

moving [3] - 8:2, 84:2, 107:1

none [3] - 35:10, 39:10, 118:5

MS [64] - 3:8, 3:22, 3:24, 5:6, 8:16,

normal [6] - 19:15, 43:2, 54:8, 54:12,

8:23, 18:18, 19:8, 25:1, 25:7, 25:10,

82:23, 85:22

25:19, 25:21, 25:22, 30:10, 31:2, 34:5,

normally [1] - 80:8

35:24, 36:8, 36:12, 36:17, 50:7, 50:11,

note [2] - 13:1, 80:17

52:21, 53:22, 60:15, 62:22, 63:6, 63:10,

noted [1] - 37:22

63:15, 63:25, 64:15, 65:11, 69:6, 78:22,

nothing [7] - 15:15, 27:24, 35:14,

80:21, 81:21, 83:8, 84:15, 84:23, 85:14, 37:10, 37:14, 38:1, 94:5

95:12, 96:3, 104:13, 104:19, 105:9,

notice [8] - 32:17, 67:5, 86:19, 89:22,

109:4, 113:12, 115:24, 116:16, 117:12, 90:20, 90:21, 90:22, 90:23

117:20, 117:24, 119:9, 119:22, 120:12, 122:2, 122:21, 123:2, 123:24, 124:2, 124:13, 125:13, 125:20
multi [1] - 74:3

novel [1] - 72:20 nowhere [2] - 55:4, 106:19 number [13] - 25:12, 25:13, 30:22, 33:18, 34:7, 68:5, 72:15, 99:16, 103:22,

multi-tiered [1] - 74:3

106:12, 113:23, 114:10, 118:1

multiple [5] - 11:11, 55:23, 56:19, 58:15, 58:16
mute [1] - 6:2

numbers [3] - 15:1, 123:22, 124:3 nurse [2] - 50:14, 60:12 nurses [1] - 50:14

N

O

name [2] - 100:21, 118:25 named [2] - 9:3, 17:23 narrow [3] - 9:2, 9:11, 38:1 Nathan [3] - 23:1, 92:4, 96:6 Nathan's [1] - 88:8 national [1] - 14:4 nationwide [2] - 46:23, 62:15 nature [4] - 57:16, 58:22, 92:20, 102:13 nearest [1] - 42:1 nearly [1] - 28:23 necessarily [3] - 85:7, 88:16, 96:18 necessary [10] - 17:8, 17:10, 21:15, 23:4, 49:3, 70:25, 71:4, 90:4, 94:10, 116:2 need [32] - 8:8, 16:11, 16:20, 27:3, 35:1, 44:20, 45:1, 50:20, 50:23, 51:2, 53:11, 53:12, 53:17, 55:14, 57:9, 58:5, 60:14, 67:18, 70:19, 71:10, 75:1, 83:17, 83:19, 84:1, 84:17, 85:8, 87:2, 94:10, 102:7, 102:9, 105:11, 117:16 needed [4] - 51:20, 54:4, 68:10, 115:14 needs [8] - 38:20, 50:24, 92:3, 92:10, 99:9, 99:10, 101:14, 102:8 negative [5] - 12:15, 32:8, 95:21, 116:17, 123:9 neutral [1] - 86:9

object [4] - 5:9, 7:9, 42:14, 45:6 objected [2] - 41:4, 44:13 objection [1] - 44:12 objectives [2] - 93:9, 93:13 obligations [1] - 89:25 observe [1] - 53:8 observed [1] - 72:22 observing [1] - 17:11 obstacle [5] - 18:1, 18:4, 18:5, 18:7, 23:11 obtain [3] - 27:5, 80:7, 113:21 obtained [2] - 28:15, 62:1 obtaining [2] - 16:7, 80:8 obviously [23] - 4:20, 8:2, 9:9, 9:14, 10:2, 23:9, 36:4, 43:2, 44:12, 46:22, 48:22, 49:21, 50:19, 51:10, 53:23, 88:1, 90:1, 98:14, 100:1, 101:22, 117:16, 122:14, 125:15 occupied [1] - 66:21 occur [1] - 12:22 occurs [1] - 80:24 OF [5] - 1:1, 1:10, 1:19, 2:3, 126:2 offense [1] - 81:7 offering [1] - 100:9 office [12] - 10:23, 42:10, 42:11, 42:13, 42:16, 43:21, 62:24, 68:16, 111:10, 111:12, 111:15 Office [9] - 4:5, 4:8, 4:10, 37:2, 83:14,

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Ca(seof1f:2ic0e-c'vs-0-15p9e0t-RitPiKo-nReLrMs) Document 26-5 Filed 04/03/20 Page 140 of 147PaPgaege1ID3 #:

86:7, 124:21, 125:1, 125:10

outside [5] - 38:174,4431:8, 71:23, 101:2,

30:16, 30:18, 31:6, 31:9, 31:11, 31:13,

office's [1] - 42:11

120:2

31:14, 31:21, 31:23, 32:8, 32:14, 32:16,

officers [1] - 32:24

overall [1] - 62:2

32:21, 33:1, 33:4, 33:10, 33:18, 33:20,

Official [2] - 2:16, 126:10

overlap [1] - 6:9

34:7, 34:12, 34:17, 35:1, 35:6, 36:1,

often [2] - 22:18, 110:10

overlapping [1] - 6:7

36:2, 36:3, 36:19, 36:21, 41:22, 48:3,

old [1] - 79:7

overlooking [2] - 59:13, 85:5

48:4, 51:1, 53:10, 54:11, 54:13, 54:16,

older [2] - 26:14, 48:16

overly [1] - 98:11

54:24, 55:3, 55:10, 55:13, 55:14, 55:15,

Olson [2] - 2:12, 4:10 once [4] - 40:20, 51:6, 100:3, 123:9 once-a-day [1] - 51:6 one [94] - 5:13, 6:14, 6:16, 9:18, 9:23, 13:18, 15:7, 15:12, 16:9, 16:12, 16:20, 18:15, 18:19, 18:25, 20:25, 22:2, 22:17, 24:3, 24:4, 24:14, 25:23, 28:8, 28:9, 29:9, 31:10, 33:14, 35:9, 35:18, 42:4, 44:10, 45:8, 45:21, 49:6, 49:24, 51:7, 53:1, 53:4, 54:3, 55:13, 60:3, 61:10, 63:6, 66:6, 68:6, 69:18, 72:15, 79:23, 84:20, 84:24, 86:2, 87:25, 89:10, 89:15, 92:4, 92:14, 92:24, 93:2, 95:8, 96:19, 98:5, 99:13, 99:15, 101:17, 103:7, 103:18, 104:17, 106:21, 106:22, 107:9, 108:11, 109:21, 110:25, 111:21, 113:19, 114:10, 114:20, 115:10, 116:5, 116:9, 116:22, 120:8, 121:12, 121:16, 121:22, 122:22, 123:2, 123:20, 124:3, 124:7 one-in-six [1] - 95:8 ones [4] - 40:15, 42:16, 68:17, 102:5 ongoing [1] - 90:11 open [2] - 8:14 opening [1] - 36:24 operate [1] - 66:18 operation [1] - 102:8 opinion [1] - 23:1 opportunity [11] - 8:3, 27:3, 43:13, 54:16, 59:12, 59:22, 70:24, 86:19, 105:6, 105:7, 120:25 oppose [3] - 102:12, 106:7 opposed [4] - 96:14, 97:6, 100:3, 114:11 opposing [2] - 57:11, 68:21 opposite [1] - 17:1 opposition [9] - 16:18, 18:17, 37:17, 58:5, 67:24, 82:1, 85:21, 103:18, 106:5 option [3] - 17:2, 29:10, 41:17 order [21] - 4:18, 5:1, 5:17, 9:6, 20:9, 20:11, 24:16, 29:7, 29:9, 37:22, 46:3, 46:5, 85:8, 86:13, 88:19, 93:7, 94:9, 104:25, 105:23, 108:1, 108:16 ORDER [1] - 1:10 Order [1] - 68:21 ordered [2] - 25:25, 105:23 ordering [1] - 81:17 orders [2] - 28:15, 46:3 ordinary [1] - 33:17 original [2] - 58:19, 63:17 originally [1] - 98:24 Ostriker [1] - 109:7 otherwise [3] - 6:5, 80:18, 115:16 ourselves [1] - 9:1 outbreak [4] - 31:20, 37:11, 98:1, 106:14 outcomes [1] - 95:21 outline [1] - 81:6 outset [4] - 5:25, 8:5, 8:11, 8:13

oversee [3] - 57:19, 74:12, 79:18 overwhelmed [3] - 12:12, 55:1, 56:15 own [4] - 12:17, 26:9, 48:1, 117:13
P
p.m [1] - 60:21 PA [2] - 54:15, 60:17 pace [2] - 56:13, 57:15 Page [1] - 63:16 pain [1] - 92:13 pamphlets [3] - 35:25, 36:2, 36:15 panicked [1] - 86:5 paper [1] - 95:4 papers [18] - 9:16, 11:1, 11:12, 11:23, 26:25, 28:11, 28:24, 37:12, 38:5, 38:18, 39:10, 48:1, 79:2, 82:1, 95:16, 99:13, 106:20, 110:6 paragraph [1] - 30:22 Paragraph [4] - 30:23, 31:2, 31:3, 32:17 parallel [1] - 20:5 paramount [1] - 38:15 Park Avenue [1] - 1:20 Parker [1] - 104:19 Parole [1] - 83:14 part [20] - 10:16, 13:4, 23:19, 25:12, 30:14, 32:10, 33:21, 35:17, 51:7, 57:18, 71:13, 93:1, 95:15, 98:18, 99:12, 102:13, 112:18, 112:19, 113:25, 115:1 particular [18] - 19:18, 22:1, 23:9, 29:2, 43:17, 52:4, 55:2, 72:18, 72:19, 75:9, 78:5, 80:16, 84:7, 86:20, 95:3, 98:5, 99:22, 112:7 particularly [7] - 7:25, 53:14, 54:25, 58:25, 72:16, 89:16, 106:3 parties [12] - 3:2, 3:7, 7:23, 15:17, 37:5, 61:19, 70:22, 73:16, 77:23, 83:1, 86:18 Parties [1] - 3:3 partly [3] - 35:16, 35:17 partner [1] - 86:1 parts [2] - 47:1, 102:2 past [3] - 51:15, 68:20, 97:2 patient [4] - 65:12, 79:22, 105:4, 105:10 patients [4] - 12:20, 61:15, 63:3, 63:8 pattern [1] - 73:6 pending [6] - 6:18, 57:3, 85:6, 88:7, 123:21, 124:8 people [221] - 4:1, 6:1, 6:9, 9:18, 9:24, 10:6, 10:8, 10:11, 10:15, 11:3, 11:4, 11:6, 11:7, 11:9, 11:15, 11:18, 11:24, 11:25, 12:8, 12:9, 12:12, 12:15, 13:8, 13:19, 13:23, 14:16, 14:24, 15:3, 15:4, 15:6, 16:21, 16:24, 17:3, 17:4, 18:11, 19:18, 21:11, 23:14, 25:2, 25:12, 25:14, 26:10, 26:11, 26:14, 28:16, 29:15,

55:16, 55:21, 55:24, 56:4, 57:7, 57:9, 57:22, 58:6, 58:9, 58:10, 58:13, 58:15, 58:17, 58:20, 59:21, 62:1, 63:18, 63:20, 64:13, 64:19, 64:20, 64:22, 65:1, 65:8, 65:24, 66:13, 66:20, 66:24, 67:12, 69:8, 70:13, 70:15, 70:21, 70:25, 71:22, 72:16, 72:23, 74:17, 75:17, 75:18, 75:19, 75:20, 77:17, 77:24, 78:23, 79:3, 79:4, 79:15, 79:17, 80:1, 80:2, 80:5, 80:7, 80:12, 82:9, 82:12, 82:15, 82:22, 83:2, 83:9, 83:16, 83:18, 83:19, 84:3, 84:17, 84:19, 84:25, 85:2, 85:16, 85:24, 86:13, 86:14, 87:9, 95:5, 97:21, 98:20, 99:20, 101:21, 106:2, 106:3, 106:5, 106:7, 106:8, 106:11, 106:14, 106:18, 106:22, 106:25, 107:17, 109:9, 113:21, 114:2, 116:11, 117:25, 118:1, 118:3, 118:4, 118:5, 118:8, 118:9, 118:10, 118:11, 118:13, 118:14, 118:15, 118:16, 118:20, 120:5, 120:24, 121:11, 121:13, 121:18, 121:20, 121:25, 122:3, 122:9, 122:13, 122:24, 122:25
people's [4] - 32:13, 57:17, 83:11, 86:6 per [2] - 72:14, 74:6 percent [9] - 11:7, 15:13, 25:4, 26:6, 26:7, 66:17, 95:7, 116:17 percentage [1] - 68:4 perhaps [3] - 43:12, 109:18, 114:14 period [8] - 17:25, 41:2, 41:4, 41:5, 44:14, 49:11, 71:19, 95:1 person [36] - 6:8, 11:19, 14:19, 14:20, 26:2, 29:21, 31:18, 33:17, 54:5, 55:5, 55:13, 56:16, 56:24, 57:19, 58:7, 64:20, 77:9, 78:6, 79:20, 80:24, 82:24, 83:12, 83:13, 83:15, 84:2, 84:13, 87:25, 89:18, 92:12, 104:16, 104:18, 106:21, 106:22, 121:16, 123:17 person's [2] - 23:5, 72:15 personal [7] - 22:18, 27:4, 52:16, 52:23, 53:1, 75:15, 90:4 personally [4] - 68:14, 68:15, 68:24, 69:3 persons [5] - 52:6, 114:21, 115:8, 121:12, 121:25 perspective [5] - 10:3, 13:4, 18:11, 24:25, 110:3 petition [4] - 9:4, 44:7, 57:3, 108:4 petitioner [5] - 6:21, 26:23, 30:3, 42:5, 43:25 Petitioner [1] - 43:25 petitioner's [1] - 15:22 Petitioners [3] - 1:14, 1:19 petitioners [65] - 3:10, 3:17, 3:19, 3:22, 5:5, 7:12, 13:2, 13:7, 13:13, 16:8, 16:22, 17:3, 17:23, 18:19, 19:3, 20:2, 20:15, 27:1, 29:8, 29:24, 30:7, 30:12, 37:25, 38:3, 38:5, 38:24, 38:25, 39:25, 40:13, 42:6, 42:8, 42:13, 43:4, 44:23, 47:19, 48:2, 48:10, 48:11, 52:2, 53:3,

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

C(apseet1i:2ti0o-cnve-r0s1'59-0-RprPoKx-iRmLiMty)Document 26-5 Filed 04/03/20 Page 141 of 147 PPaaggeeID14#:

56:8, 58:25, 59:18, 61:14, 61:16, 61:23, 27:9, 27:11, 46:4, 4494:124, 58:1, 66:9,

proactively [1] - 125:6

69:24, 70:2, 70:6, 73:4, 73:17, 75:2,

70:8, 75:6, 75:11, 75:23, 75:24, 78:23,

probative [2] - 116:21, 117:2

76:10, 77:15, 77:18, 83:9, 89:15, 89:25, 90:6, 90:11, 90:21, 91:1, 122:13

problem [18] - 12:14, 51:17, 57:2,

90:3, 100:16, 103:20, 108:25, 113:19,

positive [13] - 11:11, 14:17, 14:19,

69:19, 70:10, 72:10, 76:2, 84:19, 87:21,

123:23

15:4, 53:1, 58:8, 64:11, 99:1, 116:9,

90:22, 91:6, 91:9, 91:12, 91:13, 111:25,

petitioners' [7] - 3:11, 3:21, 3:23,

116:22, 117:4, 123:4, 124:6

114:9, 120:12, 121:1

38:18, 102:16, 121:7, 122:24

positives [1] - 49:6

problematic [1] - 108:11

petitions [3] - 39:5, 84:22, 97:3

possession [1] - 12:3

problems [7] - 21:21, 22:13, 32:11,

Phase [2] - 37:18, 62:15

possible [11] - 5:19, 22:16, 24:9,

54:11, 73:4, 95:21, 101:17

phone [9] - 25:11, 31:12, 31:23, 34:12, 47:25, 49:1, 49:5, 49:23, 67:20, 73:24,

procedural [1] - 104:2

65:20, 80:6, 85:25, 86:2

75:21, 101:24

procedure [3] - 41:21, 80:2, 100:2

phones [3] - 31:10, 52:4, 80:4

postconviction/presentence [1] -

procedures [7] - 48:24, 57:3, 82:15,

phrase [1] - 88:19

26:7

83:25, 85:22, 114:9, 114:10

physically [1] - 30:3

posters [4] - 61:25, 62:4, 62:10

proceeding [13] - 23:24, 24:15, 45:18,

physician [1] - 61:8

posture [3] - 108:13, 111:20, 114:5

59:12, 76:23, 101:19, 102:11, 102:14,

physicians [1] - 50:13

potential [8] - 24:21, 31:4, 37:13, 64:4, 108:12, 111:20, 112:14, 120:20

pick [1] - 6:2

98:11, 100:19, 123:1, 123:18

Proceedings [1] - 2:18

piece [7] - 21:1, 41:18, 47:17, 88:24,

potentially [6] - 24:11, 24:12, 57:23,

proceedings [4] - 43:9, 45:17, 84:18,

94:16, 101:6, 113:2

73:17, 82:9, 120:2

126:4

piecemeal [1] - 57:14

power [2] - 32:11, 112:13

process [23] - 19:19, 37:15, 40:8,

pieces [2] - 111:21, 113:19

PPE [1] - 55:16

40:10, 40:14, 40:19, 42:1, 47:3, 59:4,

place [6] - 3:1, 59:1, 81:25, 84:24,

practicably [1] - 76:2

64:25, 71:3, 73:15, 74:1, 74:3, 80:8,

105:2, 123:13

practice [1] - 70:24

81:11, 81:13, 82:25, 93:3, 93:4, 94:25,

placed [1] - 14:21

practices [2] - 12:18, 65:16

98:10

places [2] - 48:17, 49:24

practitioners [2] - 50:14, 60:13

processes [5] - 56:12, 56:25, 57:13,

plainly [1] - 27:22

Pratesi [12] - 2:10, 4:7, 41:8, 50:4,

57:19, 82:6

plaintiff's [1] - 49:25

51:15, 55:7, 60:1, 60:14, 119:2, 120:11,

processing [1] - 41:6

Plaintiffs [1] - 1:4

121:8, 123:25

produce [1] - 92:13

plaintiffs [6] - 4:16, 19:3, 39:25, 40:16,

PRATESI [14] - 50:7, 50:11, 52:21,

produced [1] - 2:19

43:4, 102:9

60:15, 62:22, 63:6, 63:10, 115:24,

products [1] - 52:15

plaintiffs' [2] - 25:24, 68:21

116:16, 117:12, 119:9, 119:22, 123:2,

professional [1] - 73:16

play [4] - 57:14, 77:20, 78:13, 78:15

124:2

Program [1] - 25:13

Plaza [1] - 2:4

precisely [4] - 72:20, 114:8, 114:9,

Programs [2] - 2:12, 4:10

pleading [1] - 116:10

114:13

promise [2] - 8:5, 80:17

pleadings [1] - 37:4

preferably [1] - 65:24

promised [3] - 59:9, 59:11, 105:5

plenty [2] - 90:7, 120:25 plus [1] - 107:14 point [44] - 5:1, 9:20, 10:24, 10:25,

premise [4] - 15:22, 20:15, 26:22, 101:9
preparation [2] - 23:5, 32:18

promptly [1] - 87:11 proper [3] - 62:7, 62:8, 106:24 properly [2] - 107:19, 117:19

11:8, 11:17, 17:24, 20:4, 20:6, 22:6,

prescriptions [1] - 116:4

proportion [1] - 26:12

22:8, 22:10, 30:4, 32:4, 33:13, 33:25,

presence [1] - 16:6

proposal [1] - 73:22

39:25, 45:4, 48:24, 49:7, 50:2, 59:14,

present [2] - 33:5, 56:2

proposals [1] - 74:2

61:10, 66:7, 72:19, 76:7, 76:16, 81:4,

PRESENT [1] - 2:8

propose [2] - 17:7, 21:22

85:20, 90:6, 93:10, 100:24, 107:23,

presentation [1] - 50:22

proposing [1] - 86:21

109:21, 110:5, 110:18, 111:24, 112:17,

presented [3] - 23:8, 67:14, 117:14

proposition [1] - 16:4

115:8, 116:7, 116:8, 120:3, 120:19,

presentence [1] - 26:6

prosecutor [2] - 112:3, 112:6

124:4

pressed [1] - 69:16

prosecutors [1] - 111:8

pointed [6] - 20:20, 36:18, 68:24,

pressing [1] - 87:2

prospects [1] - 71:6

102:4, 102:14, 103:8

pressure [2] - 12:15, 32:8

protect [8] - 35:23, 57:17, 70:25, 83:2,

pointing [2] - 18:1, 114:10

presumption [1] - 23:17

86:13, 93:8, 106:2, 121:20

points [12] - 5:17, 7:24, 23:2, 32:6,

Pretrial [1] - 83:13

protected [2] - 27:1, 107:20

37:2, 39:17, 48:2, 52:20, 53:22, 56:7, 59:18, 105:11
policies [1] - 43:7

pretrial [12] - 17:4, 21:2, 21:4, 21:10, 22:23, 23:11, 26:6, 39:6, 77:8, 77:19, 103:13, 104:8

protecting [2] - 36:21, 69:5 protection [1] - 98:22 protective [3] - 52:16, 52:23, 53:2

policy [5] - 42:19, 42:20, 43:18, 43:21, 48:8
Pollak [1] - 109:18 popping [1] - 5:8 pops [1] - 4:20 population [9] - 28:16, 38:14, 66:18,

pretty [1] - 119:5 prevail [1] - 71:14 prevent [3] - 14:22, 62:7, 97:25 preventing [2] - 101:21, 101:22 previously [1] - 60:7 prison [3] - 31:17, 35:20, 36:3

protocol [1] - 121:9 protocols [2] - 47:2, 106:25 proved [1] - 27:23 provide [3] - 60:8, 67:6, 67:21 provided [7] - 17:15, 52:16, 53:2, 60:7, 62:9, 67:12, 117:22

70:23, 71:24, 72:24, 77:23, 77:24, 123:15
portion [1] - 50:12 pose [2] - 79:3, 92:8 poses [2] - 72:19, 78:6 position [27] - 7:4, 7:7, 7:14, 13:17, 15:18, 16:5, 16:23, 17:1, 18:10, 24:10,

prisoners [1] - 103:13 Prisons [8] - 2:10, 2:11, 4:7, 13:21, 14:3, 41:9, 42:10, 42:18 prisons [1] - 14:5 Prisons's [1] - 9:16 privilege [1] - 28:19 proactive [2] - 98:10, 98:15

provider [1] - 61:7 providers [1] - 61:5 providing [2] - 52:5, 54:11 provision [3] - 23:3, 74:14, 74:15 provisions [1] - 29:14 proximity [2] - 48:7, 53:16

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Case 1:(2p0u-bclv-i0c15-90r-eRpPoKr-tR)LM
public [8] - 9:14, 13:4, 13:7, 23:17, 38:13, 62:2, 82:21, 85:23
public's [1] - 94:12 pull [2] - 30:25, 120:16 purpose [1] - 99:7 purposes [3] - 106:23, 108:20, 121:24 pursuant [1] - 56:23 pursues [1] - 56:13 pushed [1] - 42:8 put [21] - 6:20, 7:13, 8:8, 29:14, 35:14, 43:12, 43:17, 51:22, 64:7, 70:7, 80:9, 81:24, 83:20, 88:22, 90:20, 90:21, 103:17, 110:18, 111:18, 115:20, 123:13 putative [2] - 9:7, 54:4 putting [8] - 7:1, 19:18, 22:19, 32:2, 77:11, 78:11, 80:1
Q
qualify [3] - 16:24, 42:12, 100:22 quarantine [7] - 93:7, 93:19, 107:14, 123:10, 123:13, 124:1, 124:8 quarantined [6] - 11:25, 85:24, 123:7, 123:11, 123:21, 124:4 quarters [2] - 34:8, 34:13 questions [29] - 7:23, 8:9, 8:13, 8:20, 10:24, 12:25, 13:3, 13:16, 13:24, 15:25, 18:25, 20:24, 29:1, 29:2, 30:9, 39:20, 47:11, 47:16, 51:23, 59:9, 62:23, 65:6, 67:23, 92:10, 95:25, 106:19, 113:2, 124:11 quick [1] - 86:11 quickly [8] - 60:3, 83:2, 83:10, 83:15, 85:12, 105:19, 112:4, 112:24 quite [2] - 20:10, 85:12 quo [1] - 74:25
R
Rabaldi [4] - 8:25, 19:11, 79:7, 82:16 RACHEL [1] - 1:11 radar [1] - 8:9 raise [5] - 22:23, 39:18, 52:3, 62:23, 110:13 raised [10] - 23:21, 24:10, 33:14, 43:12, 46:2, 51:11, 57:7, 61:11, 116:7, 120:18 raises [2] - 17:6, 104:22 raising [5] - 18:12, 24:22, 47:19, 48:2, 100:15 rampant [1] - 31:20 rapidly [2] - 10:5, 97:24 rarely [1] - 15:17 rate [1] - 95:6 rates [3] - 95:5, 95:16 rather [1] - 77:21 RDR [2] - 2:15, 126:9 reach [7] - 41:11, 62:25, 68:4, 100:24, 107:16, 122:13, 125:6 reaction [1] - 78:10 read [5] - 8:7, 24:6, 71:20, 94:16, 96:4 readily [2] - 51:8, 55:20 reading [3] - 47:25, 48:1, 65:4 real [2] - 15:11, 125:3

Document 26-5 Filed 04/03/20 Page 142 oPf a1g4e7 P1a5geID #:

real-time [2] - 15:1414, 1325:3

76:7, 77:4, 78:17, 86:22, 87:18, 87:23,

reality [1] - 58:4

88:13, 89:13, 90:18, 91:11, 91:18,

realize [3] - 14:18, 80:15, 116:2

92:16, 93:15, 95:4, 103:21, 104:12,

really [22] - 12:13, 20:20, 28:5, 29:6,

104:25, 113:13

34:10, 49:25, 56:10, 56:16, 79:20, 81:1,

Reinert [9] - 3:17, 8:19, 13:11, 13:13,

82:15, 83:16, 83:18, 83:22, 84:13,

26:18, 58:21, 65:16, 101:18, 107:22

84:23, 92:11, 99:21, 101:11, 118:6,

Reinert's [1] - 68:7

118:17

rejected [2] - 27:21, 42:7

realm [1] - 102:3

related [8] - 6:13, 6:16, 6:24, 7:10,

reason [15] - 17:25, 22:22, 23:8, 23:10, 7:19, 79:9, 104:10, 106:8

23:15, 23:19, 29:13, 69:1, 70:11, 73:13,

relates [1] - 91:24

81:21, 82:12, 83:3, 107:24, 113:20

relation [2] - 7:5, 18:22

reasons [11] - 11:21, 22:13, 22:16,

relational [1] - 72:21

23:6, 38:5, 38:6, 38:22, 81:5, 82:23,

relay [1] - 55:11

102:22, 113:9

release [102] - 9:3, 9:5, 13:1, 13:22,

rebuts [1] - 35:14

16:3, 16:7, 16:11, 16:17, 16:19, 16:25,

rebutted [2] - 20:20, 35:11

17:2, 17:17, 17:25, 18:12, 18:20, 19:5,

recapitulate [1] - 8:8

19:7, 19:9, 20:5, 20:9, 20:11, 20:24,

receipt [1] - 19:17

23:3, 23:4, 23:12, 26:19, 26:22, 28:12,

receive [2] - 7:17, 39:3

28:14, 28:15, 29:6, 29:10, 38:2, 38:9,

received [2] - 18:22, 32:22 receiving [1] - 10:6 recent [1] - 101:9 recently [2] - 103:10, 124:4 recklessness [2] - 91:10, 91:15 recognizance [1] - 22:19 recognize [4] - 37:21, 46:10, 70:11, 88:2 recognized [2] - 37:8, 37:16 recommend [1] - 74:19 recommendation [7] - 63:2, 63:5, 63:7, 69:10, 84:8, 84:10, 102:1 recommendations [8] - 9:8, 57:20, 61:14, 73:20, 83:16, 83:22, 84:3, 85:5 recommended [2] - 33:19, 33:20 recommending [1] - 87:17 recommends [3] - 12:19, 66:20, 70:22 record [5] - 21:19, 81:18, 102:15, 111:23, 126:4 recorded [1] - 2:18 records [1] - 122:10 red [1] - 63:21 reduce [3] - 33:18, 87:25, 90:12 reduced [1] - 49:2 reducing [2] - 66:7, 72:25 Redzepagic [1] - 14:10 reevaluating [1] - 42:19 refer [2] - 27:6, 52:11 reference [1] - 27:6 referenced [2] - 61:14, 61:16 referred [1] - 104:14 referring [1] - 124:1 refused [1] - 104:21 reg [1] - 56:23 regarding [2] - 45:2, 50:24 regardless [1] - 117:17 region [1] - 120:2 regional [1] - 62:24 registered [1] - 50:14 regular [3] - 52:18, 74:9, 75:14 regularly [1] - 101:25 REINERT [39] - 1:22, 3:16, 13:12, 16:14, 17:22, 18:6, 18:9, 18:16, 20:8, 21:15, 23:13, 26:18, 26:21, 29:12, 35:9, 36:11, 65:18, 67:4, 70:4, 72:13, 75:13,

38:21, 39:3, 39:6, 39:15, 40:2, 40:9, 40:19, 41:22, 41:24, 42:2, 42:13, 42:17, 44:13, 44:15, 44:18, 44:21, 44:24, 45:9, 45:13, 46:4, 46:5, 46:8, 46:14, 46:16, 57:1, 58:2, 58:25, 70:9, 71:6, 76:23, 77:12, 79:1, 81:3, 81:4, 81:5, 81:11, 81:14, 81:20, 82:12, 82:13, 84:22, 88:15, 88:17, 93:7, 94:7, 96:24, 97:4, 98:6, 98:20, 101:1, 103:10, 106:4, 107:11, 107:12, 107:16, 107:23, 110:21, 111:3, 113:5, 114:2, 114:6, 114:8, 120:21, 121:19, 122:18
released [20] - 16:24, 22:18, 28:16, 38:8, 38:16, 39:10, 41:21, 45:4, 45:20, 56:9, 70:23, 78:7, 79:5, 79:10, 82:3, 96:17, 101:14, 107:25, 120:24, 123:10
releases [2] - 23:2, 103:22 releasing [2] - 46:11, 82:22 relevance [2] - 44:16, 46:20 relevant [9] - 42:25, 61:7, 68:18, 77:1, 77:2, 77:4, 78:12, 81:3, 111:10 reliable [1] - 55:12 reliance [1] - 114:11 relief [34] - 9:2, 9:7, 9:10, 15:23, 16:1, 16:6, 16:16, 19:4, 21:5, 21:9, 27:10, 30:12, 37:25, 38:1, 40:16, 45:20, 57:4, 69:16, 71:2, 81:18, 87:2, 88:5, 88:19, 90:9, 97:3, 105:3, 106:7, 107:11, 107:12, 107:15, 108:14, 113:19, 113:21, 114:12 relies [1] - 9:16 rely [3] - 23:1, 60:1, 120:5 relying [1] - 109:1 remain [2] - 70:21, 123:14 remand [1] - 25:15 remedies [6] - 37:23, 38:23, 39:24, 42:25, 46:9, 90:10 remedy [20] - 20:21, 21:20, 26:23, 28:12, 28:20, 30:18, 46:8, 75:1, 76:1, 76:5, 76:6, 78:20, 79:16, 81:3, 92:8, 94:4, 100:25, 113:9, 114:14 remotely [1] - 3:2 removed [1] - 10:9 repetitive [1] - 91:16 replaced [1] - 74:15 report [3] - 55:9, 73:23, 121:5

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Case 1:(2r0e-pcov-r0t1e5d90--RSPeKt-hR)LM
reported [5] - 10:10, 11:6, 107:6, 120:13, 123:23
REPORTER [1] - 126:2 reporter [3] - 3:15, 6:5, 6:10 Reporter [3] - 2:15, 2:16, 126:10 reporting [6] - 15:14, 55:8, 84:2, 106:13, 118:15, 119:12 reports [1] - 32:21 represent [1] - 76:14 representation [2] - 68:13, 118:7 representatives [1] - 65:20 represented [1] - 104:19 request [37] - 6:18, 7:9, 15:22, 16:11, 16:18, 18:2, 18:20, 18:23, 19:5, 19:7, 30:16, 37:24, 40:3, 40:20, 41:1, 42:6, 42:7, 42:8, 42:9, 44:1, 45:9, 45:13, 45:21, 45:22, 51:20, 58:3, 58:19, 67:24, 68:10, 71:11, 80:9, 82:19, 88:6, 88:14, 97:3, 113:3 requested [3] - 43:20, 88:5, 122:12 requests [21] - 13:11, 19:15, 30:12, 30:14, 39:1, 39:15, 40:1, 40:12, 40:25, 41:6, 41:11, 41:14, 42:18, 42:22, 43:17, 45:5, 45:7, 57:11, 96:23, 97:3, 106:4 require [1] - 57:7 required [2] - 48:6, 91:4 requirement [2] - 103:1, 114:13 requirements [3] - 16:17, 58:13, 104:3 requires [2] - 83:1, 113:3 resisted [1] - 13:22 resolution [1] - 113:1 resolve [2] - 87:3, 87:5 resources [3] - 21:25, 62:24, 62:25 respect [16] - 21:2, 21:9, 30:19, 43:16, 47:20, 53:21, 61:23, 73:5, 73:10, 78:22, 88:6, 101:7, 105:22, 107:21, 115:5, 116:5 respond [10] - 37:5, 59:13, 59:24, 59:25, 105:7, 105:8, 113:11, 113:12, 116:8, 117:22 responded [8] - 14:5, 19:14, 30:13, 89:23, 89:24, 90:8, 90:13, 103:23 respondent [13] - 4:3, 14:11, 17:15, 20:20, 27:16, 27:17, 35:11, 36:23, 89:22, 91:2, 94:6, 95:25, 114:10 respondent's [3] - 13:17, 66:6, 66:16 Respondents [2] - 2:2, 2:3 respondents [6] - 4:5, 35:14, 87:7, 104:1, 105:23, 106:1 responding [3] - 5:1, 40:14, 51:12 responds [3] - 11:9, 12:25, 84:11 response [14] - 4:17, 18:21, 19:10, 20:4, 27:7, 28:25, 36:14, 48:12, 58:4, 61:12, 66:2, 90:2, 106:4, 111:19 responses [4] - 43:10, 43:16, 108:5, 114:18 rest [3] - 37:4, 46:1, 47:6 restart [1] - 123:18 RESTRAINING [1] - 1:10 restrictive [1] - 10:17 rests [1] - 65:15 resulting [1] - 12:7 results [2] - 32:4, 123:9 return [1] - 10:18 returned [1] - 14:21 review [2] - 26:5, 123:21

Document 26-5 Filed 04/03/20 Page 143 oPf a1g4e7 P1a6geID #:

reviewed [3] - 47:41,4648:15, 96:24

schedule [2] - 83:11, 85:7

reviewing [1] - 96:23

scheduled [1] - 79:8

RICHARD [1] - 2:2

schedules [3] - 50:17, 60:16, 85:21

rigorous [1] - 39:7

School [2] - 2:13, 4:11

Rikers [1] - 72:23

SCHOOL [1] - 1:19

Rikers Island [3] - 9:22, 9:24, 121:16

science [1] - 33:9

rise [2] - 97:11, 102:24

scientific [1] - 33:25

risk [106] - 13:20, 20:17, 23:17, 23:18,

scope [5] - 7:6, 69:15, 69:16, 71:2,

26:13, 27:12, 27:18, 28:2, 28:10, 30:9,

93:16

32:5, 35:11, 38:12, 38:15, 38:19, 39:8,

screened [1] - 75:17

39:9, 45:3, 48:15, 48:17, 52:24, 58:21,

screening [7] - 12:18, 63:16, 63:18,

63:12, 64:5, 64:7, 70:7, 71:25, 72:25,

63:19, 63:20, 64:4, 64:6

74:7, 76:3, 76:18, 76:25, 77:6, 77:7,

se [1] - 72:14

77:10, 77:11, 77:16, 79:3, 81:2, 83:18,

second [6] - 20:22, 30:24, 39:14,

88:22, 89:3, 89:4, 89:5, 89:17, 89:20,

45:19, 46:2, 47:15

90:24, 90:25, 91:3, 91:13, 91:16, 91:17, 91:19, 91:20, 91:21, 92:8, 92:18, 92:21, 92:25, 93:2, 93:5, 93:11, 93:14, 93:17, 93:22, 93:25, 94:20, 94:21, 94:22, 94:24, 95:2, 95:10, 95:20, 95:21, 96:16, 96:25, 98:4, 98:11, 98:12, 98:15, 99:4, 99:14, 99:22, 99:25, 100:11, 100:18, 100:19, 100:22, 101:2, 101:3, 101:4, 101:12, 102:6, 115:21, 121:19, 122:5, 124:24, 125:9
risks [13] - 11:4, 47:18, 71:8, 71:24, 72:3, 72:20, 75:23, 77:25, 90:5, 92:19, 92:20, 99:10, 102:7
Roba [1] - 29:19 Rodriguez [6] - 8:25, 19:11, 30:11, 30:13, 43:25, 79:10 role [1] - 16:15 Room [1] - 1:21 room [1] - 58:15 rooms [1] - 12:16 ROSENFELD [46] - 1:16, 3:8, 3:24, 5:6, 8:16, 8:23, 18:18, 19:8, 25:1, 25:7, 25:10, 25:19, 25:21, 30:10, 31:2, 34:5, 35:24, 36:8, 36:12, 36:17, 53:22, 63:15, 63:25, 64:15, 65:11, 69:6, 78:22, 80:21, 81:21, 83:8, 84:15, 84:23, 85:14, 95:12, 96:3, 105:9, 113:12, 117:20, 117:24, 120:12, 122:2, 122:21, 123:24, 124:13, 125:13, 125:20 Rosenfeld [10] - 3:9, 5:6, 18:18, 26:4, 29:3, 60:6, 87:10, 95:12, 108:15, 111:1 rounds [1] - 61:3 rule [3] - 84:5, 86:16, 87:15 rules [2] - 45:21, 58:12 rumor [1] - 55:9 rumors [1] - 51:12 run [1] - 39:2 running [1] - 86:4

Second [2] - 27:25, 29:18 Second Circuit [2] - 30:2, 30:6 Secondhand [1] - 100:20 Section [1] - 44:24 secure [2] - 97:11, 102:8 secured [2] - 22:20, 31:3 security [3] - 42:14, 97:13, 110:8 see [10] - 5:23, 15:15, 24:11, 28:20, 36:16, 54:17, 59:22, 67:2, 89:6, 104:7 seeing [8] - 5:4, 24:19, 63:22, 72:23, 85:10, 86:21, 110:7 seek [6] - 16:1, 21:25, 39:5, 40:16, 44:23, 57:4 seeking [24] - 9:2, 9:3, 9:4, 9:10, 9:12, 13:1, 19:5, 20:21, 21:2, 21:6, 21:9, 21:18, 23:12, 34:2, 37:24, 38:2, 40:17, 76:14, 80:12, 88:11, 100:25, 105:3, 120:1 seem [3] - 42:24, 97:19, 99:18 segregation [1] - 32:3 self [1] - 93:19 self-quarantine [1] - 93:19 sense [14] - 7:11, 33:18, 36:22, 39:23, 41:14, 47:12, 47:16, 78:18, 78:21, 80:14, 88:18, 99:21, 114:6, 117:2 sensitivity [1] - 43:3 sent [3] - 10:12, 33:2, 117:17 sentence [2] - 81:6, 85:17 sentenced [5] - 17:24, 25:18, 25:20, 26:8, 26:11 sentences [4] - 25:14, 38:6, 70:9, 83:20 sentencing [3] - 39:1, 39:4, 110:22 separate [11] - 10:10, 24:3, 30:14, 45:16, 45:18, 46:11, 64:12, 107:6, 113:18, 115:18, 122:16 separated [2] - 49:4, 58:14 separately [2] - 22:2, 84:17

separation [2] - 49:11, 112:13

S

sequence [1] - 6:9

serious [14] - 19:19, 50:20, 54:11,

safe [1] - 102:7 safety [6] - 29:7, 38:12, 39:8, 57:17, 69:5, 121:21 sanitary [1] - 62:8 sanitation [1] - 51:21 sanitized [1] - 74:6 satisfy [1] - 94:2 saw [2] - 18:14, 104:17 scenario [1] - 16:1

56:17, 56:21, 57:25, 58:21, 60:5, 82:11, 83:20, 94:1, 112:12, 115:20
seriously [1] - 57:2 serve [1] - 84:12 served [1] - 93:9 services [7] - 50:3, 51:9, 60:18, 60:20, 61:2, 68:17 serving [1] - 25:14 set [2] - 46:21, 111:2 Seth [5] - 4:7, 4:13, 41:7, 48:19, 98:23

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Case 1:(2S0E-TcHv-0-15s9t0r-oRnPgKe-rR)LM
SETH [1] - 2:6 setting [11] - 17:15, 34:6, 34:10, 34:16, 34:23, 35:13, 35:20, 35:22, 54:22, 58:22, 62:11 settings [3] - 9:15, 62:12, 100:1 several [8] - 13:5, 43:22, 56:22, 56:24, 80:10, 81:12, 82:17, 107:13 severe [1] - 117:16 severity [1] - 117:14 shape [1] - 90:9 share [3] - 26:1, 32:16, 120:9 shared [5] - 48:3, 48:4, 48:5, 48:23 sharing [2] - 36:15, 72:6 shed [1] - 40:7 sheltering [2] - 33:20, 33:21 shirts [1] - 56:5 shoes [1] - 44:8 short [4] - 25:14, 46:16, 78:25, 81:17 shortages [1] - 71:25 shortly [1] - 49:8 show [4] - 21:20, 91:4, 102:9, 107:3 Show [1] - 68:21 shower [1] - 31:9 showering [1] - 48:5 showers [6] - 11:20, 31:11, 31:24, 49:17, 72:7, 80:4 showing [9] - 9:22, 11:9, 59:1, 71:14, 81:22, 82:10, 82:11, 117:8, 119:20 shown [4] - 26:25, 28:21, 37:12, 106:24 shows [4] - 28:8, 28:9, 95:14, 105:16 SHU [1] - 10:9 shut [1] - 30:18 si [1] - 72:8 sick [23] - 10:8, 12:10, 32:24, 33:4, 33:5, 51:6, 54:21, 54:24, 55:3, 57:2, 57:23, 59:23, 75:18, 79:20, 80:9, 82:9, 82:16, 83:17, 85:24, 107:18, 118:17, 118:21, 121:12 side [12] - 3:21, 22:21, 25:2, 76:22, 81:9, 89:1, 94:7, 100:9, 102:16, 114:22, 115:3, 119:11 sides [2] - 15:18, 108:6 sight [1] - 37:8 significant [2] - 9:11, 15:8 silence [1] - 12:2 silent [2] - 11:12, 124:25 similar [5] - 84:25, 85:2, 88:10, 104:9, 104:23 similarly [2] - 56:21, 74:14 simple [1] - 74:24 simply [2] - 50:25, 107:17 single [13] - 12:21, 24:23, 57:19, 63:4, 63:9, 63:13, 63:21, 64:8, 64:18, 65:9, 65:24, 65:25, 88:1 single-celled [1] - 63:13 single-minded [1] - 88:1 sit [3] - 20:16, 41:15, 56:24 site [3] - 53:6, 54:6, 60:20 sitting [1] - 5:10 situated [1] - 12:12 situation [19] - 10:5, 13:3, 13:4, 32:8, 33:8, 60:23, 82:4, 86:4, 88:22, 92:7, 100:16, 100:18, 101:5, 105:16, 110:16, 112:1, 121:2, 125:15 situations [3] - 86:18, 97:7, 101:23

Document 26-5 Filed 04/03/20 Page 144 oPf a1g4e7 P1a7geID #:

six [3] - 65:25, 66:4224,595:8

speculative [3] - 27:18, 100:15,

slow [3] - 5:8, 19:19, 57:15

101:11

slowing [1] - 40:14

speed [1] - 84:14

slowness [1] - 57:5

spread [10] - 13:21, 14:5, 14:22, 15:10,

small [3] - 31:7, 57:22, 58:17

31:4, 37:19, 47:6, 49:12, 74:8, 101:22

Smoke [2] - 27:25, 100:20

spreading [2] - 17:14, 107:4

smoke [1] - 28:2

staff [46] - 10:14, 11:11, 11:13, 13:8,

soap [22] - 32:22, 32:23, 51:10, 51:11, 14:17, 15:5, 15:6, 29:16, 32:24, 33:4,

51:17, 51:19, 51:20, 52:6, 52:9, 55:23,

33:5, 34:13, 35:2, 50:5, 51:7, 51:16,

55:24, 55:25, 56:1, 66:3, 67:1, 67:11,

52:15, 53:8, 54:15, 54:17, 58:7, 59:18,

68:10, 68:12, 74:9, 75:9

60:12, 60:18, 60:20, 60:24, 61:2, 62:19,

social [14] - 27:2, 29:8, 33:16, 47:23, 47:24, 48:11, 49:15, 75:14, 90:4, 99:18,

62:23, 64:22, 64:23, 66:14, 66:15, 68:17, 80:11, 99:3, 102:5, 107:3,

101:7, 101:10, 101:20, 101:23

109:15, 115:9, 117:8, 117:14, 118:15,

socialize [1] - 10:18 socially [9] - 11:10, 48:17, 49:1, 66:3, 66:17, 67:19, 72:5, 75:22, 100:4

119:12, 119:23, 121:12 staffed [1] - 60:11 staffing [2] - 54:9, 71:25

Society [1] - 9:22 Society's [1] - 95:13 solitary [2] - 20:12, 28:16

stage [7] - 9:1, 9:11, 15:14, 73:22, 78:12, 81:13
stakeholders [1] - 83:14

solution [2] - 24:13, 79:25 solutions [1] - 87:11 solve [4] - 70:10, 91:9, 91:11, 91:13 solves [1] - 91:6 someone [15] - 12:20, 17:6, 21:24, 21:25, 42:2, 49:10, 51:14, 64:10, 64:17,

stakes [1] - 94:6 stand [2] - 7:2, 71:9 standard [10] - 28:6, 58:18, 81:19, 88:25, 90:16, 90:19, 91:9, 91:10, 94:14, 102:25 standards [1] - 67:17

79:18, 107:1, 112:2, 125:3, 125:7,

start [5] - 8:15, 16:4, 26:22, 55:3,

125:8

102:3

sometimes [2] - 110:6, 110:11

started [3] - 52:14, 114:1, 121:16

somewhat [2] - 34:3, 48:21 soon [2] - 73:24, 109:19 sorry [15] - 18:23, 19:11, 22:5, 25:7,

state [3] - 3:7, 27:20, 91:14 statement [1] - 8:18 statements [1] - 94:7

25:9, 36:13, 50:9, 53:25, 62:13, 78:1,

states [1] - 34:14

95:18, 107:12, 116:10, 118:7, 124:18

statistic [1] - 95:9

sort [27] - 19:24, 24:17, 26:3, 29:13,

statistics [3] - 9:21, 26:3, 106:10

29:17, 29:18, 32:3, 35:21, 48:1, 50:24,

stats [1] - 95:13

58:19, 68:4, 81:16, 84:5, 84:9, 87:9,

status [7] - 12:5, 13:3, 45:14, 74:25,

87:19, 93:15, 93:19, 94:15, 101:19,

123:10, 124:1, 124:8

110:20, 111:7, 111:19, 112:12, 114:1,

statuses [1] - 85:2

122:17

statute [2] - 23:23, 24:8

sought [4] - 19:3, 20:2, 23:14, 69:17

Statute [2] - 21:11, 21:12

sound [2] - 21:18, 50:23

statutory [4] - 22:22, 22:24, 24:8,

sounds [12] - 5:19, 19:6, 20:2, 45:14,

76:24

62:22, 81:12, 101:9, 102:19, 106:6,

stay [5] - 12:10, 36:4, 79:21, 80:3,

112:1, 114:23, 118:9

108:2

Southern [4] - 16:10, 109:4, 110:23,

Stay [1] - 36:1

111:10

staying [1] - 101:14

space [3] - 66:1, 66:22, 74:8

stenography [1] - 2:18

speaking [6] - 3:14, 4:1, 41:23, 42:5,

step [5] - 74:3, 84:13, 89:11, 98:5,

80:6, 95:19

108:18

special [37] - 9:4, 17:7, 21:22, 59:3,

Step [1] - 104:3

70:17, 70:21, 73:14, 73:17, 73:23,

stepped [1] - 44:8

74:12, 76:8, 77:17, 77:22, 83:5, 83:7,

steps [25] - 13:20, 31:2, 33:18, 34:2,

84:12, 86:16, 86:23, 87:4, 87:5, 87:12,

37:12, 46:20, 47:5, 47:23, 76:5, 77:13,

98:22, 110:19, 111:25, 112:11, 112:17, 89:5, 89:7, 91:6, 96:7, 96:8, 97:25,

112:20, 112:22, 112:23, 113:8, 113:17, 98:3, 99:5, 99:16, 100:4, 100:7, 106:1,

113:20, 113:22, 113:24, 113:25, 120:19 109:13, 113:23, 121:20

specialized [1] - 32:8

still [8] - 20:24, 21:8, 24:24, 29:14,

specific [22] - 8:9, 8:24, 12:25, 13:11,

66:14, 75:23, 90:25

15:24, 16:11, 28:22, 39:15, 41:5, 44:25, 55:6, 62:11, 71:17, 72:9, 72:18, 73:4, 73:5, 73:7, 75:16, 99:9, 99:10, 124:2
specifically [12] - 8:19, 27:15, 38:24, 41:24, 43:19, 51:12, 51:24, 52:20, 64:13, 74:19, 92:25, 106:2
speculating [1] - 27:11

stopped [1] - 106:14 stress [1] - 107:9 strict [1] - 72:19 strident [1] - 18:17 strikes [1] - 15:19 striking [3] - 65:19, 67:8, 102:15 stronger [1] - 52:14

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Case 1(:s2t0r-ocnv-g0l1y59-0-tRrPyKi-nRgL)M
strongly [1] - 118:18 structural [1] - 76:1 structure [1] - 91:21 struggling [2] - 91:24, 92:5 stuff [3] - 8:8, 97:19, 105:5 subgroup [1] - 107:18 subject [3] - 7:11, 85:1, 99:14 subjected [1] - 75:3 submission [3] - 12:19, 68:24, 94:18 submissions [1] - 94:19 submit [2] - 69:11, 120:24 submitted [19] - 5:21, 12:19, 13:5, 14:10, 14:25, 17:13, 30:21, 32:1, 33:15, 35:10, 37:5, 37:17, 42:9, 46:19, 63:19, 63:23, 94:17, 95:15, 96:24 substantial [8] - 20:17, 27:12, 28:10, 71:12, 89:20, 92:21, 93:21, 101:10 substantially [1] - 93:25 substantive [2] - 88:24, 106:8 suffer [1] - 27:12 suffered [1] - 27:19 suffering [1] - 94:21 sufficiency [1] - 90:2 sufficient [4] - 17:17, 35:23, 90:20, 107:2 suggest [2] - 12:2, 14:21 suggested [1] - 41:18 suggesting [1] - 6:12 suggestion [1] - 102:23 suitability [1] - 81:14 suits [1] - 103:11 summary [3] - 102:11, 108:12, 111:20 super [1] - 4:12 supervises [2] - 109:6, 109:15 supervision [1] - 88:17 supplemental [5] - 4:25, 30:20, 43:12, 46:19, 47:7 supplemented [1] - 74:17 supplies [2] - 10:13, 52:7 support [1] - 13:5 supported [1] - 33:9 supposed [8] - 28:21, 56:9, 58:14, 63:20, 67:10, 79:10, 112:8, 112:9 Supreme [2] - 15:20, 28:7 surgical [1] - 74:14 surprising [1] - 54:19 surrounding [1] - 34:15 swaths [1] - 82:23 sweep [1] - 85:1 sweeping [1] - 108:14 swept [1] - 85:3 symptomatic [7] - 11:6, 117:7, 118:19, 119:1, 119:17, 120:6, 124:9 symptoms [13] - 11:9, 49:9, 51:1, 65:7, 65:13, 100:17, 117:6, 117:14, 117:18, 119:8, 119:12, 119:21, 123:16 system [4] - 26:14, 35:19, 57:14, 108:20 systemic [11] - 17:9, 21:21, 24:11, 24:12, 24:13, 24:19, 24:25, 70:16, 77:21
T
T-shirts [1] - 56:5

Document 26-5 Filed 04/03/20 Page 145 of P1a4g7ePa1g8eID #:

table [1] - 35:14 446

121:11

tables [2] - 10:18, 10:19

threshold [1] - 82:10

talks [2] - 32:1, 32:2

throughout [8] - 14:16, 15:11, 17:11,

tasked [1] - 84:2

23:14, 46:22, 61:3, 99:9, 125:10

taxed [1] - 35:2

thrown [1] - 50:2

team [1] - 3:23

Thursday [3] - 42:9, 44:3, 44:4

technical [2] - 4:19, 108:13

tiered [1] - 74:3

technically [1] - 88:16

timeframe [2] - 82:5, 82:14

techniques [1] - 62:8

timeliness [1] - 87:23

teleconferencing [1] - 3:1

timing [10] - 17:6, 20:8, 40:8, 40:24,

Telephone [1] - 2:16

41:14, 41:17, 42:24, 43:7, 45:5, 45:15

telephone [2] - 3:3, 3:4

tobacco [1] - 28:2

telephonic [1] - 24:17

today [22] - 9:23, 13:2, 14:5, 15:2,

temperature [1] - 119:14

18:15, 20:16, 21:9, 24:14, 37:6, 41:15,

temporarily [1] - 23:3 temporary [1] - 81:17 TEMPORARY [1] - 1:10

47:9, 58:23, 78:23, 83:10, 89:7, 97:20, 103:18, 106:23, 121:17, 122:12, 123:6
today's [1] - 68:25

tempting [1] - 112:1 tend [2] - 26:13, 26:15 tension [1] - 57:25 term [3] - 50:2, 93:24, 101:17 terms [29] - 7:4, 7:5, 12:5, 16:3, 16:15, 39:18, 41:2, 41:6, 41:10, 43:7, 51:10,

together [7] - 31:6, 48:4, 57:20, 58:15, 66:20, 75:7, 108:23
tomorrow [3] - 47:8, 86:3, 125:18 took [1] - 80:22 tool [5] - 12:18, 63:16, 63:18, 63:19, 63:20

51:17, 54:18, 55:6, 57:6, 60:7, 60:11,

tools [1] - 116:5

77:18, 78:19, 79:15, 80:1, 85:3, 96:16,

topic [1] - 7:6

106:10, 106:25, 112:7, 116:2, 121:2,

topics [3] - 36:25, 58:23, 59:10

122:7

Torres [1] - 96:7

terrorism [1] - 97:14

total [2] - 50:16, 118:10

test [11] - 92:7, 116:9, 116:22, 117:7,

totally [1] - 55:1

119:4, 119:21, 120:9, 120:14, 120:15,

touch [1] - 38:12

123:9

touching [1] - 92:11

tested [27] - 11:24, 14:17, 14:19, 15:4,

toward [1] - 113:24

49:9, 64:11, 106:18, 106:21, 106:22,

town [1] - 62:6

107:5, 116:12, 117:3, 117:9, 117:10,

track [1] - 87:15

117:25, 118:6, 118:10, 118:12, 118:17,

tragedy [1] - 15:21

118:19, 118:21, 119:2, 119:24, 120:6,

trajectory [1] - 27:7

121:11, 123:4, 123:8

transcript [1] - 126:3

testifying [1] - 117:15

TRANSCRIPT [1] - 1:10

testimony [1] - 35:10

Transcript [1] - 2:18

testing [9] - 106:14, 110:16, 117:17,

Transcription [1] - 2:19

119:6, 119:8, 119:17, 120:3, 120:15,

transfer [3] - 26:9, 26:10, 30:5

121:9 tests [5] - 11:25, 106:19, 116:14,
116:16, 116:18 thankfully [1] - 58:22 theirs [1] - 109:21 themselves [3] - 36:14, 51:2, 73:20 theoretically [1] - 94:4 thereafter [1] - 109:19 therefore [2] - 44:14, 122:5 they've [9] - 16:23, 89:23, 89:24,
90:13, 91:6, 106:21, 106:22, 118:8, 120:24
thinking [3] - 6:15, 22:25, 24:24 thinks [2] - 48:14, 61:7 thoughts [1] - 21:3 thousand [2] - 29:5, 29:11 thousand-degree [2] - 29:5, 29:11 threat [3] - 13:7, 33:11, 47:5

transferred [1] - 60:25 transfers [1] - 87:9 transit [1] - 26:9 transition [3] - 13:15, 15:24, 20:23 transitions [1] - 20:22 translate [1] - 34:10 transmission [3] - 31:22, 35:12, 72:18 transmitted [2] - 32:7, 32:9 treat [2] - 54:24, 92:13 treated [2] - 23:16, 115:17 triaging [1] - 116:2 tried [2] - 49:3, 51:14 trigger [1] - 41:12 triggered [1] - 105:2 TRO [28] - 6:16, 7:22, 8:24, 9:1, 9:11, 22:10, 37:24, 39:2, 39:11, 45:18, 57:18, 58:19, 71:11, 71:13, 73:13, 75:3, 78:12, 81:4, 103:16, 112:19, 112:21, 112:22,

threaten [1] - 29:22

113:2, 113:8, 113:9, 120:20, 122:18

threatened [1] - 30:5

true [8] - 71:18, 72:21, 75:13, 84:21,

threatening [2] - 27:23, 29:25

102:13, 111:17, 111:18, 113:14

three [21] - 7:24, 8:20, 10:10, 13:24,

try [6] - 55:12, 70:4, 87:11, 100:4,

14:16, 14:24, 34:14, 36:25, 50:5, 50:8,

105:15, 121:19

50:13, 50:16, 79:12, 85:16, 86:17,

trying [17] - 23:20, 39:23, 40:21, 40:24,

105:11, 116:23, 117:9, 117:25, 118:9,

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Case 1(:T2u0e-scdv-a0y15-90w-oRrPrKi-eRdL)M
45:19, 48:9, 49:23, 70:1, 71:15, 76:12, 80:15, 83:22, 86:5, 94:24, 95:18, 99:25, 113:21
Tuesday [1] - 83:19 turn [8] - 8:12, 36:23, 39:21, 40:18, 69:15, 80:25, 123:16, 125:17 turning [2] - 7:22, 80:2 turns [2] - 91:25, 113:1 twelve [1] - 33:11 twice [2] - 56:20, 61:5 two [40] - 9:11, 14:11, 20:2, 22:7, 22:15, 30:11, 30:17, 31:6, 31:11, 32:22, 36:20, 42:13, 43:24, 47:11, 53:25, 56:8, 56:15, 67:15, 70:5, 76:10, 76:11, 76:12, 79:4, 93:13, 94:7, 94:8, 94:10, 94:11, 106:19, 111:13, 113:18, 114:19, 116:13, 116:16, 118:3, 118:8, 118:23, 120:13, 122:24, 123:8 type [2] - 26:16, 96:20 types [5] - 81:15, 86:18, 96:19, 97:7, 97:8 typically [1] - 84:9
U
U.S [10] - 4:5, 4:8, 4:9, 37:1, 66:18, 83:14, 83:24, 86:7, 124:21, 125:1
U.S.C [2] - 38:9, 38:10 ultimately [6] - 40:15, 41:19, 49:6, 108:19, 108:22, 119:25 unable [1] - 87:2 unaware [3] - 65:21, 67:9, 68:22 uncertain [1] - 54:10 unclear [1] - 80:5 uncommon [1] - 87:12 unconstitutional [10] - 13:6, 20:16, 24:5, 26:24, 46:7, 46:15, 73:3, 75:4, 76:16, 78:25 under [35] - 15:1, 20:13, 20:22, 21:11, 21:12, 24:5, 26:23, 27:1, 27:14, 28:12, 28:13, 38:8, 41:21, 44:24, 56:14, 58:17, 63:20, 66:19, 70:7, 70:19, 78:4, 79:16, 82:23, 86:15, 87:10, 87:16, 88:15, 89:7, 96:13, 97:3, 106:15, 119:4, 123:25 under-counts [1] - 15:1 undercount [1] - 15:8 undergo [1] - 39:7 undergoes [1] - 93:3 underlying [2] - 38:13, 39:7 understood [2] - 53:5, 80:21 undertake [1] - 93:3 undisputed [1] - 53:13 undisputedly [1] - 53:9 unfold [1] - 74:2 unfolding [1] - 9:14 unfortunately [6] - 26:15, 33:3, 49:13, 49:20, 105:17, 107:2 unifying [1] - 19:13 Unit [4] - 10:7, 118:4, 118:5, 123:24 unit [26] - 50:3, 51:9, 54:15, 54:20, 54:23, 55:25, 58:9, 58:10, 60:11, 61:3, 64:21, 100:1, 100:2, 123:2, 123:7, 123:8, 123:11, 123:20, 124:1, 124:3, 124:5, 124:7 United States [6] - 1:1, 1:5, 1:11, 2:2,

Document 26-5 Filed 04/03/20 Page 146 of P1a4g7ePa1g9eID #:

2:7, 27:20

447

30:16, 71:4, 72:16, 80:24, 89:16, 106:3,

units [8] - 12:9, 54:17, 61:6, 64:22,

109:9, 114:21, 115:16, 121:25, 122:1,

100:3, 118:4, 118:8, 122:24

122:4

unless [3] - 32:7, 72:4, 74:20

unmet [2] - 92:3, 92:10

W

unreasonable [5] - 92:8, 92:25, 93:14,

93:22, 93:24 unreasonableness [1] - 94:13 unsafe [1] - 27:23 unsatisfactory [1] - 20:7 unusual [6] - 53:14, 86:22, 112:20,
113:16, 114:5, 114:6 up [27] - 4:20, 5:9, 6:2, 7:16, 8:14,
22:19, 30:25, 48:7, 48:23, 57:23, 61:9, 63:10, 63:14, 66:7, 67:6, 73:20, 84:14, 87:11, 107:23, 110:8, 114:20, 116:4, 118:22, 121:22, 122:22, 122:25
update [2] - 14:12, 14:17 updated [2] - 99:5, 99:6 ups [1] - 112:15 upwards [1] - 89:17 urgency [1] - 99:2 urgent [1] - 51:4 useful [1] - 51:16 utilize [1] - 69:4

wait [14] - 15:20, 16:20, 16:21, 16:23, 18:3, 28:19, 30:3, 41:1, 56:24, 57:8, 57:9, 94:10, 107:17
waited [1] - 109:20 waiting [3] - 7:17, 57:13, 82:17 waits [1] - 41:13 waive [1] - 104:21 wants [1] - 39:12 ward [1] - 54:20 warden [6] - 5:1, 99:3, 105:1, 109:5, 109:10, 109:16 WARDEN [1] - 1:7 Warden [3] - 2:4, 4:17, 52:12 warden's [1] - 61:24 wash [2] - 67:20, 68:11 washing [1] - 62:8 Washington [1] - 14:7 watching [1] - 15:9 water [1] - 74:10

V

weakness [1] - 67:23 wearing [1] - 56:4

website [1] - 107:6

vacant [1] - 74:5

Wednesday [1] - 1:7

value [1] - 24:20

week [7] - 14:23, 15:13, 43:10, 43:16,

variety [2] - 46:9, 97:12

97:2, 109:20, 120:13

various [1] - 68:8

weekend [1] - 53:24

varying [1] - 50:17

weekends [3] - 54:2, 54:10, 59:20

vast [1] - 31:5

weeks [14] - 32:22, 51:15, 56:11,

ventilation [3] - 32:12, 35:17, 35:19

56:16, 56:24, 76:12, 80:10, 82:17, 94:8,

ventilators [2] - 12:9, 53:10

94:10, 94:11, 106:3, 107:14, 107:23

venue [1] - 104:21

welcome [1] - 21:3

verify [1] - 123:21

Western [1] - 14:7

versus [2] - 60:12, 89:10

WHO [1] - 95:4

via [4] - 3:1, 3:3, 18:21, 30:13

whole [8] - 3:23, 49:19, 65:15, 70:11,

view [7] - 22:25, 42:12, 47:20, 73:8,

94:13, 98:10, 100:1, 113:1

73:9, 78:3, 81:2

wide [1] - 97:12

viewing [1] - 112:19

Wilson [2] - 3:18, 73:12

views [1] - 7:18

WILSON [4] - 1:17, 3:18, 73:12, 74:23

violated [1] - 79:15

Wilson's [1] - 76:7

violates [1] - 74:25

window [1] - 19:16

violating [3] - 74:20, 75:24, 76:4

winter [1] - 32:10

violation [20] - 23:25, 25:15, 28:8,

wire [1] - 79:9

28:17, 69:20, 70:3, 71:12, 71:16, 72:14,

wish [1] - 49:14

75:6, 75:10, 75:12, 78:6, 78:24, 80:24,

wonder [7] - 52:10, 61:11, 91:7, 92:25,

90:14, 90:16, 93:16, 100:10, 122:19

94:23, 113:7, 124:17

violations [2] - 37:10, 73:10

wondering [27] - 3:7, 5:5, 19:4, 20:1,

violence [1] - 79:4

20:3, 20:4, 21:13, 22:17, 22:25, 23:11,

virtue [1] - 24:24

34:1, 40:7, 41:20, 53:13, 53:20, 59:23,

virus [7] - 11:7, 12:7, 31:15, 32:6,

61:19, 81:16, 84:8, 84:12, 86:20, 89:12,

32:8, 52:25, 100:17

91:9, 92:6, 93:13, 99:20, 112:25

visit [1] - 51:6

words [2] - 63:21, 118:7

voices [1] - 6:7

workers [2] - 10:12, 35:6

voluntarily [2] - 42:11, 105:24

workload [1] - 87:1

von [7] - 2:9, 10:21, 25:11, 25:22,

works [6] - 8:21, 62:13, 62:17, 64:23,

105:13, 110:3, 118:14

78:3, 86:15

VON [4] - 25:22, 104:13, 104:19, 109:4

world [5] - 53:15, 71:23, 95:10,

Vulcan Society [1] - 86:25

101:23, 117:1

vulnerability [1] - 115:11

worlds [1] - 36:20

vulnerable [15] - 11:4, 13:23, 25:3,

worried [2] - 35:4, 80:19

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Case(1w:o2r0r-ycv--01§55930(-aR)P(K1-)R(LcM)
worry [3] - 14:2, 14:8, 103:2 worse [1] - 82:10 wrapping [1] - 114:20 writ [1] - 44:7 written [1] - 5:21

Document 26-5 Filed 04/03/20 448

Page 147 of 1P4a7gPeag2e0ID #:

Y

years [3] - 79:7, 79:12, 82:16 yesterday [8] - 10:16, 11:6, 15:2, 18:24, 30:17, 37:5, 51:19, 61:25 YORK [2] - 1:1, 2:3 York [9] - 1:5, 1:16, 1:21, 2:5, 2:9, 46:22, 111:11 yourself [2] - 6:2, 6:4 yourselves [1] - 3:15
§

§2241 [3] - 26:23, 28:12, 102:25 §53 [1] - 86:16 §53(2 [1] - 87:16 §53(a)(1)(c [1] - 87:18

Anthony D. Frisolone, FAPR, RDR, CRR, CRI, CSR Official Court Reporter

Case 1:20-cv-01590-RPK-RLM Document 26-6 Filed 04/03/20 Page 1 of 4 PageID #: 449
Exhibit E

Case 1:20-cv-01590-RPK-RLM Document 26-6 Filed 04/03/20 Page 2 of 4 PageID #: 450

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; and JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 01590
DECLARATION OF ROBERT L. COHEN, M.D.

I, Robert L. Cohen, M.D., declare under penalty of perjury and pursuant to 28 U.S.C. § 1746:
1. I am a board-certified medical doctor in the field of internal medicine and an expert in the field of Correctional Medicine. I have 35 years of and expert in the field of Correctional Medicine. My Curriculum Vitae is attached to this Report. I have served as a federal and state courtappointed monitor in cases regarding the provision of medical care in prisons and jails in Washington, D.C., Philadelphia, Michigan, New York, Ohio, Connecticut, and Florida. I served as a member of the Board of the National Commission on Correctional Health Care for seventeen years, representing the American Public Health Association. I have served as an appointed member of the New York City Board of Corrections since 2009. The Board of Correction is a nine-member independent board which oversees the New York City Department of Correction and has rule making authority. As Director of the Montefiore Medical Center for Rikers Island Health Services, I supervised and was responsible for the provision of medical and mental health services for more

Case 1:20-cv-01590-RPK-RLM Document 26-6 Filed 04/03/20 Page 3 of 4 PageID #: 451
than 13,000 prisoners in the New York City jails, and oversaw a medical staff of approximately 500 physicians, mid-level practitioners, registered nurses, licensed practical nurses, psychiatrists, psychologists, social workers, pharmacists, laboratory technicians, administrative and clerical staff. I have published extensively on health care in corrections settings. 2. I served as the Vice President for Medical Operations of the New York City Health and Hospitals Corporation, reporting directly to the President with responsibility for clinical services, including nursing, physician care, ambulatory care, and quality assurance for New York City’s eleven hospital public health care system. I served as Director of the AIDS Center of St. Vincent’s Hospital, located in Greenwich Village, New York. 3. I retired from the clinical practice of Medicine in November 2016. I maintain by NYS License and Internal Medicine Board Certification. 4. All of my opinions expressed herein are opinions to a reasonable degree of medical certainty. 5. I submit this declaration in support of Petitioners’ request for a Temporary Restraining Order in the above-captioned case. 6. In my capacity as member of the New York City Board of Correction, I have been in regular contact with the City of New York and the New York City Department of Correction (“DOC”) regarding its response to COVID-19 pandemic. 7. Based on information provided to me in my capacity as member of the New York City Board of Correction, it is my understanding that CHS (Correctional Health Services, a division of NYC Health and Hospitals is testing all symptomatic people in DOC custody. 8. Persons with COVID-19 positive test results are cohorted together. Symptomatic persons awaiting the results of their COVID-19 results are also placed in a cohort.
2

Case 1:20-cv-01590-RPK-RLM Document 26-6 Filed 04/03/20 Page 4 of 4 PageID #: 452
9. In addition, it is my understanding that CHS also tests some asymptomatic people who have been exposed to a person with a confirmed positive COVID-19 test result. I have not been informed of what criteria CHS is using to determine which asymptomatic people to test. 10. In my opinion, testing symptomatic people and asymptomatic people who have been exposed to people who have a confirmed positive COVID-19 test result is necessary to ensure the health and safety of incarcerated people, because unlike nonincarcerated people, one cannot selfquarantine while incarcerated.

Executed on: April 3, 2020 New York, New York

/s/ Robert C. Cohen, M.D.

3

 
 Case 1:20-cv-01590-RPK Document 12 Filed 03/30/20 Page 1 of 3 PageID #: 103

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; and JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 1590

[PROPOSED] TEMPORARY RESTRAINING ORDER Upon reading the Memorandum of Law in Support of Petitioners’ Motion for a Temporary Restraining Order, dated March 30, 2020, the Declaration of Katherine Rosenfeld, dated March 30, 2020, with attached exhibits, the Supplemental Declaration of Deirdre von Dornum, dated March 30, 2020, and all pleadings and proceedings relevant to this action; and The Court having ordered that Respondent Warden Derek Edge show cause before this Court in Room ______ at 225 Cadman Plaza East, Brooklyn, NY 11201, on ____________, 2020 at ______ ___.m., why an order should not be issued:
(a) Ordering immediate release of individuals confined at the Metropolitan Detention Center (“MDC”), with appropriate precautionary public health measures, including Petitioner Chunn (scheduled to be released on 4/18/2020); Petitioner McBride (scheduled to be released on 4/16/2020); Petitioner Rabadi (scheduled to be released on 7/19/2020); Petitioner

1

Case 1:20-cv-01590-RPK Document 12 Filed 03/30/20 Page 2 of 3 PageID #: 104
Rodriguez (scheduled to be released on 6/9/2020); and all others confined at the MDC who Respondent has identified as medically vulnerable due to underlying health conditions or age (“Vulnerable Persons”)—and therefore at higher risk of developing serious COVID-19 illness; (b) Ordering Respondent to mitigate the serious risk of illness, death, and harm from COVID-19 to those who remain confined at the MDC; (c) Certifying this Petition as a Class Action; (d) Appointing a Special Master on an emergency basis to evaluate Vulnerable Persons for release and make recommendations for ameliorative action for other persons confined at the MDC; and (e) Ordering such other and further relief as this Court deems just, proper, and equitable; it is hereby: ORDERED that, pending the hearing and determination of Petitioners’ Class Action Petition Seeking Writ of Habeas Corpus Under 28 U.S.C. § 2241: (a) Respondent shall immediately release Petitioner Chunn (scheduled to be released on 4/18/2020); Petitioner McBride (scheduled to be released on 4/16/2020); Petitioner Rabadi (scheduled to be released on 7/19/2020); and Petitioner Rodriguez (scheduled to be released on 6/9/2020); and (b) _______________________is appointed as a Special Master on an emergency basis to chair a Coronavirus Release and Mitigation Committee, which shall include a correctional health expert, in order to (i) evaluate all Vulnerable Persons currently incarcerated at the MDC for
2

Case 1:20-cv-01590-RPK Document 12 Filed 03/30/20 Page 3 of 3 PageID #: 105
release, and (ii) make recommendations for ameliorative action for other persons held at the MDC; and it is FURTHER ORDERED that no bond is required under Federal Rule of Civil Procedure 65(c); and it is FURTHER ORDERED that, in light of the COVID-19 pandemic and Respondent’s counsel having consented to electronic service, service of this Order and the papers upon which it is based be made on Respondent on or before the ______th day of _______ 2020 (a) to Richard P. Donoghue, United States Attorney for the Eastern District of New York, 271 Cadman Plaza East, Brooklyn NY 11201, by electronic mail to Richard.Donoghue@usdoj.gov; and (b) to the Deputy Chief of the Civil Division of the United States Attorney’s Office for the Eastern District of New York, Seth D. Eichenholtz, by electronic mail to Seth.Eichenholtz@usdoj.gov (Counsel of Record for the Federal Bureau of Prisons in the currently pending Federal Defenders of New York, Inc. v. Federal Bureau of Prisons et al., 1:19-cv-00660-MKB-SMG (E.D.N.Y.)); and that said service be deemed sufficient; and it is
SO ORDERED:
____________________ U.S.D.J.
3

Case 1:20-cv-01590-RPK Document 12-1 Filed 03/30/20 Page 1 of 31 PageID #: 106

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; and JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 1590

MEMORANDUM OF LAW IN SUPPORT OF PETITIONERS’ MOTION FOR A TEMPORARY RESTRAINING ORDER

Emery Celli Brinckerhoff & Abady LLP 600 Fifth Avenue, 10th Floor New York, New York 10020 (212) 763-5000
Cardozo Civil Rights Clinic Benjamin N. Cardozo School of Law
55 Fifth Avenue, 11th Floor New York, NY 1003 (212) 790-0871
Alexander A. Reinert 55 Fifth Avenue, Room 1005
New York, NY 1003 (212) 790-0403

Case 1:20-cv-01590-RPK Document 12-1 Filed 03/30/20 Page 2 of 31 PageID #: 107

TABLE OF CONTENTS

PAGE NO.

TABLE OF AUTHORITIES ....................................................................................................... ii-v

INTRODUCTION ...........................................................................................................................1

FACTUAL BACKGROUND ..........................................................................................................3

A. The COVID-19 Crisis in the United States..................................................3

B. COVID-19 Poses Significant Dangers for Incarcerated People and Correctional Staff.........................................................................................5

C. Respondent Is Disregarding Known Risks by Failing to Take Proper Precautions to Protect Vulnerable People....................................................9

D. MDC is Not Prepared to Treat to Individuals Who Contract COVID-19..................................................................................................12

E. Petitioners Are Particularly Vulnerable .....................................................13

ARGUMENT .................................................................................................................................16

I. PETITIONERS FACE IRREPARABLE HARM IF THEY REMAIN CONFINED AT THE MDC……………………………………………………..17

II. PETITIONERS HAVE A SUBSTANTIAL LIKELIHOOD OF SUCCEEDING ON THE MERITS .......................................................................19

III. THE COURT HAS THE AUTHORITY TO ORDER PETITIONERS’ RELEASE; THE BALANCE OF EQUITIES TIPS IN PETITIONERS’ FAVOR; AND RELEASE WOULD SERVE THE PUBLIC INTEREST ...........22

CONCLUSION ..............................................................................................................................24

i

Case 1:20-cv-01590-RPK Document 12-1 Filed 03/30/20 Page 3 of 31 PageID #: 108
TABLE OF AUTHORITIES
Cases
Abdi v. Duke, 280 F. Supp. 3d 373 (W.D.N.Y. 2017) ............................................................................. 23
AIM Int’l Trading LLC v. Valcucine SpA., 188 F. Supp. 2d 384 (S.D.N.Y. 2002).............................................................................. 17
Andino v. Fischer, 555 F. Supp. 2d 418 (S.D.N.Y. 2008)............................................................................... 16
Arana v. Barr et al., 19 Civ. 7924 (PGG)(DCF) (S.D.N.Y. Mar. 27, 2020) ....................................................... 7
Basank et al. v. Decker et al., 20 Civ. 2518 (AT) (S.D.N.Y. Mar. 26, 2020)..................................................................... 7
Basank v. Decker, No. 20 Civ. 2518, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020) .............................. 18, 23
Bell v. Wolfish, 441 U.S. 520 (1979).......................................................................................................... 19
Brown v. Plata, 563 U.S. 493 (2011).......................................................................................................... 19
Castillo et al. v. Barr, 20 Civ. 605 (C.D. Cal. Mar. 27, 2020) ............................................................................... 8
Castillo v. Barr, No. 20 Civ. 605 (Mar. 27, 2020)....................................................................................... 18
Charles v. Orange Cty., 925 F.3d 73 (2d Cir. 2019)................................................................................................ 19
Conn. Dep’t of Envtl. Prot. v. OSHA, 356 F.3d 226 (2d Cir. 2004).............................................................................................. 18
Coronel v. Decker, No. 20-CV-2472, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020) ..................................... 18
Coronel, et al., v. Decker et al., 20 Civ. 2472 (AJN) (S.D.N.Y. Mar. 27, 2020)................................................................... 7
Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017) ............................................................................................ 23
ii

Case 1:20-cv-01590-RPK Document 12-1 Filed 03/30/20 Page 4 of 31 PageID #: 109
Estelle v. Gamble, 429 U.S. 97 (1976)...................................................................................................... 19, 22
Farmer v. Brennan, 511 U.S. 825 (1994).......................................................................................................... 19
Fed. Defs. of New York, Inc. v. Fed. Bureau of Prisons, No. 19-1778, __ F.3d __, 2020 WL 1320886 (2d Cir. Mar. 20, 2020) ............................ 20
Flores et al. v. Barr et al., 85 Civ. 4544 (C.D. Cal. Mar. 28, 2020) ............................................................................. 8
Harris v. Bd. of Supervisors, Los Angeles Cty., 366 F.3d 754 (9th Cir. 2004) ............................................................................................ 18
Helling v. McKinney, 509 U.S. 25 (1993).......................................................................................... 17, 19, 20, 21
Hutto v. Finney, 437 U.S. 678 (1978).......................................................................................................... 21
In Re Extradition of Alejandro Toledo Manrique, 19 Mj. 7105 (N.D. Cal. Mar. 19, 2020) .............................................................................. 9
In re Request to Commute or Suspend County Jail Sentences, Dkt. No. 084230 (N.J. Mar. 22, 2020) ................................................................................ 9
Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997)................................................................................................ 17
Jimenez v. Cronen, et al., 18 Civ. 10225 (D. Mass. Mar. 26, 2020) ............................................................................ 9
Johnson v. Connolly, 378 F. App’x 107 (2d Cir. 2010) ...................................................................................... 18
Johnson v. Miles, 355 F. App’x 444 (2d Cir. 2009) ...................................................................................... 18
Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996).......................................................................................... 18, 20
JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75 (2d Cir. 1990)................................................................................................ 17
L.V.M. v. Lloyd, 318 F. Supp. 3d 601 (S.D.N.Y. 2018)............................................................................... 23
iii

Case 1:20-cv-01590-RPK Document 12-1 Filed 03/30/20 Page 5 of 31 PageID #: 110
Litwin v. OceanFreight, Inc., 865 F. Supp. 2d 385 (S.D.N.Y. 2011)............................................................................... 16
New York Civil Liberties Union v. New York City Transit Auth., 684 F.3d 286 (2d Cir. 2012).............................................................................................. 16
People ex rel. Stoughton on behalf of Hogan et al. v. Brann, (Sup. Ct. N.Y. Cty. Mar. 27, 2020)..................................................................................... 8
People ex rel. Stoughton on behalf of Little et al. v. Brann, Index No. 260154/2020 (Sup. Ct. Bronx Cty. Mar. 25, 2020) ........................................... 8
Phelps v. Kapnolas, 308 F.3d 180 (2d Cir. 2002).............................................................................................. 20
Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904 (2d Cir.1990)............................................................................................... 17
Roba v. United States, 604 F.2d 215 (2d Cir. 1979).............................................................................................. 22
Stagliano v. Herkimer Cent. Sch. Dist., 151 F. Supp. 3d 264 (N.D.N.Y. 2015) .............................................................................. 18
Thompson v. Choinski, 525 F.3d 205 (2d Cir. 2008).............................................................................................. 22
U.S.A. v. Barkman, 19 Cr. 52 (D. Nev. Mar. 17, 2020)...................................................................................... 9
Umana Jovel v. Decker et al., 20 Civ. 308 (GBD)(SN) (S.D.N.Y. Mar. 26, 2020)............................................................ 7
United States v. Garlock, No. 18 Cr. 00418, 2020 WL 1439980 (N.D. Cal. Mar. 25, 2020)...................................... 8
United States v. Little, No. 20 Cr. 57, 2020 WL 1439979 (S.D.N.Y. Mar. 24, 2020) .......................................... 20
United States v. Matthaei, 19 Civ. 243 (D. Idaho Mar. 16, 2020) ................................................................................ 9
United States v. Stephens, 15 Cr. 95 (AJN), 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020) ........................................ 7
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)............................................................................................................. 16
iv

Case 1:20-cv-01590-RPK Document 12-1 Filed 03/30/20 Page 6 of 31 PageID #: 111 Xochihua-Jaimes v. Barr,
No. 18-71460 (9th Cir. Mar. 24, 2020)............................................................................... 8 Zhang v. Barr et al.,
20 Civ. 331 (C.D. Cal. Mar. 27, 2020) ............................................................................... 8
v

Case 1:20-cv-01590-RPK Document 12-1 Filed 03/30/20 Page 7 of 31 PageID #: 112
INTRODUCTION
Petitioners Hassan Chunn, Nehemiah McBride, Ayman Rabadi, and Justin Rodriguez
(“Petitioners”), on behalf of themselves and others similarly situated, respectfully move this
Court under Federal Rule of Civil Procedure 65 for a temporary restraining order (“TRO”):
(a) directing that Petitioners be immediately released from detention at the Metropolitan Detention Center (“MDC”) in Brooklyn, New York and returned to their homes under such conditions as the Court deems appropriate, and
(b) appointing a Special Master on an emergency basis to chair a Coronavirus Release and Mitigation Committee, which shall include a correctional health expert, in order to (i) evaluate all persons currently incarcerated at the MDC who Respondent has identified as vulnerable to developing serious COVID-19 illness (“Vulnerable Persons”) for release, and (ii) make recommendations for ameliorative action for other persons held at the MDC.
Release is necessary to protect Petitioners, who are particularly vulnerable to contracting
and suffering dire consequences from COVID-19. Respondent Warden Derek Edge has not
taken steps to protect Petitioners from the substantial risk of harm posed by COVID-19, nor
could he under the MDC’s current conditions. Every hour that Petitioners are held under these
circumstances, they are exposed to the substantial risk of a COVID-19 infection, with a
substantial risk of death to follow. Continuing to hold Petitioners under these circumstances
patently violates their Eighth Amendment rights.
As one of the Petitioners grimly reported:
Things are very bad here. We don’t have any gloves, masks or any personal protective equipment. Also, we can't social distance from each other. There are approximately 90 people in a small area because this is considered a “camp" status floor… They came up here and told us that there were 2 officers and 1 inmate that are infected. We found out there are many more inmates and probably guards with the virus. One of our friends we maybe think he got the virus. He walks around with a mask and he has a deep cough and we are freaking out and are not doing well mentally. They tell us to wash our hands but they don't have any hand sanitizer and
1

Case 1:20-cv-01590-RPK Document 12-1 Filed 03/30/20 Page 8 of 31 PageID #: 113
they tell us to use soap, but we don't have soap because they don't have any. We tried to buy soap from commissary, but commissary is out for 3 weeks. We are in big trouble here. Not just me, but everyone in here is freaking out because we cannot get any information or anyone to listen to us . . . Please help me before I die. I want to be with my family where I am safe. Declaration of Katherine Rosenfeld (“Rosenfeld Decl.”) ¶ 28. New York City is the current epicenter of the COVID-19 pandemic, and the measures necessary to mitigate spread of the disease—most notably, social distancing—cannot be implemented in its prisons and jails. Indeed, already there are signs that the disease is spreading even faster in New York City jails than it has spread among the population at liberty;1 there is every expectation that the MDC is just as vulnerable to rapid spread of the disease. Social distancing is not a realistic possibility in the confines of the MDC, medical equipment and personnel are insufficient to ensure that the disease is contained, and the MDC lacks critical resources necessary to treat Petitioners if they contract the disease. For Petitioners, this state of affairs is particularly treacherous, making release the only appropriate remedy. Because of their age and/or underlying medical conditions, Petitioners face a substantial risk of serious illness and death if they contract COVID-19. The risk to their health and well-being increases every moment they are held within the close confines of the MDC, with no ability to protect themselves and no assurance that Respondent and his staff are taking adequate steps to mitigate the substantial and ever-present risk of harm. At the state and local levels, corrections officials, medical experts, and our political leaders, among others, have concluded the same. Petitioners’ lives lie in the balance—release is the only means to preserve the status quo.
1 COVID-19 Infection Tracking in NYC Jails, The Legal Aid Society, https://legalaidnyc.org/covid-19-infectiontracking-in-nyc-jails/ (last accessed Mar. 29, 2020).
2

Case 1:20-cv-01590-RPK Document 12-1 Filed 03/30/20 Page 9 of 31 PageID #: 114
For the rest of the MDC population—the putative class—a Special Master should be appointed immediately to ensure that appropriate measures are taken to protect everyone who is being detained, particularly the 537 Vulnerable Persons that Respondent has already identified. Like Petitioners, the Vulnerable Persons are at extreme risk of serious illness and death if they contract COVID-19. The Court should therefore direct the Special Master to apply a presumption in favor of releasing all Vulnerable Persons, under terms and conditions the Court deems appropriate, unless Respondent can make a particularized showing to rebut the presumption.
In light of the grave and irreparable harm facing Petitioners and all those detained at MDC, Petitioners’ substantial likelihood of success on the merits of this Petition, the clear balance of equities in their favor, and the public interest in mitigating the harm from an inevitable COVID-19 outbreak in the MDC, Petitioners respectfully request that the Court issue a temporary restraining order mandating Petitioners’ immediate release to their homes under such other conditions as the Court deems appropriate and immediately appointing a Special Master to chair a Coronavirus Release and Mitigation Committee.
FACTUAL BACKGROUND A. The COVID-19 Crisis in the United States The novel coronavirus that causes COVID-19 has led to a global pandemic. As of March 30, 2020, COVID-19 has infected more than 737,000 people worldwide and more than 143,000 people in the United States.2 New York City has reported more than 33,000 cases,3 with more than 775 deaths,4 although the number of infections is drastically understated. The number of
2 https://coronavirus.jhu.edu/map.html (last visited Mar. 30, 2020 9:05AM). 3 Id. 4 Id.
3

Case 1:20-cv-01590-RPK Document 12-1 Filed 03/30/20 Page 10 of 31 PageID #: 115
COVID-19 cases in the United States is expected to grow exponentially. Pet. ¶ 18.5 Projections by the Centers for Disease Control and Prevention (“CDC”) indicate that over 200 million people in the United States could be infected with COVID-19 over the course of the epidemic without effective public health intervention, with as many as 1.5 million deaths in the most severe projections. Id.6
Certain populations—those over the age of 50 and those with specific underlying medical conditions—are particularly vulnerable to serious illness and death from COVID-19. Id. ¶¶ 2021 (citing Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), https://www.who.int/docs/defaultsource/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf.) People aged 60-69 have a mortality rate 18 times higher than people under the age of 40; the rate is 40 times higher for people aged 70-79 years old. Id. ¶ 20. The mortality rate for people of any age with cardiovascular disease, diabetes, hypertension, chronic respiratory disease, and cancer, is significantly elevated as well. Id. ¶ 21. Even if the COVID-19 infection is not fatal, it will often require highly specialized care for people over the age of 50 and will result in longstanding medical complications. Id. ¶¶ 22, 27. Serious complications can develop rapidly, as little as five days after the first symptoms first appear. Id. ¶ 24. Compared to influenza, COVID-19 is much more deadly, with a fatality rate of 15 percent in the highest risk populations. Id. ¶ 26.
5 Citations to “Pet.” refer to the Petition that was filed on March 27, 2020. 6 See also Chas Danner, CDC’s Worst-Case Coronavirus Model: 214 Million Infected, 1.7 Million Dead, N.Y. Mag. (Mar. 13, 2020), https://nymag.com/intelligencer/2020/03/cdcs-worst-case-coronavirus-model-210m-infected-1-7mdead.html.
4

Case 1:20-cv-01590-RPK Document 12-1 Filed 03/30/20 Page 11 of 31 PageID #: 116
B. COVID-19 Poses Significant Dangers for Incarcerated People and Correctional Staff
New York has been in a state of emergency since March 7, 2020, to more effectively contain the spread of COVID-19, deploying the National Guard among other strategies.7 In New York, people must remain in their homes to the greatest extent possible, not gather in groups of any size, and remain six feet away from others at all times.8 The CDC and World Health Organization have agreed that “social distancing” and rigorous hygiene practices, including washing hands with soap and water, are critical to stop the spread of COVID-19. Id. ¶ 28.
It is virtually impossible to take these necessary measures in prisons and jails. Id. ¶ 31. In correctional settings, the risk of contracting an infectious disease, like COVID-19, is significantly increased due to the high numbers of people with chronic, often untreated, illnesses housed in a setting with minimal levels of sanitation, limited access to personal hygiene, limited access to medical care, and no possibility of staying at a distance from others. Pet. Ex. 2 (Declaration of Jonathan Giftos, MD, dated March 27, 2020 (“Giftos Decl.”)) ¶ 11; see also Rosenfeld Decl. Ex. 9 (Declaration of Jaimie Meyer, M.D.) ¶ 7. It is thus no surprise that flu outbreaks occur regularly in jails and prisons and that during past epidemics, such as with H1N1 in 2009, many jails and prisons dealt with high numbers of cases. Giftos Decl. ¶ 12. On Saturday, March 28, 2020, the inevitable occurred: a person incarcerated in a federal prison died
7 Eileen AJ Connelly & Laura Italiano, Cuomo Declares State of Emergency in New York as State Coronavirus Cases Soar to 89, N.Y. Post (Mar. 7, 2020), https://nypost.com/2020/03/07/cuomo-declares-state-of-emergency-asnew-york-state-coronavirus-cases-soar-to-76/; NJ Announces 1st COVID-19 Death; NY Deploys National Guard to New Rochelle, NBC New York (Mar. 11, 2020), https://www.nbcnewyork.com/news/local/nyc-adds-5-new-covid19-cases-tri-state-total-more-than-triples-in-days/2319688/. 8 Cuomo Bans Gatherings, Nonessential Workers to Stay Home, N.Y. Times (Mar. 20, 2020), https://www.nytimes.com/aponline/2020/03/20/us/ap-us-virus-outbreak-new-york-2nd-ld-writethru.html; Berkely Lovelace, Jr., Coronavirus: NY, NJ, CT Coordinate Restrictions on Restaurants, Limit Events to Fewer than 50 People, CNBC (Mar. 16, 2020), https://www.cnbc.com/2020/03/16/new-york-new-jersey-and-connecticut-agree-toclose-restaurants-limit-events-to-less-than-50-people.html.
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from COVID-19.9 The Louisiana prison in which he had been held is now seeing an explosion of coronavirus cases that is crippling the facility, with 30 incarcerated people having tested positive and 60 more in quarantine.10
For this reason, correctional public health experts have responded to the COVID-19 pandemic by recommending the release from custody of people most vulnerable to COVID-19. Pet. ¶¶ 36; 43-44. Release protects these people, mitigates the risk of infection for all people held and working in a correctional setting, and lessens the burden on the region’s health care infrastructure by reducing the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time. Id. ¶ 36. On March 23, 2020, a bipartisan group of U.S. Senators urged BOP to release to home confinement certain individuals who were elderly, ill, or incarcerated for non-violent offenses and are near release. Id. ¶ 39. Attorney General William Barr has specifically given the BOP instruction to grant home confinement to vulnerable populations held in federal custody. Id. ¶ 40.
Recognizing the Emergency, state and local jurisdictions across the country, including New York State, New York City, Los Angeles, and Chicago, have taken steps to protect people in custody from the impending spread of COVID-19 by releasing people in an effort to reduce populations. Id. ¶¶ 42-43, 48, 50. As Dr. Robert Cohen, a member of New York City’s Board of Correction, said, “The most important thing we can do right now is discharge all of the people who are old and have serious medical issues—those people are likely to die from a coronavirus infection.” Id. ¶ 43. At the same time, COVID-19 is spreading rapidly within incarcerated
9 Sadie Gurman, First Federal Inmate Dies of COVID-19, Deepening Fear of Coronavirus Spread in Prisons (Mar. 29, 2020), https://www.wsj.com/articles/first-federal-inmate-dies-of-covid-19-deepening-fear-of-coronavirusspread-in-prisons-11585456750. 10 https://www.washingtonpost.com/national/an-explosion-of-coronavirus-cases-cripples-a-federal-prison-inlouisiana/2020/03/29/75a465c0-71d5-11ea-85cb-8670579b863d_story.html
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populations in New York City. Giftos Decl. ¶ 14. People who work in the criminal justice system also have tested positive, increasing the likelihood of exposure to and by incarcerated people. Pet. ¶ 47. And United Nations High Commissioner for Human Rights Michelle Bachelet stated that governments must quickly reduce the number of people in detention, encouraging them to examine ways to release those particularly vulnerable to Covid-19.11
Reflecting this reality, over the last several days, judges in this circuit and across the country have granted habeas petitions and ordered the release of persons who are incarcerated or being detained. See Coronel, et al., v. Decker et al., 20 Civ. 2472 (AJN) (S.D.N.Y. Mar. 27, 2020) (granting release of four petitioners with medical conditions that render them particularly vulnerable to severe illness or death if infected by COVID-19 from immigration detention); Arana v. Barr et al., 19 Civ. 7924 (PGG)(DCF) (S.D.N.Y. Mar. 27, 2020) (recommending “that, due to extraordinary circumstances brought about by the COVID-19 outbreak, which has apparently reached the jail where Petitioner is being detained, and by which he may be particularly seriously impacted as a result of underlying medical conditions, Petitioner be ordered released from [immigration] custody pending his bond hearing”); Basank et al. v. Decker et al., 20 Civ. 2518 (AT) (S.D.N.Y. Mar. 26, 2020) (granting release of ten petitioners who “suffer[] from chronic medical conditions, and face[] an imminent risk of death or serious injury in immigration detention if exposed to COVID-19” from immigration detention); United States v. Stephens, 15 Cr. 95 (AJN), 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020) (granting motion for reconsideration of defendant’s bail conditions and releasing him from jail to home confinement, recognizing that incarcerated people may be at a heightened risk of contracting COVID-19); Umana Jovel v. Decker et al., 20 Civ. 308 (GBD)(SN) (S.D.N.Y. Mar. 26, 2020) (granting
11 https://news.un.org/en/story/2020/03/1060252.
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emergency request for release of petitioner from immigration detention in light of the COVID-19 crisis); People ex rel. Stoughton on behalf of Little et al. v. Brann, Index No. 260154/2020 (Sup. Ct. Bronx Cty. Mar. 25, 2020) (releasing 106 individuals held at Rikers Island jail on parole violations who are particularly vulnerable to illness or death if infected by COVID-19); People ex rel. Stoughton on behalf of Hogan et al. v. Brann, (Sup. Ct. N.Y. Cty. Mar. 27, 2020) (releasing 16 individuals held at Rikers Island jail on pre-trial detention who were particularly vulnerable to illness or death due to COVID-19); Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir. Mar. 24, 2020) (ordering, sua sponte, that petitioner be immediately released from immigration detention “[i]n light of the rapidly escalating public health crisis” related to COVID-19); Flores et al. v. Barr et al., 85 Civ. 4544 (C.D. Cal. Mar. 28, 2020) (granting a Temporary Restraining Order application requiring the Office of Refugee Resettlement and United States Immigrations and Customs Enforcement to immediately put in place measures to reduce the risk of COVID-19 infection for unaccompanied minors in their custody and ordering the defendants to show cause why an order should not issue requiring defendants to immediately release class members); Zhang v. Barr et al., 20 Civ. 331 (C.D. Cal. Mar. 27, 2020) (granting Petitioner an immediate bond hearing in light of the “global pandemic by which delay in determining Petitioner’s release exposes him to unnecessary risk”); United States v. Garlock, No. 18 Cr. 00418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (ordering, sua sponte, extension of convicted defendant’s surrender date and noting “[b]y now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided”); Castillo et al. v. Barr, 20 Civ. 605 (C.D. Cal. Mar. 27, 2020) (ordering petitioners be released from immigration detention in light of COVID-19 and noting “the risk of infection in immigration detention facilities – and jails – is particularly high”); In Re Extradition
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of Alejandro Toledo Manrique, 19 Mj. 7105 (N.D. Cal. Mar. 19, 2020) (granting motion for release on bail of 74-year old subject of extradition request due to risks associated with remaining in custody during COVID-19 pandemic); U.S.A. v. Barkman, 19 Cr. 52 (D. Nev. Mar. 17, 2020) (suspending requirement that defendant report to prison to serve intermittent confinement due to risks associated with COVID-19); United States v. Matthaei, 19 Civ. 243 (D. Idaho Mar. 16, 2020) (granting convicted defendant additional time to self-surrender to prison in light of defendant’s health problems, which place him at greater risk of complications of COVID-19); Jimenez v. Cronen, et al., 18 Civ. 10225 (D. Mass. Mar. 26, 2020) (ordering release of petitioner from immigration detention due to COVID-19 concerns); In re Request to Commute or Suspend County Jail Sentences, Dkt. No. 084230 (N.J. Mar. 22, 2020) (ordering, based on the dangers posed by COVID-19, release of any person in New Jersey serving a county jail sentence as a condition of probation or as a result of a municipal court conviction).
C. Respondent Is Disregarding Known Risks by Failing to Take Proper Precautions to Protect Vulnerable People
Like every other correctional setting, MDC is not well-situated to mitigate the risks of COVID-19 spread. Necessary social distancing is impossible; toilets, sinks, and showers are shared without disinfection between each use; communal food preparation and service leaves little opportunity for surface disinfection; and staff arrive and leave without proper screening for new infection. Pet. ¶ 52. Since March 4, 2020, the Federal Defenders has engaged in extensive efforts to get Respondent to address the risks associated with the spread of COVID-19 at the MDC, to little avail. Pet. Ex. 1 (Declaration of Deirdre D. von Dornum, dated March 27, 2020 (“von Dornum Decl.”)) ¶¶ 3-7, 9-11, 20, 21, 23. The Federal Defenders asked that the MDC take specific measures to reduce the spread of infection, id. ¶ 4, but the MDC’s response was woefully inadequate.
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As of March 11, 2020, the MDC did not anticipate having a testing protocol for COVID19; it had no policy to address staff who presented with COVID-19 risk factors; it would not permit the use of hand sanitizer by people held at the MDC or by staff who worked there; it maintained that increased cleaning in the facility would be handled by incarcerated people; it had no plan for where the MDC would place people who tested positive for the virus; and it had no plans to move particularly vulnerable people housed at the MDC. Id. ¶ 6.
Unfortunately, there is no evidence that Respondent has taken any additional steps since March 11, even as the pandemic has spread. In conversations with the Federal Defenders, people held at the MDC have observed no changes in sanitation practices—only some units have received bars of soap—and have not been given relevant education about the symptoms of COVID-19 or how to mitigate its spread. Id. ¶ 9. Doctors have not even been present to evaluate people in the housing units. Id. ¶ 9(d). Staff are given temperature checks when they enter the MDC, but they are not wearing gloves, masks, or any other protective gear while on duty. Id. ¶ 9(e).
Even if Respondent were devoted to responding to the COVID-19 threat, the MDC lacks sufficient resources to protect Petitioners and similarly situated people. Almost one-third of the 1,700 people held at the MDC have been identified by Respondent as falling into categories identified by the CDC as particularly vulnerable to the virus. Id. ¶ 11(a). New arrivals to the MDC are screened only for fever and recent travel to designated hotspots, and staff are screened only for fever (they are sent home if their temperature exceeds 100.4 degrees Fahrenheit). Id. ¶ 11(e).
Respondent has failed to take protective measures even in the face of known infections at the MDC. A little over one week ago, on March 21, 2020, the Federal Defenders learned that an
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individual incarcerated at the MDC had tested positive for COVID-19. Id. ¶ 12. This person had been in contact with many others, both staff and incarcerated people, with the latter subsequently transferred throughout the facility. Id. According to one person confined at the MDC, others who were housed with the person who tested positive are now showing symptoms. Pet. ¶ 66. No professional or staff cleaners sanitized the intake unit where the person who tested positive had been housed. von Dornum Decl. ¶¶ 12-13. Instead, incarcerated people on the adjacent unit were sent to clean the intake unit with the same cleaning supplies they regularly use and were provided insufficient gloves and masks. Id. ¶ 13(f). To “clean” their own cells, people are provided only with diluted hand soap. Pet. ¶ 69.
At least four MDC staff members have tested positive for COVID-19 and others are symptomatic. Id. ¶ 72. Nonetheless, Respondent continues to implement hazardous practices, including: forcing women housed at the MDC to wash the clothing of incarcerated people, including clothing from the unit where an incarcerated person tested positive, von Dornum Decl. ¶ 16(a); failing to clean phones and computers, id. ¶ 16(c); directing people to line up shoulder to shoulder during meals, where people eat in large groups, id. ¶ 16(d); Pet. ¶ 73(i); housing people in small two-person cells or in large dormitory units, all with shared sinks and toilets and in spaces where it is impossible to maintain necessary social distance, von Dornum Decl. ¶ 26; failing to provide any hand sanitizer and providing limited to no soap, depending on the unit, Pet. ¶ 73(e), (g); and relying on incarcerated people to sanitize common areas without providing adequate cleaning supplies, Id. ¶ 73(j).
Petitioners have grave concerns about the current scale of infection at the MDC, and whether the BOP’s publicly reported numbers about infections in New York’s federal prisons are accurate. On the evening of March 29, 2020, the BOP’s official website listed two total positive
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cases at the MDC, one incarcerated person and one staff. See Supplemental Declaration of Deirdre D. von Dornum, dated March 30, 2020 (“Supp. von Dornum Decl.”) ¶ 4. Although the website is supposed to be updated daily at 3 PM, this information is incorrect, based on information gleaned by the Federal Defenders. Id. ¶¶ 3, 5 (reporting a total of 4 staff infections). The Federal Defenders learns of additional cases only when they ask specific questions based on information learned from their clients, raising the serious concern that if additional cases exist, neither the Federal Defenders nor the public will learn of them from the BOP. Id. ¶ 6. This concern is heightened because the Federal Defenders continue to hear from clients that people held in the MDC are reporting symptoms consistent with COVID-19, but have not yet been tested and have not been isolated from asymptomatic individuals. Id. ¶ 7.
Nor has Respondent taken steps to educate incarcerated people about the spread of infection or separated individuals based on their risk of becoming seriously ill from COVID-19. von Dornum Decl. ¶ 35; Pet. ¶ 74. Physicians have not visited housing units, medical staff will visit only if someone reports symptoms, which many people are afraid to do because, absent a transparent protocol for treatment, they are reasonably concerned that if they report feeling symptomatic they will be placed in solitary confinement. von Dornum Decl. ¶ 16(b); Pet. ¶ 77.
D. MDC is Not Prepared to Treat to Individuals Who Contract COVID-19 If Petitioners contract COVID-19 at the MDC, they will be at a high risk of developing serious symptoms because the MDC lacks the medical resources to care for symptomatic individuals. Pet. ¶ 78. Now that COVID-19 is inside the facility, the MDC will be unable to stop the spread of the virus throughout the facility given long-documented inadequacies in BOP’s medical care and in light of how these facilities function. Giftos Decl. ¶ 14. MDC has no separate medical unit for sick people, unlike many Federal Correctional Institutions and even Rikers’ Island. von Dornum Decl. ¶ 41. As of March 20, 2020, MDC had only 9 nasal swab
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COVID-19 test kits and only one incarcerated person had been tested at the facility. Id. ¶ 11(b), (c). MDC currently has no ventilators and cannot intubate patients on-site. Id. ¶¶ 39, 40. MDC does not have any specialized equipment or medical providers. Id. ¶ 42. There are only three doctors available at MDC to care for all 1,700 people held there. Id. Even this highly limited number is likely to decrease as doctors themselves go into quarantine. None of these doctors specialize in infectious diseases. Id.
These resources will be inadequate to treat people who contract COVID-19, particularly vulnerable individuals like Petitioners. Most people in the higher risk categories will require more advanced support: positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation. Pet. ¶ 83. Such care requires specialized equipment in limited supply as well as an entire team of specialized care providers. Id. MDC does not have that specialized equipment or specialized providers. Id. And MDC’s staffing shortage will only increase with the epidemic, leaving officers less able to monitor the health of the incarcerated population. Giftos Decl. ¶ 18.
E. Petitioners Are Particularly Vulnerable Because of their age and/or medical conditions, Petitioners are particularly vulnerable to serious illness or death if infected by COVID-19.
1. Hassan Chunn Hassan Chunn is 46 years old. Declaration of Katherine Rosenfeld, dated March 30, 2020 (“Rosenfeld Decl.”), Ex. 1 ¶ 3. He has many serious medical problems, including Coronary Heart Disease, high blood pressure, and diabetes. Id. ¶ 3. He has two stents in his heart. Id. He takes many different medications, and he has had a difficult time getting medical care while at the MDC. Id. ¶ 5. While held at the MDC, he has been hospitalized multiple for heart and breathing problems. Id. ¶ 6. According to medical records from Jamaica Hospital, Mr.
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Chun was receiving care in 2017 for coronary artery disease, poorly controlled hypertension, and obesity. Rosenfeld Decl. ¶ 15. Mr. Chunn is due to be released on April 18, 2020. Rosenfeld Decl. Ex. 1 ¶ 2. When he is released, he will live with his mother in Brooklyn. Id.
On March 26, 2020, Mr. Chunn’s criminal defense counsel requested that Respondent grant a reduction in Mr. Chunn’s sentence pursuant to title 18 U.S.C. Section 3624, and release Mr. Chunn for the remainder of his short sentence, in light of Mr. Chunn’s serious heart condition and other health problems, and his resulting vulnerability to the spread of COVID-19 in the MDC. Rosenfeld Decl. Ex. 2. Mr. Chunn’s counsel has not received a response to his letter. Rosenfeld Decl. ¶ 18.
2. Nehemiah McBride Mr. McBride is 34 years old. Rosenfeld Decl. Ex. 3 ¶ 2. He has had asthma and respiratory problems for many years. Id. ¶ 4.12 He can get very sick when his asthma is activated, and he has used both an inhaler and a nebulizer. Id. On several occasions, he has had such severe asthma attacks that he had to go to the emergency room for treatment. Id. ¶ 5. Mr. McBride is due to be released on April 15, 2020. Id. ¶ 2. When he is released, he will live with his partner at her home in Jamaica. Id. ¶ 3. On March 26, 2020, Mr. McBride’s criminal defense counsel requested that Respondent grant a reduction in Mr. McBride’s sentence pursuant to title 18 U.S.C. Section 3624, and release Mr. McBride for the remainder of his short sentence to home confinement, in light of Mr. McBride’s severe asthma and breathing problems and resulting vulnerability to the spread of
12 The CDC states that people with asthma “may be at higher risk of getting very sick from COVID-19” and directs people with asthma to be sure to know how to use their inhaler. See https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/asthma.html.
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COVID-19 in the MDC. Rosenfeld Decl. Ex. 4. Mr. McBride’s counsel has not received a response to his letter. Rosenfeld Decl. ¶ 21.
3. Ayman Rabadi Mr. Rabadi is 59 years old; he will be 60 in May. Rosenfeld Decl. Ex. 5 ¶ 2. He suffers from many health problems, and he had a heart attack about five years ago. Id. Mr. Rabadi takes medication for high blood pressure, cholesterol, hypertension, pre-diabetes, and other conditions. Id. ¶ 3. He has stents in his heart. Id. ¶ 6. He has a tumor in one of his kidneys and suffers from an anal fistula. Id. ¶¶ 4-5. Mr. Rabadi suffered from a stroke in jail last year. Rosenfeld Decl. ¶ 26. He reports that he takes over a dozen different medications a day. Id. Mr. Rabadi is scheduled to be released on July 19, 2020. Id. ¶ 23. He has four children and two grandchildren. Id. He is spending as much time as possible in his cell to avoid contact with others, but he shares a small cell with another person and he must leave his cell to get food. Rosenfeld Decl. ¶ 27.
4. Justin Rodriguez Mr. Rodriguez is 26 years old. Rosenfeld Decl. Ex. 8 ¶ 2. He has suffered from asthma since he was a baby. Id. ¶ 6. When he was young, he had a nebulizer machine that his mother used to give him breathing treatments. Id. ¶ 7. Today, he has difficulty breathing when places are dirty, dusty, pollen-filled, or smoky. Id. ¶ 9. His breathing problems are exacerbated by extreme coldness or sickness. Id. Mr. Rodriguez has gotten several bad colds while at the MDC, and it routinely takes him several weeks to be seen by a medical professional. Id. ¶ 10. Mr. Rodriguez is due to be released on June 9, 2020. Id. ¶ 2. He has a four-year-old son and is a very active father. Id. ¶ 3. When he is released, he will live with his mother in Staten Island. Id. ¶ 5. On March 27, 2020, Mr. Rodriguez’s criminal defense counsel requested that Respondent grant a reduction in Mr. Rodriguez’s sentence pursuant to title 18 U.S.C. Section
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3624 and release him for the remainder of his short sentence to home confinement, in light of Mr. McBride’s lifelong asthmatic condition and resulting vulnerability to the spread of COVID19 in the MDC. Rosenfeld Decl. Ex. 7. Mr. Rodriguez’s counsel has not received a response to his letter. Rosenfeld Decl. ¶ 30.
ARGUMENT Applications for temporary restraining orders (“TRO”) are governed by the same standards as motions for preliminary injunctions. See Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008). The moving party must establish: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm absent preliminary relief; (3) that the balance of equities tips in favor of the moving party; and (4) that the public interest is served by an injunction. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “The party seeking the injunction carries the burden of persuasion to demonstrate, ‘by a clear showing,’ that the necessary elements are satisfied.” Litwin v. OceanFreight, Inc., 865 F. Supp. 2d 385, 392 (S.D.N.Y. 2011). Petitioners maintain that a TRO is necessary to preserve the status quo—namely, their current health—but even if the Court determines that Petitioners must meet the higher standard necessary for a mandatory status quo, they do so here. New York Civil Liberties Union v. New York City Transit Auth., 684 F.3d 286, 294 (2d Cir. 2012) (“For mandatory injunctions, which alter rather than maintain the status quo, such as the one at issue here, the movant must show a clear or substantial likelihood of success on the merits.” (internal quotation marks and citation omitted)).
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I. PETITIONERS FACE IRREPARABLE HARM IF THEY REMAIN CONFINED AT THE MDC The irreparable harm here is immense: Petitioners likely face death or serious illness
from COVID-19 if they remain incarcerated at the MDC. “The Second Circuit has deemed the threshold showing of ‘irreparable harm’ to be of
particular significance under Rule 65, regardless of the strength of the movant’s case on the merits.” AIM Int’l Trading LLC v. Valcucine SpA., 188 F. Supp. 2d 384, 387 (S.D.N.Y. 2002) (citing Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir.1990)). Harm is considered to be irreparable if it “cannot be redressed through a monetary award.” JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990).
With confirmed COVID-19 infections among staff and incarcerated people housed at the MDC, it will be nearly impossible to prevent widespread internal transmission. See supra at 11-12. Petitioners are much more likely to be infected within the MDC than if they were able to practice social distancing and personal hygiene in home confinement. Once they contract COVID-19, they will be at a substantially increased risk of death or serious illness because of their age and/or underlying medical conditions. See supra at 4. The putative class—particularly the 537 Vulnerable Persons Respondent has identified—are at imminent risk from the virus as well.
Being compelled to endure a substantially increased risk of serious illness and death will always constitute irreparable injury. See, e.g., Helling v. McKinney, 509 U.S. 25, 33 (1993) (“It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.”); Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 43 (2d Cir. 1997) (finding irreparable injury was satisfied where evidence was presented that closing of treatment program would lead
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to plaintiffs’ continued abuse of alcohol and drugs, “resulting in death, illness, or disability”); see also Harris v. Bd. of Supervisors, Los Angeles Cty., 366 F.3d 754, 766 (9th Cir. 2004) (finding likelihood of “pain, infection, amputation, medical complications, and death” constituted irreparable harm.); Stagliano v. Herkimer Cent. Sch. Dist., 151 F. Supp. 3d 264, 273 (N.D.N.Y. 2015) (“[T]he obvious potential for such issues as developing chronic health issues or spreading contagious diseases underscores the need for equitable relief . . .”).
Moreover, the Second Circuit has repeatedly held that the alleged violation of constitutional rights amounts to irreparable injury. See, e.g., Johnson v. Connolly, 378 F. App’x 107, 108 (2d Cir. 2010); Johnson v. Miles, 355 F. App’x 444, 446 (2d Cir. 2009); Conn. Dep’t of Envtl. Prot. v. OSHA, 356 F.3d 226, 230-31 (2d Cir. 2004); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996). As discussed below, Petitioners have established that current MDC conditions violate the Fifth and Eighth Amendments.
Absent immediate relief, Petitioners’ lives are at risk. The harm that would flow from allowing them to remain at the MDC is undoubtedly irreparable. Several courts have already found that the very risk Petitioners face here constitutes irreparable injury justifying release from custody. Basank v. Decker, No. 20 Civ. 2518, 2020 WL 1481503, at *4 (S.D.N.Y. Mar. 26, 2020) (“The risk that Petitioners will face a severe, and quite possibly fatal, [COVID-19] infection if they remain in immigration detention constitutes irreparable harm warranting a TRO.”); Coronel v. Decker, No. 20-CV-2472, 2020 WL 1487274, at *3 (S.D.N.Y. Mar. 27, 2020) (“Due to their serious underlying medical conditions, all Petitioners face a risk of severe, irreparable harm if they contract COVID-19.”); Castillo v. Barr, No. 20 Civ. 605, ECF No. 32 at 10 (Mar. 27, 2020) (finding that petitioners should be released from immigration custody because they established irreparable harm stemming from risk of exposure to COVID-19.).
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II. PETITIONERS HAVE A SUBSTANTIAL LIKELIHOOD OF SUCCEEDING ON THE MERITS Respondent is violating Petitioners’ Fifth and Eighth Amendment rights by continuing to
incarcerate them in conditions where it is virtually impossible to take steps to prevent transmission of an infectious disease that will prove deadly because of Petitioners’ vulnerable conditions.
All people held in the MDC, whether convicted or not, are entitled to be protected from conditions of confinement that create a serious risk to health or safety, including through release from custody when necessary. See Brown v. Plata, 563 U.S. 493, 531-32 (2011) (upholding lower court’s order releasing people from state prison even though release was based on prospect of future harm caused by prison overcrowding); see also Farmer v. Brennan, 511 U.S. 825, 834 (1994) (correctional official violates Eighth Amendment by consciously failing to prevent “a substantial risk of serious harm”); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“deliberate indifference” to serious medical needs violate the Eighth Amendment).13 The risk of exposure to a deadly infectious disease such as COVID-19 constitutes a serious risk to health, particularly for Petitioners and the vulnerable class members described herein. See Helling, 509 U.S. at 34 (noting with approval Eighth Amendment claims based on exposure to serious contagious diseases.); Charles v. Orange Cty., 925 F.3d 73, 86 (2d Cir. 2019) (a serious medical need is “a condition of urgency such as one that may produce death, degeneration, or extreme pain.”). Under the MDC’s current conditions, Respondent has not and cannot protect Petitioners and the class from this risk of serious harm.
13 The named Petitioners are convicted and therefore their treatment is governed by the Eighth Amendment. Class members who are detained for pretrial purposes, however, are protected from deliberate indifference by the Fifth Amendment. Although pretrial class members may be entitled to even greater protection from unsafe conditions than convicted class members, Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”), for present purposes the distinction is immaterial because Respondent’s continued detention of the class plainly violates the Eighth Amendment.
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Government officials act with deliberate indifference when they “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” even when “the complaining inmate shows no serious current symptoms.” Helling, 509 U.S., at 33. The reach of the Fifth and Eighth Amendments includes “exposure of inmates to a serious, communicable disease.” Id.; see also Jolly, 76 F.3d at 477 (2d Cir. 1996) (“[C]orrectional officials have an affirmative obligation to protect [forcibly confined] inmates from infectious disease.”). This Court need not “await a tragic event” to find that Respondent is maintaining unconstitutional conditions of confinement. Helling, 509 U.S. at 33. Instead, showing that the conditions of confinement “pose an unreasonable risk of serious damage to [Petitioners’] future health” is sufficient. Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (quoting Helling, 509 U.S. at 35) (alteration and internal quotation marks omitted).
Here, Petitioners are likely being exposed to COVID-19 while at the MDC, placing them at risk of death because of their vulnerable medical conditions. Respondent is well aware of this risk, having been alerted to it by the CDC, the Attorney General, and advocates such as the Federal Defenders. Indeed, only last week the Second Circuit, unprompted, acknowledged the “grave and enduring” risk posed by COVID-19 in the correctional context. See Fed. Defs. of New York, Inc. v. Fed. Bureau of Prisons, No. 19-1778, __ F.3d __, 2020 WL 1320886, at *12 (2d Cir. Mar. 20, 2020); see also Jovel, 2020 WL 1467397, at *1 (finding “extraordinary circumstances” of COVID-19 pandemic justified release of immigration detainee from federal detention); United States v. Little, No. 20 Cr. 57, 2020 WL 1439979, at *4 (S.D.N.Y. Mar. 24, 2020) (“As additional people are arrested who have been out in the community as the coronavirus spreads, if they are not symptomatic, they will be brought into the MCC and MDC,
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and held with the existing population, potentially bringing COVID-19 into this population held in large numbers, close quarters, and low sanitary conditions.”).
In the face of this risk, Respondent has not taken sufficient steps to protect Petitioners or the other people who are incarcerated at MDC. Respondent simply is not capable of managing the risk to Petitioners in the MDC’s current environment. Whether judged under the Fifth or Eighth Amendment, Respondent is holding Petitioners in violation of the Constitution by failing to protect them in the face of significant threats to their health and safety.
The Supreme Court’s decision in Helling is particularly instructive. In Helling, the plaintiff alleged that exposure to second-hand tobacco smoke was an unconstitutional condition of confinement because it put the health of incarcerated people at risk. 509 U.S. at 28. In language pertinent to the case at bar, the Court rejected defendants’ argument that a claim cannot lie based on potential future harm from a health risk:
We have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate’s current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year. . . Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms. Id. at 33 (emphasis added); see also Hutto v. Finney, 437 U.S. 678, 682 (1978) (leaving undisturbed district court’s conclusion that it was unconstitutional to hold people in crowded cells exposed to hepatitis and venereal disease). Finally, the Helling Court explained, “It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.” 509 U.S. at 33. Continuing to detain Petitioners in the midst of the COVID-19 pandemic and failing to take measures to protect the putative class poses a significantly greater risk than the plaintiff in
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McKinney or in any of the other cases cited supra faced. COVID-19 is already inside the MDC. The facility is not equipped to stop the spread of the disease or treat people who become ill. Social distancing is effectively impossible at the MDC, and Respondent has not taken any steps to allow people who are incarcerated at the MDC to practice social distancing. And Petitioners are at an increased risk because of their age and/or underlying medical conditions.
Accordingly, Petitioners have established a substantial likelihood of success on the merits of their claims. III. THE COURT HAS THE AUTHORITY TO ORDER PETITIONERS’ RELEASE;
THE BALANCE OF EQUITIES TIPS IN PETITIONERS’ FAVOR; AND RELEASE WOULD SERVE THE PUBLIC INTEREST The Court has the power to grant Petitioners’ immediate release because they are not being provided safe conditions or adequate care, and the situation cannot be remedied under current circumstances. Section 2241(c)(3) authorizes courts to grant habeas corpus relief where a person is “in custody in violation of the Constitution or laws or treaties of the United States.” The Second Circuit has “long interpreted § 2241 as applying to challenges to the execution of a federal sentence, including such matters as . . . prison conditions.” Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (internal quotation marks omitted). This includes challenges to detention where conditions pose a threat to Petitioners’ medical wellbeing. See Roba v. United States, 604 F.2d 215, 218-19 (2d Cir. 1979) (approving the use of Section 2241 to challenge a detainee’s transfer where that transfer created a risk of fatal heart failure). The Second Circuit’s decision in Roba is instructive. In that case, the petitioner alleged that an imminent transfer from New York to face charges in California would create a substantial risk of death because of his precarious heart condition. The Second Circuit held that there was Section 2241 jurisdiction to challenge his contemplated transfer, where such custody would threaten his life, citing Estelle v. Gamble, the Supreme Court’s seminal case establishing the
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Eighth Amendment’s deliberate indifference standard. Id. Critically, the court held that habeas jurisdiction was appropriate even though the transfer, and hence custody, was imminent: “Petitioner need not wait until the marshals physically lay hands on him; he is entitled now to challenge the allegedly unlawful conditions of his imminent custody.” Id. at 219.
In this case, the unconstitutional threat to Petitioners’ health and life posed by being held in Respondent’s custody is ongoing, not simply imminent. Every hour that Petitioners are held in the MDC, they are at a significantly elevated risk of contracting coronavirus, and because of their age and/or medical conditions, their risk of dying from coronavirus is significant. For similar reasons, Judge Analisa Torres recently ordered the release of several individuals from federal immigration detention. See Basank, 2020 WL 1481503; see also supra at 7-9 (listing cases in which courts have ordered release from detention due to risks posed by incarceration during the COVID-19 pandemic.).
Moreover, both the balance of equities and the public interest favor releasing Petitioners. The government has no interest in maintaining an unconstitutional practice. Doe v. Kelly, 878 F.3d 710, 718 (9th Cir. 2017) (the “government suffers no harm from an injunction that merely ends unconstitutional practices and/or ensures that constitutional standards are implemented”) (quotation marks and citations omitted); see also L.V.M. v. Lloyd, 318 F. Supp. 3d 601, 620 (S.D.N.Y. 2018); Abdi v. Duke, 280 F. Supp. 3d 373, 410 (W.D.N.Y. 2017). And in this case, release would help ameliorate a regional medical crisis that is threatening to overwhelm local hospitals. The interest in having Petitioners serve the remainder of their terms at the MDC, rather than under home confinement, is slight compared to the substantial risk to Petitioners’ health.
Releasing Petitioners will not ameliorate the risks for the remainder of the people held at the MDC. Respondent already has identified more than 500 people who, like Petitioners, are
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Case 1:20-cv-01590-RPK Document 12-1 Filed 03/30/20 Page 30 of 31 PageID #: 135 vulnerable to serious illness and death if they contract COVID-19. Those individuals face the same risk of imminent harm as Petitioners and may be entitled to immediate release as well. For this reason, Petitioners respectfully request that this Court appoint a Special Master on an emergency basis to chair a Coronavirus Release and Mitigation Committee to (i) evaluate all Vulnerable Persons currently incarcerated at the MDC for release, and (ii) make recommendations for ameliorative action for other persons held at the MDC.
CONCLUSION For the foregoing reasons, Petitioners respectfully request that the Court grant Petitioners a temporary restraining order immediately releasing them from detention at the MDC to serve the remainder of their sentences in home confinement under such conditions as the Court deems appropriate, and appointing a Special Master to chair a Coronavirus Release and Mitigation Committee.
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Dated: March 30, 2020 New York, New York

EMERY CELLI BRINCKERHOFF & ABADY LLP
By: /s/ Katherine R. Rosenfeld Katherine R. Rosenfeld O. Andrew F. Wilson Samuel Shapiro Scout Katovich 600 Fifth Avenue, 10th Floor New York, NY 10020 (212) 763-5000
CARDOZO CIVIL RIGHTS CLINIC Betsy Ginsberg Cardozo Civil Rights Clinic Benjamin N. Cardozo School of Law 55 Fifth Avenue, 11th Floor New York, NY 1003 (212) 790-0871
Alexander A. Reinert 55 Fifth Avenue, Room 1005 New York, NY 1003 (212) 790-0403
Attorneys for Petitioners and Putative Class

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Case 1:20-cv-01590-RPK Document 12-2 Filed 03/30/20 Page 1 of 9 PageID #: 137

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; and JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 01590
DECLARATION OF KATHERINE ROSENFELD

I, Katherine Rosenfeld, an attorney duly admitted to practice in the Eastern District of New York, declare under penalty of perjury and pursuant to 28 U.S.C. § 1746:
1. I am a partner at Emery Celli Brinckerhoff & Abady, LLP. Along with the Cardozo Civil Rights Clinic and Alexander A. Reinert, we represent the Petitioners and putative class.
2. I submit this declaration in support of Petitioners’ request for a Temporary Restraining Order in the above-captioned case. Additional Facts Since March 27, 2020 Filing of Petition
3. The Federal Bureau of Prisons (“BOP”) announced on March 29, 2020 that a 49year-old man with pre-existing medical conditions who was incarcerated in a federal prison in Louisiana died on Saturday, March 28, 2020 from complications from COVID-19, becoming the

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first person in federal custody to die from the coronavirus.1 On the evening of March 29, 2020, the Washington Post reported that an explosion of coronavirus cases is crippling the facility, with 30 incarcerated people having tested positive and 60 more in quarantine.2
4. Since filing the Petition on March 27, 2020, several incarcerated people who are confined at the Metropolitan Detention Center (“MDC”) have provided me with additional reports about conditions in the facility.
5. MDC’s Failure to Quarantine Individuals Who Were Exposed to the Individual Diagnosed with COVID-19. According to the BOP website, one person confined at the MDC has tested positive for COVID-19.3 Individuals confined at the MDC report that there are currently at least two people in the facility’s general population who were on the Intake Unit (Unit 41) at the same time as the person who tested positive for COVID-19. In other words, the two people from Unit 41 who were exposed to the COVID-19 positive individual are not quarantined and they are moving freely about their units. The facility’s monitoring of these two individuals is limited to taking their temperature once a day. This is despite the fact that signs posted around the facility state that the symptoms of COVID-19 may take between 2 and 18 days to appear.
6. The MDC Continues to Allow Movement Within the Facility. On the evening of Saturday, March 28, 2020, an additional person who had previously been held on Unit 41 was moved to Unit 42. Although the facility had previously told people that there would be no further movement out of Unit 41 and into other units, that is not in fact the case.
1 Kevin Johnson, Coronavirus claims first federal prisoner; 49-year-old drug offender dies in Louisiana, USA Today (Mar. 29, 2020), https://www.usatoday.com/story/news/politics/2020/03/29/patrick-jones-coronavirusclaims-first-federal-prisoner-louisiana/2935291001/.
2 https://www.washingtonpost.com/national/an-explosion-of-coronavirus-cases-cripples-a-federal-prisonin-louisiana/2020/03/29/75a465c0-71d5-11ea-85cb-8670579b863d_story.html
3 Coronavirus, Federal Bureau of Prisons, https://www.bop.gov/coronavirus/ (last accessed on March 29, 2020 at 6:30pm).
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7. Some People Confined at the MDC Are Scared to Report Their Symptoms Because the COVID-19 Positive Individual Was Placed in Solitary Confinement in Harsh Conditions. There are a number of people at the MDC who are coughing and showing signs of illness. However, some of these ill individuals are not reporting their symptoms because they are afraid that they will be locked up in solitary confinement. The person who tested positive for COVID-19 is being confined in a cell on Unit 84, and others at the MDC are hearing that he, as well as other people who are symptomatic and being held in isolation, are being denied showers, fed through the door slot, and not receiving clean sheets or underclothes.
8. The MDC Is Not Proactively Screening Most People for Symptoms, But Only Reacting to Those Who Report Illness. The MDC is not taking a proactive approach to identifying potentially sick people, other than a handful of incarcerated people with known past exposure. Instead, for the majority of people, the MDC is only responding to complaints from sick people who come forward. This approach fails to screen people who are asymptomatic, or people with symptoms who do not seek medical attention.
9. The MDC Has Quarantined the Kitchen Staff. A confined person who works in the kitchen (in which the meals for everyone in the facility are prepared) has come down with a fever, coughing, and other COVID-19 symptoms. The incarcerated people who normally work in the kitchen are now replaced by officers. The former kitchen workers are now under a quarantine.
10. The MDC is Not Enforcing Cleaning Protocols. To take one example, there was no cleaning of Unit 42 on Friday, March 27, or on Saturday, March 28, although the facility had said there would be increased cleaning.
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11. The MDC’s response to the spread of COVID-19 inside the facility is dangerously inadequate and slow. Data from other correctional facilities make it clear that the time to act to stop the pandemic from consuming the population in a jail is before there is even one positive case. While the MDC has missed that opportunity, urgent action in the next few days could still save lives.
12. The following data and diagram showing infection rates on Rikers Island, as prepared by the Legal Aid Society, is instructive for how the virus may spread at the MDC. According to data analyzed and published on March 29, 2020, the current rate of infection for people confined on Rikers is 3.00%, or 29.29 infections per 1,000 people. This compares to the rate of infection in the community at large in New York City of 0.40%, or 3.9 infections per 1,000 people.
13. The first positive case on Rikers Island was diagnosed on or about March 19, 2020. As of March 29, 2020, there are now 139 positive cases in the jail.4
4 COVID-19 Infection Tracking in NYC Jails, The Legal Aid Society, https://legalaidnyc.org/covid-19infection-tracking-in-nyc-jails/ (last accessed Mar. 29, 2020).
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The Individual Petitioners Are At High Risk For Serious COVID-19-Related Illnesses Hassan Chunn
14. As alleged in the Petition filed on March 27, 2020, “Mr. Chunn is 46 years old. Mr. Chunn has been incarcerated for approximately three years. He is due to be released on April 18, 2020. Mr. Chunn has been diagnosed with Coronary Heart Disease. As of 2005, he was diagnosed with chronic heart failure. He has two stents in his heart. He is pre-diabetic. He also suffers from high blood pressure, seizures, hypertension and high cholesterol. During his incarceration at MDC, he has been hospitalized on at least two occasions at outside hospitals for extreme high blood pressure. He takes a number of medications including Plavix, Losapril, Norvax, and Lipitor. Mr. Chunn is critically vulnerable to COVID-19 because of his significant health problems.” Petition, ¶ 86.
15. According to medical records from Jamaica Hospital, Mr. Chunn was receiving care in 2017 for coronary artery disease, poorly controlled hypertension, and obesity.
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16. Attached as Exhibit 1 is the Declaration of Carmen Nevarez dated March 29, 2020. Ms. Nevarez is the mother of Mr. Chunn and has personal knowledge of his medical conditions related to his COVID-19 vulnerabilities.
17. Mr. Chunn reports that earlier in March 2020, he observed an individual on his unit who was coughing so much that it appeared this person had bronchitis. That person was eventually removed from the unit but no further information was provided about whether he in fact had COVID-19.
18. On March 26, 2020, Mr. Chunn’s counsel Kenneth Montgomery requested that Warden Edge grant a reduction in Mr. Chunn’s sentence pursuant to title 18 U.S.C. § 3624, and release Mr. Chunn for the remainder of his short sentence, in light of Mr. Chunn’s serious heart condition and other health problems, and his resulting vulnerability to the spread of COVID-19 in the MDC. A copy of Mr. Montgomery’s letter is attached as Exhibit 2. Mr. Montgomery has received no response to his letter. Nehemiah McBride
19. As alleged in the Petition filed on March 27, 2020, “Mr. McBride is 34 years old. Mr. McBride has been incarcerated since December 17, 2019, and subsequently was sentenced to 4 months’ incarceration. He is due to be released on April 15, 2020. Mr. McBride has been diagnosed with asthma, which is severe, and he suffers from respiratory problems. Mr. McBride is currently experiencing breathing problems and wheezing. Mr. McBride is critically vulnerable to COVID-19 because of his significant health problems.” Petition, ¶ 87.
20. Attached as Exhibit 3 is the Declaration of Tasha Moore dated March 29, 2020. Ms. Moore is the partner of Mr. McBride and has personal knowledge of his medical conditions related to his COVID-19 vulnerabilities.
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21. On March 26, 2020, Mr. McBride’s counsel Robert Baum from the Federal Defenders requested that Warden Edge grant a reduction in Mr. McBride’s sentence pursuant to title 18 U.S.C. § 3624, and release Mr. McBride for the remainder of his short sentence to home confinement, in light of Mr. McBride’s severe asthma and breathing problems and resulting vulnerability to the spread of COVID-19 in the MDC. A copy of Mr. Baum’s letter is attached as Exhibit 4. Mr. Baum has received no response to his letter. Ayman Rabadi
22. As alleged in the Petition filed on March 27, 2020, “Mr. Rabadi is 59 years old. Mr. Rabadi has been incarcerated for approximately 1 year, after being sentenced to 24 months for a wire fraud-related conviction of which he has served approximately 14 months. Mr. Rabadi has been diagnosed with a serious heart condition, anxiety and diabetes. Mr. Rabadi suffered a heart attack approximately six years ago, and thereafter he had several stents placed in his heart. He has a tumor on one of his kidneys which is being monitored via ultrasound. He takes medication for high blood pressure, cholesterol, and blood thinners. He also suffers from severe anxiety and depression. Mr. Rabadi is critically vulnerable to COVID-19 because of his significant health problems.” Petition, ¶ 88.
23. Mr. Rabadi is scheduled to be released on July 19, 2020. Mr. Rabadi has a life partner of 36 years, four children, and two grandchildren.
24. Attached as Exhibit 5 is the Declaration of Migdaliz Quinones dated March 29, 2020. Ms. Quinones is the partner of Mr. Rabadi and has personal knowledge of his medical conditions related to his COVID-19 vulnerabilities.
25. Mr. Rabadi’s chronic, serious medical conditions are documented in various court filings in his criminal case. In a “Medical Attention Form” dated April 19, 2013, S.D.N.Y.
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Case 1:20-cv-01590-RPK Document 12-2 Filed 03/30/20 Page 8 of 9 PageID #: 144
Magistrate Judge Davison ordered that the Warden of any detention facility confining Mr.
Rabadi provide him with necessary medical treatment for his heart condition, anxiety and high
blood pressure. A copy of the Medical Attention Form is attached as Exhibit 6.
26. Mr. Rabadi suffered a stroke in jail last year. He reports that he takes over a dozen
different medications a day, and that he believes that he will die if he becomes infected with
COVID-19.
27. I am informed by Mr. Rabadi that he is spending as much time as possible in his
cell to avoid contact with others. However, he shares a small cell with another person. He also
must leave his cell to get food. Mr. Rabadi states that there are many people in the facility who
are coughing and sick, and conditions are bad.
28. On March 29, 2020, Mr. Rabadi described current conditions at the MDC as
follows:
Things are very bad here. We don’t have any gloves, masks or any personal protective equipment. Also, we can't social distance from each other. There are approximately 90 people in a small area because this is considered a “camp" status floor. We are work cadres and have no space to get fresh air. Our cells are small (6 x 12), there are 2 people per cell and we are locked in our unit during the day. They came up here and told us that there were 2 officers and 1 inmate that are infected. We found out there are many more inmates and probably guards with the virus. One of our friends we maybe think he got the virus. He walks around with a mask and he has a deep cough and we are freaking out and are not doing well mentally. They tell us to wash our hands but they don't have any hand sanitizer and they tell us to use soap, but we don't have soap because they don't have any. We tried to buy soap from commissary, but commissary is out for 3 weeks. We are in big trouble here. Not just me, but everyone in here is freaking out because we cannot get any information or anyone to listen to us. We should ALL go home since we are "camp" status inmates. . . . I only have 35 days left. I am 60 with health problems. Please help me before I die. I want to be with my family where I am safe.
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Justin Rodriguez

29. As alleged in the Petition filed on March 27, 2020, “Mr. Rodriguez is 26 years

old. Mr. Rodriguez is scheduled to be released on June 9, 2020. Mr. Rodriguez suffers from

asthma. Mr. Rodriguez is critically vulnerable to COVID-19 because of his significant health

problems. Mr. Rodriguez requested an inhaler from BOP staff but as of this filing has not

received one.” Petition, ¶ 89.

30. On March 27, 2020, Mr. Rodriguez’s counsel Donald D. Duboulay requested that

Warden Edge grant a reduction in Mr. Rodriguez’s sentence pursuant to title 18 U.S.C. § 3624,

and release him for the remainder of his short sentence to home confinement, in light of Mr.

McBride’s lifelong asthmatic condition and resulting vulnerability to the spread of COVID-19 in

the MDC. A copy of Mr. Duboulay’s letter is attached as Exhibit 7. Mr. Duboulay has received

no response to his letter.

31. Attached as Exhibit 8 is the Declaration of Jacklyn Romanoff dated March 29,

2020. Ms. Romanoff is the mother of Mr. Rodriguez and has personal knowledge of his medical

conditions related to his COVID-19 vulnerabilities.

32. Attached as Exhibit 9 is the Declaration of Dr. Jaimie Meyer, dated March 23,

2020.

33. Due to the restrictions currently in place, each of the family member declarants—

Carmen Nevarez, Tasha Moore, Migdaliz Quinones, and Jacklyn Romanoff—signed their

declarations remotely and electronically by sending the undersigned an electronic copy of their

signature to append to their final declaration.

Executed on: March 30, 2020 Speculator, New York

/s/ Katherine Rosenfeld

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Case 1:20-cv-01590-RPK Document 12-3 Filed 03/30/20 Page 1 of 3 PageID #: 146
Exhibit 1

Case 1:20-cv-01590-RPK Document 12-3 Filed 03/30/20 Page 2 of 3 PageID #: 147

Case 1:20-cv-01590-RPK Document 12-3 Filed 03/30/20 Page 3 of 3 PageID #: 148

Case 1:20-cv-01590-RPK Document 12-4 Filed 03/30/20 Page 1 of 3 PageID #: 149
Exhibit 2

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Case 1:20-cv-01590-RPK Document 12-9 Filed 03/30/20 Page 3 of 3 PageID #: 165

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Case 1:20-cv-01590-RPK Document 12-10 Filed 03/30/20 Page 1 of 3 PageID #: 166
Exhibit 8

Case 1:20-cv-01590-RPK Document 12-10 Filed 03/30/20 Page 2 of 3 PageID #: 167

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Case 1:20-cv-01590-RPK Document 12-11 Filed 03/30/20 Page 1 of 8 PageID #: 169
Exhibit 9

Case 1:20-cv-01590-RPK Document 12-11 Filed 03/30/20 Page 2 of 8 PageID #: 170
Declaration of Dr. Jaimie Meyer
Pursuant to 28 U.S.C.§ 1746, I hereby declare as follows:
I. Background and Qualifications
1. I am Dr. Jaimie Meyer, an Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut. I am board certified in Internal Medicine, Infectious Diseases and Addiction Medicine. I completed my residency in Internal Medicine at NY Presbyterian Hospital at Columbia, New York, in 2008. I completed a fellowship in clinical Infectious Diseases at Yale School of Medicine in 2011 and a fellowship in Interdisciplinary HIV Prevention at the Center for Interdisciplinary Research on AIDS in 2012. I hold a Master of Science in Biostatistics and Epidemiology from Yale School of Public Health.
2. I have worked for over a decade on infectious diseases in the context of jails and prisons. From 2008-2016, I served as the Infectious Disease physician for York Correctional Institution in Niantic, Connecticut, which is the only state jail and prison for women in Connecticut. In that capacity, I was responsible for the management of HIV, Hepatitis C, tuberculosis, and other infectious diseases in the facility. Since then, I have maintained a dedicated HIV clinic in the community for patients returning home from prison and jail. For over a decade, I have been continuously funded by the NIH, industry, and foundations for clinical research on HIV prevention and treatment for people involved in the criminal justice system, including those incarcerated in closed settings (jails and prisons) and in the community under supervision (probation and parole). I have served as an expert consultant on infectious diseases and women’s health in jails and prisons for the UN Office on Drugs and Crimes, the Federal Bureau of Prisons, and others. I also served as an expert health witness for the US Commission on Civil Rights Special Briefing on Women in Prison.
3. I have written and published extensively on the topics of infectious diseases among people involved in the criminal justice system including book chapters and articles in leading peer-reviewed journals (including Lancet HIV, JAMA Internal Medicine, American Journal of Public Health, International Journal of Drug Policy) on issues of prevention, diagnosis, and management of HIV, Hepatitis C, and other infectious diseases among people involved in the criminal justice system. In making the following statements, I am not commenting on the particular issues posed this case. Rather, I am making general statements about the realities of persons in detention facilities, jails and prisons.
4. My C.V. includes a full list of my honors, experience, and publications, and it is attached as Exhibit A.
5. I was paid $1,000 for my time drafting an earlier version of this report filed in another case. I subsequently prepared this version of the report without receiving payment for my services.
1

Case 1:20-cv-01590-RPK Document 12-11 Filed 03/30/20 Page 3 of 8 PageID #: 171
6. I have not testified as an expert at trial or by deposition in the past four years.
II. Heightened Risk of Epidemics in Jails and Prisons
7. The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected. There are several reasons this is the case, as delineated further below.
8. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. People often need to be transported to and from facilities to attend court and move between facilities. Prison health is public health.
9. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater. When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
10. Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and staff.
11. Reduced prevention opportunities: During an infectious disease outbreak, people can protect themselves by washing hands. Jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcohol-based sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons because of a
2

Case 1:20-cv-01590-RPK Document 12-11 Filed 03/30/20 Page 4 of 8 PageID #: 172
lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.
12. Reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and ill-equipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak.
13. Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.1 This is because people in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV.
14. Jails and prisons are often poorly equipped to diagnose and manage infectious disease outbreaks. Some jails and prisons lack onsite medical facilities or 24-hour medical care. The medical facilities at jails and prisons are almost never sufficiently equipped to handle large outbreaks of infectious diseases. To prevent transmission of droplet-borne infectious diseases, people who are infected and ill need to be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). Resources will become exhausted rapidly and any beds available will soon be at capacity. This makes both containing the illness and caring for those who have become infected much more difficult.
15. Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes access to testing equipment, laboratories, and medications.
16. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.
17. Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these
1 Active case finding for communicable diseases in prisons, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
3

Case 1:20-cv-01590-RPK Document 12-11 Filed 03/30/20 Page 5 of 8 PageID #: 173
conditions. As supply chains become disrupted during a global pandemic, the availability of medicines and food may be limited.
18. Safety and security: As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public.
19. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.2 Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.3 Even facilities on “quarantine” continued to accept new intakes, rendering the quarantine incomplete. These scenarios occurred in the “best case” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.
III. Profile of COVID-19 as an Infectious Disease4
20. The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but it is possible that people can transmit the virus before they start to show symptoms or for weeks after their symptoms resolve. In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for another year to the
2 Influenza Outbreaks at Two Correctional Facilities — Maine, March 2011, Centers for Disease Control and Prevention (2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 3 David M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-fluwidespread-in-prisons-and-jails-but-deaths-are-few/. 4 This whole section draws from Brooks J. Global Epidemiology and Prevention of COVID19, COVID-19 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virtual (March 10, 2020); Coronavirus (COVID-19), Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (February 28, 2020), https://www.ncchc.org/blog/covid-19-coronavirus-what-youneed-to-know-in-corrections.
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Case 1:20-cv-01590-RPK Document 12-11 Filed 03/30/20 Page 6 of 8 PageID #: 174
general public. Antiviral medications are currently in testing but not yet FDA-approved, so only available for compassionate use from the manufacturer. People in prison and jail will likely have even less access to these novel health strategies as they become available.
21. Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.5 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.6 Death in COVID-19 infection is usually due to pneumonia and sepsis. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine.
22. The care of people who are infected with COVID-19 depends on how seriously they are ill.7 People with mild symptoms may not require hospitalization but may continue to be closely monitored at home. People with moderate symptoms may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and intravenous antibiotics. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities.
23. COVID-19 prevention strategies include containment and mitigation. Containment requires intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. Jails and prisons are totally under-resourced to meet the demand for any of these strategies. As infectious diseases spread in the community, public health demands mitigation strategies, which involves social distancing and closing other communal spaces (schools, workplaces, etc.) to protect those most vulnerable to disease. Jails and prisons are unable to adequately provide social distancing or meet mitigation recommendations as described above.
24. The time to act is now. Data from other settings demonstrate what happens when jails and prisons are unprepared for COVID-19. News outlets reported that Iran temporarily
5 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease Control and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/summary.html. 6 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study. The Lancet (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext 7 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (March 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidancemanagement-patients.html.
5

Case 1:20-cv-01590-RPK Document 12-11 Filed 03/30/20 Page 7 of 8 PageID #: 175
released 70,000 prisoners when COVID-19 started to sweep its facilities.8 To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in place.9 Systems are challenged to respond to COVID-19 guidelines that are modified on a near-daily basis. It may be impossible to adequately respond to the COVID-19 pandemic, while also respecting the rights and dignity of people who are incarcerated.
IV. Possible Risks of COVID-19 in Detention Facilities
25. Based on my experience working on public health in jails and prisons, I can make the following general statements about how the COVID-19 outbreak will interact with and exacerbate conditions that may exist in some detention centers.
26. Any delays in access to care that already exist in normal circumstances will only become worse during an outbreak, making it especially difficult for the facilities to contain any infections and to treat those who are infected.
27. Failure to provide individuals with continuation of the treatment they were receiving in the community, or even just interruption of treatment, for chronic underlying health conditions will result in increased risk of morbidity and mortality related to these chronic conditions.
28. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected.
29. People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention. Failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by COVID-19 outbreaks, may result in poor health outcomes. Moreover, mental health conditions may be exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation.
30. Failure to keep accurate and sufficient medical records will make it more difficult for facilities to identify vulnerable individuals in order to both monitor their health and protect them from infection. Inadequate screening and testing procedures in facilities increase the widespread COVID-19 transmission.
31. Language barriers will similarly prevent the effective identification of individuals who are particularly vulnerable or may have symptoms of COVID-19. Similarly, the failure to
8 Iran temporarily releases 70,000 prisoners as coronavirus cases surge, Reuters (March 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases70000-prisoners-as-coronavirus-cases-surge-idUSKBN20W1E5. 9 Luke Barr & Christina Carrega, State prisons prepare for coronavirus but federal prisons not providing significant guidance, sources say, ABC News (March 11, 2020), https://abcnews.go.com/US/state-prisons-prepare-coronavirus-federal-prisons-providingsignificant/story?id=69433690.
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Case 1:20-cv-01590-RPK Document 12-11 Filed 03/30/20 Page 8 of 8 PageID #: 176

Case 1:20-cv-01590-RPK Document 12-12 Filed 03/30/20 Page 1 of 4 PageID #: 177

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; and JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

20 Civ.
SUPPLEMENTAL DECLARATION OF DEIRDRE D. VON DORNUM

I, Deirdre D. von Dornum, an attorney duly admitted to practice in the Eastern District of New York, declare under penalty of perjury and pursuant to 28 U.S.C. § 1746:
1. I am the Attorney-in-Charge for the Eastern District of New York at the Federal Defenders of New York, Inc. (the “Federal Defenders”).
2. I submit this supplemental declaration upon personal knowledge in connection with the Plaintiffs’ Motion for a Temporary Restraining Order. Underreporting of Cases of COVID-19 By The BOP
3. The BOP’s official website (https://www.bop.gov/coronavirus) is supposed to be updated daily at 3:00 p.m. to accurately reflect the number of COVID-19 cases among individuals incarcerated at BOP facilities and BOP staff members nationwide.

1
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Case 1:20-cv-01590-RPK Document 12-12 Filed 03/30/20 Page 2 of 4 PageID #: 178
4. As of 5:25 p.m. on March 29, 2020, the BOP’s official website lists one positive staff case at MDC Brooklyn and one positive inmate case; it lists two positive staff cases at MCC New York and two positive inmate cases.1
5. This information is inaccurate. a. As of the morning of March 27, 2020, at least four BOP staff at MDC
Brooklyn had tested positive. This number was confirmed by Anthony Sanon, President, Local 2005, AFGE/AFL-CIO. b. As of March 27, 2020, at least three inmates had tested positive at MCC New York. This information was only received after Federal Defenders asked the Legal Department whether there were additional (beyond the first positive case) cases, based on information received from clients. The three positive tests have now been confirmed by Supervisory Attorney Nicole McFarland. 6. We have learned about the positive cases only when we ask specific questions of the institutions based on information from our clients detained inside. This raises a strong concern that if there are additional cases that we do not know to ask about, we will not be

1See https://ww.bop.gov/coronavirus (last visited March 29, 2020, 7:45 p.m.)

COVID-19 Tested Positive Cases

Inmates

Staff

14

13

(Inmate) 3/27/2020 - MDC Brooklyn; FCC Oakdale (5); USP Atlanta (2); MCC New York (2); RRC Phoenix; RRC Brooklyn (3). (Note: Symptomatic inmates are isolated in accordance with CDC guidelines.)

(Staff) 3/27/2020 - Grand Prairie, TX; Leavenworth, KS (no inmate contact); Yazoo, MS (2); Atlanta, GA; Danbury, CT; Butner, NC; Ray Brook, NY; New York, NY (2); Chicago, IL (2); Brooklyn, NY.
Note: Due to the rapidly evolving nature of this public health crisis, the BOP will update this dashboard daily at 3:00 p.m. based on the most recently available data from across the agency as reported by the BOP's Office of Occupational Health and Safety.

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informed of them by the BOP, particularly given the inaccurate information on the BOP’s own website.
7. My concern that there may be additional unreported cases is heightened by inmate reports to our office from both MCC and MDC this weekend:
a. Several inmates report having fever, cough and body aches; they have reported this to correctional staff; they were told no testing is available on weekends. These inmates remain on their units with everyone else.
b. Other inmates report that individuals on their unit or whom they are celled with are coughing and not receiving medical attention.
c. A number of inmates who were on the “intake unit” (42) at the same time as the inmate who was reported to have tested positive have been moved onto unit 41 and unit 63. They are not separated from the other inmates on unit 41 or unit 63 in any way. Medical staff is taking their temperatures temporally twice a day. Because a person can be asymptomatic and still positive and able to transmit the virus, the failure to quarantine individuals known to have been exposed to the virus raises the risk of the virus spreading.
8. The lack of transparency and disclosure by MDC also heightens my concerns. a. MDC has not disclosed how many inmates are currently symptomatic and are in isolation. b. MDC has not disclosed how many inmates have been tested for COVID-19. c. MDC has not disclosed on which units the staff who test positive work.
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 Case 1:20-cv-01590-RPK Document 18 Filed 03/31/20 Page 1 of 27 PageID #: 186

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------x
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI by his Next Friend Migdaliz Quinones; and JUSTIN RODRIGUEZ by his Next Friend Jacklyn Romanoff, individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.
---------------------------------------------------------x

Civil Action No. 20-CV-1590 (Kovner, J.)

RESPONDENT’S MEMORANDUM OF LAW IN OPPOSITION TO PETITIONERS’ MOTION FOR A TEMPORARY RESTRAINING ORDER

JAMES R. CHO Assistant United States Attorney (Of Counsel)

RICHARD P. DONOGHUE United States Attorney Counsel for Respondent Eastern District of New York 271-A Cadman Plaza East, 7th Floor Brooklyn, New York 11201
March 31, 2020

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TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY OF STATEMENT ...............................................................................................1 FACTUAL BACKGROUND ..........................................................................................................2
A. Steps Taken at the MDC To Address COVID-19 ...................................................2 B. Ongoing Efforts To Address Issues Posed By COVID-19 ......................................4 OBJECTIONS TO PETITIONERS’ DECLARATIONS................................................................5 STANDARD OF REVIEW REGARDING A TEMPORARY RESTRAINING ORDER.............6 ARGUMENT ...................................................................................................................................7 A. Petitioners’ Alleged Injury Is Not Redressable By Release ..................................12 B. Petitioners Do Not Satisfy The Requirements For Preliminary
Relief ......................................................................................................................12 1. Petitioner Are Unlikely To Succeed On The Merits..................................12 2. Petitioners Have Not Shown Irreparable Harm .........................................19 3. The Balance Of Interests And Public Interest Favors
Respondent .................................................................................................20 CONCLUSION ..............................................................................................................................22
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TABLE OF AUTHORITIES Cases
Charette v. Town of Oyster Bay, 159 F.3d 749 (2d Cir. 1998) ....................................................... 6 Charles v. Orange County, 925 F.3d 73 (2d Cir. 2019) ........................................................... 2, 14 Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30 (2d Cir. 2010).............................................................................................................. 7 CJ Prod. LLC v. Snuggly Plushez LLC, 809 F. Supp. 2d 127 (E.D.N.Y. 2011)............................. 7 Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) .................................................................... 12 Crawford v. Bell, 599 F.2d 890 (9th Cir. 1979)............................................................................ 12 Dawson v. Asher, No. C20-0409JLR-MAT, 2020 WL 1304557 (W.D. Wash. Mar. 19, 2020) ......................................................................... 12 Francisco v. Decker, No. 2:20-CV-02176-CCC (D.N.J. Mar. 25, 2020)..................................... 12 Flynt Distrib. Co., Inc. v. Harvey, 734 F.2d 1389 (9th Cir. 1984) ................................................. 6 Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112 (2d Cir. 2005) ................................................. 17 Garcia, v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) ................................................................. 14 Gonzales v. Gorsuch, 688 F.2d 1263 (9th Cir. 1982) ................................................................... 14 Heck v. Humphrey, 512 U.S. 477 (1994) ...................................................................................... 12 Johnson v. Barr, No. 19-CV-693-LJV, 2019 WL 6112338 (W.D.N.Y. Nov. 14, 2019) ............. 18 Kamara v. Farquharson, 2 F. Supp. 2d 81 (D. Mass. 1998) ........................................................ 12 Kimberly v. Arms, 129 U.S. 512 (1889)........................................................................................ 21 Latino Officers Ass’n v. Safir, 170 F.3d 167 (2d Cir. 1999)........................................................... 6 Los Angeles v. Lyons, 461 U.S. 95 (1983) .............................................................................. 10, 12 Madrigal Audio Labs., Inc. v. Cello, Ltd., 799 F.2d 814 (2d Cir.1986) ....................................... 21 Marlyn Nutraceuticals, Inc., v. Mucos Pharma GmbH & Co., 571 F.3d 873 (9th Cir. 2009) ........................................................................................................ 17
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Mazurek v. Armstrong, 520 U.S. 968 (1997) .................................................................................. 6 Register.com, Inc. v. Verio, Inc., 356 F.3d 393 (2d Cir. 2004)....................................................... 7 Republic of the Philippines v. Marcos, 862 F.2d 1355 (9th Cir. 1988) .......................................... 6 Singh v. Barr, No. 19-CV-1208-LJV, 2019 WL 6609312 (W.D.N.Y. Dec. 3, 2019) .................. 18 Stauble v. Warrob, Inc., 977 F.2d 690 (1st Cir. 1992).................................................................. 21 United States of America, v. Tommie Rollins, No. 11-CR-251S, 2020 WL 1482323 (W.D.N.Y. Mar. 27, 2020)............................................................................. 16 United States v. Gileno, 3:19-cr-161-(VAB)-1, 2020 WL 1307108 (D. Conn. Mar. 19, 2020) .............................................................................. 13 United States v. Hamilton, No. 19-CR-54-01, 2020 WL 1323036 (E.D.N.Y. Mar. 20, 2020) .............................................................................. 13 United States v. Jefferson, No. CCB-19-487, 2020 WL 1332011 (D. Md. Mar. 23, 2020)................................................................ 16, 18, 19, 20 United States v. Martin, No. PWG-19-140-13, 2020 WL 1274857 (D. Md. Mar. 17, 2020).................................................................................. 15 United States v. Redzepagic, 17-cr-228 (DRH) (AKT), ECF No. 118
(E.D.N.Y. Mar. 30, 2020) ......................................................................................................... 13 United States v. Salerno, 481 U.S. 739 (1987) ............................................................................. 18 United States v. Scarpa, 815 F. Supp. 88 (E.D.N.Y. 1993).......................................................... 13 United States v. Stephens, 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020).................................... 13 Univ. of Texas, v. Camenisch, 451 U.S. 390 (1981) ..................................................................... 16 Veramark Techs., Inc. v. Bouk, 10 F. Supp. 3d 395 (W.D.N.Y. 2014)........................................... 7 Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000).............. 14 Viens v. Daniels, 871 F.2d 1328 (7th Cir.1989) ........................................................................... 12 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) .................................................... 7, 9, 17 Wright v. Giuliani, 230 F.3d 543 (2d Cir. 2000) ............................................................................ 7
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18 U.S.C. § 3142(i)(4) .............................................................................................................. 9, 10 18 U.S.C. § 3582........................................................................................................................... 18 18 U.S.C. § 3624(c) ...................................................................................................................... 18
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PRELIMINARY STATEMENT Respondent Derek Edge, Warden of the Metropolitan Detention Center in Brooklyn, New York (“MDC”), respectfully submits this Memorandum of Law in Opposition to Petitioners’ Motion for a Temporary Restraining Order (ECF No. 12). As shown herein, Petitioner’s Motion should be denied. Petitioners’ fear of contracting Coronavirus Disease-19 (“COVID-19”) does not entitle them to release from the MDC. The Federal Bureau of Prisons (“BOP”) and MDC have taken strong measures to reduce the risk of COVID-19 for inmates and have reduced inmate populations, increased sanitation and screening, limited visitors, increased testing and improved isolation protocols. Against this backdrop, Petitioners have produced no evidence that COVID-19 is spreading in the MDC. To the contrary, COVID-19 has not been spreading in the MDC, with only one inmate having tested positive to date, while in contrast, it has been spreading rapidly among the general public. Petitioners have given this Court no basis to substitute their self-selection for the discretion vested in BOP by statute and regulation. Petitioners’ arguments to the contrary rely in substantial part on either unfounded, unattributed hearsay anecdotes about the facility and the mistaken assumption that just because MDC does not make public every action they are taking, it follows they are not taking any action. The Court should reject Petitioners’ mistaken assumptions. Further, as discussed in greater detail below, Petitioners’ request for the certification of a class and appointment of a Special Master to review the status of all inmates is unfounded and unsupported. Granting such sweeping relief would short-circuit already existing judicial and administrative processes designed to provide such review for inmates.

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The Court should also deny Petitioners’ Motion for a Temporary Restraining Order (“TRO”) because they have failed to establish a likelihood of success on the merits of their claims. To succeed, Petitioners must show that the MDC is deliberately indifferent to their medical needs as a result of the COVID-19 pandemic. But to the contrary, the MDC has actively responded to the pandemic and taken steps to prevent its spread. In addition, the MDC has taken steps to treat any infections and will isolate infected inmates, if and when there is a need. While Petitioners may disagree with the steps the MDC has taken, its efforts do not “shock the contemporary conscience” as required for the petitioners to succeed on their constitutional claims. See Charles v. Orange County, 925 F.3d 73, 85 (2d Cir. 2019). Importantly, the MDC’s efforts to date have been effective, holding the spread of any contagion to a rate that is lower than that which exists in the general public. Thus, Petitioners cannot succeed on the merits, and the TRO should be denied. Respondent submits the instant Memorandum along with the Declaration of Associate Warden Milinda King (“King Decl.”).
FACTUAL BACKGROUND A. Steps Taken at the MDC To Address COVID-19 The MDC located in Brooklyn is an administrative security metropolitan detention center that houses approximately 1700 inmates, who are mostly pre-trial detainees. The MDC’s health services unit comprises a multidisciplinary workforce that consists of U.S. Public Health Service Commissioned Corps officers, federal civil servants, and contract health professionals. Since the World Health Organization (“WHO”) declared COVID-19 a global pandemic on March 11, 2020, BOP medical professionals have been tracking the outbreak, regularly updating MDC’s infection prevention and control protocols, and issuing guidance to field staff on screening and management of potential exposure among inmates.
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In addition, all outside visitors are prohibited from entering the MDC. Inmates have access to an e-mail system, regular telephone calls, and dedicated and unmonitored telephone calls that can connect them with the Federal Defenders of New York. In addition, MDC staff work to arrange legal calls and a limited number of video conferences.
The MDC has increased sanitation frequency. Frequent cleaning of all common area high-contact surfaces is being conducted throughout the day. The facility provides education on COVID-19 to staff and inmates (including postings throughout the facility), and provides inmates daily access to sick call.
To date, the MDC has reported only one confirmed COVID-19 case among its 1700 inmates. In testing for COVID-19, the BOP is following guidance issued by the Centers for Disease Control (“CDC”) to safeguard those in its custody and care.
On March 26, 2020, the Attorney General of the United States, issued a memorandum directing the BOP to consider “at-risk inmates who are non-violent and pose minimal likelihood of recidivism and who might be safer serving their sentences in home confinement rather than in BOP facilities.” See Ex. E (ECF No. 1-4) attached to the declaration of Deirdre D. von Dornum. The Attorney General issued the memorandum to “ensure that [the BOP] utilize[s] home confinement, where appropriate, to protect the health and safety of BOP personnel and the people in our custody.”
The Attorney General’s Memorandum states in part: I am hereby directing you to prioritize the use of your various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic. Many inmates will be safer in BOP facilities where the population is controlled and there is ready access to doctors and medical care. But for some eligible inmates, home confinement might be more effective in protecting their health.
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See Memorandum to the Director of the Federal Bureau of Prisons: Prioritization of Home Confinement as Appropriate in Response to COVID-19 Pandemic (March 26, 2020) (referred to as “Attorney General’s Memorandum”). See id.
The BOP is willing to consider sentenced and designated inmates in its custody for Residential Reentry Center (“RRC”) or home confinement placement, provided they are eligible and do not pose a danger to the community. As relevant specific information is provided on any inmate, BOP may exercise its discretion to release the inmate, provided he or she is not a danger to the community. The BOP takes no position on whether pre-trial inmates in its custody may be released on bail or bond, as that decision lies in the discretion of the United States Attorney’s Office and the Courts.
B. Ongoing Efforts To Address Issues Posed By COVID-19 The MDC, the United States Attorney’s Office, Federal Defenders, and the United States District Court for the Eastern District of New York are engaged in continuing dialogue on a wide range of issues associated with COVID-19. As part of MDC’s effort to ensure the safety of its staff, the inmates, and the public, two representatives from MDC Brooklyn attended an Eastern District of New York Facilities Security Committee to address questions related to its preparations for COVID-19. The MDC representatives presented to the Committee a detailed discussion of the MDC’s preparations for the pandemic. Since that meeting, MDC has continued to evaluate the ongoing challenges and taken steps to maximize the safety of the inmates, staff and the public. As part of the ongoing effort to ensure the safety of the inmates at the MDC, Warden Edge directed that staff create a list of inmates who are most at risk for potential complications for COVID-19. The original version of this list was intended to be over-inclusive, and contained
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the names of inmates who were over 55 years of age, and who had certain medical conditions that might increase their risk. On or about March 23, 2020, as part of ongoing communications between the Federal Defenders of New York, the United States Attorney’s Office, MDC, and the courts to address the challenges posted by COVID-19, the BOP, in good faith, provided the Court with this list, which consisted of approximately 537 inmates that the BOP had identified as potentially at-risk for contracting COVID-19 (referred to as “BOP list”). The Court also facilitated providing the BOP list solely to ensure that the Federal Defenders were aware of whether any of their clients fell into these high-risk categories; the list was not provided for, nor intended to be, fodder for civil litigation. The four petitioners in this case were included on this BOP list. The BOP list did not distinguish between pre-trial and sentenced inmates.
OBJECTIONS TO PETITIONERS’ DECLARATIONS Respondents object to the declarations submitted in support of Petitioners’ Motion for TRO. Petitioners’ attorneys have submitted their own declarations based on hearsay and lack personal knowledge relating to conditions at MDC. The Court should afford little or no weight to these unreliable declarations. Although courts may, in their discretion, give some weight to hearsay and otherwise inadmissible evidence when considering whether to issue emergency relief, see, e.g., Republic of the Philippines v. Marcos, 862 F.2d 1355, 1363 (9th Cir. 1988); Flynt Distrib. Co., Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984), the above declarations warrant little or no weight because they lack foundational support and other indicia of reliability. Indeed, many of the hearsay statements contained in the declarations are attributed to unnamed individuals and simply are not accurate. Given the limited time that Respondent Edge has to oppose the motion for a temporary restraining order, he cannot specifically respond to and refute each of these inaccurate claims in this filing.
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STANDARD OF REVIEW REGARDING A TEMPORARY RESTRAINING ORDER “[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be
granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (citation omitted). “First, the party must demonstrate that it will suffer irreparable harm in the absence of the requested relief.” Latino Officers Ass’n v. Safir, 170 F.3d 167, 171 (2d Cir. 1999). Generally, even if the moving party establishes irreparable harm, a court may not grant the requested injunctive relief unless the moving party also establishes either (a) that it is likely to succeed on the merits or (b) that there are sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships that tips decidedly in favor of the moving party. See Charette v. Town of Oyster Bay, 159 F.3d 749, 754 (2d Cir. 1998). Additionally, where, as here, “the moving party seeks a preliminary injunction that will affect government action taken in the public interest pursuant to a statutory or regulatory scheme,” the injunction should be granted “only if the moving party meets the more rigorous likelihood-of-success standard.’” Wright v. Giuliani, 230 F.3d 543, 547 (2d Cir. 2000) (citation omitted); see also Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 424 (2d Cir. 2004) (because “government action taken in furtherance of a regulatory or statutory scheme [is] presumed to be in the public interest[,] in such situations, a plaintiff must meet a more rigorous likelihood-of-success standard’” to obtain preliminary injunctive relief (internal citation omitted)).
An even higher standard of proof applies in this case because the temporary restraining order that the Petitioners seek would alter, rather than maintain, the status quo. See Wright, 230
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F.3d at 547.1 In this context, the movant must show not only a likelihood of success on the merits, but a “clear” or “substantial” one. Id; Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 n.4 (2d Cir. 2010).
Lastly, a party seeking injunctive relief must also show “that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Veramark Techs., Inc. v. Bouk, 10 F. Supp. 3d 395, 400 (W.D.N.Y. 2014).
The decision whether to grant or deny a TRO or a preliminary injunction falls within the sound discretion of the district court. See CJ Prod. LLC v. Snuggly Plushez LLC, 809 F. Supp. 2d 127, 140 (E.D.N.Y. 2011). However, because a preliminary injunction is “an extraordinary remedy” that may only be awarded “upon a clear showing that the plaintiff is entitled to such relief,” it “is never awarded as of right.” Winter, 555 U.S. at 22, 24.
ARGUMENT Petitioners have failed to meet their heavy burden of establishing that they are entitled to a temporary restraining order. Petitioners assert that, because of their age and/or medical conditions, they have elevated risk of serious, adverse outcomes if they contract COVID-19. Some of the conditions alleged, especially if treated and/or controlled, do not render them at high risk for COVID-19 pursuant to the Centers for Disease Control (CDC). See https://www.cdc.gov/coronavirus/2019ncov/specific-groups/people-at-higher-risk.html (last visited March 31, 2020) (listing risk factors as age 65 or older; living in nursing homes or long-term care facilities; chronic lung disease;
1 Petitioners argue that they are maintaining the status quo “of their health.” This argument is unavailing – the TRO they seek most decidedly changes the status quo of their incarceration status, which is the focus of their requested relief. Under the relevant law, they seek a mandatory TRO.
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moderate to severe asthma; serious heart conditions; immunocompromised; severe obesity; potentially diabetes, renal failure, or liver disease, particularly if not well controlled; and potentially pregnancy).
In any event, Petitioners’ assertion that detention per se poses an increased risk of health complications or death from COVID-19 is purely speculative. To date, there has been only one reported case of COVID-19 among inmates at the MDC. In contrast, COVID-19 is spreading rapidly in the communities into which Petitioners seek to be released. Even assuming a concentrated inmate population, crowding in and of itself does not cause COVID-19 infection if no one in the group has contracted COVID-19. Petitioners’ claims of future injury are hypothetical, and they are not entitled to release from detention based on a conjectural injury that they have not suffered, and are not immediately threatened with. An injunction is “unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged . . . — a likelihood of substantial and immediate irreparable injury.” Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) (internal quotation omitted).
Moreover, even if the number of reported cases of COVID-19 increased at the MDC, Petitioners cannot show that the MDC is unprepared to respond to that contingency. The BOP has expended extensive resources and efforts to address the very issues that Petitioners have identified, and is prepared to address the challenges posed by COVID-19, as follows:
1. MDC Brooklyn screens all new inmates, as well as any inmate returning to the facility -- e.g., from a hospital trip or court. These screenings include questions relating to symptoms consistent with COVID-19, and risk of exposure, including recent travel.
2. Incoming detainees are initially screened in Receiving and Discharge (R&D), not in the intake housing unit or general population. They are then brought to an intake unit where they are isolated for 14 days to ensure the inmates do not
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develop symptoms. After the expiration of 14 days, and upon medical clearance, inmates may be released into general population. 3. Inmates being transported to Court are also screened in accordance with standing administrative orders issued by the Chief Judges of the Eastern and Southern Districts of New York. These orders require that all inmates’ temperature is taken, and if he or she registers a body temperature of 100.4 degrees or higher, the inmate will not be produced. 4. Any inmate, whether a new commit or not, who presents with symptoms consistent with COVID-19 will be evaluated by MDC Brooklyn’s health services department. Based upon the evaluation, a determination will be made whether isolation2 and testing is appropriate. 5. If any inmate is isolated, those inmates housed in the same housing unit with him or her will be quarantined pending results of the test, or 14 days, whichever is sooner. 6. Detainees may also be placed in a quarantine/isolation setting if exposed to a person with COVID-19, where they will be monitored daily for an incubation period of at least 14 days. Quarantine or isolation is only discontinued once 14 days elapse with no inmates developing new symptoms. 7. All new inmates admitted to the facility receive soap. Soap is also delivered to unit team on a biweekly basis. An inmate may request additional soap from unit team if he or she needs to, or purchase soap from commissary. All inmates have access to sinks and soap at all times. 8. Guidance from the BOP’s Central Office Health Services Division indicates that any type of soap (whether anti-bacterial or deodorant) is effective as long as proper handwashing procedures are followed. Additionally, hand washing with soap and water is superior to using hand sanitizer. Hand sanitizer is a last resort when soap and water are not available, which they are. 9. MDC administrative staff have explained best practices regarding personal hygiene to prevent the spread of COVID-19 to both detainees and staff. Staff have been notified via email and in a recall.3 Information sheets are also posted in numerous locations around the facility, including inmate housing units, the front lobby, and all departments. Staff are also notified of important updates by the BOP alert system, known as the ops planner. 10. Inmates have been notified via town halls, and information bulletins have been posted on TRULINCS in both English and Spanish. Executive staff members have conducted town halls on March 13, 2020, March 20, 2020, March 21, 2020, March 24, 2020, and March 27, 2020. As guidance changes, MDC Brooklyn will provide updates to the inmate population and staff members. 11. Additional sanitation procedures have been put in place. Additional and stronger cleaning supplies have been issued and used by inmates and staff alike.
2 Isolation means that an inmate is confined to his or her cell, except to place a legal call or to shower. Personal protective equipment (“PPE”) are being utilized in either of those circumstances. Quarantine, on the other hand, refers to inmates remaining on their housing unit, cohorted together. They are not required to remain in his or her cell, and may interact and utilize the common area. However, they will not be moved from the housing unit to other areas of the institution. 3 A recall is another name for a facility-wide meeting that staff are encouraged to attend.
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12. Inmate orderlies have been provided cleaning materials, and cleaning supplies are available on the housing unit for use by inmates to clean their personal living spaces (cells).
13. Once MDC Brooklyn learned of one inmate testing positive for COVID-19, MDC Brooklyn conducted a deep clean of the facility. Inmate orderlies were provided personal protective equipment in order to clean during this period.
14. Pill line and insulin line are conducted twice a day in housing units. Medical staff perform sick call every day on the housing units.
15. There has been a significant decrease in routine group meetings among inmates and staff.
16. Custody staff has been given an increased stock of PPE. Also, for those staff members who have not received fit-testing for N-95 respirator masks, additional testing is being performed, if requested by staff.
17. Access to legal counsel remains of paramount importance at MDC Brooklyn. MDC Brooklyn is mitigating the risk of exposure by increasing the amount and provision of legal calls and now offering video teleconferences (VTC) with attorneys on a limited basis.
18. MDC medical staff is prioritizing immediate medical care for anyone who claims symptoms indicative of COVID-19 infection.
19. MDC employees have been urged to stay home if they are ill, and individuals conducting health screening at the front entrance can deny an employee entry if he or she reports a fever or symptoms consistent with COVID-19.
20. To date, there has only been one inmate who has tested positive for COVID-19. There have been five (5) confirmed cases of staff members who have tested positive for COVID-19.
21. MDC has identified inmates who fall into categories designated by the CDC as higher risk for COVID-19. This list is updated periodically, especially as guidance by the CDC regarding who is at greater risk is updated.
22. Posters in both English and Spanish issued by the CDC relating to COVID-19 that have been posted throughout the MDC.
23. On March 13, 2020, BOP’s Central Office issued nationwide guidance regarding modified operations to prevent and mitigate the spread of COVID-19. The guidance has undergone frequent updates since they were first issued. Latest updates available at: https://www.bop.gov/coronavirus/covid19_status.jsp.
See generally King Decl.
In light of the efforts the BOP has made to contain and protect inmates from COVID-19,
and in light of only one case being reported, Petitioners cannot show as they must that there is a
“likelihood of substantial and immediate irreparable injury.” Lyons, 461 U.S. at 111.
Other courts, in addressing requests for relief in light of the COVID-19 pandemic, have
held that “[t]he ‘possibility’ of harm is insufficient to warrant the extraordinary relief of a TRO.”
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Dawson v. Asher, No. C20-0409JLR-MAT, 2020 WL 1304557, at *3 (W.D. Wash. Mar. 19, 2020) (quoting Winter, 555 U.S. at 22); Francisco v. Decker, Case 2:20-CV-02176-CCC at 3-4 (D.N.J. March 25, 2020) (“Although he expresses his fear of the coronavirus which is presently afflicting the United States, two cases of which have occurred at the jail in which he is housed, Petitioner himself does not allege that he has contracted or been directly exposed to the virus, and his fears of contracting it at this point are speculative.”).
In United States v. Hamilton, No. 19-CR-54-01, 2020 WL 1323036 (E.D.N.Y. Mar. 20, 2020), Judge Garaufis denied defendant Darin Hamilton’s request for temporary release under 18 U.S.C. § 3142(i)(4). Hamilton alleged the same reasons, as Petitioners here, in support of his request for release from the MDC. Hamilton argues that, in light of his advanced age and medical conditions, the ongoing COVID-19 pandemic constitutes “another compelling reason” to permit his temporary release under 18 U.S.C. 3142(i)(4). The Court noted that this provision has been used sparingly to permit a defendant’s release where, for example, he is suffering from a terminal illness or serious injuries. See, e.g., United States v. Scarpa, 815 F. Supp. 88 (E.D.N.Y. 1993) (permitting release of defendant suffering from terminal AIDS that could no longer be managed by correctional authorities); see also United States v. Stephens, 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020) (permitting release of defendant due to COVID-19 pandemic). Judge Garaufis held that while mindful of Hamilton’s concerns, the Court did not believe that the COVID-19 outbreak constituted a sufficiently compelling reason to justify release under the circumstances of this case given the risks that Hamilton’s release would pose. The Court held that possibility of an outbreak at MDC is not a “compelling circumstance” justifying his release. Judge Garaufis further recognized that the Bureau of Prisons was taking system-wide precautions to mitigate the possibility of infection within its facilities. See also
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United States v. Gileno, 3:19-cr-161-(VAB)-1, 2020 WL 1307108 (D. Conn. Mar. 19, 2020) (denying Gileno’s request to substitute the remainder of his imprisonment with home confinement notwithstanding the COVID-19 pandemic); see also United States v. Redzepagic, 17-cr-228 (DRH) (AKT), Dkt. No. 118 (E.D.N.Y. Mar. 30, 2020) (denying defendant’s bail request over COVID-19 concerns).
Likewise, here, Petitioners have not demonstrated that they have suffered substantial and immediate irreparable injury. Accordingly, their Petition and TRO should be denied.
A. Petitioners’ Alleged Injury Is Not Redressable By Release Petitioners’ alleged injury -- that they are subject to a heightened risk of death or serious illness if they contract COVID-19 -- will not be redressed by ordering their release. Petitioners’ requested relief will not ameliorate or diminish their claimed heightened risk of injury or death resulting from COVID-19, nor can a court order requiring release prevent Petitioners from contracting COVID-19. Additionally, there is scant evidence in the record about the housing conditions into which Petitioners seek to be released, such as whether they also involve people living in close quarters, and living with individuals who present a risk of exposure. This is especially true where, as stated in detail above, MDC is taking concrete steps to reduce the risk of those in its custody to exposure to COVID-19. B. Petitioners Do Not Satisfy The Requirements For Preliminary Relief
1. Petitioners Are Unlikely To Succeed On The Merits. Likelihood of success on the merits is a threshold issue: “[W]hen a plaintiff has failed to show the likelihood of success on the merits, [the court] need not consider the remaining three Winters elements.” Garcia, 786 F.3d at 740 (internal quotation omitted). Petitioners’ constitutional claim boils down to an argument that the MDC is constitutionally required to
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reduce its inmate population, and Petitioners are the ones who are entitled to be released. Petitioners in effect invite the Court to ignore the discretion vested in the BOP to release inmates in appropriate circumstances, and instead decide that Petitioners are entitled to release. Petitioners have no such entitlement.
Petitioners’ Motion for a TRO should be denied because they have failed to establish a sufficient likelihood of success on the merits of their claims. Petitioners claim that they face conditions of crowding and scant medical care resources. These claims lack merit. Accordingly, they cannot make the required “clear” or “substantial” showing of success on the merits and this Petition and Motion should be denied.
Petitioners in effect request that this Court overrule a statutory and regulatory scheme, governing early release procedures for inmates. Additionally, Petitioners ask that this Court second-guess the experts at the BOP during an ongoing and uncertain public health crisis, and immediately release a number of inmates into the general public. But Petitioners have failed to show that the government’s efforts to prevent the Petitioners’ infections with COVID-19, and its provision of medical care to Petitioners should they become ill, amounts to deliberate indifference to their medical needs. On the contrary, the MDC has instituted numerous provisions and safeguards to protect inmates at the MDC from infection, and from negative health consequences should that infection spread within the MDC. Of note, Petitioners have not even shown that infection at the MDC is likely in light of the MDC’s many precautions, let alone that they would be able to seek and obtain treatment elsewhere.
The Second Circuit has delineated the requirements of a conditions-of-confinement claim brought by inmates alleging inadequate medical care. In Charles v. Orange County, 925 F.3d 73 (2d Cir. 2019), the Circuit held that “[i]n order to establish a violation of a right to substantive
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due process, a plaintiff must demonstrate not only government action but also that the government action was so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Id. at 85 (citation and quotation marks omitted). In particular, an inmate raising a constitutional challenge to the medical care provided in detention must establish “(1) that [the inmate] had a serious medical need . . . , and (2) that the Defendants acted with deliberate indifference to such needs.” Id. at 86. The Second Circuit further explained that, to establish deliberate indifference in the context of an inmate’s medical needs, the inmate had to prove that the defendant failed to provide treatment while having actual or constructive knowledge that doing so would pose a substantial risk to the detainee’s health:
[A] detainee asserting a Fourteenth Amendment claim for deliberate indifference to his medical needs can allege either that the defendants knew that failing to provide the complained of medical treatment would pose a substantial risk to his health or that the defendants should have known that failing to provide the omitted medical treatment would pose a substantial risk to the detainee’s health. Id. at 87. Petitioners cannot establish deliberate indifference here. Further, Petitioners’ assertions are overly generalized and do not relate to the MDC specifically, or the measures implemented there. Indeed, Petitioners fail to recognize many of the implemented policies and procedures discussed above. The government has taken steps to provide all MDC inmates with adequate medical care, both with respect to the prevention of infection with COVID-19 as well as the treatment should they become infected with COVID-19. Far from being indifferent, the government has taken significant steps to minimize the risk of infection at the MDC. Even if Petitioners disagree with the government’s efforts to prevent the spread and treatment of COVID-19, the relevant standard here is deliberate indifference. The government’s ongoing efforts to respond to the COVID-19 crisis soundly
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rebut any showing of deliberate indifference in this instance, and preclude Petitioners from succeeding on the merits of their claims.
Courts around the country have denied similar TRO requests, finding that the petitioners had failed to show a likelihood of success on the merits. See Dawson, 2020 WL 1304557, at *5 (no evidence that anyone at the detention facility had COVID-19, and Plaintiffs did not address the measures Defendants were taking to prevent such a spread from occurring); Sacal-Micha v. Longoria, 20-CV-37, at *8 (S.D.T.X. Mar. 27, 2020) (record showed ICE implemented preventative measures to reduce the risk of contracting COVID-19).
Courts around the country have recently received challenges to detention on the grounds of COVID-19 in the criminal bail context and have recognized the government’s public health efforts, particularly the efforts of the Bureau of Prisons, to address the COVID-19 crisis. See United States v. Martin, No. PWG-19-140-13, 2020 WL 1274857, at *4 (D. Md. Mar. 17, 2020); United States v. Jefferson, No. CCB-19-487, 2020 WL 1332011, at *1 (D. Md. Mar. 23, 2020); United States v. Hamilton, No. 19-CR-54-01 (NGG), 2020 WL 1323036, at *2 (E.D.N.Y. Mar. 20, 2020); United States v. Gileno, No. 3:19-cr-161-(VAB)-1, 2020 WL 1307108, at *4 (D. Conn. Mar. 19, 2020); United States of America, v. Tommie Rollins, No. 11-CR-251S, 2020 WL 1482323 (W.D.N.Y. Mar. 27, 2020) (denying motion for release from custody pending sentencing and explaining that “[a]s serious as it is, the outbreak of COVID-19 simply does not override the statutory detention provisions above.”).
Even assuming arguendo that Petitioners could show that they were likely to prevail on their claim that the conditions of their detention violate the Fifth and Eighth Amendments, they cannot establish that they are entitled to immediate release “as opposed to injunctive relief that would leave [them] detained while ameliorating any alleged violative conditions within the
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facility.” Dawson, 2020 WL 1304557, at *2.4 Moreover, as the Supreme Court has recognized, it is not appropriate for a court to give a final judgment on the merits at the preliminary stage. Univ. of Texas, 451 U.S. at 395. The BOP has implemented procedures and protocols to protect the inmates in its care and custody, including at the MDC.
Petitioners essentially argue that the Court should find that MDC cannot continue to exercise its statutory and regulatory discretion as to which inmates should be released. Petitioners also assert that MDC’s efforts are “inadequate” to address COVID-19, where MDC is acting to protect the safety of the inmates. Petitioners should not, on less than 24 hours-notice to defendant, be granted such sweeping and unprecedented relief when existing administrative and statutory proceedings can grant them the relief they seek, if appropriate.
As discussed earlier, Petitioners’ motion for a TRO essentially short-circuits ongoing conversations between various parties to address these issues, and the established administrative and statutory proceedings to address these issues. Petitioners’ requested relief to short-circuit the criminal justice process by appointing—in this civil matter—a Special Master who would, in Petitioners’ view, have the authority to determine which criminal defendants may be released from BOP custody and which criminal defendants may not. Such an unprecedented action would undermine the authority of district judges and magistrate judges throughout this district, as these judges would no longer be able to make custody determinations about criminal cases on their own dockets.
Incredibly, despite asking the Court to usurp these processes through the appointment of a Special Master, Plaintiffs fail to even address the Fed. R. Civ. P. 53 requirements for the appointment of a Special Master. Contrary to Fed. R. Civ. P. 53(a)(1)(C), Petitioners make no
4 Petitioners have not sought any changed conditions in the MDC, let alone met their burden to show that they would be entitled to mandatory injunctive relief in that regard.
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attempt to explain why criminal defendants cannot “effectively and timely” address their claims by the “available district judge or magistrate judge of the district.” Id. Indeed, incarcerated criminal defendants have already raised their COVID-19 concerns in other cases in this district. See United States v. Hamilton, No. 19-CR-54-01, 2020 WL 1323036, at *2 (E.D.N.Y. Mar. 20, 2020) (Garaufis, J.); United States v. Redzepagic, 17-cr-228 (DRH) (AKT), Dkt. No. 118 (E.D.N.Y. Mar. 30, 2020).
But even if Petitioners had sought to argue that a Special Master is needed here pursuant to Fed. R. Civ. P. 53, the Constitution and the separation of powers doctrine prohibits this Court from ordering this non-consensual appointment. In short, a Special Master does not, and indeed, cannot, possess the attributes that Article III of the Constitution demand here.
“The role of the Special Master is not meant to supplant the role of the court.” Board of Governors of the Federal Reserve System v. Pharaon, 140 F.R.D. 642, 649 (S.D.N.Y.1991). In Cadwell Indus., Inc. v. New York Hosp.-Cornell Med. Ctr., the Southern District of New York noted that the express language of Fed. R. Civ. P. 53 provides that “a reference to a master shall be the exception and not the rule.” Cadwell Indus., Inc. v. New York Hosp.-Cornell Med. Ctr., 88 Civ. 7307 (LMM), 1993 WL 60604, at *2 (S.D.N.Y. Feb. 26, 1993). A reference to a master “is intended to aid courts in the performance of their judicial duties” and thus, reference should be “discouraged where the matter sought to be referred may be dispositive of basic issues involved in the litigation.” Id. (quoting United States v. Hooker Chemicals & Plastics Corp., 123 F.R.D. 62, 63 (W.D.N.Y. 1988)).
A Special Master would be ill-equipped to usurp the authority of BOP officials, prosecutors, district and magistrate judges to make the unparalleled and case-specific custody determinations that Plaintiffs seek here. See In re Bituminous Coal Operators’ Ass’n, Inc., 949
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F.2d 1165, 1168 (D.C. Cir. 1991) (granting a writ of mandamus against a district judge because the judge “has no discretion to impose on parties against their will ‘a surrogate judge,’ a substitute from the private bar charged with responsibility for adjudication of the case.”); Stauble v. Warrob, Inc., 977 F.2d 690, 695 (1st Cir. 1992) (“Because Rule 53 cannot retreat from what Article III requires, a master cannot supplant the district judge.”); see also Moore’s Federal Practice 3D, §53.03[3] (“Article III of the Constitution effectively places limits on a district court’s authority to appoint a special master under Rule 53”); Cf. Madrigal Audio Labs., Inc. v. Cello, Ltd., 799 F.2d 814, 818 (2d Cir.1986) (noting that the district judge’s explanation that he did not “understand anything about ... patent or trademark” law and was “not about to educate [him]self” was not sufficient reason to justify appointment of a master to hear and determine the entire case). Indeed, it is long established that “Article III bars a district court ‘of its own motion, or upon the request of one party’ from ‘abdicating its duty to determine by its own judgment the controversy presented, and devolve that duty upon any of its officers.’” Stauble, 977 F.2d at 695 (quoting Kimberly v. Arms, 129 U.S. 512, 524 (1889)).
Finally, as Respondent does not consent to the entry of the TRO nor the appointment of a Special Master, the Court should not take the unusual step of appointing one absent such consent. In Wasley Prod., Inc. v. Bulakites, the District of Connecticut explained that although there is wide discretion afforded to courts in appointing a special master, “it is impermissible to refer fundamental issues of liability to a special master over the objection of one or more parties.” Wasley Prod., Inc. v. Bulakites, 3:03cv383(MRK)(WIG), 3:03CV1790(MRK)(WIG), 2006 WL 3834240, at *11 (D. Conn. May 31, 2006).
For all these reasons, Petitioners have not shown that they are likely to succeed on the merits.
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2. Petitioners Have Not Shown Irreparable Harm Petitioners cannot show irreparable harm such that an injunction or TRO should issue. To the contrary, as discussed above, the MDC has taken significant steps to ensure the health and safety of inmates, and the minimization of risk of exposure to all detainees at the MDC. The MDC also has instituted necessary precautions and procedures to ensure that any inmates who become ill will be well-cared for. Petitioners have failed to establish irreparable harm on their constitutional claims. “To satisfy the irreparable harm requirement, [petitioners] must demonstrate that absent [relief] they will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm.” Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005) (quotation marks omitted). Merely showing a “possibility” of irreparable harm is insufficient. See Winter, 555 U.S. at 22. Moreover, mandatory injunctions are not granted unless extreme or very serious damage will result. See Marlyn Nutraceuticals, Inc., 571 F.3d at 879 (internal citation omitted). “Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with [the Supreme Court’s] characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. As discussed above, Petitioners fail to take into account the myriad protections which have been put in place to not only prevent spread of infection within the MDC, but to reduce the risk that COVID-19 enters the MDC in the first place. Moreover, Petitioners fail to address in any meaningful way how, if released, they will be safer from the risk of infection or have access to adequate care if infected. Thus, Petitioners are far from showing irreparable harm.
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Petitioners assert that only release from detention at the MDC into the community will spare them the heightened risk of adverse consequences from COVID-19. As in Dawson, “[t]here is no evidence of an outbreak at the detention center or that Defendants’ precautionary measures are inadequate to contain such an outbreak or properly provide medical care should it occur.” 2020 WL 1304557, at *3.
Further, Petitioners have other, alternative methods for relief other than seeking a temporary restraining order, for securing early release. See, e.g., 18 U.S.C. § 3582 (compassionate release); 18 U.S.C. § 3624(c) (prerelease custody/home confinement).
Petitioners have not shown irreparable harm. 3. The Balance Of Interests And Public Interest Favors Respondent
The balance of the equities weighs in the government’s favor and in favor of maintaining Petitioners’ detention at the MDC, for their own safety and that of the public.
As Courts have recognized, the government has a legitimate and compelling interest in protecting public safety. See, e.g., Johnson v. Barr, No. 19-CV-693-LJV, 2019 WL 6112338, at *7 (W.D.N.Y. Nov. 14, 2019) (“The government’s interest in preventing crime by arrestees is both legitimate and compelling.”) (quoting United States v. Salerno, 481 U.S. 739, 749 (1987)); Singh v. Barr, No. 19-CV-1208-LJV, 2019 WL 6609312, at *5 (W.D.N.Y. Dec. 3, 2019) (finding that “the government’s interests in . . . protecting against a danger to the community may be served” by immigration detention). Petitioners’ argument is highly generalized, and would have an unwieldly result if followed to its logical conclusion. As one court addressing a similar claim recognized:
In essence, Sacal contends that a high likelihood exists that many detainees in the Port Isabel Detention Center will contract COVID-19, and that for those who are elderly or suffer from underlying medical conditions that render them prone to the more serious aspects of the virus, the risk of death is significant. Sacal offers no evidence to support
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these propositions other than conclusions extrapolated from general information. And accepting Sacal’s reasoning would logically require the release of all individuals currently detained who are elderly or suffer from certain underlying medical conditions. The law does not require such a generalized result. Sacal-Micha, 20-CV-37, at pg. 9. As an initial matter, the public’s interest is not served by short circuiting the existing administrative and judicial processes that are designed to carefully weigh freeing the individuals at issue from custody against the risk to public safety in doing so. The risk of danger to the public in granting a TRO requiring the immediate release of the four petitioners, who have been convicted and sentenced for their crimes, outweighs the alleged need for expediency here. BOP policy requires determinations to be made as to which inmates are entitled to home confinement (see, e.g., Attorney General’s Memorandum), or the other judicial avenues available to both pretrial and convicted detainees. Further, the government’s interest in public safety extends to protecting the public from the risk of the spread of COVID-19. Indeed, in the Attorney General’s Memorandum on which Petitioners rely in their argument that they should be entitled to home confinement, the Attorney General makes clear that such release should be done in a manner that balances the safety considerations for all involved. The Memorandum states: “While we have an obligation to protect BOP personnel and the people in BOP custody, we also have an obligation to protect the public. That means we cannot take any risk of transferring inmates to home confinement that will contribute to the spread of COVID-1 9, or put the public at risk in other ways. I am therefore directing you to place any inmate to whom you grant home confinement in a mandatory 14-day quarantine period before that inmate is discharged from a BOP facility to home confinement. Inmates transferred to home confinement under this prioritized process should also be subject to location monitoring services and, where a court order is entered, be subject to supervised release.” Attorney General’s Memorandum at 2. These
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weighty considerations cannot be adequately addressed by the Court’s grant of a temporary restraining order that permits the Petitioners’ immediate release.
Petitioners have not shown that the balance of hardships and public interest tips in their favor.
CONCLUSION For all of the foregoing reasons, Petitioners have not satisfied their heavy burden of establishing entitlement to mandatory injunctive relief, and their Motion for a Temporary Restraining Order should be denied.

Dated: Brooklyn, New York March 31, 2020

RICHARD P. DONOGHUE United States Attorney Counsel for Respondent Eastern District of New York 271-A Cadman Plaza East, 7th Fl. Brooklyn, New York 11201
By: s/ James R. Cho JAMES R. CHO Assistant United States Attorney (718) 254-6519 james.cho@usdoj.gov

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------x
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI by his Next Friend Migdaliz Quinones; and JUSTIN RODRIGUEZ by his Next Friend Jacklyn Romanoff, individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.
---------------------------------------------------------x

Civil Action No. 20-CV-1590 (Kovner, J.)

DECLARATION OF ASSOCIATE WARDEN MILINDA KING I, Associate Warden Milinda King, declare as follows: 1. I currently hold the position of Associate Warden for Operations at the Metropolitan Detention Center in Brooklyn (“MDC Brooklyn”). 2. MDC Brooklyn is an administrative facility that houses both pre-trial detainees, holdover inmates, and designated (cadre) inmates, who serve their federal sentence at the institution. 3. As of March 31, 2020, MDC Brooklyn houses 1,749 inmates, including 38 female inmates, and 101 designated (cadre) inmates. 4. MDC Brooklyn is open and willing to consider inmates who are appropriate for release to Residential Reentry Centers (“RRC”) or home confinement. See Program Statement, 7310.04 (attached as Exhibit 1). This review is initially conducted by a unit

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Exhibit 1

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Change Notice

DIRECTIVE AFFECTED: 7310.04 CHANGE NOTICE NUMBER: 7310.04
DATE: 12/16/98

1. PURPOSE AND SCOPE. To reissue the Program Statement on Community Corrections Center (CCC) Utilization and Transfer Procedures.
2. SUMMARY OF CHANGES. This reissuance incorporates text consistent with the recently issued Program Statement on Categorization of Offenses. In addition, text and procedural improvements recommended by field and Regional Office staff have also been incorporated. These changes are summarized below:
! Incorporates recommendations made by the Mothers and Infants Together (MINT) workgroup;
! Allows inmates who are otherwise eligible for camp placement to be transferred to a camp prior to transfer to a CCC; and,
! Eliminates the possibility of ?stacking? time in a halfway house by combining Bureau referral placement with public law or supervised release placement.
3. ACTION. File this Change Notice in front of the Program Statement on Community Corrections Center (CCC) Utilization and Transfer Procedure.
/s/ Kathleen Hawk Sawyer Director

Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 3 of 47 PageID #: 221 U.S. Department of Justice Federal Bureau of Prisons

Program Statement

OPI: NUMBER:
DATE: SUBJECT:

CPD 7310.04 12/16/98 Community Corrections Center (CCC) Utilization and Transfer Procedure

1. PURPOSE AND SCOPE. To provide guidelines to staff regarding the effective use of Community Corrections Centers (CCCs). This Program Statement defines placement criteria for offenders, requires that staff members start the placement process in a timely manner, and defines the circumstances when inmates may refuse Community Corrections (CC) programs. It also establishes an operational philosophy for CCC referrals that, whenever possible, eligible inmates are to be released to the community through a CCC unless there is some impediment as outlined herein.
CCCs provide an excellent transitional environment for inmates nearing the end of their sentences. The level of structure and supervision assures accountability and program opportunities in employment counseling and placement, substance abuse, and daily life skills.
One reason for referring an inmate to a CCC is to increase public protection by aiding the transition of the offender into the community. Participating in community-based transitional services may reduce the likelihood of an inmate with limited resources from recidivating, whereas an inmate who is released directly from the institution to the community may return to a criminal lifestyle. While clearly dangerous inmates should be separated from the community until completing their sentences, other eligible inmates should generally be referred to CCCs to maximize the chances of successful reintegration into society.
Finally, the scope of this Program Statement has been extended to include CCC consideration/placement of District of Columbia Department of Corrections inmates.

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PS 7310.04 12/16/98 Page 2

2. PROGRAM OBJECTIVES. The expected results of this program are:

a. All eligible inmates will have opportunities to participate in CCC programs to assist with their reintegration into the community, in accordance with their release needs.

b. All inmates will have opportunities to communicate directly with staff who make significant CCC referral recommendations.

c. Referral packets for CCC placement will be timely and complete.

d. Before any inmate is transferred to a CCC, the CCC staff will have the required notice and other documentation.

e. The public will be protected from undue risk.

3. DIRECTIVES AFFECTED

a. Directive Rescinded

PS 7310.03

Community Corrections Center (CCC) Utilization and Transfer Procedures (3/25/96)

b. Directives Referenced

PS 1434.06
PS 1490.04 PS 5100.06
PS 5110.12
PS 5180.04 PS 5250.01
PS 5264.06 PS 5280.08 PS 5322.10
PS 5325.05
PS 5330.10 PS 5380.05

Jurisdiction on Escape Related Issues Memorandum of Understanding USMS/FBI/BOP (7/25/94) Victim and Witness Notification (2/3/98) Security Designation and Custody Classification Manual (6/7/96) Notifications of Release to State and Local Law Enforcement Officials (1/21/98) Central Inmate Monitoring System (8/16/96) Public Works and Community Service Projects (1/19/93) Telephone Regulations for Inmates (12/22/95) Furloughs (2/4/98) Classification and Program Review of Inmates (9/4/96) Release Preparation Program, Institution (7/18/96) Drug Abuse Programs Manual, Inmate (5/25/95) Financial Responsibility Program, Inmate (12/22/95)

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PS 7310.04 12/16/98 Page 3

PS 5550.05
PS 5553.05 PS 5800.07 PS 5800.11
PS 5873.05
PS 5882.03 PS 6000.05 PS 6070.05
PS 7300.09 PS 7320.01 PS 7331.03 PS 7430.01

Escape from Extended Limits of Confinement (3/27/96) Escapes/Deaths Notification (9/17/97) Inmate Systems Management Manual (12/24/91) Central File, Privacy Folder, and Parole Mini File (9/7/97) Release Gratuities, Transportation, and Clothing (9/4/96) Fines and Costs (2/4/98) Health Services Manual (9/15/96) Birth Control, Pregnancy, Child Placement, and Abortion (8/9/96) Community Corrections Manual (1/12/98) Home Confinement (9/6/95) Pretrial Inmates (11/22/94) Community Transitional Drug Treatment Services, Inmate (1/20/95)

18 U.S.C. § 3621(b) 18 U.S.C. § 3624(c)

4. STANDARDS REFERENCED

a. American Correctional Association 3rd Edition Standards for Adult Correctional Institutions: 3-4265, 3-4343, 3-4343-1, 3-4387, 3-4388, 3-4388-2, 3-4389, 3-4391, 3-4393, 3-4393-1

b. American Correctional Association 3rd Edition Standards for Adult Local Detention Facilities: 3-ALDF-3E-04, 3-ALDF-4E-19, 3-ALDF-4E-19-1, 3-ALDF-4F-04, 3-ALDF-4F-05, 3-ALDF-4F-07, 3-ALDF-4G-01, 3-ALDF-4G-06, 3-ALDF-4G-07

c. American Correctional Association 2nd Edition Standards for Administration of Correctional Agencies: 2-CO-4G-01, 2-CO-4G-02

d. American Correctional Association Standards for Adult Correctional Boot Camp Programs: 1-ABC-3D-04, 1-ABC-4E-20, 1-ABC-4F-08, 1-ABC-4F-10, 1-ABC-4G-01, 1-ABC-4G-02, 1-ABC-4G-03, 1-ABC-4G-06

5. STATUTORY AUTHORITY. 18 U.S.C. § 3624(c), provides:

"The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last ten per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust

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to and prepare for the prisoner’s reentry into the community. The authority provided by this subsection may be used to place a prisoner in home confinement. The United States Probation Office shall, to the extent practicable, offer assistance to a prisoner during such pre-release custody."
18 U.S.C. § 3621(b) provides:
"The Bureau of Prisons shall designate the place of the prisoner's imprisonment. The Bureau may designate any available penal or correctional facility . . . the Bureau determines to be appropriate and suitable." A CCC meets the definition of a "penal or correctional facility."
Therefore, the Bureau is not restricted by § 3624(c) in designating a CCC for an inmate and may place an inmate in a CCC for more than the "last ten per centum of the term," or more than six months, if appropriate.
Section 3624(c), however, does restrict the Bureau in placing inmates on home confinement to the last six months or 10% of the sentence, whichever is less.
6. PRETRIAL/HOLDOVER AND/OR DETAINEE INMATES. This Program Statement does not apply to pretrial, holdover, or detainee inmates.
7. COMMUNITY-BASED PROGRAMS
a. Community Corrections Centers (CCC). CCCs, commonly referred to as "halfway houses," provide suitable residence, structured programs, job placement, and counseling, while the inmates' activities are closely monitored. All CCCs offer drug testing and counseling for alcohol and drug-related problems. During their stay, inmates are required to pay a subsistence charge to help defray the cost of their confinement; this charge is 25% of their gross income, not to exceed the average daily cost of their CCC placements. Failure to make subsistence payments may result in disciplinary action.
These contract facilities, located throughout the United States, provide two program components: the Community Corrections Component and the Prerelease Component:
(1) The Community Corrections Component is designed as the most restrictive option. Except for employment and other structured program activities, an inmate in this component is

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restricted to the CCC. An inmate shall ordinarily be placed in the Community Corrections Component upon arrival at the CCC.
This orientation period normally lasts for two weeks or until the inmate has demonstrated to CCC staff the responsibility necessary to function in the community. Based on their professional judgment, CCC staff shall determine when an inmate is prepared to advance to the Prerelease Component.
(2) The Prerelease Component is designed to assist inmates making the transition from an institution setting to the community. These inmates have more access to the community and family members through weekend and evening passes.
b. Community Corrections Programs. In addition to a CCC's traditional services, the Bureau also has the following community-based programs. Referral procedures may be described in independent Bureau directives issuances. The Community Corrections Manager (CCM) reviews the inmate's characteristics and the recommendations noted in the referral package to determine if one of the following programs (if available) may be more appropriate than traditional CCC placement.
(1) Comprehensive Sanctions Center (CSC). The CSC concept, initiated by the Bureau, with the extensive cooperation and teamwork of U.S. Probation and CCC contractors, was developed to provide courts with a wider range of sentencing options and to facilitate the development and implementation of community program plans tailored to the individual needs of prerelease inmates.
The CSC is designed to meet the needs of higher risk prerelease inmates and consists of six different levels of supervision, ranging from 24-hour confinement to Home Confinement.
It also may have an intensive treatment component consisting of substance abuse education and treatment, life skills training, mental health counseling, education, employment assistance, and mentoring. The inmate's progress is systematically reviewed by a Program Review Team (PRT), consisting of representatives from the Bureau, U.S. Probation, and the CCC.
(2) Mothers and Infants Together (MINT). MINT is an alternative residential program that promotes bonding and parenting skills for low risk female inmates who are pregnant. The inmate is placed in the program two months prior to delivery and remains there for three months after delivery.
(3) Home Confinement. Home Confinement is a generic term used to cover all circumstances in which an inmate is required to remain at home during non-working hours of the day. Electronic

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monitoring equipment is sometimes used to monitor compliance with the program's conditions. These programs provide an opportunity for inmates to assume increasing levels of responsibility, while, at the same time, providing sufficient restrictions to promote community safety and convey the sanctioning value of the sentence.
Home Confinement provides an option for inmates who do not need the structure of a residential facility. Except for inmates who are initially sentenced to and graduate from the Intensive Confinement Center Program, statutory provisions limit the length of Home Confinement to the last 10% of the sentence, or six months, whichever is less. Inmates are required to pay subsistence of 25% of their gross income to defray the costs of Home Confinement and electronic monitoring.
The Bureau is involved in two Home Confinement programs: Home Confinement operates from the Bureau's own network of CCCs and the U.S. Probation Division program.
(a) CCC Contractors. The first form of Home Confinement is CCC contractor-operated programs. In these programs, CCC staff monitor the inmate. Currently, only a few of these programs use electronic monitoring equipment. Supervision is provided by daily telephone contacts and periodic personal contacts in the home and workplace.
(b) U.S. Probation Office. The second form of Home Confinement involves placing federal inmates in programs operated by the U.S. Probation Office. These programs use electronic monitoring equipment with U.S. Probation Officers (USPO) providing supervision.
(4) Transitional Services Program (TSP). The communitybased transition phase of the Bureau's Residential Drug Treatment Program is designed to complement the accomplishments and continue the institutional program's treatment plan. It reinforces the inmate's personal responsibility to lead a drugfree lifestyle through personal accountability for choices, confrontation of negative thinking patterns, and instruction in basic social skills. Inmates who successfully complete the Residential Drug Treatment Program's institutional phase should normally be considered for the maximum 180 day period of CCC placement, if they are otherwise eligible.

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(5) Intensive Confinement Center (ICC). A lengthy period of Community Corrections Center confinement follows the completion of the ICC program's institutional phase. The CCC time is divided among the restrictive Community Corrections Component, the Prerelease Component, and Home Confinement. Specific referral procedures are outlined in the ICC Program Statement.
8. RELEASE PLAN. Staff shall begin release planning at an inmate's first team meeting, normally the initial classification, and shall continue throughout the inmate's confinement. The following guidelines apply:
a. Planning early in an inmate's period of confinement is necessary to ensure release preparation needs are identified and appropriate release preparation programs are recommended.
b. Preliminary decisions regarding eligibility for CC Programs are to be made well in advance of the last year of confinement.
c. A final and specific release preparation plan, including a decision as to CCC referral, is normally established at a team meeting no later than 11 to 13 months before an inmate's projected release date.
9. CCC CRITERIA AND REFERRAL GUIDELINES
a. Regular Referrals. Staff shall make recommendations for CCC placements based on assessments of inmate needs for services, public safety, and the necessity of the Bureau to manage its inmate population responsibly. CCCs are a program element and are not to be used as a reward for good institutional behavior, although an inmate's institutional adjustment may be a factor in making a referral determination.
A number of factors must be weighed to determine the length of CCC placement for inmates, including their individual needs and existing community resources. Ordinarily, inmates with shorter sentences do not require maximum CCC placement due to reduced transition needs. Additionally, inmates who are required to spend a portion of time in a CCC as a condition of release (i.e. supervised release or court order) do not require an extended Bureau CCC placement. For example, if the Unit Team determines the inmate needs a six month CCC placement, but the inmate is required to stay in a CCC for 90 days as a condition of release, then the institution shall ordinarily refer the inmate for a 6090 day CCC placement.

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Referrals to CCM offices should include a recommendation regarding the length of stay (range), such as recommending 60 to 90 days or 90 to 120 days, etc. This range of at least 30 days allows the CCM to match population needs with budgetary and CCC bed space resources, a process which requires this flexibility.
However, there will be cases when the institution, for various management reasons, wants the CCM to place the inmate not earlier than a specific date. Then, the CCC referral form should specify a recommended placement date rather than a range and further state that the CCM should not adjust that date. The CCM shall adhere to the recommended date, with any adjustment only being downward if budget and/or bed space constraints are a factor.
The following CCC referral guidelines apply:
(1) An inmate may be referred up to 180 days, with placement beyond 180 days highly unusual, and only possible with extraordinary justification. In such circumstances, the Warden shall contact the Regional Director for approval and the Chief USPO in the inmate's sentencing district to determine whether the sentencing judge objects to such placement.
(2) The ultimate goal is to maximize each eligible inmate's chances for successful release and a law-abiding life.
(3) When an inmate has a history of escape or failure in one or more CC Programs, careful review and consideration should be given regarding the suitability of participation and the length of placement.
(4) Inmates with minor medical conditions or disabilities may also be considered for community placement. Inmates are required to assume financial responsibility for their health care while assigned to community programs. Such inmates must provide sufficient evidence to institution staff of their ability to pay for health care while at a CCC prior to the referral being made. When an inmate is unable or unwilling to bear the cost of necessary health care, the inmate shall be denied placement.
(5) Inmates who have been approved for CCC referral and are otherwise appropriate for camp placement shall be transferred to a camp for intermediate placement. The inmate should have completed the Institution Release Preparation Program at the parent institution. The parent institution shall complete the CCC referral packet and the camp should be closer to the inmate’s release residence. This process should be completed to allow the

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inmate a minimum of a 60 day placement at the camp prior to the acceptance date at the CCC.
b. MINT Referrals. Female inmates are eligible to enter the program at the CCC generally during their last two months of pregnancy. After birth, the mother is allowed three additional months to bond with the child. The mother shall then be returned to an institution to complete her sentence. If she is eligible for prerelease services, she may remain at that facility only if she is going to be supervised in that judicial district.
The CEO may approve early or extended placements with a recommendation by the treating obstetrician and Clinical Director’s concurrence. A placement extending beyond 180 days requires the Regional Director’s approval. Direct court commitments shall have a secondary designation noted on the Inmate Load and Security/Designation form (BP-337). This shall be used to determine the institution responsible for the inmate's medical expenses while she is confined in the MINT Program.
Authority to pay immediate post-natal care of the child born to an inmate while in custody is derived from administrative discretion when the Bureau finds itself responsible for the cost by default (no other resources can be compelled to pay). It is reasonable that the Bureau provides for the child’s medical expenses for the first three days after routine vaginal birth or up to seven days for a Cesarean section.
Prior to the birth, the mother must make arrangements for a custodian to take care of the child. At this time, the CEO shall ensure the person or agency taking custody of the child is also asked to be responsibile for medical care costs beyond three days after birth. (Note: This may be extended by the Regional Director for an additional seven days for extenuating circumstances on a case-by-case basis.) The person(s) receiving custody of the child should sign a Statement of Responsibility for medical care costs, clearly indicating that the signing party accepts financial responsibility. Unit Management staff are responsible for obtaining this statement, and forwarding copies to the Health Services Administrator (HSA) for placement in the HSA's outside hospitalization file and to the Controller (see the Sample Statement of Responsibility (Attachment D)).
Health Services staff shall confirm an inmate's pregnancy and evaluate her medical condition. Health Services staff shall indicate whether CCC placement is medically appropriate and document this on the Medical Evaluation for Transfer of Inmates to CCC Type Facility (BP-351) which shall be forwarded to the Unit Team.
When the Unit Team has concerns regarding the appropriateness of a CCC placement (such as criminal history, severity of current

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offense), procedures will be followed according to Section 10.i.(2), Limitations on Eligibility for All CCC Referrals.
The following CCC referral guidelines apply in addition to the guidelines provided for regular referrals:
(1) The inmate must be pregnant upon commitment with an expected delivery date prior to release.
(2) The inmate or guardian must assume financial responsibility for the child's care, medical and support, while residing at the CCC. Should the inmate or the guardian be unable or unwilling to bear the child's financial cost, the inmate may be transferred back to her parent institution.
(3) An inmate who becomes pregnant while on furlough, or has more than five years remaining to serve on her sentence(s), or plans to place her baby up for adoption shall not be referred for MINT placement.
Referrals to CCMs should state a specific date of placement. This date should be approximately two months prior to the inmate's expected delivery date.
The CCC's Terminal Report should fully describe the inmate's experience in, and reaction to, the MINT Program. It should also summarize counseling received in the program and include followup medical or program recommendations for the institution to facilitate the inmate's transition.
Inmates in need of foster care placement assistance shall be referred to the institution social worker, or if the institution does not have a social worker, staff shall contact a social worker in the community for foster care placement assistance.
10. LIMITATIONS ON ELIGIBILITY FOR ALL CCC REFERRALS. Inmates in the following categories shall not ordinarily participate in CCC programs:
a. Inmates who are assigned a "Sex Offender" Public Safety Factor.
b. Inmates who are assigned a "Deportable Alien" Public Safety Factor.
c. Inmates who require inpatient medical, psychological, or psychiatric treatment.

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d. Inmates who refuse to participate in the Inmate Financial Responsibility Program.
e. Inmates who refuse to participate, withdraw, are expelled, or otherwise fail to meet attendance and examination requirements in a required Drug Abuse Education Course.
f. Inmates with unresolved pending charges, or detainers, which will likely lead to arrest, conviction, or confinement.
g. Ordinarily, inmates serving sentences of six months or less.
h. Inmates who refuse to participate in the Institution Release Preparation Program.
i. Inmates who pose a significant threat to the community. These are inmates whose current offense or behavioral history suggests a substantial or continuing threat to the community.
Examples are inmates with repeated, serious institution rule violations, a history of repetitive violence, escape, or association with violent or terrorist organizations.
To determine whether an inmate poses a significant threat, a number of factors must be considered. The key consideration is public safety when assessing the inmate's proclivity for violence or escape against their placement needs.
A waiver of the Public Safety Factor is not required for inmates transferred via unescorted transfer to CCC placements.
Ordinarily, inmates with a single incident of violence should not automatically be excluded from CCC placement. As noted earlier, clearly dangerous inmates should be excluded from CCC placement.
(1) When there exists a basis for significant doubt regarding whether the inmate currently poses a threat to the community, the Warden should consider contacting the Chief USPO in the release district (see the Sample letter (Attachment A)) to seek guidance on the referral's appropriateness. A copy of this letter shall be maintained in the Inmate Central File.
(2) When an inmate is excluded under this subsection, a memorandum, signed by the Warden, shall be prepared and placed in the Inmate Central File to explain the rationale for exclusion from CC Programs.
j. Inmates whose admission and release status is pretrial, holdover, or detainee.

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11. REFUSALS. When an eligible inmate refuses CCC placement, staff shall investigate the inmate's reasons. Staff may honor an inmate's refusal of CCC placement.
Suitable reasons to decline placement might include previous CCC failure, potential conflict with other residents, and location or remoteness from release residence. When the inmate does not present a suitable reason, and the unit team believes that a placement would serve a correctional need, the unit team shall make every effort to encourage participation.
When an inmate refuses placement, a memorandum, signed by the Associate Warden (Programs) and the inmate, shall be placed in the Inmate Central File. The memorandum should document the inmate's rationale for refusal and all unit team effort to encourage participation.
12. CCC REFERRAL PROCEDURES. Normally 11 to 13 months before each inmate's probable release date, the unit team shall decide whether to refer an inmate to a Community Corrections program.
Medical staff shall notify the inmate's Case Manager promptly when a pregnancy is verified. Upon notification, the unit team shall decide if a MINT referral to a Community Corrections program will be made.
a. Referral to CCM. Staff shall use the Institution Referral form (BP-210) (Attachment B) when referring an inmate for transfer to a CCC. Information included in the Additional Information (11) and Specific Release Preparation Needs (12) sections must be as specific as possible regarding the inmate's needs.
Attachment B contains instructions for completing the Institution Referral form and related materials. Signed copies of the "Community Based Program Agreement" must be included with all CCC referrals. The Warden is the final decision-making authority for all CCC referrals the unit team recommends.
If the Warden approves the CCC referral, the unit team shall forward two copies of the Institutional Referral form and appropriate attachments to the CCM. Staff shall enter the DST SENTRY assignment of "W CCC ACT.” Copies of appropriate documents are prepared so that one may be forwarded to the CCC while the CCM retains the other for reference.
A separate packet with appropriate copies shall be forwarded to the Transitional Services Manager (TSM) in the receiving region where the inmate is being released for graduates of Residential Drug Abuse Programs. Staff are referred to the Drug Abuse Programs Manual for responsibilities and/or documentation requirements. If the CCC referral packet is mailed prior to

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completion of the Treatment Summary and Referral form (BP-549), the Drug Abuse Treatment Coordinator shall forward the completed BP-549 form to the Transitional Services Manager in the region of the inmate's release and provide a copy to the unit team.
The referral packet shall be forwarded to the CCM at least 60 days prior to the maximum recommended range or date. However, additional time may be required for processing inmates with special community-based program needs (i.e. mental health, drug transition, disabilities, and inmates with higher security needs).
For MINT referrals, the referral packet shall ordinarily be forwarded to the CCM at least 60 days prior to the recommended date. If the inmate is committed to Bureau custody or arrives at the designated facility at any stage during the second trimester of pregnancy, the referral shall be forwarded to the CCM as quickly as possible.
If an inmate is scheduled for release via parole, and CCC placement is for 45 days or less, a copy of correspondence directed to the U.S. Parole Commission (USPC) outlining the release plan and requesting parole certificates, as well as copies of the USPO’s letter recommending release plan approval, must be included in the referral package.
b. Mandatory CCC Residence. When an inmate must reside in a CCC as a condition of parole, mandatory release, or supervised release supervision after release from confinement, the institution shall refer the case to the appropriate CCM, who shall refer the case for placement under these procedures:
Institutions shall notify the USPC of cases that cannot be placed (see specific information in Attachment B). Inmates in this category should not be referred for transitional purposes and have this time "stacked" on to the Court or USPC's ordered period of CCC placement.
Inmates releasing from an institution via 3621E CMPL or 4046C CMPL, or who have mandatory CCC residence as a condition of parole, mandatory release, or supervised release supervision, should be referred for release preparation transfer to a CCC, and the CCM should work with U.S. Probation to waive the CCC requirement during the period of supervision. The CCM shall attempt to affect the 180 day release preparation placement for inmates releasing via 3621E CMPL or 4046C CMPL. The CCM shall keep the appropriate U.S. Probation Office apprised of the inmate's progress toward reaching the goals of Community Corrections programming. Should the USPO still require CCC placement as a condition of supervision, the CCM will ordinarily honor the request.

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c. Referral to CCC. CCMs shall immediately forward referrals to appropriate CCCs. CCC staff shall notify CCMs in writing of acceptance or rejection. When referrals are accepted, CCCs will send acceptance letters, subsistence collection agreements, and CCC rules and regulations to inmates in care of their Unit Managers. Institution staff shall ensure acknowledgment forms are returned to CCCs. CCMs shall monitor referrals for timely response from contractors.
d. CCC Rejection. CCC staff must provide specific reasons, in writing, to CCMs when they reject referrals. In such cases, CCMs shall determine if further discussion with the CCC staff is appropriate or, if not, referral to an alternate resource is possible. When all placement options have been exhausted, the CCM shall inform the referring institution Warden, with copies to the Unit Manager, that the inmate cannot be transferred to a CCC and the reason for rejection.
e. Transfer Date. When CCMs are notified of an inmate's acceptance by a CCC, a transfer date to the CCC is to be established, and the CCM shall enter the SENTRY destination assignment transaction. The effective date shall be the approved future transfer date.
Destination assignments, "DST,” have been established in SENTRY for contract CCCs and work release programs. These assignments use the CCM facility code followed by the contract location code. CCMs may add their contract location destination assignments for inmates in any Bureau facility. When an inmate arrives at the CCC and is admitted to the location (in SENTRY), the destination assignment is automatically removed.
These assignments shall appear on the CCM and institution SENTRY daily log. Institution staff may display rosters of inmates approved for CCC transfer, and CCMs may display lists of pending arrivals by contract location.
The location description (name of the CCC) shall appear on the inmate's profile. If, for any reason, an inmate cannot be

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transferred to a CCC on the scheduled date, institution staff shall notify the CCM immediately.
13. PREPARATION FOR TRANSFER
a. Trust Fund Account. No later than three weeks prior to the approved transfer date, unit staff are to determine the amount in the inmate's trust fund account that may be given to the inmate at the time of transfer. A check or draft for the balance (with the inmate as payee) shall be sent to the CCC immediately.
In accordance with the Program Statement on Telephone Regulations for Inmates, inmates transferring to CCCs shall be qualified as "exception" cases during the three-week period prior to the approved transfer date for purposes of placing collect telephone calls.
Institution staff should use discretion in giving inmates large amounts of cash, and if there is reason to question an inmate's ability to handle money responsibly, the amount may be reduced.
For inmates who have no funds or resources, unit staff shall determine the extent to which a gratuity is indicated and shall initiate paperwork, if appropriate (see the Program Statement on Release Gratuities, Transportation, and Clothing).
If the institution is holding savings bonds for an inmate, or if an inmate has a savings account at a local bank, the unit staff is to ensure these financial resources are available at the release destination when the inmate arrives.
b. Documentation to CCC. No later than two weeks prior to an inmate's approved transfer date, institution staff shall forward the following documents to the CCC:
(1) Authorized Unescorted Commitments and Transfers (BP385), with current photograph;
(2) Original of the Transfer Order;
(3) Copy of Furlough Application and Approval Record, with specific travel method and itinerary;
(4) Receipt for CCC rules and regulations, if applicable (this may include the CCC's subsistence agreement form); and,
c. Clothing. No later than one week prior to an inmate's approved transfer, staff shall make arrangements for release clothing. Suitable release clothing shall be provided as described in the Program Statement on Release Gratuities, Transportation, and Clothing. For non-MINT referrals, at a minimum, release clothing is to include adequate clothing to

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complete a job search and perform work. Additionally, an outer garment, seasonably suitable for weather conditions at the inmate's release destination, shall be provided.
d. Medication. No later than one week prior to an inmate's approved transfer, Health Services staff shall review the inmate's medical record to determine if the inmate is on continuous medication. When an inmate is transferred to a CCC, a 30-day supply of chronic medication shall be provided pursuant to a new prescription. If an inmate is prescribed a controlled substance, assistance from the CCM may be required to determine if the CCC can accommodate the inmate’s special medication needs. Staff should refer to the Health Services Manual for further clarification. CCC staff are to safeguard, store, and dispense controlled substances in accordance with the terms of their Bureau contracts.
e. Identification. It is essential that each inmate have some acceptable form of identification while at a CCC. Therefore, during Institution Release Preparation Programs, unit staff shall assist inmates to acquire social security cards (mandatory) and, if possible, drivers license, and copies of their birth certificates. Additional photo identification may be required if the inmate is using air transportation. These items may be given to an inmate on the transfer date, or mailed to CCCs prior to transfer with the materials described in subsection b. above.
f. Community Custody Status. An inmate must be assigned "COMMUNITY" custody status prior to transfer to a CCC. Unit staff shall state the inmate’s current custody status if other than "COMMUNITY" on the Transfer Order in the Custody Classification section. Next to the current custody, unit staff shall type "Community custody effective on (whatever date the Warden deems appropriate)."
g. Parole Commission Review of Disciplinary Action. An inmate who has had a discipline hearing resulting in a Discipline Hearing Officer finding, after USPC action to establish a presumptive or effective parole date, may not be transferred to a CCC until the Commission has considered the disciplinary report and final action has been taken.
h. Sentence Calculation. The Inmate Systems Manager (ISM) of the sending institution shall ensure that an inmate's old law sentence computation is "complete" with all appropriate good time entered before the inmate departs the institution.
i. Final Review of 3621(e) Eligibility. The decision to grant an inmate early release is a significant one for the Bureau; therefore, it is essential that unit staff carefully review relevant statutory and regulatory criteria before an inmate’s final release under 18 U.S.C. § 3261(e). Specifically, the Unit

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Manager or designee must ensure completion of "Final Review of 3621(e) Eligibility" (Attachment K from the Drug Abuse Programs Manual), before unescorted transfer to a CCC or release to a detainer (Drug Abuse Programs Manual, Inmate). Attachment K must be completed and routed to the Warden. Ordinarily, Attachment K should be routed to the Warden along with other CCC release paperwork (i.e., transfer order, furlough application, etc.); however, a copy of Attachment K is not forwarded to the CCC.
The Drug Abuse Program (DAP) Coordinator and CMC must review and sign Attachment K prior to the Warden's review. The DAP Coordinator's review is to ensure that items 5, 7, and 8 are accurate. Once Attachment K is signed and dated, the Unit Manager must ensure that a copy is filed in the disclosable portion of Section 5 (release processing) in the Inmate Central File. The original Attachment K shall be forwarded to the ISM for filing in the Judgment and Commitment (J&C) file.
No inmate shall be released from an institution to a CCC (or detainer) until the ISM receives the Attachment K with appropriate signatures.
j. Education. To assist an inmate in securing employment, the inmate should have a resume’, a copy of his or her education transcript, GED certificate, and any other education/vocational training certificates completed during his or her confinement.
k. Exemption from Time Requirements. When transfer dates have not been established in time for staff to implement the above procedures within the time requirements, they shall be accomplished as soon thereafter as possible.
14. TRANSFER AND ARRIVAL NOTIFICATION
a. Transportation Costs. Staff are referred to the Program Statement on Furloughs for procedures regarding transportation costs for inmates scheduled for transfer to a CCC.
b. Notification of Travel Schedule. On the date of transfer, the sending institution's ISM shall notify the CCM via BOPNet GroupWise of the inmate's departure and travel schedule. A copy of this notification shall be placed in the inmate's J&C file. If GroupWise is inoperable, the notification shall be made by telephone and documented in the J&C file.
c. Arrival Notification. CCC staff shall notify CCMs immediately when an inmate arrives as a transfer from an institution. Immediately means:
(1) Upon arrival, if during regular CCM working hours; or
(2) At the first opportunity during regular CCM working

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hours if arrival is during evenings, weekends, or holidays.
d. Electronic Notification. By close of the business day following an inmate's scheduled arrival, the CCM shall "admit" the inmate in SENTRY, if the CCC has confirmed the inmate's arrival. When GroupWise is inoperable, notification of arrival shall be made by telephone to the sending institution's ISM, and the inmate "admitted" in SENTRY at the earliest opportunity.
e. Escape. If an inmate has not arrived at the CCC within a reasonable period after the scheduled arrival time (no later than 24 hours), the CCM shall report the inmate as an escapee. Then, the ISM at the sending institution must be notified immediately by telephone or GroupWise.
The ISM at the sending institution is responsible for updating SENTRY to indicate the change in release status from "furlough transfer" to "escape" as of the date the inmate fails to report. The ISM at the sending institution also shall make the inmate's sentence computation inoperative as of the date following the escape. Staff at the sending institution shall write an incident report and conduct a UDC/DHO hearing in absentia. The sending institution shall make all notifications required by the Program Statement on Escapes/Deaths Notification. The ISM at the sending institution shall also notify the FBI of the inmate escape. The ISM at the sending institution must also fax a copy of the Notice of Escaped Federal Prisoner (BP-393) to the FBI, U.S. Marshals Service, local law enforcement officials, and law enforcement at the inmate's home of record. The Inmate Central File is to be retained at the sending institution.
The CCM shall notify the U.S. Marshals Service in the CCC district. The CCM shall also notify the Regional Director, the Central Office, and the sending institution via GroupWise of the escape.
f. Arrival Confirmation. The ISM at the sending institution shall use SENTRY to confirm an inmate's arrival at a CCC. When an inmate's arrival is confirmed, the ISM shall forward the following documents to the CCM by certified mail:

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(1) Applicable release forms and certificates that have been completed insofar as is possible by unit staff and reviewed by ISM;
(2) Victim/Witness Notification form (BP-323), if applicable;
(3) Completed and current committed fine forms and all related documentation such as the PSI, if applicable;
(4) Copies of conditions of supervised release, if applicable; and
(5) Appropriate forms and other documentation concerning final good conduct time awards for an inmate sentenced under the CCCA.
15. INMATE CENTRAL FILE. The Inmate Central File shall be retained at the institution consistent with provisions established in the Program Statement on Inmate Central File, Privacy Folder, and Parole Mini-files.
/s/ Kathleen Hawk Sawyer Director

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Attachment A
Sample letter for Wardens to send to Chief USPOs
John Jones, Chief USPO Judicial District Street Address City, State Zip Code
Re: Doe, John Reg. No.: 12345-678
Dear Mr. Jones:
The above-noted inmate will complete his/her sentence on ________________ and is being considered for referral to a Community Corrections Center (CCC) on or about _______________ for prerelease services. Because of certain factors in this offender's case, we are closely reviewing his/her appropriateness for CCC placement. Therefore, I am soliciting your view in this matter recognizing that your office will soon be responsible for supervising this offender in the community.
Please indicate below whether or not you favor release through a CCC for this offender. Feel free to attach additional comments. If you favor release through a CCC, I ask that you consider providing some assistance in initiating the supervision process while the offender resides in the CCC. Please return this letter as soon as possible so that release planning can be finalized.
Thank you for your assistance in this matter of mutual concern.
Sincerely,
Warden
____________ Yes, I favor referral to a CCC for prerelease services.
____________ No, I do not favor referral to a CCC.
Comments:________________________________________________________
_________________________________________________________________
_______________________ Chief USPO District
_______________________ Date

Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 23 of 47 PPSag7e3ID10#.: 20441 12/16/98
Attachment B, Page 1
Please refer to the latest issuance of BOPDOCS for a copy of BP-S210.073, INSTITUTIONAL REFERRAL FOR CCC PLACEMENT.

Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 24 of 47 PageID #: 242
PS 7310.04 12/16/98
Attachment B, Page 2
INSTRUCTIONS FOR COMPLETION OF INSTITUTIONAL REFERRAL FOR CCC PLACEMENT
All federal institutions shall use the standard form "Institutional Referral for CCC Placement", BP-210, when referring inmates for community corrections placement in any type of community program.
The following instructions will be followed when completing the form:
GENERAL INFORMATION:
Ë Use the current EMS Community Corrections Directory (BOP COMM CORR DIR) or BOPDOCS Community Corrections Directory to determine the appropriate CCM.
Ë All referrals shall be signed by the Warden.
Ë Provide the inmate's full committed name and register number. The inmate's unit should also be included.
Ë Identification of Unit Manager and GroupWise mailbox codes will expedite notification.
Ë Institution name and mailing address allows CCC staff to send materials directly to the unit manager.
SPECIFIC INFORMATION:
1. Indicate the inmate's city of residence upon release. A complete address should be included in current progress report. Indicate the federal district of supervision.
2. The ISM shall insure the anticipated release date provided on the referral includes all eligible good time earnings. The date should be an accurate estimate of the date the inmate is to be released from custody. If release is by parole, only the parole date needs to be indicated. At the time of this review, the ISM will insure there are no detainers that would prevent CCC transfer.
3. Staff specifying a recommended placement date shall further indicate that the CCM should not adjust that date. (Include this information in Item 12.) CCMs shall adhere to the recommended date, with any adjustment only being downward due to budget or bedspace constraints as a factor.

Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 25 of 47 PageID #: 243
PS 7310.04 12/16/98
Attachment B, Page 3
For MINT referrals, staff should provide a specific date of placement, which is normally two months prior to the requested delivery date. Planned periods of longer than six months require the Regional Director's approval and the Chief U.S. Probation
Officer in the inmate's sentencing district to determine whether the judge concurs with the placement. (Include this information in Item 12.)
4. Indicate the date the report was submitted and attach a copy of any transmittal memo to the USPC.
5. An inmate who has been scheduled for a statutory interim hearing may not be transferred to a CCC until after the hearing or unless the inmate waives the hearing. If neither is the case, the CCM will hold the referral in abeyance until the matter is resolved. This information should be included in item 11.
6. Offenders sentenced under the Sentencing Reform Act or the Anti-Drug Abuse Act may have a term of supervised release following confinement. Offenders convicted of drug offenses may have a Special Parole Term.
7. Indicate if the inmate has "aftercare" requirements (must be imposed as a supervision condition by the U.S. Parole Commission, or the sentencing court). This helps the CCM select the most appropriate facility.
8. If the inmate is a Central Inmate Monitoring case, the Warden has clearance authority on all CIM cases with the exception of WITSEC cases. The Inmate Monitoring Section, Central Office will provide CIM clearance for WITSEC cases.
9. If the area of referral is not the sentencing district, staff will forward release planning materials to the probation office in the proposed district of supervision. Institution staff should refer to the Operations Memorandum on Release Planning, Inmate - Memorandum of Understanding (MOU) Between the BOP and the Administrative Office of the U.S. Courts for further instructions. At the time of the unit team's recommendation for CCC placement, the case manager should submit release plans to the USPO if other than the sentencing district. A relocation acceptance letter should be included in the CCC referral packet. Additionally, for inmates releasing in their sentencing district, a copy of the proposed supervised release plan with the final progress report shall be forwarded to the probation office in the sentencing district for verification of residence and employment.

Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 26 of 47 PageID #: 244
PS 7310.04 12/16/98
Attachment B, Page 4
10. The Program Statement on Fines and Costs describes institution responsibilities for CCC transfers for inmates who have fines. If the inmate has a committed fine, include this information in item 11.
11. It is extremely important to include any information that might have a bearing on the facility's decision to accept the inmate for placement. Information on outstanding detainers or pending charges must be included. Indicate if there is a substance abuse history. Also, indicate if the inmate has successfully completed the institutional phase of the comprehensive drug treatment program. If more space is needed, attach an additional page.
12. Information on special needs of the individual and/or unusual circumstances is very important for staff in deciding on acceptance and setting up an individual program plan once the inmate is accepted. If staff wish to recommend a specific facility or program, they may include that information here. The CCM, in managing the CCC population, will consider the referenced special needs when establishing an acceptance date. Therefore, detailed and specific comments in this section are very helpful. If more space is needed, attach an additional page. Prenatal care needs should be addressed also.
Inmates who are released from institutions with a condition of parole, mandatory release, or supervised release that requires they reside in a CCC must be referred for CCC placement prior to their release. CCMs will notify institutions of acceptance or rejection.
13. For MINT referrals, indicate the expected date of delivery. and the projected date of the inmate's return to the parent institution.
!INFORMATION TO BE INCLUDED IN THE CCC REFERRAL PACKET TO CCM:
A checklist is provided on the referral form to insure that all necessary material is included. CCMs who receive referrals without the required information or documents are instructed to hold the referral in abeyance until they are able to obtain the information from the institution.
Referral Form All items shall be completed. Do not indicate "See progress report".

Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 27 of 47 PageID #: 245
PS 7310.04 12/16/98
Attachment B, Page 5
Current Progress Report A current progress report (less than 180 days old at time of referral), including any significant new information that is available since the report was written, must be included with the referral. Especially important is specific information regarding proposed residence and employment (including telephone numbers), availability of other community resources, and any other information regarding release plans.
Presentence Investigation/Violation Report Two copies of all relevant presentence investigation/violation report(s).
Community Based Program Agreement This form allows facility staff to discuss the referral with family, potential employers, and other community resources and notifies the inmate of any special conditions of CCC residence such as financial responsibility and urinalysis. This form also acknowledges the inmate's agreement to comply with the rules and regulations of the Home Confinement program and stipulates that participation in home confinement may be an alternative to placement in a Community Corrections Center. Additionally, for MINT referrals, it notifies the inmate or the guardian/foster care provider of their responsibility for medical care and subsistence of the child while in a community based program.
BP-339 CIM Case Information Summary This document is required for all CIM assignments except for "pure" separation cases.
USPO Acceptance Letter If an inmate is releasing to a district other than the sentencing district, a relocation acceptance letter from the appropriate USPO must be included in the referral packet.
Copy of Latest Parole Commission Notice of Action Provide the most current copy which includes specific action, such as the presumptive parole date, effective parole date, continue to expiration, etc.
BP-351 Medical Evaluation for Transfer of Inmates to CCC Type Facility Must be completed prior to the referral in order to advise the facility of potential problems or special medical needs.

Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 28 of 47 PageID #: 246
PS 7310.04 12/16/98
Attachment B, Page 6
Judgment and Commitment Order Serves as documentation of authority to maintain custody and identifies special commitment conditions. If necessary, this document can be provided to the U.S. Marshals Service for purposes of apprehension or maintaining custody.
Statement of Responsibility (MINT Referrals) For MINT referrals, this serves to notify the CCM, CCC, and institution staff of who will assume custody and total financial responsibility for the child.
!INFORMATION TO BE FORWARDED TO THE TRANSITIONAL SERVICES MANAGER:
Information should be forwarded to the TSM in the region where the inmate is releasing. Staff are to refer to the Drug Abuse
Programs Manual, Inmate for additional information for responsibilities/documentation.
Treatment Summary and Referral Form - Drug Abuse Treatment Programs
This form provides assessment findings, treatment progress and other pertinent information for inmates who are graduates of Residential Drug Abuse Programs.
Agreement to Participate in Community Transition Programming By signing this form, the inmate acknowledges that he/she understands and agrees to comply with program rules and regulations of the Bureau's community-based drug programs.
Progress Report Refer to summary provided in "Current Progress Report" for INFORMATION TO BE INCLUDED IN THE CCC REFERRAL PACKET TO CCM.
Referral Form Refer to summary provided in "Referral Form" for INFORMATION TO BE INCLUDED IN THE CCC REFERRAL PACKET TO CCM.
OTHER INFORMATION
Any information or documents believed to be necessary to assist in the pre-release planning process. A current psychological report should be included if it is anticipated the inmate will have mental health needs.

Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 29 of 47 PageID #: 247
PS 7310.04 12/16/98
Attachment B, Page 7
Correspondence from/to family, friends, prospective employers, probation officers, etc., that may provide specific information about release plans and resources. A copy of the referral form is sent to the CUSPO in the sentencing district and the district of supervision. Other pertinent documents will have already been sent by the institution to these offices.
Procedures
For inmates being referred to contract facilities, the CCM will forward the referral to the appropriate facility, with instructions for the facility director to reply to the CCM with a copy to the referring institution. In addition to the transfer date, the facilities letter of acceptance will usually include documents for the inmate to sign and return prior to transfer. Such documents should be returned to the CCC by institution staff with the BP-385(51), transfer order and furlough papers.
The CCM maintains a copy of the referral for reference, should any questions arise from the facility, USPO, inmate's family or the institution.
Using institution records, unit staff will complete as much information as they can on release paperwork. Only the "unknowns" which must be determined while the inmate is in the CCC will be left blank. Inmates do not sign release papers (acknowledging they understand supervision conditions) and institution staff do not sign "certifying release" prior to an inmate's transfer. These certifications are done by CCC staff at the time of an inmate's release.
The institution is responsible for typing all information on release certificates. The line "now confined in the" shall specify the name of the CCC from which the inmate is to be released.
The inmate should sign the space at the bottom of the release certificate indicating an understanding of the conditions of release before departure from the CCC. The CCC Director is to sign the bottom portion of the form as the Chief Executive Officer verifying the inmate's release.

Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 30 of 47 PageID #: 248
PS 7310.04 12/16/98
Attachment C
Please refer to the latest issuance of BOPDOCS for a copy of BP-S434.073 COMMUNITY BASED PROGRAM AGREEMENT.

Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 31 of 47 PageID #: 249
PS 7310.04 12/16/98
Attachment D

Sample Statement of Responsibility for MINT Referral

Name Address City, State Zipcode

RE: DOE, Jane 12345-678

Dear

:

Jane Doe, an inmate currently confined at the Federal

Correctional Institution,

(city

, (state) , has been

accepted into the Mothers and Infants Together (MINT) Program and

is tentatively scheduled to furlough transfer to (name of

facility) , (address) , on

. She has an

anticipated delivery date of

.

Ms. Doe advises that you, the father of the baby, will

assume custody of the child, to include financial responsibility

for medical care costs upon her release from the MINT Program.

She indicated that your telephone number is

.

Accordingly, by signing this letter, you agree to assume custody of the child, including financial responsibility for medical care costs once Ms. Doe is released from the MINT Program.

Please return this letter to the inmate's case manager, . If there are any questions or concerns, please do
not hesitate to contact me at (full phone number) .

Sincerely,

XXXXX Unit Manager

Signature of person assuming care and financial responsibility for Ms. Doe's baby / relationship to inmate

Date

cc: CCM CCC HSA Controller Central File

Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 32 of 47 PageID #: 250
Exhibit 2

Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 33 of 47 PageID #: 251
STOP THE SPREAD OF GERMS

Help prevent the spread of respiratory diseases like COVID-19.

Avoid close contact with people who are sick.

Cover your cough or sneeze with a tissue, then throw the tissue in the trash.

Clean and disinfect frequently touched objects and surfaces.
Avoid touching your eyes, nose, and mouth.
Stay home when you are sick, except to get medical care.
Wash your hands often with soap and water for at least 20 seconds.
For more information: www.cdc.gov/COVID19
CS314915-A

D E T E N G A L A P R O PAG AC I Ó N Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 34 of 47 PageID #: 252 DE LOS MICROBIOS

Ayude a prevenir la propagación de enfermedades respiratorias como el COVID-19

Evite el contacto cercano con las personas enfermas.

Cúbrase la nariz y la boca con un pañuelo desechable al toser o estornudar y luego bótelo a la basura.

Limpie y desinfecte los objetos y las super cies que se tocan frecuentemente.
Evite tocarse los ojos, la nariz y la boca.
Quédese en casa si está enfermo, excepto para buscar atención médica.
Lávese las manos frecuentemente con agua y jabón por al menos 20 segundos.
cdc.gov/COVID19-es
314915-B ﻿

C VID What to do if you are sick with Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 35 of 47 PageID #: 253

19 CORONAVIRUS
DISEASE

coronavirus disease 2019 (COVID-19)

If you are sick with COVID-19 or suspect you are infected with the virus that causes COVID-19, follow the steps below to help prevent the disease from spreading to people in your home and community.

Stay home except to get medical care
You should restrict activities outside your home, except for getting medical care. Do not go to work, school, or public areas. Avoid using public transportation, ride-sharing, or taxis.
Separate yourself from other people and animals in your home
People: As much as possible, you should stay in a specific room and away from other people in your home. Also, you should use a separate bathroom, if available.
Animals: Do not handle pets or other animals while sick. See COVID-19 and Animals for more information.
Call ahead before visiting your doctor
If you have a medical appointment, call the healthcare provider and tell them that you have or may have COVID-19. This will help the healthcare provider’s office take steps to keep other people from getting infected or exposed.
Wear a facemask
You should wear a facemask when you are around other people (e.g., sharing a room or vehicle) or pets and before you enter a healthcare provider’s office. If you are not able to wear a facemask (for example, because it causes trouble breathing), then people who live with you should not stay in the same room with you, or they should wear a facemask if they enter your room.
Cover your coughs and sneezes
Cover your mouth and nose with a tissue when you cough or sneeze. Throw used tissues in a lined trash can; immediately wash your hands with soap and water for at least 20 seconds or clean your hands with an alcohol-based hand sanitizer that contains at least 60 to 95% alcohol, covering all surfaces of your hands and rubbing them together until they feel dry. Soap and water should be used preferentially if hands are visibly dirty.
Avoid sharing personal household items
You should not share dishes, drinking glasses, cups, eating utensils, towels, or bedding with other people or pets in your home. After using these items, they should be washed thoroughly with soap and water.

Clean your hands often
Wash your hands often with soap and water for at least 20 seconds. If soap and water are not available, clean your hands with an alcohol-based hand sanitizer that contains at least 60% alcohol, covering all surfaces of your hands and rubbing them together until they feel dry. Soap and water should be used preferentially if hands are visibly dirty. Avoid touching your eyes, nose, and mouth with unwashed hands.
Clean all “high-touch” surfaces every day
High touch surfaces include counters, tabletops, doorknobs, bathroom fixtures, toilets, phones, keyboards, tablets, and bedside tables. Also, clean any surfaces that may have blood, stool, or body fluids on them. Use a household cleaning spray or wipe, according to the label instructions. Labels contain instructions for safe and effective use of the cleaning product including precautions you should take when applying the product, such as wearing gloves and making sure you have good ventilation during use of the product.
Monitor your symptoms
Seek prompt medical attention if your illness is worsening (e.g., difficulty breathing). Before seeking care, call your healthcare provider and tell them that you have, or are being evaluated for, COVID-19. Put on a facemask before you enter the facility. These steps will help the healthcare provider’s office to keep other people in the office or waiting room from getting infected or exposed.
Ask your healthcare provider to call the local or state health department. Persons who are placed under active monitoring or facilitated self-monitoring should follow instructions provided by their local health department or occupational health professionals, as appropriate.
If you have a medical emergency and need to call 911, notify the dispatch personnel that you have, or are being evaluated for COVID-19. If possible, put on a facemask before emergency medical services arrive.
Discontinuing home isolation
Patients with confirmed COVID-19 should remain under home isolation precautions until the risk of secondary transmission to others is thought to be low. The decision to discontinue home isolation precautions should be made on a case-by-case basis, in consultation with healthcare providers and state and local health departments.

CS 314937-D 02/24/2020

For more information: www.cdc.gov/COVID19

Lo que necesita saber sobre la enfermedad del Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 36 of 47 PageID #: 254 coronavirus 2019 (COVID-19)

¿Qué es la enfermedad del coronavirus 2019 (COVID-19)?
La enfermedad del coronavirus 2019 (COVID-19) es una afección respiratoria que se puede propagar de persona a persona. El virus que causa el COVID-19 es un nuevo coronavirus que se identificó por primera vez durante la investigación de un brote en Wuhan, China.
¿Pueden las personas en los EE. UU. contraer el COVID-19?
Sí. El COVID-19 se está propagando de persona a persona en partes de los Estados Unidos. El riesgo de infección con COVID-19 es mayor en las personas que son contactos cercanos de alguien que se sepa que tiene el COVID-19, por ejemplo, trabajadores del sector de la salud o miembros del hogar. Otras personas con un riesgo mayor de infección son las que viven o han estado recientemente en un área con propagación en curso del COVID-19.
¿Ha habido casos de COVID-19 en los EE. UU.?
Sí. El primer caso de COVID-19 en los Estados Unidos se notificó el 21 de enero del 2020. La cantidad actual de casos de COVID-19 en los Estados Unidos está disponible en la página web de los CDC en https://www.cdc.gov/coronavirus/2019ncov/cases-in-us.html.
¿Cómo se propaga el COVID-19?
Es probable que el virus que causa el COVID-19 haya surgido de una fuente animal, pero ahora se está propagando de persona a persona. Se cree que el virus se propaga principalmente entre las personas que están en contacto cercano unas con otras (dentro de 6 pies de distancia), a través de las gotitas respiratorias que se producen cuando una persona infectada tose o estornuda. También podría ser posible que una persona contraiga el COVID-19 al tocar una superficie u objeto que tenga el virus y luego se toque la boca, la nariz o posiblemente los ojos, aunque no se cree que esta sea la principal forma en que se propaga el virus. Infórmese sobre lo que se sabe acerca de la propagación de los coronavirus de reciente aparición en https://www.cdc.gov/ coronavirus/2019-ncov/about/transmission-sp.html.
¿Cuáles son los síntomas del COVID-19?
Los pacientes con COVID-19 han tenido enfermedad respiratoria de leve a grave con los siguientes síntomas:
• fiebre
• tos
• dificultad para respirar
¿Cuáles son las complicaciones graves provocadas por este virus?
Algunos pacientes presentan neumonía en ambos pulmones, insuficiencia de múltiples órganos y algunos han muerto.

¿Qué puedo hacer para ayudar a protegerme?
Las personas se pueden proteger de las enfermedades respiratorias tomando medidas preventivas cotidianas.
• Evite el contacto cercano con personas enfermas.
• Evite tocarse los ojos, la nariz y la boca con las manos sin lavar.
• Lávese frecuentemente las manos con agua y jabón por al menos 20 segundos. Use un desinfectante de manos que contenga al menos un 60 % de alcohol si no hay agua y jabón disponibles.
Si está enfermo, para prevenir la propagación de la enfermedad respiratoria a los demás, debería hacer lo siguiente:
• Quedarse en casa si está enfermo.
• Cubrirse la nariz y la boca con un pañuelo desechable al toser o estornudar y luego botarlo a la basura.
• Limpiar y desinfectar los objetos y las superficies que se tocan frecuentemente.
¿Qué debo hacer si he regresado recientemente de un viaje a un área con propagación en curso del COVID-19?
Si ha llegado de viaje proveniente de un área afectada, podrían indicarle que no salga de casa por hasta 2 semanas. Si presenta síntomas durante ese periodo (fiebre, tos, dificultad para respirar), consulte a un médico. Llame al consultorio de su proveedor de atención médica antes de ir y dígales sobre su viaje y sus síntomas. Ellos le darán instrucciones sobre cómo conseguir atención médica sin exponer a los demás a su enfermedad. Mientras esté enfermo, evite el contacto con otras personas, no salga y postergue cualquier viaje para reducir la posibilidad de propagar la enfermedad a los demás.
¿Hay alguna vacuna?
En la actualidad no existe una vacuna que proteja contra el COVID-19. La mejor manera de prevenir infecciones es tomar medidas preventivas cotidianas, como evitar el contacto cercano con personas enfermas y lavarse las manos con frecuencia.
¿Existe un tratamiento?
No hay un tratamiento antiviral específico para el COVID-19. Las personas con el COVID-19 pueden buscar atención médica para ayudar a aliviar los síntomas.

CS 314937-I MLS 315740 03/19/2020

www.cdc.gov/COVID19-es

Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 37 of 47 PageID #: 255
Exhibit 3

Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 38 of 47 PageID #: 256
On March 13, 2020, BOP’s Central Office issued nationwide guidance regarding modified operations to prevent and mitigate the spread of COVID-19. Available at: https://www.bop.gov/coronavirus/covid19_status.jsp
SOCIAL VISITS: Social visits are suspended. Inmate telephone system minutes will be increased to 500 minutes per calendar month Bureau-wide.
INMATE MOVEMENT (Updated): As we previously described generally, inmate internal movement is suspended with limited exceptions. This suspension, however, does not mean the BOP has ceased all inmate movements because the federal judicial system as well as state courts continue to process criminal cases.
These movement exceptions may include, but are not limited to, transfers related to forensic studies, writs, Interstate Agreements on Detainers (IAD), medical or mental health reasons (including local medical trips), and RRC placements. To be clear, the BOP may need to move inmates to better manage the detention bedspace as well as assure that administrative facilities do not become overcrowded beyond available resources.
All inmates are being authorized for movements from all facilities under the following conditions:
• Inmates must have been in BOP custody for greater than 14 days; • Perform an exit screening for COVID-19 symptoms (fever, cough, shortness of breath
and temperature). o If the inmate has no symptoms and a temperature less than 100.4 degrees F, the inmate will be transferred; o If the inmate has COVID-19 symptoms, or temperature greater than 100.4 degrees F, they will not be transferred and will instead be immediately placed in isolation.
• Regional Directors will notify the BOP Emergency Operations Center prior to movement in order to track and monitor movement.
The BOP emphasizes that all inmates regardless of where they are being housed are screened for COVID-19 prior to movement. Both the BOP and USMS are using screening protocols for both inmates and staff.
LEGAL VISITS: Legal visits will be suspended for 30 days, at which time the suspension will be re-evaluated. Case-by-case approval at the local level and confidential legal calls will be allowed in order to ensure access to counsel. If approved for an in-person visit, the attorney will need to undergo screening using the same procedures as staff.
Access to legal counsel remains a paramount requirement and will be accommodated to the maximum extent practicable. Although legal visits are generally suspended for 30-days, caseby-case accommodation will be made at the local level. If approved for an in-person visit, the attorney will need to undergo advanced health screening, to include a temperature check.

Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 39 of 47 PageID #: 257
OFFICIAL STAFF TRAVEL: Official staff travel, with the exception of relocation travel, is suspended.
TRAINING: All staff training is suspended (to include conferences and meetings), with the exception of basic training for new staff.
CONTRACTORS: Contractors performing essential services or necessary maintenance on essential systems will undergo advanced health screening, to include a temperature check. All other contractor access is suspended. Contractors who require access will be screened using the same procedures as staff prior to entry.
Essential services include, for example, medical services, mental health services, religious services and critical infrastructure repairs.
A copy of the Visitor/Volunteer/Contractor COVID-19 Screening Tool will be required for all vistors, volunteers, and contractors. A copy will be provided by staff members at the lobby for all institutions.
VOLUNTEERS: Volunteer visits are suspended, unless approved by the Deputy Director of the BOP. Alternate means of communication will be considered for inmates who request to speak with a religious advisor. Volunteers who are approved for access will be screened using the same procedures as staff prior to entry.
A copy of the Visitor/Volunteer/Contractor COVID-19 Screening Tool will be required for all vistors, volunteers, and contractors. A copy will be provided by staff members at the lobby for all institutions.
SCREENING OF STAFF: Enhanced health screening of staff will be implemented in areas with "sustained community transmission" and at medical referral centers. Sustained community transmission is determined by the CDC and will be indicated on the map on this resource page where state community transmission indicates "Yes". Such screening includes self-reporting and temperature checks for the next 30 days, at which time the process will be reevaluated.
SCREENING OF INMATES: The BOP will continue to screen inmates for COVID-19 following previously-indicated practices:
• All newly-arriving BOP inmates are screened for COVID-19 exposure risk factors and symptoms.
• Asymptomatic inmates with exposure risk factors are quarantined. • Symptomatic inmates with exposure risk factors will be isolated and tested for COVID-
19 per local health authority protocols.
TOURS: Tours are suspended. Any exceptions must be approved by the Deputy Director. If approved, participants will be screened using the same procedures as staff prior to entry.

Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 40 of 47 PageID #: 258
MODIFIED OPERATIONS: BOP is implementing modified operations to maximize social distancing in our facilities, as much as practicable. Such actions will include consideration of staggered meal times and staggered recreation times, for example, in order to limit congregate gatherings.
PRIVATE DETENTION CONTRACTORS: This COVID-19 guidance is being shared with private prisons and RRCs for dissemination to staff and inmates in these facilities, so that similar protocols can be implemented.
* * *
Further BOP guidance at: https://www.bop.gov/coronavirus/overview.jsp#bop_emergency_response
BOP's COVID-19 Response
In February 2020, the BOP's Public Health Service (PHS) staff were placed in operational dress uniforms to be ready to respond to COVID-19 incidents by the Assistant Secretary for Health (OASH) of the Department of Health and Human Services (HHS). As a result, the BOP began planning for its COVID-19 response and instituted a comprehensive management approach for oversight of the situation. Oversight includes all BOP Regional Offices, all BOP Central Office Divisions (which oversee program level functions), and the National Institute of Corrections (NIC) that coordinates with state and local prisons and jails. The BOP implemented its approved Pandemic Influenza Plan.
The BOP's planning is structured using the Incident Command System (ICS) framework. The BOP is utilizing the guidance and directives from the World Health Organization (WHO), the Centers for Disease Control (CDC), the Office of Personnel Management (OPM), DOJ and the Office of the Vice President. The BOP's Incident Action Plan includes but is not limited to the COOP plans, supplies, inmate movement, visitation, staff training, and official staff travel. The ICS Command Center conducts daily briefings and provides updates to senior management. BOP institutions, as a matter of policy and procedure, have pandemic plans for preparedness in the event of any infectious disease outbreak.
Guidance memos have been issued from Central Office, including guidance sent by the BOP Medical Director to all field clinical personnel on January 31, 2020 and on February 29, 2020. The guidance described screening best practices, provided inmate and staff screening tools, and CDC best practices/flyers as to preventing the spread of the disease. The screening tool for staff has been published on the BOP's internal and public websites. On March 6, 2020, additional guidance was sent to BOP field sites to assess and review the BOP's Personal Protective Equipment (PPE) inventory. A national acquisition plan is being executed to obtain bulk purchases, stockpile supplies and coordinate distribution. The inventory of infectious disease

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PPE supplies has already been completed at all BOP locations and the use of alternative supply chain options is being explored. Guidance from the BOP's Health Services Division and the Human Resource Management Division was issued to all BOP staff on March 9, 2020 regarding COVID-related screening for staff and how leave should be assigned (BOP leave protocols follow OPM guidance).

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CORONAVIRUS DISEASE 2019 (COVID-19) INMATE SCREENING TOOL

1. Assess the Risk Of Exposure

Yes No Traveled from, or through, any of the locations identified by the CDC as increasing epidemiologic risk within the last 14 days? Link to CDC Criteria
Yes No Had close contact with anyone diagnosed with the COVID-19 illness within the last 14 days?
If the answer to ALL the above risk of exposure questions is NO, then STOP here and proceed with normal intake. If the answer to ANY of the above risk of exposure questions is YES, then immediately assess symptoms.

2. Assess Symptoms Yes No Fever (Fever may not be present in some patients, such as elderly, immunosuppressed, or taking certain medications. Fever may be subjective or objective).
Yes No Cough
Yes No Shortness of Breath (SOB)

Date of Onset:

3. Implement Infection Prevention Control Measures if YES to the above questions in (2).

3a. The Symptomatic Patient
If the patient has any symptoms, implement Standard, Contact, and Airborne Precautions with Eye Protection
Report case promptly to facility leadership, infection prevention and control (IPC), public health and Regional and Central Office QIIPC Consultants. Place a surgical mask on the patient and minimize proximity to staff and inmates All staff escorting, evaluating, or in close contact (6 ft.) with the patient should perform hand hygiene, put on gloves, gown, fit-tested respirator (N-95), goggles or face shield and gloves before room entry or inmate contact. Inmate will wear a surgical mask. Doffing: gloves, gown, exit room, doff face shield then N-95 and wash hands. Escort patient to a certified Airborne Infection Isolation (AII) room. If no AII room is available, isolate in room with door closed and preferably air is exhausted outside. Prepare for transport to a designated referral healthcare facility in coordination with the local public health authority (do not call for transport service without prior notification and escort in place to move inmate). Minimize and keep a log of all persons interacting with (6ft.) or caring for, the inmate. Once the AII room is empty for two hours, it can be cleaned and disinfected with an EPA registered disinfectant (Emerging viral pathogens claim), by a person in proper PPE. Waste disposal: Double bag trash as hazardous waste. Linens: Double bag in linen hazard bag for washing in central laundry
3b. The Asymptomatic Patient
If the patient has no symptoms house in a single cell, and implement Standard, Contact and Droplet Precautions with Eye Protection
Report case to facility leadership, QIICP, public health and Regional and Central Office QIIPC Consultants. House patient in a single cell. The preferred location is within Health Services. If unable to house patient in a single cell contact Regional and Central Office Infection Prevention and Control Consultants. Limit # of persons interacting with inmate. Utilize social distancing (6 ft.). Document a daily symptom assessment and temperature (Inmate can self-monitor with disposable thermometer or use non-contact thermometer. Utilize disposable food trays. Have inmate clean and disinfect room daily with disposable towels, if possible. Trash will be double bagged out of room. Staff entering room will perform hand hygiene, wear a gown, surgical mask, goggles or face shield and gloves. Inmate will wear a surgical mask. Remove PPE, except face shield and mask at exit. Outside room, remove mask and wash hands. Continue modified housing and observation procedures until 14 days after the last possible exposure date. If at any time the patient becomes symptomatic, implement the steps in 3a – The Symptomatic Patient.

Inmate Name (Last, First): ____________________________________Registration # __________________ Institution: ______________________________________________________________________________ Provider Name/Signature: _________________________________________ Date: ____________________ February 2020, Version 2.0

Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 43 of 47 PageID #: 261
U. S. Department of Justice
Federal Bureau of Prisons Reentry Services Division
Washington, D.C 20534
MARCH 24, 2020

TO:

ALL RRC CONTRACT PROVIDERS

FROM:

JON GUSTIN, ADMINISTRATOR RESIDENTIAL REENTRY MANAGEMENT BRANCH

SUBJECT: Coronavirus (COVID-19) Precautions/Modified Operations for Residential Reentry Centers.
On March 13, 2020 the Bureau of Prisons (Bureau) issued a memorandum providing guidance to all Residential Reentry and Community Treatment Contract Providers as a result of COVID-19.
This informational sheet is to provide additional guidance and recommendations to Residential Reentry Centers (RRC) to ensure consistency and to protect staff, inmates, and the public. As a reminder, all temporary changes to individual contractor’s pandemic plans which modify operations should be sent to your Residential Reentry Manager prior to implementation.
x Breathalyzer/Drug Testing: Routine Breathalyzer/Drug Testing may be temporarily suspended. Suspect Breathalyzer and Drug testing should still be administered when RRC staff observe an inmate with any signs of impairment indicating alcohol/drug use.
x Staff Site Checks: Staff site checks for employment and/or home site verifications may be temporarily suspended in lieu of enhanced accountability through other measures to include Electronic Monitoring, Telephonic Monitoring, Skype or other methods in a manner which provides accountability in lieu of physical site checks. Every effort must be made to conduct initial site checks for employment or Home Confinement locations for locations that have not been previously visited prior to approving employment or home confinement. RRC staff are also encouraged to conduct family orientations via phone and/or video to provide proper orientation.

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x Key Staff: Key staff may be temporarily utilized to fill gaps in security and daily operations in instances staff quarantines or other unanticipated shortages.
x Case Management: Allow for telephonic case management meetings with offenders rather than face to face. Case notes should continue to be updated and thoroughly document the interaction with the resident to include the residents’ response to the case management meeting. Absence of inmate for signature on the case notes should be documented.
x Subsistence: Effective immediately, all subsistence will waived until further notice, any uncollected amounts at this time should be waived.
x Home Confinement (HC): HC offenders on GPS monitoring may have their required return visits to the facility decreased or suspended. Increased accountability measures as identified above should be adhered to.

Information regarding the Bureau’s response to COVID-19 may be found on the Bureau’s public website, www.bop.gov. The Bureau appreciates your hard work and continued partnership and will continue to update this guidance as the situation continues to develop.

The Bureau understands individual circumstances may arise outside

of the general guidance and recommendations. Questions should be

directed to your designated Residential Reentry Manager or Dana

DiGiacomo, Assistant Administrator, RRMB, at

or

. They will collaborate with individual RRCs to

develop suggestions for local accommodations.

Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 45 of 47 PageID #: 263
CORONAVIRUS DISEASE 2019 (COVID-19) STAFF SCREENING TOOL DATE:_____________________

1. Temperature: ______ ◦F Method: Mouth

Ear

Forehead

□ If Temperature (Mouth) ≥ 100.4○F, or Temperature (Ear) ≥101○F, or Temperature (Forehead) ≥ 100○F Then Deny Access , Place on Leave (Not Safety & Weather Leave) for 3 days + STOP HERE & Proceed to Section 3

2. Signs (Employee Complete)

Yes No New On-Set Cough

# of Days__________________

Yes No New Onset Trouble Speaking because of Needing to take a Breath

Yes No Stuffy/Runny Nose

 Contact the Medical Officer on Call for the Institution to provide Disposition
 Disposition by Medical Officer Assessment: Leave Work

3. Notification of Local Human Resources Department
□ If Individual is placed on leave for Section 1 or 2, Then share document with HR Office for T&A purpose  HR □ Please have HSD place this document in the Employee’s Medical Folder (Blue Folder) if leave is indicated

Staff Name (Last, First): _________________________________ Year of Birth (Year): ____________

Institution: _______________________________________

State: ______________________

March 2020, Version 2.8

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VISITOR/VOLUNTEER/CONTRACTOR COVID-19 SCREENING TOOL

1. Have you…….

a. Traveled from or through, any of the following locations identified by the

Yes No

CDC as increasing epidemiologic risk for COVID-19 within the last 14 days?

China, Iran, South Korea, Italy, Japan

Yes No

b. Had close contact with anyone diagnosed with the COVID-19 illness within the last 14 days?

2. Do you currently have a ………… Yes No a. Fever or Chills Yes No b. Cough Yes No c. Shortness of Breath
3. Perform a temperature check ______මF Method: oral / forehead (temporal) / tympanic
*Staff see instruction sheet for screening form.
Purpose of Visit (Circle one): Attorney-legal / Contractor / Volunteer Social (visiting an inmate) – Inmate name/reg. number ______________________________ Other - ______________________________________________________________________

Visitor Name (Last, First): _____________________________________________________ Date: ______________________________________________________________________ Institution: _________________________________________________________________

3/13/20, Version 1.0

Case 1:20-cv-01590-RPK Document 18-2 Filed 03/31/20 Page 47 of 47 PageID #: 265
VISITOR/VOLUNTEER/CONTRACTOR COVID-19 SCREENING TOOL
Instructions for staff: The BOP staff member will provide the COVID-19 Screening Tool to all persons entering the lobby (visitors, volunteers, contractors, legal visits, etc.), ask each person to complete questions 1. a-b and 2. a-c. A qualified health care staff member will complete the temperature check. If answers to all the questions are No, and there are no obvious signs of respiratory infection, e.g. frequent coughing, and temperature is < 100.4ӑF, follow usual procedures. Social visitors: If answers to any of the questions are YES, or if the person has a temperature ш 100.4ӑF (oral), or if the person has obvious signs of a respiratory illness, ask social visitors to wait in a separate area (6 feet from others or outside), and contact the Operations Lieutenant and/or Institution Duty Officer (IDO), for further direction to the visitor(s). The IDO or Operations Lieutenant should deny visitation and not allow entry into the institution. Attorney/Contractor/Volunteer: If answers to any of the questions are YES, or if the person has a temperature ш100.4මF (oral), or if the person has obvious signs of a respiratory illness, they should not be allowed entry to the institution. In the case of an attorney / legal visitor who answers yes to any of the questions, decisions may be made on a case-by-case basis with approval at the local level and confidential legal calls will be allowed.
3/13/20, Version 1.0

 
 Case 1:20-cv-01590-RPK-RLM Document 22 Filed 04/01/20 Page 1 of 8 PageID #: 272

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------x
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI by his Next Friend Migdaliz Quinones; and JUSTIN RODRIGUEZ by his Next Friend Jacklyn Romanoff, individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.
---------------------------------------------------------x

Civil Action No. 20-CV-1590 (Kovner, J.)

RESPONDENT’S SUPPLEMENTAL MEMORANDUM OF LAW IN OPPOSITION TO PETITIONERS’ MOTION FOR A TEMPORARY RESTRAINING ORDER

JAMES R. CHO Assistant United States Attorney (Of Counsel)

RICHARD P. DONOGHUE United States Attorney Counsel for Respondent Eastern District of New York 271-A Cadman Plaza East, 7th Floor Brooklyn, New York 11201
April 1, 2020

Case 1:20-cv-01590-RPK-RLM Document 22 Filed 04/01/20 Page 2 of 8 PageID #: 273
PRELIMINARY STATEMENT
Pursuant to the Court’s April 1, 202 Order, Respondent Derek Edge, Warden of the
Metropolitan Detention Center in Brooklyn, New York (“MDC”), respectfully submits this
Supplemental Memorandum of Law in Opposition to Petitioners’ Motion for a Temporary
Restraining Order (“TRO”).
The Court’s April 1, 2020 states as follows:
ORDER: In preparation for the hearing on petitioners' request for a temporary restraining order, the parties should be prepared to discuss: (1) the extent to which petitioners and other inmates in the proposed class have alternative avenues for obtaining release, including compassionate release and bail, and whether the availability of alternative avenues bears on the TRO analysis; (2) why orders of release from custody, instead of orders directed at constitutionally deficient conditions, are the appropriate remedy for any such conditions; and (3) the relevance, if any, of additional BOP measures publicly reported this evening (“BOP COVID-19 Action Plan Phase Five”). If Respondent believes that the new BOP measures are relevant, the Court requests that Respondent submit a supplemental declaration that outlines the additional measures or incorporates a memorandum setting out those measures. Ordered by Judge Rachel P. Kovner on 4/1/2020. (Hershey, Kenneth).
Dkt. Entry dated April 1, 2020.
As discussed further below, (1) the existence of alternative remedies available to
Petitioners obviates the need for a TRO; (2) orders of release from custody are not the
appropriate remedy here; and (3) the BOP COVID-19 Action Plan Phase Five defeats
Petitioners’ claim for a TRO.
1. Existence of Available Alternative Remedies Obviates The Need for A Temporary Restraining Order
The named Petitioners in this action are all sentenced inmates. As stated in
Respondent’s Opposition (“Resp. Opp.” or “Opposition”), Petitioners have alternative methods

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for securing early release. See, e.g., 18 U.S.C. § 3582 (compassionate release); 18 U.S.C. § 3624(c) (prerelease custody/home confinement). Resp. Mem. at 20.1
As noted in Respondent’s Opposition filed yesterday, BOP has a policy regarding potential home confinement. At the request of the Federal Defenders of New York, this Office and BOP are reviewing the cases of 11 inmates who they believe are eligible for home confinement. This Office is conferring with BOP regarding these cases. BOP also continues to review each case and will make a final determination pursuant to its policies.
Sentenced inmates at MDC may elect to pursue compassionate under 18 U.S.C. § 3582. However, the application for such a release generally should be made in the court of the district of conviction. Importantly, with regard to the instant action, among the named petitioners, all but Petitioner Chunn were prosecuted and convicted in the Southern District of New York. Thus, Petitioners Rodriguez, McBride, and Ribadi should be seeking compassionate release in the Southern District of New York.
A number of defendants who have sought early release on these and other grounds out of fear of contracting COVID-19 while housed at the MDC. See, e.g., United States v. Hamilton, No. 19-CR-54-01, 2020 WL 1323036, at *2 (E.D.N.Y. Mar. 20, 2020) (Garaufis, J.); United States v. Redzepagic, No. 17-cr-228 (DRH) (AKT), Dkt. No. 118 (E.D.N.Y. Mar. 30, 2020); United States v. Cohen, No. 17-CR-544 (E.D.N.Y. Mar. 25, 2020) (Garaufis, J.) (denying defendant Cohen’s motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(ii), where Cohen argued that the COVID-19 pandemic constituted “extraordinary and compelling reasons” for his relief and argued he was at risk of getting the virus); United States v. Amato, et al., No. 19-CR-442 (E.D.N.Y. Mar. 27, 2020) (Glasser, J.) (denying Scorcia’s application for
1 Inmates also may secure emergency bail under 18 U.S.C. § 3142(i).
2

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emergency release based on COVID-19); United States v. Brown, No. 19-CR-88 (E.D.N.Y.) (Feuerstein, J.) (denying defendant’s bail application, finding that he is a danger and has not been shown to be at a greater risk to contract COVID-19 in jail versus out). The government will of course consider whether to consent to release in cases that it has prosecuted. See, e.g., United States v. Marin, 15-CR-252 (PKC) (inmate in Allenwood released under compassionate release; government consented based on age and deteriorating health).
MDC also has a sizable population of pre-trial detainees, and these detainees can make bail applications based on the circumstances presented by COVID-19. The statute that governs is the Bail Reform Act, 18 U.S.C. §§ 3141-56, and bail decisions are based on a highly individualized, fact specific inquiry. Bail applications must be made before the judge who is assigned to the inmate’s prosecution. In additional the standard motions for release by pretrial defendants, 18 U.S.C. § 3142(b), or for post-conviction release, 18 U.S.C. § 3143, or bail pending appeal, 18 U.S.C. § 3143(b)(1), a defendant may seek release under 18 U.S.C. § 3142(i), which provides that a “judicial officer may, by subsequent order, permit the temporary release of [a] person, in the custody of a United States marshal or another appropriate person, to the extent that the judicial officer determines such release to be necessary for preparation of the person’s defense or for another compelling reason.” Certain extreme medical circumstances may present “compelling reasons” that could warrant a highly circumscribed release. See United States v. Scarpa, 815 F. Supp. 88 (E.D.N.Y. 1993). Various applications of this type have already been made in the EDNY. See United States v. Lipsky No. 19-CR-203 (E.D.N.Y. Mar. 24, 2020) (Garaufis, J.) (denying defendant’s emergency bail application seeking release from the MDC based on the general risk of contracting COVID-19 at the MDC); United States v. Campbell, No. 18-CR-467 (E.D.N.Y. Mar. 25, 2020) (DeArcy Hall, J.) (denying defendant’s emergency bail
3

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application due to COVID-19, ruling that no exceptional circumstances existed pursuant to 18 U.S.C. § 3145).
Most significant here, these various avenues are the appropriate way for the individuals incarcerated at MDC to pursue the fact-specific determinations needed to decide whether they can be released. The need for a sweeping TRO is unnecessary where, as here, Petitioners and others incarcerated at the MDC have alternative methods for seeking early release. See Canadian St. Regis Band of Mohawk Indians ex rel. Francis v. Town of Bombay, NY, 484 F. App’x 586, 588 (2d Cir. 2012) (TRO denied in part because of the existence of alternative remedies); SEC v. Geon Industries, Inc., 531 F.2d 39, 55 (2d Cir. 1976) (justifying denial of the injunction in part because of the availability of the alternative remedies).
Moreover, “[i]t is hornbook law that ‘the general purpose of a preliminary injunction is to preserve the status quo pending final determination of the action.’” Unicon Mgmt. Corp. v. Koppers Co., 366 F.2d 199, 204 (2d Cir. 1966) (emphasis added)). Further, the interim injunctive relief Petitioners seek here is inappropriate because it is the same as the relief Petitioners ultimately seek through their writ of habeas corpus -- release from detention. See, e.g., Powell v. Fannie Mae, No. 16-cv-1359 (LTS) (KNF), 2017 WL 712915, at *2 (S.D.N.Y. Feb. 2, 2017) (report and recommendation) (the “purpose of a preliminary injunction is to preserve the status quo between the parties pending a full hearing on the merits,” and such injunctive relief “is improper where it would give the plaintiff substantially all the ultimate relief [he] seeks”); Guy v. Tanner, No. 13-cv-6750, 2014 WL 2818684, at *4 (E.D. La. June 23, 2014) (“Guy’s motion is no more than a veiled attempt to expedite the resolution of his habeas petition. This is not a proper basis for issuing an injunction.”); Idowu v. Ridge, No. 03-cv-1293, 2003 WL 21805198, at *6 (N.D. Tex. Aug. 4, 2003) (“In this instance, petitioner seeks a TRO not to
4

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preserve the status quo, but rather, to obtain expeditious resolution of his habeas petition. The Court need not determine the propriety of seeking a TRO in such instances.”). Indeed, the relief sought by Petitioners is not “‘temporary’ or ‘preliminary,’ but rather is the exact same ultimate relief [he] seeks in [his] petition.” Taiebat v. Scialabba, 2017 WL 747460, at *3 (N.D. Cal. Feb. 27, 2017) (denying motion for a preliminary injunction) (citing Senate of State of Cal. v. Mosbacher, 968 F.2d 974, 978 (9th Cir. 1992) (“[a] judgment on the merits in the guise of preliminary relief is a highly inappropriate result”)); Moshin v. Cissna, No. 18-CV-2931 (E.D.N.Y. May 31, 2018) (denying plaintiffs’ motion for a preliminary injunction, as the plaintiffs’ “request[] for relief that is the ultimate relief in a petition not available at preliminary injunction”) (Vitaliano, J.).
2. Orders of Release From Custody Are Not the Appropriate Remedy Here An order of release from custody is not appropriate here where Petitioners allege constitutionally deficient conditions. Deprivations of constitutional rights while in custody can generally be addressed by habeas corpus relief, 28 U.S.C. § 2241, mandating the alleviation of the unconstitutional condition or the release of the prisoner. See Sanford v. Bruno, No. 17-CV5132, 2018 WL 2198759, at *6 (E.D.N.Y. May 14, 2018) (Cogan, J.) (“Deprivations of constitutional rights while in custody can generally be addressed by habeas corpus relief, 28 U.S.C. § 2241, mandating the alleviation of the unconstitutional condition or the release of the prisoner); see also Fulton v. Core Servs. Grp. Inc., No. 19CV7050PKCSJB, 2020 WL 352495, at *3 (E.D.N.Y. Jan. 21, 2020) (Chen, J.) (citing Sanford). However, Courts are reluctant to release prisoners without first allowing the government first to attempt to alleviate any alleged unconstitutional condition of confinement. See Simmons v. Reynolds, 898 F.2d 865, 868-69 (2d Cir. 1990) (“[a]lthough the major function of the writ of habeas corpus has always been to obtain
5

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release from illegal custody, the statute empowering federal courts to grant the writ does not provide immediate release as the only relief available to a petitioner. Instead, it directs the court to ‘dispose of the matter as law and justice require.’ 28 U.S.C. § 2243. Thus district courts may fashion appropriate relief other than immediate release.”) (citing Preiser v. Rodriguez, 411 U.S. 475, 484-86 (1973)).
As set forth in Respondent’s principal opposition brief, BOP and MDC have taken strong measures to reduce the risk of COVID-19 for inmates and have reduced inmate populations, increased sanitation and screening, limited visitors, increased testing and improved isolation protocols. But even if, arguendo, the Court were to accept Petitioners’ baseless assertions as to the conditions of confinement at MDC, the proper remedy here is an order directed at the allegedly constitutionally deficient conditions — not an order allowing for the blanket release of BOP prisoners into New York City.
Moreover, serious medical conditions have only been grounds for release on bail in a handful of situations, specifically where the petitioner himself is gravely ill and release was to a medical facility to receive specialized care. See United States v. Mett, 41 F.3d 12821, 1282 n.4 (9th Cir. 1994) (explaining that special circumstances warranting bail “include a serious deterioration of health while incarcerated[.]”) (internal quotation marks and citations omitted); Johnston v. Marsh, 227 F.2d 528, 529 (3rd Cir. 1955) (affirming bail where petitioner, an advanced diabetic who was “rapidly progressing toward total blindness,” was not given general release but admitted to a private hospital for medically advanced treatment). Given the current facts as alleged by Petitioners, there is no allegation that Petitioners themselves are in need of urgent medical care. Nor is there any basis to believe that, even if they were in need of medical care, they would be unable to receive such treatment while still incarcerated.
6

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3. BOP Issues Additional Guidance On March 31, 2020, after Respondent had submitted its Opposition, the BOP ordered the implementation of “Phase 5 of its COVID-19 Action Plan,” effective tomorrow, April 1, 2020 (referred to as “Phase 5”) Phase 5. (https://www.bop.gov/resources/news/20200331_covid19_action_plan_5.jsp.)

In light of the BOP’s directive, the MDC has taken immediate steps to implement Phase 5 as described in the attached Supplemental Declaration of Associate Warden Milinda King See Supplemental Declaration of Associate Warden Milinda King (“King Supp. Decl.”) filed herewith.
CONCLUSION For all of the foregoing reasons, Petitioners have not satisfied their heavy burden of establishing entitlement to mandatory injunctive relief, and their Motion for a Temporary Restraining Order should be denied.

Dated: Brooklyn, New York April 1, 2020

RICHARD P. DONOGHUE United States Attorney Counsel for Respondent Eastern District of New York 271-A Cadman Plaza East, 7th Fl. Brooklyn, New York 11201
By: s/ James R. Cho JAMES R. CHO Assistant United States Attorney (718) 254-6519 james.cho@usdoj.gov

7

 
 Case 1:20-cv-01590-RPK-RLM Document 43 Filed 04/14/20 Page 1 of 9 PageID #: 558

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------X
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI by his Next Friend Migdaliz Quinones; and JUSTIN RODRIGUEZ, by his Next Friend Jacklyn Romanoff, individually and on behalf of all others similarly situated,
Petitioners,
-against-

ORDER 20-cv-1590 (RPK)

WARDEN DEREK EDGE, Respondent.
------------------------------------------------------------X RACHEL P. KOVNER, United States District Judge:
At a teleconference yesterday, I authorized limited expedited discovery in advance of petitioners’ motion for a preliminary injunction and I declined to stay that discovery pending respondent’s anticipated motion to dismiss. This order addresses objections to petitioners’ discovery requests and sets schedules for expedited discovery and for preliminary-injunction briefing.
I. Petitioners’ Discovery Requests A. Testing Protocols Petitioners request “[t]esting protocols” for COVID-19 that were in effect at the
Metropolitan Detention Center (“MDC”) from February 1, 2020 to April 10, 2020. Proposed Case Management Plan (“Case Management Plan”) at 2, Dkt. No. 37-1. At the teleconference yesterday, petitioners explained the “protocols” they seek are those that govern when inmates or staff members are tested for COVID-19 and how a person at the MDC can request a COVID-19
1

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test. The information sought by petitioners is relevant to their Eighth Amendment claims, which concern the likely prevalence of COVID-19 within the MDC. Respondent is presently relying on the relative paucity of positive tests to undercut petitioners’ argument that respondent is being deliberately indifferent to a substantial risk of harm related to COVID-19 in the facility. See, e.g., Resp. Mem. of Law in Opp. to Petrs’ Mot. for TRO at 8, Dkt No. 18 (asserting that petitioners’ arguments that they are at a heightened risk from COVID-19 within the MDC are “purely speculative” when at the time of the filing “there ha[d] been only one reported case of COVID-19 among inmates at the MDC”); id. at 1 (“COVID-19 has not been spreading in the MDC”). Evidence about when the MDC tests for COVID-19 bears on respondent’s argument that the small number of positive tests suggests that COVID-19 is not widespread within the facility. That evidence is not currently being disclosed in response to Administrative Order No. 2020-14. Cf. Respondent’s Letter of April 13, 2020 (“Resp. Ltr.”) at 4, Dkt. No. 42.
By April 15, 2020, respondent shall produce documents containing protocols that govern when inmates or staff members are tested for COVID-19 and how a person at the MDC can request such a test. Alternatively, respondent shall produce a statement from a person with firsthand knowledge affirming that no responsive documents exist beyond those disclosed in response to Administrative Order No. 2020-14.
B. Soap Records Petitioners request “[d]ocuments sufficient to show how much soap was received at the MDC from February 1, 2020 to date.” Case Management Plan 2. Respondent represented at the teleconference that it is seeking responsive documents and will produce them if identified. Nevertheless, respondent objects that “[t]his request is overly broad inasmuch as it seeks information relating to the impact of soap deliveries to all inmates at the MDC, not just
2

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Petitioners.” Resp. Ltr. 4-5. Respondent’s objection is overruled. Whether soap is being supplied to the MDC is relevant to whether petitioners have access to soap, even if it is also relevant to whether other inmates have access to soap. Moreover, availability of soap to other inmates bears on petitioners’ Eighth Amendment claims. Were the evidence to establish that other inmates lacked access to soap, and that petitioners lacked the ability to socially distance from other inmates, that evidence would shed light on the risk of harm faced by petitioners and on the reasonableness of respondent’s actions to address that risk. Respondent also objects that petitioners’ request is “overly broad” and “disproportionate” because “[d]ifferent departments within the MDC may have ordered soap separately, and records documenting purchases and shipments are not maintained centrally or electronically.” Id. at 5 (emphasis added). But respondent was unable to specify yesterday how many different departments within the MDC separately place soap orders. Without more specificity from respondent, the Court cannot assess whether petitioners’ request would truly place an undue burden on respondent.
By April 15, 2020, respondent shall produce the requested documents, including records of shipments received and invoices from which a delivery date might be determined. Alternatively, the government shall produce a statement from a person with first-hand knowledge (i) specifying how many departments or individuals within the MDC purchase soap, and (ii) explaining with particularity why it would be unduly burdensome to compile the requested information.
C. Sick-Call Requests Petitioners seek “[a]ll sick call requests for medical care made by people incarcerated at [the] MDC from March 13, 2020, in redacted form to omit the person’s name and DIN number.” Case Management Plan 2. Respondent argues that this request is overbroad because it is not limited to sick-call requests by Petitioners Rodriguez and Rabadi. Resp. Ltr. 5. Respondent’s objection is
3

Case 1:20-cv-01590-RPK-RLM Document 43 Filed 04/14/20 Page 4 of 9 PageID #: 561
overruled. Sick-call requests by other inmates are relevant to petitioners’ Eighth Amendment claims. As noted above, while respondent has sought to rebut petitioners’ arguments by pointing to the limited number of positive tests thus far, very few inmates have been tested. Evidence of the number of inmates submitting sick-call requests based on symptoms consistent with COVID19 is relevant to assessing the likely prevalence of COVID-19 within a facility where few tests have occurred. In addition, were the evidence to establish that the MDC has received many sickcall requests reporting COVID-19 symptoms, but that it has performed very few tests in response, that evidence would be relevant to petitioners’ argument that the MDC’s medical staff is not prepared to provide appropriate care to them (including diagnostic care) if they contract COVID-19.
Respondent next objects to petitioners’ sick-call request on the ground that it invades the privacy of inmates who are not parties to this lawsuit. Resp. Ltr. 5. That objection is overruled. Petitioners seek sick-call requests in redacted form, with inmates’ names and DIN numbers omitted, which substantially diminishes the privacy interests implicated. Insofar as respondent suggests that disclosure of the sick-call requests would violate the Health Insurance Portability and Accountability Act of 1996 (HIPAA), respondent is mistaken. HIPAA permits the disclosure of redacted and de-identified health information. See 45 C.F.R. § 164.514(a). Furthermore, entities subject to HIPAA may disclose covered information pursuant to a court order in a judicial proceeding. See 45 C.F.R. § 164.512(e)(1)(i). Privacy interests can be further addressed through a protective order limiting any dissemination of the redacted sick-call requests.
Finally, respondent objects to petitioners’ sick-call request as “not proportional to the needs of this case” in light of the “multiple methods by which inmates can make sick call requests.”
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Resp. Ltr. 5-6. Respondent stated at yesterday’s teleconference that while some such requests are made electronically through the TRULINCS system, other requests are made in person or via paper forms. According to respondent, identifying all responsive requests would therefore require review of every MDC inmate’s medical file. In response, petitioners stated that they do not seek such a review, and instead seek only sick-call requests logged electronically. Respondent was not able to specifically explain at the teleconference the burdens that would be involved in a search of sick-call requests submitted electronically.
By April 15, 2020, respondent shall produce all sick-call requests for medical care submitted electronically by persons incarcerated at the MDC from March 13, 2020 to April 13, 2020, in redacted form that omits names and DIN numbers, or respondent shall explain with specificity any objection based on burdensomeness. If respondent objects based on burdensomeness, respondent should explain (i) whether any centralized record of sick-call requests is maintained, (ii) the number of MDC personnel who are designated to receive sick-call requests, (iii) whether personnel who receive such requests transmit them to one or more central points of contact, and (iv) the burden that would be involved in searching the TRULINCS records of the individuals who receive such requests. The Court further requests that the parties confer regarding a protective order limiting the dissemination of the sick-call requests and submit a proposed order to the Court by April 15, 2020.
D. Rule 30(b)(6) Deposition Petitioners served respondent with a notice of deposition pursuant to Federal Rule of Civil Procedure 30(b)(6). Petitioners seek to depose one or more members of the MDC’s management staff or medical staff, or other persons who consent to testify on the MDC’s behalf, regarding nine COVID-19-related topics. See Notice of Deposition Pursuant to Fed. R. Civ. P. 30(b)(6),
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Dkt. No. 41. Respondent objects that the topics identified by petitioners “are overly broad and far reaching,” but respondent does not specifically identify any portion of the Rule 30(b)(6) request that he believes sweeps too broadly. Resp. Ltr. 11. On this record, I am unable to conclude that petitioners’ nine Rule 30(b)(6) requests are excessively broad.
Respondent alternatively asserts that petitioners’ Rule 30(b)(6) request is unduly burdensome because petitioners could obtain the information they seek using other discovery tools, such as document requests or interrogatories. Ibid. Respondent’s point regarding the relative burden of a Rule 30(b)(6) deposition is persuasive with respect to the first topic petitioners propose to cover in the Rule 30(b)(6) deposition—the number of MDC employees and inmates who fall into certain categories (e.g., showing or describing COVID-19 symptoms, visiting a hospital for treatment of such symptoms, spending time in quarantine due to COVID-19 exposure). Accordingly, petitioners’ first matter for deposition—seeking the number of BOP employees and inmates in certain categories—is converted to an interrogatory. Respondent shall respond by April 27, 2020.
Respondent’s argument regarding the burdens of a Rule 30(b)(6) deposition is overruled with respect to the remaining topics in petitioners’ Rule 30(b)(6) notice. It may well be the case that petitioners could obtain at least some of the additional information they seek using other discovery tools. Respondent, however, has not demonstrated that it would be substantially more onerous—or even more onerous at all—for respondent to provide this information through a Rule 30(b)(6) deposition.
Respondent finally asserts that it would be unreasonable for respondent to be required to identify witnesses on the topics at issue on the timeline that petitioners have proposed. As set
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Case 1:20-cv-01590-RPK-RLM Document 43 Filed 04/14/20 Page 7 of 9 PageID #: 564 out in the schedule below, I am providing respondent with some additional time for identifying the deponent(s) and holding the deposition(s). E. Site Inspection I expect to address petitioners’ request for a site inspection in a further order.
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II. Schedule for Expedited Discovery and for Preliminary Injunction Briefing The following schedule is adopted:

Event

Date

Respondent serves discovery requests.

4/15/2020

Respondent provides responsive documents regarding testing protocols as set out above. Respondent provides responsive documents concerning soap and sick-call requests or develops objections as discussed above. Parties submit proposed protective order governing sick-call requests.

4/15/2020

Petitioners provide responsive documents or objections to respondent’s discovery requests.

4/17/2020

Respondent identifies Rule 30(b)(6) deponent(s).

4/21/2020

Inspection of the MDC by petitioners’ expert, if authorized.

The parties shall choose a mutually acceptable date in the week of 4/21/2020

Rule 30(b)(6) deposition. Respondent also supplies via interrogatory response the numerical data that petitioners sought in their first matter for deposition.

4/27/2020

Petitioners’ brief in support of a preliminary injunction, including any supplemental expert report.

4/28/2020

Respondent’s brief in opposition to a preliminary injunction, including any expert report.

5/5/2020

Petitioners’ reply brief.

5/8/2020

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Case 1:20-cv-01590-RPK-RLM Document 43 Filed 04/14/20 Page 9 of 9 PageID #: 566

Event Preliminary injunction hearing.

Date 5/12/2020

SO ORDERED.
Dated: Brooklyn, New York April 14, 2020

_/s/ Rachel Kovner_____________________ RACHEL P. KOVNER United States District Judge

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 Case 1:20-cv-01590-RPK-RLM Document 45 Filed 04/15/20 Page 1 of 5 PageID #: 576

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------X
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI by his Next Friend Migdaliz Quinones; and JUSTIN RODRIGUEZ, by his Next Friend Jacklyn Romanoff, individually and on behalf of all others similarly situated,
Petitioners,
-against-

ORDER 20-cv-1590 (RPK)

WARDEN DEREK EDGE, Respondent.
------------------------------------------------------------X RACHEL P. KOVNER, United States District Judge:
Petitioners, who have brought a constitutional challenge to the conditions of confinement at the Metropolitan Detention Center (“MDC”) during the COVID-19 epidemic, seek to have an expert witness inspect the facility. They served on respondent a notice of entry on land requesting authorization for their expert (accompanied by two attorneys) to “inspect the conditions” of parts of the facility, to review certain “logbooks and posted orders,” and to speak to inmates and staff about the conditions there. Notice of Entry on Land, Dkt. No. 40. Respondent objects. Respondent’s Letter of April 13, 2020 (“Resp. Ltr.”) at 6-11, Dkt. No. 42. I overrule respondent’s objections to petitioners’ performing any site inspection, and I direct the parties to meet and confer regarding the conditions for such an inspection. The parties shall report back on any disagreement on the conditions of an inspection by April 16, 2020.

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1. Objections to Any Inspection of the MDC Federal Rule of Civil Procedure 34(a)(2) permits one party to serve on another a request “to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect . . . the property.” As a general matter, “[a]ny document or thing that is relevant to the claim or defense of any party may be inspected pursuant to Rule 34 unless it is privileged, or it has been prepared in anticipation of litigation or for trial, or it reveals facts known and opinions held by experts, or there are special reasons why inspection would cause annoyance, embarrassment, oppression, or an undue expense burden.” Charles Alan Wright et al., Federal Practice and Procedure § 2206 (3d ed. 2020); see Fed. R. Civ. P. 26(b)(1). An inspection may be denied as unduly burdensome if “the burdens and dangers created by the inspection” outweigh “the degree to which the proposed inspection will aid in the search for truth.” New York State Ass’n for Retarded Children Inc. v. Carey, 706 F.2d 956, 961 (2d Cir. 1983) (quoting Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904, 908 (4th Cir. 1978)); see, e.g., Curry v. Allan S. Goodman, Inc., No. Civ. 3:02CV1149 (PCD), 2003 WL 22305161 (D. Conn. May 22, 2003). Applying this rule, I conclude that petitioners should be permitted to perform an inspection. Visiting the MDC is the best way for petitioners’ expert to gain an accurate understanding of the conditions there. And petitioners’ expert can be expected to produce a report and testimony that is more useful to the Court if the expert observes conditions at the facility firsthand. I do not see burdens or dangers that outweigh an inspection’s benefits. An inspection of a detention facility does impose some unique burdens, because the MDC is “an administrative security facility” in which movement “is heavily controlled and restricted to ensure the safety and security of inmates and employees at the facility.” Resp. Ltr. 10. But site
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inspections have been conducted at the MDC on at least several occasions in recent years, without any evident disruption of operations. And while respondent notes that “operations at MDC are significantly modified to cope with the current pandemic,” ibid., respondent has not identified aspects of the facility’s COVID-19 protocols that make an inspection impracticable. Instead of prohibiting petitioners from performing an inspection, the parties (or the Court, if necessary) should adopt limits on the inspection that minimize its burden on the facility.
I am unpersuaded by respondent’s arguments that an inspection should be entirely prohibited. Respondent suggests that a site inspection will have little or no value because petitioners’ proffered expert—Dr. Homer Venters—and others have already expressed views relating to best practices and the likely spread of COVID-19 within the facility. Resp. Ltr. 6-8. But an expert may express views at the temporary restraining order (“TRO”) stage based on the facts he knows, and later refine his views and offer additional analysis after he learns new facts. It would be particularly strange for me to conclude that an inspection by Dr. Venters would be of little use, because Dr. Venters has not previously offered an analysis of conditions at the MDC and the safety measures respondent has taken there. His declaration at the TRO stage focused on best practices generally and on epidemiological expectations regarding the virus’s spread. See Venters Decl., Dkt. 26-4. Respondent also suggests that an inspection “would have limited utility” because conditions at the MDC are “fluid” and “constantly changing.” Resp. Ltr. 10. But some conditions at MDC are likely to remain constant during the duration of this (rather expedited) litigation. I cannot conclude that a site inspection will be of little value simply because some conditions may change in the future. Finally, respondent suggests that a site inspection is not necessary because two of the named petitioners are housed at the MDC and can therefore describe the conditions at the facility to their expert. As noted above, however, I
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believe firsthand observation of conditions at the MDC is likely to yield information that could not be readily obtained through secondhand accounts. I conclude that an inspection of the MDC is appropriate.
2. Objections to the Manner of Inspection Respondent raises several narrower objections. He argues that Dr. Venters and petitioners’ counsel should not interview MDC staff during an inspection because petitioners have not gone through the required approval processes for questioning of Department of Justice (“DOJ”) employees, Resp. Ltr. 9-10, and because “interviews of BOP staff during work hours at the MDC” would be “unduly disruptive to [staff members’] normal duties safeguarding and protecting inmates,” id. at 10. I agree that Dr. Venters and petitioners’ counsel should not solicit interviews of MDC staff while conducting the inspection. Petitioners have not persuasively explained how such interviews would be consistent with regulations that generally require DOJ approval before a DOJ employee may disclose information that the employee obtained during the employee’s performance of official duties. See 28 C.F.R. §§ 16.21-16.29; United States ex. rel. Touhy v. Ragen, 340 U.S. 462, 468 (1951). In any event, attempts to interview the MDC staff who are on duty during petitioners’ inspection would risk unduly burdening MDC operations during a crisis. I direct the parties to confer regarding the additional objections that respondent has raised to the manner of the proposed inspection. Respondent objects “to the request by Dr. Venters and two attorneys to talk to ‘incarcerated individuals (confidentially)’” on that ground that permitting petitioners to conduct such interviews “without any limitations” would “violate[] the privacy rights and interests of inmates housed at the MDC who are not parties to this action.” Resp. Ltr. 8. Respondent also suggests that such interviews may be inappropriate because such inmates
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“likely have had, or still have, counsel with respect to their criminal cases.” Id. at 9. During a teleconference in this case on Monday, the Attorney-in-Charge of the Federal Defenders for the Eastern District of New York stated that she consented to interviews of Federal Defenders’ clients regarding conditions of confinement at the MDC. Petitioners’ counsel also gave additional guidance concerning a proposed protocol for interviews. The parties are directed to discuss whether agreement is possible on any protocol governing such conversations.
Similarly, the parties are directed to discuss respondent’s objections that petitioners’ notice of inspection is not appropriately limited “to any specific or reasonable duration” or sufficiently confined “in scope or nature,” Resp. Ltr. 8; that an inspection should not extend to “the entire MDC”; that “[p]etitioners have not stated what method they will use to record their observations,” id. at 10; and that certain information would be more appropriately obtained through alternative mechanisms, id. at 11. At the teleconference in this case on Monday, petitioners expressed willingness to further limit the areas of MDC that they would inspect. The Court expects the parties to negotiate in good faith regarding the parameters of an inspection to permit petitioners to obtain relevant information while minimizing the burden on respondent.
The parties are directed to advise the Court on April 16, 2020, whether they have reached an agreement on the parameters of an inspection. If areas of disagreement remain, the parties shall explain their positions on the disputed issues.

SO ORDERED.
Dated: Brooklyn, New York April 15, 2020

/s/ Rachel Kovner RACHEL P. KOVNER United States District Judge
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 Case 1:20-cv-01590-RPK-RLM Document 53 Filed 04/17/20 Page 1 of 2 PageID #: 838

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------X
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI by his Next Friend Migdaliz Quinones; and JUSTIN RODRIGUEZ, by his Next Friend Jacklyn Romanoff, individually and on behalf of all others similarly situated,
Petitioners,
-against-

ORDER 20-cv-1590 (RPK)

WARDEN DEREK EDGE, Respondent.
------------------------------------------------------------X RACHEL P. KOVNER, United States District Judge:
A teleconference was held this afternoon at which the parties discussed alternative proposals for petitioners’ expert, Dr. Homer Venters, to speak with inmates while inspecting the Metropolitan Detention Center (“MDC”) on April 23, 2020.
Having considered those proposals, the Court directs that Dr. Venters be permitted cellfront access to inmates for brief conversations, subject to the inmates’ willingness to speak to Dr. Venters. Dr. Venters should maintain an appropriate social distance from the inmates during those exchanges. And other persons participating in the inspection should maintain an appropriate social distance from Dr. Venters. Petitioners’ counsel has stated that Dr. Venters will note the names and cell numbers of inmates with whom he speaks, when those inmates consent. If Dr. Venters relies on anonymous accounts in preparing an expert report, respondent will be free to make any arguments that he wishes to make about the reliability of such accounts, and petitioners will be free to make any arguments they wish in response.

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A cell-front protocol is likely to yield more relevant information and to be less burdensome than respondent’s proposed alternative in which inmates are removed from their cells and placed in a common area for any discussions. The alternative protocol would add at least some measure of delay during a time-limited inspection. As a result, it may well reduce the number of inmates with whom Dr. Venters could feasibly speak and the amount of relevant information he may obtain. The alternative protocol would also be more onerous, rather than less onerous, for MDC personnel, because MDC staff would be required to remove inmates from cells before such questioning and then return them to their cells afterward.
Respondent notes that some inmates may prefer not to be questioned in their cells due to their proximity to other inmates. But other inmates may prefer to speak to Dr. Venters without first being removed from their cells. The privacy of inmates who do not wish to engage in cellfront conversations will be adequately protected because those inmates are free to decline to speak to Dr. Venters.

SO ORDERED.
Dated: Brooklyn, New York April 17, 2020

_/s/ Rachel Kovner______________ RACHEL P. KOVNER United States District Judge

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 Case 1:20-cv-01590-RPK-RLM Document 23 Filed 04/02/20 Page 1 of 3 PageID #: 280

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------------------------x
HASSAN CHUNN, NEHEMIAH McBRIDE, AYMAN RABADI by his next friend Migdaliz Quinones, and JUSTIN RODRIGUEZ by his next friend JACKLYN ROMANOFF,
Petitioners,
-against-
WARDEN DEREK EDGE,

ORDER 20-cv-1590 (RPK)

Respondent. -----------------------------------------------------------x RACHEL P. KOVNER, United States District Judge:
The Court directs the parties to make themselves available today for discussions with Magistrate Judge Mann, in order to explore whether the parties can reach an agreement on any of the matters at issue in petitioners’ application for a temporary restraining order. The Court specifically requests that the parties consider whether an agreement is possible to enable petitioners to promptly obtain adjudication of claims for release under the compassionate-release provision at 18 U.S.C § 3582(c)(1)(A), or any other mechanism that countenances early release of prisoners.
As the parties know, a number of courts have used Section 3582(c)(1)(A) to grant compassionate release based on claims—like those of petitioners here—that individuals’ health conditions placed them at grave risk while confined during the COVID-19 epidemic. But Section 3582(c)(1)(A) authorizes a motion seeking compassionate release only “after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring such a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier.” Petitioners have argued that the

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Bureau of Prisons (BOP) “has acted at a slow pace to respond to requests for emergency compassionate release,” Pet. ¶ 3, thereby making Section 3582(c)(1)(A) unavailable for prompt review of COVID-19 release claims. Nevertheless, prompt review under Section 3582(c)(1)(A) could be obtained through, for example, an agreement on the part of the BOP to adjudicate petitioners’ compassionate-release requests in an expedited fashion.
The litigants here have good reason to consider opening the courthouse door to fast review of such compassionate-release claims. Petitioners currently seek release through a suit under 28 U.S.C. § 2241, arguing that the BOP’s response to their health circumstances in light of the COVID-19 epidemic is so inadequate as to constitute deliberate indifference to their medical needs in violation of the Eighth Amendment. Such a lawsuit is—at the minimum—a far less established avenue for COVID-19-based relief than compassionate release. The bar for a constitutional violation under the Eighth Amendment is high. And none of the parties have identified any case in which a court has released a federal criminal defendant on the theory that COVID-19 precautions were so deficient as to constitute cruel and unusual punishment. In contrast, a number of defendants at heightened risk from COVID-19 have already obtained compassionate release under Section 3582(c)(1)(A). Respondent also has good reasons to explore a resolution that would permit petitioners to quickly present compassionate-release claims; among others, the practical implications of a litigation loss on petitioner’s Eighth Amendment claims could be significant.
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The Court stays decision on the request for a temporary restraining order pending the
discussion above. The parties are requested to advise the Court by the close of business on Friday,
April 3, 2020, whether they are still engaged in such discussions, whether discussions have concluded and they have reached an agreement, or whether discussions have concluded without
achieving any agreement. SO ORDERED. /s/ Rachel Kovner RACHEL P. KOVNER United States District Judge

Dated:

Brooklyn, New York April 2, 2020

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 Case 1:20-cv-01590-RPK-RLM Document 44 Filed 04/14/20 Page 1 of 2 PageID #: 567

RICHARD D. EMERY ANDREW G. CELLI, JR. MATTHEW D. BRINCKERHOFF JONATHAN S. ABADY EARL S. WARD ILANN M. MAAZEL HAL R. LIEBERMAN DANIEL J. KORNSTEIN O. ANDREW F. WILSON ELIZABETH S. SAYLOR KATHERINE ROSENFELD DEBRA L. GREENBERGER ZOE SALZMAN SAM SHAPIRO

EMERY CELLI BRINCKERHOFF & ABADY LLP
ATTORNEYS AT LAW 600 FIFTH AVENUE AT ROCKEFELLER CENTER
10TH FLOOR NEW YORK, NEW YORK 10020
TEL: (212) 763-5000 FAX: (212) 763-5001 www.ecbalaw.com

DIANE L. HOUK
EMMA L. FREEMAN DAVID BERMAN HARVEY PRAGER
SCOUT KATOVICH NICK BOURLAND ANDREW K. JONDAHL ANANDA BURRA
MAX SELVER

April 14, 2020
Hon. Rachel P. Kovner United States District Judge United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201
Re: Hassan Chunn, et al. v. Warden Derek Edge, 20 Civ. 1590
Dear Judge Kovner:
Along with the Cardozo Civil Rights Clinic, and Alexander A. Reinert, we represent Petitioners in the above-referenced case.
In further support of Petitioners’ request that the Court permit Dr. Homer Venters to inspect the Metropolitan Detention Center, we write to draw the Court’s attention to another pending federal action brought on behalf of pretrial and convicted individuals in the District of Columbia’s correctional facilities, concerning the prison officials’ COVID-19 response and seeking substantially the same relief as sought by Petitioners here. In that case, the court recently ordered an independent expert inspection of the District of Columbia’s Department of Corrections’ jails. See Banks, et al., v. Booth, No. 20 Civ. 849 (CKK) (D.D.C.), Dkt. 34 (Order attached as Ex. A). The Order requires defendants to permit the experts to visit the facility unannounced with cameras and other equipment, and permits them to speak with staff and residents and to review documents.
Additionally, we write to provide the Court with the authorities relied upon by Petitioners during yesterday’s tele-conference. In addition to the orders cited on page nine of Petitioners’ April 11, 2020 letter to the Court, we also addressed United States v. Erie Cty., NY, No. 09-CV849S, 2010 WL 986505, at *3 (W.D.N.Y. Mar. 17, 2010) (holding that it was necessary to allow experts access to jail employees during Rule 34 inspection in order for them to properly understand the jail’s practices and protocols) as well as In Re the Matter of Conditions at Metropolitan Detention Center, West Building, Brooklyn, Brooklyn, New York, Admin. Order 2019-03 (permitting inspection of all housing units of the West Building of the MDC and allowing representative from Federal Defenders to speak directly with incarcerated people)

Case 1:20-cv-01590-RPK-RLM Document 44 Filed 04/14/20 Page 2 of 2 PageID #: 568 EMERY CELLI BRINCKERHOFF & ABADY LLP Page 2 (attached as Exhibit B).
Respectfully submitted, /s/
Katherine Rosenfeld
Enc. cc: All Counsel (via ECF)

Case 1:20-cv-01590-RPK-RLM Document 44-1 Filed 04/14/20 Page 1 of 5 PageID #: 569
Exhibit A

Case 1:20-cCva-0se1519:200-R-cPvK-0-R08L4M9-CDKoKcumDeonctu4m4e-n1t 3F4iledFi0le4d/1044//2009/2P0agPea2geof15oPf a4geID #: 570

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ EDWARD BANKS, et al.,

Plaintiffs,

v.

No. 1:20-cv-849 (CKK)

QUINCY BOOTH, in his official capacity
as Director of the District of Columbia Department of Corrections, et al.,

Defendants. ____________________________________

CONSENT ORDER APPOINTING AMICUS
The Court hereby appoints Grace M. Lopes and Mark Jordan as amici curiae to provide information to the Court. The specific information that the Court seeks from amici is listed in the attachment to this Order, and further orders regarding form and deadlines for reporting to the Court will issue later.

Further, the Court ORDERS that Grace M. Lopes and Mark Jordan shall be able to enter Department of Corrections (“DOC”) facilities, including Correctional Treatment Facility (“CTF”) and the Central Detention Facility (“CDF”) unannounced and bring with them cameras, cell phones, writing implements, and any other equipment required to conduct their site visits. Once in the facilities, Grace Lopes and Mark Jordan shall be permitted to inspect areas of the facilities without limitation, and shall be permitted to speak with staff and residents in confidence and outside of the presence of DOC supervisors and staff.

It is further ORDERED that Grace M. Lopes and Mark Jordan shall be permitted to review all pertinent DOC records and documents, electronic or otherwise, and video footage in connection with their investigation. The DOC is also ORDERED to preserve all pertinent documents and video footage.

It is further ORDERED that the DOC shall make all CTF and CDF managers and staff available for interviews, including telephonic interviews conducted by amici.
It is further ORDERED that amici curiae be provided by DOC with a sufficient supply of full personal protective equipment to safely enable their inspections at the time of those inspections.

Case 1:20-cCva-0se1519:200-R-cPvK-0-R08L4M9-CDKoKcumDeonctu4m4e-n1t 3F4iledFi0le4d/1044//2009/2P0agPea3geof25oPf a4geID #: 571

Dated: April 8, 2020

/S/ Colleen Kollar-Kotelly United States District Judge

ATTACHMENT
Amici curiae are directed to review the following documents:
x The “DC Department of Corrections’ COVID-19 Response FAQs,” available at https://doc.dc.gov/page/coronavirus-prevention
x The declarations and documents filed by Defendants: o Dkt. No. 19-3 (Unity Health Care Coronavirus Protocol) o Dkt. No. 19-4 (DOC Coronavirus Screening Protocol Flowchart) o Dkt. No. 19-5 (DOH guidance, Email from Shreya Khuntia) o Dkt. No. 19-6 (Medical Plan for Pandemic Influenza) o Dkt. No. 20-1 (Declaration of Lennard Johnson) o Dkt. No. 20-2 (Declaration of Beth Jordan) o Dkt. No. 22 (SEALED DOC Pandemic Plan)
x The declarations and documents filed by Plaintiffs o Dkt. No. 5-2 (Exhibits in Support of TRO) o Dkt. No. 23-11 (Declaration of Michael Hannon) o Dkt. No. 24-1 (Declaration of Doreen Deterville) o Dkt. No. 24-2 (Declaration of Lennette Nesbitt) o Dkt. No. 26-1 (Declaration of Kamal Donchy) o Dkt. No. 26-2 (Declaration of James Guillory) o Dkt. No. 26-3 (Declaration of David Randolph) o Dkt. No. 26-4 (Declaration of Micheal Cohen III) o Dkt. No. 26-7 (Declaration of Jean Johnson)
Amici curiae are directed to answer the following questions:
MEDICAL
(1) When residents display COVID-19 symptoms, as defined by the CDC, are they seen by medical staff?
(2) When residents display COVID-19 symptoms are they tested for COVID-19?
(3) Are there requests for a sick call based on suspected COVID-19 symptoms where there is no response?

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Case 1:20-cCva-0se1519:200-R-cPvK-0-R08L4M9-CDKoKcumDeonctu4m4e-n1t 3F4iledFi0le4d/1044//2009/2P0agPea4geof35oPf a4geID #: 572
(4) Is the response time for sick call requests of suspected COVID-19 symptoms for a resident to be seen by medical staff reasonable (assuming time of request and response time are recorded)?
(5) Are residents suspected of COVID-19 isolated from other people?
(6) Are new residents who enter DOC quarantined for 14 days?
(7) How frequently do DOC medical staff and/or Unity Health Care staff meet with DOC staff and residents to inform them about COVID-19 symptoms and precautions, and what information is conveyed?
(8) What visitor screening is conducted? Do the thermometers used for visitor screening work and are they used properly?
(9) How do the conditions of the quarantine housing compare to conditions in nonquarantine housing, and are residents deterred from reporting symptoms?
ENVIRONMENTAL HEALTH & HYGIENE
(1) What are the quantities of personal protective equipment and cleaning products in the DOC stockpile?
(2) Are residents provided with a weekly bar of soap?
(3) Do staff who interact with visitors and residents have access to, and wear, sufficient personal protective equipment (different personal protective equipment and/or other protective equipment)?
(4) Are staff and prisoner-workers given masks and gloves, particularly in food service (where workers also wear hair/beard guards), and are they instructed to wear that equipment?
(5) Do residents have access to cleaning supplies in sufficient quantity and concentration, including rags, to clean their cells?
(6) Do housing units, and particularly common spaces such as bathrooms and showers, appear to be sufficiently cleaned?
(7) Do professional cleaning crews clean hallways and common areas (not in housing units)? Do inmate details clean the housing units’ common spaces?
(8) Are residents of CTF able to access hand sanitizer?
(9) Is social distancing possible in common areas in units, and what is the approximate size of common areas?
3

Case 1:20-cCva-0se1519:200-R-cPvK-0-R08L4M9-CDKoKcumDeonctu4m4e-n1t 3F4iledFi0le4d/1044//2009/2P0agPea5geof45oPf a4geID #: 573 (10) Approximately how many residents share a cell, and what is the approximate size of the cell? (11) Do all residents have access to sinks, soap, and toilets?
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Case 1:20-cv-01590-RPK-RLM Document 44-2 Filed 04/14/20 Page 1 of 2 PageID #: 574
Exhibit B

Case 1:20-cv-01590-RPK-RLM Document 44-2 Filed 04/14/20 Page 2 of 2 PageID #: 575

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
In Re the Matter of Conditions at the Metropolitan Detention Center, West Building, Brooklyn, New York - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

ADMINISTRATIVE ORDER 2019-03

In order to obtain current and comprehensive information on the conditions at the Metropolitan Detention Center, West Wing (“MDC”) located in Brooklyn, New York following the fire that occurred there on January 27, 2019 and reported recurring power outages, it is hereby
ORDERED that a representative of the Federal Defenders of New York and the U.S. Attorney’s Office, Eastern District of New York be permitted to inspect each housing unit in the West Building and speak directly to inmates. This visit shall occur today, February 1, 2019.

SO ORDERED
Brooklyn, New York Dated: February 1, 2019

______________/s/_________________ DORA L. IRIZARRY
Chief United States District Judge

 
 Case 1:20-cv-01590-RPK-RLM Document 34 Filed 04/07/20 Page 1 of 6 PageID #: 483
U.S. Department of Justice
United States Attorney Eastern District of New York
271 Cadman Plaza East Brooklyn, New York 11201
April 7, 2020
By ECF
Honorable Rachel P. Kovner United States District Judge United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201
Re: Chunn, et al., v. Warden Derek Edge, Civil Action No. 20-cv-1590 (Kovner, J.)
Dear Judge Kovner:
Pursuant to the Court’s April 5, 2020 Order, Respondent Derek Edge respectfully submits the below update regarding (I) “whether the BOP has reached a final decision on petitioners’ applications”; and (II) “[i]f BOP has not yet reached a final decision, Respondent shall advise the Court when final decisions will be reached and whether the government is pressing (or intends to press) failure to fully exhaust administrative remedies as a basis to oppose consideration of applications by Petitioners’ sentencing courts under 18 U.S.C. 3582(c).”
As an initial matter, and as set forth in detail below, on April 7, 2020, the sentencing judge ordered the immediate release of Petitioner Nehemiah McBride pursuant to his motion for compassionate release.
I. Status of Petitioners’ Applications
The four Petitioners in this action have separately petitioned the Warden of the Metropolitan Detention Center (“MDC”) for release under either 18 U.S.C. § 3582(c)(1)(A) or other mechanisms that countenance early release of prisoners. Petitioners sought to compel the Warden to reach a decision regarding their requests by commencing these temporary restraining order proceedings. On Friday, April 3, 2020, the Warden denied the Petitioners’ requests.
BOP is working as expeditiously as possible to respond to the extraordinary number of requests for release it has received from federal inmates, including Petitioners. The BOP Regional Office, the next step in the appeal process, does not have a record of the four Petitioners having appealed the Warden’s denial. Under 28 C.F.R. §§ 542.15 and 542.16, the inmate alone must initiate the appeal process. If and when an appeal is received, the BOP will consider the appeal and render a final decision. In any event, and as set forth below, the U.S. Attorney’s Office

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remains in close contact with BOP regarding Petitioners’ applications and provides the below updates.
Following the denial of Petitioners’ requests by the Warden, and without waiting the requisite 30 days as required under 18 U.S.C. § 3582(c)(1)(A), the four Petitioners have since filed motions with their sentencing criminal judges seeking release under 18 U.S.C. § 3582(c)(1)(A), as follows:
Hassan Chunn. On March 26, 2020, Petitioner Hassan Chunn filed a request with the Warden seeking early release under 18 U.S.C. § 3624(c). See Case No. 16 Cr. 388, Dkt. No. 26 (E.D.N.Y.). On April 5, 2020, Chunn filed a motion with Judge Brian M. Cogan seeking compassionate release under 18 U.S.C. § 3582(c)(1)(A) and home confinement. See Case No. 16 Cr. 388, Dkt. No. 28 (E.D.N.Y.). Judge Cogan ordered the government to respond to Chunn’s motion by Tuesday, April 7, 2020, and scheduled a hearing for Wednesday, April 8, 2020 at 10:15 a.m. See Dkt. Entry dated April 6, 2020.
Justin Rodriguez. On March 27, 2020, Petitioner Justin Rodriguez filed a request with the Warden seeking early release and home confinement under 18 U.S.C. § 3624. On April 5, 2020, Rodriguez filed a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A), or, in the alternative, home confinement, with Judge Loretta A. Preska of the Southern District of New York. See Case No. 16 Cr. 167 (LAP), Dkt. No. 329 (S.D.N.Y.). The Court ordered the government to respond to Rodriguez’s motion by Tuesday, April 7, 2020.
Ayman Rabadi. On April 3, 2020, Petitioner Ayman Rabadi filed requests with the Warden seeking release under 18 U.S.C. § 3582. On April 3, 2020, Rabadi filed a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A) with Judge Kenneth M. Karas of the Southern District of New York. See Case No. 13 Cr. 353 (KMK), Dkt. Nos. 84 (original redacted), 85 (supplemental request) (S.D.N.Y.). The Court ordered the government to respond to Rabadi’s motion by Wednesday, April 8, 2020. See Dkt. No. 86.
Nehemiah McBride. On March 26, 2020, Petitioner Nehemiah McBride filed a request seeking compassionate release under 18 U.S.C. § 3582 with the Warden. On April 6, 2020, McBride filed a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A) or, in the alternative, home confinement under 18 U.S.C. § 3264, with Judge Denise L. Cote of the Southern District of New York. See Case No. 15 Cr. 876 (DLC), Dkt. No. 70 (S.D.N.Y.) (redactions in original). On April 7, 2020, in response to the motion for compassionate release brought before the sentencing judge, the government filed a letter stating that, following a review of the unique circumstances faced by Petitioner McBride, the government does not oppose his immediate release. See Dkt. No. 72. Earlier today, Judge Cote granted McBride’s motion and ordered his immediate release. See Dkt. No. 73. In light of McBride’s immediate release ordered by the sentencing judge, his claim in this matter is moot and subject to dismissal. See Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997) (Article III of the United States Constitution limits the subject matter jurisdiction of federal courts to “Cases” and “Controversies.”); Barrett v. United States, 105 F.3d 793, 794-95 (2d Cir. 1996); Fuller v. BIA, 702 F.3d 83, 86 (2d Cir. 2012); Feng Chen v. Sessions, 321 F. Supp. 3d 332, 337 (E.D.N.Y. 2018); Xian Yong Zeng v. Kerry, 266 F. Supp. 3d 645, 647-48 (E.D.N.Y. 2017).
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II. Exhaustion of Administrative Remedies
By way of background, the sentencing district court judge may modify a term of imprisonment previously imposed if “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i). But it only may do so upon a motion of the BOP or upon a motion of the defendant, in the latter case provided that “the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility.” Id. (emphasis added); see United States v. Gagne, No. 18 Cr. 242 (VLB), 2020 WL 1640152, at *2 (D. Conn. Apr. 2, 2020) (“Because of [the First Step Act,] a defendant may move for compassionate release ‘after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier.’”) (quoting 18 U.S.C. § 3582(c)); United States v. Gileno, No. 19 Cr. 161 (VAB), 2020 WL 1307108, at *3 (D. Conn. Mar. 19, 2020) (“As a threshold matter, Mr. Gileno has not satisfied the requirement under 18 U.S.C. § 3582(c)(1)(A) to first request that the Bureau of Prisons file a motion on his behalf and then show that thirty days have passed without any BOP action. As a result, the Court cannot consider his motion to modify his sentence.”).
Section 3582(c)(1)(A)’s exhaustion requirement is therefore mandatory. It is critical, in this context, to note that Section 3582(c)’s exhaustion requirement is statutory, and thus is not the sort of judicially-crafted exhaustion requirement that “remain[s] amenable to judge-made exceptions.” Ross v. Blake, 136 S. Ct. 1850, 1857 (2016); see Miranda v. Parrinelo, No. 15- Civ. 955 (JMA) (AYS), 2017 WL 3531511, at *4 (E.D.N.Y. July 26, 2017) (“the Supreme Court has forcefully rejected judge-made exceptions to the PLRA’s exhaustion requirement, stressing the mandatory language of the statute ‘thus foreclosing judicial discretion.’”) (quoting Ross, 136 S. Ct. at 1857), report and recommendation adopted, 2017 WL 3524669 (E.D.N.Y. Aug. 16, 2017). Statutory exhaustion requirements “stand[] on a different footing.” Ross, 136 S. Ct. at 1857. There, “Congress sets the rules—and courts have a role in creating exceptions only if Congress wants them to.” Id. Thus, where a statute contains mandatory exhaustion language, the only permissible exceptions are those contained in the statute. Id.; see also Bastek v. Fed. Crop. Ins., 145 F.3d 90, 94 (2d Cir. 1998) (“Faced with unambiguous statutory language requiring exhaustion of administrative remedies, we are not free to rewrite the statutory text.”).
As described above, Section 3582(c)(1)(A) contains mandatory exhaustion language with no statutory exceptions. The plain language of the statute makes clear that a court “may not” modify a sentence unless, as relevant here, the defendant has first “fully exhausted all administrative rights” or waited 30 days after transmitting his request to the warden. Unlike the Prison Litigation Reform Act, for example, there is no statutory qualifier that a defendant need only exhaust all “available” remedies.1 Thus, Section 3582(c)(1)(A) is a mandatory exhaustion
1 In particular, the PLRA demands that an inmate exhaust “such administrative remedies as are available,” meaning that the only permissible exception to exhaustion is where the remedies are “unavailable.” Ross, 136 S. Ct. at 1856-58 (emphasis added); see also id. at 1855 (criticizing the “freewheeling approach” adopted by some Courts of Appeals to exhaustion requirements, and overruling
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provision with no applicable exceptions. Cf. Fry v. Napoleon Community Schools, 137 S. Ct. 743, 750 (2017) (statute requiring that certain types of claims “shall be exhausted” is a mandatory exhaustion provision for those types of claims); see also United States v. Monzon, No. 99 Cr. 157, 2020 WL 550220, at *2 (S.D.N.Y. Feb. 4, 2020).
In recent weeks, numerous defendants around the country have cited the unusual circumstances presented by COVID-19 as a basis for compassionate release, and have argued that the exhaustion requirement should be excused. The only Court of Appeals to have addressed the question has rejected the argument and required exhaustion. See United States v. Raia, No. 201033, 2020 WL 1647922, at *2 (3d Cir. Apr. 2, 2020). In Raia, the Third Circuit recognized the serious concerns presented by COVID-19, but held that, in light of these concerns, as well as the BOP’s statutory role and its “extensive and professional efforts to curtail the virus’s spread, . . . strict compliance with § 3582(c)(1)(A)’s exhaustion requirement takes on added—and critical— importance.” Id. at *2. The vast majority of district courts have also required exhaustion despite COVID-19 claims.2 These decisions are consistent with the plain language of Section 3582(c).
To be sure, COVID-19 presents unusual circumstances, in which compassionate release decisions should be made expeditiously. But the text of Section 3582 contains no exigency exception for such circumstances, and indeed the text refutes the availability of such an exception in two respects. First, while many statutory exhaustion provisions require exhaustion of all administrative remedies before a claim is brought in court, Section 3582 provides an alternative: exhaustion of all administrative rights or the lapse of 30 days from the warden’s receipt of the inmate’s request for compassionate release, whichever is earlier. 18 U.S.C. § 3582(c)(1)(A). This alternative suggests that the Congress recognized that even if compassionate release requests cannot always await the full administrative process to be completed, the BOP should have at least 30 days to act on such a request. See United States v. Arena, No. 18 Cr. 14 (VM) (S.D.N.Y. Apr. 6, 2020) (Dkt. No. 354) (there is “simply no authority that permits [the defendant] to circumvent the administrative exhaustion requirement” based on a claim of futility, because the ability to seek relief after 30 days constitutes “an express futility provision”).
precedent from the Second Circuit and other circuits that had read additional exceptions into the rule). Here, no such exception exists in the statute.
2 See United States v. Arena, No. 18 Cr. 14 (VM) (S.D.N.Y. Apr. 6, 2020) (Dkt. No. 354); United States v. Johnson, No. 14 Cr. 441, 2020 WL 1663360, at *1 (D. Md. Apr. 3, 2020; United States v. Hernandez, No. 18 Cr. 834 (PAE), 2020 WL 1445851, at *1 (S.D.N.Y. Mar. 25, 2020); United States v. Cohen, No. 18 Cr. 602 (WHP), 2020 WL 1428778, at *1 (S.D.N.Y. Mar. 24, 2020); United States v. Carver, No. 19 Cr. 6044, 2020 WL 1604968, at *1 (E.D. Wa. Apr. 1, 2020); United States v. Clark, No. 17 Cr. 85 (SDD), 2020 WL 1557397, at *3 (M.D. La. Apr. 1, 2020); United States v. Williams, No. 15 Cr. 646, 2020 WL 1506222, at *1 (D. Md. Mar. 30, 2020); United States v. Garza, No. 18 Cr. 1745, 2020 WL 1485782, at *1 (S.D. Cal. Mar. 27, 2020); United States v. Zywotko, No. 19 Cr. 113, 2020 WL 1492900, at *1 (M.D. Fla. Mar. 27, 2020); United States v. Eberhart, No. 13 Cr. 313 (PJH), 2020 WL 1450745, at *2 (N.D. Cal. Mar. 25, 2020); United States v. Gileno, No. 19 Cr. 161, 2020 WL 1307108, at *3 (D. Conn. Mar. 19, 2020). But see United States v. Perez, No. 17 Cr. 513 (AT), 2020 WL 1546422, at *3 (S.D.N.Y. Apr. 1, 2020); United States v. Colvin, No. 19 Cr. 179 (JBA), 2020 WL 1613943, at *2 (D. Conn. Apr. 2, 2020). Both Perez and Colvin relied on Washington v. Barr, 925 F.3d 109 (2d Cir. 2019), which is inapposite because it involves judge-made exhaustion doctrine.
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Second, in cases presenting the most urgent circumstance—inmates diagnosed with a terminal illness—Section 3582(d) requires the BOP to process any application for compassionate release in 14 days. Inmates, however, would still need to comply with the exhaustion requirements. That the Congress allowed 14 days to process the claims of even a terminally ill inmate suggests that it could not have intended to allow a shorter period—which excusing exhaustion would provide—in a case, such as this, where the risk to Petitioners, while serious, remains potential.
As the Third Circuit properly recognized, the mandatory exhaustion requirement accommodates the valuable role that the BOP plays in the compassionate release process. Informed decisions about compassionate release require the collection of information, like disciplinary records, recidivism score, and medical history, that the BOP is uniquely suited to obtain and which will benefit both the BOP and later the court evaluating such claims. The BOP is also well situated to make relative judgments about the merits of compassionate release petitions—particularly at a time like this when many inmates are making petitions advancing similar claims—and adjudicate those positions in a consistent manner. The court may of course review those judgments, but the Congress expressed its clear intent that such review would come second, with the benefit of the BOP’s initial assessment. See United States v. Russo, No. 16 Cr. 441 (LJL) (S.D.N.Y. Apr. 3, 2020) (Dkt. No. 54) (The statutory text “recognizes that the BOP is frequently in the best position to assess, at least in the first instance, a defendant’s conditions, the risk presented to the public by his release, and the adequacy of a release plan. That recognition is consistent with one of the bedrock principles underlying administrative exhaustion—to permit the agency, with its expertise and with its responsibility over the movant, to make a decision in the first instance.”).
Notwithstanding the above, the determination of a motion for compassionate release under 18 U.S.C. § 3852(c)(1)(A) is reserved to the sentencing judge in the underlying criminal matter. Cf. United States v. Avery, No. 19-1414, 2020 WL 1541080, at *2 (2d Cir. Apr. 1, 2020) (“We agree with the government that any reduction of the original 71-month sentence must be made by the sentencing court that imposed that sentence, namely, the United States District Court for the Eastern District of Virginia.”); Raia, 2020 WL 1647922, at *2 (“Section 3582’s text requires those motions to be addressed to the sentencing court, a point several Circuits have noted and Raia himself acknowledges.”). It is not a decision to be made by a judge in a civil action or, for that matter, by a special master selected by Petitioners.
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Respondent thanks the Court for its consideration of this matter.

Respectfully submitted,

RICHARD P. DONOGHUE United States Attorney

By:

/s/

James R. Cho

Seth D. Eichenholtz

Joseph A. Marutollo

Assistant U.S. Attorneys

(718) 254-6519/7036/6288

james.cho@usdoj.gov

seth.eichenholtz@usdoj.gov

joseph.marutollo@usdoj.gov

cc: The Honorable Roanne L. Mann, U.S. Magistrate Judge All Counsel of Record (by ECF)

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RICHARD D. EMERY ANDREW G. CELLI, JR. MATTHEW D. BRINCKERHOFF JONATHAN S. ABADY EARL S. WARD ILANN M. MAAZEL HAL R. LIEBERMAN DANIEL J. KORNSTEIN O. ANDREW F. WILSON ELIZABETH S. SAYLOR KATHERINE ROSENFELD DEBRA L. GREENBERGER ZOE SALZMAN SAM SHAPIRO

EMERY CELLI BRINCKERHOFF & ABADY LLP
ATTORNEYS AT LAW 600 FIFTH AVENUE AT ROCKEFELLER CENTER
10TH FLOOR NEW YORK, NEW YORK 10020
TEL: (212) 763-5000 FAX: (212) 763-5001 www.ecbalaw.com
April 7, 2020

DIANE L. HOUK
EMMA L. FREEMAN DAVID BERMAN HARVEY PRAGER
SCOUT KATOVICH NICK BOURLAND ANDREW K. JONDAHL ANANDA BURRA
MAX SELVER

Hon. Rachel P. Kovner United States District Judge United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201

Re: Hassan Chunn et al. v. Warden Derek Edge, 20 Civ. 1590 (RPK) (RLM)

Dear Judge Kovner:

Along with the Cardozo Civil Rights Clinic, and Alexander A. Reinert, we represent Petitioners in the above the above-referenced case. We write to update the Court on the status of the four Petitioners, to briefly respond to Respondent’s April 7, 2020 submission, and to bring to the Court’s attention recent decisions that bear on Petitioners’ request for relief in this action.

With respect to the status of Petitioners’ request for compassionate release, we can report that each Petitioner has filed a motion with his respective sentencing Court seeking compassionate release pursuant to 18 U.S.C. § 3582. Today, the United States agreed that Mr. McBride satisfies the requirements for compassionate release and he is no longer in custody. As Respondent reported to the Court earlier today, the Government has not yet taken a position regarding the motions filed by each of the remaining Petitioners.

Petitioners’ request for a Temporary Restraining Order, seeking both release and appointment of a special master, is still pending before this Court. In light of this, we also wish to bring to the Court’s attention three recent decisions that bear on those requests. First, in Jones v. Wolf, No. 20 Civ. 361, 2020 WL 1643857 (W.D.N.Y. April 2, 2020), the court found that holding immigration detainees in federal detention, when they were particularly vulnerable to COVID-19 infection, amounted to deliberate indifference, and required the government to demonstrate how it would permit petitioners to practice the “social distancing” necessary to mitigate the risk of infection. Most relevant to this case, the court found that the petitioners were likely to succeed in showing that respondents exhibited deliberate indifference to the risk of harm posed by COVID-19 even though they admittedly had taken some steps to protect

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EMERY CELLI BRINCKERHOFF & ABADY LLP Page 2
immigration detainees from harm. Id. at 10-12. In particular, just as in this case, the respondents in Jones had taken no specific steps to protect those most vulnerable to COVID-19 infection. Id. at *12 (“In other words, the respondents have actual knowledge of serious risks to the health and well-being of individuals with the vulnerabilities identified by the CDC and have not taken adequate steps to protect the petitioners who have such vulnerabilities against those risks.”). Although the court found that the petitioners were likely to be able to show that they experienced unconstitutional conditions of confinement, it stopped short of release because the detention center in question was operating at half its total capacity, creating the possibility that the government could ameliorate the risk by dispersing people throughout the facility to practice social distancing. Id. at *14. The same cannot be said for the MDC, which as of April 2, 2020 was at or beyond capacity with 1734 incarcerated people.1
Second, in Hope v. Doll, No. 20 Civ. 562 (M.D Pa. April 7, 2020), the court granted petitioners’ request for a temporary restraining order and ordered that petitioners be released from immigration custody. That case, like Jones, also rested on deliberate indifference standards and specifically found that petitioners were likely to succeed in showing that the conditions violated both the Fifth and Eighth Amendments. Id. at 11 n.11.
Along similar lines, in Malam v. Adducci, No. 20 Civ. 10829, 2020 WL 1683453 (E.D. Mich. April 6, 2020), the court granted release to an immigration detainee pursuant to 28 U.S.C. § 2241 because there were no conditions under which petitioner could be constitutionally housed. As in Jones, the court found that even though respondents had taken precautionary measures, the petitioner was still likely to succeed in showing that the respondents acted with deliberate indifference by holding in confinement a person who was particularly vulnerable to COVID-19 infections. The court made this finding even though there had not yet been any confirmed positive cases at the facility where the petitioner was held.
Although all of these cases concerned people held on immigration violations, their reasoning applies to the instant case. The cases were premised on the fact, never disputed by Respondent here, that correctional facilities cannot adequately protect people vulnerable to COVID-19 without taking additional precautions. They focused on whether the respondents were acting with deliberate indifference to the risks of harm presented to older people and those who suffer from specific medical conditions heightening their risk of harm from a COVID-19 infection. And they all accepted the premise (and in two cases, acted on the premise) that Section 2241 is a valid means of obtaining release where petitioners are being held in unconstitutional conditions of confinement.
Finally, we wish to briefly respond to Respondent’s submission filed earlier today. First, although Respondent frames Petitioners’ current action as an attempt to “compel the Warden to reach a decision regarding their [compassionate release] requests,” it is quite the opposite. As Petitioners have steadfastly maintained, the existence of a potential compassionate release process has no bearing on their request for habeas corpus, because the existence of an alternative remedy for release is not a barrier to obtaining habeas relief. It is Respondent Edge who has
1 https://www.bop.gov/mobile/about/population_statistics.jsp

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sought to compel Petitioners to pursue the compassionate release remedy.
Second, as Respondent’s submission today demonstrates, the compassionate release process is not an alternative to the relief Petitioners are seeking through habeas and the pending motion for a temporary restraining order.2 It is clear that the process cannot provide the prompt relief sought by Petitioners in this action, inasmuch as it contemplates a delay of 30 days before Petitioners know whether they have satisfied the exhaustion requirement. It is thus no surprise that Judge Torres rejected the government’s exhaustion argument in a similar case on the grounds that it would be futile and impose undue prejudice given the COVID-19 pandemic. See United States v. Perez, No. 17 Cr. 513, 2020 WL 1546422, at *3 (S.D.N.Y. Apr. 1, 2020). Of course, Respondent’s extended disquisition on the law of exhaustion is of no relevance to this case, where no exhaustion argument has been raised in opposition to Petitioners’ habeas claims – if the government wishes to assert exhaustion in Petitioners’ pending filings seeking compassionate release, it may brief the matter there.
Finally, we note that the updated information provided by the MDC continues to show that they are failing to mitigate risk and to follow accepted correctional health practices, despite increasing numbers of reported positive cases and almost certainly increased positive cases amongst those who are not being tested and/or are asymptomatic. As of today, the BOP website reports two new positive cases in the MDC jail population and 6 positive cases for MDC staff members. As one court noted, “the MDC is no place for someone considered to be high risk for COVID-19,” going on to state that “by the warden’s own admission, the MDC ‘has not isolated its ‘at risk’ population at this time because the number of inmates who fall into this category is too large to contain and isolate on one or even two units.” United States v. Nkanga, No. 18 Cr. 713 (JMF), 2020 WL 1529535, at *2 (S.D.N.Y. March 31, 2020).
Petitioners have presented the Court with expert declarations that make clear that isolating and monitoring people with known risk factors is critical to mitigating their risk of death or serious illness. Dkt. 26-4 (Declaration of Dr. Homer Venters ¶ 6(e)). Furthermore, these experts have stated that everyone who has COVID-19 symptoms must also be tested in order to mitigate that risk. Id. ¶ 6(b); Dkt. 26-6 (Declaration of Dr. Robert L. Cohen ¶ 10). Dr. Cohen noted that the New York City jails are testing everyone with symptoms as well as some proportion of asymptomatic people with known exposure, a measure necessary to ensure the health and safety of incarcerated people, “because unlike nonincarcerated people, one cannot self-quarantine while incarcerated” Id. Contrary to that accepted standard, MDC has to date tested only seven incarcerated people, despite widespread reports of individuals with COVID-19 symptoms at MDC. See Letter Report to Chief Judge Mauskopf from MCC Warden Licon-Vitale dated April 7, 2020 (reporting that only seven people incarcerated at MDC have been tested); Dkt. 1 (Pet.) ¶ 66; Dkt. 12-2 (Rosenfeld Decl. dated March 30, 2020) ¶ 7; Dkt. 12-12 (Suppl. von Dornum Decl. ¶ 7) (reporting several symptomatic incarcerated people throughout the MDC).
2 For the first time, Respondent asserts in its letter that no Petitioner has appealed the Warden’s adverse determination of their compassionate release even though Petitioner’s counsel and the Court specifically asked Respondent’s counsel on Saturday, April 4, to consider each Petitioner to have filed an administrative appeal. If Respondent intended to ignore that request, it should have informed the parties and the Court prior to this evening.

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EMERY CELLI BRINCKERHOFF & ABADY LLP Page 4
Respectfully submitted, /s
Katherine Rosenfeld
c.: All Counsel (via ECF)

 
 Case 1:20-cv-01590-RPK-RLM Document 52 Filed 04/17/20 Page 1 of 4 PageID #: 834

RICHARD D. EMERY ANDREW G. CELLI, JR. MATTHEW D. BRINCKERHOFF JONATHAN S. ABADY EARL S. WARD ILANN M. MAAZEL HAL R. LIEBERMAN DANIEL J. KORNSTEIN O. ANDREW F. WILSON ELIZABETH S. SAYLOR KATHERINE ROSENFELD DEBRA L. GREENBERGER ZOE SALZMAN SAM SHAPIRO

EMERY CELLI BRINCKERHOFF & ABADY LLP
ATTORNEYS AT LAW 600 FIFTH AVENUE AT ROCKEFELLER CENTER
10TH FLOOR NEW YORK, NEW YORK 10020
TEL: (212) 763-5000 FAX: (212) 763-5001 www.ecbalaw.com

DIANE L. HOUK
EMMA L. FREEMAN DAVID BERMAN HARVEY PRAGER
SCOUT KATOVICH NICK BOURLAND ANDREW K. JONDAHL ANANDA BURRA
MAX SELVER

April 17, 2020
Hon. Rachel P. Kovner United States District Judge United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201
Re: Hassan Chunn et al. v. Warden Derek Edge, 20 Civ. 1590
Dear Judge Kovner:
Along with the Cardozo Civil Rights Clinic, and Alexander A. Reinert, we represent Petitioners in the above the above-referenced case. In advance of today’s 1:00 pm teleconference, Petitioners submit this letter concerning the parameters of Dr. Venters’ Rule 34 inspection of the Metropolitan Detention Center next week.
I. Duration
Petitioners’ counsel have conducted numerous Rule 34 inspections of prisons and jails, which have typically lasted a full day or multiple full days. We recognize the need for a durational limitation here given current circumstances, and while Dr. Venters will not stay in the facility any longer than necessary to conduct a proper inspection, two hours would not provide adequate time for him to inspect MDC. Petitioners are aware of no authority requiring such a stringent durational limit on a Rule 34 inspection of a correctional facility. Cf. Gumm v. Sellers, No. 5 15-CV-00041, 2017 WL 5885315, at *1 (M.D. Ga. Oct. 20, 2017) (ordering Defendants to permit Plaintiff’s expert to inspect prison unit for nine hours).
II. Date and Time
Petitioners have requested an inspection date during the early part of next week in order to give Dr. Venters adequate time to produce a report in advance of the April 28, 2020 filing deadline for Petitioners’ preliminary injunction motion. As we understand from Respondent, there are certain days of the week (Tuesday and Thursday not being among them) that provide greater challenges for Respondent because of movement within the facility. Therefore,

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Petitioners request that the tour be conducted on Tuesday. Dr. Venters has already submitted his security clearance form and our understanding from past experience is that clearance can be obtained quickly.
III. Locations
The parties agree that the following areas should be inspected by Dr. Venters: (1) one housing unit not under quarantine or isolation; (2) the intake unit; and (3) one quarantine unit. The parties also agree that Dr. Venters should inspect (4) one isolation unit, although Petitioners request that it specifically be K84 and Respondent does not specify.
Petitioners request that Dr. Venters inspect K84 because we understand that the MDC is using on Unit K84 as the primary isolation unit for symptomatic people, and the MDC has placed individuals diagnosed with COVID-19 on Unit K84 For this reason, it is critical that Dr. Venters personally see this isolation unit and evaluate conditions for isolation and treatment in real time.
In order to assess the MDC’s overall ability to provide medical care to Petitioners during this pandemic, Dr. Venters must inspect the Health Services Offices and Exam Rooms, which are the medical areas not located on housing units (item 7 on the Petitioners’ list). Petitioners allege that: the MDC lacks adequate medical infrastructure to address the spread of infectious disease and treat the people most vulnerable to COVID-19 (Pet. ¶ 58); the MDC lacks specialized equipment necessary to treat people who contract COVID-19 (Pet. ¶ 83); and that the MDC’s available spaces for treatment and convalescence are inadequate (Pet. ¶ 80). Dr. Venters needs to view and evaluate the medical areas of the facility, both with respect to their current usage and future capacity. The Government suggests that Dr. Venters should be limited to viewing clinical areas where patients are currently being treated. But that position assumes that current treatment spaces are adequate, and also ignores that as the pandemic expands within the facility, the MDC will need more clinical space, and increased capacity in treatment spaces outside the housing units. If the MDC lacks additional clinical space available beyond the housing units, or if that space is insufficiently equipped or inadequate, those facts are relevant to Dr. Venters’ evaluation of the facility’s preparedness to treat people like Petitioners who may be sickened by COVID-19.
With respect to the SHU, we understand that the MDC has placed some people who are symptomatic in SHU and thus the conditions there are relevant. Judge Torres herself visited the SHU during her inspection in 2019, and spoke to each person confined there. Counsel for Petitioners has previously visited clients in the MDC SHU, and has also inspected the SHU portions of other prisons and jails. The security in SHU is the highest in the facility, because each person is individually confined in a cell, thus any security issues are in fact lessened in the SHU vis-à-vis more open units. People in the SHU exist in the most restricted and confined conditions in the MDC, and absent the ability to inspect these conditions, Dr. Venters cannot reasonably assess the facility’s conditions.
Finally, with respect to the Kitchen, we have received reports that people preparing food in the facility have shown symptoms of COVID-19, and that the sanitation conditions for food

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preparation are inadequate (for example in terms of PPE). Dr. Venters should be permitted to see for himself how food is being handled and prepared, and conditions for workers therein.
IV. Conversations with Incarcerated People
The Court’s April 15, 2020 Order directed the parties to attempt to reach agreement on the “protocol for such conversations.” Here, Respondent asks that the Court prohibit Dr. Venters from speaking to individuals during his inspection. For the reasons addressed fully during the April 13, 2020 teleconference, it is critical for Dr. Venters to be able to speak with these individuals during the inspection.
Petitioners’ proposed protocol, that Dr. Venters be permitted to conduct brief cell-side interviews and interviews with incarcerated people who may be working or moving about the facility, as Judge Torres did during last year’s blackout at MDC, is necessary for Dr. Venters to properly understand and evaluate the facility’s COVID-19 response. See United States v. Segura-Genao, 1:18-Cr-00219, ECF No. 83. To the extent feasible, these interviews should be confidential, so that these individuals feel they can speak freely about medical concerns with Dr. Venters and to avoid concerns they may have about retaliation based on what they tell him. See Gumm, 2017 WL 5885315, at *1.
Respondent’s only proffered objection is that they would like to personally listen to Dr. Venters’ interviews in order to confirm that he is later accurately representing his conversations in his report. Dr. Venters is a highly reputable, longtime public servant and physician who has worked in correctional settings and non-profit organizations; he should be trusted to truthfully report to the Court what people tell him in these conversations.
V. Participants from Petitioners’ Side
Respondent objects to allowing Deirdre von Dornum, Attorney-in-Chief of the Federal Defenders in the Eastern District, to participate in the inspection because she is not counsel of record in this case. Ms. von Dornum’s participation is critical, in order to address concerns about speaking with clients who are represented by criminal counsel, as the parties discussed with the Court and as the Court noted in its April 15, 20202 Order. Ms. von Dornum also has deep knowledge of the MDC, has toured the facility previously, and can assist Dr. Venters, especially given that he will not be permitted to speak with staff during the inspection.
VI. Hand Sanitizer
Respondent objects to allowing Petitioners’ counsel and Dr. Venters to bring with them hand sanitizer for personal use during the tour because it contains alcohol. Counsel and Dr. Venters do not plan to bring in great quantities of hand sanitizer and they should be trusted as officers of the Court and a medical professional, respectively, not to distribute it to individuals within the MDC in contravention of the facility’s rules. Respondent also notes that non-alcohol based hand sanitizer is available in certain locations. However, the CDC only recommends alcohol-based hand sanitizer as effective against the coronavirus. See https://www.cdc.gov/coronavirus/2019-ncov/hcp/hand-hygiene.html. See also, Valentine v.

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Collier, 20-CV-1115 (S.D. Tx April 16, 2020) Order, ECF No. 40 (granting preliminary injunction requiring, inter alia, Texas prison to provide alcohol-based hand sanitizer)

cc: All Counsel (via ECF)

Respectfully Submitted, /s
Katherine Rosenfeld

 
 Case 1:20-cv-01590-RPK-RLM Document 37 Filed 04/10/20 Page 1 of 10 PageID #: 495 U.S. Department of Justice
United States Attorney Eastern District of New York 271 Cadman Plaza East Brooklyn, New York 11201
April 10, 2020
By ECF (w/ enclosure)
Honorable Rachel P. Kovner United States District Judge United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201
Re: Chunn, et al. v. Warden Derek Edge, Civil Action No. 20-cv-1590 (Kovner, J.)
Dear Judge Kovner:
Following the denial of Petitioners’ motion for a temporary restraining order (TRO),1 and pursuant to the Court’s April 8, 2020 Order, Respondent Warden Derek Edge respectfully submits his position on the course of this litigation and the parties’ proposed discovery plan.
On April 8, 2020, the Court denied Petitioners’ TRO motion. Dkt. Entry dated April 8, 2020. Petitioners then requested permission to engage in expedited discovery in connection with their anticipated motion for a preliminary injunction. The Court ordered the parties to meet and confer regarding a proposed discovery plan. Dkt. Entry dated April 8, 2020. To date, Petitioners have not moved for a preliminary injunction, nor moved for class certification.
Counsel for all parties have met and conferred in good faith in an effort to agree on the terms of a proposed discovery plan. Unfortunately, the parties have been unable to reach an agreement on all terms of the plan. The parties’ proposed case management plan with the parties’ respective position on discovery is annexed hereto.
Respondent respectfully submits his position regarding discovery below.
I. Petitioners Have Failed To Show Good Cause For Discovery
“A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997). As discussed below, Petitioners have not shown good cause for discovery in this matter.
1 Two of the Petitioners, Chunn and McBride, have received the injunctive relief they sought via the grant of their motions for compassionate release and, therefore, are not in a position to pursue injunctive relief here.

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A. Habeas Actions Typically Do Not Require Discovery
There is no significant history of discovery in habeas cases prior to 1969, and there has never been a suggestion that the Constitution requires discovery in such proceedings. See Harris v. Nelson, 394 U.S. 286, 293 (1969) (in concluding that Federal Rules of Civil Procedure on discovery do not apply to habeas proceedings, explaining that “prior to [the promulgation of the federal rules in] 1938” there was no showing made that “discovery was actually being used in habeas proceedings”). In fact, it was “not until many years later” that factual questions were even considered in federal habeas cases, making it inconceivable that discovery would be an essential component of the writ. Id. at 295.
Thus, in the instant constitutionally-based habeas proceeding (Petition ¶¶ 119-20) (Dkt. No. 1), there can be no question that the relevant settled habeas practice—not only in 1789, but for almost two centuries thereafter—would preclude discovery. See Harris, 394 U.S. at 295. That habeas practice of 1789 did not contemplate discovery or fact-finding by the habeas petitioner is clear. Indeed, “[o]ne of the maxims of eighteenth-century habeas corpus practice had been that the petitioner could not controvert the facts stated in the return.” Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 COLUM. L. REV. 961, 986 n.131 (1998) (citing, inter alia, R.J. Sharpe, The Law of Habeas Corpus 61-68 (1976)). The facts alleged by the Executive to continue to hold an individual “were to be taken as true, and the court was to determine whether the justification was legally sufficient.” Id. Even in executive detention cases, courts traditionally conducted only limited factual review. See INS v. St. Cyr, 533 U.S. 289, 306 (2001) (“some evidence” review). While courts from the period permitted the prisoner to “allege additional facts consistent with the return that might rebut the appearance of justification,” Neuman, 98 COLUM. L. REV. at 986 n. 131, that was not a constitutional requirement and certainly did not suggest that discovery was ever appropriate.
The Supreme Court has thus held, for example, that in view of the history of the writ and the intended scope of the Federal Rules of Civil Procedure a petitioner does not have the right to serve interrogatories on his custodian (although the Federal Rules would otherwise allow for broad discovery in civil suits). Harris, 394 U.S. at 292-98. Significantly, in 1938, when the federal rules were initially adopted, the expansion of statutory habeas corpus practice to its present scope was only in its primordial stages. Mooney v. Holohan, 294 U.S. 103, 113 (1935); Johnson v. Zerbst, 304 U.S. 458, 459 (1938); Waley v. Johnston, 316 U.S. 101, 102 (1942). And it was not until many years later that the federal courts considering a habeas corpus petition even began to make an independent determination of the factual basis of claims that state convictions had violated the petitioner’s federal constitutional rights. See Brown v. Allen, 344 U.S. 443, 447-48 (1953).
That the Constitution did not require such innovations to the habeas practice of 1789 is demonstrated by the need for subsequent legislation to expand fact-finding authority of federal courts, which did not occur until after the Civil War. See Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385 (stating that a “petitioner may deny any of the material facts set forth in the return, or may allege any fact to show that the detention is in contravention of the constitution or laws of the United States,” and requiring the federal court to “proceed in a summary way to determine the facts of the case, by hearing testimony and the arguments of the parties interested”). And it was in 1890 that the Supreme Court, citing the Civil War era statute, held that the federal courts could
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have a proper role in determining certain non-jurisdictional facts. See Cunningham v. Neagle, 135 U.S. 1, 70-75 (1890). The statutory expansion of the fact-finding role only proves the point that such functions are never constitutionally required. So too here. While Petitioners may provide their own evidence and version of events for this Court’s consideration, any discovery they may be granted from the Government is a matter of Executive discretion rather than a constitutional entitlement.
Modern developments in statutory habeas procedure cannot alter this constitutional ceiling. Thus, it is of no moment that in Harris the Court interpreted the All Writs Act, 28 U.S.C. § 1651, to authorize limited discovery in statutory habeas cases at the discretion of the court. Indeed, the fact that discovery, even in modern statutory habeas cases, is entirely discretionary, see Harris, 394 U.S. at 300, Habeas Rule 6(a), provides a complete answer to the question whether it is constitutionally required. Moreover, recent developments in habeas practice cannot alter the fact that there was no constitutional requirement for discovery in habeas cases. The Suspension Clause of the Constitution cannot operate as a “one-way ratchet that enshrines in the Constitution every grant of habeas jurisdiction” conferred by statute or judge-made common law, see St. Cyr, 533 U.S. at 341-42 (Scalia, J., dissenting), for if it did, then the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which limited state prisoners’ access to the writ, would be unconstitutional, a proposition the Supreme Court rejected in Felker v. Turpin, 518 U.S. 651, 66264 (1996) (“judgments about the proper scope of the writ are ‘normally for Congress to make’”) (citation omitted). Thus, there is significant support for the historical approach to habeas as providing the constitutional ceiling. See Swain v. Pressley, 430 U.S. 372, 384-85 (1977) (Burger, C.J., concurring in part and concurring in the judgment); Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 47 U. CHI. L. REV. 142, 170 (1970). Congress’s repeal of habeas jurisdiction, in conjunction with the fact that constitutionally derived habeas corpus does not require discovery, is therefore fatal to the claim that discovery is appropriate in these proceedings.
B. Petitioners Fail to Show Good Cause Here
“Discovery is available only if the judge in the exercise of his discretion and for good cause shown grants leave.” Lonchar v. Thomas, 517 U.S. 314, 326 (1996) (citations omitted); see also Drake v. Portuondo, 321 F.3d 338, 346 (2d Cir. 2003) (petitioners are generally “not entitled to discovery as a matter of ordinary course . . . [unless there has been] a showing of good cause.”) (citations omitted). “In order to show good cause, a petitioner must set forth specific allegations that provide reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is entitled to relief.” Cobb v. Unger, No. 1:09-CV-0491, 2013 WL 821179, at *2 (W.D.N.Y. Mar. 5, 2013) (internal quotation marks omitted); see also Horton v. Recktenwald, No. 15-CV-843, 2017 WL 2964726, at *3 (W.D.N.Y. Feb. 6, 2017) (finding that the petitioner failed to establish good cause for discovery because he did “not specifically allege[] that the requested discovery would help him demonstrate his entitlement to habeas relief”).
Here, Petitioners have not shown “good cause” to obtain any discovery in the litigation. In denying Petitioners’ TRO motion, the Court expressly ruled that Petitioners have not “demonstrate[d] irreparable harm and either (1) a likelihood of success on the merits or (2) sufficiently serious questions on the merits to make them a fair ground for litigation and a balance
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of hardships tipping decidedly in the moving party’s favor.” Towers Financial Corp. v. Dun & Bradstreet, Inc., 803 F. Supp. 820, 822 (S.D.N.Y. 1992) (citing Local 1814 Int’l Longshoremen’s Assoc. AFL-CIO v. New York Shipping Assoc., Inc., 965 F.2d 1224, 1228 (2d Cir. 1992)); Perez v. U.S., No. 14 Civ. 846 (NRB), 04 Cr. 937-1 (NRB), 2015 WL 3413596, at *5 (S.D.N.Y. May 8, 2015) (denying motion for discovery in habeas case where the petitioner failed to show good cause because petitioner’s argument was clearly legally insufficient). Thus, Petitioners are not entitled to discovery, and certainly not expedited discovery, because they cannot show (1) irreparable injury; (2) some probability of success on the merits; (3) some connection between the expedited discovery and avoidance of irreparable injury; and (4) some evidence that the injury that will result without expedited discovery looms greater than the injury defendant will suffer if the expedited discovery is allowed. See Litwin v. OceanFreight, Inc., 865 F. Supp. 2d 385, 402 (S.D.N.Y. 2011) (holding that expedited discovery was not warranted in shareholder’s putative class action against corporation, seeking temporary restraining order and preliminary injunction because shareholder had not demonstrated injury or probability of success on merits, shareholder’s discovery requests had been unreasonable, and shareholder had not offered concrete basis justifying expedited discovery); see also Irish Lesbian & Gay Org. v. Giuliani, 918 F. Supp. 728, 731 (S.D.N.Y. 1996) (denying plaintiff’s expedited discovery request as “a broadside not reasonably tailored to the time constraints under which both parties must proceed or to the specific issues that will have to be determined at the preliminary injunction hearing”).
The standard for obtaining a preliminary injunction is the same as the standard for obtaining a temporary restraining order. See, e.g., EricMany Ltd. v. Agu, No. 16-CV-2777, 2016 WL 8711361, at *2 (E.D.N.Y. June 3, 2016); Oliva v. Brookwood Coram I, LLC, No. 14-CV2513, 2015 WL 3637010, at *1 (E.D.N.Y. Apr. 30, 2015); Von Grabe v. Ziff Davis Publishing, No. 91 Civ. 6275, 1994 WL 719697, at *1 (S.D.N.Y. Dec. 29, 1994). The Court has already denied Petitioners’ motion for a TRO and they have failed to demonstrate any additional factors, not already raised in this action, that would entitle them to expedited discovery, let alone to preliminary injunctive relief.
Petitioners have not articulated why BOP’s current submissions to the Court, pursuant to Administrative Order No. 2020-14, are insufficient. See Garafola v. United States, 909 F. Supp. 2d 313, 335 (S.D.N.Y. 2012) (denying discovery in a habeas proceeding where petitioner failed to “articulate sufficient reasons as to why [the court] should permit the requested discovery,” and rather, the petitioner’s request for broad discovery “constituted a fishing-expedition.”) (internal quotations omitted); see also Levitis v. Petrucci, No. 19-CV-918 (JPO), 2019 WL 3531565, at *4 (S.D.N.Y. Aug. 2, 2019) (finding that the habeas petitioner has “not shown good cause for the discovery he requests.”). Respondent is already providing, pursuant to Administrative Order No. 2020-14, detailed information to the Court regarding conditions at the MDC; protocols for screening and testing inmates, staff and others entering or leaving each facility; the number of inmates tested and the number of positive inmate tests; the number of staff and/or others testing positive; and all efforts undertaken to mitigate the spread of COVID-19 both generally and in response to any symptomatic inmate(s) and/or positive test(s).
Indeed, Petitioners’ claims are based entirely on “speculation and conjecture.” Rodriguez v. Griffin, No. 9:16-CV-1037, 2018 WL 6505808, at *28 (N.D.N.Y. Dec. 11, 2018) (finding that the petitioner failed to establish good cause to permit discovery in a habeas action). “Generalized
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statements about the possible existence of discovery material are insufficient to establish the requisite ‘good cause.’” Caswell v. Racetti, 11-CV-00153A (F), 2012 WL 162611, at *3 (W.D.N.Y. Jan. 17, 2012) (quoting Green v. Artuz, 990 F. Supp. 267, 271 (S.D.N.Y. 1998)). The court also noted that “the [c]ourt may, in its discretion, deny discovery where the petitioner provides no specific evidence that the requested discovery would support his habeas corpus petition.” Id. (quoting Hirschfeld v. Comm’r of the Div. of Parole, 215 F.R.D. 464, 465 (S.D.N.Y. 2003) (internal alterations omitted)).
Accordingly, Petitioners have not shown good cause for discovery here.
II. The Court Should Stay Any Discovery Because Respondent Anticipates Moving To Dismiss The Habeas Petition
As noted supra, Petitioners have represented that they intend to file a motion for a preliminary injunction, notwithstanding the Court’s decision denying their TRO. In their proposed schedule, Petitioners intend to file the motion within 12 days (by April 22). Respondent will oppose any motion for a preliminary injunction, but also intends to move to dismiss the habeas petition on the grounds that it is deficient as a matter of law. We respectfully request the following briefing schedule: Respondent’s motion to dismiss due by April 24, 2020; Petitioners’ response due by May 8, 2020; and Respondent’s reply due by May 15, 2020.
Petitioners are of the view that discovery is needed here and is needed at the very outset of the case. That is hardly so on a motion to dismiss that will address the straightforward question of the sufficiency of Petitioners’ claim of constitutional violations at the MDC. Whether the habeas petition is deficient as a matter of law is not an inquiry that discovery would advance. The Court should therefore stay discovery based on Respondent’s anticipated dispositive motion. See Spencer Trask Software & Info. Servs., LLC v. RPost Int’l Ltd., 206 F.R.D. 367, 368 (S.D.N.Y. 2002) (granting stay of discovery pending disposition of the motion to dismiss).
III. Petitioners’ Proposed Discovery Plan Is Unreasonable
In the event the Court were to order the parties to commence limited discovery, notwithstanding Respondent’s objection to conducting any discovery at this stage of the litigation, the parties do agree on the following items: (1) the parties agree on a period for written and oral discovery; (2) the parties agree on a procedure for resolution of discovery disputes before the Court; and (3) the parties agree on a period for expert discovery.
The parties, however, have not been able to reach agreement, in particular, on the scope and time period for discovery.
Petitioners have not demonstrated any need for expedited discovery particularly in light of the Court’s decision to deny Petitioners’ emergency motion for a temporary restraining order finding no irreparable harm in the absence of their immediate release. In fact, two of the Petitioners, Chunn and McBride, have already obtained release. To the extent the two remaining Petitioners, Rodriguez and Rabadi, seek immediate relief, they already have filed motions with their sentencing judges for release pursuant to 18 U.S.C. § 3582(c)(1)(A), and have argued for
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release, in part, based on the same allegedly unconstitutional conditions of confinement that they assert in this case. If those sentencing judges deny Petitioners’ request for early release notwithstanding the allegedly unconstitutional conditions of confinement that Petitioners have argued before those sentencing judges, there would be no need for any discovery at all, much less expedited discovery, based on the findings of those sentencing judges.
Respondents are unable to agree at this time to Petitioners’ unreasonable request for expedited discovery because Petitioners have failed to describe with any specificity the scope and nature of the discovery that they anticipate seeking and whether Petitioners’ proposed expedited timeline is reasonable, practical or even feasible.
For example, Petitioners’ discovery schedule provides Respondent only three business days to respond to requests for documents, a Fed. R. Civ. P. 30(b)(6) Notice, and Notice of Inspection (i.e., from late in the afternoon on Friday, April 10, 2020, when Petitioners served their Notice of Inspection and Document Demands, and Sunday, April 12, 2020 (Easter) when they intend to serve their 30(b)(6) notice of deposition, until April 15, 2020). Petitioners then provide only one day to meet and confer regarding any objections, before seeking Court intervention (from April 15 to April 16). The Federal Rules contemplate and encourage the parties to meet and confer in good faith prior to seeking the Court’s intervention to address any discovery disputes. One day to resolve those disputes is hardly sufficient to give the parties an opportunity to resolve those disputes without prematurely burdening the Court with matters that the parties could resolve on their own. Petitioners ultimately seek to complete discovery within eight business days or twelve calendar days (from April 10 to April 22).
In the parties’ proposed case management plan, Petitioners ostensibly seek only “three documents” but, as their description of those documents make clear, they actually seek a myriad of documents relating to hundreds of inmates’ private medical files and internal BOP records. Indeed, it appears that Petitioners request, among other things, three “types” of documents, as well as an onsite inspection, expert discovery, and depositions. Further, while Petitioners state that they seek only one 30(b)(6) witness, without having seen Petitioners’ 30(b)(6) notice, Respondent cannot ascertain at this time whether only one witness would be sufficient to respond to the areas of inquiry identified in any forthcoming 30(b)(6) notice. It is also unclear if Petitioners will be seeking any document discovery in connection with their requested Fed. R. Civ. P. 30(b)(6) witness.
The Court should be mindful that BOP staff, who are working around the clock at the MDC, to safeguard the inmates under their care and supervision, would have the added responsibility of collecting information and responding to Petitioners’ discovery demands, all while performing their normal duties. To put it simply, it is impossible for Respondent to comply with Petitioners’ proposed discovery schedule. Petitioners’ schedule would force MDC officials to turn away from their essential job duties—including their continued work ensuring the safety of inmates and staff members alike during a global pandemic—and instead spend their limited time sifting through paper discovery and responding to overly burdensome requests. Specifically, Petitioners’ schedule would require, at an absolute minimum, the following, all within 48 hours of obtaining the requests: (1) the identification of custodians likely to possess responsive records; (2) the retrieval (in a forensically sound manner) of potentially responsive records; (3) the processing
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of those records on an electronic-review platform; (4) document-by-document, line-by-line review of individual records for responsiveness; (5) the identification of any applicable privileges (including, where applicable, coordination with other agencies to ascertain whether and under what circumstances privilege should be asserted); (6) creation of a privilege log consistent with this Court’s Local Rules; and (7) an agreement on confidentiality or protective order regarding any sensitive materials.
The President of the United States2 and the Governor of New York State3 have both called the current pandemic a “war.” BOP officials must not be wrested “from the battlefield to answer compelled deposition and other discovery inquiries.” In re Iraq & Afghanistan Detainees Litig., 479 F. Supp. 2d 85, 105 (D.D.C. 2007), aff’d sub nom. Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011). The Court should not order Respondent to attempt to produce discovery on such an impossible schedule. See Am. Hosp. Ass’n v. Price, 867 F.3d 160, 166 (D.C. Cir. 2017) (ordering the impossible is an abuse of discretion).
Respondent simply cannot agree to the aggressive, expedited and wholly unwarranted discovery plan Petitioners propose.
IV. To The Extent Petitioners Seek Class Discovery, Respondent Objects To Any Class Discovery At This Time And Requests That Discovery Should be Limited to Petitioners Only
With respect to class certification, during the meet and confer, when asked whether Petitioners anticipated seeking discovery at this time relating to class certification, Petitioners could not confirm either way. Instead, Petitioners’ counsel responded that they will be seeking discovery as it relates to all inmates at the MDC, including putative class members. In Petitioners’ proposed discovery plan, they fail to provide any deadlines as it relates to class certification and, presumably, do not intend to seek discovery relating to class certification at this time.
However, without a commitment from Petitioners that they will not seek class discovery at this time, Respondent still does not know the full scope of Petitioners’ anticipated discovery. If Petitioners were to seek class discovery at this time, Respondent would object to any such discovery.
At this stage in the litigation, where Petitioners have not even formally moved for class certification, Petitioners are not entitled to unfettered, class-wide discovery on the merits of the class claims. Indeed, Petitioners currently have standing only to pursue the remaining individual claims and to seek to have the proposed class certified. At the pre-class certification stage, discovery in a putative class action is generally limited to issues surrounding certification, such as the number of class members, the existence of common questions, the typicality of claims, and the
2 Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Briefing (Mar. 19, 2020), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-vicepresident-pence-members-coronavirus-task-force-press-briefing-6/ 3 Joanna Walters, “This is a war:” Cuomo warns coronavirus could overwhelm New York healthcare, Guardian (Mar. 19, 2020), https://www.theguardian.com/world/2020/mar/19/coronavirus-new-york-cuomo-healthcareoverwhelmed-please
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representative’s ability to represent the class. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 359 n.13 (1978). Utilizing putative class discovery “is within the discretion of the court, but it should not be used ‘when it only will confuse the absentees, some class members can demonstrate that it will prejudice their rights, it will be employed prematurely or administered in an inappropriate fashion, or it will serve only to reduce the efficiencies of the class action.’” Hapka v. Carecentrix, Inc., No. 16-2372-CM-KGG, 2017 WL 3386253, at *1 (D. Kan. Aug. 7, 2017) (citation omitted). Such confusion for absentee class members will definitely occur here, as many members of Petitioners’ putative class are already seeking relief through other means before their sentencing judges in courts in this District, the Southern District of New York, and likely elsewhere.
Moreover, Petitioners have not articulated why class discovery is necessary when they have not even taken the steps necessary to move to certify a class. Indeed, providing civil discovery to Petitioners’ putative class—which, as defined in the Petition, would include pre-trial detainees— would only circumvent the limitations placed on discovery in criminal matters. Allowing liberal civil discovery to proceed would subvert the restrictions placed on the discovery available to criminal defendants. See Twenty First Century Corp. v. LaBianca, 801 F. Supp. 1007, 1010 (E.D.N.Y. 1992) (“Allowing civil discovery to proceed—including the deposition of defendant Redzinski—may afford defendants an opportunity to gain evidence to which they are not entitled under the governing criminal discovery rules.”). Importantly, in criminal proceedings, the Government’s constitutional discovery obligation (as distinct from obligations under Rule 16 of the Federal Rules of Criminal Procedure) is defined by Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and related precedents (together, “Brady”). Thus, beyond the required production of material exculpatory evidence under Brady, “[t]here is no general constitutional right to discovery in a criminal case.” Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Accordingly, in the criminal context, it is well established that the Due Process Clause requires no open-ended discovery beyond the prosecution’s Brady obligations. Id.; see Gray v. Netherland, 518 U.S. 152, 167-68 (1996); Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987) (“[a] defendant’s right to discover exculpatory evidence does not include the unsupervised authority to search through the [Government’s] files”); Kyles v. Whitley, 514 U.S. 419, 437 (1995) (“We have never held that the Constitution demands an open file policy (however such a policy might work out in practice)”); Fed. R. Crim. P. 16, 1975 Advisory Committee Notes (“the defendant has no constitutional right to discover any of the prosecution’s evidence (unless it is exculpatory within the meaning of Brady)”). Requiring discovery here, in the civil habeas/class context, is therefore inappropriate.
The named Petitioners bear the burden of proof in moving for class certification: they must demonstrate that the case meets all of the requirements of Rule 23(a), fits into one of the categories of Rule 23(b) and that counsel meets the requirements of Rule 23(g). If facts are contested with regard to any of these issues, the Petitioners are entitled to develop those facts through the formal discovery process. Correlatively, the Respondent is entitled to utilize those same discovery devices to demonstrate that the facts cut against certification. The Supreme Court continues to caution that “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are
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satisfied.” Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, 133 S. Ct. 1184, 119495 (2013).
The Court has already acknowledged that the proposed class includes hundreds of individualized concerns relating to whether the class member’s release would pose risks to the community for dangerousness or flight. The Court has acknowledged that the Eighth Amendment analysis for the class—which Petitioners now assert consists of the 537 inmates classified as vulnerable by the MDC Warden—as detailed by Petitioners’ counsel, would not allow any Special Master appointed to consider that class member’s dangerousness or risk of flight. See April 1, 2020 Transcript (“Tr.”) 81:1-7; 70:4-10 (Petitioners argue that for the four named petitioners the only relevant inquiry regarding release is whether they are “at risk”); 77:4-5, 19-20 (Petitioners stating only that dangerousness or risk of flight “could be relevant” and “maybe those considerations would come into play”). The Court also noted that the Special Master, as proposed by Petitioners, “would be very quickly addressing claims on the merits of a very large class of individuals at MDC” Tr. 112:23-25, causing the Court to question whether this action is “an appropriate class action when there are … individual issues that would go to release, individual issues that could go to the medical circumstances [for an Eighth Amendment analysis].” Tr. 113:36. Accordingly, given the concerns already raised by the Court vis-à-vis the propriety of a class action to make 537 separate determinations relating to release of these inmates, any discovery requested by Petitioners in connection with their class allegations should be denied as premature.
Because Petitioners set forth no schedule for pre-certification discovery, the Court should not permit any discovery relating to class certification or discovery relating to any inmate other than the two remaining Petitioners at this time.
V. If The Court Were To Permit Some Discovery, The Court Should So Order Respondent’s Reasonable Discovery Plan
In the event that the Court permits limited discovery here, Respondent’s proposed discovery plan provides for a reasoned and principled approach to discovery that balances the need for expedited discovery, while recognizing that discovery must be proportional to the needs of the case and not overly burdensome. Respondent’s proposed discovery plan provides for the parties to complete expedited discovery -- with time limits shorter than those set forth in the Federal Rules -- within less than two months.
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Respondent thanks the Court for its consideration of this matter.

Respectfully submitted,

RICHARD P. DONOGHUE United States Attorney

By:

/s/

James R. Cho

Seth D. Eichenholtz

Joseph A. Marutollo

Paulina Stamatelos

Assistant U.S. Attorneys

(718) 254-6519/7036/6288/6198

james.cho@usdoj.gov

seth.eichenholtz@usdoj.gov

joseph.marutollo@usdoj.gov

pauline.stamatelos@usdoj.gov

Enclosure

cc: The Honorable Roanne L. Mann, U.S. Magistrate Judge All Counsel of Record (by ECF)

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Case 1:20-cv-01590-RPK-RLM Document 37-1 Filed 04/10/20 Page 1 of 5 PageID #: 505

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------x
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI by his Next Friend Migdaliz Quinones; and JUSTIN RODRIGUEZ by his Next Friend Jacklyn Romanoff, individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.
---------------------------------------------------------x

Civil Action No. 20-CV-1590 (Kovner, J.)

[PROPOSED] CASE MANAGEMENT PLAN
The parties in the above-referenced matter submit the following proposed case management plan pursuant to the Court’s April 8, 2020 Order, as follows:
A. As set forth in Respondent’s separate letter-motion, dated April 10, 2020, Respondent objects to any discovery at this stage of the litigation because Petitioners have failed to demonstrate good cause for discovery. In habeas cases, Petitioners are required to demonstrate good cause for conducting discovery.
Petitioners’ position. As will be set forth in greater detail in response to Respondents’ letter-motion, Petitioners can demonstrate good cause for the limited expedited discovery they seek in support of the imminent filing of their motion for a preliminary injunction. Petitioners request leave to respond to Respondents’ letter-motion for a stay of discovery by 5 p.m. on Saturday April 11, 2020.
B. Respondent’s request for a stay of discovery. As set forth in Respondent’s separate letter-motion, dated April 10, 2020, Respondent anticipates moving to dismiss Petitioners’ habeas petition. Respondent requests a stay of discovery pending motion practice on Respondent’s anticipated motion to dismiss.
Respondent proposes the following schedule with respect to his anticipated motion to dismiss:
- Respondent’s motion to dismiss due by April 24, 2020;
- Petitioner’s response due by May 8, 2020; and
- Respondent’s reply due by May 15, 2020.

Case 1:20-cv-01590-RPK-RLM Document 37-1 Filed 04/10/20 Page 2 of 5 PageID #: 506

Chunn et al. v. Edge, No. 20-CV-1590 [Proposed] Case Management Plan

Petitioners’ position. Petitioners intend to oppose Respondents’ request for a stay of discovery pending motion practice on Respondent’s anticipated motion to dismiss. Petitioners request that Respondents be directed to file their motion by Thursday, April 16, 2020 in accordance with the statutory maximum timeframe provided for response to a habeas petition pursuant to 28 U.S.C. § 2243.
C. Proposed discovery schedule.

Respondent’s position. As set forth in Respondent’s separate letter-motion, dated April 10, 2020, Respondent objects to any discovery at this time.

Petitioners’ position. As will be set forth in Petitioners’ separate opposition to Respondent’s letter-motion, Petitioner seeks to pursue limited expedited discovery at this time in support of their contemplated motion for a preliminary injunction. Specifically, Petitioners seek to conduct one 30(b)(6) deposition, and request that Respondent produce three documents: (1) Testing protocols for Covid-19 in effect at the MDC from February 1, 2020 to date; (2) Documents sufficient to show how much soap was received at the MDC from February 1, 2020 to date and (3) All sick call requests for medical care made by people incarcerated at MDC from March 13, 2020, in redacted form to omit the person’s name and DIN number. Petitioners also seek to have their correctional health expert Dr. Homer Venters conduct an inspection of the MDC pursuant to a Notice of Entry on Land served on Respondent on April 10, 2020.

In the event the Court orders discovery, Respondent objects to Petitioners’ request for expedited discovery, and sets forth his proposed deadlines below. By proposing these alternative dates, Respondent does not waive any objections or concede in any way that the discovery sought is appropriate, or should be permitted including, but not limited to, an inspection of the Metropolitan Detention Center, Brooklyn, and reserves his right to raise any applicable objections. Respondent further reserves the right to serve supplemental discovery requests.

Description

Petitioners’ Proposed Deadline

Respondent’s Proposed Deadline

Petitioners serve 30(b)(6) Notice of Deposition

Sunday, April 12, 2020 by 5 No objection to Petitioners’

p.m.

proposed deadline.

Respondent shall serve Discovery Requests including notices of deposition. Respondent anticipates scheduling depositions of the Petitioners for a date and time mutually convenient for all parties.

Monday, April 13, 2020 by 5 p.m.

Wednesday, April 15, 2020

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Case 1:20-cv-01590-RPK-RLM Document 37-1 Filed 04/10/20 Page 3 of 5 PageID #: 507

Chunn et al. v. Edge, No. 20-CV-1590 [Proposed] Case Management Plan

Respondent Provides Responsive Documents or Objections To Petitioner’s Discovery Demands and Responses or Objections to the Notice of Inspection

Wednesday, April 15, 2020 by COB

Friday, May 1, 2020

Petitioners Provide Responsive Documents or Objections to Respondent’s discovery requests

Wednesday, April 15, 2020

Friday, May 1, 2020

Parties Submit Letters to Court regarding any disputes on scope of discovery

Thursday, April 16, 2020 by COB

Friday, May 8, 2020

30(b)(6) deposition

Monday, April 20, 2020 at 10 a.m.

Without waiving any objections, Respondent proposes the week of May 4, 2020 for the 30(b)(6) deposition(s) on a date and time mutually convenient for all parties.

Plaintiff’s Expert’s Inspection of MDC

Tuesday, April 21, 2020 at 10 a.m.

On the afternoon of April 10, 2020, Respondent received Petitioners’ Inspection Notice. Respondent needs an opportunity to review the Notice. Without waiving any objections, Respondent cannot agree to a date at this time.

Petitioners’ expert disclosures due. Parties to schedule deposition of Petitioners’ expert for a date after the submission of Petitioners’ expert report and disclosures.

Petitioners do not believe that expert depositions and reports are appropriate for an expedited proceeding.

Friday, May 15, 2020

Respondent’s rebuttal expert N/A disclosures due

Friday, June 5, 2020

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Case 1:20-cv-01590-RPK-RLM Document 37-1 Filed 04/10/20 Page 4 of 5 PageID #: 508

Chunn et al. v. Edge, No. 20-CV-1590 [Proposed] Case Management Plan

Petitioners’ briefing in support of motion for preliminary injunction including any supplemental expert report

Wednesday, April 22, 2020 by COB

Friday, June 5, 2020

Respondent’s Response to Petitioner’s preliminary injunction motion

Friday, April 24, 2020 by COB

Friday, June 19, 2020

Petitioners’ reply in further support

Saturday, April 25, 2020 by Monday, June 22, 2020 COB

Preliminary Injunction Hearing

Monday, April 27, 2020

Week of June 22, 2020

Dated: New York, New York April 10, 2020

EMERY CELLI BRINCKERHOFF & ABADY LLP
By: /s/ Katherine R. Rosenfeld Katherine R. Rosenfeld O. Andrew F. Wilson Samuel Shapiro Scout Katovich 600 Fifth Avenue, 10th Floor New York, NY 10020 (212) 763-5000
CARDOZO CIVIL RIGHTS CLINIC Betsy Ginsberg Cardozo Civil Rights Clinic Benjamin N. Cardozo School of Law 55 Fifth Avenue, 11th Floor New York, NY 1003 (212) 790-0871
Alexander A. Reinert 55 Fifth Avenue, Room 1005 New York, NY 1003 (212) 790-0403 Attorneys for Petitioners and Putative Class

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Case 1:20-cv-01590-RPK-RLM Document 37-1 Filed 04/10/20 Page 5 of 5 PageID #: 509

Chunn et al. v. Edge, No. 20-CV-1590 [Proposed] Case Management Plan
Dated: Brooklyn, New York April 10, 2020

RICHARD P. DONOGHUE United States Attorney Counsel for Respondent Eastern District of New York 271-A Cadman Plaza East, 7th Fl. Brooklyn, New York 11201

By:

/s/

James R. Cho

Seth D. Eichenholtz

Joseph A. Marutollo

Paulina Stamatelos

Assistant U.S. Attorneys

(718) 254-6519/7036/6288/6198

james.cho@usdoj.gov

seth.eichenholtz@usdoj.gov

joseph.marutollo@usdoj.gov

pauline.stamatelos@usdoj.gov

5

 
 Case 1:20-cv-01590-RPK-RLM Document 51 Filed 04/17/20 Page 1 of 9 PageID #: 825 U.S. Department of Justice

United States Attorney Eastern District of New York
271 Cadman Plaza East Brooklyn, New York 11201

By ECF

April 17, 2020

Honorable Rachel P. Kovner United States District Judge United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201

Re: Chunn, et al. v. Warden Derek Edge, Civil Action No. 20-cv-1590 (Kovner, J.) (Mann, M.J.)

Dear Judge Kovner:

On April 15, 2020, the Court ordered an inspection of the Metropolitan Detention Center (“MDC”) in Brooklyn, New York, and ordered the parties to meet and confer regarding the parameters of the inspection. Dkt. No. 45. Counsel for all parties have met and conferred in good faith in an effort to agree on the parameters of the inspection. The parties have reached agreement on some, but not all, of the terms of the inspection, as set forth in the parties’ “Status Report: Parameters for Inspection of the Metropolitan Detention Center, Brooklyn.” Dkt. No. 50. Respondent sets forth those areas of agreement, and his position with respect to the areas of disagreement, below.

In short, Petitioners’ broad demands do not take into account that the present inspection is taking place in the midst of an unprecedented public health crisis during which the entire nation has been instructed to stay at home and reduce interactions between people as much as possible. Thus, consistent with CDC guidance, the inspection should involve the fewest number of participants inspecting a representative section of the prison, with a nexus to the claims raised by the two Petitioners, as Respondent has proposed.

1. The Respondent’s Proposed Length of the Inspection Gives Petitioners’ Sufficient Time to Conduct an Inspection, and Takes Into Account The Burdens Imposed On Maintaining Adequate Staffing Levels During the Inspection

Petitioners’ Position: The inspection shall be limited to 4 hours,

Respondent’s position: Inspection limited to 2 hours.

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Respondent seeks to limit the duration of the inspection to two hours due to the significant burden imposed on allocating limited and critical BOP staff resources to accompany Petitioners’ expert, Dr. Homer Venters, during the inspection.
The inspection of the MDC will require the re-allocation of BOP staff members from their normal duties safeguarding and caring for inmates at a time when the MDC is currently undergoing staffing challenges due to the COVID-19 outbreak. The inspection will require, at a minimum, two BOP staff members to accompany Dr. Venters and one of Petitioners’ attorneys during the inspection.
To the extent Petitioners seek to have more than one attorney participate in the inspection, to which Respondent objects (as noted in Section 5, below), the BOP will need to re-allocate additional staff members, including, at a minimum, three BOP staff members, to accompany them on the tour because each visitor must be accompanied by a minimum number of BOP staff members for security reasons. Requiring BOP to allocate significant staffing resources for the inspection for more than two hours, which will prevent them from attending to their normal work functions at a time of heightened security concerns is unduly burdensome and imposes significant risks on the security of the facility and the safety of inmates and other staff in the institution.
But in an effort to seek compromise and avoid judicial intervention, Respondent will permit Dr. Venters’ inspection to last 3 hours, if necessary. Respondent also previously informed Petitioners that he will also agree that, in the event of unanticipated delays, Respondent will provide Dr. Venters with a reasonable amount of time to complete inspecting the agreed-upon areas, if more time is needed.
2. The Date and Times Proposed By Respondent Are Reasonable and Provides Petitioners’ Expert Sufficient Time To Conduct His Inspection
Petitioners’ position: The inspection shall take place on Tuesday, April 21, 2020, from 9-1 p.m.
Respondent’s position: The inspection shall take place on Thursday, April 23, 2020, from 9-11 a.m. as the least burdensome date and time for Respondent.
In the Court’s Inspection Order dated April 14, 2020 (Dkt. No. 43), the Court ordered the parties to choose a mutually acceptable date in the week of 4/21/2020 for the inspection. Respondent proposed Thursday, April 23, 2020 as the best day for the inspection to ensure sufficient staffing levels throughout the MDC while pulling BOP staff off their normal duties to escort Dr. Venters and the attorney during the inspection. Further, Dr. Venters needs to undergo a security background check prior to being permitted to enter the MDC. Conducting the inspection on Thursday would also ensure that BOP has had sufficient time to complete Dr. Venters’ background check. In addition to the background, check, Dr. Venters will need to get formal approval for his inspection by the Deputy Director of the BOP. See BOP guidelines at https://www.bop.gov/coronavirus/covid19_status.jsp.
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During the meet and confer, Petitioners did not state that they were unavailable on Thursday for the inspection, but simply stated that they preferred conducting an inspection earlier in the week. Petitioners have not stated whether conducting the inspection on Thursday would unduly prejudice the inspection. To the extent Petitioners claim that conducting the inspection on Thursday would hinder their ability to comply with any of the discovery deadlines, we informed Petitioners’ counsel that Respondent would consent to any extension to accommodate their schedule, while still keeping the preliminary injunction hearing set for May 12, 2020.
With respect to the time of the inspection, Respondent proposed conducting the inspection from 9-11 a.m. to minimize interference with MDC operations, including meal service. Meal service typically starts at 11 a.m. During the meet and confer, Petitioners stated that they wanted Dr. Venters to observe the meal service, and Petitioners proposed an inspection from 9-12 p.m., to include the meal service. In response, Respondent proposed, as an alternative, that Dr. Venters conduct the inspection from 10-12 p.m., which would permit Dr. Venters to observe the meal service. However, in the status report (Dkt. No. 50), Petitioners revised their position again, and requested that the inspection take place from 9-1 p.m., even though they had previously proposed 9-12 p.m. during the meet and confer.
In sum, Respondent proposes that Dr. Venters’ inspection occur from 9-11 a.m. or, in the alternative, in an effort to accommodate Petitioners’ request to observe a meal service, from 1012 p.m.
3. Respondent’s Proposal For The Units To Be Inspected Provides Dr. Venters With The Opportunity To See A Wide Range of Units With Different Classifications Without Unduly Interfering With MDC Operations.
Petitioners’ position:
a. The inspection shall be limited to: (1) one housing unit not under quarantine or isolation; (2) the intake unit; (3) one quarantine unit; (4) K84 (one of the isolation units); (5) the Special Housing Unit (SHU); (6) the Kitchen; and (7) the Health Services Offices and Exam Rooms not located on housing units.
b. These units will encompass the units where petitioners Rodriguez and Rabadi are housed.
c. For the units identified above, the expert may view any area of the housing unit, including but not limited to dorms, cells, common areas, toilets, sinks, showers and any sick call rooms, except the expert will not be allowed inside any occupied cell.
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Respondent’s position:
a. The inspection shall be limited to: (1) one housing unit not under quarantine or isolation; (2) the intake unit; (3) one quarantine unit; and (4) one isolation unit.
b. These units will encompass the units where petitioners Rodriguez and Rabadi are housed.
c. For the units identified above, the expert may view any area of the housing unit, except the expert will not be allowed inside any occupied cell.
With respect to the areas that Dr. Venters may inspect, the parties have reached agreement on the following: Dr. Venters may inspect (1) one housing unit not under quarantine or isolation; (2) the intake unit; (3) one quarantine unit; and (4) one isolation unit.1 The parties further agree that any of the units identified above would include units where petitioners Rodriguez and Rabadi are housed at the time of the inspection. The parties also agree that for the unit inspected, Dr. Venters would be allowed to view all areas of the unit, but would not be allowed inside any occupied cell.
The parties do not agree on the three other areas of the MDC proposed by Petitioners, namely, the SHU, the kitchen, and Health Services Offices and Exam Rooms not located on housing units. Respondent objects to extending the inspection to these other areas of the MDC for the following reasons:
First, the BOP objects to the three other areas of the MDC in part to limit unnecessary foot traffic within the institution to areas not relevant to the claims in this case. An inspection of the other units would require the BOP to move staff members that may be working in those units out of those areas to provide for social distancing and to avoid Dr. Venters and his attorney potentially contaminating BOP staff members and those areas of the institution.
Second, the Court should not permit an inspection of the SHU due to security concerns. The SHU is the most secure unit in the facility because it houses inmates who are specifically removed from the general population for various reasons, including custody and security concerns, disciplinary issues, disruptive behavior, and protective custody. Further, inmates in the SHU are not subject to either quarantine or isolation.
Petitioners may argue that there is less of a security concern in the SHU because inmates are housed in their cell. All inmates in the facility, however, are currently housed in their cell, like
1 With respect to the isolation unit, Petitioners have specified that they would like to inspect unit K84. Respondent could not agree to a specific unit number at this time as the status of a particular unit could change in advance of the inspection. However, the parties agree in principle that Dr. Venters will be allowed to inspect an isolation unit.
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those in the SHU. Importantly, inmates in the SHU are typically housed there because they have the highest security classification or due to disciplinary infractions. An inspection of the SHU would unduly disrupt SHU operations, especially, if the Court permits inmate interviews. 2 Further, inmates in SHU tend to become agitated when visitors to the facility walk through. Finally, touring the SHU could be disruptive to standard rounds conducted by SHU staff members, department heads, and health services staff who need to perform their daily duties. The ranges in SHU do not allow for sufficient social distancing when additional individuals walk through.
Further, symptomatic inmates are not placed in the SHU. All symptomatic inmates are placed in an isolation unit, and, thus, Dr. Venters would have no reason to inspect the SHU. Given the security concerns with SHU inmates, Respondent cannot permit an inspection of the SHU, where there is no reason for the SHU inspection pertinent to this litigation.
Third, Petitioners seek permission to inspect the kitchen (also known as the Food Services Unit). The Food Services Unit is in a separate part of the MDC where inmates are not housed. Some inmates do work in the Food Services Unit, but those inmates are housed in a unit that is not currently subject to isolation or quarantine.
At this time, for safety reasons the BOP does not permit visitors in this area because the Food Services Unit provides food for the entire facility, and the MDC seeks to prevent the risk of contaminating the entire institution by allowing visitors, or any non-essential staff, into the Food Services Unit. Further, Petitioners do not allege in their Petition that the food provided to inmates is in any way inadequate or that the food contributes to the alleged unconstitutional conditions of confinement. For these reasons, the Court should not permit an inspection of the Food Services Unit.
Fourth, Petitioners seek permission to inspect the Health Services Office (also known as the Health Services Unit). Since the COVID-19 outbreak, all medical care has been provided locally in each housing unit, and not in the Health Services Unit. Because no inmates are being examined or treated in the Health Services Unit, Dr. Venters has no reason to visit the Health Service Unit. During the meet and confer, Petitioners have stated that they want to inspect the Health Services Unit and Exam Rooms (that are not in use) to evaluate the medical resources available at the MDC and if they are “potentially” used in the future. But such a request is wholly irrelevant to Petitioners’ claims here; to the extent the MDC, is unable to provide medical care on an inmate’s specific unit, the inmate would be transported to a nearby hospital rather than treated in the Health Services Unit.
2 To the extent the Court permits an inspection of the SHU and allows inmate interviews in other parts of the MDC over Respondent’s objection as noted in Section 5, below, the Court should not permit inmate interviews of the inmates in the SHU due to security concerns discussed above. Further, Petitioners are not prejudiced by their inability to interview SHU inmates because they already have an alternative method for Dr. Venters to talk to inmates in the SHU. Petitioners have stated repeatedly to the Court that they already are in contact with inmates in the SHU. Transcript from April 1, 2020 hearing at 10:4-13 (notifying Court relating to inmates being transported to the SHU). Petitioners presumably have been in touch with the inmates that were purportedly transported to the SHU and not some other housing unit.
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4. The Court Should Not Permit Inmate Interviews During The Inspection
Petitioners’ position: Dr. Venters shall be permitted to speak to people incarcerated in the MDC during his inspection of the facility. Dr. Venters may speak to people “cell-side” as he inspects the facility, and may also speak to incarcerated people who may be working or moving about the facility. For up to five individuals, Dr. Venters may request that the person be removed from their cell for interview in a common area. BOP counsel will not be permitted to listen to these interviews and should maintain an appropriate distance from Dr. Venters as he speaks to people.
Respondent’s position: Dr. Venters and petitioners’ attorney shall not be permitted to talk to any inmates during the inspection. In the alternative, if the Court permits inmate interviews, Dr. Venters may only interview inmates currently represented by the Federal Defenders of the Eastern and Southern Districts of New York. To conduct the interview, the inmate shall be taken out of his cell and the interview shall be conducted in the common area so as to provide privacy from other inmates and permit social distancing between the inmate and the interviewer and to avoid the expert/inmate having to talk through the cell door. BOP will be permitted to observe and listen to the interview. If necessary, the parties may enter into a separate protective order to protect the identities of the inmate.
Respondent objects to any communication between Dr. Venters/Petitioners’ attorney and inmates because an inspection to observe conditions in the MDC does not warrant inmate interviews. Petitioners seek to interview any inmate at the MDC without restriction with the caveat that they will only interview inmates represented by the Federal Defenders (or inmates for whom their defense attorneys have consented to the interviews) (hereafter referred to as “Represented Inmates”).
Respondent objects to the interviews because Petitioners and Dr. Venters have an alternative means of communicating with inmates and, at no time, have Petitioners’ attorneys stated that these alternative methods are inadequate. During the meet and confer, Petitioners’ counsel acknowledged that they are in contact with numerous inmates, including Petitioners, by email. Nothing is preventing Dr. Venters and Petitioners’ attorneys from continuing to communicate with inmates by email.
Further, Petitioners and Dr. Venters may communicate with inmates through unmonitored legal calls and, as such, inmates do not need to be interviewed in person at the MDC. Communicating with inmates by telephone is a viable alternative for Petitioners and Dr. Venters to talk to inmates at the MDC. As Petitioners stated in their Petition, “[b]eginning on March 14, 2020 and continuing through March 19, 2020, Federal Defenders spoke to over a hundred clients by telephone.” Pet. ¶ 57 (Dkt. No. 1) (emphasis added).
Even authority cited by Petitioners in their April 11, 2020 letter to the Court (Dkt. No. 39) relating to inspections support Respondent’s position prohibiting communication with inmates during inspections. For example, Petitioners cited Mack v. City of New York, No. 14 Civ. 3321 (S.D.N.Y.), Dkt. 36. The court in Mack limited access to certain locations at Riker’s Island, and unequivocally prohibited the plaintiffs’ attorneys from “speak[ing] to any inmate for any reason.”
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See id. (emphasis added); see also Guadalupe v. City of New York, 15 Civ. 0220 (CM) (S.D.N.Y.) Dkt. 67-1 (also referenced, but mis-cited, by Petitioners) (limiting inspection to a specific area and expressly precluding plaintiff’s attorneys from speaking to inmates and prison staff, like the order in Mack).
Petitioners state in the Status Report (Dkt. No. 50) that they prefer “cell-side” interviews of inmates whereby Dr. Venters would attempt to have a conversation with inmates through the cell door. Petitioners, however, have repeatedly expressed the importance of maintaining privacy as it relates to the inmate interviews. These “cell-side” interviews would not prevent neighboring inmates or even cell mates from listening in on those conversations, and would not provide the inmate with any privacy. Further, upon information and belief, during past inspections that included “cell-side” interviews, inmates on those units became extremely agitated and disruptive, which caused inmates to bang on their cell doors and shout, in part, to get the attention of the visitors to come to their cells. Such disruptive actions created significant security concerns for BOP staff, who were forced to immediately respond to the situation in order to maintain a safe environment -- again, straining staff resources.
Petitioners also previously informed the Court that they were concerned about inmate retaliation if inmates talked to Dr. Venters in front of BOP staff. Given the newly implemented Court protocols, Federal Defenders can schedule legal calls with Represented Inmates they would like to speak to regarding this lawsuit. The use of emails and legal calls is a viable alternative method by which Dr. Venters can talk to inmates while maintaining inmate security and addressing potential inmate concerns of retribution by BOP staff. Petitioners have repeatedly informed this Court that they have spoken inmates in the past month relating to the issues in this litigation, including “over a hundred” over a five-day period. There is no reason for an inspection to encompass in-person interviews given the health risks to all involved when Petitioners have already had the benefit of email communications and telephone conversations with “over a hundred” inmates at the MDC.
In the alternative, if the Court permits inmate interviews, Respondent has informed Petitioners’ counsel that the BOP would permit Dr. Venters alone to interview inmates currently represented by the Federal Defenders.3 Logistically, to facilitate the interviews, the inmate would be taken out of his cell and the interview would be conducted in the common area, so as to permit social distancing—pursuant to BOP safety guidelines—between the inmate and Dr. Venters. BOP would still be permitted to observe and listen to Dr. Venters’ interview with the inmate; indeed, for security reasons, Dr. Venters and the inmate cannot be left unattended.
Finally, Respondent objects to Petitioners’ request for “confidential” interviews of the inmates. If these conversations were “confidential,” Respondent would have no way of ascertaining the veracity of any information provided during these “confidential” interviews. Respondent would be hindered in his ability to investigate fully the witnesses’ claims, so as to participate meaningfully in the preliminary injunction hearing, and to assist the Court in finding
3 The parties are in agreement that, in the event the Court permits inmate interviews, that Dr. Venters would only talk to inmates represented by the Federal Defenders or those inmates for which defense counsel has given consent to Dr. Venters to interview.
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the truth. For instance, if an inmate were to inform Dr. Venters that he requested a certain type of medication, and claimed that such medication was not provided by BOP staff, Respondent would need to investigate (1) whether such a request was actually made; and (2) if the request was made, why such medication was not provided, to challenge the hearsay testimony. Respondent must be afforded the opportunity to contest the hearsay testimony presented to Dr. Venters, but will be unable to do so if these inmate interviews are anonymous. Further, no attorney-client privilege exists between Dr. Venters and any of the inmates he seeks to interview.
If necessary, the parties can meet and confer regarding the terms of an appropriate protective order to protect the identities of the inmates. Respondent can provide a proposed protective order to Petitioners for their review today (April 17) and can finalize it by Monday at the latest.
5. Number of Participants
Petitioners’ position: For Petitioners, the inspection is limited to Dr. Homer Venters, one attorney from Petitioners’ legal team, and Deirdre von Dornum, Attorney-in-Charge of the Eastern District Federal Defenders.
Respondent’s position: For Petitioners, the inspection is limited to Dr. Homer Venters and one attorney (counsel of record).
Respondent is willing to permit Dr. Venters and one of Petitioners’ attorneys to attend the inspection. Petitioners seek to have two attorneys accompany Dr. Venters on the inspection. Allowing Petitioners to have two attorneys present resulting in three individuals participating in the inspection will result in a significant strain on limited BOP staff members, as set forth in Section 1 above.
Petitioners further seek to have Ms. Deirdre von Dornum, Attorney-in-Charge of the Federal Defenders accompany Dr. Venters on the inspection. Respondent, however, objects to Ms. von Dornum participating in the inspection. In short, Ms. von Dornum is not an attorney of record in this case, is not qualified to opine as an expert, and is not a party, and therefore, has no basis to appear at this inspection in the midst of a global pandemic.
While Petitioners argue that Ms. von Dornum’s presence is necessary to gauge which inmates are represented by Federal Defenders, Petitioners have conceded to Respondent that Ms. von Dornum has that client list available to her and intends on bringing the list to the inspection. There is no reason why Ms. von Dornum cannot make that list available to Petitioners’ counsel on a confidential basis; indeed, if Ms. von Dornum appears at the inspection, such information will invariably be shared with Petitioners’ counsel regardless. Further, given the Court’s April 15, 2020 Order prohibiting communication with staff, her purported familiarity with BOP staff is irrelevant to the inspection. Dkt. No. 45.
Accordingly, for these reasons, Respondent objects to having anyone other than Dr. Venters and one of Petitioners’ attorneys at the inspection.
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6. Hand Sanitizer

Petitioners have requested permission to bring hand sanitizer on the inspection. Respondent objected on the grounds that the BOP does not permit visitors to bring alcohol into the institution and hand sanitizer contains alcohol. Respondent notified Petitioners’ counsel that there is non-alcohol based sanitizer located in common areas in the facility and, if Dr. Venters and the attorney are wearing gloves, there would be no reason to bring hand sanitizer into the facility. Further, there is an area for Dr. Venters and Petitioners’ attorney to wash their hands upon entry and when leaving the facility, and a locker at the entrance to the facility where they can store their hand sanitizer.

The parties have reached agreement with respect to items in Section 6 (a) through (d).

For these reasons, Respondent requests that the Court approve Respondent’s proposed inspection parameters.

Respectfully submitted,

RICHARD P. DONOGHUE United States Attorney

By:

/s/

James R. Cho

Seth D. Eichenholtz

Joseph A. Marutollo

Paulina Stamatelos

Assistant U.S. Attorneys

(718) 254-6519/7036/6288/6198

james.cho@usdoj.gov

seth.eichenholtz@usdoj.gov

joseph.marutollo@usdoj.gov

pauline.stamatelos@usdoj.gov

cc: The Honorable Roanne L. Mann, U.S. Magistrate Judge All Counsel of Record (by ECF)

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 Case 1:20-cv-01590-RPK-RLM Document 60 Filed 04/23/20 Page 1 of 37 PageID #: 888

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI by his Next Friend Migdaliz Quinones; JUSTIN RODRIGUEZ by his Next Friend Jacklyn Romanoff; ELODIA LOPEZ; and JAMES HAIR,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 1590
FIRST AMENDED CLASS ACTION PETITION SEEKING WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241

Hassan Chunn, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez, Elodia Lopez, and James Hair (“Petitioners”), on behalf of themselves and others similarly situated, and by and through their attorneys, Emery Celli Brinckerhoff & Abady LLP, the Cardozo Civil Rights Clinic, and Alexander A. Reinert, allege as follows:
PRELIMINARY STATEMENT 1. New York City is the epicenter of the Country’s struggle with the novel COVID19 virus and resulting coronavirus disease (“COVID-19”). As this disease ravages our City, infecting more than 147,000 and killing over 15,000 to date, the risks posed by COVID-19 to people confined in jails and prisons—in terms of transmission, exposure, and harm—are stark and alarming. For reasons beyond their control, people in jails and prisons cannot practice social distancing, control their exposure to large groups, practice increased hygiene, wear protective clothing, obtain specific products for cleaning or laundry, avoid high-touch surfaces, or sanitize their own environment. People in jails and prisons are more vulnerable and susceptible to the

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risks of coronavirus because they are more likely to have chronic underlying health conditions, such as diabetes, heart disease, chronic lung and liver diseases, asthma, and lower immune systems from HIV. People have limited opportunities to access medical care under normal circumstances in jails; medical facilities are limited, and as staff become sick, fewer people are present to care for those who remain confined. The outbreak of a highly infectious, deadly virus in a closed detention setting is a disaster, calling for urgent and decisive action to protect the health of those confined in the jail, those who work there, and the medical professionals who will treat those who become infected.
2. On March 22, 2020, a person jailed at the Metropolitan Detention Center (“MDC”) in Brooklyn, New York tested positive for COVID-19, the first coronavirus case of a detainee in the federal prison system. As of April 22, 2020, 566 people held in BOP custody had tested positive, and 24 of them had died as a result. There have been 324 BOP staff who have tested positive, 23 at the MDC alone. And as of April 22, 2020, at least six people held at the MDC have tested positive. The coronavirus is spreading in the MDC and federal BOP system, fast.
3. Unfortunately, the Warden of the MDC has failed to respond to the urgent and serious threat to the health of people confined at the MDC. Although the Warden identified 537 medically vulnerable individuals confined in his facility according to CDC guidelines, the Warden has failed to release the vast majority of these highly vulnerable individuals. Instead, the facility has acted at a slow pace to respond to requests for emergency compassionate relief and to take other measures appropriate for a public health crisis.
4. Petitioners Hassan Chunn, Nehemiah McBride, Ayman Raybadi, Justin Rodriguez, Elodia Lopez, and James Hair are six of the 537 individuals identified by the Warden
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as being at heightened risk of serious injury or death if exposed to COVID-19. Petitioners suffer variously from conditions such as chronic heart disease, asthma, high blood pressure, and respiratory problems. Because of their pre-existing chronic medical conditions and the nature of the jail environment, Petitioners cannot be adequately protected from contracting COVID-19 if they remain confined in the MDC. Instead, they face a risk of serious illness if they become infected.
5. The MDC has a terrible track record of neglecting individuals with serious health needs under ordinary circumstances. And the MDC is grossly ill-equipped to identify, monitor, and treat a COVID-19 epidemic. The combination of an epidemic striking a facility that houses 1,700 people and the MDC’s inability to provide appropriate medical care under normal circumstances is likely to result in serious illness and death, if people remain confined there at current population levels and under current conditions.
6. According to The New York Times, cities around the country, including New York, are moving to release hundreds of high-risk individuals from jail to stem the spread of the virus among the incarcerated. Courts in this Circuit and around the country have also ordered the release of incarcerated and detained individuals due to their heightened risk of contracting COVID-19-related serious illnesses. See infra n.21. New York State has announced its intention to release at least 1,100 people from state prisons who are incarcerated on parole violations.1
7. Petitioners and similarly situated medically vulnerable individuals must be released from the MDC in order to avoid serious harm to their health. Now is the time to act to
1 Brendan J. Lyons, NY to release 1,100 parole violators as coronavirus spreads, Times Union (Mar. 27, 2020), https://www.timesunion.com/news/article/Deaths-surge-again-in-New-York-from-coronavirus-15160973.php.
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stop the spread of coronavirus to high-risk and older people confined at the MDC, and to protect them and the broader community from the serious risk to their health and safety.
PARTIES 8. Petitioner Hassan Chunn is a 46-year-old man. Mr. Chunn was in the custody of the Federal Bureau of Prisons (“BOP”) at the MDC until April 8, 2020. 9. Petitioner Nehemiah McBride is a 34-year-old man. Mr. McBride was in the custody of BOP at the MDC until April 7, 2020. 10. Petitioner Ayman Rabadi is a 59-year-old man who currently resides in Kings County, New York. At all times relevant to this Complaint, Mr. Rabadi was in the custody of BOP at the MDC. 11. Petitioner Justin Rodriguez is a 26-year-old man who currently resides in Kings County, New York. At all times relevant to this Complaint, Mr. Rodriguez was in the custody of BOP at the MDC. 12. Petitioner Elodia Lopez is a 55-year-old woman who currently resides in Kings County, New York. At all times relevant to this Complaint, Ms. Lopez was in the custody of BOP at the MDC. 13. Petitioner James Hair is a 29-year-old man who currently resides in Kings County, New York. At all times relevant to this Complaint, Mr. Hill was in the custody of BOP at the MDC. 14. Derek Edge (“Respondent”) is the Warden at the MDC. As Warden of the MDC, Respondent Edge is responsible for and oversees all day-to-day activity at the MDC. He is responsible for all aspects of the operation and function of the MDC. His responsibilities include ensuring the safety of all in the institution and ensuring the orderly running of the institution.
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Approximately 1,700 people are detained at the MDC. Respondent Edge is aware of and has adopted and enforced a policy that leaves Petitioners and all those similarly situated exposed to infection, severe illness, and death due to COVID-19. Defendant Edge is the immediate physical custodian responsible for the detention of the Petitioners. He is sued in his official capacity.
JURISDICTION AND VENUE 15. The Petitioners bring this action pursuant to 28 U.S.C. § 2241 for relief from custody in violation of the Fifth and Eighth Amendments to the U.S. Constitution. 16. The Court has subject matter jurisdiction over this Petition pursuant to Article I, § 9, cl. 2 of the U.S. Constitution (Suspension Clause); the Fifth and the Eighth Amendments to the U.S. Constitution; 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 1651 (All Writs Act); and 28 U.S.C. § 2241 (habeas corpus). In addition, the Court has jurisdiction to grant declaratory and injunctive relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201. 17. Venue is proper in the Eastern District of New York pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events and omissions giving rise to these claims occurred and continue to occur in this district.
EXHAUSTION OF ADMINISTRATIVE REMEDIES 18. Petitioners are all excused from 28 U.S.C. § 2241’s prudential exhaustion requirement. The statutory exhaustion requirement of the Prison Litigation Reform Act does not apply to this action. Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001). In cases brought under 28 U.S.C. § 2241, courts may excuse failure to strictly comply with administrative procedures where good cause is found. Exhaustion can be excused where “‘(1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a party has raised a substantial constitutional question.’” Sanchez v. United
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States, No. 12 Civ. 01540 (CBA), 2012 WL 5987858, at *1 (E.D.N.Y. Nov. 29, 2012) (quoting Beharry v. Aschcroft, 329 F.3d 51, 62 (2d Cir. 2003).
19. The only process ostensibly available to Petitioners is the BOP’s Administrative Remedy Program (“ARP”), a lengthy process that does not purport to provide the requested relief of release to home confinement and that here would have been futile. See Ex. 1, Declaration of Deirdre von Dornum, dated March 27, 2020, ¶¶ 22, 23 (“von Dornum Decl.”). As Deirdre von Dornum explains in her declaration, the Federal Defenders of New York, Inc. (“the Federal Defenders”) has engaged in a prolonged effort to secure release of vulnerable clients and to advocate for the MDC to take steps to mitigate risk. Id. ¶¶ 3-7, 9-11, 20, 21, 23. The MDC has had ample opportunity to take appropriate action, but has failed to do so. Because the ARP does not provide the requested relief, because engaging in the ARP would have been futile given that seasoned advocates with far greater resources could not secure the requested relief, and because Petitioners are likely to experience irreparable injury while waiting for that process to unfold, they are excused from exhaustion.
STATEMENT OF FACTS I. The Covid-19 Crisis
20. The novel coronavirus that causes COVID-19 has led to a global pandemic.2 As of April 22, 2020, there were more than 2,600,000 reported COVID-19 cases throughout the world and more than 46,000 deaths in the United States. The number of COVID-19 cases in the United States continues to grow exponentially. Projections by the Centers for Disease Control and Prevention (“CDC”) indicate that over 200 million people in the United States could be
2 Betsy McKay et al., Coronavirus Declared Pandemic by World Health Organization, WALL ST. J. (Mar. 11, 2020, 11:59 PM), https://www.wsj.com/articles/u-s-coronavirus-cases-top-1-000-11583917794.
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infected with COVID-19 over the course of the epidemic without effective public health intervention, with as many as 1.5 million deaths in the most severe projections.3
21. The COVID-19 virus can cause severe damage to lung tissue, sometimes leading to a permanent loss of respiratory capacity, and can damage tissues in other vital organs, including the heart and liver. To date, the virus is known to spread from person to person through respiratory droplets, close personal contact, and from contact with contaminated surfaces and objects.
22. People over the age of fifty face greater chances of serious illness or death from COVID-19. In a February 29, 2020 WHO-China Joint Mission Report, the preliminary mortality rate analyses showed that individuals age 60-69 had an overall 3.6% mortality rate and those 7079 years old had an 8% mortality rate. For individuals age 40-49, the mortality rate was 0.4%, and for individuals 40 years and younger, the mortality rate was as low as 0.2%.4
23. People of any age who suffer from certain underlying medical conditions, including lung disease, heart disease, chronic liver or kidney disease (including hepatitis and dialysis patients), diabetes, epilepsy, hypertension, compromised immune systems (such as from cancer, HIV, or autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic disorders, stroke, developmental delay, and asthma, are at elevated risk as well.5 The WHO-China Joint Mission Report provides that the mortality rate for those with cardiovascular
3 Chas Danner, CDC’s Worst-Case Coronavirus Model: 214 Million Infected, 1.7 Million Dead, N.Y. Mag. (Mar. 13, 2020), https://nymag.com/intelligencer/2020/03/cdcs-worst-case-coronavirus-model-210m-infected-1-7mdead.html. 4 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://www.worldometers.info/coronavirus/coronavirus-age-sex-demographics/ (data analysis based on WHOChina Joint Mission Report). 5 Coronavirus disease (COVID-19) advice for the public: Myth busters, World Health Organization, https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public/myth-busters (“Older people, and people with pre-existing medical conditions (such as asthma, diabetes, heart disease) appear to be more vulnerable to becoming severely ill with the virus.”).
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disease was 13.2%, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer.6
24. In many people, COVID-19 causes fever, cough, and shortness of breath. But for people over the age of fifty or with medical conditions that increase the risk of serious COVID19 infection, shortness of breath can be severe. Most people in higher risk categories who develop serious illness will need advanced support. This level of supportive care requires highly specialized equipment that is in limited supply, and an entire team of care providers, including 1:1 or 1:2 nurse to patient ratios, respiratory therapists, and intensive care physicians.
25. COVID-19 can severely damage lung tissue, which requires an extensive period of rehabilitation, and in some cases, can cause a permanent loss of respiratory capacity. COVID19 may also target the heart muscle, causing a medical condition called myocarditis, or inflammation of the heart muscle. Myocarditis can affect the heart muscle and electrical system, reducing the heart’s ability to pump. This reduction can lead to rapid or abnormal heart rhythms in the short term, and long-term heart failure that limits exercise tolerance and the ability to work.
26. Emerging evidence also suggests that COVID-19 can trigger an over-response of the immune system, further damaging tissues in a cytokine release syndrome that can result in widespread damage to other organs, including permanent injury to the kidneys and neurologic injury. These complications can manifest at an alarming pace. Patients can show the first
6 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), at 12, https://www.who.int/docs/default-source/coronaviruse/who-china-joint-mission-on-covid-19final-report.pdf (finding fatality rates for patients with COVID-19 and co-morbid conditions to be: “13.2% for those with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer”).
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symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days or sooner.
27. Even some younger and healthier people who contract COVID-19 may require supportive care, which includes supplemental oxygen, positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation.
28. The need for care, including intensive care, and the likelihood of death, is much higher from COVID-19 infection than from influenza. According to recent estimates, the fatality rate of people infected with COVID-19 is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective health care systems.7 For people in the highest risk populations, the fatality rate of COVID-19 infection is about 15 percent.
29. Patients who do not die from serious cases of COVID-19 may face prolonged recovery periods, including extensive rehabilitation from neurologic damage, loss of digits, and loss of respiratory capacity.
30. There is no vaccine against COVID-19 and there is no known medication to prevent or treat infection from COVID-19. Social distancing, or remaining physically separated from known or potentially infected individuals, and vigilant hygiene, including washing hands with soap and water, are the only known effective measures for protecting vulnerable people from COVID-19. II. Incarcerated People and Staff in New York City Are Particularly Vulnerable
31. New York is currently at the epicenter of the coronavirus pandemic. On March 23, 2020, approximately six percent of confirmed coronavirus cases in the world were in New
7 Betsy McKay, Coronavirus vs. Flu Which Virus is Deadlier, WALL ST. J. (Mar. 10, 2020, 12:49 PM) https://www.wsj.com/articles/coronavirus-vs-flu-which-virus-is-deadlier-11583856879.
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York State. Governor Cuomo declared a state of emergency in New York State on March 7, 2020. Mayor DeBlasio declared a state of emergency in New York City on March 12, 2020.
32. As of April 22, 2020, there are 263,754 positive cases in New York State (approximately 30% of the total US cases and 10% of the world’s cases) with more than 147,000 of those cases being in New York City. To date, there have been 19,453 deaths from COVID-19 just in New York, with 15,074 of those deaths in New York City.8
33. People in congregate environments, which are places where people live, eat, and sleep in close proximity, face increased danger of contracting COVID-19, as already evidenced by the rapid spread of the virus in cruise ships and nursing homes. People who are confined in prisons, jails, and detention centers will find it virtually impossible to engage in the necessary social distancing and hygiene required to mitigate the risk of transmission, even with the bestlaid plans. The CDC also warns of “community spread” where the virus spreads easily and sustainably within a community where the source of the infection is unknown.
34. On March 20, 2020, Governor Cuomo took the strictest measure yet to fight the virus’s spread, issuing a “stay at home” executive order for all residents. In a statement to the public, Governor Cuomo explained that the order prohibits non-essential gatherings of any size, requires all non-essential businesses to close and 100 percent of their employees to work from home, and recommends that people stay at least six feet away from others. “We know the most effective way to reduce the spread of this virus is through social distancing and density reduction measures,” Governor Cuomo said.9
8 See https://coronavirus.jhu.edu/map.html (last accessed Apr. 23, 2020). 9 Governor Cuomo Signs the 'New York State on PAUSE’ Executive Order, New York State (Mar. 20, 2020), https://www.governor.ny.gov/news/governor-cuomo-signs-new-york-state-pause-executive-order.
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35. Correctional settings increase the risk of contracting an infectious disease, like COVID-19, due to the high numbers of people with chronic, often untreated, illnesses housed in a setting with minimal levels of sanitation, limited access to personal hygiene, limited access to medical care, and no possibility of staying at a distance from others. Ex. 2, Declaration of Jonathan Giftos, MD, dated March 27, 2020, ¶ 11 (Giftos Decl.”).
36. Correctional facilities house large groups of people together, and move people in groups to eat, do recreation, and go to court. They frequently have insufficient medical care for the population, and, in times of crisis, even those medical staff cease coming to the facility. Hot water, soap, and paper towels are frequently in limited supply. Incarcerated people, rather than professional cleaners, are responsible for cleaning the facilities and often are not given appropriate supplies. This means there are more people who are susceptible to getting infected all congregated together in a context in which fighting the spread of an infection is nearly impossible.
37. Outbreaks of the flu regularly occur in jails, and during the H1N1 epidemic in 2009, many jails and prisons dealt with high numbers of cases. Giftos Decl. ¶ 12.
38. For this reason, correctional public health experts have recommended the release from custody of people most vulnerable to COVID-19. Release protects the people with the greatest vulnerability to COVID-19 from transmission of the virus, and also allows for greater risk mitigation for all people held or working in a prison, jail, or detention center. Release of the most vulnerable people from custody also reduces the burden on the region’s health care infrastructure by reducing the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time.
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39. Internationally, governments and jail and prison staff have recognized the threat posed by COVID-19 and released detainees. In Iran, for example, more than 70,000 people were temporarily released from jails to curb the spread of coronavirus.10
40. In the United States, the stimulus package that became law during the pendency of this Petition included funding for federal prisons to purchase protective gear and test kits for COVID-19 and authorized the Justice Department to lengthen the maximum amount of time that a prisoner can be placed in home confinement during the pandemic.11
41. On March 23, 2020, a bipartisan group of fourteen U.S. Senators sent a letter to U.S. Attorney General Barr and BOP Director Carvajal to express their “serious concern for the health and wellbeing of federal prison staff and inmates . . . especially those who are most vulnerable to infection.” The Senators wrote that they reviewed the BOP’s COVID-19 Action Plan, noting that it did not include any measures to protect the most vulnerable staff and inmates. The Senators urged DOJ and BOP to release to home confinement certain individuals who were elderly, ill, or incarcerated for non-violent offenses and are near release.
42. On March 26, 2020, Attorney General William Barr sent a memo to the Director of BOP “directing [him] to prioritize the use of [his] various statutory authorities to grant home confinement for inmates seeking transfer in connection with the COVID-19 pandemic.” The Attorney General specifically recognized that “there are some at-risk inmates who are non-
10 Iran Temporarily Releases 70,000 Prisoners as Coronavirus Cases Surge, Reuters (Mar. 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases-70000-prisoners-ascoronavirus-cases-surge-idUSKBN20W1E5. 11 Todd Ruger, Prisons and Courts Get Coronavirus Help in Senate Relief Bill, Roll Call (Mar. 25, 2020, 2:21PM) https://www.rollcall.com/2020/03/25/prisons-and-courts-get-coronavirus-help-in-senate-relief-bill/.
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violent and pose minimal likelihood of recidivism and who might be safer serving their sentences
in home confinement rather than BOP facilities.”12
43. Senator Dick Durbin has called on the federal government to take action to
protect staff and people detained in federal prisons. “Federal prisons will inevitably be a hotspot
for the spread of coronavirus, especially among vulnerable staff and inmates,” Durbin said. “It is
imperative for BOP to take immediate action to protect staff and inmates at federal prisons
throughout the country and ensure that facilities are prepared to address this threat.”13
44. Some jurisdictions, including Los Angeles and Chicago, have already taken steps
to protect people in custody from the impending spread of COVID-19 by releasing people in an
effort to reduce populations.14
45. In New York City, public officials, the jail oversight board, and even doctors
working at Rikers Island have acknowledged that the City’s jails are simply unsafe and releasing
people is the only humane option.15 See Statement of New York City Board of Correction,
12 Memo from Attorney General to Director of Bureau of Prisons, March 26, 2020, https://www.politico.com/f/?id=00000171-1826-d4a1-ad77-fda671420000. 13 Durbin Discusses Coronavirus Threat At Federal Prisons With Council Of Prison Locals, Dick Durbin United States Senator Illinois (Mar. 24, 2020), https://www.durbin.senate.gov/newsroom/press-releases/durbin-discussescoronavirus-threat-at-federal-prisons-with-council-of-prison-locals. 14 Thirty-one district attorneys from around the country put out a joint statement calling for a reduction in jail populations. Jurisdictions in California, Illinois, and Ohio have already released people from jail, and officials in Louisiana, Oregon, Pennsylvania, and Virginia have made announcements that they will begin releasing people soon. Other cities are putting plans in place to do the same. See, e.g. Allen Kim, Cities in the US Move to Lower Inmate Populations as Coronavirus Fears Grow, CNN (Mar. 16, 2020), https://www.cnn.com/2020/03/16/us/inmates-released-jail-coronavirus-trnd/index.html; Megan Cassidy, Coronavirus: San Francisco, Contra Costa Prosecutors Join National Call for Jail Releases, San Francisco Chronicle (Mar. 17, 2020) https://www.sfchronicle.com/crime/article/Coronavirus-San-Francisco-Contra-Costa15137291.php. 15 See Ross MacDonald (@RossMacDonaldMD), Twitter (March 18, 9:51 p.m.) https://twitter.com/RossMacDonaldMD/status/1240455796946800641 (Dr. MacDonald is the Chief Medical Officer for Correctional Health Services (“CHS”), which provides healthcare to New York City’s Department of Corrections); Rachel Bedard, (@rachelbedard), Twitter (March 18, 8:34 a.m.) https://twitter.com/rachaelbedard/status/1240255196644741120 (Dr. Bedard is the Director of Geriatrics and Complex Care for CHS); Jonathan Giftos (@JonGiftosMD), Twitter (March 18, 10:37 p.m.)
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March 17, 2020 (calling on the City to release people from criminal custody, prioritizing people over 50, those with underlying health conditions, detained for administrative reasons, and those who have been convicted and sentenced to one year or less).16 On March 20, 2020, Dr. Robert Cohen, a member of New York City’s Board of Correction, said, “The most important thing we can do right now is discharge all of the people who are old and have serious medical issues — those people are likely to die from a coronavirus infection.”17
46. Several doctors working in New York City’s jails have echoed the calls to release vulnerable people. Dr. Rachael Bedard, senior director of the geriatrics and complex care service at Rikers Island, has described depopulation as “[t] he only meaningful public health intervention.”18 In correctional facilities, “if you think about how many excess human contacts [there are], even compared to something like a shelter setting, you can imagine why viral spread in this environment is extra dangerous.”
47. Incarcerated people in New York City have already begun to test positive for COVID-19. As of April 22, 2020, among the 3,900 people currently incarcerated by the New York City Department of Correction, 369 people in city custody have tested positive for coronavirus. This is a higher rate of infection than seen outside of detention facilities.
https://twitter.com/JonGiftosMD/status/1240467288198873088 (until January 2020, Dr. Giftos was the Clinical Director of Substance Use Treatment for CHS). 16 New York City Board of Correction Calls for the City to Begin Releasing People from Jail as Part of Public Health Response to COVID-19 (Mar. 17, 2020), https://www1.nyc.gov/assets/boc/downloads/pdf/News/2020.03.17%20%20Board%20of%20Correction%20Statement%20re%20Release.pdf 17 Jen Ransom and Alan Feuer, ‘A Storm Is Coming’: Fears of an Inmate Epidemic as the Virus Spreads in the Jails, N.Y. Times (March 20, 2020), https://www.nytimes.com/2020/03/20/nyregion/nyc-coronavirus-rikers-island.html. 18 Jennifer Gonnerman, A Rikers Island Doctor Speaks Out to Save Her Elderly Patients From the Coronavirus, New Yorker (Mar. 20, 2020), https://www.newyorker.com/news/news-desk/a-rikers-island-doctor-speaks-out-tosave-her-elderly-patients-from-the-coronavirus.
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48. As of April 22, 2020, eleven people in BOP custody in New York City, including six at the MDC, have tested positive.19 This is almost certainly an underestimate of the prevalence of COVID-19 within BOP facilities, as the BOP has tested only 12 of the 1,700 people held at the MDC. And the virus is spreading like wildfire across the population held on Rikers Island. Giftos Decl. ¶ 15.
49. Numerous people working in the criminal justice system have also tested positive, increasing the likelihood of exposure to and by incarcerated people: a security officer and an agent in the U.S. Attorney’s Office, SDNY; an NYC Department of Corrections investigator (who has since died from COVID-19)20; a lawyer with an office in Midtown Manhattan (and his wife and son)21; a healthcare worker in Manhattan; an attorney and legal intern in local New York State courts; and an attorney at the Brooklyn Supreme Court.22
50. New York City pledged to release at least 300 nonviolent inmates from Rikers Island, including people held on Rikers who are over 70 years-old or who have preexisting conditions that place them at heightened risk from the virus.23
19 BOP Report Pursuant to EDNY Administrative Order No. 2020-14, April 21, 2020, available at https://www.nyed.uscourts.gov/coronavirus(last accessed April 23, 2020). 20 Aliza Chasan, NYC Corrections Officer Dies of Coronavirus, Pix11, https://www.pix11.com/news/coronavirus/nyc-correction-officer-dies-of-coronavirus. 21 Midtown Lawyer, Family and Friends Test Positive, NBC New York (March 4, 2020), https://www.nbcnewyork.com/news/local/nyc-attorneyin-critical-condition-city-works-to-trace-movements-awaitsmore-tests/2311723/. 22 Information about Coronavirus and New York State Courts, https://www.nycourts.gov/whatsnew/covid.shtml; see also Two People with Coronavirus were in Manhattan and Brooklyn Courts, https://twnews.us/us-news/two-people-with-coronavirus-were-inmanhattanbrooklyn-courts. 23 Noah Higgins-Dunn, Coronavirus: New York City to Release 300 Nonviolent Inmates from Rikers Island, CNBC (Mar. 24, 2020, 7:25PM) https://www.cnbc.com/2020/03/24/coronavirus-new-york-city-to-release-300-nonviolentinmates-from-rikers-island.html.
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51. Over the past few weeks, judges in this circuit and across the country have
granted habeas petitions and ordered the release of persons who are incarcerated or being
detained.24
52. On March 27, 2020, Governor Cuomo announced that the State of New York is
immediately releasing 1,000 individuals confined on parole violations in state prisons and jails to
supervised release in the community in order to stem the spread of coronavirus among
incarcerated people.
53. Nonetheless, BOP continues to transfer people from facility to facility, ignoring
the pleas of government officials and public health experts, and increasing the likelihood that the
virus will be transmitted within the incarcerated population.25
24 See Coronel, et al., v. Decker et al., 20 Civ. 2472 (AJN) (S.D.N.Y. Mar. 27, 2020) (granting release of four petitioners with medical conditions that render them particularly vulnerable to severe illness or death if infected by COVID-19 from immigration detention); Basank et al. v. Decker et al., 20 Civ. 2518 (AT) (S.D.N.Y. Mar. 26, 2020) (granting release of ten petitioners who “suffer[] from chronic medical conditions, and face[] an imminent risk of death or serious injury in immigration detention if exposed to COVID-19” from immigration detention); U.S. v. Stephens, 15 Cr. 95 (AJN), 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020) (granting motion for reconsideration of defendant’s bail conditions and releasing him from jail to home confinement, recognizing inmates may be at a heightened risk of contracting COVID-19); Umana Jovel v. Decker et al., 20 Civ. 308 (GBD)(SN) (S.D.N.Y. Mar. 26, 2020) (granting emergency request for release of petitioner from immigration detention in light of the COVID19 crisis); People ex rel. Stoughton on behalf of Little et al. v. Brann, Index No. 260154/2020 (Sup Ct, Bronx County Mar. 25, 2020) (releasing 106 individuals held at Rikers Island jail on parole violations who are particularly vulnerable to illness or death if infected by COVID-19); People ex rel. Stoughton on behalf of Hogan et al. v. Brann, (Sup Ct, NY County Mar. 27, 2020) (releasing 16 individuals held at Rikers Island jail on pre-trial detention who were particularly vulnerable to illness or death due to COVID-19); Xochihua-Jaimes v. Barr, No. 18-71460 (9th Cir. Mar. 24, 2020) (ordering, sua sponte, that petitioner be immediately released from immigration detention “[i]n light of the rapidly escalating public health crisis” related to COVID-19); USA v. Garlock., No. 18 Cr 00418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (ordering, sua sponte, extension of convicted defendant’s surrender date and noting “[b]y now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided”); Castillo et al. v. Barr, 20 Civ. 605 (C.D. Cal. Mar. 27, 2020) (ordering petitioners be released from immigration detention in light of COVID-19 and noting “the risk of infection in immigration detention facilities – and jails – is particularly high”); U.S.A.v. Matthaei, 19 Civ. 243 (D. Idaho Mar. 16, 2020) (granting convicted defendant additional time to self-surrender to prison in light of defendant’s health problems, which place him at greater risk of complications of COVID-19); Jimenez et al. . Wolf et al., 18 cv 10225 (D. Mass. Mar. 26, 2020) (ordering release of petitioner from immigration detention due to COVID-19 concerns); In re Request to Commute or Suspend County Jail Sentences, Dkt. No. 084230 (N.J. Mar. 22, 2020) (ordering, based on the dangers posed by COVID-19, release of any inmate in New Jersey serving a county jail sentence as a condition of probation or as a result of a municipal court conviction). 25 Luke Barr, Despite Coronavirus Warnings, Federal Bureau of Prisons Still Transferring Inmates: Sources, ABC News (Mar. 23, 2020, 1:22PM) https://abcnews.go.com/Health/warnings-bureau-prisons-transporting-inmatessources/story?id=69747416.
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III. MDC is Failing to Take Proper Precautions, Placing People at an Increased Risk 54. The conditions at the MDC pose a heightened public health risk for the spread of
COVID-19 that is even greater than in non-carceral institutions. People live and work in close quarters and cannot achieve the “social distancing” needed to effectively prevent the spread of COVID-19. They may be unable to maintain the recommended distance of 6.5 feet from others, and may share or touch objects used by others. Toilets, sinks, and showers are shared, without disinfection between each use. Food preparation and service is communal with little opportunity for surface disinfection. Staff arrive and leave on a shift basis, and there is limited ability to adequately screen staff for new, asymptomatic infection.
55. Since March 4, 2020, the Federal Defenders has engaged in extensive efforts to get the MDC to address the risks associated with the spread of COVID-19 at the MDC, to little avail. von Dornum Decl. ¶ 3-7, 9-11, 20, 21, 23.
56. The Federal Defenders initially requested that the BOP put in place the following measures at the MDC:
a. Make public the MDC’s plans and policies for preventing a coronavirus outbreak and responding to detained people who contract coronavirus;
b. Put in place a comprehensive testing protocol for incarcerated people and staff;
c. Increase sanitation and hygiene in the facility, including increased cleaning of the housing units and making soap and tissues freely available to incarcerated people;
d. Provide for isolating anyone who tests positive for the coronavirus at a hospital or other medical facility, not at the jail;
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e. Ensure that the jail is not locked down to social and legal visitors in response to the epidemic sot that lawyers and family members can have continued access to their clients and loved ones;
f. Coordinate with the Courts and U.S. Attorneys’ Offices in advance to ensure that only in extraordinary circumstances should any new arrestee be detained at the jails during the epidemic, and no one should be admitted without testing. von Dornum Decl. ¶ 4.
57. On March 11, 2020, for the first time, MDC officials responded to these concerns, when, at the request of the Chief Judge of the Eastern District of New York, Attorney Holly Pratesi and Associate Warden Andy Cruz attended a special meeting of the EDNY Facilities Security Committee focused on coronavirus issues. At that meeting Associate Warden Cruz indicated that the MDC was still receiving guidance from national BOP leadership as to how to handle the coronavirus epidemic. In response to specific questions, Associate Warden Cruz stated:
a. the facility could not make public its plans or protocols for coronavirus because of security considerations;
b. there was no testing protocol in place, except for the temperature readings of those people being brought to court (by order of the Chief Judge) and the facility did not anticipate having a testing protocol;
c. Staff were being asked to self-report if they had traveled to what were then the designated hotspot countries or had been exposed to someone known to have coronavirus;
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d. It was unclear if staff who presented with risk factors and were sent home

would be on paid or unpaid leave, because that is a national BOP decision;

e. the MDC had placed soap in the lobby bathroom for visitors, intended to

provide a bar of soap to each inmate and to ask the inmate orderlies to

increase cleaning, but could not provide hand sanitizer to inmates, and

neither staff nor visitors would be allowed to bring in hand sanitizer;

f. the MDC did not yet know where any incarcerated person who tested

positive would be placed;

g. the MDC did not believe it would be feasible to use the empty floors in the

East (or “old”) building of the MDC to house people who were

symptomatic or who tested positive;

h. the MDC did not intend to do a lockdown on social or legal visitation;

i.

the MDC would continue to accept new arrests;

j.

the MDC would screen new arrests for symptoms of COVID-19 and

would ask newly arriving inmates if they had traveled recently outside the

United States;

k. the MDC had no plans to move vulnerable inmates but would make an

effort to identify which inmates fell under the CDC’s definition of

vulnerable. Id. ¶ 6.

58. On March 13, 2020, the MDC cancelled all legal and social visitation. Id. ¶ 8.

This visitation ban remains in effect for the foreseeable future.

59. Between March 14, 2020 and March 19, 2020, Federal Defenders spoke to over a

hundred clients by telephone. The clients uniformly observed that:

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a. there had been no change in sanitation practices at the facility;

b. only some of the units had received the bars of soap;

c. education on the symptoms of COVID-19 or how to curb its spread is

limited to posters on the walls and a 10-minute presentation on each unit

to large groups of inmates that consisted of reading from a CDC pamphlet

that largely advised to “Stay at home” and “Avoid gatherings”;

d. no doctors came to the units to check on anyone;

e.

inmates understand that staff are being given temperature checks as they

entered the facility, but staff on the unit were not wearing gloves, masks,

or other protective gear in the facility. Id. ¶ 9.

60. The MDC lacks adequate medical infrastructure to address the spread of

infectious disease and treat the people most vulnerable to COVID-19.

61. Approximately 1,700 people are held at the MDC. The Warden of the MDC has

identified 537 of these individuals as falling into the high-risk groups identified by the CDC. Id.

¶ 11(a).

62. New people arrive at the MDC from all over the world each week. These new

arrivals are screened only for fever and recent travel to designated hotspot countries.

63. Correctional officers who live in New York, New Jersey, and Pennsylvania come

in and out of the facility each day without sufficient medical screening. Staff being screened only

for elevated temperatures as they entered the facility and sent home if they had a temperature

over 100.4 degrees Fahrenheit based on a temporal thermometer. Id. ¶ 11(e).

64. Significantly, in a March 18, 2020 CDC report, an epidemiological investigation

revealed that coronavirus-infected staff members contributed to the outbreak in a nursing home

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facility with ineffective infection control and prevention and staff members working in multiple facilities. IV. MDC Has Failed to React to Tests Confirming the Virus Is Within Its Walls
65. On March 21, 2020, the Federal Defenders learned that an inmate at the MDC had tested positive for COVID-19. Id. ¶ 12.
66. The inmate who tested positive had been housed on the “intake” unit on the 4th floor of the institution for approximately one week before testing positive. Id. ¶ 13. At the time the inmate was admitted to the institution he had been asymptomatic; he developed symptoms within three days of his admission. Id.
67. Between the time the inmate was admitted to the MDC and when he tested positive for COVID-19, he was in contact with many inmates and staff on the intake unit. Id. New inmates from other institutions who are in transit to their designated facilities were added to the intake unit on March 20, 2020, the day before the inmate on that unit tested positive. Id. Inmates from the intake unit, who would have been exposed to the positive inmate, were subsequently transferred into other units within the facility. Id.
68. Others who were housed on the unit with the individual who was recently diagnosed with coronavirus are now themselves showing symptoms, according to a person confined on that unit.
69. People housed in the MDC are terrified and panicked. Some are placing socks over the phone when they call family members to prevent infection from the phones, which are not sanitized or cleaned.
70. No professional or staff cleaners sanitized the intake unit where the inmate who tested positive had been housed, but, instead the inmate orderlies on the adjacent unit were sent
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to clean the intake unit with the same cleaning supplies they regularly use and were provided insufficient gloves and masks. Id.
71. Staff is providing people with industrial hand soap in diluted form to “clean” their own cells.
72. Since, inmates have been directed by executive staff to report other inmates who they believed might be symptomatic, but, inmates were fearful of reporting their own or others’ symptoms because they had heard that if you were symptomatic you would be placed in “the box.” Id.
73. Federal Defenders has not been informed how many inmates are symptomatic, quarantined or isolated, in addition to the inmate who tested positive. Id. ¶ 14.
74. As of April 22, 2020, at least 23 staff members at the MDC have tested positive and a number of others are symptomatic.
75. Despite the arrival of COVID-19 at the MDC, the MDC continued to implement practices that put inmates and staff at risk of contracting COVID-19. For example:
a. Female inmates continued to be asked to launder all inmate uniforms, including from the intake unit, where the inmate tested positive. Id. ¶ 16(a).
b. The phones and computers on the units were not being cleaned. Id. ¶ 16(c).
c. At mealtime, the inmates were directed to line up shoulder to shoulder. Id. ¶ 16(d).
d. Inmates at the MDC continued to be housed either in small two-man cells (designed to hold a single inmate) with a single shared toilet and sink or in
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large open dormitory units housing up to 70 inmates with shared toilets

and sinks and sharing a large sleeping space and beds spaced only 3 to 5

feet apart. Id. ¶ 26. Windows in the units do not open. Inmates cannot go

outside.

e. No hand sanitizer has been made available to inmates at the MDC.

f. Tissues are not readily available. Inmates use toilet paper to blow their

noses. Each inmate is provided only one roll of toilet paper per week.

g. Each inmate is given one small bar of soap a week, at most. Some units at

the MDC have received no soap since the lockdown of the facility began

on March 13, 2020. Access to additional soap is limited to those inmates

who have sufficient commissary funds to purchase it, and dependent on

the commissary being open; it is routinely closed during lockdowns.

h. Inmates prepared all inmate meals. Meal preparation, with the exception

of kosher and halal meals, was performed in a single kitchen.

i.

Inmates ate meals in large groups.

j.

Inmates were responsible for sanitizing the housing unit common areas,

and frequently lacked adequate cleaning supplies to do so.

76. Inmates were not informed of the symptoms of COVID-19, or of how to prevent

the spread of the infection except through posters on the walls of the units and general

exhortations (delivered in groups) to wash their hands and practice social distancing. Id. ¶ 35.

77. Inmates who are at lower risk of becoming seriously ill from the virus were not

separated from those who are at higher risk (because of age and/or pre-existing medical

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conditions). Instead, they were mixed together in small two-man cells and locked together in those cells for at least 10 out of every 24 hours.
78. No doctors have come to the units during the pandemic. Medical professionals only visit inmates if the inmates volunteer that they have symptoms. Id. ¶ 16(b).
79. The facility did not inform the inmate population of what the protocol will be for symptomatic inmates; absent a transparent protocol, inmates in correctional settings often fear they will be confined in solitary if they volunteer that they are symptomatic.
80. Since April 1, 2020, inmates at the MDC have been locked down in their cells and not permitted to leave except for brief periods of time. This lockdown will remain in effect until at least May 18, 2020. V. MDC is Not Prepared to Treat to Individuals Who Contract Coronavirus
81. Inmates who do contract COVID-19 are at higher risk for developing acute symptoms than if they were in the community, because the MDC lacks the medical resources to care for symptomatic inmates.
82. Now that COVID-19 is inside the facility, the MDC will be unable to stop the spread of the virus throughout the facility given long-documented inadequacies in BOP’s medical care and in light of how these facilities function. Giftos Decl. ¶ 14.
83. There is no separate medical unit or facility for ill inmates. Unlike many Federal Correctional Institutions and even Rikers’ Island, the MDC has no physical space in which an ill inmate can convalesce that is separate from other inmates, warm, clean and has access to fresh water and regular hand-washing. von Dornum Decl.¶ 41.
84. As of March 20, 2020, MDC had only 9 nasal swab COVID-19 test kits and only one inmate had been tested at the facility. Id. ¶ 11. MDC currently has no ventilators and cannot
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intubate inmates on-site. Id. ¶¶ 39, 40. MDC does not have any specialized equipment or medical providers. Id. ¶ 42.
85. There are only three doctors available at MDC to care for all 1,700 inmates. Id. Even this highly limited number is likely to decrease as doctors themselves go into quarantine. None of these doctors specialize in infectious diseases.
86. People who contract COVID-19 can deteriorate rapidly, even before a test result can be received. They need constant monitoring. Most people in the higher risk categories will require more advanced support: positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation. Such care requires specialized equipment in limited supply as well as an entire team of specialized care providers. MDC does not have that specialized equipment or specialized providers.
87. MDC is already short-staffed.26 Now that three staff members have tested positive and several more are symptomatic, correctional officers are understandably hesitant to come to work. This staffing shortage will only increase as employees need to stay home to care for children whose schools are closed, elderly family members, and other personal health situations. With fewer staff, correctional officers are less able to monitor inmates’ health. Giftos Decl. ¶ 18. VI. Petitioners Are Particularly Vulnerable
88. Petitioners in this case are individuals who are particularly vulnerable to serious illness or death if infected by COVID-19.
89. Hassan Chunn. Mr. Chunn is 46 years old. Mr. Chunn was incarcerated for approximately three years. Mr. Chunn has been diagnosed with Coronary Heart Disease. As of
26 “Review and Inspection of Metropolitan Detention Center Brooklyn Facilities Issues and Related Impact on Inmates,” OIG Report (Sept. 2019).
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2005, he was diagnosed with chronic heart failure. He has two stents in his heart. He is prediabetic. He also suffers from high blood pressure, seizures, hypertension and high cholesterol. During his incarceration at MDC, he was hospitalized on at least two occasions at outside hospitals for extreme high blood pressure. He takes a number of medications including Plavix, Losapril, Norvax, and Lipitor. Mr. Chunn is critically vulnerable to COVID-19 because of his significant health problems. Mr. Chunn was released to home confinement on April 8, 2020.
90. Nehemiah McBride. Mr. McBride is 34 years old. Mr. McBride was incarcerated since December 17, 2019, and subsequently was sentenced to 4 months’ incarceration. Mr. McBride has been diagnosed with asthma, which is severe, and he suffers from respiratory problems. Mr. McBride is critically vulnerable to COVID-19 because of his significant health problems. Mr. McBride was released from the MDC on April 7, 2020.
91. Ayman Rabadi. Mr. Rabadi is 59 years old. Mr. Rabadi has been incarcerated for approximately 1 year, after being sentenced to 24 months for a wire fraud-related conviction of which he has served approximately 14 months. Mr. Rabadi has been diagnosed with a serious heart condition, anxiety and diabetes. Mr. Rabadi suffered a heart attack approximately six years ago, and thereafter he had several stents placed in his heart. He has a tumor on one of his kidneys which is being monitored via ultrasound. He takes medication for high blood pressure, cholesterol, and blood thinners. He also suffers from severe anxiety and depression. Mr. Rabadi is critically vulnerable to COVID-19 because of his significant health problems.
92. Justin Rodriguez. Mr. Rodriguez is 26 years old. Mr. Rodriguez is scheduled to be released on June 9, 2020. Mr. Rodriguez suffers from asthma. Mr. Rodriguez is critically vulnerable to COVID-19 because of his significant health problems. Mr. Rodriguez requested an inhaler from BOP staff but as of this filing has not received one.
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93. Elodia Lopez. Ms. Lopez is 55 years old. She is scheduled to be released on July 28, 2020. Ms. Lopez is serving a 15-month sentence in connection with a conviction for selling marijuana. Ms. Lopez has a number of serious medical issues that make her particularly vulnerable to COVID-19. She has a lung infection that was discovered in approximately November 2019, which makes it difficult for her to breathe, causes her throat to close, and causes her high fever and chills. She is supposed to be taking medication for the infection, but she has not received her medicine since she arrived at the MDC four months ago. In response to her medical requests, she has been given Vitamin D and told to buy medicine to manage the pain. Ms. Lopez also has type 2 diabetes, for which she takes insulin; high blood pressure; and high cholesterol. As a woman at the MDC, Ms. Lopez is housed in a dormitory where she shares a bathroom, tables, and chairs with other women. One woman in her dorm, who sleeps only feet away from Ms. Lopez, has recently been displaying COVID-19 symptoms. Ms. Lopez is given a mask and a small bar of soap once a week. She does not receive gloves or hand sanitizer.
94. James Hair. Mr. Hair is 29 years old. He is scheduled to be released on August 15, 2026. Mr. Hair was diagnosed with multiple sclerosis in or around 2018. The disease causes him headaches, numbness, and tingling, and has caused him to have approximately 4 seizures in the past approximately two years. Mr. Hair has also been experiencing severe pain in his left kidney. Doctors told him in late 2019 that they believed he had cancerous cells in his left kidney. He has extreme pain—9 out of 10 on the pain scale—on the lower left side of his back. Approximately seven weeks ago, he began noticing blood in his stool; it is present about 90% of the time. In late 2019, he began vomiting multiple times per week, on average, and frequently seeing blood in his vomit. He shows the blood in his vomit to the staff at the MDC. Mr. Hair also suffers from asthma and uses an inhaler. He had an asthma attack in late 2019 and was taken to the hospital.
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Over the roughly 3 months Mr. Hair has been at the MDC, he has lost approximately 16 pounds. Once a week, Mr. Lopez receives a mask and a small bar of soap—enough for approximately two washings. He does not receive any gloves or hand sanitizer.
LEGAL ALLEGATIONS I. Section 2241 is an Appropriate Vehicle to Address Unconstitutional Conditions of
Confinement 95. Section 2241(c)(3) authorizes courts to grant habeas corpus relief where a person is “in custody in violation of the United States.” The Second Circuit has “long interpreted § 2241 as applying to challenges to the execution of a federal sentence, including such matters as . . . prison conditions.” Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (internal quotation marks omitted). This includes challenges to detention where conditions pose a threat to Petitioners’ medical wellbeing. See Roba v. United States, 604 F.2d 215, 218–19 (2d Cir. 1979) (approving the use of Section 2241 to challenge a prisoner’s transfer where that transfer created a risk of fatal heart failure). 96. The Second Circuit’s decision in Roba is instructive. In that case, Petitioner alleged that an imminent transfer from New York to face charges in California would create a substantial risk of death because of his precarious heart condition. The Second Circuit held that there was Section 2241 jurisdiction to challenge his contemplated transfer, where such custody would threaten his life, citing Estelle v. Gamble, the Supreme Court’s seminal case establishing the Eighth Amendment’s deliberate indifference standard. 604 F.2d at 218–19. Critically, the court held that habeas jurisdiction was appropriate even though the transfer, and hence custody, was imminent: “Petitioner need not wait until the marshals physically lay hands on him; he is entitled now to challenge the allegedly unlawful conditions of his imminent custody.” Id. at 219.
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97. In this case, the unconstitutional threat to Petitioners’ health and life posed by being held in Respondent’s custody is ongoing, not simply imminent. Every hour that Petitioners are held in the MDC, they are at a significantly elevated risk of contracting coronavirus, and because of their age and/or medical conditions, their risk of dying from coronavirus is significant. For similar reasons, Judge Analisa Torres recently ordered the release of several individuals from federal immigration detention. See Memorandum and Order, Basank et al. v. Decker, et al., No. 20 Civ. 2518 (S.D.N.Y. March 26, 2020) (ECF No. 11).
II. Respondent Edge’s Failure to Take Steps to Mitigate Transmission of Coronavirus Constitutes Deliberate Indifference to the Serious Medical Needs of Plaintiffs 98. Respondent is violating Petitioners’ Fifth and Eighth Amendment rights by
continuing to incarcerate them in conditions where it is virtually impossible to take steps to prevent transmission of an infectious disease that will prove deadly because of Petitioners’ vulnerable condition.
99. All people held in the MDC, whether convicted or not, are entitled to be protected from condition of confinement that create a serious risk to health or safety, including through release from custody when necessary. Brown v. Plata, 563 U.S. 493, 531-32 (2011) (upholding lower court’s order releasing people from state prison even though release was based on prospect of future harm caused by prison overcrowding); see also Farmer v. Brennan, 511 U.S. 825, 834 (correctional official violates Eighth Amendment by consciously failing to prevent “a substantial risk of serious harm”); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“deliberate indifference” to serious medical needs violate the Eighth Amendment).27 The risk of exposure to a deadly
27 Named Petitioners are convicted and therefore their treatment is governed by the Eighth Amendment. Class members who are detained for pretrial purposes, however, are protected from deliberate indifference by the Fifth Amendment. Although pretrial class members may be entitled to even greater protection from unsafe conditions than convicted class members, Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial
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infectious disease such as COVID-19 constitutes a serious risk to health, particularly for the Petitioners and the vulnerable class members described herein. Helling v. McKinney, 509 U.S. 25, 34 (1993) (noting with approval Eighth Amendment claims based on exposure to serious contagious diseases). Under the MDC’s current conditions, Respondent has not and cannot protect Petitioners and the class from this risk of serious harm. In these circumstances, release is the only means of protecting Petitioners and the class they seek to represent from unconstitutional treatment.
100. Government officials act with deliberate indifference when they “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” even when “the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33. This Court need not “await a tragic event” to find that Respondent is maintaining unconstitutional conditions of confinement. Id. Instead, showing that the conditions of confinement “pose an unreasonable risk of serious damage to [Petitioners’] future health” is sufficient. Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (quoting Helling, 509 U.S. at 35) (alteration omitted); see also Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012) (incarcerated people “may not be exposed to conditions that pose an unreasonable risk of serious damage to [their] future health.”) (citation and internal quotation marks omitted).
101. The reach of the Fifth and Eighth Amendments includes “exposure of inmates to a serious, communicable disease.” Helling, 509 U.S. at 33; see also Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an affirmative obligation to protect [forcibly confined] inmates from infectious disease”).
detainee not be punished.”), for present purposes the distinction is immaterial because Respondent’s continued detention of the class plainly violates the Eighth Amendment.
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102. In this case, as established by the facts above, Petitioners face a significant risk of exposure to coronavirus, with the attendant risk of death that follows given their vulnerable conditions. Respondent is well aware of this risk, having been alerted to it by the CDC, the Attorney General, and advocates such as the Federal Defenders. Indeed, the Second Circuit Court of Appeals, unprompted, acknowledged the “grave and enduring” risk posed by COVID19 in the correctional context. Fed. Defs. of New York, Inc. v. Fed. Bureau of Prisons, No. 191778, __ F.3d __, 2020 WL 1320886, at *12 (2d Cir. Mar. 20, 2020); see also Jovel v. Decker, No. 20 Civ. 308, 2020 WL 1467397, at *1 (S.D.N.Y. Mar. 26, 2020) (finding “extraordinary circumstances” of COVID-19 pandemic justified release of immigration detainee from federal detention); United States v. Little, No. 20 Cr. 57, 2020 WL 1439979, at *4 (S.D.N.Y. Mar. 24, 2020) (“As additional people are arrested who have been out in the community as the coronavirus spreads, if they are not symptomatic, they will be brought into the MCC and MDC, and held with the existing population, potentially bringing COVID-19 into this population held in large numbers, close quarters, and low sanitary conditions.”)
103. Finally, as established above, Respondent has not taken steps sufficient to protect Petitioners from the grave risks that are present every moment they are in detention in the MDC. Respondent simply is not capable of managing the risk to Petitioners in the MDC’s current environment. Whether judged under the Fifth or Eighth Amendment, Respondent is holding Petitioners in violation of the Constitution by detaining them in the face of significant threats to their health and safety without taking sufficient steps to prevent that harm. III. Next Friends Have Standing to Assert the Interests of Real Parties In Interest
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104. Migdaliz Quinones is the life partner of Petitioner Ayman Rabadi and brings this action on his behalf to seek his release from custody. Ms. Quinones and Mr. Rabadi have known each other for 36 years.
105. Jacklyn Romanoff is the mother of Justin Rodriguez. 106. In the habeas context, a “next friend” may assert the interest of an incarcerated person so long as they have a sufficient personal connection to the real-party-in-interest and there are barriers that prevent the real-party-in-interest from asserting his rights directly. In Whitmore v. Arkansas, 495 U.S. 149 (1990), the Supreme Court recognized that “next friend” standing “has long been an accepted basis for jurisdiction in certain circumstances,” usually “on behalf of detained prisoners who are unable, usually because of mental incompetence or inaccessibility, to seek relief themselves.” Id. at 162. 107. The requirement of inaccessibility is met here, where Petitioners Rabadi and Rodriguez cannot easily communicate with counsel because of the current lockdown at the MDC. See Warren v. Cardwell, 621 F.2d 319, 321 n.1 (9th Cir. 1980) (finding next friend standing met where petitioner “could not sign and verify the petition because the prison was locked down”) (internal quotation marks omitted); cf. Padilla v. Rumsfeld, 352 F.3d 695, 703 (2d Cir. 2003), rev'd and remanded on other grounds, 542 U.S. 426, 124 S. Ct. 2711, 159 L. Ed. 2d 513 (2004) (holding that inaccessibility can be established when the petitioner is being held “incommunicado”). 108. The requirement of a close personal relationship is met here as well. See Smith ex rel. Missouri Public Defender Comm’n v. Armontrout, 812 F.2d 1050, 1053 (8th Cir.1987) (sufficiency of brothers' relationship for “next friend” standing undisputed); Hays v. Murphy, 663 F.2d 1004, 1009 (10th Cir.1981) (no dispute that defendant's mother proper party to seek
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“next friend” action); see also Padilla, 352 F.3d at 703-04 (finding that attorney who had represented petitioner could serve as next friend).
CLASS ACTION ALLEGATIONS 109. Petitioners bring this representative habeas action pursuant to 28 U.S.C. § 2241 and, alternatively, as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on their own behalf and on behalf of all persons similarly situated. 110. Petitioners seek to represent a class consisting of all current and future detainees in custody at the MDC during the course of the COVID-19 pandemic (the “Class”). 111. The members of the Class are too numerous to be joined in one action, and their joinder is impracticable. Upon information and belief, the class exceeds 1,700 individuals. 112. Common questions of law and fact exist as to all Class members and predominate over questions that affect only the individual members. These common questions of fact and law include but are not limited to: (1) whether the conditions of confinement described in this Petition amounts to Constitutional violations; (2) what measures Respondent took in response to the COVID-19 Crisis; (3) whether Respondent implemented an adequate emergency plan during the COVID-19 Crisis; (4) whether Respondent’s practices during the COVID-19 Crisis exposed people at the MDC to a substantial risk of serious harm; (5) whether the Respondent knew of and disregarded a substantial risk of serious harm to the safety and health of the Class; and (7) what relief should be awarded to redress the harms threatened to members of the Class as a result of the conditions. 113. Absent class certification, individuals detained at the MDC during the COVID-19 pandemic would face a series of barriers in accessing the relief sought. The MDC has suspended visitation and MDC detainees have limited access to communication with the outside world, impeding their ability to obtain legal representation and pursue litigation. A large portion of the
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Class has limited educational backgrounds. And a significant percent of them suffer from physical or mental impairments.
114. Respondent’s practices and the claims alleged in this Petition are common to all members of the Class.
115. The claims of Petitioners are typical of those of the Class. Petitioners are threatened with imminent inhumane conditions of confinement at the MDC.
116. The legal theories on which Petitioners rely are the same or similar to those on which all Class members would rely, and the harms suffered by them are typical of those suffered by all the other Class members.
117. Petitioners will fairly and adequately protect the interests of the Class. The interests of the Class representatives are consistent with those of the Class members. In addition, counsel for Petitioners are experienced in class action and civil rights litigation.
118. Counsel for Petitioners know of no conflicts of interest among Class members or between the attorneys and Class members that would affect this litigation.
119. Use of the class action mechanism here is superior to other available methods for the fair and efficient adjudication of the claims and will prevent the imposition of undue financial, administrative, and procedural burdens on the parties and on this Court, which individual litigation of these claims would impose.
120. This class action is superior to any other method for the fair and efficient adjudication of this legal dispute, as joinder of all Class members is impracticable.
121. There will be no extraordinary difficulty in the management of this class action.
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FIRST CAUSE OF ACTION (Declaratory and Injunctive Relief for Violation of the Fifth and Eighth Amendments) 122. Petitioners incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 123. Petitioners bring this claim on their own behalf and on behalf of the Class. 124. The Due Process Clauses guarantees pretrial detainees the right to be detained in a safe situation, free from punitive conditions of confinement. See U.S. Const. Amend V. The government violates that guarantee where a widespread outbreak of a contagious disease subjects detainees to inhumane conditions without adequate protection. 125. The Eighth Amendment guarantees post-conviction detainees the right to necessary and adequate medical care. See U.S. Const. Amend VIII. The Government’s failure to provide adequate medical care in response to a widespread outbreak of a contagious disease constitutes deliberate indifference to the serious medical needs of detainees, thereby establishing a violation of the Eighth Amendment of the United States Constitution. 126. Because of the conditions at the MDC, Petitioners are not able to take steps to protect themselves—such as social distancing, using hand sanitizer, or washing his hands regularly—and the government has not provided adequate protections. As COVID-19 rapidly spreads, the already deplorable conditions at the MDC will be exacerbated, and the ability to protect oneself will become even more impossible. 127. Respondent’s failure to adequately protect Petitioners from these punitive conditions, or release them from the conditions altogether, constitutes an egregious violation of Petitioners’ due process rights and deliberate indifference to the serious medical needs of Petitioners, and all members of the Class, thereby establishing a violation of the Eighth Amendment of the United States Constitution.
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128. Respondent was aware or should have been aware of these conditions, which were open and obvious throughout the entire jail.
129. Respondent knew of and disregarded an excessive risk to health and safety. 130. Respondent failed to act with reasonable care to mitigate these risks. 131. Because Respondent failed to act to remedy Petitioners’ and the Class’s degrading and inhuman conditions of confinement in violation of their Fifth and Eighth Amendment rights, Petitioners seek relief under this Writ of Habeas Corpus. 132. Because of the unlawful conduct of Respondent, Petitioners and the Class are threatened with immanent physical injury, pain and suffering, emotional distress, humiliation, and death.
PRAYER FOR RELIEF WHEREFORE, Petitioners and the Class members respectfully request that the Court enter a class-wide judgment:
A. Ordering immediate release of vulnerable persons, with appropriate precautionary public health measures, including Petitioner Rabadi (scheduled to be released on 7/19/2020); Petitioner Rodriguez (scheduled to be released on 6/9/2020); Petitioner Lopez (scheduled to be released on 7/28/20); Petitioner Hair (scheduled to be released on 8/15/26); and all others confined at the MDC who Respondent has identified as medically vulnerable due to underlying health conditions or age (“Vulnerable Persons”)—and therefore at higher risk of developing serious COVID-19 illness;
B. Ordering Respondent to mitigate the serious risk of illness, death, and harm from COVID-19 to those who remain confined at the MDC;
C. Certifying this Petition as a Class Action;
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D. Appointing a Special Master on an emergency basis to Chair a Coronavirus Release Committee to evaluate Vulnerable Persons and make recommendations for ameliorative action for other persons at the MDC; and
E. Ordering such other and further relief as this Court deems just, proper and equitable.

Dated: New York, New York April 23, 2020

EMERY CELLI BRINCKERHOFF & ABADY LLP
By: /s/ Katherine R. Rosenfeld Katherine R. Rosenfeld O. Andrew F. Wilson Samuel Shapiro Scout Katovich 600 Fifth Avenue, 10th Floor New York, NY 10020 (212) 763-5000
CARDOZO CIVIL RIGHTS CLINIC Betsy Ginsberg Cardozo Civil Rights Clinic Benjamin N. Cardozo School of Law 55 Fifth Avenue, 11th Floor New York, NY 1003 (212) 790-0871
Alexander A. Reinert 55 Fifth Avenue, Room 1005 New York, NY 1003 (212) 790-0403
Attorneys for Petitioners and Putative Class

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EXHIBIT 1

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; and JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

20 Civ
DECLARATION OF DEIRDRE D. VON DORNUM

I, Deirdre D. von Dornum, an attorney duly admitted to practice in the Eastern District of New York, declare under penalty of perjury and pursuant to 28 U.S.C. § 1746:
1. I am the Attorney-in-Charge for the Eastern District of New York at the Federal Defenders of New York, Inc. (the “Federal Defenders”).
2. I submit this declaration upon personal knowledge in connection with this Class Action Petition Seeking Writ of Habeas Corpus. Efforts of the Federal Defenders to Address Impact of Coronavirus on Our Clients
3. Starting on March 4, 2020 and continuing to date, my office has engaged in extensive efforts to address the serious health risk posed by the spread of COVID-19 to medically vulnerable individuals confined at the Metropolitan Detention Center in Brooklyn (“MDC”) and other federal jails.

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4. My office has consulted at length with representatives of the Federal Bureau of Prisons (“BOP”) to address how it will respond to the coronavirus outbreak and protect people at MDC and MCC. We initially requested that the BOP take the following measures:
a. Make public the MDC’s plans and policies for preventing a coronavirus outbreak and responding to detained people who contract coronavirus;
b. Put in place a comprehensive testing protocol for inmates and staff; c. Increase sanitation and hygiene in the facility, including increased cleaning of
the housing units and making soap and tissues freely available to inmates; d. Provide for isolating anyone who tests positive for the coronavirus at a
hospital or other medical facility, not at the jail; e. Ensure that the jail is not locked down to social and legal visitors in response
to the epidemic so that lawyers and family members can have continued access to their clients and loved ones; and f. Coordinate with the Courts and U.S. Attorneys’ Offices in advance to ensure that only in extraordinary circumstances should any new arrestee be detained at the jails during the epidemic, and no one should be admitted without testing. (Attached hereto as Exhibit A is a true and complete copy of a string of email correspondence including the March 8, 2020 Email of David Patton, Executive Director, Federal Defenders of New York to Nicole McFarland, Supervisory Attorney, MDC Brooklyn, and MDC Associate Warden Andy Cruz). 5. For four days after these specific requests were made and repeated efforts were undertaken to engage the MDC in substantive discussion on this issue, the only response the
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Federal Defenders received was that our requests were “under consideration.” (See Exhibit A including a copy of the March 9, 2020 Email of Holly Pratesi, Attorney, MDC Brooklyn to David Patton).
6. On March 11, 2020, at the request of the Chief Judge of the Eastern District of New York, MDC Attorney Holly Pratesi and MDC Associate Warden Andy Cruz attended a special meeting of the EDNY Facilities Security Committee focused on coronavirus issues and discussed, for the first time, some of the issues raised by Federal Defenders. At that meeting Associate Warden Cruz indicated that the MDC was still receiving guidance from national BOP leadership as to how to handle the coronavirus epidemic. In response to specific questions, Associate Warden Cruz stated that:
a. the facility could not make public its plans or protocols for coronavirus because of security considerations;
b. there was no testing protocol in place, except for the temperature readings of those inmates being brought to court (by order of the Chief Judge) and the facility did not anticipate having a testing protocol;
c. staff were being asked to self-report if they had traveled to what were then the designated hotspot countries or had been exposed to someone known to have coronavirus;
d. it was unclear if staff who presented with risk factors and were sent home would be on paid or unpaid leave, because that is a national BOP decision;
e. the MDC had placed soap in the lobby bathroom for visitors, intended to provide a bar of soap to each inmate and to ask the inmate orderlies to
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increase cleaning, but could not provide hand sanitizer to inmates, and neither staff nor visitors would be allowed to bring in hand sanitizer; f. the MDC did not yet know where any inmate who tested positive would be placed; g. the MDC did not believe it would be feasible to use the empty floors in the East (or “old”) building of the MDC to house symptomatic or positive inmates; h. the MDC did not intend to do a lockdown on social or legal visitation; i. the MDC would continue to accept new arrests; j. the MDC would screen new arrests for symptoms of COVID-19 and would ask newly arriving inmates if they had traveled recently outside the United States; and k. the MDC had no plans to move or segregate vulnerable inmates but would make an effort to identify which inmates fell under the CDC’s definition of vulnerable. 7. On March 12, 2020, the Federal Defenders followed up with additional questions to Ms. Pratesi and Associate Warden Cruz concerning the availability of professional sanitization, any effort to “cohort” vulnerable inmates, and whether the City or State Departments of Health would be contacted if an inmate was symptomatic for COVID-19. 8. On March 13, 2020, the Federal Defenders learned from an associated press report (https://www.nytimes.com/aponline/2020/03/13/us/poliotics/ap-us-virus-outbreak-federalprisons.html) that all BOP facilities would be closed to legal and social visitation for the next 30 days. The Federal Defenders and other defense counsel were subsequently specifically informed
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by email from Supervisory Attorney McFarland that MDC would be closed to legal visitation for this 30-day period. (Attached hereto as Exhibit B is a true and complete copy of a March 13, 2020 email from Seth D. Eichenholtz, Deputy Chief, Civil Division, United States Attorney’s Office forwarding the email from Supervisory Attorney McFarland.)
9. Beginning on March 14, 2020 and continuing through March 19, 2020, Federal Defenders spoke to over a hundred clients by telephone. The clients uniformly observed that:
a. there had been no change in sanitation practices at the facility; b. only some of the units had received the bars of soap; c. education on the symptoms of COVID-19 or how to curb its spread is limited
to posters on the walls and a 10 minute presentation on each unit to large groups of inmates that consisted of reading from a CDC pamphlet that largely advised to “Stay at home” and “Avoid gatherings”; d. no doctors came to the units to check on anyone; and e. inmates understand that staff are being given temperature checks as they entered the facility, but staff on the unit were not wearing gloves, masks, or other protective gear in the facility. 10. On March 16, 2020, Federal Defenders made a formal request to the MDC that David Patton and I be allowed to tour the facility (and MCC New York) on a twice-weekly basis during the 30-day lockdown to monitor conditions, given the lack of legal and social access. We expressed concern about inaccurate information regarding inmate conditions that had been provided to Federal Defenders and the courts by the MDC during the prolonged lockdown during the blackout of the facility in the winter of 2019. (Attached as Exhibit C is a true and complete copy of a letter from David Patton to Nicole McFarland.) On March 17, 2020, the Warden of MCC
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denied this request as to both facilities. (Attached as Exhibit D is a true and complete copy of a March 17, 2020 letter from Warden M. Licon-Vitale to David Patton.)
11. On March 20, 2020, at a special teleconference regarding COVID-19 convened by the Chief Judge of the Southern District of New York, the Warden of MDC, Derek Edge stated that:
a. 537 inmates at the MDC fell into categories identified by the CDC as particularly vulnerable to COVID-19;
b. the facility had 9 nasal swab test kits; c. one inmate had been swabbed at the facility and his test results came back
negative; d. two inmates had been sent to the hospital for testing: one was sent back
without being tested; the other was back in the facility and test results were awaited; and e. staff were being screened for elevated temperatures as they entered the facility and sent home if they had a temperature over 100.4 degrees Fahrenheit based on a temporal thermometer. 12. On March 21, 2020, Federal Defenders learned from Twitter that an inmate at the MDC had tested positive; this was subsequently confirmed on the national BOP website. (https://twitter.com/bradlander/status/1241545847994753026; https://www.bop.gov/resources/ news/20200326_statement_from_director.jsp.) We immediately asked the MDC to inform us whether the inmate was hospitalized or being held at the facility and what steps were being taken to identify inmates and staff who had been exposed to the inmate who tested positive. The MDC informed Federal Defenders that the inmate was back at the facility in isolation in an unspecified
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location and that appropriate steps were being taken to identify inmates and staff who had been exposed to the inmate. The MDC stated that the unit on which the inmate who had tested positive had been housed would be locked down over the weekend, as would several other units, and the intake unit would undergo a “deep clean” before being re-opened to inmate movement.
13. From speaking to correctional staff and inmates housed on the unit adjacent to the one in which the inmate who tested positive had been housed, Federal Defenders has learned that:
a. the inmate who tested positive had been housed on the “intake” unit on the 4th floor of the institution for approximately one week before testing positive;
b. at the time the inmate was admitted to the institution he had been asymptomatic;
c. the inmate developed symptoms within three days of his admission; d. during that time the inmate had been in contact with many inmates and staff
on the intake unit, as well as inmates from the MCC whom he had come into contact with at the courthouse when first arrested; e. during that time other inmates from the intake unit, who would have been exposed to the positive inmate, were transferred into other units within the facility; f. no professional or staff cleaners sanitized the intake unit after the inmate tested positive, but, instead the inmate orderlies on the adjacent unit were sent to clean the intake unit with the same cleaning supplies they regularly use and were provided insufficient gloves and masks; g. new inmates from other institutions who are in transit to their designated facilities were added to the intake unit on March 20, 2020, the day before the
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inmate on that unit tested positive; h. inmates had been directed by executive staff to report other inmates who they
believed might be symptomatic; i. inmates were fearful of reporting their own or others’ symptoms because they
had heard that if you were symptomatic you would be placed in “the box”; and j. no doctors had come to the unit adjacent to the intake unit to check on inmates. 14. Federal Defenders has asked the MDC how the inmate who tested positive is being cared for, and how other symptomatic inmates are being checked on. Few details have been provided, but the facility has stated that the positive inmate and other symptomatic inmates are being held in single cells on a separate unit; doctors are checking on the positive inmate and other symptomatic inmates twice a day, taking temperature readings, and providing Tylenol. Federal Defenders has not been informed how many inmates are symptomatic, quarantined or isolated, in addition to the inmate who tested positive. 15. On March 24, 2020, MDC stated that it will continue to accept new inmates. 16. On March 25 and 26, 2020, Federal Defenders spoke to inmates from various units in the facility and learned that: a. the female inmates are continuing to be asked to launder all inmate uniforms, including those of the male inmates, and are concerned that this may include uniforms from the intake unit, where the inmate tested positive; b. no doctors have come to the female or male units. Medical staff only visit inmates if the inmates volunteer that they have symptoms;
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c. the phones and computers on the units are not being cleaned; d. at mealtime, the inmates are directed to line up shoulder to shoulder; e. a correctional officer who works on unit 62 was removed from the unit by a
supervisor after repeatedly coughing; and f. inmates have heard that staff who work in the medical unit at MDC have
tested positive, but have not been officially notified of that. 17. On March 26, 2020, the Federal Defenders was informed by Congresswoman Nydia Velazquez’s office that three staff members at the MDC have tested positive and a number of others are symptomatic. 18. My office has submitted numerous bail applications in recent weeks to request that individuals confined at MDC be released to protect them from COVID-19 exposure and lessen the health risks to the jail population as the virus spreads. 19. On March 23, 2020, at the request of Chief Judge Mauskopf, we received a list generated by the facility of approximately 537 individuals confined at MDC whom the facility classified as “vulnerable” to COVID-19 within the CDC’s definition. As of March 27, 2020, Federal Defenders will have notified the lawyer for each of the 537 vulnerable inmates that the inmate has been so identified. A number of the inmates on the list are sentenced inmates designated to serve their sentence at the MDC; most of those inmates no longer have court-appointed lawyers. Federal Defenders is directly assisting these inmates. 20. On March 26, 2020, Federal Defenders wrote to the MDC Legal Department, identifying 11 vulnerable inmates who are already eligible for home confinement (because they are almost done serving their sentences) and urging the MDC to immediately evaluate these 11 vulnerable inmates for release to the community, consistent with their statutory authority to do so
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and the urging of Attorney General Barr to the BOP to exercise this authority to prioritize inmates deemed vulnerable to COVID-19. (Attached as Exhibit E is a true and complete copy of a March 26, 2020 Memorandum of The Attorney General, Regarding Prioritization of Home Confinement As Appropriate Response to COVID-19 Pandemic.)
21. No response has yet been received from the MDC. 22. I am familiar with the administrative remedy procedure at the MDC, which requires an inmate to obtain a “cop-out” (BP-8) form from the unit manager, complete and submit it, wait 20 days to receive a response, then obtain a BP-9 form, complete and submit it, wait an additional 20 days to receive a response, then obtain a BP-10 form, complete and submit it, wait 30 days to receive a response, and finally obtain a BP-11 form, complete and submit it and wait 40 days to receive a response. Given the rapidity with which COVID-19 is spreading in New York City and the vulnerability of so many of the inmates held at MDC Brooklyn, pursuing this lengthy process would be futile at best, in my view, particularly since, although it may be suited for resolving more administrative issues such as the calculation of telephone charges or the inability to access a Corrlinks email account, I have never seen it effectively used to obtain release of an inmate. 23. As detailed above, Federal Defenders has taken extensive and extraordinary measures in order to effect the release of vulnerable persons confined at MDC, and to mitigate the potential impact of a coronavirus outbreak in the facility. We have explored and attempted all the available avenues to protect our clients. However, Federal Defenders remains deeply concerned that our clients will be exposed, sickened, or potentially face serious illness or death because of MDC’s inadequate and slow response to this public health crisis, and its lack of medical facilities.
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Conditions at MDC that Create Risk of a Widespread Outbreak 24. I have been inside MDC on numerous occasions, including visiting each of the
housing units, and am familiar with its physical layout and the living conditions in the facility. 25. There are approximately 1,700 people confined in MDC at this time. 26. Many people confined at MDC share small two-person cells originally designed for
one person, with a shared toilet and sink. People continue to be double-celled as of today. Some people are confined in large, dormitory style settings with as many as 70 people sharing a large sleeping space and beds spaced only 3 to 5 feet apart.
27. People confined at MDC must frequently share or touch objects used by others. Toilets, sinks, and showers are shared, without disinfection between each use.
28. Phones and computer terminals are all shared by numerous people, without disinfection between each use.
29. Food preparation (by inmates) and service (by inmates) is communal with little opportunity for surface disinfection. Meals are eaten together in large groups.
30. No hand sanitizer is available to inmates at MDC. 31. Tissues are not readily available. Inmates use toilet paper to blow their noses. 32. Inmates are responsible for sanitizing the housing unit common areas, and frequently lack adequate cleaning supplies to do so. This practice continues to date. 33. Correctional staff who live in New York, New Jersey, and Pennsylvania are entering and leaving the facility every day and arrive and leave on a shift basis. Hand sanitizer is not available to staff even in non-inmate accessible areas. Each staff member can choose whether or not to wear gloves or a mask during his or her work with inmates. Not all are choosing to do so.
11

Case 1:20-cv-01590-RPK-RLM Document 60-1 Filed 04/23/20 Page 13 of 30 PageID #: 937
34. New inmates continue to arrive at MDC as recently as this week. These new inmates are screened only for fever and recent travel to designated hotspot countries. MDC is Not Educating or Sharing Information with People Confined at the Facility
35. The BOP has not informed people who are confined at MDC of the symptoms of COVID-19, or of how to prevent the spread of the infection, except through posters on the walls of the units and general exhortations to wash their hands and practice social distancing.
36. People who are at lower risk of becoming seriously ill from the virus are not separated from those who are at higher risk (because of age and/or pre-existing medical conditions). Instead, they are mixed together in open dorms or small two-man cells and locked together in those cells for at least 10 out of every 24 hours.
37. The facility has not informed the inmate population of what the protocol will be for symptomatic inmates. Absent a transparent protocol, inmates in correctional settings often fear they will be confined in solitary if they volunteer that they are symptomatic. MDC is Not Medically Equipped to Address a Coronavirus Outbreak
38. As of March 20, 2020, MDC had only nine COVID-19 test kits. 39. MDC currently has no ventilators. 40. MDC cannot intubate inmates on-site. 41. There is no separate medical unit or facility for ill inmates. Unlike many Federal Correctional Institutions and even Rikers’ Island, MDC has no physical space in which an ill inmate can convalesce that is separate from other inmates, warm, clean and has access to fresh water and regular hand-washing. MDC has declined to create a separate medical unit in the facility. 42. There are only three doctors available at MDC to care for all 1700 inmates. None of these doctors specialize in infectious diseases.
12

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Case 1:20-cv-01590-RPK-RLM Document 60-1 Filed 04/23/20 Page 22 of 30 PageID #: 946
Exhibit C

Case 1:20-cv-01590-RPK-RLM Document 60-1 Filed 04/23/20 Page 23 of 30 PageID #: 947

Federal Defenders
OF NEW YORK, INC.
David Patton
Executive Director and Attorney-in-Chief

52 Duane Street -10th Floor, New York, NY 10007 Tel: (212) 417-8700 Fax: (212) 571-0392

March 16, 2020
VIA EMAIL
Nicole McFarland Holly Pretasi MCC/MDC Legal Counsel
Re: Federal Defender Access to the MCC and MDC
Dear Nicole and Holly:
I write in response to Friday’s announcement that the BOP was immediately instituting a 30-day suspension of social and legal visiting at all federal detention facilities, including the MCC in Manhattan and the MDC in Brooklyn, with the possibility of a renewed suspension in 30 days’ time. As you know, the Federal Defenders have tried to engage with the BOP about its plans to prevent and contain a COVID-19 outbreak at the MCC and MDC, and expressed specific concerns about treating those facilities entirely as places of “quarantine” and cutting inmates off from their lawyers and loved ones as a result. The BOP’s recently announced plans are exactly what we feared. Although we appreciate the severity of the health risks that COVID19 poses, it appears that the BOP has not considered alternative ways in which it can protect the health of inmates and facility staff while respecting inmates’ constitutional rights.
Shutting down visitation not only directly burdens these rights, but also puts inmates at risk of additional harm. During recent lockdown periods, inmates have been denied warm food, fresh drinking water, adequate medical treatment, and the ability to engage in even minimal hygiene. And without regular access to their counsel, inmates lose the primary means of addressing these issues in real time.
The BOP has further frustrated the Federal Defenders’ efforts to help their clients through such crises by providing the Defenders’ and other stakeholders inaccurate or incomplete information. For instance, less than two weeks ago, after shutting down the MCC in response to a tip that a corrections officer had smuggled a gun into the facility, the BOP moved more than 150 inmates to FCI Otisville. Warden Licon-Vitale informed both the Federal Defenders and Chief Judge McMahon that none of the transferred inmates was a pre-trial detainee, but rather all were designated inmates who were in holding status at the MCC. In fact, the majority of the transferees were pre-trial detainees, and several had impending court appearances that had to be cancelled as a result of their transfer.

Case 1:20-cv-01590-RPK-RLM Document 60-1 Filed 04/23/20 Page 24 of 30 PageID #: 948

Nicole McFarland/Holly Pratesi Re: Federal Defenders’ Access to MCC/MDC

March 16, 2020

In addition, BOP officials informed the Federal Defenders that inmates were receiving necessary medical treatment, provided one hot meal a day, and permitted to shower, in line with BOP policy. Yet, scores of inmates with no relationship to one another reported the exact opposite. Certain inmates did not receive medications, including for anemia, AIDS and diabetes, many reported receiving only cold (and in some cases frozen) food for days on end, and others went almost a week without fresh drinking water, a shower or change of clothing. For twelve days, menstruating women had one pair of underwear and no hygiene products, and were told by corrections officers to “stuff tissue up there.”
The Federal Defenders uncovered similar misstatements by BOP leadership in the aftermath of the electrical fire that resulted in the cancellation of visiting at the MDC in February 2019. Then-Warden Herman Quay represented to court officials that inmates had not been confined to their cells, that neither heat nor hot water had been impacted, that inmates continued receiving hot meals, and that there had been no disruption of medical care. Yet when Chief Judge Irizarry issued an administrative order permitting Deirdre von Dornum, Attorney-in-Charge for the Federal Defenders in the Eastern District, to access the facility, the reality that Ms. von Dornum and U.S. Attorney Investigator John Ross discovered was markedly different than what Warden Quay had reported. Cells were pitch black, and a guard informed Ms. von Dornum that some inmates had not been allowed outside of their cells for a week. Other inmates had not received hot food for days, and the facility was painfully cold, causing BOP officers to wear multiple layers while inmates suffered in short-sleeved shirts and light cotton pants. Many inmates reported not receiving prescriptions, and others said that they had requested, but not received, medical attention, including for open wounds, which Ms. von Dornum and Mr. Ross observed first-hand.
We have deep concerns about what the over 2000 inmates at the MCC and MDC are experiencing. We intend to play a constructive role in helping the BOP navigate the challenges that COVID-19 presents, while continuing to demand that the rights of our clients and other inmates at the MCC and MDC are respected. It is our understanding that this is exactly what the BOP expects of us. In fact, the government has represented to at least one Southern District judge that it thinks that it “makes sense to have [the Federal Defenders] continue to be . . . the point people for discussion” about the BOP’s plans relating to COVID-19. Tr. at 15, United States v. Holloway, No. 20 Cr. 126 (S.D.N.Y. Mar. 12, 2020) (conference before Hon. Laura Taylor Swain).

Case 1:20-cv-01590-RPK-RLM Document 60-1 Filed 04/23/20 Page 25 of 30 PageID #: 949

Nicole McFarland/Holly Pratesi Re: Federal Defenders’ Access to MCC/MDC

March 16, 2020

To perform this role effectively, the Federal Defenders request that Deirdre von Dornum and I be permitted to tour the MCC and MDC, and speak with inmates in all units, on a twice-aweek basis, for the duration of the current 30-day shutdown. We are prepared to take the same health precautions as corrections officers who continue to work in the facilities, as well as any additional measures medically necessary to protect the health of inmates and staff, as well as our own health.
I ask that you respond to this request no later than noon on Tuesday, March 17.
Yours truly,
/s David E. Patton
cc: Jeff Oestericher, Chief, Civil Division (SDNY) Seth Eichenholtz, Deputy Chief, Civil Division (EDNY) Adam Johnson, BOP Regional Counsel

Case 1:20-cv-01590-RPK-RLM Document 60-1 Filed 04/23/20 Page 26 of 30 PageID #: 950
Exhibit E

Case 1:20-cv-01590-RPK-RLM Document 60-1 Filed 04/23/20 Page 27 of 30 PageID #: 951
<@ffite of t~e 1\ttorntl;! ~rneral
Bnsqingtnn,ID. QI. 20530

March 26, 2020

MEMORANDUM FOR DIRECTOR OF BUREAU PRISONS

FROM:

( J f ~ THEATTORNEYGENERAL

SUBJECT:

Prioritization of Home Confinement As Appropriate in Response to COVID-1 9 Pandemic

Thank you fo r your tremendous service to our nation during the present crisis. The current situation is challenging for us all, but I have great confidence in the ability of the Bureau of Prisons (BOP) to perform its critical mission during these difficult times. We have some of the best-run prisons in the world and I am confident in our ability to keep inmates in our prisons as safe as possible from the pandemic currently sweeping across the globe. At the same time. there are some at-risk inmates who are non-vio lent and pose minimal likelihood of recidivism and who might be safer serving their sentences in home confinement rather than in BOP fac ilities. I am issu ing this Memorandum to ensure that we utilize home confinement, where appropriate, to protect the health and safety of BOP personnel and the people in our custody.
I. TRANSFER OF INMATES TO HOME CONFINEMENT WHERE APPROPRIATE TO DECREASE THE RISKS TO THEIR HEALTH
One of BOP's tools to manage the prison population and keep inmates safe is the ability to grant certain eligible prisoners home confinement in certain c ircumstances. I am hereby directing you to prioritize the use ofyour various statutory authorities to grant home confinement fo r inmates seeking transfer in connection with the ongoi ng COVID-1 9 pandemic. Many inmates wil l be safer in BOP faci lities where the population is controlled and there is ready access to doctors and medical care. But for some e ligible inmates, home confinement might be more effective in protecting their health.
In assessing which inmates should be granted home confinement pursuant to this Memorandum, you are to consider the totality of circumstances for each individual inmate, the statutory requirements for home confinement, and the following non-exhaustive list of discretionary factors:
• The age and vulnerability of the inmate to COVID-1 9, in accordance with the Centers for Disease Control and Prevention (CDC) guidelines;

Case 1:20-cv-01590-RPK-RLM Document 60-1 Filed 04/23/20 Page 28 of 30 PageID #: 952

Memorandum from the Attorney General Subject: Department of Justice COVID-1 9 Hoarding and Price Gouging Task Force

Page 2

• The security level of the facility currently holding the inmate, w ith priority given to inmates residing in low and minimum security facilities;
• The inmate's conduct in prison, with inmates who have engaged in violent or gangrelated activity in prison or who have incurred a BOP violation within the last year not receiving priority treatment under this Memorandum;
• The inmate's score under PATTERN, with inmates who have anything above a minimum score not receivin g priority treatment under this Memorandum;
• Whether the inmate has a demonstrated and verifiable re-entry plan that will prevent recidivism and maximize public safety, including verification that the conditions under which the inmate would be confined upon release would present a lower risk of contracting COVID-1 9 than the inmate would face in his or her BOP facility;
• The inmate's crime of conviction, and assessment of the danger posed by the inmate to the community. Some offenses, such as sex offenses, will render an inmate ineligible for home detention. Other serious offenses should weigh more heavily against consideration for home detention.
In addition to considering these factors, before granting any inmate discretionary release, the BOP Medical Director, or someone he designates, will, based on CDC guidance, make an assessment of the inmate ' s risk factors for severe COVID-1 9 illness, risks of COVID-1 9 at the inmate' s prison faci lity, as well as the risks of COVID- 19 at the location in which the inmate seeks home confinement. We should not grant home confinement to inmates when doing so is likely to increase their risk of contracting COVID-1 9. You should grant home confi nement only when BOP has determined-based on the totality of the circumstances for each individual inmate-that transfer to home confinement is likely not to increase the inmate' s risk of contracting COVID-19.
II. PROTECTING THE PUBLIC
While we have an obli gation to protect BOP personnel and the people in BOP custody, we also have an obligation to protect the public. That means we cannot take any risk of transferring inmates to home confinement that will contribute to the spread of COVID-1 9, or put the p ublic at risk in other ways. I am therefore directing you to place any inmate to whom you grant home confinement in a mandatory 14-day quarantine period before that inmate is discharged from a BOP faci lity to home confinement. Inmates transfened to home confinement under this prioritized process should also be subject to location monjtoring services and, where a court order is entered, be subj ect to supervised release.
We must do the best we can to minimize the risk of COVID-1 9 to those in our custody, while also minjmizing the risk to the public. I thank you for your service to the country and assistance in implementing this Memorandum.

Case 1:20-cv-01590-RPK-RLM Document 60-1 Filed 04/23/20 Page 29 of 30 PageID #: 953
Exhibit D

Case 1:20-cv-01590-RPK-RLM Document 60-1 Filed 04/23/20 Page 30 of 30 PageID #: 954 U.S. Department of Justice Federal Bureau of Prisons
Metropolitan Co"ectional Center
J50Parlc Row New York, NY /0007
March 17, 2020
David Patton Executive Director Federal Defenders of New York, Inc. 52 Duane Street - 10th Floor New York, NY 10007
RE: Federal Defender Access to the MCC and MDC
Dear Mr. Patton: We are writing in response to your March 16, 2020, letter in which you request that you
and Ms. Deirdre von Domum be permitted to tour MCC New York and MDC Brooklyn.
In accordance with the Federal Bureau of Prisons' March 13, 2020, National Measures, your request to tour the institutions was sent to the Federal Bureau of Prisons' Central Office for review. After review, your request to tour the institutions was denied.
MCC New York and MDC Brooklyn will continue to keep your office apprised of any appropriate developments concerning their COVID-19 response. Your request to tour the institutions may be revisited at a later date.
Sincerely,
. Licon-Vitale Warden MCC New York
--
oklyn

Case 1:20-cv-01590-RPK-RLM Document 60-2 Filed 04/23/20 Page 1 of 12 PageID #: 955
EXHIBIT 2

Case 1:20-cv-01590-RPK-RLM Document 60-2 Filed 04/23/20 Page 2 of 12 PageID #: 956

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; and JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

20 Civ
DECLARATION OF JONATHAN GIFTOS, M.D.

I, Jonathan Giftos, hereby declare as follows: 1. I am a doctor duly licensed to practice medicine in the State of New York. I am board certified in internal medicine and addiction medicine. 2. I am currently the Medical Director of Addiction Medicine & Drug User Health at Project Renewal and a Clinical Assistant Professor in the Department of Medicine at Albert Einstein College of Medicine. I was previously the Clinical Director of Substance Use Treatment for NYC Health & Hospitals, Division of Correctional Health Services at Rikers Island. In that capacity I was responsible for the diversion, harm reduction, treatment and reentry services for incarcerated patients with substance use disorders. I further served as the medical director of the Key Extended Entry Program (KEEP), the nation's oldest and largest jail-based opioid treatment program that provides methadone and buprenorphine to incarcerated patients with opioid use

Case 1:20-cv-01590-RPK-RLM Document 60-2 Filed 04/23/20 Page 3 of 12 PageID #: 957
disorders. I successfully led an effort to remove non-clinical barriers to opioid treatment program enrollment in 2017, which dramatically expanded treatment access from 25% to over 80%, while also reducing post-release mortality for people with opioid use disorder.
3. I have extensive experience working with vulnerable populations such as the incarcerated and those experiencing homelessness.
4. I submit this Declaration in support of the Plaintiffs’ Petition for Habeas Corpus seeking release of incarcerated people at the Brooklyn Metropolitan Detention Center (“MDC”) who meet the CDC’s definition of vulnerable and seeking other relief to mitigate risk for the remaining population of the MDC during the COVID-19 pandemic. I. Coronavirus Epidemic in New York City
5. On March 11, 2020, the World Health Organization declared that the rapidly spreading outbreak of COVID-19, a respiratory illness caused by a novel coronavirus, is a pandemic, announcing that the virus is both highly contagious and deadly.1 To date, the virus is known to spread from person-to-person through respiratory droplets, close personal contact, and from contact with contaminated surfaces and objects.2 The CDC also warns of “community spread” where the virus spreads easily and sustainably within a community where the source of the infection is unknown.3 Experts are still learning how it spreads.
6. As of March 27, 2020, novel coronavirus has infected over 586,140 people, leading to 26,865 deaths worldwide.4 In the United States, there are at least 97,226 confirmed cases and
1 World Health Organization, Media Briefing on March 11, 2020: https://www.who.int/dg/speeches/detail/whodirector-general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020. 2 Centers for Disease Control and Prevention, Coronavirus Disease 2019: How it Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html 3 Id. 4 Johns Hopkins University Coronavirus COVID-19 Global Cases by the Center for Systems Science and Engineering, https://coronavirus.jhu.edu/map.html.
2

Case 1:20-cv-01590-RPK-RLM Document 60-2 Filed 04/23/20 Page 4 of 12 PageID #: 958
there have been at least 1,478 deaths.5 There are confirmed coronavirus cases in every state, the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands.
7. Governor Cuomo declared a State of Emergency in New York State on March 7, 2020. Mayor De Blasio declared a State of Emergency in New York City on March 12, 2020. On March 20, 2020, Governor Cuomo issued an Executive Order entitled “New York State on PAUSE,” requiring businesses to close and banning gatherings. As of March 27, 2020, there are 44,745 positive cases in New York State with more than 25,000 of those cases being in New York City.6 To date, there have been 519 deaths from COVID-19 just in New York, with 366 of those deaths in New York City.Among the positive cases in New York City are incarcerated people, as well as people who work in courthouses, law enforcement, legal offices, and the medical field, increasing the likelihood of further exposure to and by incarcerated people.
8. There is currently no vaccine or cure. The primary focus is on preventing the spread of the virus at this juncture. To prevent new infections, the Centers for Disease Control and Prevention strongly recommend the following actions: thorough and frequent handwashing, cleaning surfaces with EPA approved disinfectants, keeping at least 6 feet of space between people, and avoiding group settings.11 Social distancing has also been strongly recommended to slow the rate of COVID-19 infections so that hospitals have the resources to address infected individuals with urgent medical needs.12 The President’s Coronavirus Guidelines for America, to slow the spread of the coronavirus, warns that social gatherings in groups of more than 10 people should be
5 Id. 6 Id. 11 How to Protect Yourself, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019ncov/prepare/prevention.html. 12 Coronavirus, Social Distancing, and Self-Quarantine, Johns Hopkins Medicine, https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/coronavirus-social-distancing-andself-quarantine.
3

Case 1:20-cv-01590-RPK-RLM Document 60-2 Filed 04/23/20 Page 5 of 12 PageID #: 959
avoided.13 In correctional settings, such sanitation, social distancing, and self-quarantining measures are nearly impossible especially when inmates are routinely shackled and escorted with other prisoners.14 Certain Identifiable Populations Are Far More Vulnerable To COVID-19 Than The Population At Large Is.
9. The Centers for Disease Control have identified two groups of people at higher risk of contracting and succumbing to COVID-19: adults over 60 years old and people with chronic medical conditions.15
10. COVID-19 is more dangerous to persons in these high-risk groups than to the general population. Older people who contract COVID-19 are more likely to die than people under the age of 60. In a February 29th WHO-China Joint Mission Report, the preliminary mortality rate analyses showed that individuals age 60-69 had an overall 3.6% mortality rate and those 70-79 years old had an 8% mortality rate.16 For individuals 40 years and younger, the mortality rate was as low as .2%. It has been found that older people diagnosed with COVID-19 are more likely to be very sick and require hospitalization to survive because the acute symptoms include respiratory distress, cardiac injury, arrhythmia, septic shock, liver dysfunction, kidney injury and multi-organ failure. Access to a mechanical ventilator is often required, as is the ability to be intubated quickly. . People with chronic medical conditions (no matter their age) are also at significantly greater risk
13 The President’s Coronavirus Guidelines for America, https://www.whitehouse.gov/wpcontent/uploads/2020/03/03.16.20_coronavirus-guidance_8.5x11_315PM.pdf. 14 See We Are Not a Hospital: A Prison Braces for the Coronavirus, New York Times, March 18, 2020, https://www.nytimes.com/2020/03/17/us/coronavirus-prisons-jails.html.
15 If You Are at Higher Risk, Centers for Disease Control and Prevention, https://tinyurl.com/vtbebzc; see also Report of the WHO-China Joint Mission on Coronavirus Disease (COVID-19),
https://www.who.int/docs/default-source/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf at 12. 16 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://www.worldometers.info/coronavirus/coronavirus-age-sex-demographics/ (data analysis based on WHOChina Joint Mission Report, supra).
4

Case 1:20-cv-01590-RPK-RLM Document 60-2 Filed 04/23/20 Page 6 of 12 PageID #: 960
from COVID-19 because their already-weakened systems are less able to fight the virus. These chronic medical conditions include lung disease, cancer, heart failure, cerebrovascular disease, renal disease, liver disease, diabetes, immunocompromising conditions, and pregnancy. Those with pre-existing medical conditions have a higher probability of death if infected. The WHOChina Joint Mission Report provides that the mortality rate for those with cardiovascular disease was 13.2%, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer.17
In a March 17th Washington Post article tracking the 100 United States COVID-19 deaths, it is reported that many of the fatalities had underlying medical conditions, which made it harder for their bodies to fight off COVID-19. And nearly all — about 85 percent — were older than 60; about 45 percent were older than 80.18 Correctional Settings Increase The Risk Of Transmission
11. Correctional settings increase the risk of contracting an infectious disease, like COVID-19, due to the high numbers of people with chronic, often untreated, illnesses housed in a setting with minimal levels of sanitation, limited access to personal hygiene, limited access to medical care, and no possibility of staying at a distance from others. Correctional facilities house large groups of people together, and move them in groups to eat, do recreation, and go to court. They frequently have insufficient medical care for the population, and, in times of crisis, even those medical staff cease coming to the facility. Hot water, soap and paper towels are frequently in limited supply. Incarcerated people, rather than professional cleaners, are responsible for
17 Report of the WHO-China Joint Mission on Coronavirus Disease (COVID-19), https://www.who.int/docs/default-source/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf at 12. 18 U.S. Coronavirus Death Toll Reaches 100, The Washington Post, March 17, 2020, at https://www.washingtonpost.com/national/us-coronavirus-death-toll-reaches-100/2020/03/17/f8d770c2-67a8-11eab313-df458622c2cc_story.html.
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cleaning the facilities and often not given appropriate supplies. This means there are more people who are susceptible to getting infected all congregated together in a context in which fighting the spread of an infection is nearly impossible.
12. Outbreaks of the flu regularly occur in jails, and during the H1N1 epidemic in 2009, many jails and prisons dealt with high numbers of cases.19
13. In New York, one of the areas of early spread in the U.S., multiple correctional officers and individuals detained in jails and prisons have become infected with COVID-19. The medical leadership in the NYC jail system has announced that they will be unable to stop COVID from entering their facilities and have called for release as the primary response to this crisis. Staff are likely to bring COVID-19 into a facility, based solely on their movement in and out every day.
14. Once COVID-19 is inside a facility, MDC will be unable to stop the spread of the virus throughout the facility given long-documented inadequacies in BOP’s medical care and in light of how these facilities function. Incarcerated people in New York City have already begun to test positive for COVID-19. Among the 5,200 people incarcerated by the New York City Department of Correction, seventy-five people in city custody have tested positive for coronavirus.20 This is a higher rate of infection than seen outside of detention facilities and is consistent with my opinion that correctional settings create a heightened risk. As of March 26, 2020, at least four people in BOP custody in New York City, including one at MDC, have tested positive.23 At least four BOP staff members in New York City, including three at MDC, have also tested positive.Specific Conditions At MDC Brooklyn
19 Prisons and Jails are Vulnerable to COVID-19 Outbreaks, The Verge (Mar. 7, 2020) at https://bit.ly/2TNcNZY. 20 https://abcnews.go.com/US/releases-infections-fear-us-coronavirus-crisis-jails-prisons/story?id=69803066 23 https://www.bop.gov/coronavirus/
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15. Based on my understanding of the specific conditions at the federal pre-trial detention center in Brooklyn (“MDC Brooklyn”) as contained in published reports and communicated to me by Deirdre D. von Dornum, Attorney-in-Charge of the Federal Defenders of New York, these conditions pose heightened risks to already vulnerable inmates of contracting the novel coronavirus and of developing acute symptoms from the virus.
16. The size of the population and the conditions of confinement at MDC Brooklyn increase the risk of infection substantially because it is impossible for inmates to maintain a 6-foot distance from others, to avoid large groups, or to implement sufficient hand-washing and sanitization of surfaces.
a. Approximately 1700 people are incarcerated at the MDC. I have learned that 537 of them were identified by MDC as being particularly vulnerable as that has been defined by the CDC.24
b. New people are brought into custody at MDC Brooklyn from all over the world each week. They are screened only for fever and recent travel to designated hotspot countries.25
c. Correctional officers who live in New York, New Jersey, and Pennsylvania come in and out of the facility each day.26 Significantly, in a March 18th CDC report, an epidemiological investigation revealed that coronavirus-infected staff members contributed to the outbreak in a nursing home facility with ineffective infection control and prevention and staff
24 See “Review and Inspection of Metropolitan Detention Center Brooklyn Facilities Issues and Related Impact on Inmates,” OIG Report (Sept. 2019), at 1 (MDC Brooklyn houses approximately 1700 pretrial and designated inmates); Communication with Deirdre von Dornum (confirming 537 people identified as a heightened risk). 25 Federal Defenders of N.Y. Telephone Conversation With MDC Legal (March 17, 2020). 26 Id.
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members working in multiple facilities.27 The Seattle nursing home outbreak demonstrates that

individuals with underlying health conditions and advanced age, in a shared location, are at a high

risk of death, especially when resources and staffing become inadequate.28

d. At MDC Brooklyn, people are housed either in small two-man cells

(designed to hold a single person) with a single shared toilet and sink or in large open dormitory

units housing up to 70 people with shared toilets and sinks.29 Windows in the units do not open.

Incarcerated people cannot go outside. e. No hand sanitizer is available to people incarcerated at MDC Brooklyn.30

f. Tissues are not readily available. People at MDC use toilet paper to blow

their noses.

g. Everyone is given one small bar of soap a week, at most. Some units at

MDC have received no soap since the lockdown of the facility began on March 13, 2020. Access

to additional soap is limited to those individuals who have sufficient commissary funds to purchase

it, and dependent on the commissary being open; it is routinely closed during lockdowns.

h. Incarcerated people prepare all the meals and this meal preparation, with

the exception of kosher and halal meals, is performed in a single kitchen.31

i.

Incarcerated people at MDC eat meals in large groups.32

27 COVID-19 in a Long-term Care Facility—King County Washington, February 27-March 9, 2020, https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6912e1-H.pdf.
28 Id.
29 See “Review and Inspection of Metropolitan Detention Center Brooklyn Facilities Issues and Related Impact on Inmates,” OIG Report (Sept. 2019) (describing housing units).
30 Statement of Associate Warden Andy Cruz at EDNY Security Committee Meeting (March 11, 2020).
31 “Review and Inspection of Metropolitan Detention Center Brooklyn Facilities Issues and Related Impact on Inmates,” OIG Report (Sept. 2019), at 4 (all meals are prepared by inmates who work for Food Services in a central kitchen area).
32 “Review and Inspection of Metropolitan Detention Center Brooklyn Facilities Issues and Related Impact on Inmates,” OIG Report (Sept. 2019).

8

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j. Incarcerated people are responsible for sanitizing the housing unit common areas, and frequently lack adequate cleaning supplies to do so.
k. Individuals who are at lower and higher risks (because of age and preexisting medical conditions) of contracting the virus are not separated.33
l. The facility has not informed the population of what the protocol will be for symptomatic inmates;35 absent a transparent protocol, individuals in correctional settings often fear they will be confined in solitary if they volunteer that they are symptomatic.
m. MDC Brooklyn currently has no more than nine COVID-19 test kits. 17. People at MDC Brooklyn who do contract COVID-19 are at higher risk for developing acute symptoms than if they were in the community, because MDC Brooklyn lacks the medical resources to care for symptomatic inmates.
a. There is no separate medical unit or facility for ill people.36 Unlike many Federal Correctional Institutions and even Rikers’ Island, MDC Brooklyn has no physical space in which someone who is ill can convalesce that is separate from others, warm, clean and has access to fresh water and regular hand-washing.
b. On weekdays, there are only three doctors available at MDC Brooklyn to care for all 1700 people held in custody there. Even this highly limited number is likely to decrease as doctors themselves go into quarantine. None of these doctors specialize in infectious diseases.
33 Statement of Associate Warden Andy Cruz at EDNY Security Committee Meeting (March 11, 2020). 35 Id. 36 Statement of Associate Warden Andy Cruz at EDNY Security Committee Meeting (March 11, 2020).
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c. People who contract COVID-19 can deteriorate rapidly, even before a test result can be received. They need constant monitoring. Most people in the higher risk categories will require more advanced support: positive pressure ventilation, intubation and in extreme cases, extracorporeal mechanical oxygenation. Such care requires specialized equipment in limited supply as well as an entire team of specialized care providers. MDC Brooklyn does not have that specialized equipment or specialized providers.
18. MDC Brooklyn is already short-staffed.37 This staffing shortage will only increase as employees need to stay home to care for children whose schools are closed, elderly family members, and other personal health situations. This has already been observed in other law enforcement settings and will inevitably occur at MDC. There will be far more work to be done inside MDC than before, and the lack of available staffing will impact basic operations, as well as the ability to cohort high risk and symptomatic patients (in different areas) as well as provide care inside the facility and even conduct escort for emergency room evaluation and inpatient hospitalization. With fewer staff, correctional officers are less able to monitor inmates’ health. Reducing Population Size At Specific Correctional Facilities Is A Crucial Public Health Measure
19. Every effort should be made to reduce chances of exposure to the novel coronavirus; however given the proximity and high number of incarcerated people, correctional staff, and healthcare workers at pre-trial detention facilities, it will be extremely difficult to sustain such efforts. Reducing population, therefore, is an urgent priority in detention facilities during this national public health emergency.
37 “Review and Inspection of Metropolitan Detention Center Brooklyn Facilities Issues and Related Impact on Inmates,” OIG Report (Sept. 2019).
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I declare under penalty of perjury declare and pursuant to 28 U.S.C. § 1746 that the foregoing is true and correct to the best of my knowledge.

Dated: Brooklyn, New York March 27, 2020

Dr. Jonathan Giftos

11

 
 Case 1:20-cv-01590-RPK-RLM Document 62 Filed 04/24/20 Page 1 of 2 PageID #: 1010

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------x
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI by his Next Friend Migdaliz Quinones; and JUSTIN RODRIGUEZ by his Next Friend Jacklyn Romanoff; ELODIA LOPEZ; and JAMES HAIR, individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.
---------------------------------------------------------x

Civil Action No. 20-CV-1590 (Kovner, J.) (Mann, M.J.)
NOTICE OF MOTION

PLEASE TAKE NOTICE THAT, upon the accompanying Memorandum of Law in Support of Respondent’s Motion to Dismiss; the Declarations of Lieutenant Commander D. Jordan, RN/BSN (Dkt. No. 47-1) and Associate Warden Milinda King (Dkt. Nos. 18-1, 21); and the pleadings herein, Respondent, by his attorney, Richard P. Donoghue, United States Attorney for the Eastern District of New York, James R. Cho, Seth D. Eichenholtz, Joseph A. Marutollo, Paulina Stamatelos, Assistant United States Attorneys, of counsel, will move this Court, before the Honorable Rachel P. Kovner, United States District Judge for the Eastern District of New York, United States Courthouse, 225 Cadman Plaza East, Brooklyn, New York, at a date and time to be designated by the Court, to dismiss the First Amended Class Action Petition Seeking Writ of Habeas Corpus Under 28 U.S.C. § 2241, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, or in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure; and granting such other and further relief as this Court deems proper.

Case 1:20-cv-01590-RPK-RLM Document 62 Filed 04/24/20 Page 2 of 2 PageID #: 1011

Dated: Brooklyn, New York April 24, 2020
By:
To: All Counsel of Record (by ECF)

RICHARD P. DONOGHUE United States Attorney Eastern District of New York Counsel for Respondent 271-A Cadman Plaza East, 7th Floor Brooklyn, New York 11201
/s/ James R. Cho Seth D. Eichenholtz Joseph A. Marutollo Paulina Stamatelos Assistant U.S. Attorneys (718) 254-6519/7036/6288/6198 james.cho@usdoj.gov seth.eichenholtz@usdoj.gov joseph.marutollo@usdoj.gov pauline.stamatelos@usdoj.gov

2

Case 1:20-cv-01590-RPK-RLM Document 62-1 Filed 04/24/20 Page 1 of 44 PageID #: 1012

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------x
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI by his Next Friend Migdaliz Quinones; and JUSTIN RODRIGUEZ by his Next Friend Jacklyn Romanoff; ELODIA LOPEZ; and JAMES HAIR, individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.
---------------------------------------------------------x

Civil Action No. 20-CV-1590 (Kovner, J.) (Mann, M.J.)

MEMORANDUM OF LAW IN SUPPORT OF RESPONDENT’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(1), 12(b)(6), OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

James R. Cho Seth D. Eichenholtz Joseph A. Marutollo Paulina Stamatelos Assistant United States Attorneys (Of Counsel)

RICHARD P. DONOGHUE United States Attorney Counsel for Respondent Eastern District of New York 271-A Cadman Plaza East, 7th Floor Brooklyn, New York 11201
April 24, 2020

Case 1:20-cv-01590-RPK-RLM Document 62-1 Filed 04/24/20 Page 2 of 44 PageID #: 1013
TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 1 FACTUAL BACKGROUND ......................................................................................................... 3
I. The BOP’s Action Plan for COVID-19 .................................................................. 3 II. The Petition and Alleged Facts ............................................................................... 6
A. Petitioners Hassan Chunn and Nehemiah McBride Already Have Been Released from the MDC........................................................... 7
B. Petitioner Ayman Rabadi ............................................................................ 8 C. Petitioner Justin Rodriguez ......................................................................... 8 D. Petitioner Elodia Lopez............................................................................. 10 E. Petitioner James Hair ................................................................................ 11 III. Petitioners’ Requested Relief................................................................................ 11 IV. The Court’s Denial of Petitioners’ Motion for a Temporary Restraining Order ..................................................................................................................... 12 STANDARDS OF REVIEW ........................................................................................................ 12 ARGUMENT ................................................................................................................................ 13 I. This Court Lacks Jurisdiction Over This Petition................................................. 13 A. Claims Brought By Petitioners Chunn and McBride Are Moot ............... 13 B. The Court Lacks Jurisdiction to Release Rabadi, Rodriguez,
Lopez and Hair.......................................................................................... 13 1. This Court Lacks Authority to Divest BOP and
Sentencing Courts of Their Jurisdiction to Place Inmates in Home Confinement or The Sentencing Judge’s Authority to Amend A Term of Imprisonment............................. 13 2. Res Judicata Bars Petitioners’ Immediate Release....................... 18 3. Section 3626 Precludes the Remedy Requested By Petitioners ..................................................................................... 19 C. The Court Lacks Jurisdiction to Appoint a Special Master to Essentially Sit as an Article III Judge ....................................................... 22

Case 1:20-cv-01590-RPK-RLM Document 62-1 Filed 04/24/20 Page 3 of 44 PageID #: 1014 II. Even if the Court had Jurisdiction, Petitioners’ Claims are Subject to Dismissal............................................................................................................... 25 A. Applicable “Deliberate Indifference” Standard ........................................ 25 B. Petitioners Are Not Subject to an Unreasonable Risk of Harm at the MDC.................................................................................................... 28 C. The BOP Has Not Shown Deliberate Indifference and Has Taken Appropriate Measures to Protect the Health of Inmates at the MDC and the Public............................................................................ 29 III. The Petition’s Conclusory Putative Class Action Allegations Must Be Stricken ................................................................................................................. 33
CONCLUSION............................................................................................................................. 35
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TABLE OF AUTHORITIES Page(s)
Cases Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) .................................................... 13 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................... 12 Barrett v. United States, 105 F.3d 793 (2d Cir. 1996).................................................................. 13 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................... 12 Bell v. Wolfish, 441 U.S. 520 (1979) ............................................................................................ 25 Benjamin v. Jacobson, 172 F.3d 144 (2d Cir. 1999) .................................................................... 20 Board of Governors of the Federal Reserve System v. Pharaon,
140 F.R.D. 642 (S.D.N.Y.1991) ............................................................................................... 23 Brown Media Corp. v. K&L Gates, LLP, 854 F.3d 150 (2d Cir. 2017) ....................................... 18 Brown v. Felsen, 442 U.S. 127 (1979).......................................................................................... 19 Brown v. Kelly, 609 F.3d 467 (2d Cir. 2010)................................................................................ 34 Brown v. Plata, 563 U.S. 493 (2011)...................................................................................... 20, 21 Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir. 1999) ....................................... 35 Celotex v. Catrett, 477 U.S. 317 (1986) ....................................................................................... 13 Charles v. Orange County, 925 F.3d 73 (2d Cir. 2019) ............................................................... 29 Cook v. Hanberry, 596 F.2d 658 (5th Cir. 1979).......................................................................... 15 Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.à.r.l, 790 F.3d 411 (2d Cir. 2015) .......... 12 Crawford v. Bell, 599 F.2d 890 (9th Cir. 1979)............................................................................ 15 Cuoco v. Moritsugu, 222 F.3d 99 (2d Cir. 2000).......................................................................... 27 Dillon v. United States, 560 U.S. 817 (2010) ............................................................................... 13 Doyle v. Midland Credit Mgmt., Inc., 722 F.3d 78 (2d Cir. 2013) ............................................... 12 Estelle v. Gamble, 429 U.S. 97 (1976) ......................................................................................... 27
iii

Case 1:20-cv-01590-RPK-RLM Document 62-1 Filed 04/24/20 Page 5 of 44 PageID #: 1016
Farmer v. Brennan, 511 U.S. 825 (1994) .............................................................................. passim Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394 (1981) ....................................................... 18 Feng Chen v. Sessions, 321 F. Supp. 3d 332 (E.D.N.Y. 2018) .................................................... 13 Freeman v. Sikorsky Aircraft Corp., 151 F. App’x. 91 (2d Cir. 2005)......................................... 18 Gilmore v. California, 220 F.3d 987 (9th Cir. 2000).................................................................... 20 Glaus v. Anderson, 408 F.3d 382 (7th Cir. 2005)......................................................................... 15 Gomez v. United States, 899 F.2d 1124 (11th Cir. 1990) ............................................................. 15 Grant v. Terrell, No. 10-CV-2769, 2014 WL 2440486 (E.D.N.Y. May 29, 2014)...................... 14 Hathaway v. Coughlin, 37 F.3d 63 (2d Cir. 1994) ................................................................. 26, 27 Hathaway v. Coughlin, 99 F.3d 550 (2d Cir. 1996) ..................................................................... 26 Helling v. McKinney, 509 U.S. 25 (1993)............................................................................... 27, 29 Hickox v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016) ................................................................ 31 Hill v. Curcione, 657 F.3d 116 (2d Cir. 2011).............................................................................. 31 Hines v. Youssef, No. 1:13-cv-00357-AWI-JL, 2015 WL 164215 (E.D. Cal. Jan. 13, 2015) ...... 28 Idan Comput., Ltd. v. Intelepix, LLC, No. CV-09-4849 (SJF)(ARL), 2010 WL 3516167
(E.D.N.Y. Aug. 27, 2010)......................................................................................................... 23 In re Bituminous Coal Operators’ Ass’n, 949 F.2d 1165 (D.C. Cir. 1991).................................. 23 In re Vitamin C Antitrust Litig., 279 F.R.D. 90 (E.D.N.Y. 2012) ................................................ 33 Ingraham v. Wright, 430 U.S. 651 (1977) .................................................................................... 25 Inmates of Occoquan v. Barry, 844 F.2d 828 (D.C. Cir. 1988).................................................... 21 Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649 (1st Cir. 1997) ........................................ 20 John v. Nat’l Sec. Fire and Cas. Co., 501 F.3d 443 (5th Cir. 2007) ............................................ 33 Johnson v. Connecticut Dept. of Admin. Serv., No. 3:11-cv-1106,
2012 WL 414996 (D. Conn. Feb. 9, 2012) ............................................................................... 35 Lia v. Saporito, 909 F. Supp. 2d 149 (E.D.N.Y. 2012) ................................................................ 12 Livas v. Myers, No. 20-CV-422 , 2020 WL 1939583 (W.D. La. Apr. 22, 2020) ................... 17, 22
iv

Case 1:20-cv-01590-RPK-RLM Document 62-1 Filed 04/24/20 Page 6 of 44 PageID #: 1017
Medina-Rivera v. Terrell, No. 11-CV-0734, 2011 WL 3163199 (BMC) (E.D.N.Y. July 26, 2011) .......................................................................................................... 14
Money v. Pritzker, Nos. 20-cv-2093 & 20-cv-2094, 2020 WL 1820660 (N.D. Ill. Apr. 10, 2020) ...................................................................... 22, 32
Muhammad v. City of New York Dep't of Corrections, 126 F.3d 119 (2d Cir. 1997) .................... 1 Pagan v. Abbott Labs., 287 F.R.D. 139 (E.D.N.Y. 2012) ............................................................ 34 Procunier v. Martinez, 416 U.S. 396 (1974), overruled on other grounds by
Thornburgh v. Abbott, 490 U.S. 401 (1989)............................................................................. 22 Rhodes v. Chapman, 452 U.S. 337 (1981).............................................................................. 25, 27 Robinson v. Purcell Constr. Corp., 647 F. App’x 29 (2d Cir. 2016)............................................ 18 Ru Jun Zhang v. Lynch, No. 16-CV-4889 (WFK), 2018 WL 1157756
(E.D.N.Y. Mar. 1, 2018) ........................................................................................................... 12 Salahuddin v. Goord, 467 F.3d 263 (2d Cir. 2006) ...................................................................... 26 Scaggs v. New York State Dep’t of Educ., No. 06-CV-0799,
2009 WL 890587 (E.D.N.Y. Mar. 31, 2009)............................................................................ 33 Scott v. Benson, 742 F.3d 335 (8th Cir. 2014) .............................................................................. 31 Serra v. Terrell, No. 10-CV-03044, 2013 WL 5522850 (E.D.N.Y. Sept. 30, 2013).............. 14, 15 Staffer v. Bouchard Transp. Co., Inc., 878 F.2d 638 (2d Cir. 1989) ............................................ 18 Stauble v. Warrob, Inc., 977 F.2d 690 (1st Cir. 1992).................................................................. 23 Teague v. Lane, 489 U.S. 288 (1989) ........................................................................................... 13 Turner v. Safley, 482 U.S. 78 (1987) ............................................................................................ 22 United States ex rel. Siegel v. Shinnick, 219 F. Supp. 789 (E.D.N.Y. 1963)................................ 31 United States v. Addonizio, 442 U.S. 178 (1979) ......................................................................... 14 United States v. Amato, No. 19 Cr. 442 (ILG) (E.D.N.Y. Mar. 27, 2020) ................................... 30 United States v. Carpenter, No. 19-70, 2020 WL 1909098 (2d Cir. Mar. 25, 2020) ................... 30 United States v. Chun, No. 16 Cr. 388 (E.D.N.Y. Apr. 8, 2020).................................................... 7 United States v. Deutsch, No. 18 Cr. 00502, 2020 WL 1694358 (E.D.N.Y. Apr. 7, 2020) ......... 30
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United States v. Erazo-Ayala et al., No. 16 Cr. 167 (LAP) (S.D.N.Y. 2020) ................................ 7 United States v. Gotti, No. 02 Cr. 743,
2020 WL 497987 (S.D.N.Y. Jan. 15, 2020) ........................................................... 14, 15, 16, 17 United States v. Hair, 780 F. App’x 86 (4th Cir. 2019) ............................................................... 11 United States v. Hamilton, No. 19 Cr. 54, 2020 WL 1323036 (E.D.N.Y. Mar. 20, 2020)........... 24 United States v. McBride, No. 15 Cr. 876 (S.D.N.Y. Apr. 7, 2020)............................................... 6 United States v. Passley, No. 19 Cr. 534, 2020 WL 1815834 (E.D.N.Y. Apr. 9, 2020) .............. 30 United States v. Rabadi, No. 13 Cr. 353, 2020 WL 1862640 (S.D.N.Y. Apr. 14, 2020) ........... 8, 9 United States v. Rodriguez, No. 16 Cr. 167, 2020 WL 1866040 (S.D.N.Y. Apr. 14, 2020) .... 9, 10 United States v. Washington, 549 F.3d 905 (3d Cir. 2008) .......................................................... 15 Valley Forge Christian College v. Americans United for Separation of
Church and State, Inc., 454 U.S. 464 (1982) ........................................................................... 13 Victor v. Milicevic, 361 F. App’x 212 (2d Cir. 2010)................................................................... 31 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) .................................................................. 33 Wasley Prod., Inc. v. Bulakites, Nos. 3:03-cv-383(MRK)(WIG), 3:03-cv-1790,
2006 WL 3834240 (D. Conn. May 31, 2006)........................................................................... 24 Webb v. Goord, 340 F.3d 105 (2d Cir. 2003) ............................................................................... 23 Whitley v. Albers, 475 U.S. 312 (1986) .................................................................................. 25, 26 Wilson v. Seiter, 501 U.S. 294 (1991)............................................................................... 25, 26, 28 Wright v. Terrell, No. 10-CV-3492 (PGS), 2011 WL 5117851 (D.N.J. Oct. 26, 2011) .............. 15
Statutes 18 U.S.C. § 912............................................................................................................................... 7 18 U.S.C. § 1343............................................................................................................................. 7 18 U.S.C. § 3582....................................................................................................................... 8, 16 18 U.S.C. § 3582(c) ...................................................................................................................... 14 18 U.S.C. § 3582(c)(1)(A) ..................................................................................................... passim
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18 U.S.C. § 3582(c)(1)(B) ............................................................................................................ 14 18 U.S.C. § 3582(c)(2).................................................................................................................. 14 18 U.S.C. § 3621(b) ...................................................................................................................... 16 18 U.S.C. § 3624............................................................................................................................. 8 18 U.S.C. § 3624(c) ...................................................................................................................... 10 18 U.S.C. § 3624(c)(2).................................................................................................................. 16 18 U.S.C. § 3624(c)(4).................................................................................................................. 16 18 U.S.C. § 3626....................................................................................................................... 2, 19 18 U.S.C. § 3626(a)(2).................................................................................................................. 20 18 U.S.C. § 3626(a)(3)(A) ............................................................................................................ 21 18 U.S.C. § 3626(a)(3)(B) ...................................................................................................... 21, 22 18 U.S.C. § 3626(g)(2) ................................................................................................................. 22 18 U.S.C. § 3626(g)(4) ................................................................................................................. 20 21 U.S.C. § 841(b)(1)(C) ................................................................................................................ 8 21 U.S.C. § 846............................................................................................................................... 8 28 U.S.C. § 2241................................................................................................................. 1, 15, 17 28 U.S.C. § 2255........................................................................................................................... 11 34 U.S.C. § 60541......................................................................................................................... 16
Rules Fed. R. Civ. P. 12(b)(1)....................................................................................................... 1, 12, 35 Fed. R. Civ. P. 23(a) ..................................................................................................................... 33 Fed. R. Civ. P. 53 .......................................................................................................................... 24 Fed. R. Civ. P. 53(a)(1)(C) ........................................................................................................... 24 Fed. R. Civ. P. 56 ............................................................................................................................ 1 Fed. R. Civ. P. 56(c) ..................................................................................................................... 12
vii

Case 1:20-cv-01590-RPK-RLM Document 62-1 Filed 04/24/20 Page 9 of 44 PageID #: 1020 Regulations
28 C.F.R. § 571.63(a)...................................................................................................................... 9
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PRELIMINARY STATEMENT Petitioners Hassan Chunn, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez, Elodia Lopez, James Hair (collectively, “Petitioners”), and a putative class of potentially all inmates at the Metropolitan Detention Center in Brooklyn (“MDC”), request, pursuant to 28 U.S.C. § 2241, that this Court short-circuit the entire criminal justice process by (1) ordering, via a civil action, their immediate and unwarranted release from prison due to concerns related to the novel coronavirus (“COVID-19”); and (2) appointing a Special Master to essentially determine which convicted criminals and which charged criminals (who have already been judicially determined to be dangerous and/or risks of flight) may be released from prison—thereby divesting the judges of this Court and other courts of the authority to control their own criminal dockets. Respondent, MDC Warden Derek Edge, respectfully submits this memorandum of law in support of his motion to dismiss the First Amended Class Action Petition (Dkt. No. 60) (“Pet.” or “Petition”) pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6), or, alternatively, for summary judgment pursuant to Fed. R. Civ. P. 56. As demonstrated below, Petitioners’ claims are subject to dismissal. As a threshold matter, this Court does not have jurisdiction over Petitioners’ claims. The claims of Chunn and McBride must be dismissed on mootness grounds, as they are no longer in MDC custody. See, e.g., Muhammad v. City of New York Dep’t of Corrections, 126 F.3d 119 (2d Cir. 1997). In addition, the claims of Rabadi and Rodriguez must be dismissed on res judicata grounds. Subsequent to the commencement of this action, on April 14, 2020, two federal district judges of the Southern District of New York rejected the requests of Rabadi and Rodriguez— based on the same arguments raised here—to be released from prison due to the threat or risk of COVID-19 at the MDC. Although the Second Circuit has construed 28 U.S.C. § 2241 as permitting challenges to unconstitutional conditions of confinement, the relief Petitioners seek here—essentially the modification or reduction of their criminal sentence—has not been

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recognized as an available remedy to habeas petitioners challenging conditions of confinement in the Second Circuit. In short, Rabadi and Rodriguez want two bites of the same apple: having been denied their requested relief from their sentencing judges, they now want a different federal judge in a civil proceeding in a different district to order the same requested relief. Their claims are barred by res judicata. Moreover, the newly added petitioner, Lopez has a pending application for her release before her sentencing judge. Hair has a motion challenging his conviction under 28 U.S.C. § 2255 pending in the District of Maryland. Thus, all four remaining incarcerated Petitioners seek relief from multiple courts, in addition to this Court, to secure their immediate release.
Significantly, Petitioners cannot cite any legal authority empowering this Court to order the “immediate” release of approximately 533 other MDC inmates—approximately one-third of the MDC’s inmate population—because those inmates allegedly “suffer various[]” health problems and risk illness should they become infected with COVID-19. Pet. ¶ 4. The implications of such an extraordinary order would be staggering; under Petitioners’ theory of appropriate habeas relief, a judge in a federal civil action would be permitted to commute the sentences of hundreds of post-conviction inmates and free hundreds of dangerous pretrial inmates without any conditions of release. Petitioners completely overlook 18 U.S.C. § 3626, which is the component of the Prison Litigation Reform Act (“PLRA”) that establishes that courts are strictly limited in ordering the release of inmates “in any civil action in Federal court with respect to prison conditions” and that a single district judge is precluded from doing so. See id. § 3626(a)(3)(B).
In any event, Petitioners cannot establish any violation of their Fifth Amendment or Eighth Amendment rights arising out of current conditions at the MDC. As this Court previously acknowledged, the Bureau of Prisons (“BOP”) “is taking steps to address [the] health risk[s]”
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created by the COVID-19 pandemic.1 And, as set forth in the Declarations of Lieutenant Commander D. Jordan, RN/BSN (Dkt. No. 47-1) (“Jordan Decl.”) and Associate Warden Milinda King (“King Decl.”) (Dkt. Nos. 18-1, 21), BOP staff nationwide and at the MDC have taken an escalating series of steps to avoid the transmission of COVID-19 into or within MDC. As described below, Petitioners have not alleged sufficient facts to state a constitutional violation related to their conditions of confinement or that Respondent has acted with deliberate indifference to Petitioners’ medical needs or safety.
Lastly, this Court should strike the Petition’s class action allegations. Petitioners’ request for a sweeping and indiscriminate order certifying a class of roughly 1700 inmates—presumably every inmate at MDC—should be rejected. Petitioners’ request is fundamentally incompatible with class-wide relief, as the putative class is not ascertainable and has no commonality or typicality. Indeed, the putative class would feature a hodgepodge of inmates, each of whom has his or her unique set of circumstances (including projected release dates, disciplinary histories, medical histories, bases for judicially imposed criminal sentences, and bases for judicial findings of dangerousness to the community and risk of flight) that would need to be considered by the judge presiding over their criminal proceeding, including any claim for bail or compassionate release. Accordingly, the Court should dismiss the Petition in its entirety.
FACTUAL BACKGROUND I. The BOP’s Action Plan for COVID-19
The MDC houses approximately 1700 inmates (Pet. ¶ 14). In January 2020, BOP became aware of the first identified COVID-19 cases in the United States and took steps to prevent its introduction and spread in BOP institutions, including the MDC. Jordan Decl. ¶ 6. To date, BOP’s
1 April 1, 2020 Hearing, Tr. 89:5.
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response to COVID-19 has occurred over six distinct “phases.” Id. ¶¶ 7-17. In January 2020, the Bureau began Phase One of its Action Plan for COVID-19. Id. ¶ 7. Phase One activities included, among other things, seeking guidance from the BOP’s Health Services Division and other stakeholders regarding the COVID-19 disease and its symptoms, where in the U.S. infections occurred, and the best practices to mitigate its transmission. Id.
On March 13, 2020, BOP implemented Phase Two of its Action Plan during which, for an initial period of 30 days, in order to reduce the spread of COVID-19 into or through the MDC, the facility suspended, with certain limited exceptions: social visits; legal visits; inmate facility transfers; official staff travel; staff training; contractor access; volunteer visits; and tours. Id. ¶ 8. During Phase Two, inmates were subjected to new screening requirements and newly arriving BOP inmates were screened for COVID-19 symptoms and “exposure risk factors,” including, for example, if the inmate had traveled from or through any CDC-determined high-risk COVID-19 locations, or had had close contact with anyone testing positive for COVID-19. Id. ¶ 9. Asymptomatic inmates with exposure risk factors were quarantined, and symptomatic inmates with exposure risk factors were isolated and evaluated for possible COVID-19 testing by local BOP medical providers. Id. Staff also were subjected to enhanced health screening and were required to self-report any symptoms consistent with COVID-19, as well as any known or suspected COVID-19 exposure, and to have their temperature taken upon entry into any BOP facility. Id. ¶ 10. The MDC also began staggering meal and recreation times to limit congregate gatherings. Id. ¶ 11. The BOP established a set of quarantine and isolation procedures for known or potential cases of COVID-19. Id. On March 18, 2020, BOP implemented Phase Three of the COVID-19 Action Plan to maximize telework. Id. ¶ 12.
On March 26, 2020, BOP implemented Phase Four and revised its preventative measures
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for all institutions; the agency updated its quarantine and isolation procedures to require all newly admitted inmates to be assessed using a screening tool and temperature check. Thus, all new arrivals to the MDC—even those who were asymptomatic—were placed in quarantine for a minimum of 14 days or until cleared by medical staff. Id. ¶ 14. Symptomatic inmates were placed in isolation until they tested negative for COVID-19, or were cleared by medical staff as meeting CDC criteria for release from isolation. Id.
The MDC implemented Phase Five on April 1, 2020. Starting on that day, and for 14days immediately thereafter: (i) all inmates were confined to their living quarters for the majority of the day; (ii) meals, commissary items, laundry, recreation materials, education materials, medical services and psychology services were delivered directly to inmates’ housing units; and (iii) inmates were released from their cells in small groups to engage in activities such as showers, exercise, phone calls, and email access via BOP’s “TRULINCS” system. During these time periods, inmates have been directed to maintain appropriate physical distancing. Id. ¶¶ 15-16.
On April 13, 2020, BOP ordered the implementation of Phase Six of its COVID-19 Action Plan. In implementing Phase Six, the MDC extended the measures enacted in the nationwide actions in Phase 5, which includes continuing to perform rigorous medical screening, limiting inmate gathering, daily rounds, limiting external movement, and fit testing, until May 18, 2020. Id. ¶ 17.
MDC has taken a number of additional measures in response to the COVID-19 pandemic to prevent the introduction and spread of COVID-19 into its facility, including providing inmate and staff education; conducting inmate and staff screening; engaging in testing, quarantine, and isolation procedures in accordance with BOP policy and CDC guidelines; ordering enhanced cleaning and medical supplies; and taking a number of other preventative measures. Id. ¶ 19. All
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inmates at the MDC have access to sinks, water, and soap at all times, newly admitted inmates automatically receive soap, and all inmates may receive new soap upon request. For inmates without sufficient funds to purchase soap in the commissary, soap is provided at no cost to the inmate. Id. ¶ 51. MDC inmates are able to wash their clothing and linens twice weekly. Id. All common areas in inmate housing units are cleaned daily, and are typically cleaned by inmate orderlies multiple times throughout the day, with a designated disinfectant known to kill human coronavirus. Id. ¶ 52. MDC has made this disinfectant available to all inmates so that they may use it to clean their own living areas on a regular basis. Id. Common areas outside inmate living areas, including the lobby, bathrooms, cafeteria, etc., are also cleaned with the same disinfectant on a daily basis (and often multiple times per day). Id. ¶¶ 52-56.
Each housing unit has been stocked with cleaning supplies for use by inmate orderlies and other inmates to clean both the common areas and their individual housing areas on a daily basis. Id. ¶ 53. Staff have regular, consistent access to soap and hand sanitizer. Soap is located in staff restrooms and hand sanitizer is located in various staff common areas. Id. ¶ 54. Correctional staff have been provided protective equipment to be used in appropriate locations throughout MDC such as quarantined areas, isolation units, and screening sites. Id. ¶ 55. MDC has sufficient personal protective equipment (PPE) on hand, including N-95 respirator masks, surgical masks, and rubber gloves, to meet its current and anticipated needs, as well as the ability to order additional PPE should the need arise. Id. On April 5, 2020, all inmates and staff were provided protective face masks for daily use, and were provided new masks on April 12, 2020. Id. ¶ 56. II. The Petition and Alleged Facts
The gravamen of Petitioners’ allegation is that, because of their age and/or medical conditions, they have elevated risk of serious, adverse outcomes if they contract COVID-19 and must be released because detention at the MDC per se poses an increased risk of health
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complications or death from COVID-19. See Pet. A. Petitioners Hassan Chunn and Nehemiah McBride Already Have Been Released From the MDC On April 7, 2020, Southern District of New York District Judge Denise L. Cote, granted
McBride’s motion for compassionate release and ordered his release. See Order, United States v. McBride, No. 15 Cr. 876 (S.D.N.Y. Apr. 7, 2020), Dkt. No. 73. On April 8, 2020, Judge Brian M. Cogan granted Chunn’s motion for compassionate release. See United States v. Chun, No. 16 Cr. 388 (E.D.N.Y. Apr. 8, 2020), Dkt. No. 32.
B. Petitioner Ayman Rabadi Rabadi is fifty-nine years old, and scheduled for release on July 19, 2020. Pet. ¶ 10; Prayer for Relief. On October 19, 2018, S.D.N.Y. District Judge Kenneth Karas issued an arrest warrant for Rabadi based on a Petition for Violation of Supervised Release. Rabadi was then serving a term of supervised release after having served a three-year term of imprisonment for his conviction, in June 2014, of engaging in a wire fraud scheme that involved impersonating a federal officer. See United States v. Rabadi, No. 13 Cr. 353 (KMK) (S.D.N.Y.), Dkt. No. 87 (“Rabadi, Dkt. No. __”). According to the Petition, Rabadi has been diagnosed with a serious heart condition, anxiety and diabetes; suffered a heart attack approximately six years ago, and thereafter had several stents placed in his heart; has a tumor on one of his kidneys which is being monitored via ultrasound; and takes medication for high blood pressure, cholesterol, and blood thinners. Pet. ¶ 91. He seeks relief due to the purported risk of being exposed to COVID-19. Id. Approximately one week after the filing of the original Petition, on April 3, 2020, Rabadi filed a motion seeking compassionate release—based on the same concerns related to being exposed to COVID-19 as alleged here—before Judge Karas, who previously sentenced Rabadi.
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See Rabadi, Dkt. No. 84.2 On April 14, 2020, the court denied Rabadi’s motion without prejudice after determining that the court lacked authority to order the relief Rabadi sought under the compassionate release statutory provision, 18 U.S.C. § 3582(c)(1)(A), because Rabadi had failed to exhaust his administrative remedies. See United States v. Rabadi, No. 13 Cr. 353, 2020 WL 1862640, at *1 (S.D.N.Y. Apr. 14, 2020). The court denied Rabadi’s “application without prejudice to renewal if the BOP does not act upon his request within thirty days of its receipt.” Id. at *4.
C. Petitioner Justin Rodriguez Rodriguez is twenty-six years old. His term of incarceration is set to expire on June 9, 2020. Pet. ¶¶ 11; 92. On June 21, 2017, Rodriguez pled guilty to participating in a conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846. Pursuant to a plea agreement, he admitted responsibility for distributing at least 500 grams but less than 2 kilograms of cocaine; that he was responsible for possessing a firearm in furtherance of the narcotics conspiracy; and, that he used violence or made a credible threat of violence in connection with the offense. See United States v. Erazo-Ayala et al., No. 16 Cr. 167 (LAP) (S.D.N.Y.), Dkt. No. 331 (hereafter “Rodriguez, Dkt. No. __”). Rodriguez alleges he is at risk for a COVID-19 infection because of his “significant health problems,” namely, asthma. Pet. ¶ 92. Rodriguez alleges that at some unspecified time he requested an inhaler but that the MDC did not provide one to him. Id. He seeks relief due to the purported risk of being exposed to COVID-19. Id. On March 27, 2020, Rodriguez submitted a letter to the Respondent requesting home confinement under 18 U.S.C. § 3624. See Rodriguez, Dkt. No. 329-2. Respondent denied the request because Rodriguez was ineligible for home confinement based on his status as a holdover
2 Rabadi filed a request for compassionate release with the MDC Warden on April 3, 2020, as well.
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inmate. Id. Construing Rodriguez’s request also as one for compassionate release under 18 U.S.C. § 3582, Respondent denied it, finding that Rodriguez had not identified any significant changes to his medical condition reflecting a “terminal or debilitated medical condition.” Id.
On April 5, 2020, one week after commencing this action, Rodriguez filed a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), or, in the alternative, home confinement, with S.D.N.Y. District Judge Loretta A. Preska, his sentencing judge. See Rodriguez, Dkt. No. 329. In that motion, Rodriguez sought “to modify his sentence to time served or immediate[] release … to home confinement for the remainder of his term of incarceration to be followed by the previously imposed period of supervised release” based on the “threat” of COVID-19. See Rodriguez, Dkt. No. 329 at 1 (emphasis added). Rodriguez’s motion did not indicate that Rodriguez had sought to appeal the Respondent’s decision through the Administrative Remedy Procedure. See 28 C.F.R. § 571.63(a).
By Order dated April 14, 2020, the Court denied Rodriguez’s motion noting that Rodriguez had been disciplined multiple times during his incarceration at MDC. See United States v. Rodriguez, No. 16 Cr. 167 (LAP), 2020 WL 1866040, at *2 (S.D.N.Y. Apr. 14, 2020). The Court added that:
[Rodriguez] has offered no evidence to suggest the MDC and the BOP more broadly are not taking seriously the pandemic or his own personal medical history. To the contrary, as set out in the Government’s papers, the BOP has made significant efforts to respond, and these measures have provided quite successful so far. Id. at *3 (emphasis added). The Court recounted the steps BOP and the MDC have taken to address the COVID-19 threat, and those steps “belie any suggestion that the BOP is failing meaningfully to address the risks posed by COVID-19 or take seriously the threat the pandemic poses to current inmates.” Id. The Court added that, “[t]o the contrary, it shows that the BOP has taken the threat
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very seriously, and has mitigated it to an extraordinary degree.” Id. The Court concluded that Rodriguez had “not set forth a basis to believe that there are extraordinary and compelling reasons for him to be released early” because “[a]ll he has done is to note that he has asthma, he is in prison, and there is a COVID-19 outbreak nationwide” which “is not enough.” Id. at *4.
Lastly, the Court denied Rodriguez’s request for home confinement, concluding that BOP, “not the Court, has the sole authority to prescribe home confinement post-incarceration” under 18 U.S.C. § 3624(c). See Rodriguez, 2020 WL 1866040, at *4. In addition, the Court ruled that BOP:
with its professional medical staff and its systemic measures to address the spread of COVID-19, is well situated to make a determination as to whether Rodriguez should be eligible for home confinement, consistent with the Attorney General’s Memorandum for Prioritization of Home Confinement As Appropriate in Response to COVID-19 Pandemic (March 26, 2020), or could otherwise be accommodated at the facility. This is especially so because the BOP staff at the MDC are uniquely situated to understand the circumstances in the facility; the risk to Rodriguez; and whether, if other defendants who are deemed at high risk of COVID-19 and who would qualify under other release programs are released to home confinement, there is a way to accommodate Rodriguez at the MDC in a safe manner. Id. Finally, the Court noted that “Rodriguez has also not explained how he would be safer outside of prison, where authorities could not enforce isolation and quarantines—a particular concern for someone who has on multiple occasions failed to abide by the terms of his incarceration” and given his “disciplinary record at the MDC and his recent failure . . . he is not amenable to complying with any conditions of release.” Id. D. Petitioner Elodia Lopez Lopez is fifty-five years old. Her term of incarceration is set to expire on June 9, 2020. Pet. ¶¶ 12; 93. Lopez is serving a 15-month sentence in connection with a conviction for selling marijuana. Id. ¶ 93. Lopez allegedly has a lung infection, in addition to diabetes, high blood pressure and high cholesterol, that makes her “particularly vulnerable to COVID-19.” Id. Lopez alleges the MDC has not given her medication for the lung infection since arriving at the MDC
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four months ago. Id. Lopez is housed in a dormitory for female inmates at the MDC “where she shares a bathroom, tables, and chairs with other women” including a woman “who has recently been displaying COVID-19 symptoms.” Id. On April 9, 2020, Lopez filed an emergency motion for compassionate release through her attorney at the Federal Defenders Office in Albany, New York. See United States v. Elodia Lopez, No. 93 Cr. 306 (FJS) (N.D.N.Y.), Dkt. No. 84 (hereafter “Lopez, Dkt. No. __”). On April 22, 2020 (two days ago), Lopez, filed a second brief in support of her compassionate release application. Lopez, Dkt. No. 87. The Court has not ruled on Lopez’s compassionate release application.
E. Petitioner James Hair Hair is twenty-nine years old. Id. ¶ 19. His term of incarceration is set to expire on August 15, 2026. Id. ¶ 94. Hair was allegedly diagnosed with multiple sclerosis in or around 2018. Id. ¶ 94. He also purportedly suffers from asthma and suffers from extreme pain in his lower left back because of kidney issues. Id. ¶ 94. Although the Petition is silent with respect to Hair’s conviction, he recently pleaded guilty to conspiracy to distribute and possess with intent to distribute cocaine. See United States v. Hair, 780 F. App’x 86 (4th Cir. 2019). On April 20, 2020, Hair filed a 28 U.S.C. § 2255 habeas petition to set aside his conviction on ineffective assistance of counsel grounds. See United States v. James Hair, No. 93 CR 306 (FJS) (D. Md.), Dkt. No. 60. III. Petitioners’ Requested Relief Petitioners request broad and extraordinary relief, including the immediate release of 537 vulnerable persons (inclusive of the four remaining Petitioners) with undefined “appropriate precautionary public health measures” and the appointment of a “Special Master on an emergency basis to Chair a Coronavirus Release Committee to evaluate Vulnerable Persons and make recommendations for ameliorative action for other persons at the MDC.” Pet., p. 37. Petitioners also ask the Court to order Respondent “to mitigate” COVID-19-related risk at the MDC, and to
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certify the Petition as a Class Action. Id. p. 36. IV. The Court’s Denial of Petitioners’ Motion for a Temporary Restraining Order
On April 8, 2020, this Court denied Petitioners’ motion for a temporary restraining order (TRO). See Dkt. Entry dated April 8, 2020 Order. The Court denied the TRO motion and noted on the record that: (i) the appointment of a Special Master is not appropriate in connection with the grant of a TRO which is “ordinarily . . . an order of short duration to address imminent harm that’s going to occur;” and (ii) the “extraordinary remedy of a mandatory injunction [ordering Petitioners’ release] is [not] warranted [] at this point.” Tr. at 21-22.
STANDARDS OF REVIEW An action is properly dismissed under Rule 12(b)(1) “when the district court lacks the statutory or constitutional power to adjudicate” the case. See Doyle v. Midland Credit Mgmt., Inc., 722 F.3d 78, 80 (2d Cir. 2013) (citation omitted). When “deciding a Rule 12(b)(1) motion, the court may also rely on evidence outside the complaint,” including competent affidavits. See Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.à.r.l, 790 F.3d 411, 417 (2d Cir. 2015). A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) should be granted where a complaint fails to plead facts to state a claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “In deciding a Rule 12(b)(6) motion, the court may consider, in addition to the factual allegations of the complaint, documents attached to the complaint as exhibits or incorporated in it by reference, matters of which the court may take judicial notice, and documents in the plaintiff’s possession or of which she had knowledge and relied on in bringing suit.” Ru Jun Zhang v. Lynch, No. 16-CV4889 (WFK), 2018 WL 1157756, at *4 (E.D.N.Y. Mar. 1, 2018). “Agency determinations and administrative findings are public records of which a court may properly take judicial notice.” Lia
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v. Saporito, 909 F. Supp. 2d 149, 161 (E.D.N.Y. 2012).3 ARGUMENT
I. This Court Lacks Jurisdiction Over This Petition A. Claims Brought By Petitioners Chunn and McBride Are Moot Article III of the United States Constitution limits the subject matter jurisdiction of federal
courts to “Cases” and “Controversies.” See Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997). The lack of jurisdiction here is self-evident: because Chunn and McBride have already received the relief they seek and are no longer in MDC custody, there is nothing more the Court can do for them. When a plaintiff’s claim seeks to compel a federal official to act, and the official has already performed that act, the claim is moot. See Barrett v. United States, 105 F.3d 793, 794-95 (2d Cir. 1996); Feng Chen v. Sessions, 321 F. Supp. 3d 332, 337 (E.D.N.Y. 2018). In the absence of an active case or controversy, the claims of Chunn and McBride must be dismissed from this action. See generally Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982) (federal judicial power is limited by Article III, section 2 of the Constitution to the resolution of actual “cases” and “controversies”).
B. The Court Lacks Jurisdiction to Release Rabadi, Rodriguez, Lopez, and Hair 1. This Court Lacks Authority to Divest BOP and Sentencing Courts of Their Jurisdiction to Place Inmates in Home Confinement or The Sentencing Judge’s Authority to Amend a Term of Imprisonment
Petitioners Rabadi, Rodriguez, Lopez, and Hair seek to change the terms of their sentence in light of the pandemic. However, “‘[a] judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment’ and may not be modified by a district court except in limited circumstances.” Dillon v. United States, 560 U.S. 817, 824 (2010) (quoting 18 US.C. §
3 Alternatively, should the Court construe the present motion as one for summary judgment, summary judgment is appropriate where, as here, “there is no genuine issue of material fact and . . . the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex v. Catrett, 477 U.S. 317, 322-23 (1986).
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3582(b)). As the Supreme Court has recognized, finality is an important attribute of criminal judgments, and one “essential to the operation of our criminal justice system.” Teague v. Lane, 489 U.S. 288, 309 (1989) (plurality opinion). Accordingly, it is well-established that once a district court has pronounced sentence and the sentence becomes final, even that district court has no inherent authority to reconsider or alter that sentence. Rather, it may do so only pursuant to statutory authorization. See, e.g., United States v. Addonizio, 442 U.S. 178, 189 & n.16 (1979). Consistent with this principle of finality, 18 U.S.C. § 3582(c) provides that a court generally “may not modify a term of imprisonment once it has been imposed,” except in three circumstances: (1) upon a motion for reduction in sentence under 18 U.S.C. § 3582(c)(1)(A); (2) “to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure,” 18 U.S.C. § 3582(c)(1)(B); and (3) where the defendant was sentenced “based on” a retroactively lowered sentencing range, 18 U.S.C. § 3582(c)(2); United States v. Gotti, No. 02 Cr. 743-07 (CM), 2020 WL 497987, at *1-*6 (S.D.N.Y. Jan. 15, 2020) (noting that “[a] court is not required to reduce a sentence on compassionate release grounds, even if a prisoner qualifies for such reduction because of his medical condition.”).
Although the Second Circuit has construed section 2241 as permitting habeas petitioners to raise challenges to prison conditions, “[s]ection 2241 does not provide an avenue for challenging the length of a sentence” based on poor conditions of confinement. See Grant v. Terrell, No. 10CV-2769 (MKB), 2014 WL 2440486, at *3 (E.D.N.Y. May 29, 2014) (reasoning that “[s]ection 2241 permits habeas petitioners to challenge the post-conviction administration of a sentence, but it does not provide an avenue for challenging the length of a sentence” and denying petitioner’s request for “a two-level sentence reduction and an order of immediate release, based on the conditions of confinement” of petitioner’s prison); Medina-Rivera v. Terrell, No. 11-CV-0734,
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2011 WL 3163199 (BMC), at *2 (E.D.N.Y. July 26, 2011) (noting that the petitioner’s “desired remedy—a sentence reduction—is not of the type that can be granted in response to [§ 2241] claims regarding conditions of confinement”); Serra v. Terrell, No. 10-CV-03044 (DLI), 2013 WL 5522850, at * 1 (E.D.N.Y. Sept. 30, 2013) (same).
Courts in other circuits also have held that § 2241 does not permit release based on conditions of confinement. See, e.g., United States v. Washington, 549 F.3d 905, 917 (3d Cir. 2008) (holding that a court has jurisdiction to alter a sentence only as specifically permitted by statute); Wright v. Terrell, No. 10-CV-3492 (PGS), 2011 WL 5117851, at *2 (D.N.J. Oct. 26, 2011) (rejecting § 2241 petition by a petitioner who claimed not to challenge the imposition of his sentence upon finding that “[p]etitioner is actually seeking a modification of his sentence based on the conditions of his confinement at the MDC, which is not cognizable in a habeas petition under § 2241”); Glaus v. Anderson, 408 F.3d 382, 387 (7th Cir. 2005) (holding that “[i]f an inmate establishe[s] that his medical treatment amounts to cruel and unusual punishment, the appropriate remedy would be to call for proper treatment, or to award him damages; release from custody is not an option” (citation omitted)); Gomez v. United States, 899 F.2d 1124 (11th Cir. 1990) (same); Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979) (same); Cook v. Hanberry, 596 F.2d 658, 660 (5th Cir. 1979) (same). Indeed, “[a] court may not modify a term of imprisonment once it has been imposed except pursuant to statute.” United States v. Gotti, No. 02 Cr. 743-07 (CM), 2020 WL 497987, at *6 (S.D.N.Y. Jan. 15, 2020) (nothing that “[a] court is not required to reduce a sentence on compassionate release grounds, even if a prisoner qualifies for such reduction because of his medical condition.”).
Therefore, this Court should not permit Rabadi, Rodriguez, Lopez, and Hair, to seek improperly a reduction in their criminal sentences via a § 2241 petition, based on the allegedly
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unconstitutional conditions of confinement at the MDC. Further, Petitioners are not entitled to have this Court release more than 1700 inmates from the MDC. There are specific legal avenues for consideration of the release or transfer of these inmates. Those include bail, home confinement and compassionate release. Petitioners do not even attempt to establish that this Court has authority to release prisoners based on these avenues for release.
Regarding home confinement, the BOP may place a prisoner in home confinement only for the shorter of 10 percent of the term of imprisonment or 6 months.4 See 18 U.S.C. § 3624(c)(2). Under the recently enacted CARES Act, Pub. L. No. 116-136, § 12003(b)(2) (2020), “if the Attorney General finds that emergency conditions will materially affect” the BOP’s functioning, the BOP Director may “lengthen the maximum amount of time for which [he] is authorized to place a prisoner in home confinement” under 18 U.S.C. § 3624(c)(2). On April 3, 2020, the Attorney General authorized the Director of the Bureau to immediately maximize appropriate transfers to home confinement of all appropriate inmates held in BOP facilities. See April 3, 2020 Memo from the Attorney General, “Increasing Use of Home Confinement at Institutions Most Affected by COVID-19” (https://www.justice.gov/coronavirus/DOJresponse).
The determination of whether to place a prisoner in home confinement is solely in the discretion of the BOP and “not reviewable by any court.” 18 U.S.C. § 3621(b); 18 U.S.C. § 3624(c)(4). The factors to be considered are: the inmate’s age and vulnerability to COVID-19 per CDC guidelines, the inmate’s conduct in prison including violence and gang activity, the inmate’s recidivism risk, the inmate’s reentry plan, the inmate’s danger to the community. 18 U.S.C. § 3621(b). Some offenses, such as sex offenses, will render an inmate ineligible for home
4 The BOP’s policy and procedures regarding home confinement are outlined in BOP Program Statement 7320.01, Home Confinement and BOP Operations Memorandum, Home Confinement under the First Step Act, both of which are available on www.bop.gov via the Resources tab. See 18 U.S.C. § 3624(c)(2) and 34 U.S.C. § 60541.
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confinement. Id. Notably, regarding compassionate release, neither BOP nor this Court has the authority to provide inmates with “early release.” A reduction of an inmate’s federal sentence can only be accomplished by the inmate’s sentencing judge. However, upon an inmate’s request, the Director of the BOP may make a motion to an inmate’s sentencing judge to reduce a term of imprisonment under 18 U.S.C. § 3582(c)(1)(A).5
Importantly, while the BOP is processing these requests as expeditiously as possible, the statute gives the BOP 30 days to evaluate compassionate release requests before any motion may be presented in the sentencing court. 18 U.S.C. § 3582(c)(1)(A). Further, the ultimate decision lies with the sentencing judge. Id. Here, as noted, supra, Judge Preska denied Rodriguez’s motion for compassionate release and reached the merits (over the government’s objection) despite Rodriguez’s failure to exhaust, and Judge Karas determined he would not reach the merits of Rabadi’s request until he exhausted his administrative remedies. Lopez’s compassionate release application remains pending before her sentencing judge.
By filing this action, the Petitioners are not only trying to circumvent these prior adverse decisions, but also trying to create a mechanism through which any unfavorable ruling from a sentencing judge can be challenged in another district court. Petitioners’ efforts to forum shop, or create new forums would have the result of depriving sentencing judges from the ability to maintain control over the inmate sentences they have issued.
By seeking release through this civil action, Petitioners also are essentially seeking to divest the BOP of its statutory and regulatory discretion as to which inmates should be placed in home confinement and to divest sentencing judges of their ability to determine the potential
5 This process is outlined in the U.S. Dep’t of Justice Fed. Bureau of Prisons, Compassionate Release/Reduction In Sentence Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g), Program Statement 5050 (Jan. 17, 2019) (http://www.bop.gov/policy/progstat/5050_050_EN.pdf).
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reduction of sentences individuals convicted in their court. Recently, a Louisiana district court dismissed a § 2241 habeas petition with prejudice brought by six petitioners in a federal prison, who also sought class certification on behalf of a prospective class and sub-class of inmates vulnerable to the COVID-19 threat, ruling that the Court lacked subject matter jurisdiction “to order BOP” to release inmates to a “lesser form of detention” because “[s]uch a designation and/or classification falls squarely within BOP’s authority and outside the purview of this Court.” See Livas v. Myers, No. 20-CV-422 (TAD)(KK), 2020 WL 1939583, at *8 (W.D. La. Apr. 22, 2020). The Court succinctly added, “[t]o rule otherwise would make this Court “a de facto ‘super’ warden” of the BOP facility. Id. at *8.
Petitioners should not be granted such sweeping and unprecedented relief when existing administrative and statutory proceedings can grant them the relief they seek, if appropriate, as demonstrated by the release of Chunn and McBride
2. Res Judicata Bars Petitioners’ Immediate Release Res judicata bars a plaintiff from relitigating the same issues that were or could have been raised in a prior action. See Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981); Freeman v. Sikorsky Aircraft Corp., 151 F. App’x. 91, 92 (2d Cir. 2005) (affirming dismissal of an action as barred by res judicata because claim had already been decided on the merits and action was raising the precise issues, arising from same events, as raised in petitioner’s first complaint); Staffer v. Bouchard Transp. Co., Inc., 878 F.2d 638, 643 (2d Cir. 1989) (explaining that “[r]es judicata, or claim preclusion, bars the revival of claims that already have been litigated” and adding that “[r]es judicata can also operate to bar claims that were not originally asserted.”) (citation omitted)). “The doctrine of res judicata, or claim preclusion, holds that ‘a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.’” Brown Media Corp. v. K&L Gates, LLP, 854 F.3d 150,
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157 (2d Cir. 2017) (quotation omitted). The purpose of the res judicata bar “is based on the requirement that the plaintiff must bring all claims at once against the same defendant relating to the same transaction or event.” Robinson v. Purcell Constr. Corp., 647 F. App’x 29, 30 (2d Cir. 2016) (quotation omitted).
Both Rabadi and Rodriguez filed motions for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (Section 3582 motion), citing the same allegedly unconstitutional conditions of confinement in their Section 3582 motions as set forth in the Petition. Both of their sentencing judges denied their Section 3582 motions. To the extent Rabadi and Rodriguez seek immediate release from the MDC, the rulings by Judges Karas and Preska, respectively, preclude their claims here for immediate release. Rabadi and Rodriguez do not simply get a do-over in the Eastern District of New York after their same claims were rejected by their sentencing judges in the Southern District of New York.
Rabadi and Rodriguez should be estopped from doing so; Petitioners received adverse rulings in connection with their request for immediate release due to the threat of COVID-19 and Petitioners, if circumstances warrant, can go back to those courts to request release under the compassionate release statutes. Petitioners have already availed themselves of that forum which remains available to them should circumstances so warrant. See, e.g., Brown v. Felsen, 442 U.S. 127, 139, n.10 (1979) (“collateral estoppel treats as final … those questions actually and necessarily decided in a prior suit”). Further, Lopez’s compassionate release application remains pending in the Northern District of New York, before her sentencing judge, who has the statutory authority to grant Lopez’s release; this Court has no analogous authority.
3. Section 3626 Precludes the Remedy Requested By Petitioners Petitioners request habeas relief and the release of hundreds of inmates from the MDC. However, 18 U.S.C. § 3626, titled “Appropriate remedies with respect to prison conditions,” places
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strict limits on Courts’ ability to order the release of inmates “in any civil action with respect to prison conditions,” and precludes a single district judge from doing so. Id. § 3626(a)(3)(A)-(B). That law applies to “any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.” Id. § 3626(g)(2). In such a suit, the Court “may enter a temporary restraining order or an order for preliminary injunctive relief,” but such injunctive relief “must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). Under Section 3626, a “prisoner release order”—which “includes any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison,” 18 U.S.C. § 3626(g)(4)—may “be entered only by a three-judge court,” id. § 3626(a)(3)(B), and then only if certain conditions have been met. Among other requirements, “no court shall enter a prisoner release order unless—(i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and (ii) the defendant has had a reasonable amount of time to comply with the previous court orders.” Id. § 3626(a)(3)(A).
Congress enacted the PLRA “to oust the federal judiciary from day-to-day prison management.” Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 655 (1st Cir. 1997); see also Benjamin v. Jacobson, 172 F.3d 144, 182 (2d Cir. 1999) (en banc) (Calabresi, J., concurring) (“The in banc majority argues at length that Congress meant to get the federal courts out of the business of running jails, and it cites any number of congressional statements to that effect.”).
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“Congress intended the PLRA to revive the hands-off doctrine,” which was “a rule of judicial quiescence derived from federalism and separation of powers concerns.” Gilmore v. California, 220 F.3d 987, 991, 997 (9th Cir. 2000). “Courts must be sensitive to the State’s interest in punishment, deterrence, and rehabilitation, as well as the need for deference to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of convicted criminals.” Brown v. Plata, 563 U.S. 493, 511 (2011). Section 3626 thus “restrict[s] the equity jurisdiction of federal courts,” Gilmore, 220 F.3d at 999, and, “[b]y its terms . . . restricts the circumstances in which a court may enter an order ‘that has the purpose or effect of reducing or limiting the prison population.’” Plata, 563 U.S. at 511 (quoting 18 U.S.C. § 3626(g)). The PLRA’s “requirements ensure that the ‘last resort remedy’ of a population limit is not imposed ‘as a first step.’” Plata, 563 U.S. at 514 (quoting Inmates of Occoquan v. Barry, 844 F.2d 828, 843 (D.C. Cir. 1988)). “The release of prisoners in large numbers . . . is a matter of undoubted, grave concern.” Plata, 563 U.S. at 501.
Insofar as the Petitioners in this case are seeking release as a remedy for the allegedly unconstitutional conditions at the MDC—either for themselves or for their putative class members—Section 3626 prevents this Court from granting that relief. Under Section 3626, “[t]he authority to order release of prisoners as a remedy to cure a systemic violation of the Eighth Amendment is a power reserved to a three-judge district court, not a single-judge district court.” Plata, 563 U.S. at 500 (citing 18 U.S.C. § 3626(a)); 18 U.S.C. § 3626(a)(3)(B) (“In any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court.”).
Moreover, such an order may not be entered unless “(i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought
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to be remedied through the prisoner release order; and (ii) the defendant has had a reasonable amount of time to comply with the previous court orders.” 18 U.S.C. § 3626(a)(3)(A). And even a three-judge court may order prisoners released to remedy unconstitutional prison conditions “only if the court finds by clear and convincing evidence” that “crowding is the primary cause of the violation” and “no other relief will remedy [it.]” Id. § 3626(a)(3)(E)(i)-(ii).
Here, there can be no dispute that the instant lawsuit is a “civil action with respect to prison conditions” governed by Section 3626, which defines “civil action with respect to prison conditions” broadly to mean “any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but [that term] does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.” 18 U.S.C. § 3626(g)(2).6
Accordingly, Section 3626 strictly limits the relief that this Court may grant and precludes the Court from releasing inmates from the MDC as requested by Petitioners. Id. § 3626(a)(3)(B).
C. The Court Lacks Jurisdiction to Appoint a Special Master to Essentially Sit as an Article III Judge
Petitioners ask this Court to “[a]ppoint[] a Special Master on an emergency basis to Chair a Coronavirus Release Committee to evaluate Vulnerable Persons and make recommendations for ameliorative action for other persons at the MDC.” Pet., p.36 (Prayer for Relief) ¶ D. Petitioners’ request must be soundly rejected.
First, the Court cannot give a Special Master powers that even it does not have. See Livas, 2020 WL 1939583, at *8 (denying habeas petition seeking release of inmates due to COVID-19
6 One court recently reached this conclusion in an identical case. In Money v. Pritzker, Nos. 20-cv-2093 & 20-cv2094, 2020 WL 1820660 (N.D. Ill. Apr. 10, 2020), inmates from various Illinois Department of Correction facilities brought purported class action lawsuits seeking release of prisoners over 12,000 prisoners in light of the COVID-19 pandemic. The Court held that the PLRA prevented it from entering the relief requested by Petitioners for the release of inmates. Id. at *14.
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as the Court cannot serve as “a de facto ‘super’ warden” of the BOP facility). Federal courts are “ill equipped” to deal with problems of prison administration. See Turner v. Safley, 482 U.S. 78, 84 (1987) (quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989)). “Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.” Turner, 482 U.S. at 84-85 (“Prison administration is [] a task that has been committed to the responsibility of [the legislative and executive branches], and separation of powers concerns counsel a policy of judicial restraint.”).
And even if the Court had the authority to appoint a Special Master, no Special Master would have the powers conjured up by the Petitioners. In short, a Special Master does not, and indeed, cannot, possess the attributes that Article III of the Constitution demand here. “The role of the Special Master is not meant to supplant the role of the court.” Board of Governors of the Federal Reserve System v. Pharaon, 140 F.R.D. 642, 649 (S.D.N.Y.1991); Idan Comput., Ltd. v. Intelepix, LLC, No. CV-09-4849 (SJF)(ARL), 2010 WL 3516167, at *3 (E.D.N.Y. Aug. 27, 2010) (appointment of a special master is the exception, not the rule) (citations omitted).
Indeed, a Special Master would be ill-equipped to take over the authority (let alone have the collective depth of knowledge and experience) of BOP officials, prosecutors, district and magistrate judges to make the individualized, case-specific custody determinations that Petitioners seek here. See In re Bituminous Coal Operators’ Ass’n, 949 F.2d 1165, 1168 (D.C. Cir. 1991) (granting writ of mandamus against a district judge because the judge “has no discretion to impose on parties against their will ‘a surrogate judge,’ a substitute from the private bar charged with responsibility for adjudication of the case.”); Stauble v. Warrob, Inc., 977 F.2d 690, 695 (1st Cir.
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1992) (“Because Rule 53 cannot retreat from what Article III requires, a master cannot supplant the district judge.”). Indeed, it is long established that “Article III bars a district court ‘of its own motion, or upon the request of one party’ from ‘abdicat[ing] its duty to determine by its own judgment the controversy presented, and devolve that duty upon any of its officers.’” Stauble, 977 F.2d at 695 (quotation omitted).
Moreover, appointing a Special Master to chair Petitioners’ requested “release committee” is outside what Section 3626 permits. Section 3626 limits appointments of Special Masters to two specific contexts: to “conduct hearings on the record and prepare proposed findings of fact,” and, “during the remedial phase of the action,” to assist if the “remedial phase will be sufficiently complex to warrant the appointment.” 18 U.S.C. § 3626(f)(1)(A)-(B); Webb v. Goord, 340 F.3d 105, 111 (2d Cir. 2003) (affirming rejection of request to appoint a Special Master in prisoner litigation alleging violations of Eighth Amendment as inappropriate under 18 U.S.C. § 3626(a)(1)(A)).
Finally, Petitioners fail to address Rule 53(a)’s restrictions on the appointment of a Special Master. See Fed. R. Civ. P. 53. For example, Petitioners make no attempt to explain why criminal defendants cannot “effectively and timely” have their claims addressed by the “available district judge or magistrate judge of the district.” Fed. R. Civ. P. 53(a)(1)(C). Indeed, incarcerated criminal defendants have already raised their COVID-19 concerns in other cases in this district. See, e.g., United States v. Hamilton, No. 19 Cr. 54-01 (NGG), 2020 WL 1323036, at *2 (E.D.N.Y. Mar. 20, 2020); United States v. Redzepagic, No. 17 Cr. 228 (DRH) (AKT), Dkt. No. 118 (E.D.N.Y. Mar. 30, 2020). Additionally, as Respondent does not consent to the appointment of a Special Master, the Court should not take the unusual step of appointing one absent such consent. See Wasley Prod., Inc. v. Bulakites, Nos. 3:03-cv-383(MRK)(WIG), 3:03-cv-1790 (MRK)(WIG),
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2006 WL 3834240, at *11 (D. Conn. May 31, 2006) (“impermissible to refer fundamental issues of liability to a special master over the objection of one or more parties.”). Accordingly, Petitioners’ request for appointment of a Special Master should be denied. II. Even if the Court had Jurisdiction, Petitioners’ Claims are Subject to Dismissal
Even if the Court had jurisdiction (which it does not, as explained above), Petitioners’ claims are subject to dismissal under Fed. R. Civ. P. 12(b)(6).
A. Applicable “Deliberate Indifference” Standard The Eighth Amendment protects against the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. To satisfy the Eighth Amendment standards, prison officials “must provide humane conditions of confinement,” specifically they “must ensure that inmates receive adequate food, clothing, shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). Inmates alleging Eighth Amendment violations based on unsafe prison conditions must demonstrate that prison officials were deliberately indifferent to their health or safety by subjecting them to a substantial risk of serious harm. See Farmer, 511 U.S. at 834. Prison officials display a deliberate indifference to an inmate’s well-being when they consciously disregard an excessive risk of harm to the inmate’s health or safety. See Farmer, 511 U.S. at 838-40. It is “only ‘the unnecessary and wanton infliction of pain’ . . . [which] constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Whitley v. Albers, 475 U.S. 312, 319 (1986) (quoting Ingraham v. Wright, 430 U.S. 651, 670 (1977)). “[I]f a particular condition or restriction . . . is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment.’” Bell v. Wolfish, 441 U.S. 520, 539 (1979). “[T]he effective management of the detention facility . . . is a valid objective that may justify imposition of conditions” that are discomforting and restrictive, without the inference that such restrictions are intended as punishment. See Bell, 441 U.S. at 540. Moreover,
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“[it] is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock.” Wilson v. Seiter, 501 U.S. 294, 299 (1991).
“[A] prison official violates the Eighth Amendment only when two requirements are met”—both an objective and a subjective component. See Farmer, 511 U.S. at 834. First, the objective component of an Eighth Amendment claim requires that the deprivation must be “sufficiently serious.” Farmer, 511 U.S. at 833. “[O]nly those deprivations denying ‘the minimal civilized measure of life’s necessities’ . . . are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson, 501 U.S. at 298 (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). In claims like this, an inmate must show that he is incarcerated under conditions posing a substantial risk of harm. See Farmer, 511 U.S. at 834. “[T]he alleged deprivation must be sufficiently serious, in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal quotation marks and citation omitted).
Second, the subjective component relates to the defendant’s state of mind, and requires deliberate indifference. See Farmer, 511 U.S. at 834. “[O]nly the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” Farmer, 511 U.S. at 834 (quotation omitted). The subjective prong or second requirement that must be shown before an Eighth Amendment violation can be found is that the prison official must have a “sufficiently culpable state of mind.” Farmer, 511 U.S. at 833; Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) (requiring “a sufficiently culpable state of mind.”) (citing Wilson, 501 U.S. at 300). “To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more
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than ordinary lack of due care for the prisoner’s interests or safety.” Whitley, 475 U.S. at 319. As the Supreme Court explained “[i]n prison-conditions cases that state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Farmer, 511 U.S. at 834 (quotation omitted). Thus, to establish a violation of the Eighth Amendment, the inmate must show prison officials “knows of and disregards an excessive risk to inmate health or safety.” Id. at 837 (emphasis added).
To prove the second element, Petitioners must show that “the charged official act[ed] or fail[ed] to act while actually aware of a substantial risk that serious inmate harm will result. . . . The reckless official need not desire to cause such harm or be aware that such harm will surely or almost certainly result. Rather, proof of awareness of a substantial risk of the harm suffices.” Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 835-37, 842).
A showing of the subjective “deliberate indifference” element “requires more than negligence, but less than conduct undertaken for the very purpose of causing harm.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (citing Farmer, 511 U.S. at 835). That is, the “deliberate indifference” prong requires Petitioners to show that a prison official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Hathaway, 37 F.3d at 66 (quoting Farmer, 511 U.S. at 837). As discussed below, Petitioners here cannot establish a constitutional violation.7
7 Although the remaining Petitioners are not pretrial detainees, Petitioners assert violations under the Fifth Amendment. For pretrial detainees, the Fifth Amendment prohibits deliberate indifference to health or safety. Respondent assumes, for purposes of this motion only, that the analysis of a pretrial federal detainee’s claim of deliberate indifference to his medical needs under the Due Process Clause of the Fifth Amendment is the same as that for a convicted federal inmate under the Eighth Amendment. See Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000); Petitioners themselves view any distinction between the Fifth and Eighth Amendment standards as “immaterial.” Pet. ¶ 94 n.26. Under the Fifth Amendment, as under the Eighth Amendment, “prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844.
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B. Petitioners Are Not Subject to an Unreasonable Risk of Harm at the MDC Deliberate indifference does not cover all medical care or all harms, but rather “constitute[s] an unnecessary and wanton infliction of pain or [is] repugnant to the conscience of mankind.” Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). “[O]nly such indifference that can offend ‘evolving standards of decency” can establish a violation of the Eighth Amendment. See Estelle, 429 U.S. at 105-06. In the context of exposing prisoners to risk of communicable disease, a claim must be dismissed if it does not reach the law’s threshold of a threat that is so severe that it would be “contrary to current standards of decency for anyone to be so exposed.” Helling v. McKinney, 509 U.S. 25, 35 (1993). “[C]onditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional.” Rhodes, 452 U.S. at 347. “A prison official’s duty under the Eighth Amendment is to ensure ‘reasonable safety,’ a standard that incorporates due regard for prison officials’ unenviable task of keeping dangerous men in safe custody under humane conditions.” Farmer, 511 U.S. at 844-45. Here, Petitioners cannot establish that they have suffered a “sufficiently serious” deprivation. See Wilson, 501 U.S. at 297. Since first learning of COVID-19, BOP has instituted a multi-step action plan and taken extensive measures to mitigate the risks COVID-19 poses throughout its inmate population, including with respect to the inmate population at the MDC. Those measures, which are outlined in detail in the Declarations of Lieutenant Commander D. Jordan, RN/BSN (Dkt. No. 47-1) and Associate Warden Milinda King (Dkt. Nos. 18-1, 21), include strict limitations on inmate movement within the MDC, suspension of most visits to the MDC, enhanced screening of staff and inmates, and the implementation of the BOP’s “modified operations” plan. See Jordan Decl. ¶¶ 4-56. These measures have, thus far, been successful at preventing the transmission of COVID-19 into the MDC. To date, there are limited confirmed positive cases, inmate or staff, of COVID-19, and further limited number of inmates with serious
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health conditions requiring transport to a hospital for treatment. One of the Petitioners’ primary arguments is that inmates cannot effectively “socially
distance” within the MDC. See, e.g., Pet. ¶¶ 1, 33, 54. As described in detail in the Jordan and King Declarations, movement in and out of the MDC, and movement within the facility, has been minimized as much as possible. See Jordan Decl. ¶ 48; King Decl. (Dkt. No. 21) ¶ 4. Each housing unit has been provided with cleaning supplies. See Jordan Decl. ¶ 53. All inmates and staff have been provided masks to wear. See Jordan Decl. ¶ 56. Accordingly, Petitioners are not subject to an unreasonable risk of harm. See Hines v. Youssef, No. 1:13-cv-00357-AWI-JL, 2015 WL 164215, at *4 (E.D. Cal. Jan. 13, 2015) (“Unless there is something about a prisoner’s conditions of confinement that raises the risk of exposure substantially above the risk experienced by the surrounding communities, it cannot be reasoned that the prisoner is involuntarily exposed to a risk the society would not tolerate.”).
C. The BOP Has Not Shown Deliberate Indifference and Has Taken Appropriate Measures to Protect the Health of Inmates at the MDC and the Public
Petitioners likewise cannot prove that the official “knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. The test is subjective, meaning “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he [or she] must also draw the inference.” Id. To support a claim for deliberate indifference to future health problems, the condition of confinement complained about must be “sure or very likely to cause serious illness.” Helling, 509 U.S. at 33 (regarding exposure to environmental tobacco smoke). BOP’s significant efforts to mitigate infections at the MDC do not “shock the contemporary conscience” as required for the Petitioners to succeed on their constitutional claims. See Charles v. Orange County, 925 F.3d 73, 85 (2d Cir. 2019).
The Second Circuit has delineated the requirements of a conditions-of-confinement claim
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brought by inmates alleging inadequate medical care. In Charles v. Orange County, the Second Circuit held that “[i]n order to establish a violation of a right to substantive due process, a plaintiff must demonstrate not only government action but also that the government action was so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Charles, 925 F.3d 73, 85 (2d Cir. 2019) (citation and quotation marks omitted). In particular, an inmate raising a constitutional challenge to the medical care provided in detention must establish “(1) that [the inmate] had a serious medical need . . . and (2) that the Defendants acted with deliberate indifference to such needs.” Charles, 925 F.3d at 86. To establish deliberate indifference in the context of an inmate’s medical needs, the inmate had to prove that the defendant failed to provide treatment while having actual or constructive knowledge that doing so would pose a substantial risk to the detainee’s health. Id. at 87.
The BOP’s efforts to date have been effective, minimizing the spread of the contagion at the MDC. Petitioners claim that they face conditions of crowding and scant medical care resources. These claims lack merit. Petitioners ask that this Court second-guess the experts at the BOP during an ongoing and uncertain public health crisis, and immediately release a number of inmates into the general public. But Petitioners have failed to show that the BOP’s efforts to prevent the Petitioners’ infections with COVID-19, and its provision of medical care to Petitioners should they become ill, amounts to deliberate indifference to their medical needs.8
8 Multiple courts in this district agree and have denied requests for compassionate release and bail applications by inmates housed by the BOP with medical concerns complaining of their conditions of confinement as grounds for release. See, e.g., United States v. Carpenter, No. 19-70, 2020 WL 1909098, at *1 (2d Cir. Mar. 25, 2020) (affirming denial of inmate’s motion for bail so that he can stay isolated at home until the risk of COVID-19 in prison decreases, finding that his “medical situation is not significantly different from that of most inmates.”); United States v. Passley, No. 19 Cr. 534, 2020 WL 1815834, at *1, *4 (E.D.N.Y. Apr. 9, 2020) (denying defendant’s motion seeking a temporary order of pre-trial release on a secured bond, finding that his compromised immune system does not merit release); United States v. Deutsch, No. 18 Cr. 00502, 2020 WL 1694358, at *1 (E.D.N.Y. Apr. 7, 2020) (denying defendant’s motion for temporary release, explaining that defendant “does not have Type 1 or Type 2 diabetes, he does not suffer from any pre-existing respiratory issues, he is young, and his medical condition [-- diabetes --] appears well managed throughout his pretrial detention.”); United States v. Amato, No. 19 Cr. 442 (ILG) (E.D.N.Y. Mar. 27,
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Petitioners’ assertions are overly generalized and do not relate to the MDC specifically, or the measures implemented there. Indeed, Petitioners fail to recognize many of the implemented policies and procedures discussed above. The BOP has taken steps to provide all MDC inmates with adequate medical care, both with respect to the prevention of infection with COVID-19 as well as the treatment should they become infected with COVID-19.
While Petitioners may ultimately disagree whether the measures taken by the BOP are sufficient to protect and treat inmates (while carrying out its mission to effectuate detention and criminal sentences), a difference of medical judgment cannot support deliberate indifference. See Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011) (“a prisoner does not have the right to choose his medical treatment as long as he receives adequate treatment.”); Victor v. Milicevic, 361 F. App’x 212, 215 (2d Cir. 2010) (fact that a prisoner might prefer different treatment does not give rise to Constitutional violation) (internal quotation marks and citations omitted); Scott v. Benson, 742 F.3d 335, 340 (8th Cir. 2014) (difference of opinion over expert medical judgment fails to rise to the level of a constitutional violation). Public health officials are entitled to heightened deference when exercising science-based public health judgment during a public health emergency. United States ex rel. Siegel v. Shinnick, 219 F. Supp. 789, 791 (E.D.N.Y. 1963) (“judgment required is that of a public health officer and not of a lawyer used to insist on positive evidence to support action; their task is to measure risk to the public.”); Hickox v. Christie, 205 F. Supp. 3d 579, 594 (D.N.J. 2016) (Court will not second-guess discretionary judgments of public health officials).
Even if the rate of infection at the MDC were higher than reported based on the alleged
2020), Dkt. No. 254 (Court had already determined defendant was a danger to the community and declining to release defendant based on COVID-19 pandemic for 54-year-old who cited poor health and family history); United States v. Lipsky, No. 19 Cr. 203 (NGG) (E.D.N.Y. Mar. 24, 2020), Dkt. Entry dated Apr. 21, 2020 (declining to release defendant, previously detained as a danger to the community, based on general risks of COVID-19 pandemic).
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limited testing of inmates, the BOP has already taken significant steps to mitigate the spread of infection and taken steps to treat inmates with symptoms of infection. See, e.g., Jordan (Dkt. No. 47-1) and King (Dkt. Nos. 18-1, 21) Declarations. Petitioners must show that the MDC is deliberately indifferent to their medical needs as a result of the COVID-19 pandemic. But to the contrary, the MDC has actively responded to the pandemic and taken steps to prevent its spread and isolate infected inmates, if and when there is a need. The BOP has not been deliberately indifferent to the needs of the MDC inmates.
Another Court reached the same conclusion where the virus had already spread among inmates and staff at the facilities at issue. See Money v. Pritzker, Nos. 20-cv-2093, 20-cv-2094, 2020 WL 1820660, at *3, *18 (N.D. Ill. Apr. 10, 2020). Prison officials came forward “with a lengthy list of the actions they have taken to protect [the facility’s] inmates,” and recognized that prison officials there (like BOP staff here) “are trying, very hard, to protect inmates against the virus and to treat those who have contracted it.” Id. at *18. There was no evidence to “support any suggestion that [prison officials] have turned the kind of blind eye and deaf ear to a known problem that would indicate ‘total unconcern’ for the inmates’ welfare.” Id. (quotation omitted). Accordingly, the actions of prison officials were not deliberately indifferent but, instead, “easily pass constitutional muster.” Id.
Even if Petitioners disagree with the Respondent’s efforts to prevent the spread and treatment of COVID-19, the relevant standard here is deliberate indifference. The Respondent’s ongoing efforts to respond to the COVID-19 crisis soundly rebut any showing of deliberate indifference in this instance. Petitioners cannot establish that the conditions at the MDC, in light of the precautions being taken, are “sure or very likely” to lead to serious or fatal COVID-19 cases or that the facility has been deliberately indifferent to the risk of exposure. Petitioners have failed
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to state an Eighth Amendment claim because they have not pleaded sufficient facts that could support the necessary conclusions that conditions at the MDC are of the sort that would be “repugnant to the conscience of mankind,” or that officials have shown any indifference, much less deliberate indifference, to the risks posed by COVID-19. Instead, Petitioners have merely shown that they disagree with BOP’s approach to treating this medical crisis. As such, they have failed to state an Eighth Amendment claim, and this matter should be dismissed. III. The Petition’s Conclusory Putative Class Action Allegations Must Be Stricken
Notwithstanding Petitioners’ failure, to date, to move to certify their putative class, the putative class fails to satisfy Fed. R. Civ. P. 23(a)’s requirements of ascertainability, commonality, or typicality. First, the proposed class is not ascertainable. The key to class certification is defining the class in a way that makes administrative sense. See Scaggs v. New York State Dep’t of Educ., No. 06-CV-0799 (RRM) (WDW), 2009 WL 890587, at *2 (E.D.N.Y. Mar. 31, 2009). Although Rule 23 “contains no express requirement regarding ascertainability, the rule impliedly prohibits certification of a class that is not identifiable by reference to objective criteria.” In re Vitamin C Antitrust Litig., 279 F.R.D. 90, 116 (E.D.N.Y. 2012).
Here, Petitioners “seek to represent a class consisting of all current and future detainees in custody at the MDC during the course of the COVID-19 pandemic,” which may exceed well over 1,700 individuals. Pet. ¶ 110. Petitioners’ putative class is inherently ill-defined, as the putative class becomes a constant moving target. Because Petitioners have provided no evidence to show that they can meet the requirement of ascertainability, their putative class fails. See John v. Nat’l Sec. Fire and Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007) (where apparent from pleadings that there is no ascertainable class, court may dismiss the class allegation on the pleadings).
Next, there are no questions of law or fact common to the putative class. To show commonality, “[w]hat matters . . . is not the raising of common ‘questions’—even in droves—but,
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rather, the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (to satisfy Rule 23(a)(2) each class member’s claim must depend upon a common contention “of such a nature that it is capable of classwide resolution—which means that the determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke”). Petitioners’ putative class is incapable of classwide resolution, as it does not account for any of the myriad factors that are left to the discretion of both Article III judges and the BOP in making determinations that are central to whether a particular inmate should be released. Petitioners’ putative class seeks to blend pretrial, post-conviction, and post-sentencing inmates, despite the fact that these inmates have different criminal charges or convictions, have different lengths of remaining periods of imprisonment, feature different disciplinary histories, pose different dangers to the community and risks of flight, have different ages and medical histories, and rely on different resources should they be released from custody. Pet. ¶ 4. Indeed, during the April 1, 2020 TRO Hearing, this Court questioned if Petitioners’ action could be “an appropriate class action when there are . . . individual issues that would go to release, individual issues that could go to the medical circumstances.” See April 1, 2020 Tr. at 113:3-6.
Moreover, typicality requires that the named Petitioners’ claims be typical of each other and overlap factually and legally in a manner indicative of the claims of unnamed class members. See Brown v. Kelly, 609 F.3d 467, 475 (2d Cir. 2010). Petitioners have no basis to allege the unity or alignment of interests, either among themselves or with the other members of the proposed class, necessary to meet this requirement. Simply stated, in light of their widely-varying factual circumstances and procedural postures, Petitioners cannot represent “typical” claims of any single class. Petitioners’ claims of typicality are, in any event, self-defeating. For if the claims of the
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named Petitioners are typical of the rest of the class, then the defenses to those claims also apply

classwide. See Pagan v. Abbott Labs., 287 F.R.D. 139, 146 (E.D.N.Y. 2012) (typicality

requirement “ensure[s] that the class representative is not subject to a unique defense which could

potentially become the focus of litigation.”). Petitioners’ claims are subject to dismissal. Chunn

and McBride have already been released from the MDC, while Rabadi, Rodriguez, Lopez, and

Hair are post-conviction inmates (unlike the hundreds of pretrial detainees also in MDC custody).

Petitioners are inadequate class representatives for these reasons. See Caridad v. Metro-North

Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999). Accordingly, the Court should strike the class

action allegations because it is clear from the Petition itself that the requirements for maintaining

a class action cannot be met. See Johnson v. Connecticut Dept. of Admin. Serv., No. 3:11-cv-1106

(VLB), 2012 WL 414996, at *2 (D. Conn. Feb. 9, 2012).

CONCLUSION

The Court should dismiss the Petition in its entirety pursuant to Fed. R. Civ. P. 12(b)(1) or,

alternatively, 12(b)(6). Petitioners, on behalf of themselves only, can raise their requests for

release to the BOP or the appropriate trial or sentencing judge for individualized determinations.

Dated: Brooklyn, New York April 24, 2020

RICHARD P. DONOGHUE United States Attorney

By:

/s/

James R. Cho

Seth D. Eichenholtz

Joseph A. Marutollo

Paulina Stamatelos

Assistant U.S. Attorneys

(718) 254-6519/7036/6288/6198

james.cho@usdoj.gov

seth.eichenholtz@usdoj.gov

joseph.marutollo@usdoj.gov

pauline.stamatelos@usdoj.gov

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 Case 1:20-cv-01590-RPK-RLM Document 71 Filed 04/30/20 Page 1 of 5 PageID #: 1126

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF; ELODIA LOPEZ; and JAMES HAIR,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 1590

NOTICE OF MOTION
PLEASE TAKE NOTICE that upon the accompanying:
(a) Memorandum of Law in Support of Petitioners’ Motion for a Preliminary Injunction, dated April 30, 2020;
(b) Declaration of Ayman Rabadi, dated April 29, 2020;
(c) Declaration of Elodia Lopez, dated April 28, 2020;
(d) Declaration of James Hair, dated April 30, 2020;
(e) Declaration of Hassan Chunn, dated April 30, 2020;
(f) Facility Evaluation: Report of Metropolitan Detention Center by Dr. Homer Venters dated April 30, 2020;
(g) Declaration of Katherine R. Rosenfeld, dated April 30, 2020, with exhibits;
(h) Declaration of Katherine R. Rosenfeld re: class counsel, dated April 30, 2020;
(i) Declaration of Betsy Ginsberg, dated April 30, 2020;

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(j) Declaration of Alex A. Reinert, dated April 30, 2020;
(k) Declaration of Yeugenia (Jane) Shvets, dated April 30, 2020; and
(l) All pleadings and proceedings relevant to this action,
Petitioners, by their counsel, will move this Court on May 12, 2020, at 10:00 a.m., at the United
States Courthouse for the Eastern District of New York, 225 Cadman Plaza East, Brooklyn, NY
11201, before the Honorable Rachel P. Kovner, United States District Judge, for an Order,
pursuant to Federal Rule of Civil Procedure 65 preliminarily enjoining Respondent as follows:
1. Ordering immediate release of vulnerable persons, with appropriate precautionary public health measures, including Petitioner Rabadi (scheduled to be released on 7/19/2020); Petitioner Elodia Lopez (scheduled to be released on July 28, 2020), Petitioner James Hair (scheduled to be released on August 15, 2026), and all others confined at the Metropolitan Detention Center (“MDC”) who Respondent has identified as medically vulnerable due to underlying health conditions or age (“Vulnerable Persons”)—and therefore at higher risk of developing serious COVID-19 illness;
2. Conditionally certifying the class or awarding class-wide relief under the Court’s general equity powers;
3. Ordering screening of all detainees for multiple COVID-19 signs and symptoms, even when individual temperatures are within normal limits;
4. Ordering screening for all detainees who arrive at the MDC consistent with CDC guidelines, including for those returning from hospital admissions, and those who are transferred from other correctional settings;
5. Ordering adoption of a standardized COVID-19 surveillance tool which includes COVID-19 symptoms and signs, including temperature checks, to be administrated twice daily by nursing staff to all incarcerated persons who possess high-risk factors, patients in quarantine, and patients in isolation;
6. Ordering all patients who are suspected or confirmed to have COVID-19 to receive a standardized clinical evaluation at least daily by nursing staff in a clinical setting and not cell-side;
7. Ordering same-day review of every sick-call slip and electronic submission that will (i) trigger immediate (same day or next morning)
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assessment for COVID-19; and (ii) provide data that creates a facility wide symptom tracking dashboard that health care staff will use;
8. Ordering the identifying, cohorting and testing of all detainees who possess risk factors for serious illness or death from COVID-19;
9. Ordering the quarantine of all high-risk detainees into units with routine checks for COVID-19 signs and symptoms, including temperature;
10. Ordering that all quarantine units follow CDC guidelines for management of COVID-19 including the use of appropriate personal protective equipment (“PPE”), cleaning of common surfaces, and exclusion of individuals not suspected to or confirmed to have COVID-19; including twice daily sign and symptom surveillance, including temperature;
11. Ordering testing of patients who possess more than one sign and/or symptom of COVID-19;
12. Ordering testing of staff who possess (i) risk factors for serious illness or death from COVID-19; or (ii) more than one sign and/or symptom of COVID-19;
13. Ordering that all staff wear PPE, including masks, when interacting with any person or when touching surfaces in cells or common areas;
14. Ordering that sufficient disinfecting supplies are provided, free of charge, so incarcerated people can clean high-touch areas or items (including, but not limited to, phones and computers) between each use;
15. Ordering the repair of emergency call-buttons in cells in which those do not work; in the interim, conduct frequent medical rounds in those units where there are malfunctioning call buttons;
16. Ordering training for all staff and orderlies on the importance of reporting health-related problems among detainees to medical staff;
17. Ordering rotation of Spanish-speaking health staff, so that access to medical staff is maximized;
18. Ordering that each incarcerated person receives, free of charge, adequate personal hygiene supplies for hand washing, disinfectant products effective against the virus that causes COVID-19 for daily cleanings; and access to daily showers and daily access to clean laundry;
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19. Ordering adequate spacing of six feet or more between people incarcerated, to the maximum extent possible at the MDC’s current population level, so that social distancing can be accomplished;
20. Ordering appropriate facility staff to orient other staff and detained people on proper use of masks and gloves and other PPE and detained people to be provided with adequate access to masks and gloves at no cost to them and the facility to provide replacements when those masks become damaged;
21. Ordering weekly COVID-19 information sessions for detainees and correctional staff by a member of the MDC health team, that include the status of the outbreak, efforts to mitigate the spread of COVID-19, opportunities for questions, and distribution of written materials; and
22. Appointing a Special Master or Court-appointed expert to oversee implementation of the Court’s ameliorative injunctive relief, to make recommendations to the Court regarding the release of members of the Medically Vulnerable Subclass who the Court has not already ordered released, and to make additional recommendations for ameliorative action at the MDC.
PLEASE TAKE FURTHER NOTICE that pursuant to the Court’s schedule, opposition papers, if any, shall be served no later than May 7, 2020, and Petitioners’ reply papers, if any, shall be served no later than May 11, 2020.
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Dated: New York, New York April 30, 2020

EMERY CELLI BRINCKERHOFF & ABADY LLP
By: /s/ Katherine Rosenfeld Katherine Rosenfeld O. Andrew F. Wilson Samuel Shapiro Scout Katovich 600 Fifth Avenue, 10th Floor New York, NY 10020 (212) 763-5000
CARDOZO CIVIL RIGHTS CLINIC Betsy Ginsberg Cardozo Civil Rights Clinic Benjamin N. Cardozo School of Law 55 Fifth Avenue, 11th Floor New York, NY 1003 (212) 790-0871
ALEXANDER A. REINERT, ESQ. 55 Fifth Avenue, Room 1005 New York, NY 1003 (212) 790-0403
DEBEVOISE & PLIMPTON LLP Yeugenia (Jane) Shvets 919 Third Avenue New York, NY 10022 (212) 909-6000
Attorneys for Petitioners and Putative Class

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF; ELODIA LOPEZ; and JAMES HAIR,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 01590
DECLARATION OF AYMAN RABADI

Ayman Rabadi declares the following under penalty of perjury and pursuant to 28 U.S.C. § 1746: 1. My name is Ayman Rabadi. I am 59 years old and I will turn 60 on May 29, 2020. I
have been incarcerated at the Metropolitan Detention Center for approximately 4 months. 2. I have served approximately 18 months of a 24-month sentence. I am scheduled to be
released on July 19, 2020. 3. When I am released, I can return to my family home of the past thirty years, where I will
live with my adult daughter and her family. I will be able to isolate myself and take precautionary measures against COVID-19. I will also be able to resume medical care from my primary care and cardiac doctors, both of whom are located in in Yonkers, New York.
4. I have a number of serious medical conditions including a diagnosed heart condition, anxiety, asthma, and diabetes. I suffered a heart attack approximately six years ago, and thereafter I had several stents placed in my heart. I have a tumor in one of my kidneys which is being monitored via ultrasound. I also suffer from severe anxiety and depression.

Case 1:20-cv-01590-RPK-RLM Document 71-1 Filed 04/30/20 Page 2 of 4 PageID #: 1132
5. In 2019, while I was incarcerated, I suffered a stroke and I was in the intensive care unit for four days at Westchester County Medical Center.
6. I take medication for high blood pressure, cholesterol, diabetes, and blood thinners. I currently take more than a dozen medications a day. I ran out of seizure medication last month, and when I told an officer, he said “too bad.”
7. I also have an anal fistula that is bleeding constantly and very painful. I can’t adequately clean it every day because I have little access to the showers. I am concerned about getting an infection. A few months ago, the MDC gave me pampers to deal with the bleeding from the fistula. Right now, I am just using regular napkins to stop the bleeding.
8. My glasses broke about a month ago. I can’t see without my glasses. I asked for help and an officer said: “We don’t fix glasses.”
9. Over the past several months, I have put in many sick call requests. No one has responded to them. I have made requests on the computer and by writing them down. I have also asked the guards to request medical for me. I have asked many times for someone to check my blood sugar because I am diabetic, but these requests are ignored.
10. In the last few weeks, the medical staff started taking everyone’s temperatures in the housing unit. At first, it was two times a day. Then, the nurse came by once a day. If I asked her anything, she didn’t want to hear it. She never asked me any questions about my health. For the last week, no one has taken my temperature.
11. I am currently housed on Unit 82. I have been here for about two months. I share a small cell with another person. My cellmate and I share a toilet and a sink. My cellmate has high blood pressure and he takes medication for that.
2

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12. I am locked in my cell 24 hours a day except for three days a week when I can leave for about 30 minutes. I can’t exercise or walk, even though my doctor has advised me that I need to walk around for my health. It’s only one step from my toilet to my bed. We are fed meals through a hole in the door. The tight quarters are causing people to get on each other’s nerves; there is a lot of tension on the unit.
13. A few weeks ago, I asked an officer for more soap and I was told, “No, we ran out.” I tried to buy soap from commissary and a guard told me that the commissary doesn’t have any soap I can buy.
14. I don’t have anything to clean my cell with. We had a bottle of cleaning solution for the last two months but it is now used up and we were told that there is no more. For a long time, no one was cleaning the common areas but now they started to clean them. I was putting a sock over the phone when I called my wife because the phone was so dirty.
15. I first received a face mask on about April 15th. I then got a second mask in the last few days. I have no gloves. People in the unit are not wearing their masks when they leave their cells, and no one is telling them to wear them.
16. The officers on this unit started wearing masks and gloves about five days before my lawyers came for an inspection.
17. About a month ago, one guy on our unit disappeared after he developed a bad cough. Then he came back to the unit, wearing a mask. He was the only person on the unit with a mask, out of 90 people. Later, they locked everyone down for 14 days. They came back and said “we’re locking you until May 18th.” When people are coughing, the guards tell them: “Stay away.”
3

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18. About two weeks ago, a person on the unit had a kidney stone, and he was on the floor in great pain. Nobody responded for an hour, and when medical came, the staff member said: “Get up,” but the man couldn’t get up.
19. When I leave my cell to go out to the shower, I hear guys coughing, saying they have fevers. Everyone is coughing and sneezing and sick.
20. In the last week, two new people moved onto our unit. They said they had been transferred from Allenwood, Pennsylvania.
21. Because of my age, heart condition, anxiety, diabetes, and other medical conditions, I am at high risk for complications from COVID-19 infection. I am scared that I will die here. I worry that if I get it, I will not walk out here. Executed on: April 29, 2020
Brooklyn, New York As reported by Ayman Rabadi to Katherine Rosenfeld of Emery Celli Brinckerhoff & Abady LLP /s/ Katherine Rosenfeld Counsel to Ayman Rabadi
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF; ELODIA LOPEZ; and JAMES HAIR,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 01590
DECLARATION OF ELODIA LOPEZ

Elodia Lopez declares the following under penalty of perjury and pursuant to 28 U.S.C. § 1746: 1. My name is Elodia Lopez. I am 55 years old. I am currently incarcerated at the
Metropolitan Detention Center where I am serving a 15-month sentence. I arrived here in January 2020. I am scheduled to be released on July 28, 2020.
2. I have a number of medical conditions. I suffer from high blood pressure, high cholesterol, a pituitary condition, and Type II diabetes for which I take insulin. I also take medications for my high blood pressure and cholesterol every day.
3. On many occasions, I have asked the person who comes around to give me insulin if she can check my blood pressure. When I was home, I had my blood pressure checked frequently at a clinic, sometimes every three days. Here, my blood pressure is not checked regularly.
4. I recently had a serious lung infection that was discovered in approximately November 2019, which makes it difficult for me to breathe, causes my throat to close,

Case 1:20-cv-01590-RPK-RLM Document 71-2 Filed 04/30/20 Page 2 of 5 PageID #: 1136
and causes me to experience high fever and chills. When I asked for medical care at the MDC, I was given Vitamin D and told to buy medicine to manage the pain. I am supposed to be taking medication for the infection, but I have not received the medicine since I arrived at the MDC four months ago.
5. Recently, I have experienced problems breathing, a stuffy nose, and headache. I also feel depressed and scared.
6. Since the pandemic started, no one has come to my housing unit to take my temperature. No one has asked me if I have any symptoms. The only thing the jail told us about the coronavirus is “keep your distance” from other inmates.
7. I am housed in the women’s dormitory of the MDC. I sleep in an open dormitory in a bunk bed. About one week ago, the officers told us to sleep in the bunk beds alternating “one up, one down.” I share a bathroom, tables, and chairs with other women.
8. One older woman in my dorm, who sleeps only feet away from me, has recently been displaying COVID-19 symptoms. The medical staff took her out of the unit for 20 minutes, and then she returned.
9. I was recently given a mask. I also receive a small bar of soap once a week. I do not have gloves or hand sanitizer. The officers on the unit started to wear gloves and masks about three weeks ago, but they don’t always wear them
10. I heard from staff that a Lieutenant who worked on our unit tested positive for COVID-19. That scared me. But no one came and informed us of this formally or asked us if we had been in contact with him.
11. Inmates in my unit clean our bathroom, the same number of times a week as they did before the coronavirus. Last Friday, a man came into the unit with some very strong
2

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cleaning liquid to clean the floors around the tables where we eat. It was such strong liquid that I coughed a lot.
12. Because of my lung condition, I am sensitive to strong cleaning products and smells. I can’t use the product they provide on my locker or my bunk bed, it hurts my lungs too much. I use very hot water and soap to clean my locker and bed instead.
13. We eat our meals in a group around the tables. We pull the mask to our chin to take a bite and then put it back up to our face.
14. I hope to be released soon so I can go live with my daughter.

Executed on: April 28, 2020 Brooklyn, New York

As reported by Elodia Lopez to Katherine Rosenfeld of Emery Celli Brinckerhoff & Abady LLP
/s/ Katherine Rosenfeld
Counsel to Elodia Lopez

.

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Exhibit 1

Case 1:20-cv-01590-RPK-RLM Document 71-2 Filed 04/30/20 Page 5 of 5 PageID #: 1139

TO: LOPEZ, Elodia Reg. No.: 05490-052

INMATE REQUEST TO STAFF (RESPONSE)

DISPOSITION:

This is in response to your email dated March 24, 2020, wherein you request to be considered for a compassionate release pursuant to 18 U.S.C. §3582 and Bureau of Prisons Program Statement 5050.50, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§3582(c) (1) (A) and 42D5(g}. You state you have.diabetes, high blood pressure, cholesterol, thyroid, and pulmonary conditions.

A review of Program Statement 5050.49, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§3582(c} (1) (A) and 4205(g), indicates you do not meet any of the criteria established in this program statement. Your medical record does not identify any medical conditions ~o reflect a terminal or debilitated medical condition, as set forth in Program Statement 5050.50. Also, you have not provided any additional evidence or information in support of the request. Accordingly, the request for a compassionate release is denied at this time.

If

t satisfied with this response, you may appeal

ministrative Remedy Program.

Case 1:20-cv-01590-RPK-RLM Document 71-3 Filed 04/30/20 Page 1 of 6 PageID #: 1140

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF; ELODIA LOPEZ; and JAMES HAIR,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 01590
DECLARATION OF JAMES HAIR

James Hair declares the following under penalty of perjury and pursuant to 28 U.S.C. § 1746:
1. My name is James Hair. I am 29 years old. I have been incarcerated at the Metropolitan Detention Center (“MDC”) since February 4, 2020.
2. I am a sentenced inmate in transit to my designated facility. My scheduled release date is August 15, 2026.
3. When I am released, I intend to live with my fiancé in Baltimore. She has an apartment near to the hospital where I can go for regular medical treatment.
4. I was diagnosed with multiple sclerosis in 2018. The disease causes me headaches, numbness, and tingling, and has caused me to have approximately 4 seizures in the past two years. Most recently, I had a seizure in March that caused me to chip my tooth. My cellmate saw this most recent seizure.

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5. At the MDC, they are refusing to give me any medication for my MS because they claim it will place me at risk for COVID, because MS has immune system involvement. Without any medication, my MS is causing me to experience a lot of pain and numbness.
6. I also suffer from asthma and use an inhaler. In late 2019, I had an asthma attack and was taken to the hospital.
7. At my previous facility, Ft. Dix in Maryland, they did chest and kidney scans on me and told me that I needed follow up for lung issues and abnormal cells on my left kidney. Recently, I have been experiencing extreme pain in my lower left back, near where my left kidney is. I told a doctor at the MDC about the scan results from Ft. Dix that showed abnormal cells on my left kidney and was told not to worry about it.
8. I also had a colonoscopy done, which I am told showed a bacterial infection. 9. Several weeks ago, I began noticing blood in my stool; it is present about 90% of the time. 10. In late 2019, I began vomiting multiple times per week, on average, and frequently seeing blood in my vomit. I have shown the blood in my vomit to staff at the MDC. 11. I have also had a severe earache on and off three or four weeks. 12. I have put in numerous cop-outs since arriving at the MDC for trouble breathing (shortness of breath), blood in my stool and vomit, pain in my lower back/kidneys and a severe earache. 13. I finally saw a doctor, on April 9, 2020, after a judge in Brooklyn ordered that I be seen. I told the doctor I have asthma and I have been having breathing issues. The doctor gave me a new asthma inhaler that gave me hives. I now use only a rescue inhaler.
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14. The doctor did not believe I had blood in my stool; he was trying to tell me it was constipation. So I showed him a tissue with blood on my stool. He gave me Imodium.
15. He did not give me anything for the blood in my vomit. 16. I have put in numerous sick calls over the last four weeks. 17. On April 3, 2020, I told the CO that I felt sick and had seen blood in my stool. 18. On April 4, 2020, I told the CO I felt sick and my ear was hurting acutely. 19. On April 5, 2020, I told the CO I still had a bad earache. 20. On April 6, 2020, I was coughing up blood and asked the CO three different times (at each mealtime) to please call medical, and I also showed the CO a cup of my vomit with blood in it. 21. On April 15, 2020, I asked the CO to call medical because I was short of breath and had used the asthma twist inhaler and broken out in hives. Later that same day I put in two more sick calls and begged the CO to get the nurse because I was having trouble breathing. 22. On April 16, 2020, I asked three times to see medical because I was short of breath and breaking out into hives. 23. On April 17, 2020, I again asked for medical care for my ear and my lower back/kidney. 24. On April 18, 2020, I asked to be seen by medical because of continuing back/kidney pain and more blood in my stool. The CO told me no medical staff is here on the weekend. 25. On April 19, 2020, I asked for medical twice, once at 1:38 p.m., and again at 6:38 p.m. The counselor told me he had put my cop-out in and would have to wait for medical to call me.
3

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26. On April 20, 2020, I asked the CO about seeing medical. She said she called the medical officer, but no one came. Later that same day I asked my counselor about medical and he said all he could do was put the sick call into medical—it was up to them whether to come or not.
27. On April 21, 2020, I asked for medical because I was coughing up blood. My lawyer asked the judge to ensure I receive medical care. I saw a nurse that day.
28. On April 22, 2020, I saw a doctor for blood work that was supposed to have been done weeks earlier. The doctor told me he could hear me wheezing, and that I had an infection in my stomach.
29. On April 23, 2020, I told the woman who passes out medication that I was short of breath and my chest hurt. I asked her to check my vitals. She refused to do so and shut the door on me.
30. On April 24, 2020, I asked the CO to call medical because my back and stomach hurt. The CO came back two hours later and said there was no one available to see me. A physician’s assistant on the pill line refused to help me because he said he was not licensed.
31. On April 26, 2020, I wrote a sick call because my MS was acting up and I was having trouble urinating. Previously, I’ve had to use a catheter because of issues related to my MS.
32. On April 27, 2020, I asked to go to medical because I couldn’t breathe, my chest felt tight, and I was coughing. An orderly heard how much trouble I was having breathing, but finished rounds for about an hour before assisting me. I finally saw a nurse who gave me a nebulizer. I also told the nurse that I was having a bad reaction to the seven new medications
4

Case 1:20-cv-01590-RPK-RLM Document 71-3 Filed 04/30/20 Page 5 of 6 PageID #: 1144
that I am now on. The nurse told me to stop taking the medications together. The nurse also listened to my chest with a stethoscope and told me he heard wheezing.
33. I continue to experience shortness of breath and tightness in my chest. 34. I asked a doctor to test me for coronavirus on April 22, 2020. The doctor refused to give me a test and discouraged me from even asking for one. 35. I am nervous that my efforts to get medical care are going to get me in trouble. COs warned me the other day that I could be put in the SHU. I took their threat to mean that I will be put in the SHU if I do not stop complaining. 36. I am currently housed on Unit 63. I have been here since I arrived at the MDC in February. I share a small cell with another person. My cellmate and I share a toilet and a sink. 37. As far as I am aware, no one on my unit is being systematically tested for COVID symptoms, and no one’s temperature is being taken regularly. 38. I am locked in my cell 24 hours a day every other day. On alternate days, I can leave for about one hour. 39. Everyone on my unit shares tables, chairs, phones, computers, toilets, and showers. The showers are not being cleaned well; there is mold everywhere. Orderlies do not always wipe down the phones and computers. When they do, they often use the same rag to wipe the phones and computers that they use to wipe the tables and chairs, without cleaning the rag between uses. 40. We are not giving any materials to clean our cells with.. 41. Approximately four or five new people have been brought to my unit since the lockdown began.
5

Case 1:20-cv-01590-RPK-RLM Document 71-3 Filed 04/30/20 Page 6 of 6 PageID #: 1145
42. There are three or four people who I hear coughing over and over and asking for medical care. The officer tells them he is busy. The pill line lady says she only deals with pharmacy. The doctors don’t come to the unit unless you get the judge to order them to come.
43. We get soap once a week, at most, but it is enough for only about two washings. 44. We are given one thin surgical mask once a week. 45. We do not receive any gloves. 46. Sometimes the guards on my unit wear gloves; sometimes they do not. Sometimes the guards wear masks; sometimes they do not. 47. Because of my multiple sclerosis, my kidney issues, my asthma, and my other medical conditions, I am at high risk for complications from COVID-19 infection. I am very concerned that the jail’s inadequate quarantine program, slow to nonexistent medical care, and inconsistent preventative measures have not meaningfully reduced the likelihood that I will get sick and suffer potentially catastrophically health outcomes. Indeed, I am afraid for my life. Executed on: April 30, 2020
Brooklyn, New York As reported by James Hair to Samuel Shapiro of Emery Celli Brinckerhoff & Abady LLP /s/ Samuel Shapiro Samuel Shapiro Counsel to James Hair
6

Case 1:20-cv-01590-RPK-RLM Document 71-4 Filed 04/30/20 Page 1 of 5 PageID #: 1146

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF; ELODIA LOPEZ; and JAMES HAIR,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 01590 (RPK)
DECLARATION OF HASSAN CHUNN

Hassan Chunn declares the following under penalty of perjury and pursuant to 28 U.S.C. § 1746:

1. My name is Hassan Chunn. I am 46 years old. 2. I was incarcerated at the Metropolitan Detention Center (“MDC”) from September 10, 2019 until my release around April 8, 2020. I am now living with my mother in Brooklyn. The Conditions at MDC as I Observed Them During my Incarceration 3. During my incarceration, I was housed in Unit K83 with around 120 inmates. For about 11 days at the beginning of March, our unit was quarantined, meaning we could not exit the unit. We could still, however, congregate with other prisoners in our unit. We were not issued masks during this time. 4. During this time, medical staff began taking our temperatures, at first twice a day, then once a day. However, they did not ask us any questions during the temperature checks.

Case 1:20-cv-01590-RPK-RLM Document 71-4 Filed 04/30/20 Page 2 of 5 PageID #: 1147
5. Also, during this period, there was a prisoner, Joe, living in my unit who was coughing so much that it appeared he had bronchitis. He and his cellmate were removed from the unit. When they returned to the unit shortly before I left MDC, Joe told me he had not been tested – he had simply been returned to the unit after 14 days of isolation.
6. Around the end of March or beginning of April, we went on lockdown. That meant we could only be out of our cells three days a week for 30 minutes at a time. During those 30 minutes, we could use computers, phones, and the showers. We had to choose which task to do in those 30 minutes, and were also told to disinfect our cells during that time. It was impossible to do everything we needed to do in 30 minutes.
7. The prison did not enforce social distancing when they let us out of our cells. They would let us out 20 inmates at a time, but the staff did not care if inmates were within six feet of each other. We also could not keep six feet away if we were using the computers, which were placed close to each other.
8. There were no spray bottles provided to disinfect computers or phones. We also were not given any gloves to use with the computers or phones. I used to put a sock over the phone whenever I would make a call to separate my face from the dirty phone.
9. On April 5, I was given one mask that we had to reuse. I never received any other mask or other protective supplies.
10. When we went on lockdown, medical staff stopped coming to check our temperatures. There were emergency buzzers in our cells that we could have used to call for help, but they were deactivated and did not work.
2

Case 1:20-cv-01590-RPK-RLM Document 71-4 Filed 04/30/20 Page 3 of 5 PageID #: 1148
11. To get our laundry done, we would drop our laundry bags outside of our cell doors whenever the food service came around. The laundry porter of the unit would take the bag and return the laundry later.
12. Many people in Unit K83 worked in the kitchen. So, even during lockdown, some inmates were cooking and serving food. They were not given gloves to use in the kitchen.
13. On April 7, my cellmate told me one of the cadre inmates had tested positive, and had been working in the kitchen area. That cadre inmate had interacted with many other inmates from other units, as well as with staff members.
14. While we were on lockdown, the prison was still moving new inmates into our unit. We did not know where the inmates came from – whether it was from the outside, or the SHU, or elsewhere.
15. During lockdown, the staff fed us and, if they were part of the AM shift, would take us to the showers. There were staff shortages, though – the food was always late, and some days we didn’t get our mail.
16. I saw staff wearing surgical masks, but did not see anyone wearing N-95 masks. Some staff wore scarves instead of masks. Generally, however, staff seldom wore any face covering. Most staff members also did not have gloves. Only medical staff had face shields and gowns.
17. Even though the staff did not have proper PPE, they often moved between units during the course of their duties.
3

Case 1:20-cv-01590-RPK-RLM Document 71-4 Filed 04/30/20 Page 4 of 5 PageID #: 1149
My Health Problems and Lack of Medical Care during my Incarceration 18. I have a number of serious medical conditions including Coronary Heart Disease,
high blood pressure, diabetes, and asthma. I have two stents in my heart, have had episodes of chest pain and difficulty breathing, have had a heart attack, and have suffered from feverinduced seizures.
19. A number of these conditions are documented in my medical records from Jamaica Hospital, which indicate that I received care in 2017 for coronary artery disease, poorly controlled hypertension, and obesity.
20. While at MDC, I frequently had to wait weeks before receiving medical attention. 21. After the COVID-19 pandemic started, I filed an electronic sick call request identifying certain symptoms, including a dry cough and tightness in my chest. My cellmate had the same symptoms at the same time, and also filed a sick call request, also called a “cop-out.” No medical staff ever responded. 22. The medical staff came around sometimes to give me refills on medication. When they gave me my medication, I brought my symptoms to their attention. They told me that they could not see me, and that I needed to submit cop-out. I told them I had already done so. They responded that I just had to wait to be seen. I was never seen by medical staff after submitting my cop-out. 23. On the day of my release, I was taken directly from Unit K83 to the exit at MDC. The staff did not check my temperature or give me any medical supplies or masks – they just told me to call a relative to pick me up and leave.
4

Case 1:20-cv-01590-RPK-RLM Document 71-4 Filed 04/30/20 Page 5 of 5 PageID #: 1150 24. Because of my conditions, I was at high risk for complications from COVID-19
infection. I am very concerned about MDC’s inadequate protection of its prisoners and slow to nonexistent medical care. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct Executed on: April 30, 2020
Brooklyn, New York /s/ Hassan Chunn Hassan Chunn
5

Case 1:20-cv-01590-RPK-RLM Document 71-5 Filed 04/30/20 Page 1 of 3 PageID #: 1151

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF; ELODIA LOPEZ; and JAMES HAIR,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 1590
DECLARATION OF KATHERINE R. ROSENFELD

KATHERINE R. ROSENFELD, an attorney duly admitted to practice in the Eastern District of New York, declares under penalty of perjury:
1. I am a partner in the firm of Emery Celli Brinckerhoff & Abady LLP (“ECBA”), attorneys for the Petitioners in this action.
2. I respectfully submit this declaration in support of Petitioners’ Motion for Preliminary Approval of the Class, and Appointment of Plaintiffs’ Counsel as Class Counsel.
3. ECBA possesses extensive experience handling class actions and complex litigation in federal courts. In a class action where ECBA served as lead counsel, one court described ECBA as “preeminent.” Brown v. Kelly, 244 F.R.D. 222, 233 (S.D.N.Y. 2007), aff’d in part, vacated in part on other grounds, 609 F.3d 467 (2d Cir. 2010). Courts have taken “judicial notice of ECBA’s high reputation, finding it to be one of the most competent, successful, and reputable civil rights firms practicing in this Court.” Wise v. City of N.Y., 620 F. Supp. 2d 435, 445 (S.D.N.Y. 2008) (citation omitted); see also id. at 446 (noting that the Court

1

Case 1:20-cv-01590-RPK-RLM Document 71-5 Filed 04/30/20 Page 2 of 3 PageID #: 1152

“has the highest regard for the abilities of the ECBA attorneys in this case”); Vilkhu v. City of N.Y., No. 06 Civ. 2095, 2009 WL 1851019, at *3 (E.D.N.Y. June 26, 2009) (noting ECBA’s “collective experience [and] success rate”), vacated on other grounds, 372 F. App’x 222 (2d Cir. 2010); Harvey v. Home Savers Consulting Corp., No. 07 Civ. 2645, 2011 WL 4377839, at *4 (E.D.N.Y. Aug. 12, 2011) (noting ECBA’s “excellent reputation”); McBean v. City of N.Y., 260 F.R.D. 120, 132 n.17 (S.D.N.Y. 2009) (finding that “the services . . . provided by [ECBA] in this matter amply demonstrate counsel’s ability and determination to represent the class effectively”).
4. ECBA has served as class counsel in the following certified class actions, among others: Nunez v. City of New York, No. 11 Civ. 5845 (S.D.N.Y.) (certified class action alleging widespread use of excessive force by correction officers at Rikers Island); Almendras, et al. v. Atelier Mériguet-Carrère, et al., No. 13 Civ. 8815 (S.D.N.Y.) (wage and hour class action settlement finally approved February 5, 2015, awarding substantial monetary relief to painters misclassified as independent contractors); Sykes v. Mel Harris & Assocs., LLC, 285 F.R.D. 279 (S.D.N.Y. 2012) (certifying Rule 23(b)(2) and (3) classes of persons injured by fraudulent scheme to obtain default judgments in violation of, inter alia, RICO and the New York Consumer Protection Act), aff’d, 780 F.3d 70 (2d Cir. 2015); Dugan v. London Terrace Gardens, L.P., 986 N.Y.S.2d 740 (N.Y. Sup. Ct. 2013) (certifying, under state law, a class of tenants alleging that defendants charged excessive rents);1 Tyson v. City of N.Y., No. 97 Civ. 3762 (S.D.N.Y.) (class of 60,000 settled for $50 million); McBean, 260 F.R.D. 120 (S.D.N.Y. 2009) (certifying Rule 23(b)(3) class of persons subjected to unlawful misdemeanor pre-trial strip search policy); Casale v. Kelly, 257 F.R.D. 396 (S.D.N.Y. 2009) (certifying Rule 23(b)(2) and (b)(3) classes of persons arrested for subsections of loitering statute declared unconstitutional);

1

ECBA has also represented certified classes in several similar actions in state court. E.g., Gerard v.

Clermont York Assocs. LLC, No. 101150/2010 (N.Y. Sup. Ct.); Casey v. Whitehouse Estates, Inc., No. 111723/11

(N.Y. Sup. Ct.); Bleknap v. First New Amsterdam Realty LLC, No. 113269/11 (N.Y. Sup. Ct.).

2

Case 1:20-cv-01590-RPK-RLM Document 71-5 Filed 04/30/20 Page 3 of 3 PageID #: 1153
In re Nassau Cnty. Strip Search Cases, 461 F.3d 219 (2d Cir. 2006) (reversing and certifying Rule 23(b)(3) class of persons subjected to unlawful misdemeanor pretrial strip search policy); D.D. v. N.Y.C. Bd. of Educ., No. 03 Civ. 2489, 2004 WL 633222 (E.D.N.Y. Mar. 30, 2004) (certifying Rule 23(b)(2) class of New York City preschool children seeking to enforce the Individuals with Disabilities Education Act), vacated in part on other grounds, 456 F.3d 503 (2d Cir. 2006); Ingles v. City of N.Y., No. 01 Civ. 8279, 2003 WL 402565 (S.D.N.Y. Feb. 20, 2003) (certifying Rule 23 (b)(1) and (2) class of tens of thousands of incarcerated persons in connection with allegations of inmate abuse at Rikers Island).
5. In addition, our firm, together with the Benjamin N. Cardozo School of Law’s Civil Rights Clinic and Alexander A. Reinert, is counsel in Scott et al. v. Quay, 1:19-cv-01075 (E.D.N.Y.), a pending putative class action involving conditions of confinement at the Metropolitan Detention Center.
6. I and other ECBA attorneys, including those who are counsel of record in this matter (O. Andrew F. Wilson, Sam Shapiro, and Scout Katovich), have represented hundreds of persons incarcerated in city, state and federal prisons regarding claims of excessive force and unconstitutional prison conditions. The firm is well-equipped to represent the class here. Dated: April 30, 2020
New York, New York /s/ Katherine R. Rosenfeld KATHERINE R. ROSENFELD
3

Case 1:20-cv-01590-RPK-RLM Document 71-6 Filed 04/30/20 Page 1 of 5 PageID #: 1154

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF; ELODIA LOPEZ; and JAMES HAIR,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 1590
DECLARATION OF BETSY GINSBERG

BETSY GINSBERG, a member of the bar of New York and of this Court, pursuant to 28 U.S.C. § 1746, declares under penalty of perjury as follows:
1. I am an attorney at law and represent the Petitioners in this action, along with Emery Celli Brinckerhoff & Abady LLP, Debevoise & Plimpton LLP, and Alexander A. Reinert. I submit this declaration in support of Petitioners’ Motion for Preliminary Injunction in this matter.
Adequacy of Class Counsel 2. Petitioners’ counsel have extensive experience litigating civil rights cases involving the rights of incarcerated people, including in the class action context. I have been practicing law since 1999 with my primary area of practice being prisoner civil rights cases. I, along with my able co-counsel, meet the requirements under Fed. R. Civ. P. 23(a) as adequate representatives of the putative class. 3. I am the Director of Civil Rights Clinic (“The Civil Rights Clinic”) at the Benjamin N. Cardozo School of Law where I serve on the faculty as a Clinical Professor of Law.
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Case 1:20-cv-01590-RPK-RLM Document 71-6 Filed 04/30/20 Page 2 of 5 PageID #: 1155
As the Director and founder of the Civil Rights Clinic at Cardozo, I teach and supervise secondand third-year law students in federal civil rights litigation primarily on behalf of incarcerated people seeking to enforce their constitutional rights in prisons and jails. I have been a clinical law professor at Cardozo since 2010. I have also taught in Cardozo’s Immigration Justice Clinic, where I focused on cases involving both removal defense and immigration detention conditions. From 2007 until 2010, I taught full-time at New York University School of Law.
4. Before I began teaching, I was a Staff Attorney at the Prisoners’ Rights Project of the Legal Aid Society of New York from 2001 until 2007. There, I litigated class action lawsuits in federal court seeking institutional reform of prisons and jails. I also litigated individual test cases seeking legal reform for incarcerated people. From 1999 until 2001, I was a Staff Attorney and Fellow at the Prison Law Office in Berkeley California, where I litigated system-wide class actions seeking injunctive relief on behalf individuals in California’s prisons and on parole.
5. I have extensive experience litigating on behalf of incarcerated people in both class actions and individual cases. I have also represented people (and continue to represent people) incarcerated at the Metropolitan Detention Center (“MDC”).
6. Together with Emery Celli Brinckerhoff and Abady LLC and Alexander A. Reinert, The Civil Rights Clinic is counsel in Scott et al. v. Quay, 1:19-cv-01075 (E.D.N.Y.), a pending putative class action involving conditions of confinement at the Metropolitan Detention Center. The Clinic has also litigated McCarron v. United States, et al, 18-CV-1903 (ENV)(RER) (E.D.N.Y.) (Bivens and FTCA action seeking damages and injunctive relief for individual denied medical care at MDC) and Howard v. Hendrix 15-cv-04549-NGG-LB (E.D.N.Y.) (RFRA and Bivens case involving MDC’s failure to make religious accommodations).
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Case 1:20-cv-01590-RPK-RLM Document 71-6 Filed 04/30/20 Page 3 of 5 PageID #: 1156
7. I am putative class counsel in Hamilton v. Vannoy, No: 17-cv 00194-SDD-RLB (M.D. La) a class action challenge to conditions of confinement on Louisiana’s death row at Angola prison. Among the other class actions in which I was lead or co-counsel are: Ingles v. Toro, No. 01 Civ. 8279 (DC) (S.D.N.Y.) (class action on behalf of New York City pre-trial detainees concerning a pattern and practice of excessive force); Rosario v. Goord, (class action on behalf of incarcerated people challenging disability-based discrimination); Clarkson v. Coughlin, 91-cv-01792-RWS (S.D.N.Y.) (class action on behalf of deaf and hard-of hearing people in state prison); Messiah S. v. Alexander, 07-cv-01327-MGC (S.D.N.Y.) (class action on behalf of people in prison and on parole with psychiatric disabilities seeking pre-release services); Armstrong v. Davis, No. C 94–2307 CW (N.D.Ca.) (class action on behalf of everyone incarcerated in California state prisons with mobility, hearing, vision and learning disabilities); Valdivia v. Brown, No. CIV. S–94–671 LKK/GGH (E.D.Ca.) (class action on behalf of California state parolees with mental illnesses regarding the right to counsel in parole hearings). I was also co-counsel in Disability Advocates, Inc. v. New York State Office of Mental Health, 02-cv-04002-GEL (S.D.N.Y) (group action on behalf of people in state prison with mental illnesses, challenging, among other things, their placement in solitary confinement).
8. In addition to the two MDC individual cases listed above, I have litigated numerous individual civil rights cases on behalf of prisoners and pre-trial detainees, including: Burke v. City of New York, 16-cv-04712-NGG-CLP (E.D.N.Y.) (case involving excessive force by jail officials); Krieg v. Beyrodt, 15-cv-03626-GBD-HBP (S.D.N.Y.) (case involving excessive force and disability-based discrimination); Manning v. Griffin, 15-cv-00003-KMK (S.D.N.Y.) (case involving failure to protect transgender woman in state prison); Zapulla v. Annucci, 15-903 (2d Cir.) (appeal in case involving Eighth Amendment right to medical treatment); Pride v.
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Case 1:20-cv-01590-RPK-RLM Document 71-6 Filed 04/30/20 Page 4 of 5 PageID #: 1157
Cange, 12-cv-04531-KMK-LMS (case involving deliberate indifference, failure to protect from harm).
9. I regularly provide continuing legal education trainings and seminars to attorneys in New York and beyond on issues related to civil rights and prisoners’ rights litigation. I have conducted these trainings on behalf of several organizations, including, the Federal Bar Association, the Practicing Law Institute, the Legal Aid Society, the Federal Bar Council and Yale University. Among the presentations and panels of which I have been a part are: Qualified Immunity and Plausibility Pleading 7 Years Post-Iqbal, Federal Bar Association, United States District Court, Southern District of New York; Ethical Issues in Prison Actions, Prison Law 2014, Practicing Law Institute; The Law of Prisoners' Rights: Prisoners' Civil Litigation in Federal Court, Kelly, Drye & Warren, LLP, Training for New York Pro Bono Attorneys, April, 2014 (and yearly); Mandatory Detention: Impact, Alternatives & Paths to Reform, joint conference of Rutgers School of Law—Newark, Seton Hall Law School, Benjamin N. Cardozo School of Law, and New York University School of Law; Fordham Urban Law Journal: Colloquium on Conditions of Confinement; Failures of Mass Incarceration: Can Alternatives to Incarceration Fulfill the Goals of Punishment? NYU Review of Law and Social Change Colloquium: Alternatives to Mass Incarceration: Promises and Challenges, Moderator; Prisoners’ Rights Training and Pro Bono Program, Federal Bar Council; and Prisoner Lawsuits Under the ADA and Rehabilitation Act, Prisoners’ Rights Litigation: A Workshop for Experienced Plaintiffs’ Attorneys, Yale University.
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Case 1:20-cv-01590-RPK-RLM Document 71-6 Filed 04/30/20 Page 5 of 5 PageID #: 1158 10. I am admitted to practice in New York State and the following federal courts: the
Southern, Eastern, and Western Districts of New York; the United States Court of Appeals for the First, Second, and Fourth Circuits; and the United States Supreme Court.
11. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Dated: Brooklyn, New York
April 30, 2020 /s/ Betsy Ginsberg BETSY GINSBERG
5

Case 1:20-cv-01590-RPK-RLM Document 71-7 Filed 04/30/20 Page 1 of 3 PageID #: 1159

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF; ELODIA LOPEZ; and JAMES HAIR,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 1590
DECLARATION OF ALEXANDER A. REINERT

ALEXANDER A. REINERT, a member of the bar of New York and of this Court, pursuant to 28 U.S.C. § 1746, declares under penalty of perjury as follows:
1. I am an attorney at law and represent the Petitioners in this action, along with Emery, Celli, Brinckerhoff & Abady LLP, Debevoise and Plimpton LLP, and the Benjamin N. Cardozo School of Law’s Civil Rights Clinic. I submit this declaration in support of Petitioners’ Motion for Preliminary Injunction in this matter.
Adequacy of Class Counsel 2. Petitioners’ counsel have extensive experience litigating civil rights cases involving the rights of incarcerated people, including in the class action context. 3. I graduated magna cum laude from New York University School of Law in 1999, where I was a Root-Tilden-Kern Scholar. After graduating from law school, I clerked for two federal judges: Harry T. Edwards of the D.C. Circuit Court of Appeals and Stephen G. Breyer of the United States Supreme Court. After my clerkships, I worked as an associate at Koob & Magoolaghan until 2007, when I became a law professor at the Benjamin N. Cardozo School of
1

Case 1:20-cv-01590-RPK-RLM Document 71-7 Filed 04/30/20 Page 2 of 3 PageID #: 1160
Law, where I teach, among other classes, Civil Procedure, Constitutional Law, Federal Courts, and a class on the rights of incarcerated people.
4. I have been litigating civil rights cases involving the rights of incarcerated people for almost 20 years, first as an associate at Koob & Magoolaghan and then, after becoming a law professor, as co-counsel with law firms and non-governmental organizations. These cases include: (1) Scott v. Quay, 1:19-cv-01075 (E.D.N.Y.), in which I am co-counsel in a pending putative class action involving conditions of confinement at the Metropolitan Detention Center (“MDC”); (2) Parker v. City of New York, 15 Civ. 6733 (E.D.N.Y.), in which I am lead counsel, along with the law firm Cuti Hecker Wang LLP, in a class action relating to the treatment of incarcerated people held in New York City custody; (3) Ashcroft v. Iqbal, 556 U.S. 662 (2009), in which I was lead counsel for plaintiffs from the initiation of the case in the Eastern District of New York to counsel of record in the United States Supreme Court; (4) Peoples v. Annucci, 180 F. Supp. 32 294 (S.D.N.Y. 2016), a class-action in which I am co-counsel for plaintiffs with the New York Civil Liberties Union and Morrison & Foerster; (5) Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), in which I was co-counsel for plaintiffs in the United States Supreme Court with the Center for Constitutional Rights and Covington & Burling LLP, and in which I continue, with co-counsel, to represent the plaintiffs in the Eastern District of New York; (6) Shariff v. Goord, 235 F.R.D. 563 (W.D.N.Y. 2006), a class-action in which I was lead counsel for plaintiffs; (7) McGowan v. United States, 825 F.3d 118 (2d Cir. 2016), in which I was appellate counsel for plaintiff; and (8) Hilton v. Wright, 235 F.R.D. 40 (N.D.N.Y. 2006), a class action in which I was lead counsel for plaintiffs. In addition to the instant case, three of these cases (Scott, Iqbal, and Abbasi) involve challenges to conditions of confinement at the Metropolitan Detention Center.
5. I also frequently am invited to lecture and train lawyers, judges, and judicial law clerks on issues relating to civil rights litigation in the prison and jail context. Some examples
2

Case 1:20-cv-01590-RPK-RLM Document 71-7 Filed 04/30/20 Page 3 of 3 PageID #: 1161
include: Federal Judicial Center-sponsored trainings on the law relating to prisons and jails (Update on the Law of Incarcerated Persons, Wm. Matthew Byrne, Jr., Judicial Clerkship Institute, Federal Judicial Center, Malibu, California (March 18, 2016); The Law of Incarcerated Persons, Federal Judicial Center Court Web Lecture, Washington, D.C. (May 20, 2015)); Federal Bar Council-sponsored trainings of Second Circuit law clerks regarding Section 1983 litigation (The State of Mind Requirement in Section 1983 Cases, Law Clerk Video Conference on Issues in 42 U.S.C. § 1983 Litigation, Federal Bar Council, New York, New York (November 28, 2018; November 28, 2017; November 16, 2016, December 2, 2015; November 19, 2014; January 15, 2014; November 29, 2013; November 29, 2011; November 30, 2010)); and training of judicial staff involved in management of pro se litigation (Section 1983: Immunities, Remedies, and Defenses, Second Circuit Staff Attorney Training, New York, New York (May 23, 2019; July 20, 2017); Prisoner Litigation: Pleading Standards and Causes of Action, 2015 Joint First, Second, and Third Circuit Pro Se Conference, New Paltz, New York (February 25, 2015); Prisoners’ Rights, Second Circuit Pro Se Office Training Seminar, New York, New York (November 19, 2013; November 30, 2012; October 25, 2011; October 26, 2010)).
6. I am admitted to practice in New York State and the following federal courts: the Southern, Eastern, and Western Districts of New York; the United States Court of Appeals for the First, Second, and Fourth Circuits; and the United States Supreme Court.
7. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Dated: Brooklyn, New York
April 30, 2020
s:/Alexander A. Reinert Alexander A. Reinert
3

Case 1:20-cv-01590-RPK-RLM Document 71-8 Filed 04/30/20 Page 1 of 3 PageID #: 1162

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF; ELODIA LOPEZ; and JAMES HAIR,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 1590
DECLARATION IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF THE CLASS

YEUGENIA (JANE) SHVETS, an attorney duly admitted to practice in the Eastern District of New York, declares under penalty of perjury:
1. I am a partner in the firm of Debevoise & Plimpton, LLP (“Debevoise”), pro bono counsel for the Petitioners in this action.
2. I respectfully submit this declaration in support of Petitioners’ Motion for Preliminary Approval of the Class, and Appointment of Plaintiffs’ Counsel as Class Counsel.
3. Debevoise has broad experience in handling complex and class action litigation in federal court. Debevoise has litigated numerous large-scale class actions and has represented classes of inmates in actions that successfully obtained class relief. Debevoise will zealously represent both named and absent class members.

Case 1:20-cv-01590-RPK-RLM Document 71-8 Filed 04/30/20 Page 2 of 3 PageID #: 1163
4. Among other matters, Debevoise has served as class counsel in the following certified and putative class actions: Amador v. Andrews, No. 03 Civ. 0650 (S.D.N.Y. Oct. 14, 2003) (class action seeking injunctive and declaratory relief and money damages for women prisoners subjected to sexual harassment, abuse, and assault by Department of Correctional Services employees); Daniels v. City of New York, No. 99 Civ. 1695 (S.D.N.Y. Oct. 6, 2000) (class action alleging policy, practice, and/or widespread custom of the New York City Police Department of illegally stopping and/or frisking persons in the City of New York); Alfaro v. Gali Service Industries, Inc., 8:18-cv-03705-TDC (D. Md. 2018) (putative class action seeking wrongfully withheld wages for janitorial services staff) (pending). Debevoise has also served as defense counsel in numerous class actions. See, e.g., In re L’Oreal, No. 12 Civ. 3571 (D.N.J. July 18, 2012); In re Celexa and Lexapro; In re Global Crossing, Ltd. ERISA Litigation, No. 02 Civ. 7453 (S.D.N.Y. Feb. 10, 2003); In re Dollar General Corporation Securities Litigation, 3:01cv-00388 (M.D. Tenn. 2001); In re Waste Management, Inc. Securities Litigation, 4:99CV-02183 (S.D. Tex. 1999).
2

Case 1:20-cv-01590-RPK-RLM Document 71-8 Filed 04/30/20 Page 3 of 3 PageID #: 1164
5. Debevoise’s efforts with regard to this litigation have so far included supporting extensive investigation, including interviews with government employees, current and former jail inmates, and healthcare experts. As a result, Debevoise has devoted time and resources to becoming intimately familiar with the Respondent’s response to the COVID19 pandemic and with all of the relevant laws and procedures that can and should govern it. Debevoise will continue to commit substantial time and resources to representing the class, and is well-equipped to represent the class here.

Dated: April 30, 2020 New York, New York

DEBEVOISE & PLIMPTON, LLP
By: /s/ Yeugenia (Jane) Shvets Yeugenia (Jane) Shvets 919 Third Avenue New York, NY 10022 (212) 909-6000
Attorney for Petitioners and Putative Class

3

 
 Case 1:20-cv-01590-RPK-RLM Document 72-1 Filed 04/30/20 Page 1 of 22 PageID #: 1716

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF; ELODIA LOPEZ; and JAMES HAIR,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 01590
FACILITY EVALUATION: METROPOLITAN DETENTION CENTER COVID-19 RESPONSE

I. Executive Summary 1. I visited the Metropolitan Detention Center in Brooklyn, New York (the “MDC”)
on April 23, 2020. I was alarmed by the facility’s failure to implement simple procedures, inline with the Center for Disease Control (the “CDC) guidelines, that could identify patients ill with COVID-19, prevent the spread of COVID-19 throughout the facility, and ensure that highrisk patients receive adequate care.
2. Multiple systemic failures in the COVID-19 response in the MDC impede the facility’s ability to know when people become ill with COVID-19. Most people within the MDC are not being effectively screened for COVID-19 signs or symptoms. When the MDC staff screens people for COVID-19, they rely only on temperature checks, which is a serious deviation from accepted standards.
3. The MDC’s response to COVID-19 is largely reliant on a broken sick-call system that does not function adequately. By that, I mean patients report symptoms of COVID-19, but

Case 1:20-cv-01590-RPK-RLM Document 72-1 Filed 04/30/20 Page 2 of 22 PageID #: 1717
such reports by patients are not acted on. Patients may repeatedly submit sick call requests with COVID-19 concerns, but the facility lacks the clinical response to find and care for those individuals. It also lacks the interest in aggregating that information to understand the symptoms in terms of the overall outbreak in the facility. MDC is therefore not prepared to effectively contain any outbreak of COVID-19—its practices put detainees and staff at grave risk of infection, serious illness and even death. On an urgent timeframe, the MDC should implement an immediate system to track symptoms of COVID-19.
4. Not only is MDC ill-equipped to identify cases of COVID-19 within its population, but it has not implemented adequate infection control practices. In fact, it is my assessment that several current practices in MDC actually promote a more rapid spread of COVID-19 inside the facility and serve to work against some of the infection control measures already in place. Detainees do not have access to adequate cleaning solutions or personal protective equipment (“PPE”); members of staff were not always wearing gloves or masks; and the COVID-19 isolation unit that I observed contained (i) detainees confirmed to have or suspected of having the virus and (ii) detainees who did not or were not suspected of having COVID-19.
5. Finally, current practices in the MDC do not adequately identify and protect detainees who are particularly vulnerable to the effects of COVID-19 due to their high-risk underlying medical conditions. In fact, the MDC has not implemented any special procedures for these high-risk detainees. I am therefore concerned that lasting damage to these detainees’ health could result if they are infected by COVID-19 even though it could likely be avoided if easy to implement screening and isolating practices were implemented by MDC.
2

Case 1:20-cv-01590-RPK-RLM Document 72-1 Filed 04/30/20 Page 3 of 22 PageID #: 1718
6. The net effect of these failings is that individuals within the MDC will be infected with COVID-19 and they will be identified at a dangerously late stage of infection. I am concerned that there may be a significant number of cases of COVID-19 that are undetected, both propelling the pace of the outbreak within the MDC—and because the MDC is not a closed system—the larger community. The MDC’s failures, described in detail below, represent gross deviations from adherence to correctional standards of care and CDC guidance. All the measures that I recommend are critical to finding and caring for individuals who are sick, and answering the question of how widespread the virus is in the facility. II. Background
7. I am a physician, internist, and epidemiologist with over a decade of experience in providing, improving, and leading health services for incarcerated people. My clinical training includes residency training in internal medicine at Albert Einstein/Montefiore Medical Center (2007) and a fellowship in public health research at the New York University School of Medicine (2009). My experience in correctional health includes two years visiting immigration detention centers and conducting analyses of physical and mental health policies and procedures for persons detained by the U.S. Department of Homeland Security. This work included and resulted in collaboration with U.S. Immigration and Customs Enforcement (“ICE”) on numerous individual cases of medical release, the formulation of health-related policies, and testimony before the U.S. Congress regarding mortality inside ICE detention facilities.
8. After my fellowship training, I became the Deputy Medical Director of the Correctional Health Services of New York City. This position included both direct care to persons held in NYC’s 12 jails, as well as oversight of medical policies for their care. This role included oversight of chronic care, sick call, specialty referral and emergency care. I
3

Case 1:20-cv-01590-RPK-RLM Document 72-1 Filed 04/30/20 Page 4 of 22 PageID #: 1719
subsequently was promoted to the positions of Medical Director, Assistant Commissioner, and Chief Medical Officer. In the latter two roles, I was responsible for all aspects of health services including physical and mental health, addiction, quality improvement, re-entry and morbidity and mortality reviews as well as all training and oversight of physicians, nursing and pharmacy staff. In these roles, I was also responsible for evaluating and making recommendations on the health implications of numerous security policies and practices including the use of force and restraints.
9. During this time, I managed multiple communicable disease outbreaks including H1N1 in 2009, which impacted almost 1/3 of housing areas inside the adolescent jail, multiple seasonal influenza outbreaks, a recurrent legionella infection and several other smaller outbreaks.
10. In March 2017, I left Correctional Health Services of New York City to become the Director of Programs for Physicians for Human Rights. In this role, I oversaw all programs of Physicians for Human Rights, including training of physicians, judges and law enforcement staff on forensic evaluation and documentation, analysis of mass graves and mass atrocities, documentation of torture and sexual violence, and analysis of attacks against healthcare workers.
11. The following report is submitted as an evaluation of the COVID-19 response currently underway in the Metropolitan Detention Center (MDC), administered by the Federal Bureau of Prisons in Brooklyn New York (the “BOP”). The purpose if this report is to focus on the adequacy of infection control and other public health measures currently being implemented to prevent serious illness and death among staff and detained people within this facility, and the impact of COVID-19 on surrounding health systems.
12. I have conducted this evaluation and review of documents with the following questions in mind:
4

Case 1:20-cv-01590-RPK-RLM Document 72-1 Filed 04/30/20 Page 5 of 22 PageID #: 1720
a. Do current practices in MDC adequately detect the number and severity of COVID-19 cases among staff and detainees and respond in a manner consistent with CDC guidelines and other established clinical standards of care?
b. Do current practices in MDC adequately slow the spread of COVID-19 through the facility and between people, both staff and detainees in a manner consistent with CDC guidelines and other clinical standards of care?
c. Do current practices in MDC adequately identify and protect high-risk detainees from serious illness and death from COVID-19?
III. Methodology 13. In order to prepare this report, I visited MDC on April 23, 2020 and physically
inspected the facility. I toured and examined the entry and screening area, four housing areas, and the health services unit. Housing areas inspected included the special housing unit, unit 82 (cadre), unit 41, and unit 84 (isolation).
14. During this inspection, I was able to speak with 17 detained people. My interactions with detained people included asking the following structured questions:
a. Have you been around anyone you thought had COVID-19? b. What has this facility done to prepare for COVID-19? c. Have you been asked any questions about COVID-19 by health staff? d. How have you reported concerns about your health (including COVID-19)
in this facility?
5

Case 1:20-cv-01590-RPK-RLM Document 72-1 Filed 04/30/20 Page 6 of 22 PageID #: 1721
e. Who wears masks and gloves in this facility and how do they get this equipment?
f. Who cleans inside cells in this facility and how and how often do they get cleaning supplies?
g. Who cleans outside cells in this facility and how and how often do they get cleaning supplies?
15. In addition to the visit to the facility I was able to review the following records and information:
a. Sick-call requests for inmates detained at MDC (electronic and paper); b. Detainee sick-call data and requests; c. BOP COVID-19 policies and procedures; d. Amended Petition dated April 23, 2020; e. Medical records of Mr. f. Transcript of deposition of Stacey Vasquez pursuant to Fed. R. Civ. P.
30(b)(6) dated April 27, 2020; e. BOP screening tools; and f. BOP statistics on COVID-19 at BOP facilities. 16. The information I have gathered via the above referenced documents, in conjunction with the results of my physical site visit, are sufficient for me to come to the conclusions drawn below, with a high degree of confidence. IV. Assessment of the MDC Facility’s COVID-19 Detection Practices 17. Current practices in the MDC likely fail to detect all cases of COVID-19 and also fail to even track the presence of COVID-19 symptoms throughout the facility. Therefore, the
6

Case 1:20-cv-01590-RPK-RLM Document 72-1 Filed 04/30/20 Page 7 of 22 PageID #: 1722
number of infected detained people and staff is likely much larger than currently appreciated. There are several reasons for this failure to detect COVID-19 infection. These reasons are set out below.
A. Most People are Not Screened for COVID-19 Signs and Symptoms 18. The CDC recommends that all new admissions to a detention facility be screened for both signs and symptoms of COVID-19. This process includes asking about common symptoms of COVID-19 such as cough, fever, shortness of breath, and also includes asking about contact with people who have had COVID-19 and checking temperature.1 Several people I spoke with reported that they had not been screened at all when they arrived in MDC, a clear deviation from basic CDC guidelines.2 As a result, it is likely that COVID-19 is easily being brought into the MDC from newly arrived detainees. 19. Active surveillance was not in place for COVID-19 across multiple housing areas within the MDC. While some of the housing areas did report that daily temperature checks had started in the past two weeks, I was told that the frequency of these checks had declined from once per day to once every two to three days.3 In addition, no other signs of COVID-19 appeared to be checked in these housing areas, including heart rate and blood oxygenation monitoring.4 20. A sign posted on the door into housing area 41 read “Number of people with COVID symptoms-0”. However, based on my interviews with people on that unit, no symptom

1 https://www.cdc.gov/coronavirus/2019-ncov/hcp/dialysis/screening.html

2

(84);

(41)

3

(SHU);

(SHU);

5 (SHU);

(SHU);

(82)

(82);

(41).

(82);

(82);

(82);

(41);

(84).

7

Case 1:20-cv-01590-RPK-RLM Document 72-1 Filed 04/30/20 Page 8 of 22 PageID #: 1723
screening was occurring at all, and the limited checking of a single sign—temperature—was intermittent. This is grossly inadequate because the CDC makes clear that COVID-19 can present with many signs or symptoms and that screening and surveillance should be focused on asking about symptoms as well as detecting elevated temperature.5
21. Further, none of the people I spoke with reported symptom screening. That is, they were never asked whether they had cardinal symptoms of COVID-19 including, for example: fatigue, shortness of breath, cough and other symptoms identified by the CDC.6 It is essential that such active screening should be part of any during a viral outbreak. To fail to do so can result in catastrophic consequences to populations exposed to a communicable virus, such as COVID-19.
B. MDC Relies on a Defective System to Detect Cases of COVID-19 Internally 22. It is best-practice for correctional facilities to implement an effective “sick-call” system to ensure that people who are ill or have medical concerns can receive timely and clinically competent assessments and treatment. I observed that MDC’s own sick-call system was defective, and is likely to aid the spread of COVID-19 throughout the facility.
i. Sick Calls Were Ignored 23. When I asked detainees about how they access health services in MDC, they reported that they fill out both electronic and paper sick call requests. Problematically however, the detainees indicated that it generally takes several requests and between 3-7 days to be seen by medical staff. Other detainees indicated that medical staff never responded at all.
5 https://www.cdc.gov/coronavirus/2019-ncov/hcp/dialysis/screening.html 6 https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html
8

Case 1:20-cv-01590-RPK-RLM Document 72-1 Filed 04/30/20 Page 9 of 22 PageID #: 1724

24. Multiple detainees reported filling out these sick-call forms repeatedly because they feared they had COVID-19.7 After multiple requests, the only response was for a health staffer to come to their cell and take their temperature. However, no thorough symptoms were elicited and no other physical examinations were conducted. According to the detainees, this was the case even when they reported having shortness of breath.8
25. My review of sick-call forms also indicates major systemic problems with the MDC sick-call system. A review of recent electronic sick-call requests made between March 13, 2020 and April 13, 2020 from the MDC shows that large numbers of detainees have reported symptoms consistent with COVID-19 infection.9 A total of 147 sick call requests during this time include symptoms that are associated with COVID-19 including trouble breathing, fever, cough and weakness. I reviewed each of these sick call requests and among them are 37 people who had repeated sick call requests during this timeframe. More of the requests that I reviewed may in fact represent repeated complaints for the same or similar concerns, but these 37 only reflect the instances in which the person expressly identified their concerns as a repeat. In addition, 11 of these sick call requests included detained people reporting symptoms of COVID19 among other detained people.
26. Based on my review of BOP statistics amongst detainees and staff at the MDC, which as of April 28, 2020 reported “Inmates tested: 13, Inmates positive: 6, Staff Positive: 30,” I am concerned that these statistics may reflect the early stages of exponential growth.

7 People who reported filling out multiple sick call requests with COVID-19 symptoms and without receiving

a timely response include Mr.

.

8

(82);

(84);

(82).

9 Petitioners’ attorneys provided access to sick call requests. Criteria utilized for COVID-19 symptoms were

based on CDC criteria. Petitioners’ attorneys created a spreadsheet that categorized sick call requests by date,

symptoms and other demographic information. Sick call forms for patients reporting COVID-19 symptoms were

reviewed by myself.

9

Case 1:20-cv-01590-RPK-RLM Document 72-1 Filed 04/30/20 Page 10 of 22 PageID #: 1725
27. Given the systemic concerns with addressing the sick-call system in MDC, heavy consideration should be given to testing all people detained in MDC. Because the facility has not taken measures to detect, track and act on the level of symptoms among detainees, and because the systems required to implement an adequate response to COVID-19 will take time to implement, I believe it is essential to implement a phased testing of detained people, starting with high risk patients and those who present with COVID-19 symptoms.
ii. Paper Sick-Calls Were Destroyed and Not Scanned to Patient Medical Records
28. I have reviewed, and was alarmed by the transcript of the deposition of Stacey Vasquez dated April 27, 2020 (the “Vasquez Deposition”). Ms. Vasquez is the Health Services Administrator at MDC. During Ms. Vasquez’s deposition, she indicated that MDC does not retain the original sick-call requests and scan them into the electronic medical record of patients and that this is a routine practice.10
29. This represents a gross deviation from basic health care standards because the sick-call requests form part of the patient’s medical record. Without this practice, the health service does not know how many requests were made, and how many were responded to. It also renders impossible any evaluation of whether the assessment and care provided was appropriate to the patient’s original concerns. This is especially problematic in cases of non-English speakers such as the two men identified in the case examples described below.
30. Ms. Vasquez’s deposition testimony also included a confusing justification suggesting that scanning-in these records would represent an infection control concern—as if the scanning in of a piece of paper, after it had made its way from the patient, to a sick-call box, to a
10 Vasquez Deposition, pg. 196:14-18.
10

Case 1:20-cv-01590-RPK-RLM Document 72-1 Filed 04/30/20 Page 11 of 22 PageID #: 1726

staff member to pick up, and then to clinic to arrange and deliver care, would pose a threat to staff or the machine utilized to scan in the records.
31. This practice, described by Ms. Vasquez, appears to be the intentional destruction of medical records. Doing so ensures that the facility cannot conduct basic quality assurance, including whether sick-call requests are acted on in a timely manner. During a viral pandemic, such as the COVID-19 outbreak, this is a very alarming practice.
iii. MDC Response to Urgent Sick-Calls Is Inadequate 32. While I was present at the MDC facility, several patients reported that when they had an urgent or emergent medical problem, the only response was for staff to come and take their temperature, without removing them from their cell for clinical assessment. 33. Two detainees with a history of asthma reported having asthma attacks. In both cases, a nurse responded and took their temperature, but never listened to their lungs or took their peak flow measurement, both of which are requirements for assessment of an asthmatic patient11. 34. These responses raise the concern that MDC is not only failing to provide adequate COVID-19 response, but is failing to provide the most basic assessment of patients in other types of medical distress or emergency. Should the COVID-19 outbreak increase within the MDC, these failures could compound the problem and lead to worse medical outcomes for detainees suffering from COVID-19 or other illnesses.
iv. MDC Nurses Are Not Attending to Sick-Calls or Tracking COVID-19 Symptoms
35. The Vasquez Deposition also revealed a lack of basic outbreak management in MDC regarding sick-call requests.

11

(82);

(82)

11

Case 1:20-cv-01590-RPK-RLM Document 72-1 Filed 04/30/20 Page 12 of 22 PageID #: 1727
36. Basic correctional practice during a communicable viral outbreak is to assign a nurse to review every sick call request on a same day basis. These reviews are structured, with an eye towards the specific symptoms identified by leadership.
37. In the outbreaks I have managed, we would create a template for nurses conducting an outbreak sick-call review so that they could pull out any requests that included rash, spider bites, or fever in the case of MRSA outbreak; or, fever, cough, or sore throat during H1N1, for example. This subset of sick-call request is then used for two purposes. First, on the clinical side, these patients are seen immediately (same day or next morning) for assessment. Second, on the outbreak management side, these symptoms are put into a simple spreadsheet that can track the overall incidence of various symptoms by date and location within a certain facility.
38. This approach is absolutely essential to tracking the spread of any outbreak and I have utilized it in managing outbreaks of H1N1, Legionella, MRSA, Clostridium Difficile diarrheal illness, seasonal influenza and numerous other instances. I would have expected to have seen such a system implemented at MDC given the severity of the current COVID-19 outbreak.
39. When asked about the tracking of COVID-19 symptoms, Ms. Vasquez, who is the lead health administrator for MDC, stated that this was not being done and that it was not possible given their data systems. I believe that approach I have outlined above is entirely possible at MDC, because, as stated above, I have implemented it in both paper and electronic record settings. I view this refusal to track the incidence of COVID-19 symptoms among the patients in their charge as especially egregious and intentionally designed to avoid knowing the extent of the outbreak and providing the necessary care. V. Assessment of the MDC’s Mitigation Practices to Slow the Spread of COVID-19
12

Case 1:20-cv-01590-RPK-RLM Document 72-1 Filed 04/30/20 Page 13 of 22 PageID #: 1728

40. Based on my physical inspection of the MDC, it is my assessment that several current practices in MDC actually promote a more rapid spread of COVID-19 inside the facility and serve to work against some of the infection control measures already in place.
A. MDC has Not Implemented Adequate Infection Control Practices 41. The CDC has identified basic guidelines for infection control and overall COVID19 response in detention settings, many of which the MDC appears to have ignored. For example, I would have expected—at minimum—that the MDC had sufficient levels of PPE, cleaning solution and equipment, an adequate quantity of tests available and that common, hightouch surfaces such as phones and computers would be cleaned between uses, and that no-tough waste receptacles would be present in the facility common areas and housing areas. 42. Detainees that I spoke with indicated significant gaps in access to cleaning solutions, with some reporting that they receive insufficient cleaning solution for their cell area.12 In addition, several detainees including Mr. Rabadi reported that they have not observed any cleaning of the phones, despite being used by one detainee after another. 43. While at MDC, I observed several correctional staff not wearing gloves or masks, and it was not clear who was mandated to wear masks or gloves. Staff wore loose-fitting surgical masks even in the Isolation unit. 44. No trash containers were present in any of the hallway areas we toured, or in the common spaces outside the elevators. None of the trash containers I observed allowed for hands free depositing of gloves or masks or other PPE, except in the treatment room of the medical clinic.

12
(SHU).

SHU);
13

(SHU); J

Case 1:20-cv-01590-RPK-RLM Document 72-1 Filed 04/30/20 Page 14 of 22 PageID #: 1729
45. Further, in the isolation unit which I understood was for those detainees who were COVID-19 positive or presumed positive, a cart referred to as a “PPE cart” was located in the entry area to the unit, but lacked any gowns or masks. When I entered the unit, detainees revealed that they had been given loose fitting surgical masks, not N95 masks, and these masks were the only face covering they utilized to come out of their cells and shower . Alarmingly however, this unit also housed people who did not have COVID-19 and were not suspected of having COVID-19, including one detainee who had returned from hospitalization and rehabilitation for a non-COVID-19 related problem.
46. The trash container next to the PPE cart requires that one touch the container lid to open and insert PPE, and I observed every staff member who exited with us touch this lid, some with gloves and others with ungloved hands. There is no medical examination space inside this unit, which appears to be designed as a solitary confinement unit. Patients must be taken out of this unit for access to an examination room. medical examination . If staff are entering the cells of patients and attempting to conduct examinations on the bed of the patient or while they stand, this would represent a gross departure of basic correctional practice; it would represent inadequate examination, and also create increased risks for staff who already appear to lack appropriate PPE and who would be entering cells that lack negative pressure ventilation. I am gravely concerned that these practices are likely to cause (or have already caused) COVID-19 infection in the staff and other detained people in this unit. These deficiencies represent gross deviations from basic infection control and CDC guidelines and serve to work against any measures taken by the MDC to mitigate the spread of COVID-19.
47. I spoke with one detainee who is at high-risk of serious illness or death from COVID-19 who was transferred into the isolation unit for non-COVID-19 reasons. He also
14

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reported that he was never screened in any manner before he came into the facility and into the unit. He expressed grave fears that he would contract COVID-19 on this unit and become seriously ill or die.13 The lack of COVID-19 screening for people entering a facility, and the lack of medical isolation of people with known or suspected COVID-1 from other detained people represents gross deviations from CDC guidelines.
B. The Physical Environment at MDC is Conducive to the Spread of COVID-19 48. During my physical visit to the MDC, I was concerned that the cells were much colder than the tier. In fact, as soon as we entered into the unit, detainees began to yell about how cold their cells were. 49. When I entered into an empty cell, it was significantly colder than outside the tier. When I entered the MDC, before the tour of the housing units, a staff member conducting temperature checks initially took my temperature, which was below 97’. The staff member then asked if I had been outside in the cold and waited two minutes to recheck it once I had been standing inside. 50. I observed the temperature screening in housing area 82 but saw no such process to mitigate the possible impact of environmental temperature on the temperature checks for detained people. This concerned me because it indicates a lower standard of care in detecting elevated temperature among detainees. VI. Assessment of the MDC’s Efforts to Identify and Protect Detainees Particularly Vulnerable to the Effects of COVID-19 Due to High-Risk Factors 51. Based on my physical inspection of the MDC, it is my assessment that current practices in MDC do not adequately identify and protect detainees who are particularly

13

(84) (transferred to the MDC from a nursing home on or about April 21, 2020; recovering

from severe second and third degree burns).

15

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vulnerable to the effects of COVID-19 due to their high-risk underlying medical conditions. This is despite the fact that the facility is aware that many such high-risk detainees exist.14
52. According to the CDC, people who are “high-risk” include those who are older, and people with including: diabetes, asthma, coronary artery disease, hypertension, those who are immunocompromised, severely obese (body mass index [“BMI”] of 40 or higher), have chronic kidney disease and are smokers.15
A. The MDC has Not Implemented Any Special Procedures for High-Risk Patients 53. During my visit to the MDC I encountered several patients with risk factors for serious illness or death from COVID-19, including Mr.
and it was apparent that they had not been identified to receive any additional protection or surveillance for COVID-19 symptoms.
54. Detainees also confirmed that the institutional toilets cause a spray—or plum— when flushed.16 This is a critical concern because of potential fecal-oral transmission of COVID-19 between cellmates, and the practice of having high-risk detainees in cells with other people. Conditions reported by these patients included poorly controlled asthma and coronary artery disease. These patients indicated that the way they would need to report any COVID-19 symptoms would be to rely on sick-call, which is defective.
B. Illustrative Examples 55. While the deficiencies listed above represent information provided from patient interviews, physical inspection and document review, the case of two patients in the isolation unit is particularly illustrative of the systematic failures in MDC’s response to COVID-19.

14 Vasquez Deposition, pgs. 206-208.

15

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-

risk.html

16

(84).

16

Case 1:20-cv-01590-RPK-RLM Document 72-1 Filed 04/30/20 Page 17 of 22 PageID #: 1732

56. I interviewed Mr.

and Mr.

separately during my inspection. Both men are in the isolation unit and are the only two men

being held on the unit because of COVID-19 related reasons.

57. The two men were originally cell mates on unit 72 before they were transferred to

the isolation unit. Both men report that Mr.

became ill while they were being

held in unit 72, with shortness of breath, chills, weakness to the extent he could not get out of

bed, and loss if taste and smell—all of which are signs of COVID-19 infection..

58. Multiple requests for medical care were made by both men, including paper and

electronic sick call requests, attempting to ask orderlies and security staff for medical assistance.

They reported that after 3 or 4 sick call requests were made, a nurse came, took Mr.

s temperature and left when the reading was normal, without asking any questions

about his symptoms. The staff member who came did not ask for either of the men to be

removed from their cell and did not speak Spanish, which is the language both men speak.

59. Several days after the initial sick call request was made, both men came out of

their cell multiple times to eat, shower and be on the unit. Mr.

also observed

his cellmate attempting to get help from correctional staff for being ill, but reports that none of

the correctional staff spoke Spanish. Several days after his cell mate became sick, Mr.

eports that he became ill with similar symptoms.

60. On April 15, 2020, after several sick call requests, nurses came to their cell and

took his temperature, which was elevated, and he was transferred to the isolation unit by staff not

wearing masks or gloves. Since arriving on this isolation unit, both men report (and I observed)

being given a surgical mask that hangs loosely on their face. Both men report coming out of his

cell for showers and other discrete activities. Mr.

reports not being physically

17

Case 1:20-cv-01590-RPK-RLM Document 72-1 Filed 04/30/20 Page 18 of 22 PageID #: 1733
examined or given medical care for many days and nobody has listened to his lungs with a stethoscope during this time.
61. When I reviewed his medical records, there was no record of the sick call requests and the original sick call forms are not present. In addition, there is no record of any care provided to him between April 17 – April 27, 2020. Any patient in medical isolation for known or presumed COVID-19 case should be evaluated on a daily basis in a clinical setting including physical examination of their breathing, heart and lung sounds, vital signs and other basic COVID-19 concerns. Each person should also have their signs and symptoms checked twice per day. These assessments require a dedicated clinical examination space for the daily out of cell encounter and require use of interpreter services for both out of cell and cell side symptom/sign checks. Failure to provide this basic level of care, for patients who have already been identified as having COVID-19 represents a grave deficiency in care, and risks the rapid deterioration of these patients while locked in their cells. COVID-19 often progresses to include life-threatening pneumonia in the second week of symptoms. The denial of basic assessment in the very unit dedicated to hosing these patients, likely arriving in their second week of symptoms, is likely to create dramatically higher rates of serious illness and death due to late appreciation of deterioration.
62. A dedicated clinical examination space should be located on any unit identified as a medical isolation unit, and staff who care for known or suspected COVID-19 cases should wear full PPE during these encounters including, N95 masks, face shields and gowns. These standards represent CDC guidelines and basic infection control standards. Virtually none of these guidelines were followed in these two case examples. It is doubtful that MDC will be able
18

Case 1:20-cv-01590-RPK-RLM Document 72-1 Filed 04/30/20 Page 19 of 22 PageID #: 1734
to enact these guidelines if they continue to utilize this shared unit, which lacks a clinical examination room, PPE cart and other basic infection control features.
63. Staff in the isolation unit identified these two men as the only two people currently being housed for suspected or confirmed COVID-19. According to jail staff, these men are the only two people in MDC identified as having or suspected of having COVID-19. The gross failures in MDC’s response to their repeated attempts for assessment and care indicate multiple systemic failures in the overall COVID-19 response. I am therefore concerned that people are infected with COVID-19 who are not being detected by the facility, and that as the outbreak spreads, some of these people (detainees and staff alike) will become gravely ill when early detection of their illness, and slowing of the outbreak spread, could have instead been implemented. VII. Minimum Expectations of Correctional Best-Practices
64. Given the severity of the COVID-19 outbreak, and the clear guidelines outlined by the CDC, I would have expected that MDC implemented the following simple procedures in order to slow the spread of COVID-19:
a. Screening of all detainees for multiple COVID-19 signs and symptoms, even when individual temperatures are within normal limits;
b. Screening for all detainees who arrive at the MDC consistent with CDC guidelines, including for those returning from hospital admissions, and those who are transferred from other correctional settings;
c. Adoption of a standardized COVID-19 surveillance tool which includes COVID-19 symptoms and signs, including temperature checks, to be
19

Case 1:20-cv-01590-RPK-RLM Document 72-1 Filed 04/30/20 Page 20 of 22 PageID #: 1735
administrated twice daily by nursing staff to all incarcerated persons who possess high-risk factors, patients in quarantine, and patients in isolation; d. All patients who are suspected or confirmed to have COVID-19 should receive a standardized clinical evaluation at least daily by nursing staff in a clinical setting and not cell-side; e. Same-day review of every sick-call slip and electronic submission that will (i) trigger immediate (same day or next morning) assessment for COVID-19 and (ii) provide data that creates a facility wide symptom tracking dashboard that health care staff will use; f. Identifying, cohorting and testing of all detainees who possess risk factors for serious illness or death from COVID-19; g. Quarantine of all high-risk detainees into units with routine checks for COVID19 signs and symptoms, including temperature; h. All quarantine units should follow CDC guidelines for management of COVID19 including the use of appropriate PPE, cleaning of common surfaces, and exclude individuals not suspected to or confirmed to have COVID-19; including twice daily sign and symptom surveillance including temperature; i. Testing of patients who possess more than one sign and/or symptom of COVID19; j. Testing of staff who possess (i) risk factors for serious illness or death from COVID-19; or (ii) more than one sign and/or symptom of COVID-19;
20

Case 1:20-cv-01590-RPK-RLM Document 72-1 Filed 04/30/20 Page 21 of 22 PageID #: 1736
k. Require that all staff wear personal protective equipment, including masks, when interacting with any person or when touching surfaces in cells or common areas;
l. Provide sufficient disinfecting supplies, free of charge, so incarcerated people can clean high-touch areas or items (including, but not limited to, phones and computers) between each use;
m. Repair emergency call-buttons in cells in which those do not work; in the interim, conduct frequent medical rounds in those units where there are malfunctioning call buttons;
n. Training for all staff and orderlies on the importance of reporting health-related problems among detainees to medical staff;
o. Rotation of Spanish-speaking health staff, so that access to medical staff is maximized;
p. Ensure that each incarcerated person receives, free of charge, adequate personal hygiene supplies for hand washing, disinfectant products effective against the virus that causes COVID-19 for daily cleanings; and access to daily showers and daily access to clean laundry;
q. Provide adequate spacing of six feet or more between people incarcerated, to the maximum extent possible at the jail’s current population level, so that social distancing can be accomplished;
r. Appropriate facility staff should orient other staff and detained people on proper use of masks and gloves and other PPE. Detained people to be provided with
21

Case 1:20-cv-01590-RPK-RLM Document 72-1 Filed 04/30/20 Page 22 of 22 PageID #: 1737
adequate access to masks and gloves at no cost to them and the facility is to provide replacements when masks those masks become damaged; and s. Weekly COVID-19 information sessions for detainees and correctional staff by a member of the MDC health team , that cover the status of the outbreak, efforts to mitigate the spread of COVID-19 and should take questions. This may include distributing a written document.
* * * * * 65. I recommend that MDC implements these practices as soon as possible. 66. I may develop additional recommendations as I review any supplemental materials or testimony in this case. 67. Based on the above considerations, it is evident that the MDC has failed to implement straight-forward best-practices derived from the CDC guidelines as well as outbreak best practices. Such practices would increase the safety of correctional staff, detainees and the general population. 68. I am therefore concerned about the ongoing health and safety of the population at the MDC, and the likelihood of the continued spread of COVID-19 therein.

Executed on: April 30, 2020 Port Washington, New York

____________________________ DR. HOMER VENTERS

22

 
 Case 1:20-cv-01590-RPK-RLM Document 73 Filed 05/01/20 Page 1 of 44 PageID #: 1738

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF; ELODIA LOPEZ; and JAMES HAIR,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 1590

MEMORANDUM OF LAW IN SUPPORT OF PETITIONERS’ MOTION FOR A PRELIMINARY INJUNCTION

Emery Celli Brinckerhoff & Abady LLP 600 Fifth Avenue, 10th Floor New York, New York 10020 (212) 763-5000
Cardozo Civil Rights Clinic Benjamin N. Cardozo School of Law 55 Fifth Avenue, 11th Floor New York, NY 1003 (212) 790-0871

Debevoise & Plimpton LLP 919 Third Avenue New York, New York 10022 (212) 909-6000
Alexander A. Reinert 55 Fifth Avenue, Room 1005 New York, NY 10003 (212) 790-0403

Case 1:20-cv-01590-RPK-RLM Document 73 Filed 05/01/20 Page 2 of 44 PageID #: 1739

TABLE OF CONTENTS

PAGE NO.

TABLE OF AUTHORITIES ....................................................................................................iii-vii

INTRODUCTION ...........................................................................................................................1

FACTUAL BACKGROUND ..........................................................................................................2

A. The COVID-19 Crisis in the United States..................................................2

B. COVID-19 Poses Significant Dangers for Incarcerated People and Correctional Staff ..................................................................................3

C. Respondent Is Disregarding Known Risks by Failing to Take Proper Precautions to Protect Petitioners and the Class ..........................................5

1. MDC's Testing Is Practically Nonexistent .......................................6

2. MDC's Screening Protocols Are Inadequate ...................................8

3. MDC Has Not Provided Adequate PPE or Cleaning Supplies, and Has Not Taken Basic Steps to Prevent Spread of the Infection .................................................................................9

4. MDC Is Not Adequately Protecting Staff, Which Increases Risk for People Held at the MDC ..................................................12

5. Respondent Has Taken No Steps to Protect Vulnerable Persons ........................................................................13

6. MDC Is Not Prepared to Treat Individuals Who Contract COVID-19.......................................................................14

D. Petitioners Are Particularly Vulnerable .....................................................16

1. Ayman Rabadi ...............................................................................16

2. Elodia Lopez ..................................................................................16

3. James Hair......................................................................................17

ARGUMENT .................................................................................................................................18

I. PETITIONERS FACE IRREPARABLE HARM IF THEY REMAIN CONFINED AT THE MDC UNDER CURRENT CONDITIONS ......................18

II. PETITIONERS HAVE A SUBSTANTIAL LIKELIHOOD OF SUCCEEDING ON THE MERITS .................................................................................................21
i

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III. THE COURT HAS THE AUTHORITY TO ORDER THE RELIEF SOUGHT BY PETITIONERS AND THE BALANCE OF EQUITIES TIPS IN PETITIONERS’ FAVOR ......................................................................................26
IV. THE COURT SHOULD EXERCISE ITS GENERAL EQUITY POWERS OR CONDITIONALLY CERTIFY THE CLASS TO AWARD CLASS-WIDE RELIEF ..................................................................................................................30 A. The Proposed Class is Numerous ..............................................................31 B. Questions of Law and Fact Are Common to the Proposed Class ..............32 C. The Claims of the Named Plaintiffs are Typical of the Proposed Class.................................................................................33 D. The Named Plaintiffs and Class Counsel Will Fairly and Adequately Represent the Class ....................................................................................33 E. Petitioners Meet the Requirements of Rule 23(b)(2) .................................34
CONCLUSION ..............................................................................................................................35
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TABLE OF AUTHORITIES
Cases
AIM Int’l Trading LLC v. Valcucine SpA., 188 F. Supp. 2d 384 (S.D.N.Y. 2002)............................................................................... 18
Austin v. Pa. Dep’t of Corr., No. 90-7497, 1992 WL 277511 (E.D. Pa. Sept. 29, 1992) ............................................... 19
Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52 (2d Cir. 2000)................................................................................................ 33
Banks v. Booth, No. 20 Civ. 849(CKK), 2020 WL 1914896 (D.D.C. Apr. 19, 2020) ........................ passim
Basank et al. v. Decker et al., No. 20 Civ. 2518 (AT), 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020) ........... 4, 20, 24, 26
Bell v. Wolfish, 441 U.S. 520 (1979).......................................................................................................... 21
Boone v. Brown, No. 05 Civ. 750 (AET), 2005 WL 2006997 (D.N.J. Aug. 22, 2005) ............................... 19
Brown v. Plata, 563 U.S. 493 (2011).......................................................................................................... 21
Butler v. Suffolk Cty., 289 F.R.D. 80 (E.D.N.Y. 2013) ........................................................................................ 33
Cameron v. Bouchard, No. 20 Civ. 10949, 2020 WL 1929876 (E.D. Mich. Apr. 17, 2020), modified on reconsideration, No. 20 Civ.10949, 2020 WL 1952836 (E.D. Mich. Apr. 23, 2020) ............................................................................... 4, 20, 27, 30
Carty v. Farrelly, 957 F. Supp. 727 (D.V.I. 1997) .................................................................................. 23, 24
Castillo et al. v. Barr, No. 20 Civ. 605, 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020) ..................................... 20
Charles v. Orange Cty., 925 F.3d 73 (2d Cir. 2019)................................................................................................ 21
City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 (2d Cir.2011)............................................................................................... 28
iii

Case 1:20-cv-01590-RPK-RLM Document 73 Filed 05/01/20 Page 5 of 44 PageID #: 1742
Conn. Dep’t of Envtl. Prot. V. O.S.H.A., 356 F.3d 226 (2d Cir. 2004).............................................................................................. 20
Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473 (2d Cir. 1995)................................................................................................ 31
Coronel v. Decker, No. 20 Civ. 2472, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020) .......................... 4, 20, 24
Damus v. Nielsen, 313 F. Supp. 3d 317 (D.D.C. 2018) .................................................................................. 30
Dean v. Coughlin, 107 F.R.D. 331 (S.D.N.Y. 1985) ...................................................................................... 31
Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006).............................................................................................. 33
Doe v. Kelly, 878 F.3d 710 (9th Cir. 2017) ............................................................................................ 27
Dukes v. Wal-Mart Stores, Inc., 564 U.S. 338 (2011).................................................................................................... 31, 32
Estelle v. Gamble, 429 U.S. 97 (1976)...................................................................................................... 21, 23
Farmer v. Brennan, 511 U.S. 825 (1994).................................................................................................... 21, 23
Fed. Defs. of New York, Inc. v. Fed. Bureau of Prisons, 954 F.3d 118 (2d Cir. 2020).............................................................................................. 22
Flores et al. v. Barr et al., 85 Civ. 4544 (C.D. Cal. Mar. 28, 2020) ............................................................................. 5
Fraihat v. U.S. Immigration & Customs Enf't, No. ED-CV 191546 (JGB) (SHKx), 2020 WL 1932570 (C.D. Cal. Apr. 20, 2020)........ 34
Helling v. McKinney, 509 U.S. 25 (1993)..................................................................................................... passim
In Re Extradition of Alejandro Toledo Manrique, No. 19 Mj. 7105, 2020 WL 1307109 (N.D. Cal. Mar. 19, 2020) ...................................... 5
In re Frontier Ins. Grp., Inc., Sec. Litig., 172 F.R.D. 31 (E.D.N.Y. 1997) ........................................................................................ 34
iv

Case 1:20-cv-01590-RPK-RLM Document 73 Filed 05/01/20 Page 6 of 44 PageID #: 1743
Inmates of Attica Corr. Facility v. Rockefeller, 453 F.2d 12 (2d Cir. 1971)................................................................................................ 32
Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37 (2d Cir. 1997)................................................................................................ 20
Jimenez v. Cronen, et al., No. 18 Civ. 10225 (D. Mass. Mar. 26, 2020) ..................................................................... 5
Johnson v. Connolly, 378 F. App’x 107 (2d Cir. 2010) ...................................................................................... 20
Johnson v. Miles, 355 F. App’x 444 (2d Cir. 2009) ...................................................................................... 20
Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996).......................................................................................... 20, 22
Jovel v. Decker, No. 20 Civ. 308, 2020 WL 1467397 (S.D.N.Y. Mar. 26, 2020) ...................................... 23
JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75 (2d Cir. 1990)................................................................................................ 19
Lareau v. Manson, 651 F.2d 96 (2d Cir. 1981)................................................................................................ 23
Ligon v. City of New York, 925 F. Supp. 2d 478 (S.D.N.Y. 2013)............................................................................... 30
Litwin v. OceanFreight, Inc., 865 F. Supp. 2d 385 (S.D.N.Y. 2011)............................................................................... 18
Malam v. Adducci, No. 20-10829, 2020 WL 1899570 (E.D. Mich. Apr. 17, 2020) ....................................... 26
Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997).............................................................................................. 34
Morales Feliciano v. Calderon Sierra, 300 F. Supp. 2d 321 (D.P.R. 2004)................................................................................... 23
New York Civil Liberties Union v. New York City Transit Auth., 684 F.3d 286 (2d Cir. 2012).............................................................................................. 18
Nicholson v. Williams, 205 F.R.D. 92 (E.D.N.Y. 2001) ........................................................................................ 32
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Pennsylvania Pub. Sch. Emps.’ Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111 (2d Cir. 2014).............................................................................................. 31
People ex rel. Stoughton on behalf of Hogan et al. v. Brann, Index No. 451078/2020, 2020 WL 1679209 (Sup. Ct. N.Y. Cty. Apr. 6, 2020)................ 4
People ex rel. Stoughton on behalf of Little et al. v. Brann, Index No. 260154/2020 (Sup. Ct. Bronx Cty. Mar. 25, 2020) ........................................... 4
Phelps v. Kapnolas, 308 F.3d 180 (2d Cir. 2002)........................................................................................ 22, 25
Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904 (2d Cir.1990)............................................................................................... 19
Rivas v. Jennings, 20 Civ. 02731 (VC), 2020 WL 2059848 (N.D. Cal. Apr. 29, 2020) .......................... 31, 33
Roba v. United States, 604 F.2d 215 (2d Cir. 1979).............................................................................................. 26
Robidoux v. Celani, 987 F.2d 931 (2d. Cir. 1993)....................................................................................... 31, 33
Stagliano v. Herkimer Central School District, 151 F. Supp. 3d 264 (N.D.N.Y. 2015) .............................................................................. 20
Strouchler v. Shah, 891 F.Supp.2d 504 (S.D.N.Y.2012).................................................................................. 30
Swain v. Junior, No. 20 Civ. 21457 (KMW), 2020 WL 1692668 (S.D. Fla. Apr. 7, 2020)................. passim
Thompson v. Choinski, 525 F.3d 205 (2d Cir. 2008).............................................................................................. 26
Umana Jovel v. Decker et al., No. 20 Civ. 308 (GBD)(SN), 2020 WL 1539282 (S.D.N.Y. Mar. 26, 2020)..................... 4
United States v. Garlock, No. 18 Cr. 00418, 2020 WL 1439980 (N.D. Cal. Mar. 25, 2020)...................................... 5
United States v. Little, No. 20 Cr. 57, 2020 WL 1439979 (S.D.N.Y. Mar. 24, 2020) .......................................... 23
United States v. Matthaei, No.19 Civ. 243 (D. Idaho Mar. 16, 2020)........................................................................... 5
vi

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United States v. State of Conn., 931 F. Supp. 974 (D. Conn. 1996) .................................................................................... 29
United States v. Stephens, No. 15 Cr. 95 (AJN), 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020) ................................. 4
United States v. Yonkers Bd. of Educ., 29 F.3d 40 (2d Cir.1994)................................................................................................... 28
United States v. Barkman, No. 19 Cr. 52, 2020 WL 1811343 (D. Nev. Mar. 17, 2020)............................................... 5
V.W. by & through Williams v. Conway, 236 F. Supp. 3d 554 (N.D.N.Y. 2017) .............................................................................. 32
Wilson v. Williams, No. 20 Civ. 00794, 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020) ..................... 27, 31, 42
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008).............................................................................................................. 18
Xochihua-Jaimes v. Barr, 798 F. App’x. 52 (9th Cir. 2020) ........................................................................................ 5
Zhang v. Barr et al., 20 Civ. 331 (C.D. Cal. Mar. 27, 2020) ............................................................................... 5
Statutes and Rules Fed. R. Civ. P. 23 ........................................................................................................ 31, 32, 33, 34 Fed. R. Civ. P. 53 .................................................................................................................... 28, 29 Fed. R. Civ. P. 65(a) ................................................................................................................. 1, 19 Other Authorities Moore’s Federal Practice § 23.50 (2d ed.1990)............................................................................ 30 Newberg on Class Actions § 24:83 (4th ed. 2002) ....................................................................... 30
vii

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INTRODUCTION Petitioners Hassan Chunn, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez, Elodia Lopez, and James Hair (“Petitioners”), on behalf of themselves and others similarly situated, respectfully move this Court under Federal Rule of Civil Procedure 65(a) for a preliminary injunction, as set forth in Petitioners’ Notice of Motion and this memorandum of law, directing release of medically vulnerable persons, including Petitioners, from detention at the Metropolitan Detention Center (“MDC”) directing that Respondent take specific measures to mitigate the serious risk posed by COVID-19, conditionally certifying the class or awarding class-wide relief under the Court’s general equity powers on the grounds set forth in Part IV, infra, and appointing a Special Master to assist in the facilitation of this relief,. The requested relief is necessary to protect Petitioners, who are particularly vulnerable to contracting and suffering dire consequences from COVID-19, and the classes they seek to represent. Respondent Warden Derek Edge has failed to take basic steps to mitigate the risk of COVID-19 transmission within the MDC. Respondent has not even sought to determine how many people held in his custody are infected with COVID-19, leaving every person in the class vulnerable to an invisible and highly contagious infection. Continuing to hold Petitioners and the classes they seek to represent under these circumstances patently violates their Eighth Amendment rights. Therefore, even if this Court determines that release is not appropriate, it should ensure that Petitioners and others held in the MDC are protected from the unjustifiable risk of exposure to and infection with COVID-19 that Respondent is currently tolerating. As the evidence will establish, Respondent has failed adequately to respond to the COVID-19 crisis at all levels. At the basic level of infection detection, Respondent is simply not ensuring that people who work and are held in the MDC are properly screened. Even when the MDC learns that a person has indicia of COVID-19 infection, they are not being tested. And the

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MDC appears to be intent on maintaining its willful blindness to the problem, with fewer than 10 tests available to use for staff and about 1700 incarcerated people. Nor has Respondent adequately responded to the risk of transmission of this highly contagious disease – instead adopting policies that increase the risk of spread. And finally, Respondent is not using his authority to grant compassionate release to people who are at higher risk of death or serious illness, leaving people who are at higher risk unable to seek release through other avenues. If this Court does not order Respondent to take necessary mitigating measures, these conditions will not change. Release, injunctive relief, class certification, and appointment of a Special Master are all appropriate on the record before the Court.
FACTUAL BACKGROUND A. The COVID-19 Crisis in the United States The novel coronavirus that causes COVID-19 has led to a global pandemic. As of April 22, 2020, COVID-19 had infected more than 2,600,000 people worldwide and caused more than 46,000 deaths in the United States. Pet. ¶ 20.1 New York City has reported more than 147,000 cases, with more than 15,000 deaths, although the number of infections is drastically understated. Pet. ¶ 32. Certain populations—those over the age of 50 and those with specific underlying medical conditions—are particularly vulnerable to serious illness and death from COVID-19. Pet. ¶¶ 22-23. People aged 60-69 have a mortality rate 18 times higher than people under the age of 40; the rate is 40 times higher for people aged 70-79 years old. Pet. ¶ 22. The mortality rate for people of any age with cardiovascular disease, diabetes, hypertension, chronic respiratory disease, and cancer, is significantly elevated as well. Pet. ¶ 23. Even if the COVID-19 infection is not fatal, it will often require highly specialized care for people over the age of 50 and will
1 Citations to “Pet.” Refer to the Amended Petition that was filed on April 23, 2020.
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result in longstanding medical complications. Pet. ¶¶ 24, 29. Serious complications can develop rapidly, as little as five days after the first symptoms first appear. Pet. ¶ 26. Compared to influenza, COVID-19 is much more deadly, with a fatality rate of 15 percent in the highest risk populations. Pet. ¶ 28.
B. COVID-19 Poses Significant Dangers for Incarcerated People and Correctional Staff
New York has been in a state of emergency since March 7, 2020, to more effectively contain the spread of COVID-19, deploying the National Guard among other strategies.2 In New York, people must remain in their homes to the greatest extent possible, wear masks when they leave their homes, not gather in groups of any size, and remain six feet away from others at all times.3 The CDC and World Health Organization have agreed that “social distancing” and rigorous hygiene practices, including washing hands with soap and water, are critical. Pet. ¶ 30.
Taking these measures is virtually impossible in prisons and jails, without conscientious interventions. Pet. ¶ 33. In correctional settings, the risk of contracting an infectious disease, like COVID-19, is significantly increased due to the high numbers of people with chronic, often untreated, illnesses housed in a setting with minimal levels of sanitation, limited access to personal hygiene, limited access to medical care, and no possibility of staying at a distance from others. Pet. Ex. 2 (Declaration of Jonathan Giftos, MD, dated March 27, 2020 (“Giftos Decl.”)) ¶ 11; see also Dkt. 12, Ex. 9 (Declaration of Jaimie Meyer, M.D.) ¶ 7. For this reason, correctional public health experts have responded to the COVID-19 pandemic by recommending the release from custody of people most vulnerable to COVID-19. Pet. ¶¶ 38; 45-46. Release
2 Ex. 36 (Eileen AJ Connelly & Laura Italiano, Cuomo Declares State of Emergency in New York as State Coronavirus Cases Soar to 89, N.Y. Post (Mar. 7, 2020), https://nypost.com/2020/03/07/cuomo-declares-state-ofemergency-as-new-york-state-coronavirus-cases-soar-to-76/). 3 Ex. 37 (Elizabeth Joseph & Eric Levenson, New York Gov. Cuomo extends stay-at-home order until at least May 15, CNN (Apr. 16, 2020), https://www.cnn.com/2020/04/16/us/new-york-coronavirus/index.html).
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protects these people, mitigates the risk of infection for all people held and working in a correctional setting, and lessens the burden on the region’s health care infrastructure by reducing the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time. Pet. ¶ 38.
Judges in this circuit and across the country have ordered release and injunctive relief to reflect these risks. See Banks v. Booth, No. 20 Civ. 849(CKK), 2020 WL 1914896, at *11 (D.D.C. Apr. 19, 2020) (ordering injunctive relief in case involving local jail); Cameron v. Bouchard, No. 20 Civ. 10949, 2020 WL 1929876, at *2–3 (E.D. Mich. Apr. 17, 2020), modified on reconsideration, No. 20 Civ.10949, 2020 WL 1952836 (E.D. Mich. Apr. 23, 2020) (granting injunctive relief to a class of pretrial detainees and convicted individuals); Swain v. Junior, No. 20 Civ. 21457 (KMW), 2020 WL 1692668, at *2 (S.D. Fla. Apr. 7, 2020) (granting temporary restraining order requiring Miami-Dade County Jails to take specific measures to ameliorate risk of spread of COVID-19 and ensure testing “for anyone displaying known symptoms of COVID19 in accordance with CDC guidelines.”); Coronel v. Decker, No. 20 Civ. 2472, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020) (granting release of four medical vulnerable immigration detainees); Basank et al. v. Decker et al., No. 20 Civ. 2518 (AT), 2020 WL 1481503 at *1 (S.D.N.Y. Mar. 26, 2020) (granting release of ten medically vulnerable immigration detainees who “face[] an imminent risk of death or serious injury . . . if exposed to COVID-19”).4
4 For additional examples, see United States v. Stephens, No. 15 Cr. 95 (AJN), 2020 WL 1295155 (S.D.N.Y. Mar. 19, 2020) (granting motion for reconsideration of defendant’s bail conditions and releasing him from jail to home confinement, recognizing that incarcerated people may be at a heightened risk of contracting COVID-19); Umana Jovel v. Decker et al., No. 20 Civ. 308 (GBD)(SN), 2020 WL 1539282 (S.D.N.Y. Mar. 26, 2020) (granting emergency request for release of petitioner from immigration detention in light of the COVID-19 crisis); People ex rel. Stoughton on behalf of Little et al. v. Brann, Index No. 260154/2020 (Sup. Ct. Bronx Cty. Mar. 25, 2020) (releasing 106 individuals held at Rikers Island jail on parole violations who are particularly vulnerable to illness or death if infected by COVID-19); People ex rel. Stoughton on behalf of Hogan et al. v. Brann, Index No. 451078/2020, 2020 WL 1679209 (Sup. Ct. N.Y. Cty. Apr. 6, 2020) (releasing 16 individuals held at Rikers Island jail on pre-trial detention who were particularly vulnerable to illness or death due to COVID-19); Xochihua-Jaimes
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C. Respondent Is Disregarding Known Risks by Failing to Take Proper Precautions to Protect Petitioners and the Class
Like every other correctional setting, MDC is not well-situated to mitigate the risks of
COVID-19 spread. Necessary social distancing is virtually impossible, toilets, sinks, and
showers are shared without disinfection between each use, communal food preparation and
service leaves little opportunity for surface disinfection, and staff arrive and leave without proper
screening for new infection. Pet. ¶ 54. Since March 4, 2020, the Federal Defenders has engaged
in extensive efforts to get Respondent to address the risks associated with the spread of COVID-
19 at the MDC, to little avail. Pet. Ex. 1 (Declaration of Deirdre D. von Dornum, dated March
27, 2020 (“von Dornum Decl.”)) ¶¶ 3-7, 9-11, 20, 21, 23. The Federal Defenders asked that the
MDC take specific measures to reduce the spread of infection, id. ¶ 4, but the MDC’s response
has been insufficient.
v. Barr, 798 F. App’x. 52 (Mem) (9th Cir. 2020) (ordering, sua sponte, that petitioner be immediately released from immigration detention “[i]n light of the rapidly escalating public health crisis” related to COVID-19); Flores et al. v. Barr et al., 85 Civ. 4544 (C.D. Cal. Mar. 28, 2020) (granting a Temporary Restraining Order application requiring the Office of Refugee Resettlement and United States Immigrations and Customs Enforcement to immediately put in place measures to reduce the risk of COVID-19 infection for unaccompanied minors in their custody and ordering the defendants to show cause why an order should not issue requiring defendants to immediately release class members); Zhang v. Barr et al., 20 Civ. 331 (C.D. Cal. Mar. 27, 2020) (granting Petitioner an immediate bond hearing in light of the “global pandemic by which delay in determining Petitioner’s release exposes him to unnecessary risk”); United States v. Garlock, No. 18 Cr. 00418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (ordering, sua sponte, extension of convicted defendant’s surrender date and noting “[b]y now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided”); Castillo et al. v. Barr, No. 20 Civ. 605, 2020 WL 1502864 (C.D. Cal. Mar. 27, 2020) (ordering petitioners be released from immigration detention in light of COVID-19 and noting “the risk of infection in immigration detention facilities – and jails – is particularly high”); In Re Extradition of Alejandro Toledo Manrique, No. 19 Mj. 7105, 2020 WL 1307109 (N.D. Cal. Mar. 19, 2020) (granting motion for release on bail of 74-year old subject of extradition request due to risks associated with remaining in custody during COVID-19 pandemic); United States v. Barkman, No. 19 Cr. 52, 2020 WL 1811343 (D. Nev. Mar. 17, 2020) (suspending requirement that defendant report to prison to serve intermittent confinement due to risks associated with COVID-19); United States v. Matthaei, No.19 Civ. 243 (D. Idaho Mar. 16, 2020) (granting convicted defendant additional time to self-surrender to prison in light of defendant’s health problems, which place him at greater risk of complications of COVID-19); Jimenez v. Cronen, et al., No. 18 Civ. 10225 (D. Mass. Mar. 26, 2020) (ordering release of petitioner from immigration detention due to COVID-19 concerns); In re Request to Commute or Suspend County Jail Sentences, Dkt. No. 084230 (N.J. Mar. 22, 2020) (ordering, based on the dangers posed by COVID-19, release of any person in New Jersey serving a county jail sentence as a condition of probation or as a result of a municipal court conviction).
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1. MDC's Testing Is Practically Nonexistent As of March 11, 2020, the MDC did not anticipate having a testing protocol for COVID19 and it had no policy to address staff who presented with COVID-19 risk factors. Id. ¶ 6. Unfortunately, there is no evidence that Respondent has taken any additional steps since March 11, even as the pandemic has spread. Despite being ordered to disclose such information by the Chief Judge of this Court, the MDC still has not developed any set testing protocol for COVID19. Rosenfeld Declaration (“Rosenfeld Decl.”) Ex. 1 (Vasquez Tr. 117:6-118:9). 5 Out of approximately 1700 people held at the facility, the MDC has tested only 10 incarcerated people, with an additional three people sent to area hospitals for testing. Ex. 1 (Vasquez Tr. 114:6-25). MDC admits that it has failed to test five symptomatic people that MDC presumes to have been positive, all from the same unit though showing symptoms at different times. Their reasoning is that two other people on that unit had already tested positive, presumably making additional testing superfluous. Ex. 1 (Vasquez Tr. 36:23-37:2; 62:14-64:11; 117:6-118:9; 118:25- 119:6). This failure to test even presumed positive patients clearly artificially lowers the number of positive diagnoses and conceals the true extent to which the pandemic is spreading inside the MDC. MDC has also failed to test numerous other people who have had symptoms consistent with COVID-19. Ex. 2 (Powell Decl. ¶¶ 10-15); Rosenfeld Decl. Ex. 3 (Bynum Decl. ¶ 8); Ex. 4 (Olivea Decl. ¶ 8); Ex. 5 (Gomez Decl. ¶ 2); Ex. 6 (Mabry Decl. ¶ 18); Ex. 7 (Dixon Decl. ¶¶ 1112). In fact, as attested to by one person who complained of shortness of breath and a loss of taste and smell, “the nurse told me I could not get tested or see a doctor because I did not have a
5 Hereafter, unless otherwise specified, all references to exhibits are to the exhibits in the Declaration of Katherine Rosenfeld.
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fever and had not fainted.” Rosenfeld Decl. Ex. 3 (Bynum Decl. ¶ 8). Another class member and his cellmate were not tested after suffering from headaches, fever, and chills. Rosenfeld Decl. Ex. 7 (Dixon Decl. ¶¶ 11-12). This inmate stated that, “[t]here are guys asking for months to get tested, they just do not test for the virus . . . you have to really scream and yell to get medical attention.” Rosenfeld Decl. Ex. 7 (Dixon Decl. ¶ 13). Another person recently released from the MDC reports that he and his cellmate were not given medical treatment for his illness despite reporting symptoms including a cough and chest tightness. (Chunn Decl. ¶¶ 21-22). He is at high risk of COVID-19 complications due to a number of serious medical conditions including coronary heart disease and asthma. (Chunn Decl. ¶¶ 18-19). One woman, after asking repeatedly for medical care and testing due to symptoms including fatigue, chills, cough, breathing difficulty and weight loss, was seen by an MDC medical staff member after her lawyers wrote to the court. Rosenfeld Decl. Ex. 8 (Needham Decl. ¶¶ 19-25). That staff member asked her what difference a test would make since she had had symptoms for so long, and told her to imagine the panic that she would cause on her unit if she tested positive. Rosenfeld Decl. Ex. 8 (Needham Decl. ¶ 26). She lives in dormitory style housing with approximately 30 other women, with beds less than six feet apart from one another and common tables and other facilities. Rosenfeld Decl. Ex. 8 (Needham Decl. ¶¶ 2-8).
The MDC currently has fewer than 10 tests on hand. It has only had 20 tests delivered to it throughout the course of the COVID-19 pandemic. Rosenfeld Decl. Ex. 1 (Vasquez Tr. 114:36, 115:2-15). It represents, however, that it has at all times had an adequate number of tests. Rosenfeld Decl. Ex. 1 (Vasquez Tr. 122:17-20). This beggars belief. Broader testing of both staff and incarcerated people (as the New York City jails have done) is necessary to ensure the health and safety of those confined in the facility. Rosenfeld Decl. ¶ 45 (noting that there are
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currently 376 incarcerated people with confirmed positive tests in the New York City jails and 1065 staff who have tested positive to date; Ex. 9 (Decl. of Robert L. Cohen, M.D. ¶ 7).
2. MDC's Screening Protocols Are Inadequate Nor has MDC instituted appropriate screening measures. Doctors have not even been present to evaluate people in the housing units. Von Dornum Decl. ¶ 9. Many people report that temperature checks are not taking place on a regular basis. Rosenfeld Decl. Ex. 10 (Finch Decl. ¶ 11); Ex. 11 (Nelson Decl. ¶ 13); Ex. 12 (Platt Decl. ¶ 13); Ex. 7 (Dixon Decl. ¶ 11); Ex. 13 (Pierson Decl. ¶¶ 19, 23). MDC has now clarified that, despite BOP documentation to the contrary, daily temperature checks and COVID screening are not taking place in the general population – only in housing units that have been quarantined and in the one housing unit set aside for isolation. (Rosenfeld Decl. Ex. 1 (Vasquez Tr. 48:13-16; 122:17-20; 211:2-212:5). In units that are quarantined, medical staff is making twice-daily rounds. However, multiple incarcerated people report that those rounds include only a temperature check, not a wellness check asking about symptoms. See, e.g., Rosenfeld Decl. Ex. 14 (Sojos-Valladares Decl. ¶ 5); (Chunn Decl. ¶ 4). Some staff are performing these checks without opening cell doors, through the food slot, a small opening around belly or groin level. Rosenfeld Decl. Ex. 1 (Vasquez Tr. 79:4-80:25). The MDC acknowledges that there is no general set of questions or specific COVID-19 related questions asked during wellness checks, and that no record is kept of these questions or answers. Rosenfeld Decl. Ex. 1 (Vasquez Tr. 44:3-16). Nor can people promptly obtain medical assessments at the MDC, because of a broken and defective sick call system that has functioned to understate the scale of infection at the MDC. See Facility Evaluation: Metropolitan Detention Center COVID-19 Response of Dr. Homer Venters dated April 30, 2020 (“Venters Report”), ¶¶ 16-33. MDC admits that emergency
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buzzers in the cells, which could otherwise be used to call for medical assistance, are not all working. Rosenfeld Decl. Ex. 15 (King Tr. 103:3-13).
3. MDC Has Not Provided Adequate PPE or Cleaning Supplies, and Has Not Taken Basic Steps to Prevent Spread of the Infection
Adding insult to injury, Respondent has not instituted basic and common-sense steps to prevent the spread of the highly contagious infection. Incarcerated people have irregular access to basic hygiene supplies like soap. Rosenfeld Decl. Ex. 2 (Powell Decl. ¶ 6); Rosenfeld Decl. Ex. 16 (Altino Decl. ¶ 6); Rosenfeld Decl. Ex. 3 (Bynum Decl. ¶ 4); Rosenfeld Decl. Ex. 17 (Drayton Decl. ¶ 6); Rosenfeld Decl. Ex. 18 (Hall Decl. ¶ 6); Rosenfeld Decl. Ex. 4 (Oliveira Decl. ¶ 6); Rosenfeld Decl. Ex. 19 (Carpenter Decl. ¶ 6); Rosenfeld Decl. Ex. 20 (R Watson Decl. ¶¶ 8, 13, 19; Rosenfeld Decl. Ex. 21 (A Wilson Decl. ¶ 6); Rosenfeld Decl. Ex. 22 (Miller Decl. ¶ 7); Rosenfeld Decl. Ex. 23 (Soria Decl. ¶¶ 7. 9). Cleaning supplies have not been provided for cells. Rosenfeld Decl. Ex. 24 (Haney Decl. ¶ 7); Rosenfeld Decl. Ex. 16 (Altino Decl. ¶ 7); Rosenfeld Decl. Ex. 3 (Bynum Decl. ¶ 4); Rosenfeld Decl. Ex. 18 (Hall Decl. ¶ 7); Rosenfeld Decl. Ex. 25 (McCann Decl. ¶ 7); Rosenfeld Decl. Ex. 26 (D Sanchez Decl. ¶ 20); Rosenfeld Decl. Ex. 27 (Molina Decl. ¶¶ 6-7); Rosenfeld Decl. Ex. 20 (R Watson Decl. ¶ 9); Rosenfeld Decl. Ex. 28 (Batista Decl. ¶ 6); Rosenfeld Decl. Ex. 23 (Soria Decl. ¶ 7); Rosenfeld Decl. Ex. 29 (Singer Decl. ¶ 6); Rosenfeld Decl. Ex. 30 (Deutsch Decl. ¶ 8; Rosenfeld Decl. Ex. 14 (Sojos-Valladares Decl. ¶ 10). Communally used items like the phone, computer, and showers are not reliably cleaned between use. Rosenfeld Decl. Ex. 2 (Powell Decl. ¶ 5); Rosenfeld Decl. Ex. 24 (Haney Decl. ¶ 11); Rosenfeld Decl. Ex. 3 (Bynum Decl. ¶ 7); Rosenfeld Decl. Ex. 17 (Drayton Decl. ¶¶ 4, 10); Rosenfeld Decl. Ex. 11 (Nelson Decl. ¶ 6); Rosenfeld Decl. Ex. 12 (Platt Decl. ¶ 10); Rosenfeld Decl. Ex. 20 (R Watson Decl. ¶ 11); Rosenfeld Decl.
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Ex. 28 (Batista Decl. ¶ 9); Rosenfeld Decl. Ex. 13 (Pierson Decl. ¶ 10); Rosenfeld Decl. Ex. 30 (Deutsch Decl. ¶ 9); Rosenfeld Decl. Ex. 29 (Singer Decl. ¶ 3).
The facility distributes disposable paper masks to incarcerated people, not fit for reuse, once a week at most. Ex. 2 (Powell Decl. ¶¶ 7-8); Ex. 16 (Altino Decl. ¶ 8); Ex. 3 (Bynum Decl. ¶ 5); (Drayton Decl. ¶ 8); Ex. 18 (Hall Decl. ¶ 8); Ex. 11 (Nelson Decl. ¶ 10); Ex. 25 (McCann Decl. ¶ 8); Ex. 26 (D Sanchez Decl. ¶¶ 10, 19); Ex. 27 (Molina Decl. ¶ 8); Ex. 12 (Platt Decl. ¶ 8); Ex. 19 (Carpenter Decl. ¶ 8); Ex. 31 (Roberts Decl. ¶ 7); Ex. 20 (R Watson Decl. ¶ 10); Ex. 28 (Batista Decl. ¶ 5); Ex. 22 (Miller Decl. ¶ 7); Ex. 6 (Mabry Decl. ¶ 16);. Ex. 29 (Singer Decl. ¶ 7); Ex. 7 (Dixon Decl. ¶ 8); Ex. 30 (Deutsch Decl. ¶ 10); Ex. 32 (Whitley Decl. ¶ 7); Ex. 13 (Pierson Decl. ¶¶ 18-19); Ex. 14 (Sojos-Valladares Decl. ¶ 10). Nor are staff wearing masks consistently, although the MDC has reported more staff infections than the vast majority of BOP facilities. Rosenfeld Decl. Ex. 2 (Powell Decl. ¶ 15); Ex. 24 (Haney Decl. ¶ 16); Ex. 8 (Needham Decl. ¶ 17); Ex. 17 (Drayton Decl. ¶ 12); Ex. 18 (Hall Decl. ¶ 16); Ex. 26 (D Sanchez Decl. ¶ 16); Ex. 12 (Platt Decl. ¶ 14); Ex. 19 (Carpenter Decl. ¶ 15); Ex. 31 (Roberts Decl. ¶ 7); Ex. 20 (R Watson Decl. ¶ 14); Rosenfeld Decl. Ex. 21 (A Wilson Decl. ¶ 15); Ex. 28 (Batista Decl. ¶ 14); Rosenfeld Decl. Ex. 6 (Mabry Decl. ¶ 11); Ex. 7 (Dixon Decl. ¶ 16); Ex. 30 (Deutsch Decl. ¶ 11); Ex. 13 (Pierson Decl. ¶¶ 18-19); see also https://www.bop.gov/coronavirus/ (reporting as of April 29 that, among BOP facilities, the MDC has third highest number of staff positives in the country). Even on a unit on quarantine, staff do not regularly wear masks or gloves, coming and going from other areas throughout the facility. Ex. 20 (R Watson Decl. ¶ 14); Rosenfeld Decl. Ex. 7 (Dixon Decl. ¶ 18).
MDC insists that it performs contact investigations, looking for people who had “close prolonged contact” with an infected person two or fewer days before the onset of symptoms. Ex.
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1 (Vasquez Tr. 83:14:24). However, only cellmates are considered to have “close prolonged contact” with each other. Ex. 1 (Vasquez Tr. 85:21-24). When asked to explain why this is so, MDC responded that “[s]ocial distancing has been encouraged. They’re also suppose[d] to be wearing masks.” Rosenfeld Decl. Ex. 1 (Vasquez Tr. 84:5-21). In other words, social distancing is presumed to have taken place. And yet, there are many instances where, as MDC knows full well, social distancing cannot take place. Women are housed in a dormitory-style unit with bunkbeds placed less than six feet apart, and alternating top and bottom bunks to create additional space between inmates is not always possible Rosenfeld Decl. Ex. 15 (King Tr. 96:1497:2, 97:15-19). The women also eat seated close together and share phones, computer terminals, showers, and bathrooms. Rosenfeld Decl. Ex. 8 (Needham Decl. ¶¶ 2-5). Staff do not consistently wear masks, and may be infecting incarcerated people as a result. Rosenfeld Decl. Ex. 8 (Needham Decl. ¶ 30). Some of these women have complained of COVID symptoms, but not removed from the dormitory area Rosenfeld Decl. Ex. 1 (Vasquez Tr. 101:8-23); Ex. 8 (Needham Decl. ¶¶ 19, 32-35).
Men are normally double-celled, as there is not enough space to truly distance them from one another. Rosenfeld Decl. Ex. 1 (Vasquez Tr. 22:14-18); Rosenfeld Decl. Ex. 7 (Dixon Decl. ¶ 10). When they are let out of their cells to use communally shared items like phones, computers, and showers, they are also not able to socially distance themselves from one another. Rosenfeld Decl. Ex. 7 (Dixon Decl. ¶ 10); Ex. 32 (Whitley Decl. ¶ 9). Crowds form as incarcerated people attempt to access these items in the limited time that they have outside of their cells. Ex. 6 (Mabry Decl. ¶¶ 8-9); Ex. 32 (Whitley Decl. ¶ 9). Both the phones and computers are placed near each other, so it is impossible to socially distance during use. Rosenfeld Decl. Ex. 32 (Whitley Decl. ¶ 9); (Chunn Decl. ¶ 7). Neither staff nor incarcerated
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people are required to use masks when they cannot practice social distancing. Rosenfeld Decl. Ex. 7 (Dixon Decl. ¶¶ 10, 14, 16); Ex. 2 (Powell Decl. ¶ 15); Ex. 24 (Haney Decl. ¶ 16); Ex. 17 (Drayton Decl. ¶ 12); Ex. 18 (Hall Decl. ¶ 16); Ex. 26 (D Sanchez Decl. ¶ 16); Ex. 12 (Platt Decl. ¶ 14); Ex. 19 (Carpenter Decl. ¶ 15); Ex. 31 (Roberts Decl. ¶ 7); Ex. 20 (R Watson Decl. ¶¶ 11, 14); Ex. 28 (Batista Decl. ¶ 14); Ex. 6 (Mabry Decl. ¶ 11); Ex. 30 (Deutsch Decl. ¶¶ 1112); Ex. 13 (Pierson Decl. ¶¶ 18-19). Nor do guards enforce social distancing when people are out of their cells during lockdown. (Chunn Decl. ¶ 7).
4. MDC Is Not Adequately Protecting Staff, Which Increases Risk for People Held at the MDC
The risk that staff will infect incarcerated people with COVID-19 is high. Twenty-seven MDC staff have tested positive for COVID-19 that MDC knows of: MDC’s position is that it cannot require staff to tell it of a positive diagnosis. Rosenfeld Decl. Ex. 1 (Vasquez Tr. 147). Nor does MDC test staff itself, despite staff having requested such testing. Rosenfeld Decl. Ex. 1 (Vasquez Tr. 145:17-18, 147:3-8). Yet staff are uniquely suited to spreading COVID. Both medical and custody staff move between quarantined units, the unit where people are being isolated, and the general population units. Rosenfeld Decl. Ex. 1 (Vasquez Tr. 95:20-96:9). No one monitors staff for compliance with infectious disease protocols when they transfer between Units. Rosenfeld Decl. Ex. 1 (Vasquez Tr. 96:10-15).
Staff are also not informed when an incarcerated person tests positive for COVID-19, unless they “need to know.” Rosenfeld Decl. Ex. 1 (Vasquez Tr. 123:4-6.) MDC’s definition of need to know is limited to executive staff and medical staff. Rosenfeld Decl. Ex. 1 (Vasquez Tr. 123:22-124:15). As a result, no custody staff are ever informed that a person they had contact with tested positive. In addition, MDC still has yet to fit-test all of its staff for N-95 masks; as a
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result most N-95 masks at MDC are in storage and have not been distributed. Rosenfeld Decl. Ex. 15 (King Tr. 66:24-67:12).
MDC states that it screens all staff for fever before allowing them to enter the facility. However, it admits that the forehead thermometers that it uses may result in artificially lowered temperature readings for people coming in from outside. Rosenfeld Decl. Ex. 1 (Vasquez Tr. 135:23-136:14). In addition, staff are not being asked about contact with people who have confirmed or presumed cases of COVID-19. Id. ¶ 136. Taken together, these many failures to protect MDC staff will necessarily result in increased risk for incarcerated people.
5. Respondent Has Taken No Steps to Protect Vulnerable Persons MDC has identified more than 300 (see Ex. 1 Vasquez Tr. 204-05) incarcerated people who are particularly at risk of complications, including death, from COVID-19. But it has taken no specific affirmative steps to protect these individuals from infection. Rosenfeld Decl. Ex. 1 (Vasquez Tr. 207:15-209:18; Vasquez Depo. Ex. 18). Indeed, MDC has conceded that the facility does not have the capacity to provide specific measures to protect Vulnerable Persons. Vasquez Depo. Ex. 18 (“MDC Brooklyn has not isolated its at risk population at this time because the number of inmates who fall into this category is too large to contain and isolate on one or even two units.”). Respondent’s current practices in the MDC fail to identify and protect detainees who are particularly vulnerable to the effects of COVID-19. Respondent has not provided high-risk detainees with any additional protection or surveillance for COVID-19 symptoms. Venters Report ¶¶ 45, 47. High-risk detainees share cells with other people, id. ¶ 48, and even when an incarcerated person was diagnosed with COVID-19 and held in isolation, there is no record of any care provided to him for the ten day period after he was diagnosed. Id. ¶ 55.
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Respondent has failed to take protective measures even in the face of known infections at the MDC. The MDC has relied on incarcerated people, rather than professional cleaners or staff, to clean units where confirmed positive people have been housed. von Dornum Decl. ¶¶ 12-13. According to one person confined at the MDC, others who were housed with a person who tested positive eventually showed symptoms. Pet. ¶ 68. To “clean” their own cells, people are provided only with diluted hand soap or nothing at all. Pet. ¶ 71; Rosenfeld Decl. Ex. 23 (Soria Decl. ¶ 7); supra Facts, C.3.
Nor has Respondent taken adequate steps to educate incarcerated people about the spread of infection or separated individuals based on their risk of becoming seriously ill from COVID-19. von Dornum Decl. ¶ 35; Pet. ¶ 77. Physicians have not visited housing units, medical staff will visit only if someone reports symptoms, which many people are afraid to do because, absent a transparent protocol for treatment, they are reasonably concerned that if they report feeling symptomatic they will be placed in solitary confinement. von Dornum Decl. ¶ 16(b); Pet. ¶ 77; Rosenfeld Decl. Ex. 1 (Vasquez Tr. 45:5-15) (Prisoners have not been assured that they will not be placed in the SHU if they report symptoms.).
6. MDC Is Not Prepared to Treat Individuals Who Contract COVID-19 If Petitioners contract COVID-19 at the MDC, they will be at a high risk of developing serious symptoms because the MDC lacks the medical resources to care for symptomatic individuals. Pet. ¶ 81. MDC has no separate medical unit for sick people, unlike many Federal Correctional Institutions and even Rikers’ Island. von Dornum Decl. ¶ 41. MDC currently has no ventilators and cannot intubate patients on-site. von Dornum ¶¶ 39, 40. MDC does not have any specialized equipment or medical providers. Id. ¶ 42. There are only three doctors available at MDC to care for all 1,700 people held there. Id. MDC cannot even care for isolated prisoners
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in the isolation unit: if they need care in a medical room, they must go outside the unit to receive it. Rosenfeld Decl. Ex. 1 (Vasquez Tr. 75:16-76:17).
These resources will be inadequate to treat people who contract COVID-19, particularly the Vulnerable Persons sub-class. Most people in the higher risk categories will require more advanced support: positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation. Pet. ¶ 86. Such care requires specialized equipment in limited supply as well as an entire team of specialized care providers. Id. MDC does not have that specialized equipment or specialized providers. Id. And MDC’s staffing shortage will only increase with the epidemic, leaving officers less able to monitor the health of the incarcerated population. Giftos Decl. ¶ 18.
If Petitioners or class members contract COVID-19, they will encounter significant delays in obtaining medical care, further exacerbating the risks they face. As Dr. Venters has opined based on his review of the MDC’s sick call slips, Respondent is operating a “broken” system that increases the risk of infections and complications, particularly for Vulnerable Persons. Venters Report, ¶ 3. This is confirmed by reports from class members about the lack of timely responses to their requests for medical attention. Rosenfeld Decl. Ex. 8 (Needham Decl. ¶¶ 19-35);. Ex.10 (Finch ecl. ¶ 11); Ex. 26 (D. Sanchez Decl. ¶ 13); Ex. 12 (Platt Decl. ¶ 11); Ex. 20 (R. Watson Decl. ¶¶ 16-17); Ex. 21 (A. Wilson Decl. ¶¶ 10-12); Ex. 35 (Castillo Decl. ¶¶ 5, 7); Ex. 22 (Miller Decl. ¶ 8); Ex. 23 (Soria Decl. ¶ 2); Ex. 7 (Dixon Decl. ¶¶ 11-13); Ex. 13 (Pierson Decl. ¶¶ 11, 21); Ex. 29 (Singer Decl. ¶ 12); Ex. 30 (Deutsch Decl. ¶¶ 15, 18-19); Ex. 32 (Whitley Decl. ¶ 14);. Ex. 14 (Sojos-Valladares Decl. ¶ 5). And if members of the class are in need of emergent attention, the emergency call buttons in their cells may not even work. Rosenfeld Decl. Ex. 24(Haney Decl. ¶ 14); Ex. 16 (Altino Decl. ¶ 13); Ex. 10 (Finch Decl. ¶ 13);
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Ex. 18 (Hall Decl. ¶ 13); Ex. 11 (Nelson Decl. ¶ 12); Ex. 26 (D. Sanchez Decl. ¶ 23); Ex. 23 (Soria Decl. ¶ 4).
D. Petitioners Are Particularly Vulnerable Because of their age and/or medical conditions, Petitioners are particularly vulnerable to serious illness or death if infected by COVID-19.
1. Ayman Rabadi Mr. Rabadi is 59 years old; he will be 60 in May. Rabadi Decl. ¶ 1. He suffers from many health problems, and he had a heart attack about six years ago. Id. ¶ 4. Mr. Rabadi takes medication for high blood pressure, cholesterol, hypertension, diabetes, and other conditions. Id. ¶ 6. He has several stents in his heart. Id. ¶ 4. He has a tumor in one of his kidneys and suffers from an anal fistula. Id. ¶¶ 4, 7. Because under lockdown, he has limited access to showers, he is unable to properly clean his anal fistula and fears it will become infected. Id. ¶ 7. Mr. Rabadi suffered from a stroke in jail last year. Id. ¶ 5. Mr. Rabadi has made many requests for medical care over the past several months, but these requests have been ignored. Id. ¶ 9. When medical staff started taking people’s temperatures in his unit several weeks ago, they never asked him questions about his health. Id. ¶ 10. In the last week, no one has taken his temperature. Id. Mr. Rabadi is scheduled to be released on July 19, 2020. Id. ¶ 2. If released, he will return to his family home of the past thirty years where he will live with his adult daughter and her family. Id. ¶ 3.
2. Elodia Lopez Ms. Lopez is 55 years old and is housed in the women’s dormitory of the MDC. Lopez Decl. ¶ 1, 7. She suffers from a number of serious health conditions, including high blood pressure, high cholesterol, a pituitary condition, and Type II diabetes. Id. ¶ 2. Ms. Lopez takes insulin for her diabetes as well as daily medication for her high blood pressure and cholesterol.
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Id. Ms. Lopez also has a serious lung infection, which she first discovered in November 2019. Id. ¶ 4. Her lung infection makes it difficult to breathe, causes her throat close, and gives her high fever and chills. Id. Since arriving at the MDC in January 2020, she has received no medication for the infection. Id. In response to her medical requests she has been given Vitamin D and told to buy medicine for pain. Id. Recently, Ms. Lopez is experiencing difficulty breathing, headaches, congestion, and depression. Id. ¶ 5.
Ms. Lopez arrived at the MDC in January 2020 and is scheduled to be released on July 28, 2020. Lopez Decl. ¶ 1. Ms. Lopez is serving a 15-month sentence in connection with a conviction for selling marijuana. Pet. ¶ 93. On April 30, 2020, her defense counsel was informed that she has been denied compassionate release. Lopez. Decl. Ex. 1. If released, Ms. Lopez will live with her daughter. Lopez Decl. ¶ 14.
3. James Hair Mr. Hair is 29 years old and suffers from multiple serious medical conditions. Hair Decl. ¶ 1. Mr. Hair has multiple sclerosis, which causes him headaches, numbness, and tingling and has caused him to have approximately 4 seizures in the past two years. Id. ¶ 4. Mr. Hair also suffers from asthma and uses an inhaler. Id. ¶ 6. In late 2019, Mr. Hair was taken to the hospital for an asthma attack. Id. At his previous facility, Mr. Hair was told after a chest and kidney scan that he requires follow up care for lung issues and abnormal cell growth on his left kidney. Id. ¶ 7. In late 2019, Mr. Hair began vomiting multiple times per week and frequently seeing blood in his vomit, which he has shown to staff at the MDC. Id. ¶ 10. Mr. Hair told a doctor at the MDC about his abnormal lung and kidney scans, has put in numerous medical requests for trouble breathing, blood in his stool and vomit, pain in his lower back/kidneys, and a severe earache, but has received inadequate attention. Id. ¶¶ 7, 12. Over the last month, Mr. Hair has put in requests for medical care on an almost daily basis. Id. ¶¶ 17-27.
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Most of these requests were ignored. Id. For example, on April 23, 2020, Mr. Hair told the woman who passes out medication that he was short of breath and his chest hurt and asked her to check his vitals but the nurse refused to do so and shut the door on him. Id. ¶ 29. Mr. Hair is currently experiencing shortness of breath and tightness in his chest. Id. ¶ 33. On April 22, 2020, Mr. Hair asked a doctor to test him for coronavirus, but the doctor refused to give him a test and discouraged him from asking for testing. Id. ¶ 34.
Mr. Hair is scheduled to be released on August 15, 2026. Id. ¶ 2. If released, Mr. Hair would live with his fiancé in Baltimore. Id. ¶ 3.
ARGUMENT To establish an entitlement to a preliminary injunction, the moving party must establish: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm absent preliminary relief; (3) that the balance of equities tipping in favor of the moving party; and (4) that the public interest is served by an injunction. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “The party seeking the injunction carries the burden of persuasion to demonstrate, ‘by a clear showing,’ that the necessary elements are satisfied.” Litwin v. OceanFreight, Inc., 865 F. Supp. 2d 385, 392 (S.D.N.Y. 2011). Although Petitioners maintain that an injunction is necessary to preserve the status quo—namely, their current health—Petitioners also can show the “substantial likelihood of success” necessary to justify a mandatory injunction. New York Civil Liberties Union v. New York City Transit Auth., 684 F.3d 286, 294 (2d Cir. 2012) (internal quotation marks and citation omitted). I. PETITIONERS FACE IRREPARABLE HARM IF THEY REMAIN CONFINED AT THE MDC UNDER CURRENT CONDITIONS
“The Second Circuit has deemed the threshold showing of ‘irreparable harm’ to be of particular significance under Rule 65, regardless of the strength of the movant’s case on the
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merits.” AIM Int’l Trading LLC v. Valcucine SpA., 188 F. Supp. 2d 384, 387 (S.D.N.Y. 2002) (citing Reuters Ltd. v. United Press Int’l, Inc., 903 F.2d 904, 907 (2d Cir.1990)). Harm is considered to be irreparable if it “cannot be redressed through a monetary award.” JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990). The irreparable harm here is immense: Petitioners and the class face death or serious illness from COVID-19 if they remain incarcerated at the MDC under current conditions.
With confirmed COVID-19 infections already present among staff and incarcerated people housed at the MDC, it will be nearly impossible, absent release or preventative measures, to prevent widespread internal transmission. The failure of the MDC to enable Petitioners and the class to practice social distancing and personal hygiene leaves them much more likely to be infected. This risk is exacerbated by the fact that the MDC has not taken sufficient steps to ascertain whether the people who are held or work at the MDC already have COVID-19. See, e..g., Boone v. Brown, No. 05 Civ. 750 (AET), 2005 WL 2006997, at *14 (D.N.J. Aug. 22, 2005) (allegation of refusal to provide adequate testing for highly contagious infectious disease sufficient to demonstrate constitutional violation); Austin v. Pa. Dep’t of Corr., Civ. A. No. 907497, 1992 WL 277511, at *7 (E.D. Pa. Sept. 29, 1992) (granting preliminary injunction for prison to develop testing protocol for tuberculosis). Once they contract COVID-19, Petitioners and other Vulnerable Persons will be at a substantially increased risk of death or serious illness because of their age and/or underlying medical conditions. The putative class and Vulnerable Persons subclass are at imminent risk from the virus as well.
Being compelled to endure a substantially increased risk of serious illness and death will always constitute irreparable injury. See, e.g., Helling v. McKinney, 509 U.S. 25, 33 (1993) (“It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening
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condition in their prison on the ground that nothing yet had happened to them.”); Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 43 (2d Cir. 1997) (irreparable injury found where closing of treatment program would lead to plaintiffs’ continued abuse of alcohol and drugs, “resulting in death, illness, or disability”); see also Stagliano v. Herkimer Central School District, 151 F. Supp. 3d 264, 273 (N.D.N.Y. 2015) (equitable relief justified by “obvious potential for such issues as developing chronic health issues or spreading contagious diseases.”).
Moreover, the Second Circuit has repeatedly held that the alleged violation of constitutional rights amounts to irreparable injury. See, e.g., Johnson v. Connolly, 378 F. App’x 107, 108 (2d Cir. 2010); Johnson v. Miles, 355 F. App’x 444, 446 (2d Cir. 2009); Conn. Dep’t of Envtl. Prot. V. O.S.H.A., 356 F.3d 226, 230-31 (2d Cir. 2004); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996). As discussed below, Petitioners have established that current MDC conditions violate the Fifth and Eighth Amendments.
Absent appropriate injunctive relief, Petitioners’ lives are at risk. The harm that would flow from allowing them to remain at the MDC in current conditions is undoubtedly irreparable, requiring release and the institution of significant mitigating measures. Several courts have already found that the very risk Petitioners face here constitutes irreparable injury justifying release from custody. Basank v. Decker, No. 20 Civ. 2518, 2020 WL 1481503, at *4 (S.D.N.Y. Mar. 26, 2020) (risk posed by COVID-19 infection constitutes irreparable harm); Coronel v. Decker, No. 20 Civ.2472, 2020 WL 1487274, at *3 (S.D.N.Y. Mar. 27, 2020) (same for people with “serious underlying medical conditions”); Castillo v. Barr, No. 20 Civ. 605, ECF No. 32 at 10 (March 27, 2020) (risk of exposure to COVID-19 was irreparable harm justifying release from immigration custody). And others have found that similar conditions mandate injunctive measures that will ameliorate the risk. Banks, 2020 WL 1914896, at *11 (ordering injunctive
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relief against local jail after concluding that “Plaintiffs’ risk of contracting COVID-19 and the resulting complications, including the possibility of death, is the prototypical irreparable harm.”); Swain, 2020 WL 1692668, at *2 (granting temporary restraining order requiring Miami-Dade County Jails to take specific measures to ameliorate risk of spread of COVID-19 and ensure testing “for anyone displaying known symptoms of COVID-19 in accordance with CDC guidelines.”); Cameron, 2020 WL 1929876, at *2–3, modified on reconsideration, No. 20 Civ. 10949, 2020 WL 1952836 (E.D. Mich. Apr. 23, 2020) (granting injunctive relief to class of pretrial detainees and convicted individuals). II. PETITIONERS HAVE A SUBSTANTIAL LIKELIHOOD OF SUCCEEDING ON
THE MERITS Respondent is violating Petitioners’ Fifth and Eighth Amendment rights by continuing to incarcerate them in conditions that expose them to a significant risk of transmission of an infectious disease that will prove deadly because of Petitioners’ vulnerable conditions. All people held in the MDC, whether convicted or not, are entitled to be protected from conditions of confinement that create a serious risk to health or safety. See Brown v. Plata, 563 U.S. 493, 531-32 (2011) (upholding lower court’s order releasing people from state prison even though release was based on prospect of future harm caused by prison overcrowding); see also Farmer v. Brennan, 511 U.S. 825, 834 (1994) (correctional official violates Eighth Amendment by consciously failing to prevent “a substantial risk of serious harm”); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“deliberate indifference” to serious medical needs violate the Eighth Amendment); Banks, 2020 WL 1914896, at *11 (“Based on the current record, Plaintiffs have provided evidence that Defendants are aware of the risk that COVID-19 poses to Plaintiffs’ health and have disregarded those risks by failing to take comprehensive, timely, and proper
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steps to stem the spread of the virus.”).6 The risk of exposure to a deadly infectious disease such as COVID-19 constitutes a serious risk to health, particularly for Petitioners and the vulnerable class members described herein. See Helling, 509 U.S. at 34 (noting with approval Eighth Amendment claims based on exposure to serious contagious diseases); Charles v. Orange Cty., 925 F.3d 73, 86 (2d Cir. 2019) (a serious medical need is “a condition of urgency such as one that may produce death, degeneration, or extreme pain.”). Respondent has not adequately protected Petitioners and the class from this risk of serious harm.
Government officials act with deliberate indifference when they “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” even when “the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33. The reach of the Fifth and Eighth Amendments includes “exposure of inmates to a serious, communicable disease.” Id.; see also Jolly, 76 F.3d at 477 (“[C]orrectional officials have an affirmative obligation to protect [forcibly confined] inmates from infectious disease”). This Court need not “await a tragic event” to find that Respondent is maintaining unconstitutional conditions of confinement. Helling, 509 U.S. at 33. Instead, showing that the conditions of confinement “pose an unreasonable risk of serious damage to [Petitioners’] future health” is sufficient. Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (quoting Helling, 509 U.S. at 35) (alteration omitted).
Here, Petitioners are likely being exposed to COVID-19 while at the MDC, placing them at risk of death because of their vulnerable medical conditions. Respondent is well aware of this
6 The named Petitioners are convicted and therefore their treatment is governed by the Eighth Amendment. Class members who are detained for pretrial purposes, however, are protected from deliberate indifference by the Fifth Amendment. Although pretrial class members may be entitled to even greater protection from unsafe conditions than convicted class members, Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”), for present purposes the distinction is immaterial because Respondent’s continued detention of the class plainly violates the Eighth Amendment.
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risk, having been alerted to it by the CDC, the Attorney General, the Second Circuit, and advocates such as the Federal Defenders. See Fed. Defs. of New York, Inc. v. Fed. Bureau of Prisons, 954 F.3d 118, 135 (2d Cir. 2020) (referring to “grave and enduring” risk posed by COVID-19); see also Jovel v. Decker, No. 20 Civ. 308, 2020 WL 1467397, at *1 (S.D.N.Y. Mar. 26, 2020) (finding “extraordinary circumstances” of COVID-19 pandemic justified release of immigration detainee from federal detention); United States v. Little, No. 20 Cr. 57, 2020 WL 1439979, at *4 (S.D.N.Y. Mar. 24, 2020) (“As additional people are arrested who have been out in the community as the coronavirus spreads, if they are not symptomatic, they will be brought into the MCC and MDC, and held with the existing population, potentially bringing COVID-19 into this population held in large numbers, close quarters, and low sanitary conditions.”).
In the face of this risk, Respondent has not taken sufficient steps to protect Petitioners or the other people who are incarcerated at MDC. Respondent has not even instituted a testing protocol, or other screening measures, that will enable him to understand the scope of the infection within the MDC and institute appropriate protective measures in response. The Second Circuit, almost 40 years ago, had no trouble holding, in reliance on Estelle, that the “failure to adequately screen newly arrived [inmates] for communicable diseases” amounted to deliberate indifference for both pretrial detainees and convicted individuals, “believing that it is unnecessary to require evidence that an infectious disease has actually spread in an overcrowded jail before issuing a remedy.” Lareau v. Manson, 651 F.2d 96, 109 (2d Cir. 1981); accord Morales Feliciano v. Calderon Sierra, 300 F. Supp. 2d 321, 341 (D.P.R. 2004) (neglecting to adequately screen for infectious disease implicates Eighth Amendment rights); Carty v. Farrelly, 957 F. Supp. 727, 737 (D.V.I. 1997) (“inadequate screening of incoming prisoners exposes prisoners to unreasonable health risks”) In a facility of 1700 people, in the midst of a global
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pandemic that can spread rapidly in confined spaces, in the city that is the epicenter of the pandemic, the dearth of testing represents the very kind of willful blindness that the Supreme Court equated with subjective deliberate indifference in Farmer, 511 U.S. at 843 n.8.
Nor has Respondent provided Petitioners and the class with the materials and conditions necessary to maintain basic personal hygiene to prevent transmission of the disease. Respondent has not taken medically indicated measures once he has identified an individual infected with COVID-19. One district court facing challenges to the medical care provided at a Vermont prison had no trouble finding that similar conditions violated the constitution. Carty, 957 F. Supp. at 737–38 (noting that 2 full-time and 2 part-time medical staff served 168 to 190 incarcerated people, and that sick call records indicate that people did not receive timely medical care).
Whether judged under the Fifth or Eighth Amendment, Respondent is holding Petitioners in violation of the Constitution by failing to protect them in the face of significant threats to their health and safety. Failing to take specific action to prevent spread of COVID-19 to high risk individuals can meet the objective requirement of the deliberate indifference test. Coronel, 2020 WL 1487274, at *4. Even where detention facilities have taken some measures to protect detainees – screening, providing soap and hand sanitizer, and increasing cleaning – it can amount to deliberate indifference when officials could not “represent that the detention facilities were in a position to allow inmates to remain six feet apart from one another” and could not “provide the Court with any information about steps taken to protect high-risk detainees like Petitioners.” Basank, 2020 WL 1481503, at *5 (“Confining vulnerable individuals such as Petitioners without enforcement of requisite social distancing and without specific measures to protect their delicate health “pose[s] an unreasonable risk of serious damage to [their] future health,” and
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demonstrates deliberate indifference.”) (quoting Phelps, 308 F.3d at 185 (internal quotation marks and citation omitted)).
It is for this reason that, in response to the COVID-19 crisis, one federal court ordered the Miami-Dade County Jail to provide mitigation measures similar to those requested in the instant case. Swain, 2020 WL 1692668, at *2 (ordering injunctive relief regarding hygiene, testing, personal protective equipment, and medical care). Along similar lines, another federal court ordered the District of Columbia to take similar steps in their jails, including measures related to sick call and social distancing. Banks, 2020 WL 1914896, at *13-15.
The Supreme Court’s decision in Helling is particularly instructive. In Helling, the Court recognized that an Eighth Amendment violation could be shown based on prison officials’ tolerance of a potential future harm to health. 509 U.S. at 33 (“Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.”). Continuing to detain Petitioners in the midst of the COVID-19 pandemic while failing to take measures to protect them and the putative classes poses a significantly greater risk than that faced by the plaintiff in Helling. COVID-19 is already inside the MDC. The facility has not taken adequate measures to ascertain the prevalence of the disease, stop its spread, or treat people who become ill. And Petitioners are at an increased risk because of their age and/or underlying medical conditions. As one court recently summed up, “Given the asymptomatic nature of transmission, the impossibility of adequate social distancing in communal detention spaces, and the inability or unwillingness to test all inmates and staff, [medically vulnerable people] remain[] at an unreasonable and substantial risk of infection and consequently of dire health consequences, including death.” Malam v. Adducci, No. 20-10829, 2020 WL 1899570, at
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*4 (E.D. Mich. Apr. 17, 2020). Accordingly, Petitioners have established a substantial likelihood of success on the merits of their claims. III. THE COURT HAS THE AUTHORITY TO ORDER THE RELIEF SOUGHT BY
PETITIONERS AND THE BALANCE OF EQUITIES TIPS IN PETITIONERS’ FAVOR Petitioners seek three categories of remedies: release; injunctive relief to ameliorate unconstitutional conditions; and the appointment of a Special Master or court-appointed expert to assist in facilitating these remedies. The Court has authority to order all of this relief in the context of this Section 2241 action. Section 2241(c)(3) authorizes courts to grant habeas corpus relief where a person is “in custody in violation of the United States.” The Second Circuit has “long interpreted § 2241 as applying to challenges to the execution of a federal sentence, including such matters as . . . prison conditions.” Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (internal quotation marks and citation omitted). This includes challenges to detention where conditions pose a threat to Petitioners’ medical wellbeing. See Roba v. United States, 604 F.2d 215, 218–19 (2d Cir. 1979) (approving the use of Section 2241 to challenge a detainee’s transfer where that transfer created a risk of fatal heart failure). In this case, the unconstitutional threat to Petitioners’ health and life posed by being held in Respondent’s custody is ongoing and release from custody is accordingly an appropriate remedy. See Basank, 2020 WL 1481503; see also supra n. 10. Short of release, appropriate injunctive relief is necessary to protect Petitioners and the class from the significant risk of COVID-19 infection. This includes adequate screening of people who enter the facility, adequate testing measures, access to materials for personal hygiene, a revised sick call procedure, and specific measure to protect Vulnerable Persons. Venters Report, ¶ 59.
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Recent case law establishes that both release from custody and appropriate injunctive relief are available on this record, for both pretrial detainees and convicted people. In Wilson v. Williams, No. 20 Civ. 00794, 2020 WL 1940882, at *2 (N.D. Ohio Apr. 22, 2020), the court granted a preliminary injunction ordering the respondent, warden of the Elkton Federal Correction Institution, to consider for release incarcerated people particularly vulnerable to the COVID-19 crisis. Just as at the MDC, the Elkton Warden had a paltry number of tests available to determine the prevalence of COVID-19 infections (although it had more confirmed positive cases and several deaths). Id. at *2 (“[W]ithout testing there is no way to know how many Elkton inmates have the virus.”).
And in Cameron v. Bouchard, No. 20 Civ. 10949, 2020 WL 1929876 (E.D. Mich. Apr. 17, 2020), modified on reconsideration, No. 20 Civ. 10949, 2020 WL 1952836 (E.D. Mich. Apr. 23, 2020), the court entered an order on a TRO granting wide-ranging injunctive relief to a class of pretrial detainees and convicted individuals, including measures related to hygiene, protective equipment, testing, social distancing, and medical care. Id. at *2-3; see also Swain, 2020 WL 1692668, at *2 (granting TRO against Miami-Dade County Jail requiring similar measures). Petitioners request similar measures here.
Moreover, both the balance of equities and the public interest favor releasing Petitioners and/or providing injunctive relief. The government has no interest in maintaining an unconstitutional practice. Doe v. Kelly, 878 F.3d 710, 718 (9th Cir. 2017). And in this case, release would help ameliorate a regional medical crisis that is threatening to overwhelm local hospitals. The interest in having Petitioners serve the remainder of their terms at the MDC, rather than under home confinement, is slight compared to the substantial risk to Petitioners’ health.
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Even if Petitioners and other class members are released, it will not ameliorate the risks for the remainder of the people held at the MDC. Respondent already has identified more than 300 people Vulnerable Persons. Those individuals face the same risk of imminent harm as Petitioners and are entitled to immediate release or, if they remain in the MDC, and appropriate mitigation measures as well. The public interest clearly favors granting injunctive relief for whoever remains at the MDC, because “it supports public health.” Banks, 2020 WL 1914896, at *12. For this reason, Petitioners respectfully request that this Court enter injunctive relief that will ameliorate those risks, and appoint a Special Master to (i) oversee implementation of the Court’s ameliorative injunctive relief, (ii) assist Vulnerable Persons currently incarcerated at the MDC to pursue avenues for release, where appropriate, and (iii) make additional recommendations for ameliorative action at the MDC.
The Court has inherent equitable power to appoint a Special Master to help the Court bring the MDC’s response to the coronavirus in line with the Constitution. “The power of the federal courts to appoint special masters to monitor compliance with their remedial orders is well established.” City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 145 (2d Cir.2011) (internal quotation marks and citation omitted). “[A]s with any other [equitable] remedial tool” a district court has “broad discretion” to appoint a Special Master. United States v. Yonkers Bd. of Educ., 29 F.3d 40, 44 (2d Cir.1994) (per curiam). In addition, Rule 53 of the Federal Rules of Civil Procedure provides an additional source of authority—supplementing the Court's inherent authority—to appoint a Special Master. That rule provides that “a court may appoint a master [] . . . to address pretrial and posttrial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district.” Fed.R.Civ.P. 53(a)(1)(C). The advisory committee notes to Rule 53 explain: “Courts have come to rely on masters to assist in
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framing and enforcing complex decrees” and that “[t]he master's role in enforcement may extend to investigation.” Id. advisory committee notes (2003 amendments).
Here, Petitioners seek the appointment of a Special Master to ensure compliance with any injunctive relief ordered by this Court aimed at ameliorating conditions at the MDC, including by assisting with developing pathways for release of Vulnerable People, where appropriate. For example, a Special Master could be a conduit to the courts for appropriate cases to be distributed to sentencing judges, prioritize the BOP’s list of Vulnerable People, and systematically propose solutions on a group-wide basis to achieve faster, more consistent results. A Special Master with correctional health expertise will also assist the Court with the complexities of evaluating conditions at the MDC and will make recommendations to the Court based on evolving publichealth knowledge regarding COVID-19. The Court can direct the Special Master’s responsibilities, reporting schedule, and interaction with stakeholders in a manner that supplements existing frameworks that would otherwise move too slowly to address the immediate needs presented by the pandemic. This is well within the power of the Court. See, e.g., United States v. State of Conn., 931 F. Supp. 974, 985 (D. Conn. 1996) (appointing a special master to review the care and treatment of residents in an institution for the mentally disabled, to formulate specific methods to implement the required changes, and to work with the parties to effectuate those changes).7
7 In the alternative, Petitioners respectfully request that the Court appoint an expert pursuant to Federal Rule of Evidence 706(a). See Ledford v. Sullivan, 105 F.3d 354, 358–59 (7th Cir. 1997) (“Generally, if scientific, technical, or other specialized knowledge will assist the trier-of-fact to understand the evidence or decide a fact in issue, a court will utilize expert witnesses[]” under Rule 706); 29 Wright & Miller, Federal Practice & Procedure § 6304 (2d ed. April 2020 update) (“The most important factor in favor of appointing an expert is that the case involves a complex or esoteric subject beyond the trier-of-fact's ability to adequately understand without expert assistance.”); see also Scott v. Spanjer Bros., Inc., 298 F.2d 928, 930–31 (2d Cir. 1962) (“We believe that the appointment of an impartial medical expert by the court in the exercise of its sound discretion is an equitable and forward-looking technique for promoting the fair trial of a lawsuit.”); Hart v. Cmty. Sch. Bd. of Brooklyn, New York School Dist. No. 21, 383 F. Supp. 699, 764 (E.D.N.Y. 1974) (appointing expert/special master in complex school desegregation
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IV. THE COURT SHOULD EXERCISE ITS GENERAL EQUITY POWERS OR CONDITIONALLY CERTIFY THE CLASS TO AWARD CLASS-WIDE RELIEF Formal class certification is not necessary in order to issue the requested emergency
relief. See, e.g., Newberg on Class Actions § 24:83 (4th ed. 2002) (“The absence of formal certification is no barrier to classwide preliminary injunctive relief.”); Moore’s Federal Practice § 23.50, at 23-396, 23-397 (2d ed.1990) (“Prior to the Court’s determination whether plaintiffs can maintain a class action, the Court should treat the action as a class suit.”). “It is well established that ‘[c]ertain circumstances give rise to the need for prompt injunctive relief for a named plaintiff or on behalf of a class’ and that the ‘court may conditionally certify the class or otherwise award a broad preliminary injunction, without a formal class ruling, under its general equity powers.’ ” Ligon v. City of New York, 925 F. Supp. 2d 478, 539 (S.D.N.Y. 2013) quoting Strouchler v. Shah, 891 F.Supp.2d 504, 516–17 (S.D.N.Y.2012).
The Court need not certify or even conditionally certify the class in order to issue a preliminary injunction providing relief to everyone incarcerated at the MDC. As other courts have done in recent litigation seeking to enjoin the practices of detention facilities around the country in the wake of the COVID-19 pandemic, this Court may rely on its general equity power to grant class-wide preliminary relief. See Cameron, 2020 WL 1929876, at *2–3 (ordering several forms of class-wide injunctive relief concerning COVID-19 in jail without conditionally certifying class); Swain, 2020 WL 1692668, at *2 (S.D. Fla. Apr. 7, 2020) (same).
The Court could instead opt to conditionally certify the class and order class-wide preliminary relief. “[T]here is nothing improper about a preliminary injunction preceding a
case). Where a case involves “complex issues of infectious disease, public health, and correctional medicine,” a court is well within its discretion to appoint a Rule 706 expert. Reynolds v. Goord, No. 98 Civ. 6722 (DLC), 2000 WL 825690, at *2 (S.D.N.Y. June 26, 2000).
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ruling on class certification.” Wilson, 2020 WL 1940882, at *6 (citation omitted) (granting classwide preliminary injunction to conditionally certified class of everyone incarcerated in BOP prison and subclass of medically vulnerable individuals during COVID-19 pandemic); Rivas v. Jennings, 20 Civ. 02731 (VC), 2020 WL 2059848, at *1, *4 (N.D. Cal. Apr. 29, 2020) (granting conditional class certification and preliminary relief regarding immigration detention conditions during the COVID-19 pandemic). When conditionally certifying a class, the Court must be satisfied that the requirements of Rule 23 are met, though “[i]ts analysis is tempered, however, by the understanding that such certifications ‘may be altered or amended before the decision on the merits.’” Damus v. Nielsen, 313 F. Supp. 3d 317, 329 (D.D.C. 2018). Here, the proposed class of all current and future people detained at MDC and the subclass of all current and future medically vulnerable people detained at the MDC easily meet the Rule 23(a) and Rule 23(b)(2) requirements for certification.
A. The Proposed Class is Numerous The proposed class is presumptively numerous. There are approximately 1,700 people housed at the MDC and approximately 380 are now on the medically vulnerable list. A proposed class of this size plainly satisfies the numerosity requirement. In the Second Circuit, a class of 40 or more members is presumptively numerous. See Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). The proposed class not only satisfies the numerosity requirement because of its size, but also because joinder of all potential class members is impractical based on contextual factors. Pennsylvania Pub. Sch. Emps.’ Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111, 120 (2d Cir. 2014) (citing Robidoux v. Celani, 987 F.2d 931, 936 (2d. Cir. 1993)). The proposed class consists of individuals detained in jail, most of whom have limited financial resources and limited ability to sue independently. See V.W. by & through Williams v. Conway,
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236 F. Supp. 3d 554, 574 (N.D.N.Y. 2017); Dean v. Coughlin, 107 F.R.D. 331, 332–33 (S.D.N.Y. 1985).
B. Questions of Law and Fact Are Common to the Proposed Class The questions of law and fact raised here are “common to the class,” Fed. R. Civ. P. 23(a)(2), because their “resolution will affect all or a significant number of the putative class members.” Johnson v. Nextel Commc’ns Inc., 780 F.3d 128, 137 (2d Cir. 2015). Commonality requires the identification of an issue that by its nature “is capable of classwide resolution— which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes v. Wal-Mart Stores, Inc., 564 U.S. 338, 350 (2011). A single common issue is sufficient to establish commonality. Id. at 359. The commonality requirement is perfectly met in cases, like this one, seeking injunctive relief to remedy constitutional violations. See Nicholson v. Williams, 205 F.R.D. 92, 98 (E.D.N.Y. 2001) (“[t]here is an assumption of commonality where plaintiffs seek certification of an injunctive class under Rule 23(b)(2) to right alleged constitutional wrongs.”) And in the context of prisons and jails, courts routinely find common questions of law and fact when those incarcerated “have a common interest in preventing the recurrence of the objectionable conduct.” Inmates of Attica Corr. Facility v. Rockefeller, 453 F.2d 12, 24 (2d Cir. 1971); see also V.W., 236 F. Supp. 3d at 575 (finding commonality because incarcerated plaintiffs alleged a “common course of unlawful conduct” and because litigation will be resolved by whether conduct should be enjoined). The common question of law and fact to be resolved here is: whether Respondent’s failure to take adequate steps to mitigate the risk of harm posed by COVID-19 to people incarcerated at MDC constitutes deliberate indifference in violation of the Eighth and Fifth Amendment to the Constitution and the Supreme Court’s decision in Helling, 509 U.S. 33 (1993). This case satisfies the requirement of at least “a single common question” that is shared
32

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by all members of the proposed class. All of the class members either have been, or will be, subjected to these common conditions, and a determination that Respondent’s conduct is unconstitutional will therefore “resolve an issue that is central to the validity” of each and every class member’s detention. Dukes, 564 U.S. at 350 (2011).
C. The Claims of the Named Plaintiffs are Typical of the Proposed Class. Rule 23’s requirement that “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class,” “When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims.” Robidoux, 987 F.2d at 936-37 . That the extent of an incarcerated class member’s exposure to particular prison conditions and the “exact nature of their injuries” will necessarily differ from those of the proposed class members” does not defeat typicality. Butler v. Suffolk Cty., 289 F.R.D. 80, 99 (E.D.N.Y. 2013) (citations omitted). As one court recently noted in the COVID-19 context, “[t]he likelihood that some people would need to be released as part of the effort to alleviate dangerous conditions at the jail … is not a reason to deny provisional class certification. Rivas, 2020 WL 2059848, at *1, *4. D. The Named Plaintiffs and Class Counsel Will Fairly and Adequately
Represent the Class The adequacy requirement under Rule 23(a)(4) “is twofold: the proposed class representative must have an interest in vigorously pursuing the claims of the class, and must have no interests antagonistic to the interests of other class members.” Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006). “Courts that have denied class certification based on the inadequate qualifications of plaintiffs have done so only in flagrant cases, where the putative class representatives display an alarming unfamiliarity with the suit.” In re Frontier Ins. Grp.,
33

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Inc., Sec. Litig., 172 F.R.D. 31, 47 (E.D.N.Y. 1997) (internal quotations marks and citation omitted). Here, the interests of the named class representatives are not in conflict with those of the class members. They have all been subjected to the same conduct and have brought this suit to remedy Respondent’s woefully inadequate response to the pandemic which has rendered the conditions in which they are held unconstitutional. Additionally, class counsel here are “qualified, experienced and able to conduct the litigation” Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000), and also meet the requirements of Rule 23(g). Declaration of Katherine R. Rosenfeld re: Class Certification; Declaration of Betsy Ginsberg; Declaration of Alexander A. Reinert; Declaration of Yeugenia (Jane) Shvets.
E. Petitioners Meet the Requirements of Rule 23(b)(2) The proposed classes meet the Rule 23(b)(2) requirement that “the party opposing the class has acted or refused to act on grounds that apply generally to the class” so that injunctive relief as to the entire class is appropriate. Fed. R. Civ. P. 23(b)(2). “‘Civil rights cases seeking broad declaratory or injunctive relief. . . fall squarely into the category of [Rule] 23(b)(2) actions.’” Marisol A. v. Giuliani, 126 F.3d 372, 378 (2d Cir. 1997) (citation omitted). Courts have already certified or conditionally certified Rule 23(b)(2) classes of incarcerated people seeking injunctive relief, including both release from custody and risk mitigation, to remedy institutional failures to properly manage the COVID-19 pandemic. See, e.g., Wilson, 2020 WL 1940882, at *8; Fraihat v. U.S. Immigration & Customs Enf't, No. ED-CV 191546 (JGB) (SHKx), 2020 WL 1932570, at *20 (C.D. Cal. Apr. 20, 2020). Here, Respondents’ actions—and inaction—came in response to the risks of COVID-19 at MDC, a ground that applies to all Class and Subclass members. Respondent’s deliberate indifference to the health and safety of all members of the Class and Subclass can be remedied only by declaring hisconduct in violation of
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Petitioners’ constitutional rights and granting injunctive relief to alleviate those risks. Rule 23(b)(2) is thus satisfied.
CONCLUSION For the foregoing reasons, Petitioners respectfully request that the Court grant Petitioners a preliminary injunction immediately releasing them from detention at the MDC to serve the remainder of their sentences in home confinement under such conditions as the Court deems appropriate, ordering injunctive relief to mitigate risks at the MDC, and appointing a Special Master to chair a Coronavirus Release and Mitigation Committee.

Dated: April 30, 2020 New York, New York

EMERY CELLI BRINCKERHOFF & ABADY LLP
By:
/s/ Katherine Rosenfeld Katherine Rosenfeld O. Andrew F. Wilson Samuel Shapiro Scout Katovich 600 Fifth Avenue, 10th Floor New York, NY 10020 (212) 763-5000
CARDOZO CIVIL RIGHTS CLINIC Betsy Ginsberg Cardozo Civil Rights Clinic Benjamin N. Cardozo School of Law 55 Fifth Avenue, 11th Floor New York, NY 1003 (212) 790-0871
Alexander A. Reinert 55 Fifth Avenue, Room 1005 New York, NY 1003 (212) 790-0403
Debevoise & Plimpton LLP
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Case 1:20-cv-01590-RPK-RLM Document 73 Filed 05/01/20 Page 44 of 44 PageID #: 1781 Yeugenia (Jane) Shvets 919 Third Avenue New York, New York 10022 (212) 909-6000 Attorneys for Petitioners and Putative Class
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 Case 1:20-cv-01590-RPK-RLM Document 79 Filed 05/07/20 Page 1 of 42 PageID #: 1802

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------x
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI by his Next Friend Migdaliz Quinones; and JUSTIN RODRIGUEZ by his Next Friend Jacklyn Romanoff; ELODIA LOPEZ; and JAMES HAIR, individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.
---------------------------------------------------------x

Civil Action No. 20-CV-1590 (Kovner, J.) (Mann, M.J.)

MEMORANDUM OF LAW IN OPPOSITION TO PETITIONERS’ MOTION FOR A PRELIMINARY INJUNCTION AND
IN OPPOSITION TO PETITIONERS’ MOTION FOR CLASS CERTIFICATION

James R. Cho Seth D. Eichenholtz Joseph A. Marutollo Paulina Stamatelos Assistant United States Attorneys (Of Counsel)

RICHARD P. DONOGHUE United States Attorney Counsel for Respondent Eastern District of New York 271-A Cadman Plaza East, 7th Floor Brooklyn, New York 11201
May 7, 2020

Case 1:20-cv-01590-RPK-RLM Document 79 Filed 05/07/20 Page 2 of 42 PageID #: 1803
TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................................................................................................. iii PRELIMINARY STATEMENT..........................................................................................................1 STATEMENT OF FACTS...................................................................................................................3 ARGUMENT .......................................................................................................................................3
I. Applicable Standard for a Motion for a Preliminary Injunction ..................................3 II. Petitioners’ Motion is Procedurally Improper Because it Seeks the
Equivalent of Final Judgment on the Merits ................................................................4 III. Petitioners Have Failed To Demonstrate A Substantial Likelihood of
Success On The Merits.................................................................................................5 A. BOP has already taken sufficient steps to protect all inmates at the MDC......8 B. MDC’s distribution of masks and promotion of social distancing has helped
to curtail any outbreak of COVID-19 ............................................................10 C. The MDC has sufficient testing procedures in place .....................................12 D. The MDC’s sick call request system provides a mechanism for inmates to
communicate health issues to medical staff that are then triaged ..................16 E. The MDC has provided adequate PPE and cleaning supplies to staff and
inmates to prevent the spread of COVID-19..................................................17 F. BOP educates inmates regarding the spread of COVID-19 ...........................18 G. BOP continues to protect staff members working at the MDC......................18 H. The Court should disregard the declarations of Jonathan Giftos and Jamie
Meyer .............................................................................................................20 IV. Petitioners Have Not Demonstrated Irreparable Harm, Or That The Public
Interest Or Balance Of Equities Favor A Preliminary Injunction ..............................20 V. Petitioners Fail To Establish That Class Certification Is Warranted..........................26
A. Requirements for class certification ...............................................................26 B. There are no questions of law or fact common to the proposed class............27 C. The claims of the named Petitioners are not typical of the proposed class....29 D. The proposed class is not ascertainable..........................................................30

Case 1:20-cv-01590-RPK-RLM Document 79 Filed 05/07/20 Page 3 of 42 PageID #: 1804 E. The proposed class is overly broad ................................................................32 F. Petitioners have not established adequacy .....................................................33 G. The proposed class does not satisfy the requirements of Fed. R. Civ. P. 23(b)(2) ........................................................................................................... 34
CONCLUSION ..................................................................................................................................35
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TABLE OF AUTHORITIES Page(s)
Cases Andino v. Fischer, 555 F. Supp. 2d 418 (S.D.N.Y. 2008) ...................................................................3 Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) ...........................................................5 Bell v. Wolfish, 441 U.S. 520 (1979)....................................................................................................2 Brecher v. Republic of Argentina, 806 F.3d 22 (2d Cir. 2015)....................................................26, 31 Brown v. Kelly, 609 F.3d 467 (2d Cir. 2010) .....................................................................................31 Cameron v. Bouchard, No. 20-CV-10949, 2020 WL 1929876 (E.D. Mich. Apr. 17, 2020),
modified on reconsideration, No. 20 Civ. 10949, 2020 WL 1952836 (E.D. Mich. Apr. 23, 2020).............................................................................25 Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir. 1999).............................................35 Charles v. Orange County, 925 F.3d 73 (2d Cir. 2019)...................................................................2, 6 City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 (2d Cir. 2011)...................................25 Dean v. Coughlin, 804 F.2d 207 (2d Cir. 1986)...................................................................................7 Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006) .............................................................34 Estelle v. Gamble, 429 U.S. 97 (1976).................................................................................................6 Farmer v. Brennan, 511 U.S. 825 (1994) ........................................................................................6, 7 Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147 (1982) .......................................................................31 Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423 (1974) ...........................................................4 Guerra v. Public Safety Concepts, No. 4:05-CV-2322, 2007 WL 628430 (E.D. Mo. Feb. 27, 2007) ...............................................................................................................29 Haddock v. Nationwide Fin. Servs., Inc., 293 F.R.D. 272 (D. Conn. 2013)......................................27 Haitian Ctrs. Coun. v. McNary, 969 F.2d 1326 (2d Cir. 1992) .........................................................32 Helling v. McKinney, 509 U.S. 25 (1993) ............................................................................................6 Hutchinson v. West, No. 04-CV-0135F, 2004 WL 1083194 (W.D.N.Y. Apr. 2, 2004) ......................7 In re Drexel Burnham Lambert Grp., Inc., 960 F.2d 285 (2d Cir. 1992) ..........................................33 In re Fosamax Prods. Liability Litig., 248 F.R.D. 389 (S.D.N.Y. 2008)...........................................32
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In re Motor Fuel Temperature Sales Practices Litig., 271 F.R.D. 221 (D. Kan. 2010) ....................34 In re Petrobras Sec., 862 F.3d 250 (2d Cir. 2017).............................................................................26 In re Vitamin C Antitrust Litig., 279 F.R.D. 90 (E.D.N.Y. 2012)......................................................32 John v. Nat’l Sec. Fire and Cas. Co., 501 F.3d 443 (5th Cir. 2007)..................................................32 Karvaly v. eBay, Inc., 245 F.R.D. 71 (E.D.N.Y. 2007)......................................................................29 Kress v. CCA of Tennessee, LLC, 272 F.R.D. 222 (S.D. Ind. 2010)..................................................29 Latino Officers Ass’n v. Safir, 170 F.3d 167 (2d Cir. 1999) ................................................................7 Livas v. Myers, No. 20-CV-422, 2020 WL 1939583 (W.D. La. Apr. 22, 2020) ...........................2, 30 M.G. v. New York City Dep’t of Educ., 162 F. Supp. 3d 216 (S.D.N.Y. 2016) .................................32 Martinez v. Brown, No. 08-CV-565, 2011 WL 1130458 (S.D. Cal. Mar. 25, 2011).........................35 Mazurek v. Armstrong, 520 U.S. 968 (1997) .......................................................................................4 Meeropol v. Meese, 790 F.2d 942 (D.C. Cir. 1986)...........................................................................27 Messner v. Northshore Univ. HealthSys., No. 10–2514,
2012 WL 129991 (7th Cir. Jan. 13, 2012) .....................................................................................33 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) .............................................................4 Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010) ...........................................................................26 N. Am. Soccer League, LLC v. United States Soccer Fed’n, Inc., 883 F.3d 32 (2d Cir. 2018) ...........7 New York Progress & Prot. PAC v. Walsh, 733 F.3d 483 (2d Cir. 2013) .....................................4, 20 New York v. Shinnecock Indian Nation, 560 F. Supp. 2d 186 (E.D.N.Y. 2008)................................35 Pagan v. Abbott Labs., 287 F.R.D. 139 (E.D.N.Y. 2012)..................................................................30 Roba v. United States, 604 F.2d 215 (2d Cir. 1979) ....................................................................21, 22 Romero v. H.B. Auto. Grp., Inc., No. 11-CV-386, 2012 WL 1514810 (S.D.N.Y. May 1, 2012)......27 Royal Park Investments SA/NV v. Deutsche Bank Nat’l Tr. Co., No. 14-CV-4394,
2017 WL 1331288 (S.D.N.Y. Apr. 4, 2017)..................................................................................30 Ruiz v. Estelle, 679 F.2d 1115 (5th Cir. 1982) .....................................................................................7 Sale v. Haitian Ctrs. Coun., Inc., 509 U.S. 918 (1993)......................................................................32 Sarsour v. Trump, 245 F. Supp. 3d 719 (E.D. Va. 2017).....................................................................3
iv

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Scaggs v. New York State Dep’t of Educ., No. 06-CV-0799, 2009 WL 890587 (E.D.N.Y. Mar. 31, 2009) .................................................................................30
Smentek v. Sheriff of Cook County, No. 09 C 529, 2010 WL 4791509 (N.D. Ill. Nov. 18, 2010) ....33 Southwood v. Credit Card Sol., No. 7:09-CV-183-F,
2014 WL 10677478 (E.D.N.C. Mar. 27, 2014) .............................................................................30 Swain v. Junior, No. 20-11622-C, 2020 WL 2161317 (11th Cir. May 5, 2020) .......................passim Tait v. Powell, 241 F. Supp. 3d 372 (E.D.N.Y. 2017) .........................................................................5 Thompson v. Choinski, 525 F.3d 205 (2d Cir. 2008) .........................................................................21 Toure v. Hott, No. 20-CV-395 (LO), 2020 WL 2092639 (E.D. Va. Apr. 29, 2020) ...........................6 Turner v. Safley, 482 U.S. 78 (1987) .................................................................................................23 United States v. Pandrella, 19 Cr. 1222 (E.D.N.Y. May 6, 2020).......................................................2 United States v. Rabadi, No. 13 Cr. 353, 2020 WL 1862640 (S.D.N.Y. Apr. 14, 2020) ....................6 United States v. Sanchez-Gomez, 138 S. Ct. 1532 (2018)..................................................................30 United States v. State of Conn., 931 F. Supp. 974 (D. Conn. 1996) ..................................................24 United States v. Yonkers Bd. of Educ., 29 F.3d 40 (2d Cir. 1994) .....................................................24 University of Texas v. Camenisch, 451 U.S. 390 (1981) .................................................................4, 5 Valentine v. Collier, No. 20-20207, 2020 WL 1934431 (5th Cir. Apr. 22, 2020) ............................23 Vu v. Diversified Collection Servs., Inc., 293 F.R.D. 343 (E.D.N.Y. 2013) ......................................28 Walco Investments v. Thenen, 168 F.R.D. 315 (S.D. Fla. 1996)........................................................29 Wal-Mart Stores, Inc., v. Dukes, 564 U.S. 338 (2011) ...............................................................passim WarnerVision Entm’t Inc. v. Empire of Carolina, Inc., 101 F.3d 259 (2d Cir. 1996) .........................5 Whitley v. Albers, 475 U.S. 312 (1986)................................................................................................5 Wilson v. Williams, No. 20-CV-00794, 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020)...................25 Winter v. Nat. Resp. Def. Council, Inc., 555 U.S. 7 (2008) ...........................................................8, 15 Wright v. Giuliani, 230 F.3d 543 (2d Cir. 2000)............................................................................7, 32 Wright v. Giuliani, No. 99-CIV-10091, 2000 WL 777940 (S.D.N.Y. June 14, 2000) ......................32
v

Case 1:20-cv-01590-RPK-RLM Document 79 Filed 05/07/20 Page 7 of 42 PageID #: 1808 Statutes
18 U.S.C. § 3621 ................................................................................................................................25 18 U.S.C. § 3626 ..................................................................................................................................2 18 U.S.C. § 3626(a)(3)(B)....................................................................................................................6 18 U.S.C. § 4001(b) ...........................................................................................................................25 18 U.S.C. § 4042(a)............................................................................................................................25 28 U.S.C. § 2241 ................................................................................................................................24
Rules Fed. R. Civ. P. 12(b)(1) ......................................................................................................................32 Fed. R. Civ. P. 12(b)(6) ......................................................................................................................32 Fed. R. Civ. P. 23(a).....................................................................................................................28, 29 Fed. R. Civ. P. 23(b)(2) ................................................................................................................29, 36 Fed. R. Civ. P. 65(d)...........................................................................................................................27 Fed. R. Civ. P. 65(d)(1) ......................................................................................................................36
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PRELIMINARY STATEMENT1 Federal Bureau of Prisons (BOP) staff members at the Metropolitan Detention Center-
Brooklyn (MDC) continue to work around the clock amidst this unprecedented global pandemic
to protect the health and well-being of the inmates at their facility. These BOP staff members have
worked tirelessly and successfully to control the spread of COVID-19. As recently as May 5,
2020, only six inmates out of a total of close to 1700 inmates have tested positive for COVID-19 in the preceding two-month period.2 And Petitioners cannot point to a single MDC inmate who
has needed hospitalization, or, for that matter, one who has suffered serious illness or even death.
Yet, against this backdrop of striking success, Petitioners demand that this Court grant
extraordinary and emergency injunctive relief, claiming that BOP is exhibiting Eighth Amendment
deliberate indifference to their COVID-19 medical needs, thereby entitling them to either
compassionate release or home confinement. Petitioners’ claimed constitutional violations should
be soundly rejected and their motion for preliminary injunction should be denied. Their claims
rest on unfounded allegations from inmates and unsupported theories relating to infection control
espoused by their purported expert, whose theories are not grounded in science, the standard of
care in the community, or evolving Centers for Disease Control and Prevention (CDC) guidelines.
As shown below, Petitioners cannot meet any of the standards for the preliminary injunctive relief
that they seek.
1 References to the cited portions of the deposition transcripts of Health Services Administrator Stacey Vasquez (Dkt. No. 72, Ex. 1), Associate Warden Milinda King (Dkt. No. 72, Ex. 15), and Dr. Homer Venters appear as “Vasquez Tr.,” “King Tr.,” and “Venters Tr.,” respectively. References to the expert reports of Dr. Venters, Jeff Beard, Ph.D., and Asma Tekbali, M.P.H., appear as “Venters Report,” “Beard Report,” and “Tekbali Report,” respectively. References to the declarations of Ms. Vasquez, Associate Warden Caryn Flowers, and Ms. King appear as “Vasquez Decl.,” “Flowers Decl.,” and “King Decl.,” respectively. The aforementioned documents (except for the Vasquez and King deposition transcripts, which already have been filed on ECF at Dkt. No. 72, Exs. 1 and 15) and the exhibits (“Cho Decl. Ex.”) referenced herein are attached to the declaration of AUSA James R. Cho, filed herewith. References to the Petitioners’ motion for a preliminary injunction appear as “PI Motion” or “Pet. Mot” (Dkt. Nos. 71-73), and the Amended Petition (Dkt. No. 60), as “Pet.” 2 https://www.nyed.uscourts.gov/pub/bop/MDC_MCC_20200505_042614.pdf.

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First, Petitioners have failed to show a likelihood of success on the merits of their claims. Respondent has put in place life-saving policies and practices that, to date, have prevented the spread of COVID-19 at the MDC. While these policies may not be precisely what the Petitioners want, they in no way violate the Eighth Amendment or demonstrate deliberate indifference. Petitioners’ complaints about BOP policies do not come close to meeting the requisite standard of being, “so egregious, so outrageous, that [they] may fairly be said to shock the contemporary conscience,” nor can Petitioners show that the BOP’s ongoing and successful efforts to maintain the health and safety of inmates and staff during this challenging global health crisis amount to proof of “deliberate indifference.” Charles v. Orange County, 925 F.3d 73, 85 (2d Cir. 2019). Indeed, BOP must be “accorded wide-ranging deference in the adoption and execution of policies and practices that in [its] judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547 (1979); United States v. Pandrella, 19 Cr. 1222 (E.D.N.Y. May 6, 2020) (Brodie, J.) (denying application for release under 18 U.S.C. § 3142 because “there’s no compelling evidence that [the defendant] will be infected with COVID-19 simply because he’s at the MDC” and noting that “MDC has many procedures in place, and these procedures appear to be working,” as the number of inmates infected with COVID-19 has “remained considerably low.”); Livas v. Myers, No. 20-CV-422, 2020 WL 1939583, at *8 (W.D. La. Apr. 22, 2020) (denying petitioners’ motion for release of purportedly vulnerable inmates from a BOP facility and dismissing action because, inter alia, court cannot serve as a “a de facto ‘super’ warden of [the BOP facility]”).
Petitioners also have not demonstrated that the public interest or balance of the equities favor a preliminary injunction. Petitioners seek a Special Master who will essentially determine which convicted criminals and charged criminals (who already have been judicially determined to
2

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be dangerous or flight risks) may be released from federal prison. Petitioners continue to provide no salient authority that would permit this Court to take the unprecedented step of giving a Special Master the authority that would otherwise be reserved to sentencing judges, and judges who have remanded dangerous charged defendants, in controlling their own criminal dockets. A preliminary injunction that would “transfer[] the power to administer the [jail] facility in the midst of the pandemic from public officials to the district court” must be flatly denied. Swain v. Junior, No. 20-11622-C, 2020 WL 2161317, at *4 (11th Cir. May 5, 2020) (“The injunction hamstrings [jail] officials with years of experience running correctional facilities, and the elected officials they report to, from acting with dispatch to respond to this unprecedented pandemic.”).
Finally, Petitioners’ motion for class certification must be wholly rejected here, as the proposed class lacks commonality and typicality, is not ascertainable, and is overly broad.
STATEMENT OF FACTS For a full recitation of the facts regarding BOP’s Action Plan for COVID-19, Respondent refers the Court to his motion to dismiss the Amended Petition pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6), or, in the alternative, motion for summary judgment (Dkt. No. 62, 62-1) (“Motion to Dismiss” or “Resp. Mot.”). Resp. Mot. 3-6. Respondent responds to the factual assertions raised in the PI Motion in the Argument section below, and reserves the right to address any factual disputes more fully at the May 12 Preliminary Injunction Hearing (“May 12 Hearing”).3
ARGUMENT I. Applicable Standard for a Motion for a Preliminary Injunction
“[T]he standard for an entry of a TRO is the same as for a preliminary injunction.” Andino v. Fischer, 555 F. Supp. 2d 418, 419 (S.D.N.Y. 2008) (collecting cases). A preliminary injunction
3 Respondent also refers the Court to his prior briefing in opposition to Petitioners’ motion for a temporary restraining order. Dkt. Nos. 18, 21, 22
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“is an extraordinary and drastic remedy, [and] one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” New York Progress & Prot. PAC v. Walsh, 733 F.3d 483, 486 (2d Cir. 2013) (quotation omitted). Under this standard, “[i]t is not enough for a court considering a request for injunctive relief to ask whether there is a good reason why an injunction should not issue; rather, a court must determine that an injunction should issue . . . .” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 158 (2010). Thus, an injunction should issue only where a plaintiff makes a “clear showing” and presents “substantial proof” that an injunction is warranted. Mazurek, 520 U.S. at 972. Put otherwise, Petitioners have the burden of proving the need for injunctive relief; Respondent bears no burden to defeat the motion. Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 442-43 (1974). And where, as here, “[a] plaintiff . . . seeks a preliminary injunction that will alter the status quo,” the plaintiff must go beyond a showing of a mere likelihood of success but “must demonstrate a ‘substantial’ likelihood of success on the merits.” New York Progress, 733 F.3d at 486 (citation omitted); see also Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981) (“The purpose of a preliminary injunction is ... to preserve the relative positions of the parties.”). II. Petitioners’ Motion is Procedurally Improper Because it Seeks the Equivalent of
Final Judgment on the Merits Petitioners’ motion seeks the identical relief, and the entirety of relief, as the Amended Petition itself seeks.4 If the Court were to grant the preliminary injunction, there would effectively
4 Compare Pet. Mot. 35 (relief requested: “[1] immediately releasing them from detention at the MDC to serve the remainder of their sentences in home confinement under such conditions as the Court deems appropriate, [2] ordering injunctive relief to mitigate risks at the MDC, and [3] appointing a Special Master to chair a Coronavirus Release and
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be nothing left for the Court to do. Petitioners are thus essentially seeking summary judgment, rather than emergency provisional relief designed to preserve the status quo until the Court can fully evaluate the merits of the claims on a complete record. Courts, however, may not grant a “preliminary” injunction that effectively gives Petitioners a final judgment on the merits. See, e.g., Univ. of Texas, 451 U.S. at 395 (inappropriate for court at the preliminary injunction stage to give a final judgment on the merits); WarnerVision Entm’t Inc. v. Empire of Carolina, Inc., 101 F.3d 259, 261 (2d Cir. 1996) (purpose of a preliminary injunction not to give plaintiff ultimate relief it seeks). Here, the relief sought by Petitioners is neither temporary nor preliminary, but rather is the exact same ultimate relief they seek in their Petition. Accordingly, the requested preliminary injunction must be denied on these grounds alone. III. Petitioners Have Failed To Demonstrate A Substantial Likelihood of Success On The
Merits As an initial matter, Respondent fully incorporates his Motion to Dismiss into the instant opposition to Petitioners’ motion for a preliminary injunction. And even assuming, arguendo, that this Court has jurisdiction here (which it does not, as set forth in Respondent’s Motion at 13-24), Petitioners’ request for a preliminary injunction must be denied on the merits. Petitioners can succeed on their ultimate constitutional claims only if they can demonstrate that Respondent acted with “deliberate indifference” towards Petitioners’ well-being by consciously disregarding an excessive risk of harm to their health or safety. Whitley v. Albers, 475 U.S. 312, 319 (1986) (“only the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment” (internal quotation marks omitted)). This entails proving two elements: first, Petitioners must show, objectively, that
Mitigation Committee”), with Amended Petition (Dkt. No. 60) at Prayer for Relief (requesting [1] immediate release of Petitioners; [2] ordering injunctive relief to mitigate the risks at MDC; and [3] “Appointing a Special Master on an emergency basis to Chair a Coronavirus Release Committee.”).
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Respondent’s actions “constitute an unnecessary and wanton infliction of pain or [are] repugnant to the conscience of mankind.” Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). In the context of exposing prisoners to risk of disease, a claim must be dismissed if it does not pose a threat that is so severe that it would be “contrary to current standards of decency for anyone to be so exposed.” Helling v. McKinney, 509 U.S. 25, 35 (1993); Farmer v. Brennan, 511 U.S. 825, 844-45 (1994) (“prison official’s duty under the Eighth Amendment is to ensure ‘reasonable safety,’ a standard that incorporates due regard for prison officials’ unenviable task of keeping dangerous men in safe custody under humane conditions.”). Second, the petition must show that the defendant “knows of and disregards an excessive risk to inmate health or safety,” that is the defendant “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and . . . must also draw the inference.” Farmer, 511 U.S. at 837.
The elements of a conditions-of-confinement claim brought by inmates alleging inadequate medical care, “[i]n order to establish a violation of a right to substantive due process, a plaintiff must demonstrate . . . that the government action was so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience;” this requires showing “(1) that [the inmate] had a serious medical need . . . and (2) that the Defendants acted with deliberate indifference to such needs.” Charles, 925 F.3d at 85-86 (citation and internal quotation marks omitted); Toure v. Hott, No. 20-CV-395 (LO), 2020 WL 2092639 (E.D. Va. Apr. 29, 2020) (denying plaintiff-detainees’ motion for a preliminary injunction due to a purported COVID-19 outbreak at a detention facility, as “[p]laintiffs have not clearly established the defendants are deliberately indifferent to the complained-of risk, because the officials are not disregarding that risk.”). Even where “prison officials [ ] actually knew of a substantial risk to inmate health or safety” and that particular harm ultimately occurs, the officials “may be found free from liability if they responded reasonably to
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the risk.” Farmer, 511 U.S. at 844. In short, “officials who act reasonably cannot be found liable” because they did not disregard the risk. Id. at 845.
“[A] court cannot impose the same standards of medical care upon a prison as it would expect from a hospital.” Hutchinson v. West, No. 04-CV-0135F, 2004 WL 1083194, at *3 (W.D.N.Y. Apr. 2, 2004); Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986) (vacating preliminary injunction and explaining that a “correctional facility is not a health spa, but a prison in which convicted felons are incarcerated;” so long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation); Ruiz v. Estelle, 679 F.2d 1115, 1149 (5th Cir. 1982) (the “Constitution does not command that inmates be given the kind of medical attention that judges would wish to have for themselves”), vacated in part as moot, 688 F.2d 266 (5th Cir. 1982).
At this preliminary juncture, and given Petitioners’ request for affirmative changes to BOP policies, a heightened standard is applicable. N. Am. Soccer League, LLC v. United States Soccer Fed’n, Inc., 883 F.3d 32, 37 (2d Cir. 2018) (“Because mandatory injunctions disrupt the status quo, a party seeking one must meet a heightened legal standard by showing a clear or substantial likelihood of success on the merits.”) (citations omitted). “First, the party must demonstrate that it will suffer irreparable harm in the absence of the requested relief.” Latino Officers Ass’n v. Safir, 170 F.3d 167, 171 (2d Cir. 1999). Second, “the moving party seeks a preliminary injunction that will affect government action taken in the public interest pursuant to a statutory or regulatory scheme,” and would alter, rather than maintain, the status quo, injunctive relief is appropriate only if the moving party has a “clear” or “substantial” likelihood of success on the merits. Wright v. Giuliani, 230 F.3d 543, 547 (2d Cir. 2000) (citation omitted). Finally, a party seeking injunctive relief must show “that the balance of equities tips in his favor, and that an injunction is in the public
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interest.” Winter v. Nat. Resp. Def. Council, Inc., 555 U.S. 7, 20 (2008). As set forth below, Petitioners fail to meet the heightened standard that would warrant the
extraordinary remedy of a preliminary injunction. In short, Petitioners cannot show that BOP was deliberately indifferent; instead, the evidence clearly shows that BOP has already taken critical steps to successfully prevent the spread of COVID-19 at the MDC. Swain, 2020 WL 2161317, at *4 (“evidence supports that [jail officials] are taking the risk of COVID-19 seriously”).
A. BOP has already taken sufficient steps to protect all inmates at the MDC Petitioners challenge the MDC’s protocols for screening both inmates and BOP staff for COVID-19. Pet. Mot. 8. Petitioners allege that “[d]octors have not been present,” “temperature checks are not taking place on a regular basis,” and “daily temperature checks” are not taking place in the general population units.” Pet. Mot. 8.5 Petitioners further allege that in quarantined units, the daily rounds include only a temperature check, not a wellness check asking about symptoms. Pet. Mot. 8. Petitioners’ assertions lack merit. By way of background, the MDC is an administrative detention center that houses approximately 1700 inmates. Pet. ¶ 14. It is a high-rise facility with 17 housing units, including a separate Special Housing Unit (“SHU”) and a women’s only unit. Beard Report 10; King Tr. 95. The MDC houses inmates with all security classification levels from low to high security. Beard Report 9. Inmates at the MDC are divided into separate housing units. Beard Report 10. At the MDC, to avoid the risk of cross-contamination across units, inmates typically do not transfer between housing units. Vasquez Tr. 25, 182, 201. The MDC’s Health Services unit provides medical care to inmates at the MDC. The Health Services Unit comprises 30 to 35 health care workers on staff at MDC, including four nurses, two IOP nurses, four nurse practitioners, three
5 The Court should disregard Ms. von Dornum’s declaration cited in Petitioners’ Motion to the extent it is based on inadmissible hearsay evidence (Dkt. No. 60-1).
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doctors, two pharmacists, an Assistant Health Services Administrator, a Health Services Administrator and two dentists. Vasquez Tr. 165-66. The MDC has medical staff coverage twenty-four hours per day, seven days per week. Vasquez Tr. 167-73.
Contrary to Petitioners’ assertions, all inmates that arrive at the MDC undergo screening. Vasquez Tr. 102-05; Vasquez Decl. ¶ 6. If the inmate is asymptomatic, the inmate is housed in the intake unit and quarantined for 14 days. Vasquez Tr. 103, 109-10. If the inmate is symptomatic with COVID-19 symptoms, the inmate is placed in an isolation unit. Vasquez Tr. 106-07. In addition, all staff members similarly undergo screening before they are allowed into the MDC. Vasquez Tr. 130-31, 138-39. Additionally, MDC medical staff make twice-daily rounds in the quarantine and isolation units conducing temperature and wellness checks.6 Vasquez Tr. 26-27, 38-40, 78-79; Vasquez Decl. ¶ 6. On the isolation unit, there is a medical room designated on that floor for medical exams. Vasquez Tr. 75:16-76:17; Beard Report 7. These twice-daily checks in the isolation and quarantine units include temperature and wellness checks. Vasquez Tr. 38-39, 78-79. Inmates are free to identify any symptoms they may be experiencing.7 Vasquez Tr. 39-40. Further, during these twice-daily rounds, medical staff carry sick call request forms in the event any inmates seek to make a sick call request. Vasquez Tr. 48-49.8 Throughout the institution, correctional staff make thirty-minute rounds on every unit. Vasquez Tr. 187. MDC’s screening
6 During the twice-daily medical rounds, if an inmate has a fever over 100.4, the inmate is isolated and the medical staff assesses the inmate’s symptoms. Vasquez Tr. 41. If the inmate reports symptoms, but has no fever, the medical staff similarly assesses the inmate’s symptoms. Vasquez Tr. 41. During the wellness check medical staff ask inmates how they are doing, and, to the extent, inmates only speak Spanish, a number of the medical personnel also speak Spanish, and have access to translation services. Vasquez Tr. 41-44; Vasquez Decl. p. 7. 7 Petitioners claim that the emergency call buttons in some inmate cells do not work. Pet. Mot. 15. But even if the sick call button in some cells are not currently functioning, inmates still have multiple ways to summon medical assistance, including by reaching out to a BOP staff member, correctional staff, during the twice-daily medical rounds (Vasquez Tr. 78:23-79:9), and through paper or electronic sick call requests. Vasquez Decl. p. 4. 8 MDC follows a symptom-based approach to releasing inmates from isolation. Vasquez Tr. 82:20-24. Inmates remain in the isolation unit for at least seven days after the onset of symptoms, and until at least 72 hours of improved symptoms, no fever, and no use of antipyretics as per CDC guidelines. Vasquez Tr. 81:19-82:4; Tekbali Report 5.
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protocols are consistent with CDC guidelines and the standard of care. Tekbali Report 4-5. Petitioners also argue that “Respondent’s current practices in the MDC fail to identify and
protect detainees who are particularly vulnerable to the effects of COVID-19.” Pet. Mot. 13. But in the paragraph immediately preceding this allegation, Petitioners contradictorily state that the MDC has “identified more than 300” inmates who are “particularly at risk of complications” from COVID-19. Pet. Mot. 13 (emphasis added). Indeed, as set forth in the expert report of Jeffrey Beard, Ph.D., Respondent already has taken steps to identify individuals who may be at risk of developing COVID-19 related complications. Beard Report 3. Moreover, as Petitioners’ putative expert, Dr. Homers Venters, admitted, high-risk detainees are not at any greater risk of contracting the COVID-19 than non-high-risk detainees. Venters Tr. 12:10-26; accord Vasquez Tr. 206-08 (MDC protects all inmates, not just high-risk inmates); Tekbali Report 2.9
B. MDC’s distribution of masks and promotion of social distancing has helped to curtail any outbreak of COVID-19
Petitioners claim the disposable masks given to inmates are not fit for reuse. Pet. Mot. 10. Petitioners claim staff are wearing masks inconsistently, Pet. Mot. 10, and that staff on the quarantine unit “do not regularly wear masks or gloves, coming and going from other areas throughout the facility.” Pet. Mot. 10.
Petitioners’ claim, however, is unfounded. BOP staff follow CDC guidance with respect to wearing personal protective equipment (“PPE”). King Tr. 86; Tekbali Report 5; Vasquez Decl. p. 6; King ¶ 19. For example, BOP staff are not required to wear gloves, but, instead are encouraged to wash their hands, per CDC guidelines, unless they are handling unsafe items, working in the isolation unit or expect to touch inmates. King Tr. 81, 83; Tekbali Report 6. Masks
9 Dr. Venters recommends cohorting high-risk detainees together. Venters Tr. 104:6-10. The MDC does not cohort higher risk inmates. Vasquez Tr. 208. Further, cohorting is not necessary because the best intervention for higher risk inmates is to limit their contact with other inmates, which the MDC has been doing. Tekbali Report 3.
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are distributed to BOP staff twice per week. King Tr. 69, 76; Vasquez Decl. p. 8. BOP staff wear masks unless they are able to social distance. King Tr. 71; Tekbali Report 7. Consistent with CDC guidelines, when BOP staff members are able to social distance, from each other, masks are not required. King Tr. 71; Tekbali Report 7; Vasquez Decl. pgs. 6, 8.
Petitioners further contend that staff are not adequately protected because not all staff members have been fit-tested for N-95 masks. As CDC guidelines make clear, however, N95 masks are reserved for health care professionals and first-responders. Tekbali Report 3. Indeed, Dr. Venters conceded that CDC guidelines do not specify that N95 masks must be used. Venters Tr. 137. Nonetheless, N95 masks are readily available to BOP staff at the MDC when needed. See, e.g., Vasquez Tr. 50.
Additionally, every inmate at the MDC has a mask, which is distributed once per week; inmates can ask for replacement masks as well. King Tr. 69, 76; Vasquez Tr. 74; King Decl. ¶¶ 20-25. Inmates are permitted to exit their cells on Monday, Wednesdays, and Fridays, initially for thirty minutes, but now for one-hour each. King Tr. 87-88. When inmates are permitted to exit their cells, they are required—consistent with CDC guidance—to wear masks.10 King Tr. 78, 8687; Vasquez Decl. p. 6. MDC procedures for distributing masks to inmates and staff are consistent with the standard of care. Tekbali Report 5; King Decl. ¶ 20; Vasquez Decl. p. 8
Petitioners allege that both male and female inmates are unable to socially distance and therefore are susceptible to COVID-19. Pet. Mot. 11. But Petitioners’ claims are not rooted in the facts. As background, most of the inmates at the MDC are double-celled, except inmates in the isolation unit and SHU. Given space and staffing limitations, the MDC is unable to accommodate all inmates in single cells. Regardless, CDC guidance provides for detention centers to cohort
10 Dr. Venters conceded that CDC guidelines do not specify that N95 masks must be used. Venters Tr. 137. Tekbali agrees that the use of N95 masks for inmates is unnecessary and not consistent with guidelines. Tekbali Report 3.
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inmates in light of space limitations. Vasquez Tr. 34, 38. To promote social distancing, the MDC limits the number of inmates that may exit their cells at any given time limiting the number to 10 inmates at staggered periods. King Tr. 87-89. Even Dr. Venters acknowledged that “staggering” is “appropriate.” Venters Tr. 148; accord Tekbali Report 7.11
C. The MDC has sufficient testing procedures in place Petitioners assert that testing at the MDC is practically nonexistent. Pet. Mot. 6-8. As is well known, testing within New York City has been extremely limited given the lack of available tests. Vasquez Tr. 122. In light of the limited tests available, the CDC has instructed the public to self-quarantine if they develop COVID-19 symptoms. Tekbali Report 2. Like the broader community, testing at the MDC has been limited. Vasquez Tr. 82. The MDC has submitted requests to LabCorp weekly for additional tests, but given the limited tests available, LabCorp has been unable to keep up with the demand for tests. Vasquez Tr. 115-17. Nonetheless, at the MDC, decisions to test inmates are clinical decisions made by MDC health care professionals and are based on a number of factors, including the severity of an inmate’s symptoms. Vasquez Tr. 90, 117; Tekbali Report 2 (“decisions to test are based on clinical presentation and provider’s discretion.”); Vasquez Decl. pgs. 4, 5; ¶¶ 15-21. In the event that an inmate develops symptoms in a housing unit, and that individual is the first inmate to present with COVID-19 symptoms, the MDC tests that individual. Vasquez Tr. 117, 119. If the inmate tests
11 Female inmates are housed in a dormitory-style women’s unit. Vasquez Tr. 101; Flowers Decl. ¶ 15 Although their bunks may be less than six feet away from each other, the MDC has endeavored, where possible, to alternate bed assignments where one inmate sleeps on the top bunk, and the neighboring inmate would sleep on the bottom bunk. King Tr. 96-97. When female inmates arrive, they are initially quarantined and housed individually in single cells. Vasquez Tr. 100. After the quarantine period, assuming the inmate is asymptomatic, the female inmates are then transferred to the women’s general housing unit. Vasquez Tr. 100-01. Female inmates are required to wear masks in the unit, if they are unable to social distance. King Tr. 96-97, 101; Vasquez Tr. 102; Flowers Decl. ¶¶ 17; 22-23. Given the size of the housing unit, and the number of female inmates, the inmates in the women’s unit are able to engage in social distancing. Vasquez Tr. 102.
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positive, the entire housing unit is placed under quarantine, and the remaining inmates are checked twice per day for symptoms. Vasquez Tr. 24-27, 27-28, 30-31, 85.12 The inmate who tested positive is then transferred to an isolation unit and housed in a single cell. Vasquez Tr. 26-27, 34, 45. The decision to place inmates in the isolation unit is a clinical decision made by MDC medical staff based on an inmate’s symptoms. Vasquez Tr. 56-58, 65, 89-90; Vasquez Decl. p. 5. Inmates placed in isolation either have tested positive for COVID-19 or are “presumed positive.” Vasquez Tr. 56, 61-63, 118.
Symptomatic inmates, including the cellmate of the inmate who tests positive, are transferred to the isolation unit as well, and are also “presumed positive.” Vasquez Tr. 31, 34, 3637, 61-63, 77, 85, 90, 118. The MDC therefore follows CDC guidelines in identifying potential COVID-19 symptoms, including fever, cough, shortness of breath. Vasquez Tr. 119-20; Vasquez Decl. pgs. 5-6, ¶¶ 17-19. Decisions to transfer symptomatic inmates, who have not been tested, to the isolation unit are clinical decisions made by MDC medical staff, based, in part, on the severity of the symptoms. Vasquez Tr. 61, 65, 66, 120. The MDC transfers inmates to the isolation unit immediately without waiting for the tests results given that test results often take 1-2 days to arrive. Vasquez Tr. 61-62, 115.
Inmates that are presumed positive, in general, do not receive tests because the clinical management of the inmate is the same whether the inmate has tested positive or is presumed positive. Vasquez Tr. 118-19. Ultimately, the MDC will treat the inmate’s symptoms regardless of whether they tested positive or are presumed positive. Vasquez Tr. 118-19. If the cellmate of an inmate, who has tested positive, is asymptomatic, the cellmate remains quarantined in his cell
12 Inmates that come into the institution are placed under quarantine in the intake unit. Vasquez Tr. 25-26; 31. The MDC places inmates in quarantine for 14 days before they are transferred out of the MDC. Vasquez Tr. 25; 29-30. For the past month and a half, approximately seven units at the MDC, at various times, have been under quarantine. Vasquez Tr. 33.
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alone.13 Vasquez Tr. 34, 85. All other asymptomatic inmates remain in their unit and are not placed in isolation. Vasquez Tr. 66. Per CDC guidelines, asymptomatic inmates are not tested. Vasquez Tr. 90, 129; Tekbali Report 2; Vasquez Decl. ¶¶ 15-21 If other inmates on the same housing unit develop symptoms, the BOP will presume those inmates are positive as well. Vasquez Tr. 31-32. Given the limited number of tests available, the MDC does not test the cellmate, but treats the inmate as positive for COVID-19 and treats the cellmate accordingly. Similarly, if inmates on the same housing unit from which an inmate had a positive test, develop symptoms, then the MDC will presume those inmates as positive as well. Vasquez Tr. 30-31. The MDC’s practice of isolating inmates, and presuming inmates positive is consistent with the standard of care in the community and given the CDC’s guidance limiting the use of widespread testing. Tekbali Report 4-5; Cho Decl. Ex. E; Flowers Decl. Ex. A.14
As of May 5, 2020, the MDC has tested 14 inmates. During the pandemic, two inmates were sent to local hospitals due to acute conditions, not specifically for COVID-19 symptoms, and those inmates received tests, at the hospital. Vasquez Decl. ¶ 8. One tested positive for COVID19; the other tested negative. Vasquez Decl. ¶ 8. The hospital, however, did not consider the inmates’ conditions serious and discharged both inmates back to the MDC. Vasquez Tr. 185-86. Dr. Venters opined that “[i]f a person at MDC gets sick and they need to go to the hospital, they should go to the hospital.” Venters Tr. 147. This is precisely what is occurring at the MDC. Beard Report 5. Further, Dr. Venters could point to no inmate whom he believed should be receiving treatment at a hospital rather than at the MDC. Venters Tr. 147. And even if an inmate were to
13 Other than a cellmate of an inmate that had tested positive, no other inmates on a housing unit are considered a close contact with the inmate that tested positive because all inmates are currently locked down in their cells. Vasquez Tr. 34-35. 14 On May 7, 2020, the BOP announced efforts to expand rapid testing capabilities. https://www.bop.gov/resources/news/pdfs/20200507_press_release_expanding_rapid_testing.pdf.
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go to the hospital for COVID-19, it would not, in and of itself, be sufficient to show deliberate
indifference. Swain, 2020 WL 2161317, at *4 (“court treated the increase in COVID-19 infections
as proof that the defendants deliberately disregarded an intolerable risk. In doing so, it likely
violated the admonition that resultant harm does not establish a liable state of mind.”).
Petitioners argue that MDC “artificially lowers the number of positive diagnoses and
conceals the true extent to which the pandemic is spreading inside the MDC” by not testing all symptomatic inmates. Pet. Mot. 6.15 MDC’s practice of presuming inmates as positive, however,
rather than testing all symptomatic inmates—given the limited number of tests available both in
the community and at the MDC—is entirely consistent with CDC guidelines and the standard of care. Tekbali Report 5.16
Petitioners further claim that “[p]hysicians have not visited housing units, medical staff
will visit only if someone reports symptoms, which many people are afraid to do because, absent
a transparent protocol for treatment, they are reasonably concerned that if they report feeling
symptomatic they will be placed in solitary confinement.” Pet. Mot. 14. The MDC’s practice has
been to isolate inmates who have tested positive for COVID-19 and the inmate’s cellmate—
15 Petitioners claim that some symptomatic inmates were not tested. Pet. Mot. 6. Petitioners, however, fail to identify whether the inmates were placed in the isolation unit, and presumed positive, or some other type of unit, and the type and severity of symptoms. 16 Petitioners further advocate for “[b]roader testing of both staff and incarcerated people,” Pet. Mot. 7-8, pointing to testing at New York City jails. However, county jails, like New York City jails, are different from the MDC. Beard Report 4-5. As the Court is aware, the MDC is located in Kings County, which has been hit particularly hard by the pandemic. In addition to other individualized steps that are being taken at the MDC, the MDC warden provides to Chief Judge Roslynn R. Mauskopf bi-weekly status reports concerning the incidence of infection of COVID-19 at MDC and the measures undertaken to mitigate the spread of COVID-19 within the MDC; the reports are posted on the Court’s public website. The April 3rd status report from indicates that, as of that date, 2 inmates in the MDC had tested positive. The May 5th status report indicates that 6 inmates have tested positive. By comparison, on April 3rd, there were 15,700 confirmed cases in Kings County, which increased to 47,183 on May 4, 2020. Thus, there is the exact same increase during this period (200%) in the MDC and in Kings County generally. The county-by-county data is available at https://usafacts.org/visualizations/coronavirus-covid-19-spread-map/, which is the data relied upon by the CDC (https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html). In other words, there is no evidence that the increase in the MDC inmate population is any greater than in the general population in the county surrounding the facility.
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considering the cellmate presumptively positive. The MDC’s practice is consistent with CDC guidelines and the standard of care. Tekbali Report 5. The MDC cannot be faulted for failing to treat the inmate’s symptoms if the inmate does not report symptoms in the first instance.
D. The MDC’s sick call request system provides a mechanism for inmates to communicate health issues to medical staff that are then triaged
Petitioners allege that the sick call system is inadequate, and that the MDC “understate[s] the scale of infection at the MDC.” Pet. Mot. 8. Petitioners also claim that the sick call system is deficient due to the length of time BOP takes to respond to requests. Pet. Mot. 15-16.
Again, the evidence shows that Petitioners’ argument lacks merit. The MDC has a sick call system by which inmates can request to see medical staff by making a verbal request to staff or submitting either a paper copy or electronic sick call request to MDC medical staff. Vasquez Tr. 186-87. When MDC medical staff receive sick call requests—whether verbally from the inmate, or by paper or electronic sick call requests –the medical staff triage the requests. Vasquez Tr. 54, 188-90, 194; Beard Report 6. If the request reflects an acute or emergent condition, medical staff would respond immediately to the requests. Vasquez Tr. 54, 198. Further, in light of the pandemic, the MDC has additional temporary staff on hand to assist in triaging sick call requests. Vasquez Tr. 194. The MDC’s sick call process is responsive to inmate complaints and certainly not deliberately indifferent to their needs.
Importantly, medical staff at the MDC are conducting twice-daily medical rounds in the quarantine and isolation units and conducing temperature and wellness checks on all inmates in those units. Vasquez Decl. p. 3. For all other inmates, medical staff conducts twice-daily rounds in those units as well. Beard Report 6. Inmates have had ample opportunity to meet with and talk to medical staff during those rounds. Correctional staff also conduct rounds every thirty minutes on every housing unit at which time inmates again can raise any medical concerns they may have.
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E. The MDC has provided adequate PPE and cleaning supplies to staff and inmates to prevent the spread of COVID-19
Petitioners claim that inmates have irregular access to basic hygiene supplies like soap, and that cleaning supplies have not been provided for cells. Pet. Mot. 9. Further, Petitioners contend that communally-used items like the phone, computer, and showers are not reliably cleaned between use. Pet. Mot. 9.
Contrary to Petitioners’ claim, the MDC has more than an adequate supply of soap, sinks, water, personal hygiene products, toilet paper, cleaning supplies and PPE. King Tr. 31-34, 38-40, 46-48; accord Beard Report 6-10; Flowers Decl. ¶¶ 25-26; King Decl. ¶¶ 7-15. MDC staff conduct daily inventory to ensure an adequate supply of these products. King Tr. 32. Soap is made available to all inmates weekly, and upon request. King Tr. 26-28, 31; King Decl. ¶¶ 15-18. Additional personal hygiene materials are available to inmates through the commissary that staff members retrieve for inmates. King Tr. 46-48; King Decl. ¶¶ 3-10. Hand sanitizer is also available throughout the MDC, and the MDC has sufficient sanitizer in stock. King Tr. 35-37. Inmates are required to clean their own cells daily, and are provided cleaning supplies that they can keep in their cells. King Tr. 40, 42, 44-46. Further housing units are cleaned daily and more frequently, including high touch areas, by inmate orderlies or staff. King Tr. 40, 52-55. The MDC also uses a strong disinfectant and cleaning solution as result of the pandemic (i.e., hdqC2). King Tr. 40, 53, 60-61; Beard Report 6, 8; Flowers ¶ 27; Vasquez Decl. p. 5.
With respect to phones and computers used by inmates, there are disinfectant spray bottles and wipes next to the phones and computers, which are placed there when inmates are released from their cells on Mondays, Wednesdays and Fridays. King Tr. 40, 57-58; Vasquez Tr. 35; Vasquez Decl. p. 6. Inmates are required to disinfect the phones and computers both before and after they are used. King Tr. 56-57; Beard Report 6, 8. If the inmate neglects to do so, BOP staff
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members will wipe down the phones and computer before the next inmates uses those items. Showers also are disinfected before and after each use. King Tr. 58-59.
MDC has also taken steps to increase cleaning throughout the facility. In each housing unit, orderlies are tasked with cleaning all common areas in the unit. The BOP has authorized the use of a stronger cleaning agent made available to all inmates. Vasquez Decl. pgs. 5-6. Whether the cleaning is performed by inmates or professional cleaners or staff is of no significance as there is no allegation that the inmates are somehow unable to clean as effectively as others, nor does the standard of care require the use of professional cleaners. Tekbali Report 3.
F. BOP educates inmates regarding the spread of COVID-19 Petitioners contend that the BOP has failed to “educate” inmates about COVID-19. Pet. Mot. 14. On the contrary, the MDC has taken significant steps to educate inmates regarding the pandemic. Flowers Decl. ¶¶ 3, 19; Vasquez p. 8. CDC guidance posters have been placed throughout the institution. King Tr. 86-87; Beard Report 6. Associate Warden King has met with all inmates at the institution both as a group, initially, and individual after the lock down to educate them about COVID-19. King Tr. 86-87. BOP has sent emails to all inmates educating them about infection control practices including wearing masks and social distancing. King Tr. 86-87. G. BOP continues to protect staff members working at the MDC Petitioners contend that “[b]oth medical and custody staff move between quarantined units, the unit where people are being isolated, and the general population units.” Pet. Mot. 12. Petitioners, however, fail to mention that when staff enter the quarantine and isolation units, for example, they have PPE available to them, and if not available, are able to request PPE. Vasquez Tr. 50-51, 59:15-61:4, 82:25-83:10; King Tr. 81. In the event that staff are expected to come into contact with inmates in that unit, they wear appropriate PPE. Vasquez Tr. 51:14-16, 59:15-61:4, 82:25-83:10; King Tr. 72-74; Beard Report 6, 7, 10. On other occasions, because inmates are
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locked in their cells, the full set of PPE is not necessary. Vasquez Tr. 51; King Tr. 75-76; Vasquez Decl. p. 6.
Petitioners argue that “[n]o one monitors staff for compliance with infectious disease protocols when they transfer between Units.” Pet. Mot. 12. But Petitioners have no evidence that BOP staff are not complying with infectious disease protocols. Even Dr. Venters observed BOP staff removing PPE after visiting the isolation unit. Venters Tr. 80-81.
Petitioners further contend that “staff” are “not informed” when an inmate tests positive unless they “need to know.” Pet. Mot. 12. Of course, due to privacy concerns, there is no reason for BOP staff, who may have had no interaction with an inmate, to know whether a particular inmate tested positive; in any event, inmates and BOP staff wear masks when they come into close prolonged contact as a pre-cautionary measure.
Petitioners further challenge the validity of temperature checks when staff members are screened at the entrance to the MDC. Petitioners posit that temperature checks may be artificially lowered because staff members are coming from the outside. Pet. Mot. 13. MDC screeners, however, often wait until the staff members have acclimated to the indoor temperature before taking temperature checks or they take the temperature from the staff members’ necks, which are typically warmer. Vasquez Tr. 135-36; Beard Report 5. Further, temperature checks are not the only factor considered when screening staff, as screeners also ask staff if they have signs or symptoms of COVID-19. Vasquez Tr. 130-34; Cho Decl. Ex. D.
Petitioners further contend that “staff are not being asked about contact with people who have confirmed or presumed cases of COVID-19.” Pet. Mot. 13. Given the prevalence of COVID19 in New York, staff members are presumed to have come in contact with infected individuals. MDC, however, screens staff members for fevers or signs or symptoms of an infection and
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proceeds accordingly. Vasquez Tr. 130; Cho Decl. Ex. D; Vasquez Decl. p. 6. H. The Court should disregard the declarations of Jonathan Giftos and Jamie Meyer Petitioners rely on the conclusory declaration of Jonathan Giftos (Pet. Mot. 3) asserting
that in the “correction setting, the risk of contracting an infectious disease . . . is significantly increased.” Pet. Mot. 3. The Court should disregard Giftos’s generic declaration regarding the risk of contracting infectious diseases, as Judge Mauskopf did in United States v. Amador-Rios, No. 18 Cr. 398 (S-3) (E.D.N.Y. Apr. 12, 2020), Dkt. No. 99 (referencing Giftos Decl. ¶ 11) (rejecting defendant’s reliance on Giftos’s generic affidavit that did not actually address the conditions at the MDC or the defendant’s dangerousness if released on bail). Similarly, the Court should similarly disregard Petitioners’ reliance on Jaimie Meyer’s generic declaration as it does not address conditions at the MDC. Pet. Mot. 3. IV. Petitioners Have Not Demonstrated Irreparable Harm, Or That The Public Interest
Or Balance Of Equities Favor A Preliminary Injunction In the absence of a convincing showing that Petitioners have a substantial likelihood of success on the merits, this Court may deny Petitioners’ motion without even considering the other requirements for a preliminary injunction, namely that Petitioners are “likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [their] favor, and that an injunction is in the public interest.” New York Progress, 733 F.3d at 486. But as shown below, consideration of these factors nevertheless does not strengthen Petitioners’ motion. The balance of equities and the public interest weigh in Respondent’s favor. Notably, Petitioners cite no legal authority empowering this Court to grant the extraordinary relief Petitioners seek, namely, a preliminary injunction which does not maintain the status quo but rather upends it entirely by (1) releasing the named Petitioners (with the release of hundreds of inmates to follow); (2) compelling the MDC’s (and by association the BOP’s)
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response to the COVID-19 threat to conform to Dr. Venters’s recommendations;17 and (3) appointing a Special Master or unidentified “expert” to serve as a de facto monitor of the MDC. Petitioners’ request is without any merit.
First, Petitioners concede that there is no legal authority in the Second Circuit empowering this Court to “release” Petitioners and thus commute, or otherwise vacate their criminal sentences or reverse detention decisions based on dangerousness and risk of flight. Resp. Mot. 13-19. Instead, Petitioners cite to a number of inapposite cases involving the release of immigration detainees during the pendency of their immigration proceedings due to the COVID-19 threat, which have no bearing on the criminal inmates in custody at the MDC. Pet. Mot. 26.
Next, the injunctive relief sought by the named Petitioners—an order to “ameliorate” alleged so-called “unconstitutional conditions” at the MDC based on three individual Petitioners’ habeas petitions and Dr. Venters’s recommendation—is not supported by Second Circuit jurisprudence addressing conditions of confinement claims brought by individual inmates under 28 U.S.C. § 2241. Petitioners cite Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) and Roba v. United States, 604 F.2d 215, 218-19 (2d Cir. 1979), in support of their request for broad injunctive relief but neither decision supports Petitioners’ expansive request for injunctive relief under the habeas statute. In Thompson, the Second Circuit merely stated that “[t]his court has long interpreted § 2241 as applying to challenges to the execution of a federal sentence, including such matters as the administration of parole, ... prison disciplinary actions, prison transfers, type of detention and prison conditions.” Thompson, 525 F.3d at 209 (quotations and citations omitted) (remanding to the district court a pro se § 2241 petition raising a conditions of confinement claim).
17 Dr. Venters set forth his recommended minimum standards for infection control at the MDC. Venters Report ¶ 64 (Dkt. No. 72-1). However, as set forth in the declaration of Ms. Vasquez, the MDC has already implemented those minimum standards. Vasquez Decl. pgs. 2-11.
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And in Roba, the Second Circuit acknowledged that “§ 2241 would be available [for] petitioner’s challenge to his transfer while seriously ill [as] a challenge to the conditions of his confinement.” 604 F.2d at 219.
Petitioners, however, cite to no authority allowing them to bootstrap class-wide relief in the form of an order to “ameliorate unconstitutional violations” (of which there are none) at the MDC based on the meritless § 2241 petitions of Rabadi, Hair, and Lopez. Vasquez Decl. ¶¶ 2442; ¶¶ 43-66; ¶¶ 67-76. Nor do Petitioners cite to any authority in which the public interest favors the release of criminal inmates based on the recommendation of an expert paid by petitioners in a civil lawsuit, especially when other inmates are properly seeking this relief – the very same relief Petitioners are requesting here – from the judges who sentenced them. Petitioners also overlook the fact that, to date, many inmates previously housed at the MDC have filed, and been granted, compassionate release from their sentencing judges over the course of the pandemic.
Petitioners do not even reference the fact that three of the Petitioners—McBride, Chunn, and Rodriguez—are no longer incarcerated at MDC and that the three remaining named Petitioners—Rabadi, Hair, and Lopez—have pending compassionate release motions either before their sentencing judges or the BOP seeking the same relief they seek before this Court.18 And one of the witnesses whom Petitioners intend to call at the May 12 Hearing—Dino Sanchez—also has a pending request for relief.19 United States v. Sanchez, No. 19 Cr. 14 (E.D.N.Y.), Dkt. No. 139. In short, besides lacking jurisdiction here, this action is simply not the proper mechanism by which inmates at MDC may seek (and indeed, have sought) compassionate release.
18 On May 4, 2020, Rabadi renewed his motion for compassionate release. United States v. Rabadi, No. 13 Cr. 353 (S.D.N.Y. May 4, 2020), Dkt. No. 95. 19 On May 6, 2020, Petitioners filed the Corrected Declaration of Dino Sanchez and identified Mr. Sanchez as testifying witness for the preliminary injunction hearing. In light of Petitioners’ late filing of Mr. Sanchez’s declaration, Respondent reserves the right to address Mr. Sanchez’s medical allegations in advance of the hearing.
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Moreover, this Court cannot simply blindly follow the recommendations of Dr. Venters when Congress has delegated the management of federal prisons to the Executive Branch since 1891, when the federal prison system was created. Swain, 2020 WL 2161317, at *5 (granting stay of a preliminary injunction because, “[i]n short, the district court assumed the role of ‘superwarden’ that our decisions repeatedly condemn.”); Valentine v. Collier, No. 20-20207, 2020 WL 1934431, at *5 (5th Cir. Apr. 22, 2020) (staying preliminary injunction because it would prevent jail officials from “responding to the COVID-19 threat without a permission slip from the district court.”). The injunctive relief requested by Petitioners undermines the separation of powers by impermissibly injecting the judiciary into the management of federal prisons during times of crisis when the principle of separation of powers is arguably at its most important. Three Prisons Act, ch. 529, 26 Stat. 839 (1891). Since the creation of the BOP in 1930, Federal Bureau of Prisons Act, ch. 274, Pub. L. No. 71-218, 46 Stat. 325 (1930), Congress has delegated to BOP the management of federal prisons. 18 U.S.C. § 3621; 18 U.S.C. § 4001(b) (delegating “control and management” of federal prisons to Attorney General); 18 U.S.C. § 4042(a) (providing BOP “shall . . . have charge of the management and regulation of all Federal penal and correctional institutions”). As is underscored by the breadth of legislative action in the area, and Congress’s decision to delegate day-to-day prison operations to those with appropriate expertise in the Executive Branch, “[r]unning a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.” Turner v. Safley, 482 U.S. 78, 84-86 (1987). “[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.” Id. at 84. Instead, “[p]rison administration is . . . a task that has been committed to the responsibility of [the Legislative and Executive] branches, and separation of
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powers concerns counsel a policy of judicial restraint.” Id. at 85 (emphasis added). Here, separation-of-powers principles inherent in Congress’ delegation of running federal prisons to the Attorney General and BOP should cause the Court hesitation before simply accepting Dr. Venters’s recommendations.
In addition to having the Court categorically accept Dr. Venters’s opinions, Petitioners seek to appoint a “Special Master” to supplant BOP and Respondent’s role in the management of the MDC. Pet. Mot. 28. This Court, however, lacks the ability to appoint a Special Master to essentially sit as an Article III judge and evaluate which inmates may be released and which may not, especially when any inmates seeking such relief can (and have) appropriately request(ed) this relief from the judges who sentenced them. Resp. Mot. 22-25.
Importantly, Petitioners fail to cite to any cases in which a Special Master was appointed at this early stage of the proceedings. Indeed, none of the three cases cited by Petitioners in support of their Special Master argument (Pet. Mot. 28-29) address circumstances in which a district judge appointed a Special Master at the preliminary injunction stage. Pet. Mot. 28-29, citing City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 145 (2d Cir. 2011) (addressing a special master appointment in the context of a permanent injunction and default judgment); United States v. Yonkers Bd. of Educ., 29 F.3d 40, 42 (2d Cir. 1994) (addressing a special master appointment following a post-discovery, lengthy bench trial spanning from 1983 to 1984); United States v. State of Conn., 931 F. Supp. 974, 975 (D. Conn. 1996) (addressing a special master appointment in the context of a consent decree). Petitioners’ failure to cite any similar cases was also evident at the TRO phase, as the Court acknowledged that it has not “found circumstances where a special master has been appointed just at the very outset of litigation through a TRO, and I am reluctant to do that here.” Apr. 8, 2020 Tr. 20.
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Interestingly, one of the three cases that Petitioners rely on—the Second Circuit opinion styled City of New York v. Mickalis Pawn Shop, LLC (Pet. Mot. 28)—actually bolsters Respondent’s argument that a Special Master cannot be appointed here. Pet. Mot. 28. In Mickalis Pawn Shop, LLC, the Second Circuit concluded that the district court erred in giving “sweeping delegations of power” to a Special Master in violation of Fed. R. Civ. P. 65(d), as “[s]erious constitutional questions arise when a master is delegated broad power to determine the content of an injunction as well as effectively wield the court’s powers of contempt.” Mickalis Pawn Shop, LLC, 645 F.3d at 145. “If the master makes significant decisions without careful review by the trial judge, judicial authority is effectively delegated to an official who has not been appointed pursuant to article III of the Constitution.” Id. (quoting Meeropol v. Meese, 790 F.2d 942, 961 (D.C. Cir. 1986)). Similarly, here, there is no basis to argue that a Special Master can mete out judgments better reserved for Article III judges, nor does the Court have the authority to delegate the discretion and power of those Article III judges sitting in this and other districts to a Special Master.
Finally, and perhaps sensing the lack of merit to their request for a Special Master, Petitioners state—for the first time in this litigation—that they would seek, in the alternative, the appointment of “an expert pursuant to Federal Rule of Evidence 706(a).” Pet. Mot. 29. As Petitioners provide no detail about this proposal and failed to even raise this claim in their Amended Petition, it is not clear what this supposed, less-qualified expert would do, apart from presumably ensuring that (a) an unnecessary layer of bureaucracy is added to the BOP and sentencing court review process and (b) unnecessary litigation will result. Petitioners again fail to cite to any case in which such an “expert” has been appointed at this preliminary phase of the proceedings. Pet. Mot. 29. Petitioners’ application must be denied.
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V. Petitioners Fail To Establish That Class Certification Is Warranted As Petitioner have now formally moved to certify their class, Pet. Mot. 30-35, their motion
should be denied. Petitioners’ putative class—which is defined as “all current and future people detained at MDC and the subclass of all current and future medically vulnerable people detained at MDC,” Pet. Mot. 31—do meet the requirements for certification. As set forth in Respondent’s motion to dismiss (Resp. Mot. 33-35) and below, Petitioners’ putative class fails to satisfy the requirements of Fed. R. Civ. P. 23(a) or 23(b)(2).
A. Requirements for class certification Rule 23 requires that for a class to be certified, the proposed class must “(1) be sufficiently numerous, (2) involve questions of law or fact common to the class, (3) involve class plaintiffs whose claims are typical of those of the class, and (4) involve a class representative or representatives who adequately represent the interests of the class.” Myers v. Hertz Corp., 624 F.3d 537, 547 (2d Cir. 2010); see also Wal-Mart Stores, Inc., v. Dukes, 564 U.S. 338, 349 (2011). The Second Circuit “has also ‘recognized an implied requirement of ascertainability in Rule 23.’” In re Petrobras Sec., 862 F.3d 250, 260 (2d Cir. 2017) (quoting Brecher v. Republic of Argentina, 806 F.3d 22, 24 (2d Cir. 2015)). “A class is ascertainable when defined by objective criteria that are administratively feasible and when identifying its members would not require a mini-hearing on the merits of each case.” Brecher, 806 F.3d at 24-25. In addition to the Rule 23(a) prerequisites, a party seeking class certification must satisfy one subsection of Rule 23(b). Because Petitioners seek to certify a class pursuant to Rule 23(b)(2), they must show that Respondent has “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Wal-Mart, 564 U.S. at 360. Moreover, it is Petitioners who “bear[] the burden of establishing by a preponderance of the evidence that each of Rule 23’s requirements has been met.” Myers, 624 F.3d at 547.
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B. There are no questions of law or fact common to the proposed class Rule 23(a)(2) requires that there be “questions of law and fact common to the class.” To show commonality, “[w]hat matters . . . is not the raising of common ‘questions’ – even in droves – but, rather, the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Wal-Mart, 564 U.S. at 350. “Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.” Id. As is evident from the discussion in Parts I through IV above, the named Petitioners cannot plausibly argue that there are common contentions among them. Each named Petitioner stands in a unique procedural and factual posture. Vasquez Decl. ¶¶ 24-42, 43-66, 67-76. And if these named Petitioners are meant to constitute a cross-section of the proposed class, then that class can surely be expected to represent the same diversity of procedural postures and factual allegations as is found among the named Petitioners themselves. In other words, the named Petitioners themselves amply demonstrate the lack “of a common thread tying the putative class members’ claims together.” Haddock v. Nationwide Fin. Servs., Inc., 293 F.R.D. 272, 285 (D. Conn. 2013); Romero v. H.B. Auto. Grp., Inc., No. 11-CV-386 (CM), 2012 WL 1514810, at *18 (S.D.N.Y. May 1, 2012). Petitioners seek to fuse a hodgepodge of pretrial, post-conviction, and post-sentencing inmates into a putative class, despite the fact that these inmates have different criminal charges or convictions, different reasons for having been sentenced or determined to be dangerous or risks of flight, different lengths of remaining periods of imprisonment, and different disciplinary histories. These inmates pose different dangers to the community and have different risks of flight, have different ages and medical histories, and will rely on different resources should they be released from custody. All these differences are acknowledged by the adjudication of the compassionate release applications; Petitioners commenced suit just six weeks ago with four named Petitioners,
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two of whom were released by their sentencing judges under the compassionate release statute; and currently Rabadi and Lopez could secure compassionate release by the time the Court conducts the preliminary injunction hearing. The same holds true for the Petitioners’ proposed class. Indeed, the proposed class members do not even have similar medical backgrounds, as they all have vastly different risk profiles for COVID-19 based on preexisting conditions, age, and a host of other factors. See CDC Guidance, People Who are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html. The Court acknowledged these myriad issues at the April 1st TRO hearing; this Court questioned if Petitioners’ action could be “an appropriate class action when there are . . . individual issues that would go to release, individual issues that could go to the medical circumstances.” See April 1, 2020 Tr. 113:3-6.
The Court therefore should not certify Petitioners’ class, as such a class cannot “generate common answers apt to drive the resolution of the litigation.” Wal-Mart, 564 U.S. at 350 (the “common contention [] must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke”). There is simply no basis to find a common contention among the putative class members that could be resolved with one common answer. Wal-Mart, 564 U.S. at 361-62 (“[T]he relief sought must perforce affect the entire class at once”) (emphasis added); Vu v. Diversified Collection Servs., Inc., 293 F.R.D. 343, 353 (E.D.N.Y. 2013) (finding no commonality where putative class definition “requires a series of individualized findings of facts and law”). In sum, whether any particular class member will be released under the proceeding proposed in Petitioners’ motion is an individualized—not a common—question, involving wide factual variation. Such “[d]issimilarities within the proposed class” defeat
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commonality. Wal-Mart, 564 U.S. at 530. C. The claims of the named Petitioners are not typical of the proposed class Rule 23(a)(3) requires that “the claims … of the representative parties are typical of the
claims … of the class.” This provision logically requires that the named Petitioners themselves be members of the class if it were certified. Walco Investments v. Thenen, 168 F.R.D. 315, 326 (S.D. Fla. 1996) (citing Gen. Tel. Co. of S.W. v. Falcon, 457 U.S. 147 (1982)).
Here, three of the named Petitioners (Chunn, Rodriguez, and McBride) are not even members of the proposed class, as they have been released from the MDC. Moreover, typicality requires that the named Petitioners’ claims be typical of each other and overlap factually and legally in a manner indicative of the claims of unnamed class members. Brown v. Kelly, 609 F.3d 467, 475 (2d Cir. 2010) (typicality requirement is “satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.”); Karvaly v. eBay, Inc., 245 F.R.D. 71, 82 (E.D.N.Y. 2007) (typicality requires “that the disputed issue of law or fact ‘occupy essentially the same degree of centrality to the named plaintiff’s claim as to that of the other members of the proposed class.’”).
As illustrated in the preceding section, Petitioners have no basis to allege the unity or alignment of interests, either among themselves or with the other members of the proposed class, necessary to meet this requirement. Kress v. CCA of Tennessee, LLC, 272 F.R.D. 222, 229 (S.D. Ind. 2010) (typicality not satisfied for “[c]laims of inadequate medical care” because such claims “by their nature require individual determinations, as the level of medical care required to comport with constitutional and statutory standards will vary depending on each inmate’s circumstances, such as preexisting medical conditions”); Guerra v. Public Safety Concepts, 4:05-CV-2322, 2007 WL 628430, at *2-*3 (E.D. Mo. Feb. 27, 2007) (typicality not satisfied where plaintiffs’ “allegations regarding the medical care provided to inmates [] are too broad to demonstrate a point
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of commonality”). Simply stated, in light of their widely-varying factual circumstances and procedural postures, Petitioners cannot represent “typical” claims of any single class.
Petitioners’ claims of typicality are in any event self-defeating. For if the claims of the named Petitioners are typical of the rest of the class, then the defenses to those claims also apply classwide. Pagan v. Abbott Labs., 287 F.R.D. 139, 146 (E.D.N.Y. 2012) (typicality requirement is meant to “ensure that the class representative is not subject to a unique defense which could potentially become the focus of litigation.”). As set forth in his motion, all of Petitioners’ claims must be dismissed under Fed. R. Civ. P. 12(b)(1) or alternatively, Fed. R. Civ. P. 12(b)(6). The same claims would be dismissed, based on the same defenses, if asserted by any class member who is not a named Petitioner. There is no point in certifying a class if the claims of each class member must be dismissed at the pleadings stage. Cf. United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1538 (2018) (“Normally a class action would be moot if no named class representative with an unexpired claim remained at the time of class certification.”); Livas v. Myers, No. 2:20-CV00422, 2020 WL 1939583, at *1 (W.D. La. Apr. 22, 2020) (dismissing putative class action challenge to conditions of confinement at federal prison due to lack of subject matter jurisdiction).
D. The proposed class is not ascertainable The key to class certification is defining the class in a way that makes administrative sense. Scaggs v. New York State Dep’t of Educ., No. 06-CV-0799 (RRM) (WDW), 2009 WL 890587, at *2 (E.D.N.Y. Mar. 31, 2009); Wright v. Giuliani, No. 99-CIV-10091 (WHP), 2000 WL 777940, at *10 (S.D.N.Y. June 14, 2000) (“The definition of the class is of primary importance, since it ‘enables courts to accurately determine whether the proposed class satisfied the other requirements of Rule 23.’”), aff’d, 230 F.3d 543 (2d Cir. 2000). It would thus be impossible to objectively ascertain the members of this proposed class, particularly since the class as defined by Petitioners is not limited to certain inmates at MDC but
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instead defines the class as “all current and future people detained at MDC and the subclass of all current and future medically vulnerable people detained at MDC.” Pet. Mot. 31. This requirement makes the proposed class a moving target, especially as consideration for inmates’ requests for bail, compassionate release, or other forms of relief from incarceration remain ongoing, and inmates are receiving such relief from their sentencing judges. Brecher, 806 F.3d at 25 n.3 (district court impermissibly certified class where “identity of class members will remain fluid even following entry of judgment, since nothing in the new class definition freezes the class composition at any designated time.”).
Indeed, there is no defined class period or temporal limitation that would make the putative class ascertainable, as it appears to extend to all inmates who may ever pass through MDC in the future. It would be impossible to concretely identify all the members of the class as more inmates will inevitably enter (and exit) MDC in the future. Brecher, 806 F. 3d at 25 (a class is not sufficiently definite and readily identifiable if it “has no limitation on time or context” and has “ever-changing composition” of membership such that “would make determining the identity of those [members of the class] impossible.”); see, e.g., Royal Park Investments SA/NV v. Deutsche Bank Nat’l Tr. Co., No. 14-CV-4394 (AJN), 2017 WL 1331288, at *5 (S.D.N.Y. Apr. 4, 2017) (denying class certification because the class definition lacked “an expressly defined class period” and “any meaningful temporal limitation at all”); Southwood v. Credit Card Sol., No. 7:09-CV183-F, 2014 WL 10677478, at *2 (E.D.N.C. Mar. 27, 2014), aff’d sub nom. Taylor v. Bettis, 693 F. App’x 190 (4th Cir. 2017) (denying a class certification motion because the proposed definition—“all persons in the United States who gave money to one or more Defendants for debt relief or credit repair services”—was imprecise, overbroad, and did not include a temporal limitation) (citations omitted).
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Although Rule 23 “contains no express requirement regarding ascertainability, courts within the Second Circuit have held that the rule impliedly prohibits certification of a class that is not identifiable by reference to objective criteria.” In re Vitamin C Antitrust Litig., 279 F.R.D. 90, 116 (E.D.N.Y. 2012); see also In re Fosamax Prods. Liability Litig., 248 F.R.D. 389, 395 (S.D.N.Y. 2008) (“Rule 23 contains the additional, implicit requirement that an ascertainable class exists and has been properly defined”). Because Petitioners have provided no evidence to show that they can meet this requirement, their motion fails. Cf. John v. Nat’l Sec. Fire and Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007) (“Where it is facially apparent from the pleadings that there is no ascertainable class, a district court may dismiss the class allegation on the pleadings”).
E. The proposed class is overly broad Here, Petitioners “seek to represent a class consisting of all current and future detainees in custody at the MDC during the course of the COVID-19 pandemic,” which may exceed well over 1700 individuals. Pet. ¶ 110. Regardless of the actual number, Petitioners’ more significant problem with numerosity is that the class as defined is wildly overbroad. Under Petitioners’ definition, every inmate who is currently at MDC or who may pass through MDC at some point in the future is part of their putative class. This manifest overbreadth in itself disqualifies the proposed class from certification under Rule 23. Haitian Ctrs. Coun. v. McNary, 969 F.2d 1326, 1337 (2d Cir. 1992) (noting that “an over-broad framing of the class may be so unfair to the absent members as to approach, if not amount to, deprivation of due process”), cert. granted, judgment vacated on other grounds sub nom. Sale v. Haitian Ctrs. Coun., Inc., 509 U.S. 918 (1993); M.G. v. New York City Dep’t of Educ., 162 F. Supp. 3d 216, 233 (S.D.N.Y. 2016) (“The Second Circuit has cautioned against certifying overbroad classes, even under Rule 23(b)(2), which requires a less precise definition than Rule 23(b)(3).”). Moreover, Petitioners’ proposed class definition would include all present and future MDC
32

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inmates as class members, even if they never have a serious medical need. Such a class “is defined too broadly to permit certification” because it includes “a great number of members who,” by definition, could not suffer a Fifth or Eighth Amendment violation in regard to MDC medical care. Messner v. Northshore Univ. Health Sys., No. 10–2514, 2012 WL 129991, at *16 (7th Cir. Jan. 13, 2012); cf. Smentek v. Sheriff of Cook County, No. 09 C 529, 2010 WL 4791509, at *8 (N.D. Ill. Nov. 18, 2010) (limiting class definition to “[a]ll persons presently confined at the Cook County Jail who are experiencing dental pain and who have waited more than seven days after making a written request for treatment of that pain without having been examined by a dentist.”).
F. Petitioners have not established adequacy Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999). It is difficult to see how the named Petitioners could “have an interest in vigorously pursuing the claims of the class” when three of the six Petitioners are no longer in MDC custody and the remaining three continue to seek to be released. It is particularly implausible that the released Petitioners would be “vigorously pursuing the claims” of other inmates at MDC, or those who have not yet even entered in MDC. Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006) (“no class may be certified that contains members lacking Article III standing”). It is also the case that the proposed class, if certified, would include entire groups of individuals that do not have a single representative among the named Petitioners, including any inmate who has not yet been convicted. Additionally, Petitioners’ counsel is not an adequate or appropriate representative of the proposed class. For a proposed class to be certified, “class counsel must be qualified, experienced, and generally able to conduct the litigation. In re Drexel Burnham Lambert Grp., Inc., 960 F.2d 285, 291 (2d Cir. 1992). Respondent certainly acknowledges the lengthy experience of
33

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Petitioners’ counsel in civil matters. But the issue is not Petitioners’ counsel’s experience; rather, Petitioners’ counsel do not represent Petitioners or the putative class members in their respective criminal proceedings. These inmates are already represented by counsel, and these criminal attorneys are making their own decisions regarding whether to seek bail, compassionate release, or some other type of relief from incarceration for their clients. Permitting Petitioners and the putative class to get two bites of the same apple—first with their criminal attorneys before their sentencing judges, and then with their civil attorneys in the present action—is barred by the doctrine of res judicata and must not be permitted by the Court.
G. The proposed class does not satisfy the requirements of Fed. R. Civ. P. 23(b)(2) In addition to satisfying the Rule 23(a) prerequisites, a party seeking class certification must satisfy one of the subsections of Rule 23(b). Because Petitioners here seek to certify a class pursuant to Rule 23(b)(2), they must show that Respondent has “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Wal-Mart, 564 U.S. at 360. As discussed in the preceding sections, Petitioners can make no such showing here. The proposed class must be “sufficiently cohesive that any class-wide injunctive relief will satisfy the requirement of Rule 65(d) that every injunction ‘state its terms specifically; and describe in reasonable detail . . . the act or acts restrained or required.’” In re Motor Fuel Temperature Sales Practices Litig., 271 F.R.D. 221, 225 (D. Kan. 2010) (quoting Fed. R. Civ. P. 65(d)(1)). Thus, “to satisfy Rule 23(b)(2) at the class certification stage, plaintiff[] must describe in reasonably particular detail the injunctive relief which [he] seek[s] so that the Court can at least conceive of an injunction which would satisfy the requirements of Rule 65(d) and Rule 23(b)(2).” Id. “Put another way, because Rule 23(b)(2) classes seek only injunctions and because any classwide injunction must satisfy Rule 65(d), the Court cannot certify a Rule 23(b)(2) class if it
34

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finds that: (1) a putative class’ proposed injunction is too general to pass Rule 65(d) muster or (2)

the allegedly wrongful conduct of the defendant cannot be corrected without specific tailoring of

the injunction to individual members.” Martinez v. Brown, No. 08-CV-565, 2011 WL 1130458,

13 (S.D. Cal. Mar. 25, 2011).

Petitioners fail to explain how this case satisfies the requirements of Rule 23(b)(2), or how

their proposed injunctive relief could possibly satisfy Rule 65. Indeed, as noted above, the broad

injunction that Petitioners request would be exactly the kind of “obey the law” injunction that Rule

65 prohibits. New York v. Shinnecock Indian Nation, 560 F. Supp. 2d 186, 189 (E.D.N.Y. 2008)

(“[u]nder Rule 65(d), an injunction must be more specific than a simple command that the

defendant obey the law.”) (citation omitted). Since Petitioners cannot satisfy Rule 23(b)(2), their

motion for class certification fails.

CONCLUSION

For the foregoing reasons, the Court should deny Petitioners’ motion for a preliminary

injunction, deny Petitioners’ request for class certification and grant the Respondent any such other

and further relief as this Court may deem proper and just.

Dated: Brooklyn, New York May 7, 2020

RICHARD P. DONOGHUE United States Attorney

By:

/s/

James R. Cho

Seth D. Eichenholtz

Joseph A. Marutollo

Paulina Stamatelos

Assistant U.S. Attorneys

Attorneys for Respondent

(718) 254-6519/7036/6288/6198

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 Case 1:20-cv-01590-RPK-RLM Document 85 Filed 05/08/20 Page 1 of 41 PageID #: 2206

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF; ELODIA LOPEZ; and JAMES HAIR,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 1590 (RPK)

MEMORANDUM OF LAW IN OPPOSITION TO RESPONDENT’S MOTION TO DISMISS

Emery Celli Brinckerhoff & Abady LLP 600 Fifth Avenue, 10th Floor New York, New York 10020 (212) 763-5000
Cardozo Civil Rights Clinic Benjamin N. Cardozo School of Law 55 Fifth Avenue, 11th Floor New York, NY 1003 (212) 790-0871

Debevoise & Plimpton LLP 919 Third Avenue New York, New York 10022 (212) 909-6000
Alexander A. Reinert 55 Fifth Avenue, Room 1005 New York, NY 1003 (212) 790-0403

Case 1:20-cv-01590-RPK-RLM Document 85 Filed 05/08/20 Page 2 of 41 PageID #: 2207
Table of Contents Page
INTRODUCTION .......................................................................................................................... 1 A. The COVID-19 Crisis in the United States..............................................................1 B. COVID-19 Poses Significant Dangers for Incarcerated People and Correctional Staff.....................................................................................................2 C. Respondent Is Disregarding Known Risks by Failing to Take Proper Precautions to Protect Petitioners and the Class. .....................................................3 D. The MDC Is Not Prepared to Treat Individuals Who Contract COVID-19. ...........4 E. Petitioners Are Particularly Vulnerable. ..................................................................5
SUMMARY OF ARGUMENT ...................................................................................................... 6 ARGUMENT.................................................................................................................................. 7
A. None of Respondent’s Jurisdictional Arguments Suffices as a Basis for Dismissal of the Amended Petition..........................................................................7 1. This Court Has Jurisdiction and Authority to Order Release and Other Relief Requested by Petitioners Under 28 U.S.C. § 2241. ................7 (a) This Court has the Authority to Entertain a Challenge to Prison Conditions Under 28 U.S.C. § 2241.....................................8 (b) Other Circuit and District Court Rulings Support Using Section 2241 to Request Relief for Medical Conditions, Particularly in the Situation of Covid-19. ......................................11
B. Respondent Has Not Established That Res Judicata Applies to Bar Petitioners’ Request for Relief. ..............................................................................13
C. The PLRA’s Procedures Regarding “Prisoner Release Orders” Do not Apply Here.............................................................................................................17
D. This Court has the Power to Appoint A Special Master to Administer the Relief Petitioners Have Requested.........................................................................20 1. This Court has the Authority to Appoint A Special Master.......................21 2. A Special Master is A Necessary and Efficient Way to Administer Relief in this Case. .....................................................................................22
E. Respondent’s Motion to Dismiss for Failure to State a Claim Should Be Denied ....................................................................................................................24
F. The Class Allegations at Paragraphs 109-121 Are More Than Sufficient to Satisfy the Requirements of Fed. R. Civ. P. 23(a).................................................29
CONCLUSION............................................................................................................................. 33
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TABLE OF AUTHORITIES CASES Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014)........................................................................11 Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011)........................................................................17 Alvarado v. United States, Nos. 08 Civ. 0631, 06 Cr. 1195, 2008 WL 5111326 (S.D. Cal.
Dec. 4, 2008)..............................................................................................................................9 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ....................................................................................25, 27 Awshana v. Adducci, No. 20-10699, 2020 WL 1808906 (E.D. Mich. Apr. 9, 2020)....................12 Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52 (2d Cir. 2000)............................33 Banks v. Booth, No. 20 Civ. 849 (CKK), 2020 WL 1914896 (D.D.C. Apr. 19, 2020) ...................2 Basank et al. v. Decker et al., No. 20 Civ. 2518 (AT), 2020 WL 1481503 (S.D.N.Y. Mar.
26, 2020) ..............................................................................................................................2, 26 Basank v. Decker, No. 20 CIV. 2518 (AT), 2020 WL 1953847 (S.D.N.Y. Apr. 23, 2020)..........10 Belfiore v. Procter & Gamble Co., 94 F.Supp.3d 440, 447 (E.D.N.Y. 2015) ...............................29 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ..........................................................................25 Bell v. Wolfish, 441 U.S. 520 (1979) .............................................................................................24 Boyd v. J.E. Robert Co., No. 15 CIV. 2302 (BMC), 2016 WL 1359521 (E.D.N.Y. Mar.
29, 2016) ..................................................................................................................................14 Butler v. Suffolk Cty., 289 F.R.D. 80 (E.D.N.Y. 2013)............................................................30, 32 Butto v. Collecto Inc., 290 F.R.D. 372 (E.D.N.Y. 2013)...............................................................32 Cameron v. Bouchard, No. 20 Civ. 10949, 2020 WL 1929876 (E.D. Mich. Apr. 17,
2020), .........................................................................................................................................2 Chen v. Major League Baseball Props., Inc., 798 F.3d 72 (2d Cir. 2015)....................................25 City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 (2d Cir.2011) ...............................21 Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal. 1995) ..............................................................23 Coronel v. Decker, No. 20 Civ. 2472, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020) ..............3, 26 Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006) .........................................................32
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Dukes v. Wal-Mart Stores, Inc., 564 U.S. 338 (2011) ...................................................................31 EDP Med. Computer Sys., Inc. v. United States, 480 F.3d 621 (2d Cir. 2007) ...............................6 Epperson v. Entm’t Express, Inc., 242 F.3d 100 (2d Cir. 2001)....................................................14 Farmer v. Brennan, 511 U.S. 825............................................................................................24, 28 Gilmore v. California, 220 F.3d 987 (9th Cir. 2000).....................................................................20 Grant v. Terrell, No. 10-CV-2769 MKB, 2014 WL 2440486 (E.D.N.Y. May 29, 2014) ..............8 Guariglia v. Procter & Gamble Co., No. 15-cv-04307, 2018 WL 1335356 (E.D.N.Y.
Mar. 14, 2018)..........................................................................................................................29 Guidice v. United States, No. CV-89-1259, 1989 WL 80046 (E.D.N.Y. July 7, 1989)................14 Helling v. McKinney, 509 U.S. 25 (1993).............................................................................. passim Hernandez v. Campbell, 204 F.3d 861 (9th Cir. 2000)..................................................................11 I.N.S. v. St. Cyr, 533 U.S. 289 (2001)........................................................................................6, 12 In re Frontier Ins. Grp., Inc., Sec. Litig., 172 F.R.D. 31 (E.D.N.Y. 1997) ...................................32 In re Teltronics Services, Inc., 762 F.2d 185 (2d Cir.1985) ..........................................................13 Inmates of Attica Corr. Facility v. Rockefeller, 453 F.2d 12 (2d Cir. 1971) .................................31 Jackson v. Connecticut Dep’t of Pub. Health, 795 F. App’x 64 (2d Cir. 2020)............................13 Johnson v. Cty. of Nassau, 480 F. Supp. 2d 581 (E.D.N.Y. 2007)................................................16 Johnson v. Nextel Commc’ns Inc., 780 F.3d 128 (2d Cir. 2015) ...................................................31 Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996) ...............................................................................26 Jones v. Smith, 720 F.3d 142 (2d Cir. 2013)..................................................................................18 Jones v. United States, 529 U.S. 848 (2000) .................................................................................19 Knafel v. Pepsi-Cola Bottlers of Akron, Inc., 899 F.2d 1473 (6th Cir. 1990) ...............................16 Lawson v. Rubin, No. 17 Civ. 6404, 2018 WL 7958928 (E.D.N.Y. June 11, 2018).....................28 Livas v. Myers, No. 20-CV-422 (TAD), 2020 WL 1939583 (W.D. La. Apr. 22, 2020) ...............11 Malam v. Adducci, No. 20-10829, 2020 WL 1672662 (E.D. Mich. Apr. 5, 2020), as
amended (Apr. 6, 2020) ...........................................................................................................12
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Malam v. Adducci, No. 20-10829, 2020 WL 1899570 (E.D. Mich. Apr. 17, 2020) .....................27 McQuiggin v. Perkins, 569 U.S. 383 (2013)..................................................................................19 Medina-Rivera v. Terrell, No. 11 CIV. 0734 BMC, 2011 WL 3163199 (E.D.N.Y. July
26, 2011) ....................................................................................................................................9 Nat. Res. Def. Council v. Abraham, 355 F.3d 179 (2d Cir. 2004).................................................19 Nicholson v. Williams, 205 F.R.D. 92 (E.D.N.Y. 2001)................................................................31 Nunez v. City of New York, 11-CV-5845L, 2015 WL 10015955 (S.D.N.Y. July 10, 2015) .........30 O’Connor v. Pierson, 426 F.3d 187 (2d Cir. 2005).......................................................................13 Phelps v. Kapnolas, 308 F.3d 180 (2d Cir. 2002)..........................................................................26 Phoenix Light SF Ltd. v. Bank of New York Mellon, No. 14 Civ. 10104, 2017 WL
3973951 (S.D.N.Y. Sept. 7, 2017)...........................................................................................29 Plata v. Brown, No. 01 Civ. 1351, ––– F.Supp.3d ––––, 2013 WL 12436093 (N.D. Cal.
June 24, 2013)....................................................................................................................19, 20 Purdy v. Bennett, 214 F. Supp. 2d 348 (S.D.N.Y. 2002)...............................................................25 Reaves v. Dep’t of Correction, 404 F. Supp. 3d 520, 523 (D. Mass. 2019) ............................19, 20 Rivas v. Jennings, No. 20 Civ. 2731, 2020 WL 2059848, at *1, *4 (N.D. Cal. Apr. 29,
2020) .......................................................................................................................................32 Roba v. United States, 604 F.2d 215 (2d Cir. 1979)..............................................................7, 8, 11 Serra v. Terrell, No. 10-CV-03044 DLI, 2013 WL 5522850 (E.D.N.Y. Sept. 30, 2013)...............8 Simon v. United States, 359 F.3d 139 (2d Cir. 2004) ....................................................................15 Stichting Ter Behartiging Van de Belangen Van Oudaandeelhouders In Het Kapitaal Van
Saybolt Int’l B.V. v. Schreiber, 407 F.3d 34 (2d Cir.2005) .....................................................16 Sulton v. Wright, 265 F.Supp.2d 292 (S.D.N.Y. 2003) .................................................................28 Terrell v. United States, 564 F.3d 442 (6th Cir. 2009) ..................................................................17 Thompson v. Choinski, 525 F.3d 205 (2d Cir. 2008)...............................................................6, 7, 8 United States v. Cabrera, No. 06 CR. 1165 (JFK), 2017 WL 398384 (S.D.N.Y. Jan. 27,
2017) ........................................................................................................................................14 United States v. Carr, 16-CR-54, Dkt. 513, at 7 (D. Col. October 10, 2019) ................................9
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United States v. E. River Hous. Corp., 90 F. Supp. 3d 118, 153 (S.D.N.Y. 2015)........................16 United States v. Lisi, No. 15 CR. 457 (KPF), 2020 WL 881994 (S.D.N.Y. Feb. 24, 2020), ....9, 15 United States v. Morton, 467 U.S. 822 (1984)...............................................................................19 United States v. Nkanga, 18 Cr. 713, Dkt. 90 (S.D.N.Y. April 1, 2020).......................................14 United States v. State of Conn., 931 F. Supp. 974 (D. Conn. 1996)..............................................23 United States v. Yonkers Bd. of Educ., 29 F.3d 40 (2d Cir.1994) (per curiam).............................21 Valenzuela Arias v. Decker, No. 20 CIV. 2802 (AT), 2020 WL 1847986 (S.D.N.Y. Apr.
10, 2020) ..................................................................................................................................10 Velasco v. Lamanna, 16 F. App’x 311 (6th Cir. 2001)..................................................................11 V.W. v. Conway, 236 F. Supp. 3d 554, 575 (N.D.N.Y 2017) .......................................................31 Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ..................................................................19 Williams v. Conway, 312 F.R.D. 248 (N.D.N.Y. 2016) ................................................................30 Wilson v. Williams, No. 20-CV-794, Dkt. 49 (N.D. Ohio May 6, 2020) ......................................12 Wilson v. Williams, No. 20-3447, Dkt. 23-2 (6th Cir. May 4, 2020) ......................................11, 18 Wilson v. Williams
No. 20-CV-00794, 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020).........................................18 Woods-Early v. Corning Inc., 330 F.R.D. 117 (W.D.N.Y. 2019) .................................................29 Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336 (2d Cir. 2010) .....................................28 STATUTES 8 U.S.C. § 1182(d)(5)(A)...............................................................................................................10 8 U.S.C. § 1226(a)(2).....................................................................................................................10 18 U.S.C. § 3582(c)(1)(A) .........................................................................................................9, 12 18 U.S.C. § 3626.................................................................................................................... passim 28 U.S.C. § 2241.................................................................................................................... passim OTHER AUTHORITIES 8 C.F.R. § 236.1(c)(8)....................................................................................................................10
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18 Fed. Prac. & Proc. Juris. § 4404 (3d ed.) ..................................................................................17 141 Cong. Rec. S14414 .................................................................................................................20 BOP Program Statement 5050.50 ..................................................................................................12 Eighth Amendment ............................................................................................................24, 27, 31 Fed. R. Civ. P. 12(b)(6)............................................................................................................25, 29 Fed. R. Civ. P. 12(f).................................................................................................................29, 30 Fed. R. Civ. P. 13(a)(2)(A) ............................................................................................................15 Fed. R. Civ. P. 23(a) ..........................................................................................................29, 30, 32 Fed. R. Civ. P. 23(b) ................................................................................................................31, 33 Fed. R. Civ. P. 23(g) ......................................................................................................................33 Fed. R. Civ. P. 53.....................................................................................................................21, 22 Fed. R. Civ. P. 56...........................................................................................................................28 Fifth Amendment .....................................................................................................................26, 31 Local Rule 56.1........................................................................................................................28, 29
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INTRODUCTION Petitioners Hassan Chunn, Nehemiah McBride, Ayman Rabadi, Justin Rodriguez, Elodia Lopez, and James Hair (“Petitioners”), on behalf of themselves and others similarly situated, submit this memorandum of law in opposition to Respondent’s Motion to Dismiss the Amended Petition. Respondent’s motion should be denied. His jurisdictional arguments disregard relevant and controlling case law, and are in essence not arguments against jurisdiction but against the availability of particular remedies. His arguments in favor of dismissal for failure to state a claim ignore Petitioners’ allegations, which establish Respondent’s deliberate indifference to a serious risk of harm. This is all that is needed at this stage.
FACTUAL BACKGROUND A. The COVID-19 Crisis in the United States. The novel coronavirus that causes COVID-19 has led to a global pandemic. As of April 22, 2020, COVID-19 had infected more than 2,600,000 people worldwide and caused more than 46,000 deaths in the United States. Pet. ¶ 20.1 New York City has reported more than 147,000 cases, with more than 15,000 deaths, although the number of infections is likely drastically understated. Pet. ¶ 32. Certain populations—those over the age of 50 and those with specific underlying medical conditions—are particularly vulnerable to serious illness and death from COVID-19. Pet. ¶¶ 22-23. People aged 60-69 have a mortality rate 18 times higher than people under the age of 40; the rate is 40 times higher for people aged 70-79 years old. Pet. ¶ 22. The mortality rate for people of any age with cardiovascular disease, diabetes, hypertension, chronic respiratory disease, and cancer, is significantly elevated as well. Pet. ¶ 23. Even if the COVID19 infection is not fatal, it will often require highly specialized care for people over the age of 50
1 Citations to “Pet.” Refer to the Amended Petition that was filed on April 23, 2020.

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and will result in longstanding medical complications. Pet. ¶¶ 24, 29. Serious complications can develop rapidly, as little as five days after the first symptoms first appear. Pet. ¶ 26.
B. COVID-19 Poses Significant Dangers for Incarcerated People and Correctional Staff.
New York has been in a state of emergency since March 7, 2020, and people must remain in their homes to the greatest extent possible, wear masks when they leave their homes, not gather in groups of any size, and remain six feet away from others at all times. Multiple authorities have agreed that “social distancing” and rigorous hygiene practices, including washing hands with soap and water, are critical. Pet. ¶¶ 30-31, 34.
Taking these measures is virtually impossible in prisons and jails without conscientious interventions. Pet. ¶¶ 33, 35-37. For this reason, correctional public health experts have responded to the COVID-19 pandemic by recommending the release from custody of people most vulnerable to COVID-19. Pet. ¶¶ 38; 45-46. Release protects these people, mitigates the risk of infection for all people held and working in a correctional setting, and lessens the burden on the region’s health care infrastructure by reducing the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time. Pet. ¶ 38.
Judges in this circuit and across the country have ordered release and other measures of injunctive relief to reflect these risks. See Banks v. Booth, No. 20 Civ. 849 (CKK), 2020 WL 1914896, at *13-*15 (D.D.C. Apr. 19, 2020) (ordering injunctive relief in case involving local jail); Cameron v. Bouchard, No. 20 Civ. 10949, 2020 WL 1929876, at *2–3 (E.D. Mich. Apr. 17, 2020), modified on reconsideration, No. 20 Civ. 10949, 2020 WL 1952836 (E.D. Mich. Apr. 23, 2020) (granting injunctive relief to a class of pretrial detainees and convicted individuals); Coronel v. Decker, No. 20 Civ. 2472 (AJN), 2020 WL 1487274, at *10 (S.D.N.Y. Mar. 27, 2020) (granting release of four medical vulnerable immigration detainees); Basank et al. v.
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Decker et al., No. 20 Civ. 2518 (AT), __ F.Supp.3d __, 2020 WL 1481503, at *1 (S.D.N.Y. Mar. 26, 2020) (granting release of ten medically vulnerable immigration detainees who “face[] an imminent risk of death or serious injury . . . if exposed to COVID-19”).
C. Respondent Is Disregarding Known Risks by Failing to Take Proper Precautions to Protect Petitioners and the Class.
Respondent has not prepared the MDC to mitigate the risks of COVID-19 spread. Necessary social distancing is virtually impossible, toilets, sinks, and showers are shared without disinfection between each use, communal food preparation and service leaves little opportunity for surface disinfection, and staff arrive and leave without proper screening for new infection. Pet. ¶¶ 54, 59. Since March 4, 2020, the Federal Defenders has engaged in extensive efforts to get Respondent to address the risks associated with the spread of COVID-19 at the MDC, to little avail. Pet. Ex. 1 (Declaration of Deirdre D. von Dornum, dated March 27, 2020 (“von Dornum Decl.”)) ¶¶ 3-7, 9-11, 20, 21, 23. The Federal Defenders asked that the MDC take specific measures to reduce the spread of infection, id. ¶ 4, but the MDC’s response has been insufficient.
As of March 11, 2020, the MDC did not anticipate having a testing protocol for COVID19 and it had no policy to address staff who presented with COVID-19 risk factors. von Dornum Decl. ¶¶ 4, 6. Unfortunately, there is no evidence that Respondent has taken any additional steps since March 11, even as the pandemic has spread. Out of approximately 1,700 people held at the facility, only 12 incarcerated people had been tested at the time of filing. Pet. ¶ 48. Just before this case was filed, the MDC had approximately nine test kits and had only tested one person. Pet. ¶ 84. Despite being ordered to disclose such information by the Chief Judge of this Court, the MDC still has not developed any set testing protocol for COVID-19. May 5, 2020 letter from BOP to Chief Judge Mauskopf, available at https://www.nyed.uscourts.gov/pub/bop/MDC_MCC_20200505_042614.pdf.
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Nor has the MDC instituted appropriate screening measures. Doctors have not even been present to evaluate people in the housing units. von Dornum Decl. ¶ 9. The MDC has not provided adequate PPE or cleaning supplies, and has not taken basic steps to prevent spread of the infection. Pet. ¶¶ 59, 69-71, 75. Adding insult to injury, Respondent has not instituted basic and common-sense steps to prevent the spread of the highly contagious infection. Incarcerated people have irregular access to basic hygiene supplies like soap. Pet. ¶¶ 59, 75.
Respondent’s current practices in the MDC fail to protect detainees who are particularly vulnerable to the effects of COVID-19. Pet. ¶¶ 54, 57, 77. Respondent has not provided highrisk detainees with any additional protection or surveillance for COVID-19 symptoms. Id. High-risk detainees share cells with other people. Pet. ¶ 77.
Respondent has failed to take protective measures even in the face of known infections at the MDC. The MDC has relied on incarcerated people, rather than professional cleaners or staff, to clean units where confirmed positive people have been housed. von Dornum Decl. ¶¶ 12-13. According to one person confined at the MDC, others who were housed with a person who tested positive eventually showed symptoms. Pet. ¶ 68. To “clean” their own cells, people are provided only with diluted hand soap or nothing at all. Pet. ¶ 71. Furthermore, high touch surfaces, such as phones and computers, are not being cleaned between uses. Pet. ¶ 75.
D. The MDC Is Not Prepared to Treat Individuals Who Contract COVID-19. Anyone who contracts COVID-19 at the MDC is at a high risk of developing serious symptoms because the MDC lacks the medical resources to care for symptomatic individuals. Pet. ¶ 81. The MDC has no separate medical unit for sick people, unlike many Federal Correctional Institutions and even Rikers’ Island. von Dornum Decl. ¶ 41. There are only three doctors available at the MDC to care for all 1,700 people held there. Id.
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These resources will be inadequate to treat people who contract COVID-19, particularly the Vulnerable Persons sub-class. Pet. ¶ 86. Further, the MDC’s staffing shortage will only increase with the epidemic, leaving officers less able to monitor the health of the incarcerated population. Pet. Ex. 2 (Declarations of Jonathan Giftos, M.D., dated March 27, 2020 (“Giftos Decl.”)) ¶ 18. If Petitioners or class members contract COVID-19, they will encounter significant delays in obtaining medical care, further exacerbating the risks they face.
E. Petitioners Are Particularly Vulnerable. Because of their age and/or medical conditions, Petitioners are particularly vulnerable to serious illness or death if infected by COVID-19. Mr. Rabadi is 59 years old and suffers from many health problems, including serious heart problems, hypertension, diabetes, and a kidney tumor. Pet. ¶ 91. He also had a heart attack about six years ago. Id. Ms. Lopez is 55 years old and has a number of serious medical problems, including a lung infection that interferes with her breathing, type 2 diabetes, high blood pressure, and high cholesterol. Pet. ¶ 93. Mr. Hair suffers from multiple sclerosis, kidney pain, and asthma, and has been taken to the hospital because of an asthma attack. Id. ¶ 94. Mr. Rodriguez suffers from asthma but had not received an inhaler at the time of filing of the Petition. Pet. ¶ 92.
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SUMMARY OF ARGUMENT
Respondent’s motion to dismiss is founded on several legal errors. Although styled in part as a motion to dismiss for lack of jurisdiction, almost none of Respondent’s arguments is jurisdictional.2 Instead, Respondent’s arguments about “jurisdiction” actually relate to what remedies are available to Petitioners. None of these arguments support dismissal, and in any event, they are meritless. Section 2241 authorizes an action based on conditions of confinement, as the Second Circuit has held. Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008). And release is one of the remedies available under Section 2241, as numerous courts already have established in the COVID-19 context. See infra Part I.A.1. Respondent’s contention that habeas cannot override his statutory and regulatory authority flies in the face of the Great Writ, which, absent suspension, is always available to check unconstitutional conduct by the executive. I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001) (“At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.”).
Respondent’s invocation of res judicata, based on the fact that two of the Petitioners, at Respondent’s and the Court’s urging, sought compassionate release after filing this Petition, is without basis. Unsurprisingly, Respondent does not cite a single case applying res judicata in a case like this one. Respondent’s Section 3626 fails as well. This action is not encompassed by Section 3626, and Petitioners do not ask for a “prisoner release order” within the meaning of Section 3626.
2 Petitioners concede that Petitioners Chunn and McBride’s requests for release are currently moot because they have been released from the MDC and served the entirety of their sentences. They are therefore subject to dismissal without prejudice for lack of jurisdiction.
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Respondent’s arguments that Petitioners fail to state a claim for a violation of the constitution fare no better. Petitioners’ allegations are sufficient to establish that Respondent is acting with deliberate indifference towards an objectively serious risk of harm. See, e.g., Helling v. McKinney, 509 U.S. 25, 33 (1993) (“It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.”). At the motion to dismiss stage, where Petitioners’ factual allegations must be taken as true, the Amended Petition easily clears the bar for stating a claim. And Petitioners’ allegations for class-wide relief are sufficient at this stage as well.
ARGUMENT A. None of Respondent’s Jurisdictional Arguments Suffices as a Basis for
Dismissal of the Amended Petition None of Respondent’s four “jurisdictional” arguments is, in fact, jurisdictional, and none has any merit. Notably, Respondent makes no claim that this Court lacks jurisdiction to order injunctive relief to mitigate the conditions at the MDC.
1. This Court Has Jurisdiction and Authority to Order Release and Other Relief Requested by Petitioners Under 28 U.S.C. § 2241.
This court has jurisdiction and authority to provide all of the relief sought by Petitioners. As Respondent must concede, the Second Circuit has held that Section 2241 is an appropriate vehicle for challenging conditions of confinement. Thompson, 525 F.3d at 209; see also Roba v. United States, 604 F.2d 215, 219 (2d Cir. 1979). Respondent’s argument that release is not available to Petitioners rests on mischaracterizing the Amended Petition as seeking to “amend a term of imprisonment” or to order home confinement. Resp. Mem. Supp. Mot. Dismiss (“Resp. Mem.”), at 13. Moreover, Respondent’s contentions relate only to Petitioners’
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requests for release, ignoring entirely the other injunctive relief Petitioners requested. Pet. 3637.
(a) This Court has the Authority to Entertain a Challenge to Prison Conditions Under 28 U.S.C. § 2241.
Respondent tries to restyle this Petition as a request to amend a sentence in order to endrun the Second Circuit’s clear statement that a habeas petition is an appropriate vehicle under which to challenge conditions of confinement. Section 2241(c)(3) authorizes courts to grant habeas corpus relief where a person is “in custody in violation of the Constitution or laws or treaties of the United States.” The Second Circuit has “long interpreted § 2241 as applying to challenges to the execution of a federal sentence, including such matters as . . .prison conditions.” Thompson, 525 F.3d at 209 (internal quotation marks omitted). This includes challenges to detention where conditions pose a threat to Petitioners’ medical wellbeing. See Roba, 604 F.2d at 218–19 (approving the use of Section 2241 to challenge a prisoner’s transfer where that transfer created a risk of fatal heart failure).
The district court cases Respondent cites to support the contention that Petitioners request a “sentence reduction” are inapposite (Resp. Mem. 14-15). All three of those district court cases involved requests to amend a sentence based on the United States Sentencing Guidelines’ applicability to their particular circumstances. See Grant v. Terrell, No. 10-CV-2769 (MKB), 2014 WL 2440486, at *3 (E.D.N.Y. May 29, 2014) (rejecting habeas challenge where “[p]etitioner argues that § 2241 is the appropriate avenue for bringing his habeas petition because he was notified after he had been sentenced that he was to serve 57 months of his term of imprisonment at the MDC”); Serra v. Terrell, No. 10-CV-03044 (DLI), 2013 WL 5522850, at *1 (E.D.N.Y. Sept. 30, 2013) (“Petitioner requests a sentence reduction based on a misunderstanding of Sentencing Guidelines § 5K2.0, which permits downward departures from
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the Guidelines for harsh pre-trial conditions of confinement, but which cannot be applied retroactively to reflect post-conviction conditions.”); Medina-Rivera v. Terrell, No. 11-CV-734 (BMC), 2011 WL 3163199, at *2-3 (E.D.N.Y. July 26, 2011) (denying petitioner’s habeas application requesting “his sentence be reduced ‘[p]ursuant to United States Sentencing Guidelines 5K2.0’” as a result of adverse conditions.).
Petitioners here are not asking for amended sentences, they are asking for release, injunctive relief, and other appropriate relief to reduce the risk that they will be infected by COVID-19 because of Respondent’s failure to mitigate the spread of the virus at the MDC. Pet. ¶¶ 54-94. If habeas is a vehicle for challenging conditions of confinement, by definition courts must be able to grant relief that might result in an earlier release for individual incarcerated people. If anything, courts in this circuit have made clear that habeas actions, not Section 3582 motions, are the proper vehicles for claiming “legal wrongs.” United States v. Lisi, No. 15-CR457 (KPF), 2020 WL 881994, at *4 (S.D.N.Y. Feb. 24, 2020), reconsideration denied, No. 15CR-457 (KPF), 2020 WL 1331955 (S.D.N.Y. Mar. 23, 2020) (holding that “it would be both improper and inconsistent with the First Step Act to allow Lisi to use 18 U.S.C. § 3582(c)(1)(A) as a vehicle for claiming legal wrongs, instead of following the normal methods of a direct appeal or a habeas petition.”) (emphasis added). Indeed, the Government itself has stated that challenges to the location and conditions of confinement are “civil matter[s] subject to review under § 2241, with jurisdiction in the district of incarceration,” as opposed to compassionate release motions which must be lodged with the sentencing court. Gov’t Resp. to Mot. for Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A), United States v. Carr, 16-CR-54, Dkt. 513, at 7 (D. Col. October 10, 2019); see also Alvarado v. United States, Nos. 08-CV-631, 06-CR-1195 (LAB), 2008 WL 5111326, at *1 (S.D. Cal. Dec. 4, 2008) (“[N]either a motion
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pursuant to § 3582 nor a petition under § 2255 is the proper method of challenging conditions of confinement.”).
Moreover, courts in this circuit have held that Section 2241 is the appropriate vehicle to address this exact issue: the effect of COVID-19 on the wellbeing of incarcerated people. See Basank v. Decker, No. 20-CV-2518 (AT), 2020 WL 1953847, at *8 (S.D.N.Y. Apr. 23, 2020) (“An application for habeas corpus under 28 U.S.C. § 2241 is the appropriate vehicle for an inmate in federal custody to challenge conditions or actions that pose a threat to his medical wellbeing.”); Valenzuela Arias v. Decker, No. 20-CV-2802 (AT), 2020 WL 1847986, at *6 (S.D.N.Y. Apr. 10, 2020) (holding Section 2241 is appropriate vehicle and ordering petitioners released from ICE custody). The immigration context in which those cases arise is not relevant to the question of whether Section 2241 authorizes release – just as in the criminal context, immigration detainees may seek release through means other than Section 2241. See, e.g., 8 U.S.C. § 1182(d)(5)(A) (permitting humanitarian parole); id. § 1226(a)(2) (governing release on bond); 8 C.F.R. § 236.1(c)(8) (governing conditional release).
When a Section 2241 petition establishes that an individual is held in violation of the constitution, district courts in this circuit have exercised the authority to order their release. In Valenzula Arias, for example, the court ruled that release was necessary because “conditions in the Essex County Jail plainly do not allow for the social distancing measures recommended by the CDC—most obviously, maintaining at least six feet of distance from other persons at all times.” 2020 WL 1847986, at *7. As Petitioners have shown, conditions in MDC similarly do not allow for such distancing, putting everyone at high risk for contracting the virus and those with underlying conditions or age-related sensitivity at an unacceptably high risk for serious
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illness or death. Petitioners have requested several forms of relief, but if Respondent is unable to create safe conditions at the MDC, release is the only adequate solution.
(b) Other Circuit and District Court Rulings Support Using Section 2241 to Request Relief for Medical Conditions, Particularly in the Situation of Covid-19.
Respondent cites several cases from other circuits that disallow the use of Section 2241 to challenge prison conditions or to order release. Resp. Mem. at 15. These cases have little bearing in a circuit where the governing law has approved the use of such petitions for decades. See Roba, 604 F.2d at 218–19. Respondent’s reliance on Livas v. Myers, No. 20-CV-422 (TAD), 2020 WL 1939583, at *8 (W.D. La. Apr. 22, 2020), for example, has little application here. Unlike the Second Circuit, the Fifth Circuit has never “allow[ed] conditions of confinement claims to be brought under § 2241.” Id. To the extent out-of-circuit precedent is instructive, other circuits have also approved of the use of Section 2241 for challenging medical conditions in prisons and jails. See e.g., Aamer v. Obama, 742 F.3d 1023, 1032 (D.C. Cir. 2014) (“Our precedent establishes that one in custody may challenge the conditions of his confinement in a petition for habeas corpus”); Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (“[P]etitions that challenge the manner, location, or conditions of a sentence’s execution must be brought pursuant to § 2241”).
Moreover, the Sixth Circuit, notwithstanding prior circuit case law disapproving of the use of Section 2241 to address prison conditions, see Velasco v. Lamanna, 16 F. App’x 311, 314 (6th Cir. 2001), recently denied a stay of a district court’s decision that affirmed the use of Section 2241 to seek the release of people held in federal prison in Ohio. Wilson v. Williams, No. 20-3447, Dkt. 23-2 (6th Cir. May 4, 2020). And two district courts in the Sixth Circuit have recently held that under these emergency conditions they could and would entertain Section 2241
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challenges to prison conditions. Awshana v. Adducci, No. 20-10699, 2020 WL 1808906, at *2 (E.D. Mich. Apr. 9, 2020) (ruling that, even though the Sixth Circuit has ruled against use of Section 2241 for conditions of confinement challenges in some cases, “emergency conditions” of COVID-19 made it the proper vehicle); Malam v. Adducci, No. 20-10829, 2020 WL 1672662, at *2-3 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020) (same).
Respondent’s invocation of his regulatory and statutory authority cannot displace the federal judiciary’s role in enforcing the constitution through the Great Writ. At its core, the writ of habeas corpus is aimed at checking Executive overreach. St. Cyr, 533 U.S. at 301. Thus, Respondent’s criticism that Petitioners have not addressed whether this Court can order release based on “bail, home confinement and compassionate release” misses the mark. Whatever discretion Respondent enjoys under the statutes and regulations that govern him, he is not free to act in violation of the Constitution. Statutes and regulations govern the Executive’s exercise of discretion in the immigration detention context, and that has not stopped courts across the country from granting Section 2241 petitions seeking release from custody. In this case, where recourse to the compassionate release process has been shown to be futile, and where the BOP has more broadly demonstrated that it will not exercise its authority to move for compassionate release based on the COVID-19 crisis, Respondent’s invocation of his authority rings particularly hollow.3 This Court’s role in enforcing the constitution via Section 2241 is not subordinate to Respondent’s claimed discretion..
3 Respondent has made clear that he does not consider the risk of COVID-19 transmission to be a ground for compassionate release, and this appears to be how the BOP writ large has approached the issue. By way of example, the Government recently informed a federal court in Ohio that FCI Elkton had reviewed 243 medically vulnerable people for compassionate release in light of COVID-19 and had found that only one person met the criteria. Resp. Status Report, Wilson v. Williams, No. 20-CV-794, Dkt. 49 (N.D. Ohio. May 6, 2020). This is because the BOP’s guidance makes clear that a medical condition will qualify as a compelling circumstance only when it is debilitating or terminal. See BOP Program Statement 5050.50, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582(c)(1)(A) and 4205(g), at 4-5 (Jan. 17, 2019).
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B. Respondent Has Not Established That Res Judicata Applies to Bar Petitioners’ Request for Relief.
Respondent argues that Petitioners Rabadi and Rodriguez are barred by res judicata from litigating the issues presented in this case, but Respondent overlooks several critical requirements that he must establish before res judicata obtains. O’Connor v. Pierson, 426 F.3d 187, 194 (2d Cir. 2005) (“Claim preclusion is an affirmative defense; it does not go to subjectmatter jurisdiction.”). The doctrine of res judicata “applies to preclude later litigation if the earlier decision was (1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case involving the same parties or their privies, and (4) involving the same cause of action.” In re Teltronics Services, Inc., 762 F.2d 185, 190 (2d Cir.1985); see also Jackson v. Connecticut Dep’t of Pub. Health, 795 F. App’x 64, 66 (2d Cir. 2020). Res judicata does not apply here, nor would it lead to dismissal, because it does not apply to Ms. Lopez or Mr. Hair’s claims.
First, putting aside the problem that neither Rabadi nor Rodriguez filed a claim in their criminal cases, addressed separately below, there has been no final judgment on the merits of Mr. Rabadi’s motion for compassionate release. Instead, Mr. Rabadi’s sentencing judge determined that the court lacked jurisdiction to entertain the motions because Mr. Rabadi had not satisfied Section 3582’s exhaustion requirement. See United States v. Rabadi, No. 13-CR-353 (KMK), 2020 WL 1862640, at *4 (S.D.N.Y. Apr. 14, 2020) (“For the reasons discussed above, the Court denies the application without prejudice to renewal if the BOP does not act upon his request within thirty days of its receipt.”). “It is well established that a dismissal without prejudice has no res judicata effect on a subsequent claim.” Camarano v. Irvin, 98 F.3d 44, 47 (2d Cir. 1996).
Second, neither Mr. Rabadi nor Mr. Rodriguez filed claims of any kind in their criminal cases. They simply filed a motion seeking a change in sentence. The sentencing court’s
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jurisdiction was limited to considering that request and could not have ordered any of the other relief requested by Petitioners in this action. The sentencing court could not even have exercised habeas jurisdiction in either of their cases, because only the Eastern District of New York has jurisdiction over Petitioners’ Section 2241 claims. See, e.g., United States v. Cabrera, No. 06CR-1165 (JFK), 2017 WL 398384, at *2 (S.D.N.Y. Jan. 27, 2017) (considering Section 3582 motion on the merits but dismissing Section 2241 petition for lack of jurisdiction because petitioner was not confined in Southern District); Guidice v. United States, No. 89-CV-1259, 1989 WL 80046, at *1 (E.D.N.Y. July 7, 1989) (holding that Section 2241 petitions challenging conditions of confinement must be brought in the federal district where person is in custody). Indeed, this is precisely the position the Government took in a COVID-19 case in the Southern District pending before Judge Jesse Furman. See Gov’t Letter to J. Jesse M. Furman, United States v. Nkanga, No. 18-CR-713, Dkt. 90 (S.D.N.Y. April 1, 2020) (objecting to S.D.N.Y.’s consideration of Section 2241 petition on venue grounds because defendant was confined at the MDC). As the Second Circuit has stated, res judicata is geared towards “the sensible goal that where possible all related claims be resolved in one proceeding.” Epperson v. Entm’t Express, Inc., 242 F.3d 100, 109 (2d Cir. 2001). “Thus, Epperson stands for the proposition that if there is no jurisdictional theory upon which a plaintiff can assert all of his claims, res judicata will not bar the prosecution of a subset of those claims under a different jurisdictional theory.” Boyd v. J.E. Robert Co., No. 15-CV-2302 (BMC), 2016 WL 1359521, at *3 (E.D.N.Y. Mar. 29, 2016), aff’d sub nom. Boyd v. NYCTL 1996-1 Tr., 697 F. App’x 720 (2d Cir. 2017). Here the sentencing court would not have been able to assert jurisdiction over Petitioners’ habeas claims, and even if it could have done so, the court could not have ordered all of the relief sought by Petitioners.
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Third, the common law doctrine of claim preclusion applies when a plaintiff in the first case subsequently files a second case. Where a defendant in the first case subsequently files a claim in the second case, common-law claim preclusion does not apply – instead, in federal court, Rule 13’s compulsory counterclaim rule provides the source of preclusion. But even if Petitioners are viewed as claimants in their criminal case, and even if (contrary to basic procedural doctrine), the Federal Rules of Civil Procedure somehow applied in Petitioners’ criminal case, Federal Rule 13(a)(2)(A) does not require litigation of claims that already are the subject of a pending litigation when a defending party brings a claim. Fed. R. Civ. P. 13(a)(2)(A).
Respondent cites no case establishing that a decision on a Section 3582 motion, let alone a denial of such motion without prejudice, could be considered res judicata as to any Section 2241 petition, let alone in these circumstances. That is because there is no support for that proposition. Indeed, the Second Circuit has specifically disapproved of a district court sua sponte converting a Section 3582 motion into a Section 2241 motion without notice because of the concern that it would prejudice a separate habeas action. Simon v. United States, 359 F.3d 139, 144 (2d Cir. 2004). Implicit in Simon is that a petitioner could bring a separate habeas claim even after denial of a Section 3582 motion – otherwise there would be no prejudice in the conversion deemed “improper” by the court. Id.; see also Lisi, 2020 WL 881994, at *4.
Finally, even if Respondent had satisfactorily established all of the requirements of the res judicata defense, basic principles of fairness would bar its application here for several reasons. None of the discovery devices available to Petitioners here – document demands, inspection of the facility, and depositions, to name but a few – were available in their criminal case. They therefore cannot be said to have had a full and fair opportunity to litigate their
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constitutional claims in their compassionate release proceedings. EDP Med. Computer Sys., Inc. v. United States, 480 F.3d 621, 626 (2d Cir. 2007) (“Res judicata does not require the precluded claim to actually have been litigated; its concern, rather, is that the party against whom the doctrine is asserted had a full and fair opportunity to litigate the claim.”); United States v. E. River Hous. Corp., 90 F. Supp. 3d 118, 153 (S.D.N.Y. 2015) (finding that preclusion cannot apply where administrative proceeding did not involve discovery, witness interviews, or hearings). “Were the result otherwise, given Plaintiff’s inability to conduct discovery at the [prior] hearing, a ‘manifest injustice would otherwise ensue.’” Johnson v. Cty. of Nassau, 480 F. Supp. 2d 581, 609 (E.D.N.Y. 2007) (quoting Stichting Ter Behartiging Van de Belangen Van Oudaandeelhouders In Het Kapitaal Van Saybolt Int’l B.V. v. Schreiber, 407 F.3d 34, 44 (2d Cir.2005)).
Applying res judicata would be particularly unfair in the context of this case. Petitioners Rabadi and Rodriguez filed their Section 2241 petitions before their compassionate release motions. Indeed, they only filed their compassionate release motions because the Court indicated, at Respondent’s encouragement, that it would not rule on their TRO request until they had first sought relief before their sentencing court. If this Court now accepts Respondent’s argument regarding res judicata, the resulting catch-22 would be perverse: having taken a procedural step Petitioners viewed as unnecessary and unwarranted, Petitioners would now be barred from obtaining relief via the device and proceeding that they pursued in the first instance. See Knafel v. Pepsi-Cola Bottlers of Akron, Inc., 899 F.2d 1473, 1477–1478 (6th Cir. 1990) (holding that “it would be unjust to place the plaintiff in a catch 22 position” and apply res judicata where the plaintiff “was persuaded by the court to dismiss the contempt proceeding which Pepsi claims became her exclusive remedy once she elected it.”) (internal quotation marks
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and citations omitted); see also Wright & Miller § 4404, Sequence of Actions and Judgments, 18 Fed. Prac. & Proc. Juris. § 4404 (3d ed.) (“If the court itself suggests that one action be dismissed so that common issues may be resolved in another action, for example, reliance on the court’s suggestion may justify relaxation of ordinary claim-preclusion rules…A defendant who expressly asserts that one part of a claim should not be advanced in one action because it is properly the subject of a separate pending action should lose any claim-splitting argument, whether as a matter of express consent or estoppel.”).
C. The PLRA’s Procedures Regarding “Prisoner Release Orders” Do not Apply Here.
Respondent argues that 18 U.S.C. § 3626 deprives this Court of authority to order Petitioners’ release.4 This argument is without merit for several reasons. First, contrary to Respondent’s blithe assumption, this action is not a “civil action with respect to prison conditions” within the meaning of the Prison Litigation Reform Act. 18 U.S.C. § 3626(g)(2). To the extent that Petitioners seek release from custody because there are no set of conditions that would be consistent with the requirements of the constitution, this action is a habeas proceeding challenging the “fact or duration of confinement” and therefore is specifically excluded from the coverage of Section 3626(g)(2). The Sixth Circuit recently adopted this very reasoning in a Section 2241 case related to the COVID-19 crisis in federal prisons:
Where a petitioner claims no set of conditions would be constitutionally sufficient, we construe the petitioner’s claim as challenging the fact of the confinement. See Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011); cf. Terrell v. United States, 564 F.3d 442, 446−48 (6th Cir. 2009). Petitioners’ proper invocation of § 2241 also forecloses any argument that the PLRA applies given its express exclusion of “habeas corpus proceedings challenging the fact or duration of confinement in prison” from its ambit. 18 U.S.C. § 3626(g)(2).
4 Respondent does not argue that the Court lacks authority under the PLRA to order other injunctive relief aimed at risk mitigation and infection control sought by Petitioners. Pet. at 36-7.
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Wilson, 20-03447, Dkt. 23-2, at 3. Along similar lines, the Second Circuit has specifically held that habeas petitions
challenging the fact or duration of confinement are not “civil actions” with respect to other portions of the PLRA. Jones v. Smith, 720 F.3d 142, 145-47 (2d Cir. 2013).5 In this case, Petitioners have requested release as a remedy precisely because they cannot currently be held at the MDC under conditions consistent with the Constitution. Pet. ¶ 99. Petitioners request that appropriate mitigating measures be instituted for anyone who remains at the MDC, but this is an alternative that is relevant to Petitioners only to the extent that this Court denies their request for release out of the MDC. Therefore, to the extent Petitioners seek release from confinement precisely because there are no conditions under which they can be constitutionally held by Respondent, this action is not a “civil action” within the meaning of 18 U.S.C. § 3626.
Second, Petitioners are not asking for a “prisoner release order” within the meaning of Section 3626. Although Petitioners are requesting release from the MDC, because the Court can impose conditions on their release, including that they remain within the custody of the BOP, their requested relief does not qualify as a prisoner release order. Wilson v. Williams, No. 20CV-794, 2020 WL 1940882, at *10 (N.D. Ohio Apr. 22, 2020), stay denied, Wilson, 20-3447, Dkt. 23-2 (rejecting application of Section 3626 because “the Court is not ordering the release of the prisoners. Instead, the inmates will remain in BOP custody, but the conditions of their confinement will be enlarged.”).
The legislative text, legislative history, and familiar principles of statutory construction also establish that the phrase “prisoner release order” in Section 3626 is tied to constitutional
5 In dictum, the Jones Court distinguished application of the PLRA based in part on the nature of relief sought. Habeas claims seeking relief that is “analogous” to that sought in Section 1983 claims might be covered by the PLRA, according to the court. Jones v. Smith,720 F.3d 142, 145 n.3 (2d Cir. 2013). In this case, because release is more analogous to the kind of relief sought in habeas cases, not Section 1983 cases, the Jones dictum is not applicable.
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claims based on overcrowding. Statutory phrases must be read in context, not in isolation. United States v. Morton, 467 U.S. 822, 828 (1984); Nat. Res. Def. Council v. Abraham, 355 F.3d 179, 195 (2d Cir. 2004). “[W]here a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, [the Court’s] duty is to adopt the latter.” Jones v. United States, 529 U.S. 848, 857 (2000) (internal quotation marks omitted). Moreover, “equitable principles have traditionally governed the substantive law of habeas corpus,” and the Court may not “construe a statute to displace courts’ traditional equitable authority absent the clearest command.” McQuiggin v. Perkins, 569 U.S. 383, 397 (2013) (internal quotation marks and citation omitted); see also Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982) (“Unless a statue in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.”) (quoting Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946)).
Each of these principles leads to the conclusion that Petitioners are not seeking a “prisoner release order.” To read the statute as a whole, one must “harmoniz[e] the definition of ‘prisoner release order’ with the requirements for entering one.” Reaves v. Dep’t of Correction, 404 F. Supp. 3d 520, 523 (D. Mass. 2019) (citing Plata v. Brown, No. 01-CV-1351, ––– F.Supp.3d ––––, 2013 WL 12436093, at *10 (N.D. Cal. June 24, 2013)). One of the conditions necessary for entering a “prisoner release order” is that a three-judge panel find by clear and convincing evidence, that “crowding is the primary cause of the violation of a Federal right.” 18 U.S.C. § 3626 (a)(3)(E)(i). If Respondent is correct that the release remedy sought by Petitioners constitutes a “prisoner release order,” then a court could only order release when overcrowding caused a violation of Petitioners’ rights, but not if the violation was caused for any other
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unconstitutional reason. Reaves, 404 F. Supp. 3d at 523 (citing Plata, 2013 WL 12436093, at *10). Nothing in the legislative history of the PLRA “evidences Congressional intent to limit the protection of inmates’ constitutional rights in this way.” Id. at 523. Doing so would raise serious constitutional concerns in cases where only release could remedy a constitutional violation that was tied to something other than overcrowding. Moreover, it would amount to a significant restriction on the equitable power of federal courts absent clear congressional intent. In fact, the legislative history suggests that the “[s]ponsors of the PLRA were especially concerned with courts setting ‘population caps’ and ordering the release of inmates as a sanction for prison administrators’ failure to comply with the terms of consent decrees designed to eliminate overcrowding.” Gilmore v. California, 220 F.3d 987, 998 n.14 (9th Cir. 2000); see also 141 Cong. Rec. S14414 (daily ed. Sept. 27, 1995) (remarks of Sen. Dole) (highlighting Congress’s concern that population caps were a “pernicious form of micromanagement” that required legislative attention).
Where, as here, the purpose of a release relates to the prisoners’ medical needs or vulnerabilities, it does not implicate the limitations on “prisoner release orders.” See Plata, 2013 WL 12436093, at *9–10, 15; Reaves, 404 F. Supp. 3d at 523–24 (denying a stay pending appeal and explaining why the PLRA permitted the court to order the transfer of a quadriplegic prisoner to a medical facility equipped to care for him).
D. This Court has the Power to Appoint A Special Master to Administer the Relief Petitioners Have Requested.
Respondent makes three arguments against the appointment of a Special Master. It alleges that (1) “the Court cannot give a Special Master powers that even it does not have.”; (2) even if the Court had the authority to appoint a Special Master, one is not necessary in this case; and (3) that section 3626 does not permit a Special Master to chair a release committee. (Resp’t.
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Mem. 22-24). None of these contentions is a barrier to this Court appointing a Special Master nor investing them with the power to administer the relief requested by Petitioners.
1. This Court has the Authority to Appoint A Special Master. The Court has inherent equitable power to appoint a Special Master to help the Court bring the MDC’s response to the coronavirus in line with the Constitution. “The power of the federal courts to appoint special masters to monitor compliance with their remedial orders is well established.” City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 145 (2d Cir. 2011) (internal quotation marks and citation omitted). “[A]s with any other [equitable] remedial tool” a district court has “broad discretion” to appoint a Special Master. United States v. Yonkers Bd. of Educ., 29 F.3d 40, 44 (2d Cir. 1994) (per curiam). Petitioners have not asked that the Court invest the Special Master with powers it does not possess. They have merely asked the Court to appoint a Special Master to administer whatever injunctive relief this Court deems necessary. As advisory committee notes to Rule 53 explain: “Courts have come to rely on masters to assist in framing and enforcing complex decrees” and that “[t]he master’s role in enforcement may extend to investigation.” Fed. R. Civ. P. 53(a)(1)(C) advisory committee’s note to 2003 amendment. There is no reason to believe that facilitating relief in this case falls outside the ability of an appropriate Special Master. The Court is certainly able to appoint a Special Master who is familiar with BOP operations and/or our federal criminal legal system, so the suggestion that he or she would be incapable of collecting the knowledge possessed by “BOP officials, prosecutors, district and magistrate judges” (Resp’t. Mem. 23) should be of no concern. In short, this Court has the power and authority to appoint a Special Master to administer the relief requested by Petitioners.
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2. A Special Master is A Necessary and Efficient Way to Administer Relief in this Case.
Respondent’s suggestion that incarcerated people are able to “timely” and individually press their petitions for release and injunctive relief is contrary to everything we know about COVID-19 and the federal district court’s dockets. As Rule 53 of the Federal Rules of Civil Procedure makes clear, the very purpose of a Special Master is “to address pretrial and posttrial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district.” Fed. R. Civ. P. 53(a)(1)(C).
COVID-19 spreads rapidly without social distancing and sanitation measures. (Pet. ¶¶ 1, 31-35, 46). As the Amended Petition and supporting documents make clear, neither proper social distancing, nor sanitary measures are in place at the MDC. (Pet. ¶¶ 3, 5, 14, 54-64). Respondent, however, asserts that waiting weeks, for each incarcerated person’s petition to make its way through the federal district court docket is sufficient. Not only is it a danger to the lives of vulnerable incarcerated persons, particularly those who do not have attorneys available to press their claims, but it is an extremely inefficient mechanism for sorting through these claims, many of which apply to every person at the MDC.
Here, Petitioners seek the appointment of a Special Master to ensure compliance with any injunctive relief ordered by this Court aimed at ameliorating conditions at the MDC, including by assisting with developing pathways for release of Vulnerable People, where appropriate. For example, a Special Master could be a conduit to the courts for appropriate cases to be distributed to sentencing judges, prioritize the BOP’s list of Vulnerable People, and systematically propose solutions on a group-wide basis to achieve faster, more consistent results. A Special Master with correctional health expertise will also assist the Court with the complexities of evaluating conditions at the MDC and will make recommendations to the Court based on evolving public-
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health knowledge regarding COVID-19. Coleman v. Wilson, 912 F. Supp. 1282, 1324 (E.D. Cal. 1995) (appointing special master to monitor compliance with injunctive relief ordered in case involving health care delivered in prison). The Court can direct the Special Master’s responsibilities, reporting schedule, and interaction with stakeholders in a manner that supplements existing frameworks that would otherwise move too slowly to address the immediate needs presented by the pandemic. This is well within the power of the Court. See, e.g., United States v. State of Conn., 931 F. Supp. 974, 985 (D. Conn. 1996) (appointing a special master to review the care and treatment of residents in an institution for the mentally disabled, to formulate specific methods to implement the required changes, and to work with the parties to effectuate those changes).
Respondent ignores the many ways in which a Special Master can help administer relief short of release. Instead, he focuses specifically on release, contending that a Special Master cannot administer a release program under the PLRA, 18 U.S.C. §3626. (Resp’t. Mem. 24). Yet, Respondent concedes that the PLRA allows special masters to “conduct hearings on the record and prepare proposed findings of fact.” (Resp’t. Mem. 24). This is exactly how the special master should function in this case. Specifically, given the exigency of the crisis and the broad review that must be undertaken, a special master could review the files of individual detainees and make recommendations to the Court regarding all forms of relief requested by Petitioners, including, but not limited to, release. The Court would be under no obligation to accept those recommendations. Rather, the Court could and would still exercise its discretion in choosing whether or not to follow the recommendation. Appointing a special master in this fashion does not violate the PLRA, especially when the government implicitly concedes that this is a permissible practice. Given the urgent needs of those in the MDC and the relative ease with
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which this Court could avoid an impermissible delegation, appointing a special master is not only permissible, it makes good sense.
For the foregoing reasons, this Court has the authority to appoint a Special Master to administer the relief Petitioners request.
E. Respondent’s Motion to Dismiss for Failure to State a Claim Should Be Denied
Respondent argues that Petitioners fail to adequately plead a deliberate indifference claim despite Petitioners’ significant allegations concerning Respondent’s failure to adequately respond to a state of emergency acknowledged by the Attorney General, and continued incarceration of Petitioners in conditions that expose them to a significant risk of harm posed by COVID-19 transmission.6 In fact, the allegations in the Petition state a compelling case of an urgent medical emergency and deliberate indifference in responding to that emergency. See Helling v. McKinney, 509 U.S. 25, 34 (1993) (noting with approval Eighth Amendment claims based on exposure to serious contagious diseases); Farmer v. Brennan, 511 U.S. 825, 834 (1994) (correctional official violates Eighth Amendment by consciously failing to prevent “a substantial risk of serious harm”). Petitioners’ allegations are therefore sufficient to defeat a motion to dismiss under Fed. R. Civ. P. 12(b)(6). See Banks, 2020 WL 1914896, at *11 (“Based on the current record, Plaintiffs have provided evidence that Defendants are aware of the risk that COVID-19 poses to Plaintiffs’ health and have disregarded those risks by failing to take comprehensive, timely, and proper steps to stem the spread of the virus.”)
6 The named Petitioners are convicted and therefore their treatment is governed by the Eighth Amendment. Class members who are detained for pretrial purposes, however, are protected from deliberate indifference by the Fifth Amendment. Although pretrial class members may be entitled to even greater protection from unsafe conditions than convicted class members, Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”), for present purposes the distinction is immaterial because Respondent’s continued detention of the class plainly violates the Eighth Amendment.
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Respondent’s arguments with respect to both risk of harm and deliberate indifference are grounded primarily in declarations which are not properly considered in a motion to dismiss. See, e.g., Resp’t. Mem. at 28 (citing Declarations of Lieutenant Commander D. Jordan, RN/BSN (Dkt. No. 47-1) and Associate Warden Milinda King (Dkt. Nos. 18-1, 21)). A motion to dismiss a habeas petition is reviewed under the same standard as a motion to dismiss a civil complaint under Fed. R. Civ. P. 12(b)(6). See Purdy v. Bennett, 214 F. Supp. 2d 348, 353 (S.D.N.Y. 2002). In ruling on a motion to dismiss, however, the Court must construe the complaint liberally, accepting all factual allegations as true, and “drawing all reasonable inferences in the [petitioner’s] favor.” Chen v. Major League Baseball Props., Inc., 798 F.3d 72, 76 (2d Cir. 2015). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The Petition is more than sufficient to overcome a Rule 12(b)(6) motion, containing ample “plausible” allegations concerning risk of harm and deliberate indifference. As to risk of harm, the Petition asserts that Petitioners are likely being exposed to COVID-19 while at the MDC, placing them at risk of serious harm because of their vulnerable medical conditions. The Amended Petition describes the virulent nature of COVID-19 (Pet. ¶¶ 20-30), the risks to petitioners (Pet. ¶¶ 31-53), the particular concerns with MDC’s response to date (Pet. ¶¶ 54-64); the failure to respond to cases within the facility (Pet. ¶¶ 65-79); and the lack of adequate treatment options for particularly vulnerable petitioners (Pet. ¶¶ 81-94). All of the allegations are well-documented with references to material incorporated by reference in the Amended Petition, including, e.g., material from the World Health Organization (Pet. ¶ 23, n.5-6); the Attorney General (Pet. ¶ 42); and medical doctors (Pet. ¶ 45, n.15).
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As to deliberate indifference, government officials act with deliberate indifference when they “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” even when “the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33. The reach of the Fifth and Eighth Amendments includes “exposure of inmates to a serious, communicable disease.” Id.; see also Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996). (“[C]orrectional officials have an affirmative obligation to protect [forcibly confined] inmates from infectious disease”). This Court need not “await a tragic event” to find that Respondent is maintaining unconstitutional conditions of confinement. Helling, 509 U.S. at 33. Nor is it necessary for Petitioners to plead such an event in the Petition. Alleging that the conditions of confinement “pose an unreasonable risk of serious damage to [Petitioners’] future health” is sufficient. Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (quoting Helling, 509 U.S. at 35) (alteration omitted).
The Petition alleges that Respondent is failing to take specific action to prevent spread of COVID-19 to high risk individuals, and this can meet the objective requirement of the deliberate indifference test. Coronel v. Decker, 2020 WL 1487274, at *4, *10 (granting release of four medical vulnerable immigration detainees). Even where detention facilities have taken some measures to protect detainees – screening, providing soap and hand sanitizer, and increasing cleaning – it can amount to deliberate indifference when officials could not “represent that the detention facilities were in a position to allow inmates to remain six feet apart from one another” and could not “provide the Court with any information about steps taken to protect high-risk detainees like Petitioners.” Basank, 2020 WL 1481503, at *5 (“Confining vulnerable individuals such as Petitioners without enforcement of requisite social distancing and without specific measures to protect their delicate health ‘pose[s] an unreasonable risk of serious damage to
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[their] future health,’ and demonstrates deliberate indifference.”) (quoting Phelps, 308 F.3d at 185 (internal citation omitted)).
The Supreme Court’s decision in Helling is particularly instructive. In Helling, the Court recognized that an Eighth Amendment violation could be shown based on prison officials’ tolerance of a potential future harm to health. 509 U.S. at 33 (“Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no serious current symptoms.”). Continuing to detain Petitioners in the midst of the COVID-19 pandemic while failing to take measures to protect them and the putative classes poses a significantly greater risk than that faced by the plaintiff in Helling. COVID-19 is already inside the MDC. The facility has not taken adequate measures to ascertain the prevalence of the disease, stop its spread, or treat people who become ill. And Petitioners are at an increased risk because of their age and/or underlying medical conditions. As one court recently summed up, “Given the asymptomatic nature of transmission, the impossibility of adequate social distancing in communal detention spaces, and the inability or unwillingness to test all inmates and staff, [medically vulnerable people] remain[] at an unreasonable and substantial risk of infection and consequently of dire health consequences, including death.” Malam v. Adducci, No. 20-10829, 2020 WL 1899570, at *4 (E.D. Mich. Apr. 17, 2020). Accordingly, Petitioners have pleaded plausible allegations in support of their claims, which is all that is required under Iqbal.
Respondent’s brief contains a series of unsworn and unsupported statements attesting to their response to the COVID-19 crisis, but these are irrelevant for several reasons. First, at the motion to dismiss stage, it is the contents of the Petition, not Respondent’s briefs, that provides the factual basis upon which the motion must be resolved. Second, the adequacy of
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Respondent’s measures is directly before the Court in the pending preliminary injunction proceeding and that is an appropriate place for Respondent to provide evidence of their efforts, if any exists. And finally, even if Respondent could establish, at the motion to dismiss stage, that they have taken some steps to respond to the COVID-19 crisis, Petitioners still can establish deliberate indifference. In an injunctive case, the “‘the subjective factor, deliberate indifference, should be determined in light of the prison authorities’ current attitudes and conduct:’ their attitudes and conduct at the time suit is brought and persisting thereafter.” Farmer, 511 U.S. at 845 (quoting Helling, 509 U.S. at 36 (internal citation omitted)). Thus, if this Court finds that Petitioners currently face an objectively serious risk of harm because of current conditions of confinement, and Respondents continue to tolerate those conditions, they will be acting with deliberate indifference. Sulton v. Wright, 265 F.Supp.2d 292, 300 (S.D.N.Y. 2003) (“[E]ven if an inmate receives ‘extensive’ medical care, a claim is stated if . . . the gravamen of his problem is not addressed.”).
Respondent’s motion to dismiss invokes Rule 56 as an alternative grounds for dismissal, but Respondent makes no effort to shoulder his burden of establishing an entitlement to summary judgment. Most notably, Respondent has not met his burden of establishing “[t]he absence of any genuine issue of material fact.” Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir. 2010). Respondent’s only reference to the summary judgment standard is in a footnote (Resp’t. Mem. 13 n.3). See Lawson v. Rubin, No. 17 Civ. 6404, 2018 WL 7958928, at *1 (E.D.N.Y. June 11, 2018) (noting that to raise an issue, a litigant “must both state the issue and advance an argument.”); Phoenix Light SF Ltd. v. Bank of New York Mellon, No. 14 Civ. 10104, 2017 WL 3973951, at *20 n.36 (S.D.N.Y. Sept. 7, 2017) (noting that district courts “routinely decline[ ] to consider arguments mentioned only in a footnote on the grounds that
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those arguments are inadequately raised.”). Finally, Respondent has made no effort to comply with Local Rule 56.1, and as the Court is aware, the parties have only engaged in limited discovery in this case. See Local Civil Rule 56.1 (noting that motion for summary judgment may be denied based on failure to submit Rule 56.1 statement).
F. The Class Allegations at Paragraphs 109-121 Are More Than Sufficient to Satisfy the Requirements of Fed. R. Civ. P. 23(a)
Respondent’s request to strike Petitioners’ class allegations as not meeting the requirements of Fed. R. Civ. P. 23(a) should be denied.
Courts typically do not evaluate motions to strike class action allegations under Fed. R. Civ. P. 12(b)(6), but rather under 12(f), which permits courts to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f); see Guariglia v. Procter & Gamble Co., 15-cv-04307, 2018 WL 1335356, at *11 (E.D.N.Y. Mar. 14, 2018). Motions to strike class allegations at the pleading stage are “disfavored and rarely granted because they require ‘a reviewing court to preemptively terminate the class aspects of litigation, solely on the basis of what is alleged in the complaint, and before plaintiffs are permitted to complete the discovery to which they would otherwise be entitled on questions relevant to class certification.’” Woods-Early v. Corning Inc., 330 F.R.D. 117, 122 (W.D.N.Y. 2019) (quoting Belfiore v. Procter & Gamble Co., 94 F.Supp.3d 440, 447 (E.D.N.Y. 2015)); see also Guariglia, 2018 WL 1335356, at *11 (Rule 12(f) motions to strike class allegations are “rarely successful.”) (quoting Reynolds v. Lifewatch, Inc., 136 F. Supp. 3d 503, 511 (S.D.N.Y. 2015). Here, Respondent cannot meet the stringent Rule 12(f) requirement for striking class allegations.
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Respondent’s argument that Petitioners’ class allegations are lacking at the pleading stage with respect to the requirements of Fed. R. Civ. P 23(a) are unavailing.7 Respondent does not contest that the proposed class of all present and future individuals detained at the MDC during the pandemic meets the rule’s numerosity requirement, but rather suggests that they do not meet its implied requirement of ascertainability because the class is “a constant moving target.” (Resp’t. Mem. 33). Respondent cites no authority in support of its contention that a class of current and future jail detainees cannot be maintained because no such authority exists; courts have repeatedly certified classes defined just like this one, without any concern that the class is unascertainable. Butler v. Suffolk Cty., 289 F.R.D. 80, 101 (E.D.N.Y. 2013) (holding that class including those who will be detained in the future met ascertainability requirement); see also Williams v. Conway, 312 F.R.D. 248, 251, 254 (N.D.N.Y. 2016) (certifying class including people detained in the future); Nunez v. City of New York, No. 11 Civ. 5845, 2015 WL 10015955, at *2 (S.D.N.Y. July 10, 2015) (noting that court certified class of all present and future people detained in the New York City jails). Given that all BOP facilities conduct a census count five times per day, Respondent’s argument on ascertainability is baffling. See BOP Correctional Services Procedures Manual, Ch. 3 at 1.8
The questions of law and fact raised here are “common to the class,” Fed. R. Civ. P. 23(a)(2), because their “resolution will affect all or a significant number of the putative class members.” Johnson v. Nextel Commc’ns Inc., 780 F.3d 128, 137 (2d Cir. 2015). Commonality requires the identification of an issue that by its nature “is capable of classwide resolution—
7 Petitioners have more fully addressed class certification in their Motion for Preliminary Injunction, in which they ask this Court to rely on its general equity powers to certify the class and/or conditionally certify the class for purposes of issuing a preliminary injunction. Pet’r Mot. Prelim. Inj. 30-35.
8 Available at https://www.bop.gov/policy/progstat/5500_014_CN-1.pdf.
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which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). The commonality requirement is perfectly met in cases, like this one, seeking injunctive relief to remedy constitutional violations. See Nicholson v. Williams, 205 F.R.D. 92, 98 (E.D.N.Y. 2001) (“[t]here is an assumption of commonality where plaintiffs seek certification of an injunctive class under Rule 23(b)(2) to right alleged constitutional wrongs.”). And in the context of prisons and jails, courts routinely find common questions of law and fact when those incarcerated “have a common interest in preventing the recurrence of the objectionable conduct.” Inmates of Attica Corr. Facility v. Rockefeller, 453 F.2d 12, 24 (2d Cir. 1971); see also V.W. v. Conway, 236 F. Supp. 3d 554, 575 (N.D.N.Y 2017) (finding commonality because incarcerated plaintiffs alleged a “common course of unlawful conduct” and because litigation will be resolved by whether conduct should be enjoined).
The common question of law and fact to be resolved here is: whether Respondent’s failure to take adequate steps to mitigate the risk of harm posed by COVID-19 to people incarcerated at the MDC constitutes deliberate indifference in violation of the Eighth and Fifth Amendment to the Constitution and the Supreme Court’s decision in Helling, 509 U.S. 25 (1993). All of the class members either have been, or will be, subjected to these common conditions, and a determination that Respondent’s conduct is unconstitutional will therefore “resolve an issue that is central to the validity” of each and every class member’s detention. Dukes, 564 U.S. at 350 (2011). That there are factual differences among the named representatives, such as in their ages, medical histories and length of time left on their sentences (Resp’t. Mem. 34) does not defeat commonality. Butto v. Collecto Inc., 290 F.R.D. 372, 392 (E.D.N.Y. 2013) (collecting cases).
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Rule 23’s requirement that “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class” is satisfied here. “When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims.” Robidoux v. Celani, 987 F.2d 931, 936-37 (2d. Cir. 1993), That the extent of an incarcerated class member’s exposure to particular prison conditions and the “exact nature of their injuries will necessarily differ from those of the proposed class members” does not defeat typicality. Butler, 289 F.R.D. at 99 (citations omitted). As one court recently noted in the COVID-19 context, “[t]he likelihood that some people would need to be released as part of the effort to alleviate dangerous conditions at the jail … is not a reason to deny provisional class certification. Rivas v. Jennings, No. 20 Civ. 2731, 2020 WL 2059848, at *1, *4 (N.D. Cal. Apr. 29, 2020).
The adequacy requirement under Rule 23(a)(4) “is twofold: the proposed class representative must have an interest in vigorously pursuing the claims of the class, and must have no interests antagonistic to the interests of other class members.” Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006). “Courts that have denied class certification based on the inadequate qualifications of plaintiffs have done so only in flagrant cases, where the putative class representatives display an alarming unfamiliarity with the suit.” In re Frontier Ins. Grp., Inc., Sec. Litig., 172 F.R.D. 31, 47 (E.D.N.Y. 1997) (internal quotations marks and citation omitted). Here, the interests of the named class representatives are not in conflict with those of the class members. They have all been subjected to the same conduct and have brought this suit to remedy Respondent’s woefully inadequate response to the pandemic which has rendered the conditions in which they are held unconstitutional. Additionally, class counsel here are
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“qualified, experienced and able to conduct the litigation.” Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d Cir. 2000), and also meet the requirements of Rule 23(g). (Pet. ¶ 117).
The proposed classes also meet the Rule 23(b)(2) requirement that “the party opposing the class has acted or refused to act on grounds that apply generally to the class” so that injunctive relief as to the entire class is appropriate. Fed. R. Civ. P. 23(b)(2). Respondent does not contest that Petitioners meet the Rule 23(b)(2) requirements, which Petitioners have addressed more fully in their motion for a preliminary injunction. See Pet’rs Mot. Prelim. Inj. at 34-35.

CONCLUSION

For the reasons set forth above, Respondent’s Motion to Dismiss the Amended Petition

should be denied.

Dated: May 8, 2020 New York, New York

EMERY CELLI BRINCKERHOFF & ABADY LLP

By: /s/ Katherine Rosenfeld Katherine Rosenfeld O. Andrew F. Wilson Samuel Shapiro Scout Katovich 600 Fifth Avenue, 10th Floor New York, NY 10020 (212) 763-5000

CARDOZO CIVIL RIGHTS CLINIC Betsy Ginsberg Cardozo Civil Rights Clinic Benjamin N. Cardozo School of Law 55 Fifth Avenue, 11th Floor New York, NY 10003 (212) 790-0871

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Case 1:20-cv-01590-RPK-RLM Document 85 Filed 05/08/20 Page 41 of 41 PageID #: 2246 Alexander A. Reinert 55 Fifth Avenue, Room 1005 New York, NY 10003 (212) 790-0403 DEBEVOISE & PLIMPTON LLP Yeugenia (Jane) Shvets Noelle E. Lyle 919 Third Avenue New York, NY 10022 (212) 909-6000 Attorneys for Petitioners and Putative Class
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 Case 1:20-cv-01590-RPK-RLM Document 88 Filed 05/10/20 Page 1 of 13 PageID #: 2430

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------x
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI by his Next Friend Migdaliz Quinones; and JUSTIN RODRIGUEZ by his Next Friend Jacklyn Romanoff; ELODIA LOPEZ; and JAMES HAIR, individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.
---------------------------------------------------------x

Civil Action No. 20-CV-1590 (Kovner, J.) (Mann, M.J.)

REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF RESPONDENT’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(1), 12(b)(6), OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

James R. Cho Seth D. Eichenholtz Joseph A. Marutollo Paulina Stamatelos Assistant United States Attorneys (Of Counsel)

RICHARD P. DONOGHUE United States Attorney Counsel for Respondent Eastern District of New York 271-A Cadman Plaza East, 7th Floor Brooklyn, New York 11201
May 10, 2020

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TABLE OF CONTENTS PRELIMINARY STATEMENT .................................................................................................... 1 ARGUMENT .................................................................................................................................. 2
I. This Court Lacks Jurisdiction Over This Petition................................................... 2 A. The Claims of Chunn, McBride, Rodriguez, and Rabadi must be dismissed..................................................................................................... 2 B. The Court lacks jurisdiction over the remaining Petitioners’ claims .......................................................................................................... 2 C. Petitioners still fail to show why a Special Master is warranted ................ 7
II. Even if the Court had Jurisdiction over the Amended Petition, Petitioners’ Claims are Subject to Dismissal .......................................................... 9
CONCLUSION............................................................................................................................. 10

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PRELIMINARY STATEMENT Before the first case of COVID-19 was reported in New York City, the BOP was taking numerous steps to protect the inmate population at the MDC from what would become a global pandemic. Those efforts began as early as January 2020—months before this lawsuit—and have continually expanded as additional information became known and additional resources become available. Despite BOP’s indisputable record of success in controlling the spread of COVID-19 at the MDC, Petitioners filed the instant action, charging that Respondent was deliberately indifferent to the safety of MDC’s inmates. Respondent now respectfully submits this reply memorandum of law in further support of his motion to dismiss. As set forth below, Petitioners’ brief in opposition to the Respondent’s motion fails to salvage this action. First, as discussed below, four of the six Petitioners’ claims are now moot and subject to dismissal. And, as set forth more fully in Respondent’s opening brief (Dkt. No. 62), this Court lacks subject matter jurisdiction over this action. Importantly, Petitioners fail to overcome the Prison Litigation Reform Act’s (“PLRA”) strict limitations on a district court’s ability to order the release of inmates, including its express prohibition on a single district judge doing so. See 18 U.S.C. § 3626(a)(3). But even if jurisdiction existed here, Petitioners still fail to meet the heightened standard needed to show a violation of their Fifth Amendment or Eighth Amendment rights arising out of current conditions at the MDC. For the reasons set forth below and for the reasons set forth in Respondent’s opening brief, the Court should dismiss this action.1
1 Respondent’s motion to dismiss included a request to strike Petitioners’ class allegations. After Respondent filed his motion, Petitioners moved for class certification (Dkt. No. 71). Respondent subsequently opposed that motion (Dkt. No. 79) and fully incorporates those arguments against class certification herein (Dkt. No. 79 at 26-34).

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ARGUMENT I. This Court Lacks Jurisdiction Over This Petition
A. The Claims of Chunn, McBride, Rodriguez, and Rabadi must be dismissed. “Under Article III of the U.S. Constitution, when a case becomes moot, the federal courts lack subject matter jurisdiction over the action.” Doyle v. Midland Credit Mgmt., Inc., 722 F.3d 78, 80 (2d Cir. 2013). Petitioners concede that the claims of Chunn and McBride are “currently moot” and “must be dismissed for lack of jurisdiction “because they have been released from the MDC and served the entirety of their sentences.” Petitioners’ Opposition (“Opp.”) 6. For the same reason, Rodriguez’s claims are also moot, as it undisputed2 that Rodriguez was released from the MDC on April 26, two days after Respondent filed his motion. Similarly, Rabadi is being released from MDC on May 19; he remains at MDC because he is in the midst of a 14-day quarantine prior to his exit. See Cho Decl., Exhibit A. As Chunn, McBride, Rodriguez, and Rabadi have no pending case or controversy, their claims should be dismissed as moot. B. The Court lacks jurisdiction over the remaining Petitioners’ claims In order to demonstrate that the Court has jurisdiction here, Petitioners craft an argument that, on its face, is at odds with itself. On the one hand, while trying to establish jurisdiction under § 2241, citing Second Circuit case law, Petitioners contend that they are not challenging the length or duration of confinement. Opp. 9. On the other hand, at a later point in their brief when trying to avoid provisions of the PLRA fatal to their claims, they paradoxically argue, in order to be able to cite a Sixth Circuit case, that their petition challenges the “fact or duration of confinement.” Opp. 17. As explained below, Petitioners’ internally inconsistent argument wholly misses the mark as to the applicability of the PLRA.
2 In their May 8 Opposition brief, Petitioners inexplicably fail to acknowledge Rodriguez’s release, despite the fact that they produced, on May 6, a signed declaration from Rodriguez indicating his release from MDC. See PETS001599; Pet. Hearing Ex. 76.
2

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Contrary to Petitioners’ claims (Opp. 17-21), 18 U.S.C. § 3626 of the PLRA applies and bars Petitioners’ claims.3 The PLRA contains a prohibition for a broad range of claims, covering “any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison.” § 3626(g)(2). The only exception, which is not applicable here, is for “habeas corpus proceedings challenging the fact or duration of confinement in prison.” Id.
Petitioners argue that their claims fall into this “fact or duration of confinement” exception to the PLRA. But yesterday’s decision in Alvarez v. Larose, No. 20-CV-782 (DMS) (AHG), Dkt. No. 46 (S.D. Cal. May 9, 2020),4 is instructive here. In Alvarez, plaintiffs—a putative class of federal criminal detainees charged with, or convicted of, serious crimes—challenged the conditions of confinement at their U.S. Marshals Service facility as inadequate to address the threat to health and safety posed by COVID-19. Id. at *1-*3. Like Petitioners here, the Alvarez plaintiffs claimed that release was warranted due to the facility’s response to the COVID-19 pandemic. Id. Also like Petitioners, the Alvarez plaintiffs asserted that they “do not challenge the reason for their confinement, their conviction or charge, the length of their sentence, or a release determination based on good time credits—claims that are often characterized as ‘the core of habeas corpus.’” Id. (citing Preiser v. Rodriguez, 411 U.S. 475, 487 (1973)); cf. Opp. 9. Instead, akin to Petitioners here, the Alvarez plaintiffs argued that their claims
3 Petitioners rely on two inapposite immigration rulings (Opp. 10) to argue that the provisions of the PLRA do not apply. Their reliance on those rulings is misplaced, as aliens in immigration detention are not subject to the PLRA. Alvarez, Dkt. No. 46, at *2 (distinguishing between civil immigration detainees and criminal inmates); Pozo v. Schmidt, No. 18-CV-1486, 2020 WL 2129567, at *5 (E.D. Wis. May 5, 2020) (“finding that the PLRA applies to immigration detainees would ignore the longstanding understanding that immigration proceedings are civil—not criminal—in nature”) (citing I.N.S. v. LopezMendoza, 468 U.S. 1032, 1038 (1984). Further, detained aliens are subject to 8 U.S.C. § 1226(a), which gives the government discretion to detain an alien over the course of his removal proceedings before an immigration judge; the government also retains discretion to release the alien on bond under certain circumstances. See Sajous v. Decker, No. 18CV-2447 (AJN), 2018 WL 2357266, at *1 (S.D.N.Y. May 23, 2018). Such a scenario has no bearing on the rights afforded criminal defendants before their Article III sentencing judges. 4 This decision’s publication is forthcoming. A copy of the decision is annexed to the Cho Decl. as Exhibit B.
3

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“are based solely on the current conditions inside [the facility] given the COVID-19 pandemic.”
Alvarez, Dkt. 46, at *6.
The Alvarez district court explained that, “[i]n other words, unlike a claim concerning the fact
of confinement, Plaintiffs’ claims would not exist but for their current conditions of confinement at [the
facility].” Id. (emphasis in original). The court then correctly held that Alvarez “is not a ‘habeas corpus
proceeding[] challenging the fact or duration of confinement in prison[,]’ which would fall outside the
purview of the PLRA”; “[i]t is a habeas claim based on confinement conditions.” Alvarez, Dkt. 46 at
*6. As a result, contrary to the Alvarez plaintiffs’ assertion, the PLRA applied and the plaintiffs failed
to establish a likelihood of success on the merits. The court reasoned that:
[The PLRA] limits the Court’s authority to order release of prisoners “[i]n any civil actions with respect to prison conditions.” 18 U.S.C. § 3626(a)(3)(A). It provides, “no court shall enter a prisoner release order unless . . . (i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied. . . ; and (ii) the defendant has had a reasonable amount of time to comply with the previous court orders.” Id. It precludes prisoner release orders unless “entered [] by a three-judge court.” Id. § 3626(a)(3)(B). In addition, before entering such an order, the three-judge panel must first find, by clear and convincing evidence, “(i) crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will remedy the violation of the Federal right.” Id. § 3626(a)(3)(E). Finally, the PLRA defines “prisoner release order” in expansive terms to include “any order … that has the purpose or effect of reducing or limiting the prison population, or that directs the release from … a prison.” Id. § 3626(g)(4). These limitations “ensure that the ‘last resort remedy’ of a population limit is not imposed ‘as a first step.’”
Id., at *8 (citing Brown v. Plata, 563 U.S. 493, 511 (2011)).
As in Alvarez, Petitioners may not circumvent the PLRA simply by seeking release in a case,
like this one, that challenges conditions of confinement. Petitioners’ requested relief is irreconcilable
with the plain text of the PLRA. Here, there can be no dispute that Petitioners’ lawsuit is a “civil action
with respect to prison conditions” governed by the provisions of the PLRA. 18 U.S.C. § 3626(g)(2).
The PLRA defines “civil action with respect to prison conditions” broadly to mean “any civil proceeding
arising under Federal law with respect to the conditions of confinement or the effects of actions by
4

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government officials on the lives of persons confined in prison, but [that term] does not include habeas corpus proceedings challenging the fact or duration of confinement in prison[.]” Id. Petitioners seek release as a remedy for allegedly unconstitutional conditions at the MDC—for themselves and for the putative class members. As set forth above, the PLRA strictly limits the relief that this Court may grant and precludes the Court from releasing inmates from the MDC as Petitioners request. 18 U.S.C. § 3626(a)(3)(B); see, e.g., Plata v. Newsom, -- F. Supp. 3d -- , 2020 WL 1908776, at *2 (N.D. Cal. Apr. 17, 2020) (denying an emergency motion regarding prevention and management of COVID-19 and noting that, pursuant to the PLRA, the court lacked authority to grant the release or transfer, finding that a “prisoner release order” could only be granted by a three-judge court.) (citing 18 U.S.C. § 3626(a)(3)(B)); Money v. Pritzker, -- F. Supp. 3d --, 2020 WL 1820660, at *14 (N.D. Ill. Apr. 10, 2020) (holding that the PLRA prevented the court from entering the relief requested by petitioners for the release of inmates).5
Significantly, Congress enacted “the PLRA in an effort, in part, to oust the federal judiciary from day-to-day prison management.” Inmates of Suffolk Cty. Jail v. Rouse, 129 F.3d 649, 655 (1st Cir. 1997) (citations omitted); see also Benjamin v. Jacobson, 172 F.3d 144, 182 (2d Cir. 1999) (in banc) (Calabresi, J., concurring) (“The in banc majority argues at length that Congress meant to get the federal courts out of the business of running jails, and it cites any number of congressional statements to that effect. I agree.”). “Congress intended the PLRA to revive the hands-off doctrine,” which was “a rule of judicial quiescence derived from federalism and separation of powers concerns.” Gilmore v. People of the State of Cal., 220 F.3d 987, 991, 997 (9th Cir. 2000). Section 3626 thus “restrict[s] the equity
5 Petitioners fail to establish that this Court has the authority to immediately “release” hundreds of MDC inmates, much less the named Petitioners. Petitioners paradoxically contend that they “are not asking for amended sentences, they are asking for release.” Opp. 8. In reality, Petitioners are trying to skirt the fact that their requested “release” from legal custody is the equivalent of a sentence reduction. And, as Petitioners are aware, courts in the Second Circuit have unequivocally ruled that a § 2241 habeas petition challenging the conditions of confinement cannot serve as a vehicle to modify or otherwise reduce a criminal sentence which is the exact relief Petitioners impermissibly seek. See Dkt. No. 62-1 at 14-16.
5

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jurisdiction of federal courts,” Gilmore, 220 F.3d at 999, and, “[b]y its terms . . . restricts the circumstances in which a court may enter an order ‘that has the purpose or effect of reducing or limiting the prison population.’” Brown v. Plata, 563 U.S. 493, 511 (2011) (quoting § 3626(g)(4)). The PLRA’s “requirements ensure that the ‘last resort remedy’ of a population limit is not imposed ‘as a first step.’” Id. at 514 (quoting Inmates of Occoquan v. Barry, 844 F.2d 828, 843 (D.C. Cir. 1988)). “The release of prisoners in large numbers . . . is a matter of undoubted, grave concern.” Brown, 563 U.S. at 501.
Not only does the PLRA preclude the relief that Petitioners seek, but even if the Court were inclined to grant such relief (which it should not), Petitioners’ request for such relief is premature. See United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020) (“[S]trict compliance with [statutory exhaustion requirements] takes on added—and critical—importance” when prison officials, who have a “shared desire for a safe and healthy prison environment,” engage in “extensive and professional efforts to curtail the virus’s spread.”). On these grounds alone, the Amended Petition must be denied.
And to the extent the Court considers the putative claims of class members (who include pretrial inmates) seeking immediate release or process by a “release committee,” courts have held that habeas is an inappropriate collateral attack when pretrial detainees can seek release in their pending criminal cases, as they can and have done here. See Reese v. Warden Philadelphia FDC, 904 F.3d 244, 246-48 (3d Cir. 2018); Medina v. Choate, 875 F.3d 1025 (10th Cir. 2017); Falcon v. U.S. Bureau of Prisons, 52 F.3d 137, 139 (7th Cir. 1995); and Fassler v. United States, 858 F.2d 1016 (5th Cir. 1988).6
Petitioners cannot point to any authority that would permit their requested relief, whereby each inmate in the putative class would be permitted to: (1) seek release from that inmate’s sentencing judge; (2) if the sentencing judge does not agree to the inmate’s release, the inmate would seek release from
6 Moreover, contrary to Petitioners’ assertion, there is no basis in law that would allow Respondent to release the pre-trial inmates (none of whom are Petitioners) when those inmates are subject to orders issued in accordance with the Bail Reform Act, 18 U.S.C. § 3142.
6

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the Court in the instant case; and (3) skip entirely over the PLRA’s restrictive requirements seeking release via, inter alia, a three-judge court specially constituted pursuant to 18 U.S.C. § 3626(a)(3)(B). See Grinis v. Spaulding, No. 20-CV-10738 (GAO), 2020 WL 2300313, at *2 (D. Mass. May 8, 2020) (denying motion for a preliminary injunction and noting that there is “a question of which judicial authority has jurisdiction to issue such an order: A ‘prisoner release order’ may only be ordered by a three-judge court specially constituted [citing 18 U.S.C. § 3626(a)(3)(B)][, and a] ‘compassionate release’ order altering the sentence of a convicted felon apparently may only be entered by the sentencing judge [citing 18 U.S.C. § 3582(c)].”). Accordingly, dismissal of the Petition is warranted.7
C. Petitioners still fail to show why a Special Master is warranted As Respondent has now demonstrated several times without any compelling response from Petitioners, Petitioners’ request for a Special Master and some kind of nebulous “release committee” abuses the writ of habeas corpus, unduly duplicates judicial efforts, and circumvents traditional remedies afforded to safeguard a criminal defendant’s liberty interests. Petitioners again fail to cite to a single case in which a Court appointed a Special Master at the preliminary injunction phase of a proceeding; instead, they rely on the wholly inapposite decisions in City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 145 (2d Cir. 2011), where a Special Master was appointed in a complex action against retail firearm dealers after a permanent injunction was issued; and United States v. Yonkers Bd. of Educ., 29 F.3d 40, 42 (2d Cir. 1994), where a Special Master was appointed to address housing segregation after discovery and a “lengthy bench trial in 1983 and 1984.” The Court should categorically reject such an unprecedented appointment here.
7 Alvarez is also instructive with respect to denying Petitioners’ claims for emergency relief. The Alvarez court held that it “could not issue injunctive relief without unfairly intruding on Defendants’ operation of the prison system and defying Congress’s clear policy determinations regarding challenges to prison conditions and prisoner release orders[;] [i]n addition, the public interest does not favor the immediate release of a class of inmates who may lack viable housing outside of [the facility] and may be deprived of access to food, means of personal hygiene, and medical care if released, all at once, from the facility.” Alvarez, Dk. No. 46, at *8.
7

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The Court simply does not have the authority to seize the role of the Article III judge in granting or denying the release of inmates and hand it over to a Special Master.8 Petitioners appear to propose
a system whereby this Court would appoint a Special Master who would lord over BOP without any limitation and would interject into the criminal cases of district judges across the country whenever an inmate at MDC seeks compassionate release or home confinement. Petitioners presuppose that the Special Master is best situated to make decisions about MDC’s operations. The Supreme Court, however, has acknowledged that running a prison “is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.” Turner v. Safley, 482 U.S. 78, 85 (1987). The “formidable task of running a prison” falls to those other two branches, and “separation of powers concerns counsel a policy of judicial restraint” and “deference to the appropriate prison authorities.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987). Prison officials, not Special Masters, are the ones who “make the difficult judgments concerning institutional operations.” Pesci v. Budz, 935 F.3d 1159, 1166 (11th Cir. 2019). A Special Master cannot be permitted to “sit[] as a super-warden to secondguess the decisions of the real wardens.” Prison Legal News v. Sec’y, Fla. Dep’t of Corr., 890 F.3d 954, 965 (11th Cir. 2018) (explaining the “substantial deference to the decisions of prison administrators because of the complexity of prison management, the fact that responsibility therefor is necessarily vested in prison officials, and the fact that courts are ill-equipped to deal with such problems.”).9
8 Indeed, in the past week alone, sentencing judges have decided applications for compassionate release and home confinement related to inmates in BOP custody. See, e.g., United States v. Watson, No. 19 Cr. 4, Dkt. No. 161 (E.D.N.Y. May 6, 2020 (Kuntz, J.) (denying application for pre-sentence release after “[h]aving carefully reviewed Defendant’s medical records at the MDC,” “the Court concluded [inter alia] that Defendant was not denied timely medical care as a result of his detention during the crisis”). 9 Petitioners incorrectly state that “the government implicitly concedes that” the Court can order Petitioners’ request for a Special Master given that the PLRA allows Special Masters, during the remedial phase of the action, “to conduct hearings on the record and prepare proposed findings of fact.” 18 U.S.C. § 3626(f)(1). Opp. 23. To the contrary, the Second Circuit has already addressed this precise issue, holding that “[t]he PLRA has substantially limited the capacity of federal courts to appoint special masters to oversee prison conditions, specifically in order to ensure compliance with the Eighth Amendment.” Webb v. Goord, 340 F.3d 105, 111 (2d Cir. 2003).
8

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II. Even if the Court had Jurisdiction over the Amended Petition, Petitioners’ Claims are Subject to Dismissal Even if the Court had jurisdiction over the Amended Petition (which it does not), Petitioners’
claims are subject to dismissal under Fed. R. Civ. P. 12(b)(6). In order to succeed on their Eighth Amendment claims, Petitioners must show not only that Respondent denied them “the minimal civilized measure of life's necessities,” but also that he acted with a “sufficiently culpable state of mind.” Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (internal quotation marks omitted). In prison-condition cases, the requisite state of mind is one of “deliberate indifference.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks omitted). Deliberate indifference “entails something more than mere negligence.” Id. at 835.
Petitioners simply cannot prevail under this standard. BOP officials have not been indifferent, let alone deliberately so. Beginning months before this lawsuit was filed, and continuing through the present, BOP implemented and updated numerous policies designed to prevent the introduction and spread of COVID-19 within MDC. See Declarations, at Dkt. Nos. 18, 21, 47, 72, 80-83.10 The BOP’s Action Plan for COVID-19, as outlined in Respondent’s motion to dismiss at 3-6, has been enormously successful in combatting COVID-19 at MDC. In their opposition, Petitioners turn the deliberateindifference inquiry on its head, focusing exclusively on the results of BOP’s effort rather than its reasonableness in the face of the immense challenges facing MDC during the pandemic. While Petitioners may debate whether the BOP’s COVID-19 action plan “will be enough as a matter of public health policy,” that debate “is not the measure of a constitutional [] violation.” United States v. Villegas, -- F. Supp. 3d -- , 2020 WL 1649520, at *2 (C.D. Cal. Apr. 3, 2020) (“the Bureau of Prisons is by all objective accounts responding to the COVID-19 pandemic as any reasonable observer could expect
10 Contrary to Petitioners’ assertion, this matter is subject to dismissal under Fed. R. Civ. P. 12(b)(6). See Lia v. Saporito, 909 F. Supp. 2d 149, 161 (E.D.N.Y. 2012) (“Agency determinations and administrative findings are public records of which a court may properly take judicial notice.”). Nonetheless, Respondent has moved, in the alternative, for summary judgment.
9

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under the circumstances to prevent infectious outbreak, protect inmate health, and preserve internal order—all legitimate government aims.”); see also Plata, 2020 WL 1908776 (N.D. Cal. Apr. 17, 2020) (noting while it “might adopt additional distancing measures if it were solely responsible for” jail administration, it “cannot conclude that Defendants’ actions are constitutionally deficient.”); SacalMicha v. Longoria, -- F. Supp. 3d -- , 2020 WL 1518861, at *6 (S.D. Tex. Mar. 27, 2020) (finding that a facility’s inability to implement measures that would be “required to fully guarantee [plaintiffs’] safety,” because the facility cannot control overall inmate population or implement ideal social distancing does not amount to a violation of constitutional rights).
Petitioners fail to plead any facts which could support the necessary conclusions that conditions at the MDC are of the sort that would be “repugnant to the conscience of mankind,” (Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)), or that officials have shown indifference, much less deliberate indifference, to the risks posed by COVID-19. Respondent is acutely aware of the risk that COVID19 poses to MDC’s inmate population and to the public at large, and Respondent can hardly be said to be indifferent, as shown by what prison officials have done and will continue to do. Petitioners cannot credibly dispute Respondent’s serious effort to mitigate those risks; instead, Petitioners merely state their disagreements with certain aspects of BOP’s approach to treating this unprecedented medical crisis and speculate, despite evidence to the contrary, that those efforts will be a failure. However, their disagreements, along with their misplaced focus and speculation about the results of Respondent’s efforts, fail to state a constitutional violation, and this matter should be dismissed.
CONCLUSION Accordingly, for the reasons set forth in Respondent’s opening brief and herein, the Court should dismiss the Amended Petition in its entirety and grant Respondent such further relief that the Court deems just and proper.
10

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Dated: Brooklyn, New York May 10, 2020

RICHARD P. DONOGHUE United States Attorney Counsel for Respondent Eastern District of New York 271-A Cadman Plaza East, 7th Fl. Brooklyn, New York 11201

By:

/s/

James R. Cho

Seth D. Eichenholtz

Joseph A. Marutollo

Paulina Stamatelos

Assistant U.S. Attorneys

Attorneys for Respondent

(718) 254-6519/7036/6288/6198

james.cho@usdoj.gov

seth.eichenholtz@usdoj.gov

joseph.marutollo@usdoj.gov

pauline.stamatelos@usdoj.gov

11

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------x

HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI by his Next Friend Migdaliz Quinones; and JUSTIN RODRIGUEZ by his Next Friend Jacklyn Romanoff; ELODIA LOPEZ; and JAMES HAIR, individually and on behalf of all others similarly situated,
Petitioners,

Civil Action No. 20-CV-1590 (Kovner, J.) (Mann, M.J.)

-against-

WARDEN DEREK EDGE,

Respondent.

---------------------------------------------------------x

James R. Cho, an attorney duly admitted to practice in the Eastern District of New York,

declares pursuant to 28 U.S.C. § 1746, under penalty of perjury, that the following is true and correct:

1. I am an Assistant United States Attorney, of counsel to Richard P. Donoghue, United

States Attorney, Eastern District of New York, attorney for Respondent. I am familiar with the facts in

the instant case.

2. Attached hereto as Exhibit A are records related to Petitioner Ayman Rabadi’s release,

bearing Bates Stamp Nos. AR1-2.

3. Attached hereto as Exhibit B is a copy of the to-be-published decision in the case styled

Alvarez v. Larose, No. 20-CV-782 (DMS) (AHG), Dkt. No. 46 (S.D. Cal. May 9, 2020).

Dated: Brooklyn, New York May 10, 2020

RICHARD P. DONOGHUE United States Attorney

By:

/s/

James R. Cho

Assistant U.S. Attorney

Case 1:20-cv-01590-RPK-RLM Document 88-1 Filed 05/10/20 Page 2 of 2 PageID #: 2444 (718) 254-6519 james.cho@usdoj.gov
- 2 -

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TRAVEL ITINERARY- RABADI, AYMAN FURLOUGH TRANSFER 05/19/2020

MR. RABADI WILL BE DEPARTING MDC BROOKLYN VIA PRIVATE TRANSPORTATION AT APPROXIMATELY 9:00 AM. HIS SON, CHRIS RABADI, WILL TAKE HIM TO HIS FINAL DESTINATION OF GEO CARE, INC.,
.

MR. RABADI IS AWARE THAT HE HAS 2 HOURS TO GET TO HIS DESTINATION. HE

IS ALSO AWARE THAT IN THE EVENT OF AN EMERGENCY HE IS TO CALL

EITHER THE RRC AT

OR MDC BROOKLYN

FOR

DIRECTION AND THAT HE IS NOT TO DEVIATE FROM THE TRAVEL ITINERARY.

AR 1

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AR 2

CaCsaes1e:230:2-c0v-c-0v1-0509708-R2-PDKM-RSL-AMHGDoDcuomcuemnet 8n8t 4-36 FFilieledd0055//1009//2200 PPaaggeeI1Do.7f 8120 PPaaggeeID1#o:f214047

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11 JACINTO VICTOR ALVAREZ, JOSEPH

12

BRODERICK, MARLENE CANO, JOSE CRESPO-VENEGAS, NOE

13 GONZALEZ-SOTO, VICTOR LARA-

14

SOTO, RACQUEL RAMCHARAN, GEORGE RIDLEY, MICHAEL JAMIL

15 SMITH, LEOPOLDO SZURGOT, JANE

16

DOE, on behalf of themselves and those similarly situated,

17

Plaintiffs-Petitioners,

18 v.

19 CHRISTOPHER J. LAROSE, Senior

20 Warden, Otay Mesa Detention Center, et

21 al., 22

Defendants-Respondents.

Case No.: 20-cv-00782-DMS (AHG)
ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER

23

24

This case is the second one to come before this Court concerning the detention of

25 persons in Otay Mesa Detention Center (“Otay Mesa” or “OMDC”) in light of the COVID-

26 19 pandemic. The first case, Alcantara, et. al., vs. Archambeault, et. al., No. 20cv00756,

27 concerned civil detainees in immigration custody. In that case, this Court provisionally 28 certified a subclass of medically vulnerable civil immigration detainees at OMDC and

1 20-cv-00782-DMS (AHG)

CaCsaes1e:230:2-c0v-c-0v1-0509708-R2-PDKM-RSL-AMHGDoDcuomcuemnet 8n8t 4-36 FFilieledd0055//1009//2200 PPaaggeeI2Do.7f 8130 PPaaggeeID2#o:f214048

1 found they had established a likelihood of success on their Fifth Amendment due process

2 claim in light of the conditions and their treatment at the facility. Based on that showing,

3 the Court granted the plaintiffs’ motion for a temporary restraining order and directed the

4 defendants to immediately review for release those subclass members. That process is

5 underway.

6

The claims in the present case are virtually identical to those raised in Alcantara, but

7 Plaintiffs in this case are situated differently. Unlike the plaintiffs in Alcantara, who are

8 civil immigration detainees, Plaintiffs here are criminal detainees either awaiting trial or

9 sentencing in federal court. That difference places these detainees in an entirely different

10 position from those in Alcantara, as Congress, through the Prison Litigation Reform Act

11 (“PLRA”), has imposed significant limitations on court intervention in matters that are

12 traditionally within the discretion of the Executive Branch and its prisons. There is no

13 dispute Plaintiffs are “prisoners” under the PLRA,1 and if subject to its provisions this

14 Court may not order the release of Plaintiffs. For the reasons set forth below, the Court

15 finds the PLRA applies to Plaintiffs’ claims and divests the Court of authority to grant the

16 requested relief. Accordingly, Plaintiffs’ motion for temporary restraining order is denied.

17

I.

18

BACKGROUND

19

Otay Mesa separately houses both Immigration and Customs Enforcement (“ICE”)

20 civil detainees and United States Marshall Service (“USMS”) criminal detainees. Plaintiffs

21 in this case fall into the latter category. On April 25, 2020, when the present case was filed,

22 there were approximately 340 criminal detainees at OMDC. (Mot. for TRO at 9). It

23

24

25

26 1 See 18 U.S.C. § 3626(g)(3) (defining “prisoner” as “any person subject to incarceration,
27 detention, or admission to any facility who is accused of, convicted of, sentenced for, … violations of criminal law or the terms and conditions of parole, probation, pretrial release,
28 or diversionary program”).

2 20-cv-00782-DMS (AHG)

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1 appears that as of May 5, 2020, 66 of these detainees have tested positive for COVID-19.2

2 Plaintiffs allege the virus will continue to proliferate in the detention facility because of

3 Defendants’ failure to reduce the OMDC population, maintain adequate cleaning and

4 hygiene standards, and comply with Center for Disease Control (“CDC”) guidelines for

5 detention facilities. (Id.). Plaintiffs include declarations of detainees in support of these

6 allegations.

7

As a result of Defendants’ alleged inaction in controlling the COVID-19 outbreak at

8 OMDC, Plaintiffs filed the present motion for TRO, seeking the release of the medically

9 vulnerable pretrial and post-conviction detainee subclasses. Plaintiffs define medically

10 vulnerable as individuals who are aged 45 years or older or who have medical conditions

11 that the CDC has determined increase their likelihood of becoming severely ill from

12 COVID-19. Plaintiffs allege Defendants’ failure to implement adequate measures to

13 protect detainees amounts to unconstitutional punishment in violation of the Fifth

14 Amendment and constitutes deliberate indifference to the detainees’ rights under the Eighth

15 Amendment. Defendants concede Plaintiffs’ factual allegations but contend the PLRA

16 precludes this Court from issuing the relief Plaintiffs seek. In light of Defendants’

17 arguments under the PLRA, the Court has deferred briefing on class certification and

18 declines to address the balance of Defendants’ arguments, which include arguments under

19 the PLRA for failure to exhaust remedies and Plaintiffs’ failure to seek relief under the Bail

20 Reform Act in their respective pending criminal cases. Those matters may be raised in the

21 briefing on the upcoming hearing on Plaintiffs’ motion for preliminary injunction.

22 / / /

23 / / /

24

25

26 2 Kate Morrissey, First ICE detainee dies from COVID-19 after being hospitalized from
27 Otay Mesa Detention Center, San Diego Union Tribune (May 6, 2020), https://www.sandiegouniontribune.com/news/immigration/story/2020-05-06/first-ice-
28 detainee-dies-from-covid-19-after-being-hospitalized-from-otay-mesa-detention-center.

3 20-cv-00782-DMS (AHG)

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1

II.

2

DISCUSSION

3

The purpose of a TRO is to preserve the status quo before a preliminary injunction

4 hearing may be held; its provisional remedial nature is designed merely to prevent

5 irreparable loss of rights prior to judgment. Granny Goose Foods, Inc. v. Brotherhood of

6 Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974). The standard for issuing a

7 temporary restraining order is identical to the standard for issuing a preliminary injunction.

8 Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320, 1323 (N.D.

9 Cal. 1995). Injunctive relief is an “extraordinary remedy that may only be awarded upon

10 a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def.

11 Council, Inc., 555 U.S. 7, 22 (2008). To meet that showing, Plaintiffs must demonstrate

12 “‘[they are] likely to succeed on the merits, that [they are] likely to suffer irreparable harm

13 in the absence of preliminary relief, that the balance of equities tips in [their] favor, and

14 that an injunction is in the public interest.’” Am. Trucking Ass’ns v. City of Los Angeles,

15 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter, 555 U.S. at 20).

16 A. Likelihood of Success

17

“The first factor under Winter is the most important—likely success on the merits.”

18 Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). While Plaintiffs carry the burden

19 of demonstrating likelihood of success, they are not required to prove their case in full at

20 this stage but only such portions that enable them to obtain the injunctive relief they seek.

21 See Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981).

22

Defendants contend Plaintiffs are not likely to succeed on the merits because the

23 PLRA precludes this Court from issuing the relief they seek. Specifically, Defendants

24 argue Plaintiffs are challenging the conditions of their confinement—not the fact or

25 duration of their detention—and seeking release of prisoners. As characterized,

26 Defendants argue the PLRA would apply and preclude the requested relief—as an order

27 requiring release of prisoners may not be entered except by a three-judge panel of the

28 district court and only after other less intrusive orders have failed to remedy the deprivation

4 20-cv-00782-DMS (AHG)

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1 of the federal right at issue. Plaintiffs argue habeas is the proper vehicle for the relief they

2 seek and the PLRA does not apply to habeas proceedings.

3

Plaintiffs’ argument that the PLRA does not apply to habeas proceedings is partially

4 correct. By its terms, the PLRA does not apply to habeas proceedings “challenging the

5 fact or duration of confinement in prison.” 18 U.S.C. § 3626(g)(2). The question in this

6 case, therefore, is whether the claims alleged challenge the fact or duration of Plaintiffs’

7 confinement or the conditions of Plaintiffs’ confinement. Simply invoking the habeas label

8 is not determinative, as plaintiffs may challenge either kind of claim—“fact or duration of

9 confinement” or conditions of confinement—in a habeas proceeding. See Ziglar v. Abbasi,

10 137 S.Ct. 1843, 1862-63 (2017) (leaving open the question whether detainees “might be

11 able to challenge their confinement conditions via a petition for writ of habeas corpus.”)

12

Given Plaintiffs’ allegations, the Court finds Plaintiffs’ claims rest entirely on the

13 conditions of the Otay Mesa facility. In the first paragraph of their Complaint, Plaintiffs

14 “challenge their continued detention, and the detention of all similarly situated individuals,

15 under conditions of confinement that imperil their lives in violation of the Fifth and Eighth

16 Amendments to the U.S. Constitution . . . .” (Compl. ¶ 1 (emphasis added)). Plaintiffs’

17 factual allegations focus exclusively on Defendants’ “actions and inactions” concerning

18 the “conditions of confinement” at Otay Mesa. (Id. at ¶¶ 98, 100). For example, Plaintiffs

19 discuss the “[c]leaning standards in OMDC common areas,” the scarcity of cleaning

20 supplies and hygiene products, USMS’s failure to implement CDC guidelines on

21 preventive measures, Otay Mesa’s failure to conduct widespread testing, a lack of masks

22 and gloves, and the absence of appropriate social distancing and quarantining measures.

23 (Id. at ¶¶ 10, 44, 55, 61, 62, 63, 64; see also id. at ¶ 109 (“Defendants have failed to take

24 reasonable measures to abate the risk that the [subject class members] will contract

25 COVID-19.”)). Plaintiffs note that the facility’s “conditions and population levels” place

26 the proposed class members at “a high risk of exposure” to the virus. (Id. at ¶ 72). For

27 relief, Plaintiffs seek release of “as many incarcerated persons as necessary to allow [for]

28 proper social distancing among those remaining in OMDC.” (Id. at ¶ 11; see also id. at ¶

5 20-cv-00782-DMS (AHG)

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1 12 (Plaintiffs “further request various improvements to, and ongoing monitoring of,

2 detention conditions at OMDC, and the staggered release of remaining [Plaintiffs] and

3 other class members until necessary social distancing hygiene measures can be

4 sustained.”)).

5

Plaintiffs’ claims, under any good faith calculus, cannot be characterized as a

6 “habeas corpus proceeding[] challenging the fact or duration of confinement in prison.” 18

7 U.S.C. § 3626(g)(2). Plaintiffs do not challenge the reason for their confinement, their

8 conviction or charge, the length of their sentence, or a release determination based on good

9 time credits—claims that are often characterized as “the core of habeas corpus.” Preiser

10 v. Rodriguez, 411 U.S. 475, 487 (1973). Rather, their claims are based solely on the current

11 conditions inside OMDC given the COVID-19 pandemic. In other words, unlike a claim

12 concerning the fact of confinement, Plaintiffs’ claims would not exist but for their current

13 conditions of confinement at Otay Mesa. Accordingly, the present case is not a “habeas

14 corpus proceeding[] challenging the fact or duration of confinement in prison[,]” which

15 would fall outside the purview of the PLRA. It is a habeas claim based on confinement

16 conditions.

17

Plaintiffs argue they seek release, which is a remedy traditionally provided by a writ

18 of habeas corpus. But this argument conflates the nature of relief with the substance of the

19 claim to avoid the limitations of the PLRA. Moreover, the PLRA specifically contemplates

20 “prisoner release orders” in “civil action[s]” concerning “prison conditions.” 18 U.S.C. §

21 3626(a)(3)(A). The PLRA clearly addresses both Plaintiffs’ claim and their chosen

22 remedy. See Money v. Pritzker, --- F. Supp. 3d ----, 2020 WL 1820660, at *14 (N.D. Ill.

23 Apr. 10, 2020) (stating PLRA “prevents” court from granting release of inmates based on

24 prison conditions and COVID-19); Plata v. Newsom, --- F. Supp. 3d ----, 2020 WL

25 1908776, at * 1 (N.D. Cal. Apr. 17, 2020) (similar).

26

During oral argument, Plaintiffs cited a recent Sixth Circuit case, Wilson v. Williams,

27 No. 20-3447 (6th Cir. May 4, 2020), in support of their argument that the PLRA does not

28 apply. In Wilson, federal inmates filed a petition for a writ of habeas corpus, seeking

6 20-cv-00782-DMS (AHG)

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1 release from or enlargement of their custody to limit their exposure to the COVID-19 virus.

2 Wilson, No. 20-3447. The Sixth Circuit found the inmates’ claims concerned the fact of

3 their detention, not the conditions of their confinement, because the inmates argued “no set

4 of conditions would be constitutionally sufficient.” Id. Consequently, the court found the

5 PLRA’s restrictions on the issuance of prisoner release orders did not apply.

6

The Court does not find Wilson persuasive for two reasons. First, unlike the inmates

7 in Wilson, Plaintiffs fail to argue there are no set of conditions of confinement that would

8 be constitutionally sufficient. Although Plaintiffs presented this argument at the hearing

9 on the present motion, it is not included in their Complaint or their motion for TRO. At

10 most, Plaintiffs argue it would be “structurally impossible” for OMDC detainees to socially

11 distance. (Mot. for TRO at 11; Compl. ¶ 71 (alleging “practically impossible” to protect

12 detainees)). But in their Complaint, Plaintiffs allege that a significant reduction in the

13 population of inmates would “allow [for] proper social distancing.” (Compl. ¶ 11). The

14 reasoning in Wilson, therefore, is inapplicable here.

15

Second, the Court disagrees with the proposition that there are no set of conditions

16 at Otay Mesa that would be constitutionally sufficient under the Fifth Amendment. As

17 Plaintiffs allege in their Complaint, a significant reduction in population, an increase in

18 sanitation, and compliance with CDC guidelines for detention facilities would eliminate

19 considerable risk of Otay Mesa inmates contracting COVID-19. (Id. at ¶¶ 11, 12). And,

20 of course, that is so. The Fifth Amendment prohibits punishment of detained persons prior

21 to “a formal adjudication of guilt” but cannot require a complete elimination of all risk of

22 contracting the virus. Bell v. Wolfish, 441 U.W. 520, 535 n.16 (1979) (citing United States

23 v. Lovett, 328 U.S. 303, 317–18 (1946)). Holding otherwise would place an impossible

24 burden on detention facilities.

25

Contrary to Plaintiffs’ assertion, this Court finds the present case clearly presents a

26 challenge to the conditions of Plaintiffs’ confinement at OMDC. As such, the PLRA

27 applies. See 18 U.S.C. § 3626(a)(3)(A) (stating PLRA applies to “any civil action in federal

28 court with respect to prison conditions”); Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir.

7 20-cv-00782-DMS (AHG)

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1 2016) (stating prisoner must comply with PLRA if claim challenges any “aspect of prison

2 life” other than “fact or duration of the conviction or sentence”).

3

Congress enacted the PLRA to “revive the hands-off doctrine” and restore “judicial

4 quiescence derived from federalism and separation of powers concerns” to remove the

5 judiciary from prison management. Gilmore v. California, 220 F.3d 987, 991, 996–97 (9th

6 Cir. 2000). By its terms, the PLRA “restricts the circumstances in which a court may enter

7 an order ‘that has the purpose or effect of reducing or limiting the prison population.’”

8 Brown v. Plata, 563 U.S. 493, 511 (2011). As noted by the Supreme Court in Plata, “[t]he

9 release of prisoners in large numbers … is a matter of undoubted, grave concern.” Id. at

10 501. The PLRA specifically requires courts to give “substantial weight to any adverse

11 impact on public safety or the operation of a criminal justice system caused by” the release

12 of prisoners. 18 U.S.C. § 3626(a)(1).

13

There is no dispute the PLRA is restrictive. It limits the Court’s authority to order

14 release of prisoners “[i]n any civil actions with respect to prison conditions.” 18 U.S.C. §

15 3626(a)(3)(A). It provides, “no court shall enter a prisoner release order unless . . . (i) a

16 court has previously entered an order for less intrusive relief that has failed to remedy the

17 deprivation of the Federal right sought to be remedied. . . ; and (ii) the defendant has had a

18 reasonable amount of time to comply with the previous court orders.” Id. It precludes

19 prisoner release orders unless “entered [] by a three-judge court.” Id. § 3626(a)(3)(B). In

20 addition, before entering such an order, the three-judge panel must first find, by clear and

21 convincing evidence, “(i) crowding is the primary cause of the violation of a Federal right;

22 and (ii) no other relief will remedy the violation of the Federal right.” Id. § 3626(a)(3)(E).

23 Finally, the PLRA defines “prisoner release order” in expansive terms to include “any order

24 … that has the purpose or effect of reducing or limiting the prison population, or that directs

25 the release from … a prison.” Id. § 3626(g)(4). These limitations “ensure that the ‘last

26 resort remedy’ of a population limit is not imposed ‘as a first step.’” Plata, 563 U.S. at

27 514 (quoting Inmates of Occoquan v. Barry, 844 F.2d 828, 843 (D.C. Cir. 1988)).

28

8 20-cv-00782-DMS (AHG)

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1

Here, Plaintiffs are challenging confinement conditions and requesting release. The

2 substance of their claim and form of relief fall squarely within the purview of a “prisoner

3 release order” under the PLRA. Because the Court may not grant the requested relief,

4 Plaintiffs have failed to establish a likelihood of success on the merits of their claim.

5 B. Remaining Injunctive Relief Factors

6

The next three factors require Plaintiffs to demonstrate they are “likely to suffer

7 irreparable harm in the absence of preliminary relief,” the “balance of equities tips in [their]

8 favor” and the “public interest favors granting an injunction.” Hernandez, 872 F.3d at 995,

9 996 (internal quotations omitted). Given, however, that Plaintiffs have failed to show at

10 “an irreducible minimum that there is a fair chance of success on the merits[,]” the Court

11 cannot enter injunctive relief based on these remaining three factors. Martin v. Int’l

12 Olympic Comm., 740 F.2d 670, 675 (9th Cir. 1984). Nevertheless, the Court briefly

13 addresses these factors below.

14

Turning to likelihood of irreparable injury, recent reports indicate that as of May 5,

15 2020, 66 criminal detainees in OMDC have tested positive. COVID-19 is highly

16 contagious. (Mot. for TRO at 15). Individuals are capable of spreading the virus, despite

17 being asymptomatic themselves. (Id.). Moreover, individuals who are medically

18 vulnerable—including the subclass members seeking relief here—face a heightened risk

19 of serious injury or death upon contracting COVID-19. (Id. at 13). None of this is disputed.

20 A strong showing of likelihood of irreparable injury standing alone, however, cannot

21 trigger the issuance of injunctive relief. Without “serious questions” as to the likelihood

22 of success on the merits, the Court cannot issue a TRO. All for the Wild Rockies v. Pena,

23 865 F.3d 1211, 1217 (9th Cir. 2017).3

24

25

26 3 The Court also notes that as pretrial and convicted but yet to be sentenced detainees,
27 Plaintiffs have remedies available to them under the Bail Reform Act, (18 U.S.C. §§ 3142 and 3143). Plaintiffs can seek release under appropriate conditions before the judge to
28 whom their case is assigned. Accordingly, Defendants argue Plaintiffs have a legal remedy

9 20-cv-00782-DMS (AHG)

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1

Plaintiffs also do not satisfy the remaining two factors of injunctive relief. The

2 Supreme Court has held that where the government is the party opposing an injunction, the

3 balance of the equities and public interest injunctive relief factors tend to merge. See Nken

4 v. Holder, 556 U.S. 418, 435 (2009); Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073,

5 1092 (9th Cir. 2014). Here, the Court could not issue injunctive relief without unfairly

6 intruding on Defendants’ operation of the prison system and defying Congress’s clear

7 policy determinations regarding challenges to prison conditions and prisoner release

8 orders. In addition, the public interest does not favor the immediate release of a class of

9 inmates who may lack viable housing outside of OMDC and may be deprived of access to

10 food, means of personal hygiene, and medical care if released, all at once, from the facility.

11 Plaintiffs have failed to meet their burden of demonstrating the injunctive relief factors

12 weigh in favor of granting a TRO.4

13

III.

14

CONCLUSION AND ORDER

15

For these reasons, Plaintiffs’ motion for temporary restraining order is denied.

16 IT IS SO ORDERED.

17

18 Dated: May 9, 2020

19

20

21

22

23

24

25 and have not suffered irreparable harm. The Court defers ruling on this factor pending further briefing on preliminary injunction.
26 4 Plaintiffs have alleged alternative relief in the form of enlargement, “in which an
27 individual remains in custody, but the place of custody is enlarged by the Court.” (See Comp. ¶ 81.) That relief was not requested in the TRO. The Court therefore defers ruling
28 on that issue pending briefing on preliminary injunction.

10 20-cv-00782-DMS (AHG)

 
 Case 1:20-cv-01590-RPK-RLM Document 90 Filed 05/11/20 Page 1 of 12 PageID #: 2662

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF; ELODIA LOPEZ; and JAMES HAIR,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 1590

REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF PETITIONERS’ MOTION FOR A PRELIMINARY INJUNCTION

Emery Celli Brinckerhoff & Abady LLP 600 Fifth Avenue, 10th Floor New York, New York 10020 (212) 763-5000
Cardozo Civil Rights Clinic Benjamin N. Cardozo School of Law 55 Fifth Avenue, 11th Floor New York, NY 1003 (212) 790-0871

Debevoise & Plimpton LLP 919 Third Avenue New York, New York 10022 (212) 909-6000
Alexander A. Reinert 55 Fifth Avenue, Room 1005 New York, NY 10003 (212) 790-0403

Case 1:20-cv-01590-RPK-RLM Document 90 Filed 05/11/20 Page 2 of 12 PageID #: 2663
INTRODUCTION Respondent’s opposition to Petitioners’ Motion for Preliminary Injunction relies on meritless legal arguments and self-serving declarations that do not rebut the substantial evidence already presented by Petitioners, much of which comes from people who are living out this crisis on a daily basis at the MDC and who are seeking nothing other than protection from harm in the face of a global pandemic. The Court should grant Petitioners’ requested preliminary injunction.
ARGUMENT To establish an entitlement to relief at this preliminary stage, Petitioners need not “prove [their] case in full,” University of Texas v. Camenisch, 451 U.S. 390, 395 (1981), but need only show that they have a likelihood of succeeding on their Eighth Amendment claim, that they will suffer irreparable harm in the absence of an injunction, and that the balance of equities are in their favor, see, e.g., Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir. 2011). Respondent does not contest that the risk of exposure to and contraction of COVID-19 is serious enough to constitute an objectively serious harm under the Eighth Amendment. Respondent’s claim that a preliminary injunction would interfere with the smooth functioning of the MDC is undermined by his contention—which Petitioners vigorously dispute—that he already is taking many of the steps that Petitioners have established are necessary. Respondent’s factual contentions are principally based on aspirational goals expressed by the MDC’s Rule 30(b)(6) witnesses, not on actual practices, and many are contradicted by those same witnesses. Respondent cannot rebut the substantial first-hand accounts of dozens of different people housed in different units and floors from inside the MDC. Tellingly, Respondent does not even discuss those declarations, even though “hearsay testimony is

Case 1:20-cv-01590-RPK-RLM Document 90 Filed 05/11/20 Page 3 of 12 PageID #: 2664
admissible to support the issuance of a preliminary injunction.” Mullins v. City of New York, 626 F.3d 47, 48 (2d Cir. 2010).1 I. RESPONDENT’S LEGAL ARGUMENTS ARE WITHOUT MERIT
Respondent begins by making the bold claim that Petitioners’ entire request for preliminary injunctive relief must be denied, because it “effectively gives Petitioners a final judgment on the merits.” Resp. Mem. Opp. Prelim. Inj. (“Resp. Mem.”) 5. Respondent has no support for this proposition. Neither of the cases he cites suggests that the Court cannot grant preliminary relief that overlaps completely with the relief sought at final judgment—indeed, such preliminary relief is common in the civil rights context.2 See, e.g., Jolly v. Coughlin, 76 F.3d 468, 471 (2d Cir. 1996) (affirming district court’s grant of preliminary injunctive relief in prison civil rights case); see also New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015) (upholding preliminary injunction that granted plaintiffs “substantially all the relief they ultimately sought” (quotation marks and citation omitted)).
As this Court knows, the standard for evaluating Petitioners’ claims is not whether Respondent’s conduct “shock[s] the contemporary conscience,” Resp. Mem. 2, 6 (citing Charles v. Orange County, 925 F.3d 73, 85 (2d Cir. 2019)), but deliberate indifference, which includes both an objective and a subjective prong. There is no real dispute about the objective prong.
1 For this reason, among others, Respondent’s suggestion that the Court disregard declarations submitted by Petitioners as “hearsay” is misplaced. 2 In Camenisch, the Supreme Court merely concluded that it lacked jurisdiction to consider a mooted preliminary injunction decision because a decision on a motion for preliminary injunction is not a final judgment on the merits. 451 U.S. at 394-95. And WarnerVision Entm't Inc. v. Empire of Carolina, Inc. simply stands for the proposition, in a case involving intellectual property rights, that a court should not grant a preliminary injunction that would “effectively and permanently terminate” the rights of the opposing party. 101 F.3d 259, 262 (2d Cir. 1996). That is not the case here, where a grant of Petitioners’ request for injunctive relief could be revisited at a later stage, after full discovery and a full hearing on the merits.
2

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Respondent effectively concedes, as he must, that the risk of exposure to and contraction of COVID-19 is serious enough to constitute an objectively serious harm.
Respondent claims that he has not been deliberately indifferent, relying on generalized facts not responsive to Petitioners’ extensive submissions, and asserting that “BOP has already taken critical steps to successfully prevent the spread of COVID-19 at the MDC.” Resp. Mem. 8. As set forth below, Respondent’s litany of BOP policies cannot rebut the fact that Respondent has no grasp on the actual scope of the pandemic inside the MDC, because it fails to track, screen, test, treat, or otherwise respond to people who are symptomatic with COVID-19. In an injunctive case, deliberate indifference is determined by prison officials’ “attitudes and conduct at the time suit is brought and persisting thereafter.” Farmer v. Brennan, 511 U.S. 825, 845 (1994).3
The remainder of Respondent’s legal arguments either do not join issue with Petitioners’ contentions or are irrelevant. Respondent relies on the arguments made in his motion to dismiss, but as Petitioners demonstrate in their opposition to that motion, none of Respondent’s arguments casts doubt on the Court’s jurisdiction, nor do they address Petitioners’ entitlement to injunctive relief (as opposed to relief from custody). See generally Pet’rs. Mem. Opp. Mot. Dismiss (Dkt. 85). Indeed, Respondent does not attempt to distinguish the numerous cases that
3 Moreover, if there is reason to believe that Respondent’s COVID-19 response is motivated by litigation and could change or stop absent court intervention, as the evidence of pre-inspection preparations suggest, (see Reinert Ex. 1 (Sanon Decl. ¶¶ 21-22)), the Court should not hesitate to order appropriate injunctive relief based on the entirety of the factual context before it. See, e.g., Mays v. Dart, No. 20 Civ. 2134, 2020 WL 1987007, at *29 (N.D. Ill. Apr. 27, 2020) (converting TRO to preliminary injunction despite apparent compliance with TRO because “without a court order, there is at least a possibility that these important measures could slip to the wayside, despite the Sheriff’s best intentions”); Abbott Labs. v. Adelphia Supply USA, No. 15 Civ. 5826, 2015 WL 10906060, at *13 (E.D.N.Y. Nov. 6, 2015) (granting preliminary injunction despite remedial efforts by defendant because they did not “eliminate all cognizable dangers of a recurrent violation.”).
3

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have granted relief similar to that sought by Petitioners here.4 Respondent also continues to mischaracterize Petitioners’ Special Master request. A Special Master need not be vested with any authority that dilutes this Court’s power, and appointing a Special Master is well within this Court’s discretion. Pet’rs. Mem. Supp. Prelim. Inj. (“Pet’rs. Mem.”) 28-29 (Dkt. 73).
Finally, Petitioners have fully addressed Respondent’s arguments regarding class-wide relief in opposition to his motion to dismiss. There is nothing extraordinary about ordering classwide relief for a class of current and future incarcerated people, making untenable Respondent’s ascertainability argument. See, e.g., Butler v. Suffolk Cty., 289 F.R.D. 80, 101 (E.D.N.Y. 2013) (class including future detainees met ascertainability requirement); see also Nunez v. City of New York, No. 11 Civ. 5845, 2015 WL 10015955, at *2 (S.D.N.Y. July 10, 2015) (certified class of all present and future people detained in New York City jails). Further, Petitioners seek only conditional certification of the class at the preliminary injunction stage, not formal class certification. Contra Resp. Mem. 26. The Court can conditionally certify the class, with the understanding that it can alter or amend the certification before a final decision on the merits, see Damus v. Nielsen, 313 F. Supp. 3d 317, 329 (D.D.C. 2018), because the Rule 23 requirements are easily met here. Pet’rs. Mem. 31-35. And Respondent does not even respond to the authority cited by Petitioners establishing that this Court has the power to order class-wide relief even if does not conditionally certify the class. Pet’rs. Mem. 30-31. II. RESPONDENT'S FACTUAL CONTENTIONS DO NOT REBUT PETITIONERS’
SUBSTANTIAL EVIDENCE In their moving papers, Petitioners presented overwhelming evidence, including more than 30 declarations from people inside the MDC, to establish Respondent’s deliberate
4 Respondent notes, correctly, that the Eleventh Circuit recently issued a stay in one COVID-19 case, but the court’s decision was based on legal errors by the district court and plaintiff’s failure to adduce evidence of deliberate indifference. Swain v. Junior, No. 20 Civ. 11622, 2020 WL 2161317, at *4-5 (11th Cir. May 5, 2020).
4

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indifference. Pet’rs. Mem. 6-16. Respondent does not dispute much of this evidence. Respondent concedes that the MDC has tested only a paltry number of incarcerated people, and that it has no set protocol for when a test is indicated. Vasquez Tr. 120. Respondent concedes that the number of positive tests it has reported to this Court understates the number of people who have contracted COVID-19 at the MDC, even as the government continues to repeat those figures in submissions filed throughout the Southern and Eastern Districts. Vasquez Tr. 62-63; United States v. Rodriguez, 16 Cr. 167, Dkt. 331 (S.D.N.Y. April 7, 2020) (opposing compassionate release for Petitioner Rodriguez based, in part, on the low number of positive tests within the MDC).5 And Respondent concedes that it does not track the reporting of symptoms consistent with COVID-19 in the facility and that he has no idea how many people have reported symptoms consistent with COVID-19. Vasquez Tr. 65-66; 94-95; see also Reinert Ex. 2 (Resp.’s Response to Interrogatory 1(f) (April 27, 2020) (confirming that BOP does not track COVID-19 symptoms)). Other federal facilities, where testing has been expanded, report much higher incidence of COVID-19 infection. See 70% of inmates test positive for coronavirus at Lompoc federal prison, L.A. Times (May 9, 2020).6
Respondent ignores the declarations submitted by Petitioners and, bizarrely, takes positions that contradict his own witnesses. Petitioners submitted ample information that the MDC has failed to test, or treat as presumptively positive, numerous people who have reported symptoms consistent with COVID-19. Pet’rs. Mem. 6 (citing declarations). And Respondent has essentially conceded that this is true. Vasquez Tr. 65-66. Respondent has even conceded
5 Respondent conflates the number of positive tests that it reports to Chief Judge Mauskopf with the “incidence of infection” at the MDC. Resp. Mem. 15 n.16. As Respondent’s own witnesses have testified, the number of positive tests does not include presumed positives or people who have reported symptoms consistent with COVID-19. 6 Richard Winton, 70% of Inmates Test Positive for coronavirus at Lompoc federal prison, L.A. Times, May 9, 2020. https://www.latimes.com/california/story/2020-05-09/coronavirus-cases-lompoc-federal-prison-inmates.
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that one tell-tale symptom of COVID-19—loss of a sense of taste or smell—is not treated as an emergent condition and will be responded to on average within two and a half weeks. Vasquez Tr. 195-96. One Petitioner repeatedly reported symptoms consistent with COVID-19, but was never tested or put in isolation, and upon his release from the MDC, had antibody testing indicating that he had in fact contracted COVID-19. Reinert Ex. 3 (Rodriguez Decl. ¶¶ 7, 17).
Respondent has engaged in these practices even for people it has identified as at high-risk of COVID-19 complications. Respondent concedes that it has taken no additional steps to protect Vulnerable Persons from COVID-19. Vasquez Tr. 207-209. Respondent has even declined to investigate whether someone is positive with COVID-19 in dorm-style housing units where social distancing is fundamentally impossible, not because it is medically indicated but because of fear of creating panic in that setting. Pet’rs Mem. 7.
Nor has Respondent rebutted the evidence of inadequate screening throughout the MDC. Respondent’s own 30(b)(6) witness confirmed Petitioners’ evidence that daily temperature checks are not taking place in the general population units. Vasquez Tr. 48; 210-12. Respondent claims that medical staff are performing “twice-daily rounds” in general population, citing Dr. Beard’s report (Resp. Mem. 16), but even if Dr. Beard had any basis for drawing that conclusion, he makes no such claim. See Beard Report at 6 (stating that medical staff pick up sick calls and run pill lines in general population). Petitioners have provided evidence that staff screening is ineffective as well. Pet’rs Mem. 13; Reinert Ex. 1 (Sanon Decl. ¶¶ 10-13).
Although Respondent claims that it conducts both temperature checks and wellness checks in the quarantine and isolation units, Petitioners have submitted ample evidence to the contrary. Pet’rs. Mem. 8. Respondent has not rebutted that with evidence from anyone with personal knowledge. Even if wellness checks are occurring (as Respondent asserts but has never
6

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documented), they are woefully insufficient. As Respondent’s witness explained, medical staff allegedly take only one hour to complete temperature and wellness checks on a unit of 124 people, checks often are done through the food slot, and medical staff do not have any particular questions they are expected to ask other than how the person is feeling. Vasquez Tr. 43, 81; see also Reinert 11 (Supplemental Declaration of James Hair ¶ 17). Nothing supports Respondent’s contention that incarcerated people “have had ample opportunity to meet with and talk to medical staff during those rounds.” Resp. Mem. 16.
Respondent does not make any effort, through expert testimony or otherwise, to respond to Petitioners’ substantial evidence that the MDC’s sick call system is broken and defective. Venters Rep ¶¶ 16-33. Respondent simply states that it has a sick call system and that the medical staff “triage the requests.” Resp. Mem. 16. Respondent alleges that emergent medical conditions are responded to immediately (despite conceding that the emergency call buttons do not work in many cells), but their support for that position is based on policy, not on actual practice. Vasquez Tr. 52, 54 (basing answers on what policy is and not what she has observed). Petitioners’ numerous declarations show that Respondent’s actual practice is one of indifference, not urgency. Pet’rs. Mem. 15-16; see also Reinert 11 (Supplemental Declaration of James Hair ¶¶ 3-6, 17.)
Respondent cites the deposition of A.W. King in support of its arguments that the MDC is complying with relevant guidelines regarding PPE. But throughout her deposition, A.W. King testified only to expectations of staff and incarcerated people regarding what PPE should be worn, not the reality of what was in fact taking place. See King Tr. 70, 73 (describing “expectation” that staff should be wearing PPE); id. at 81 (“any staff who go up [to the isolation unit] knows that they should be wearing PPE”); id. at 77 (stating that “officers shouldn't be
7

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allowing [people] to come out of their cells without masks”); see also Vasquez Tr. 96 (no one monitors staff compliance with appropriate infections disease protocol when they move between units). Testimony regarding “expectations” of whether people working or housed at the MDC are wearing certain PPE does not contradict the evidence presented by Petitioners that people at the MDC do not in fact have access to and are not wearing appropriate PPE.
The same is true of testimony regarding cleaning practices at the MDC, which focused on procedures and expectations, not reality. See e.g., King Tr. 54 (“right now it is our expectation for [orderlies] to clean daily”); id. at 56 (describing “expectation” that incarcerated people clean common area regularly); id. at 56 (describing “expectation” that computers will be cleaned after each use). Again, none of this contradicts Petitioners’ evidence that routine cleaning between use of common areas is not in fact taking place.
With regard to personal hygiene and cleaning supplies, A.W. King similarly testifies only to the theoretical availability of these items. See, e.g., King Tr. 24 (attesting to opportunity to request soap from unit team). But even A.W. King admits that the MDC’s procedures do not ensure that people have soap, and that the MDC is not providing people with greater access to soap during the pandemic than it ordinarily does. See King Tr. 26 (testifying that soap is only provided to those who ask); id. at 27 (stating that MDC has not changed its schedule for restocking soap on units) id. at 35 (confirming that there is no hand sanitizer in units).
Respondent makes other factual claims that are unsupported or contradicted by his own witnesses. It is simply not the case that any person who has COVID-19 symptoms is placed in isolation, (Resp. Mem. 9). See Vasquez Tr. 65-66 (reporting that there are people who have expressed COVID-19 symptoms who have not been placed into isolation). Even according to the sick-call records that still exist, Respondent has received more than 150 reports of COVID-
8

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19 symptoms since March 13, yet, by its own calculation, it has placed only 19 people in isolation to date. Reinert Ex. 2 at 3 (response to Interrogatory 1(a)). Since MDC has shred hundreds of requests for medical care made since the pandemic began, Respondent does not even know who, when, or how many people even reported such symptoms to date. As Ms. Vasquez confirmed, there are no written guidelines that mandate who the MDC tests, and they have not tested, or even presumed as positive, every person who presents with COVID-19 symptoms. Vasquez Tr. 120. And while Respondent has identified a group of high-risk incarcerated people, Respondent has not taken any additional steps to protect them from COVID-19. Respondent has conceded that they do not cohort the high-risk group together because the group is too large to do so. Vasquez Tr. 207-09.
As for social distancing, again Respondent claims to have promoted social distancing but has provided no evidence that incarcerated people are in fact able to social distance when they are on the unit. Ms. Vasquez confirmed that the computers on each unit cannot be used while people practice social distancing and that she can only presume people social distance because they have been instructed to. Vasquez Tr. 83-84; see also King Tr. 97-101 (describing factors that make social distancing impossible in women’s unit).
Respondent does not rebut Petitioners’ evidence establishing that the MDC’s screening procedures are inadequate. First, when Respondent determines that an incarcerated person is positive for COVID-19 (either through a test or through being deemed presumptively positive), the MDC deems only the person’s cell-mate to be in “close contact” with him for purposes of follow-up and contact tracing. Vasquez Tr. 85-87. This approach ignores the impossibility of social distancing at the MDC. See Vasquez Tr. 83-84. Sanchez Decl. ¶¶ 13-18. (two sick people on unit who were later tested and presumed positive had contact with many in unit for five days
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before receiving medical care). Second, contrary to Respondent’s claims that staff are screened for fever or symptoms (Resp. Br. at 19), only a fever bars staff from entering a facility. And Respondent concedes that he does not ask staff whether they have been exposed to people who have the disease and are therefore at risk of spreading the disease, even if they are asymptomatic. (Vasquez Tr. 136, 139).
Finally, the opinions of Respondent’s two experts, neither of whom have any medical expertise, do not justify denying a preliminary injunction. As Dr. Homer Venters notes in his supplemental declaration (filed herewith), Respondent’s experts fail to meaningfully address multiple findings in his report, especially those that relate to the medical care that is actually being provided to those within the MDC, the MDC’s broken sick call system, the MDC’s protections for high-risk individuals, and the lack of care for people in isolation units. See Reinert Ex. 6 (Supplemental Declaration of Dr. Homer Venters).
CONCLUSION For the foregoing reasons, Petitioners respectfully request that the Court grant their motion for preliminary injunction.

Dated: May 11, 2020 New York, New York

EMERY CELLI BRINCKERHOFF & ABADY LLP
By: /s/ Katherine Rosenfeld Katherine Rosenfeld O. Andrew F. Wilson Samuel Shapiro Scout Katovich 600 Fifth Avenue, 10th Floor New York, NY 10020 (212) 763-5000
CARDOZO CIVIL RIGHTS CLINIC Betsy Ginsberg
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Cardozo Civil Rights Clinic Benjamin N. Cardozo School of Law 55 Fifth Avenue, 11th Floor New York, NY 1003 (212) 790-0871 Alexander A. Reinert 55 Fifth Avenue, Room 1005 New York, NY 1003 (212) 790-0403 Debevoise & Plimpton LLP Yeugenia (Jane) Shvets 919 Third Avenue New York, New York 10022 (212) 909-6000 Attorneys for Petitioners and Putative Class
11

 
 Case 1:20-cv-01590-RPK-RLM Document 91-6 Filed 05/11/20 Page 1 of 13 PageID #: 2701
Exhibit 6

Case 1:20-cv-01590-RPK-RLM Document 91-6 Filed 05/11/20 Page 2 of 13 PageID #: 2702

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF; ELODIA LOPEZ; and JAMES HAIR,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 01590
SUPPLEMENTAL REPORT OF DR. HOMER VENTERS

1. I have reviewed the expert reports of Dr. Jeffrey A. Beard dated May 6, 2020 (“Beard-I”) and Ms. Asma Tekbali dated May 6, 2020 (“Tekbali-I”). I have also reviewed the Assessment of Metropolitan Detention Center, Brooklyn, New York, COVID-19 Response by N.C. English dated May 2, 2020 (“MDC 1-13”). In addition, I have also reviewed the documents referenced in this supplemental report, specifically declarations of people incarcerated at the MDC filed in this case, copies of paper sick-call records from April 24 through April 28, 2020.
2. My original report contained numerous observations of deficiencies in the MDC COVID-19 response, which can be synthesized into three main points. None of the points made in the expert reports provide convincing or meaningful rebuttal of these three central concerns.
a. The BOP sick call system fails to respond appropriately to COVID-19 complaints among detained people, either to provide timely and adequate

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care, or integrate these complaints into tracking of the COVID-19 outbreak inside the facility. b. The BOP has failed to implement adequate protections for people known to be at high risk for serious illness and death from COVID-19. c. People identified as having COVID-19 do not receive regular medical encounters or care. 3. With regard to the concern that the BOP utilizes a broken sick call system at MDC that fails to provide timely and adequate response for individual patients with symptoms of COVID-19 and also fails to integrate sick call information into tracking of the outbreak. a. Neither expert rebutted reports by detained people that the housing area temperature checks have slowed in frequency from twice daily, to less than daily. b. Neither expert addressed or explained the lack of sick-call information being retained into patient records or being utilized for tracking of the outbreak. The National Commission on Correctional Health Care, which accredits some BOP facilities, addresses the retention and documentation of sick call requests in the following manner: “Without documentation of these steps, it is not possible to evaluate the responsiveness of your sickcall system, and if you are seeking accreditation, to determine if you are in compliance. Request slips are usually filed in the health records and begin the documentation trail. If you do not file the slips in the record, a log may be kept to monitor the stages of the response. The log needs to include the request date, date and result of triage, date of the sick-call visit
2

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if required, etc.” The NCCH further identifies that “you should have documentation of compliance, either through the health records or through logs spanning three years.”1 c. This correctional standard of retaining sick call records is not limited to facilities that receive NCCHC accreditation. For example, in the New York City jail system (in which most facilities are not NCCHC accredited), retention of sick call information is mandated for three years as a matter of local law via the NYC Board of Correction Standards.2 4. Neither expert rebutted the specific instances reported by persons I spoke with concerning their repeated attempts to receive care when reporting clear COVID-19 symptoms through the sick call process. Neither expert provided any data to indicate that MDC is able to track who requests sick call, who receives sick call encounters, when they occur, and whether their encounters are clinically appropriate. I reviewed an additional approximately 30 declarations by people detained at the MDC, and 21 of them reported that they had submitted sick-call requests that were not responded to.3 I also reviewed 32 of the paper sick call requests submitted since MDC agreed to start retaining those records, and found 7 that included complaints of COVID-19 symptoms. 5. Neither expert adequately addressed the lack of symptom screening in housing area temperature checks, other than to reference undefined and undocumented “wellness
 1 https://www.ncchc.org/documentation 2 http://library.amlegal.com/nxt/gateway.dll/New%20York/rules/title40boardofcorrection/chapter3healthcare minimumstandards?f=templates$fn=default.htm$3.0$vid=amlegal:newyork_ny$anc=JD_T40C003 3 Declaration of K. Rosenfeld that includes declarations by people detained in MDC, among which the following reported submitting sick call requests that were not responded to: A. Rabadi; C. Castillo; D. Needham; D. Sanchez; H. Chunn; H. Soria; J. Deutsch; J. Dixon; J. Hair; J. Olivera; J. Singer; K. Nelson; L. Whitley; R. Molina; R. Pierson; R. Watson; T. Carpenter; T. Miller; V. Sojos-Valladares; W. Finch; and Y. Platt.
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checks.” If there is such an encounter as a wellness check, nursing staff should document that it occurs, and they should have standardized questions they ask. Simply directing staff to “check on” or otherwise ask if someone is “ok” as they pass through a unit is not productive, and in my experience overseeing health staff who conducted housing area rounds in 13 jails, this type of approach is not a meaningful way to detect, respond to and track health symptoms.
6. My concern in this respect is based on conversations with detained people who reported that they had COVID-19 symptoms when their temperatures were taken and despite reporting them to the nursing staff conducting temperature checks, they were ignored. CDC guidelines for correctional health settings (“Verbal screening and Temperature Check”) are clear that symptoms of COVID-19 should be elicited as well as temperature.4 This is the practice on intake and should be the practice in housing areas. Multiple detainees reported that they were not asked about, and even were ignored when they reported, common symptoms of COVID-19, including shortness of breath. If the MDC seeks to know the full extent of COVID-19 inside the facility, it should elicit and address the COVID-19 symptoms of patients in the manner clearly prescribed by the CDC. I reviewed an additional approximately 30 declarations by people detained at MDC, and 13 of them reported that they only been screened through temperature checks, not symptom checks.5
7. This repeated lack of response to COVID-19 symptoms was reported but the only two patients in the isolation unit at the time of my inspection, and they made clear that the lack
 4 https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/index.html 5 Declaration of K. Rosenfeld that includes declarations by people detained in MDC, among which the following reported having their temperature checked but not being asked about COVID-19 symptoms; E. Lopez; H. Chunn; H. Soria; I. Hall; J. Deutsch; J. Dixon; K. Nelson; R. Pierson; S. Bynum; T. Carpenter; T. Miller; V. Sojos Valladares; and Y. Platt.
4

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of response to their repeated complaints of COVID-19 symptoms likely cause increased risk of exposure to other detained people and staff in their original housing area.
8. The combination of a broken sick call system, and inadequate housing area screenings likely results in an underappreciation of the true extent of COVID-19 infection in the MDC. The rapid spread of COVID-19 throughout correctional facilities is no longer a disputed outcome. In Chicago and New York City jails, where testing is not universal, already 12.3% and 9.6% respectively of detained people have tested positive. In the MDC, only 6 cases of COVID19 have been detected, despite 36 cases among staff. Based on my review of other settings, while the absolute number of staff versus detainee cases may not be the same, I would expect the rates of increase to be roughly similar. Instead, at the MDC, we see that the number of cases among detained people remains flat, despite ongoing reporting of COVID-19 symptoms and rising levels amongst staff.

TotalNumberofCases

TotalReportedCOVIDͲ19CasesatMDCBrooklynPer WardenEdge'sResponsestoEDNYAdministrativeOrder
40 35 30 25 20 15 10
5 0

Date

InmatePositives(ReporttoCourt)

StaffPositives(ReporttoCourt)

2ͲApr 3ͲApr 4ͲApr 5ͲApr 6ͲApr 7ͲApr 8ͲApr 9ͲApr 10ͲApr 11ͲApr 12ͲApr 13ͲApr 14ͲApr 15ͲApr 16ͲApr 17ͲApr 18ͲApr 19ͲApr 20ͲApr 21ͲApr 22ͲApr 23ͲApr 24ͲApr 25ͲApr 26ͲApr 27ͲApr 28ͲApr 29ͲApr 30ͲApr 1ͲMay 2ͲMay 3ͲMay 4ͲMay 5ͲMay

9. Given the rapid and overwhelming spread of COVID-19 throughout correctional facilities, it is inconceivable to me that present practices and data from the MDC reflect anything other than the undetected spread of this virus.

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10. I have also reviewed the declaration of Justin Rodriguez, who I initially spoke with during my inspection on April 23. Mr. Rodriguez reports that he was in a shared cell in housing area 53 in March 2020 when he started to feel ill, including symptoms of shortness of breath, feeling feverish, chills, weakness and loss of sense of smell, all of which are symptoms of COVID-19 according to the CDC.6 Mr. Rodriguez reports that he asked for sick call slips 5 or 6 times from correction officers as well as the nurses who passed to take his temperature each day. His requests were never met and he was both unable to obtain a sick call slip to fill out, and also unable to get any medical attention for his COVID-19 symptoms. He reports experiencing these symptoms for approximately 2 weeks, and being told by security staff “If you don’t have a fever, you can’t get no medical attention.” Mr. Rodriguez was ultimately transferred to the isolation unit because of an elevated temperature, after spending approximately two weeks experiencing COVID-19 symptoms, being on a housing area with other detained people and staff, and never receiving assessment or care. Once on the isolation unit, Mr. Rodriguez reports being locked in his cell for 24 hours per day, with the exception of a shower every three days, and without any medical encounters occurring. He reports being discharged home where he took a COVID-19 antibody test which was positive, the results of which I reviewed. This case is a disturbing example of how patients who are ill with COVID-19, and who report their symptoms to health staff, are actively ignored unless they happen to have an elevated temperature at the time health staff pass by. This case also clarifies the manner in which MDC’s broken sick call system, and reliance on temperature-only screenings denies individual COVID-19 patients the care they need, and also dramatically increases the risk of COVID-19 transmission to staff and other detained people.
 6 https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html
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11. I have also reviewed the statements by MDC staff concerning the availability of COVID-19 tests. The deposition of HSA Vasquez indicates that MDC has access to 9-10 COVID-19 tests. This represents an unacceptable and far too low capacity for testing. Many BOP facilities have tested and identified hundreds of COVID-19 cases across the nation. In New York City, testing is now being offered to anyone who thinks they may have or did have COVID-19. Given the lack of clarity and competence surrounding responding to obvious COVID-19 symptoms among detained people at the MDC, there is a pressing need to immediately expand testing for COVID-19, as I outlined in my original report.
12. Neither expert report provided convincing rebuttal of my concern that the BOP has failed to implement adequate protections for people known to be at high risk for serious illness and death from COVID-19. The CDC and the BOP itself acknowledge that a subset of detained people is at increased risk of serious illness and death from COVID-19. As people held in BOP facilities have started to die from COVID-19 infection, the BOP itself has identified that many of these people were in high risk groups based on their pre-existing health problems.7
13. While there maybe be disagreement about the exact definitions used to identify people who are at high risk, there is no dispute that some people are high risk. For example, Taklabi report states that pregnant women are not considered high-risk, but the BOP’s own pandemic influenza plan, and the Department of Homeland Security’s own COVID-19 plan do identify pregnant women as high-risk.8 Nonetheless, the MDC has failed to enact any increased level of protections for these patients, despite full knowledge of who they are, and that they face increased risk for serious illness or death. The specific measures I called for to address this issue
 7 https://www.bop.gov/resources/press_releases.jsp 8 EOIR Interim Guidance April 4, 2020 and https://www.bop.gov/resources/pdfs/pan_flu_module_3.pdf
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include: (i) testing of high-risk patients; (ii) placement of high-risk patients into specialized housing areas based on their test results; (iii) twice daily sign and symptoms checks; and (4) increased infection control training and practices for staff working in these units.
14. Both expert reports challenge the very idea of cohorting high risk patients as an infection control response. Cohorting patients based on risk factors is an essential and common practice in correctional settings, including in outbreak response. I have managed numerous outbreaks in correctional settings and view this as a critical tool in protecting the most vulnerable patients. Even the BOP’s own pandemic influenza plan anticipates that patients may be cohorted based on chronic health problems such as diabetes.9 This approach is not only important to create increased levels of protection, but to provide higher levels of screening and surveillance. Cohorting high-risk patients does not mean that they are to be transferred from single cell settings to open dorms. In fact, the use of single cell housing areas for high risk patients is beneficial, but the MDC’s practice of having high-risk patients spread throughout the facility, and often in double bunk cells, means that there is no special or heightened surveillance of their health status. This is especially important given the failures of the MDC to provide screenings in these areas, including the lack of symptom screening and the lapses even in their sole area of focus, temperature screening.
15. The two expert reports did not address the lack of care for people in the isolation unit identified as having COVID-19. Review of medical records and speaking with people on the isolation unit reveal that once identified as having COVID-19 or being identified as a potential case, detained people are denied basic daily health encounters and kept locked in their cells. Brief temperature checks and occasional questions from staff are implemented, but there is
 9 https://www.bop.gov/resources/pdfs/pan_flu_module_3.pdf
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no regular health encounter that involves having a person leave their cell and be examined by a nurse or doctor for their lung and heart sounds, blood pressure and other essential elements required to determine whether their COVID-19 illness is getting better or worse.
16. The lack of basic type of daily health encounter may stem from the lack of a clinical examination space on the unit, but the responses from BOP and their experts on this matter have varied from attempting to establish that an adequate health encounter could take place inside a person’s cell, to opining that having a clinical examination space outside the unit could be adequate. Whatever the response, it seems clear from medical records and speaking with people in the isolation unit that neither of these things is actually occurring; patients are not taken out of their cells each day for a clinical encounter outside the unit, and staff are not entering their cells to attempt a clinical encounter there (which would be ill-advised and inadequate).
17. This deficiency leaves patients already identified as having COVID-19 without basic clinical assessments. When I inspected the facility, I spoke with Mr. Victor Sojos Valladares in the isolation unit. He reported that while held in the isolation unit for having tested positive with COVID-19, shortness of breath, fever and multiple other symptoms, he went ten days without a clinical encounter. During this time, he reported that not one single health professional listened to his lungs or heart, despite his initial presentation of shortness of breath.
18. This approach stands in stark contrast to BOP’s own pre-existing pandemic influenza plan which identifies the need for daily and structured clinical assessments of persons identified as being ill.10 The CDC states clearly in their COVID-19 clinical guidance that “Clinicians should be aware of the potential for some patients to rapidly deteriorate one week
 10 https://www.bop.gov/resources/pdfs/pan_flu_module_3.pdf
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after illness onset.”11 Without conducting daily structured encounters with COVID-19 patients, the BOP remains unable to detect when this clinical deterioration would occur, and increases the risk of serious illness and death among these patients.
19. This approach to conducting basic medical encounters is also clearly outlined in NCCHC standards, which identify that when nursing staff conduct basic triage of patients, they should include the following: “The area must be of adequate size, provide auditory or visual privacy, have a sink and water, and have washable hard surfaces. Equipment nurses use for sickcall evaluation includes the health record, thermometer, stethoscope, sphygmomanometer, handheld light, exam gloves, dressing supplies, germicidal solution and reference material.”12 This level of equipment and ability to conduct daily encounters is likely even less than what is required for care of COVID-19 patients because of the high likelihood that these patients will require emergency administration of oxygen, transfer via stretcher to the main clinic or treatment rooms of the facility, and may require other emergency care including use airway management. Nonetheless, it is clear that even basic triage encounters are not possible within the isolation unit of MDC.
a. While the examination space outside the isolation unit is close in physical proximity, that proximity misses the point of the infection control risks. Every time a person with COVID-19 leaves the isolation unit, there is a significant risk of transmission of virus outside the unit. This risk is even higher in the MDC given the other failures mentioned above. The risk posed by movement also appears to be appreciated by the MDC itself,
 11 https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html 12 https://www.ncchc.org/cnp-screening-sickcall-triage
10

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given the apparent practice of simply leaving COVID-19 people in their cells and not conducting any meaningful clinical assessments of them (uncontested point #3 above). b. While the BOP’s own team found that N95 masks were present on the PPE cart of the isolation unit, none were present when I inspected the facility on April 23, 2020, and staff were not wearing them. If a patient were indeed taken to the clinical examination room outside the isolation unit, they would do so without an N95 mask. c. The CDC guidelines acknowledge that some facilities may not be able to adequately implement medical isolation. In this circumstance, the guidelines state that “Others have neither onsite healthcare capacity nor onsite medical isolation/quarantine space and must transfer ill patients to other correctional or detention facilities or local hospitals for evaluation and care.” 20. The expert reports proffered by the MDC do not allay my fears that practices inside the MDC are causing many people with symptoms of COVID-19 to be denied assessment and care, and that both high-risk patients and those who do become identified as having COVID19 are not being adequately protected. 21. I do not agree with or take solace in the stance of the experts that the lack of a death among detained people at MDC is somehow proof of the adequacy of the COVID-19 response. While I have numerous other specific rebuttals to points made in the expert reports, this supplemental report addresses the areas I am most concerned reflect an ongoing lack of appreciation of the severity of deficiencies in the MDC COVID-19 response.
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22. I reaffirm my prior list of priorities for remediation of the COVID19 response at MDC.

Dated: May 11, 2020 Port Washington, New York

HOMER VENTERS, M.D.

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------x
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI by his Next Friend Migdaliz Quinones; and JUSTIN RODRIGUEZ by his Next Friend Jacklyn Romanoff; ELODIA LOPEZ; and JAMES HAIR, individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.
---------------------------------------------------------x

Civil Action No. 20-CV-1590 (Kovner, J.) (Mann, M.J.)

RESPONDENT’S POST-HEARING PROPOSED FINDINGS OF FACT

James R. Cho Seth D. Eichenholtz Joseph A. Marutollo Paulina Stamatelos Assistant United States Attorneys (Of Counsel)

RICHARD P. DONOGHUE United States Attorney Counsel for Respondent Eastern District of New York 271-A Cadman Plaza East, 7th Floor Brooklyn, New York 11201
May 19, 2020

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TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................................................................... i PRELIMINARY STATEMENT .....................................................................................................1 PROPOSED FINDINGS OF FACT ................................................................................................5
I. Petitioners’ Allegations............................................................................................5 II. Pertinent Procedural History....................................................................................5 III. National Steps Taken by BOP to Address COVID-19 ............................................6
A. Action Plan for COVID-19-Phase One........................................................7 B. Action Plan for COVID-19-Phase Two .......................................................8 C. Action Plan for COVID-19-Phase Three .....................................................9 D. Action Plan for COVID-19-Phase Four.....................................................10 E. Inmates considered for home confinement based on
March 26, 2020 guidance from the Attorney General ...............................11 F. Action Plan for COVID-19-Phase Five .....................................................11 G. The Attorney General’s April 3, 2020 Memorandum to BOP...................13 H. BOP issues Operations Memorandum dated April 3, 2020
regarding home confinement under the First Step Act ..............................14 I. Action Plan for COVID-19-Phase Six .......................................................14 IV. The MDC ...............................................................................................................14 V. Ongoing Efforts To Address Issues Posed By COVID-19 at the MDC.............................................................................................................15 A. Screening of current inmate population .....................................................16
1. BOP medical staff members are performing twice-daily medical rounds in all housing units ...............................................16

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2. BOP medical staff members are performing twice-daily medical rounds in the quarantine and isolation units where they also conduct temperature and wellness check .......................................17
B. The MDC has a robust sick call system.....................................................17 1. Inmates have ready access to the sick call system and BOP staff are timely responding to those request..........................17 2. There is no evidence that allegedly missing sick call requests relate to the named Petitioners.........................................19
C. BOP staff members screen inmates coming into the MDC .......................21 D. BOP staff members and visitors are screened at the front door.................24 E. Placement of inmates on quarantine status or in the isolation
unit curb the spread of COVID-19.............................................................26 1. Placement of inmates on quarantine status ....................................26 2. Inmates placed in isolation based on “clinical decisions”
by medical providers......................................................................27 F. BOP staff properly monitor high risk inmates at the MDC .......................30 G. COVID-19 Testing at the MDC.................................................................31
1. Given the limited availability of tests since the onset of the pandemic, the BOP does not have the capacity to test all inmates at the MDC............................................................31
2. BOP staff at the MDC are not tested by the BOP..........................34 3. BOP announces expansion of testing.............................................34 H. BOP medical staff send inmates with acute conditions to local hospitals for treatment, if necessary..................................................34 I. Inmate and Staff Education relating to COVID-19 ...................................35 1. Inmate bulletins and town halls .....................................................35 2. BOP informs staff members about personal hygiene best
practices .........................................................................................36
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J. Cleaning and sanitation..............................................................................37 1. All inmates receive soap and have access to personal hygiene materials through commissary .........................................37 2. Enhanced sanitation procedures.....................................................38 3. Phones and computers are routinely cleaned .................................40 4. MDC was “deep-cleaned” after inmate tested positive .................40
K. All inmates and staff provided with PPE...................................................40 1. Masks have been provided to all inmates and staff .......................40 2. Staff provided with additional PPE for quarantine, isolation, and screening areas ........................................................................41
L. Efforts to promote social distancing and reduced group meetings have been successful ..................................................................................42
VI. The BOP has implemented infection control procedures recommended by the CDC.....................................................................................43
VII. Hearing Testimony.................................................................................................46 A. Dr. Homer Venters acknowledges significant steps taken by MDC to control the spread of COVID-19 .................................................46 B. Venters’s methodology of relying reflexively on inmate allegations is flawed...................................................................................51 C. Assistant Director Nicole English credibly testified that the allegations in Venters’s report were “not accurate”.....................................................51 1. Entry point screening -- Ex. 000 at MDC 3. ..................................54 2. Inmate screening tools -- Ex. 000 at MDC 4. ................................55 3. Sick call procedures -- Ex. 000 at MDC 4. ....................................56 4. Quarantine and isolation units and procedures -Ex. 000 at MDC 5. .........................................................................58 5. Infection control practices -- Ex. 000 at MDC 6. ..........................59
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6. Staff use of personal protection equipment (PPE) -Ex. 000 at MDC 6. .........................................................................59
7. Inmate use of personal protection equipment -Ex. 000 at MDC 7. .........................................................................60
8. Sanitation supplies and access -- Ex. 000 at MDC 7. ....................61
9. Temperature control in the units, cells and common areas -Ex. 000 at MDC 9. .........................................................................61
10. Food services procedures -- Ex. 000 at MDC 9.............................61
11. Emergency response and preparedness -- Ex. 000 at MDC 9........62
12. Legal visiting -- Ex. 000 at MDC 9. ..............................................62
13. Communications to inmates of CDC guidance through Warden and Town Hall -- Ex. 000 at MDC 10. ................................................63
14. Signage and instructions for procedures and CDC guidance -Ex. 000 at MDC 11. .......................................................................64
15. Communication to staff regarding CDC guidance and testing -Ex. 000 at MDC 12. .......................................................................64
16. English’s Recommendations were implemented “on the spot” by the Warden -- Ex. 000 at MDC 12-13.......................................65
D. The Court should credit the testimony of Epidemiologist Asma Tekbali that COVID-19 at the MDC is under control.............................................67
1. Tekbali’s current and real experience addressing COVID-19 .......67
2. Objective data relating to the low number of hospitalizations and deaths reflect that the BOP has successfully controlled the spread of COVID-19 at the MDC and that there is no outbreak at the facility ............................................................................................68
3. Tekbali credibly impeaches Venter’s other opinions lacking basis in CDC guidance or the standard of care ..............................69
(i) CDC does not recommend cohorting high risk inmates ...............................................................................70
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(ii) Most patients develop only mild symptoms with fever being the most prevalent symptom. ..........................70
(iii) Testing has been limited nationally. ..................................71 (iv) Laundry does not pose any undue risk...............................72 (v) BOP’s use of PPE is consistent with CDC guidance .........72 (vi) Isolation procedures at the MDC comport with CDC
guidance .............................................................................73 (vii) Rodriguez successfully recovered from COVID-19..........73 (viii) COVID-19 is different from influenza. .............................73 E. The Court should credit the testimony of Prison Management Expert Dr. Jeffrey Beard that the MDC is effectively implementing policies protecting staff and inmates from COVID-19. ..........................................74 1. Beard’s experience in prison management ....................................74 2. Beard’s inspection of the MDC .....................................................75 (i) Beard observed medical exam rooms in or near each
housing unit he and Venters visited ...................................76 (ii) Beard observed staff and inmates at the MDC
wearing masks and other PPE............................................76 (iii) Beard observed adequate cleaning supplies for
inmate and staff use. .........................................................77 3. Beard concludes that the MDC is a well-run
detention center ..............................................................................78 4. Beard’s conclusions regarding the MDC are more
credible than Venters’s self-serving observations .........................79 VIII. The Remaining Petitioners Should Not Be Released from MDC..........................80
A. Elodia Lopez’s claims do not amount to Eighth Amendment violation .....................................................................................................80 1. Lopez’s Criminal History ..............................................................80
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2. Lopez’s pending compassionate release application .....................81 3. Lopez receives consistent and adequate medical care
at the MDC.....................................................................................81 B. James Hair’s claims do not amount to an Eighth Amendment
violation .....................................................................................................84 1. Hair’s Criminal History .................................................................84 2. Hair receives consistent and adequate medical care at
MDC ..............................................................................................85 C. Ayman Rabadi’s claims do not amount to an Eighth Amendment
violation .....................................................................................................89 1. Rabadi’s criminal history...............................................................89 2. The Court denies Rabadi’s request for compassionate release ......89 3. Rabadi receives consistent and adequate medical care at the
MDC ..............................................................................................91 D. Justin Rodriguez’s claims do not amount to an Eighth Amendment
violation and are moot ...............................................................................93 E. The named Petitioners lack commonality and typically with other putative
class members ............................................................................................96 IX. The Statements of Non-Party Declarants Do Not Support the Need for a
Preliminary Injunction ...........................................................................................97 A. The non-party inmate declarations are insufficient to show an Eighth
Amendment violation.................................................................................97 B. Anthony Sanon’s declaration should be afforded no weight ...................101 CONCLUSION ............................................................................................................................106
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TABLE OF AUTHORITIES Federal Cases
Connick v. Thompson, 563 U.S. 51 (2011) ..................................................................................... 2 Farmer v. Brennan, 511 U.S. 825 (1994) ................................................................................... 1, 2 Helling v. McKinney, 509 U.S. 25 (1993)....................................................................................... 1 Marlowe v. LeBlanc, No. 20-30276, 2020 WL 2043425 (5th Cir. Apr. 27, 2020) .................... 3, 4 O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)......................................................................... 3 Pesci v. Budz, 935 F.3d 1159 (11th Cir. 2019) ............................................................................... 3 Prison Legal News v. Sec’y, Fla. Dep’t of Corr., 890 F.3d 954 (11th Cir. 2018) .......................... 3 Roman v. Wolf, No. 20-55436, 2020 WL 2188048 (9th Cir. May 5, 2020) ................................... 3 Swain v. Junior, No. 20-11622, 2020 WL 2161317 (11th Cir. May 5, 2020)....................... passim Turner v. Safley, 482 U.S. 78 (1987) .......................................................................................... 2, 3 United States v. Derrilyn Needham, -- F. Supp. 3d. --, 2020 WL 2512105 (S.D.N.Y. May 15, 2020) .................................................................... 103, 104 United States v. Hair, 780 F. App’x 86 (4th Cir. 2019) ......................................................... 86, 87 United States v. Rabadi, No. 13 Cr. 353, 2020 WL 1862640 (S.D.N.Y. Apr. 14, 2020)............................................................. 92, 95, 97, 98 Valentine v. Collier, 956 F.3d 797 (5th Cir. 2020) ................................................................. 2, 3, 4 Valentine v. Collier, No. 19A1034, 2020 WL 2497541 (U.S. May 14, 2020) ............... 4, 5, 11, 12 Whitley v. Albers, 475 U.S. 312 (1986) .......................................................................................... 1 Wilson v. Seiter, 501 U.S. 294 (1991)......................................................................................... 1, 2
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18 U.S.C. § 3582........................................................................................................................... 97 18 U.S.C. § 3582(c)(1)(A) ............................................................................................................ 92 18 U.S.C. § 3582(c)(i)................................................................................................................... 83 18 U.S.C. § 3624........................................................................................................................... 97 18 U.S.C. §§ 1343......................................................................................................................... 91 21 U.S.C. § 841(b)(1)(C) .............................................................................................................. 96 21 U.S.C. §§ 846........................................................................................................................... 82 U.S.C. § 2241.............................................................................................................................. 103 U.S.C. § 2255................................................................................................................................ 87 U.S.C. § 3624(c) ........................................................................................................................... 98
Federal Regulations 29 C.F.R. § 1910.134 .................................................................................................................. 107
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PRELIMINARY STATEMENT1 In order for the Court to issue the extreme and extraordinary remedy of a preliminary injunction, Petitioners have the heightened burden of showing a substantial likelihood of success on the merits of their Eighth Amendment claim; the likelihood that they will suffer irreparable harm in the absence of preliminary relief; that the balance of equities tips in their favor, and that an injunction is in the public interest. Petitioners failed on all accounts. Rather than proving that Respondent Warden Edge is engaged in or has somehow suborned the “unnecessary and wanton infliction of pain,” Whitley v. Albers, 475 U.S. 312, 319 (1986), “necessary to establish a violation of their Eighth Amendment rights, Petitioners have shown only that the Federal Bureau of Prisons (“BOP”) has taken sufficient steps to effectively control the spread of the coronavirus at the Metropolitan Detention Center in Brooklyn (“MDC”). The Eighth Amendment prohibits the infliction of “cruel and unusual punishments” on those serving criminal sentences. U.S. Const. Amend. VIII. The Supreme Court has determined that “the conditions under which [a prisoner] is confined are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Helling v. McKinney, 509 U.S. 25, 31 (1993)); Wilson v. Seiter, 501 U.S. 294, 296 (1991) (“lack of due care” or other “error in good faith” is insufficient to constitute cruel and unusual punishment) (citations omitted). But, “a prison official violates the Eighth Amendment only when two requirements”—one objective, the other subjective—“are met.” Farmer, 511 U.S. at 834, 846. Petitioners have not shown a likelihood of success in establishing either. The Supreme Court has made clear that the Eighth Amendment must take account of “the
1 References to exhibits from the preliminary injunction hearing appear as “Ex. __.” References to the transcript from the preliminary injunction hearing appear as “Tr. __.”

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realities of prison administration,” Helling, 509 U.S. at 37, and the Centers for Disease Control and Prevention (“CDC”) has likewise recognized that the COVID-19 response must adapt to reflect those realities. Ex. G (CDC Guidance on Management of COVID-19 in Correctional and Detention Facilities). But the fact that BOP has not taken the precise measures that Petitioners deemed most appropriate does not demonstrate a constitutional violation under the “stringent standard of fault” applicable to Eighth Amendment claims. Connick v. Thompson, 563 U.S. 51, 61 (2011). Inmates claiming that the conditions of their confinement violate the Eighth Amendment must show that the prison officials acted with a sufficiently culpable state of mind, which is demonstrated only by the “unnecessary and wanton infliction of pain.” Wilson, 501 U.S. at 297 (citation omitted). Though it cannot be denied that, “[a]s with every other part of the country, our Nation’s correctional facilities have not escaped the reach of COVID- 19,” Valentine v. Collier, 956 F.3d 797, 799 (5th Cir. 2020) (per curiam), that does not demonstrate deliberate indifference on the part of BOP officials. Farmer, 511 U.S. at 844 (“[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.”).
Prison officials’ “unenviable task of keeping dangerous men in safe custody under humane conditions,” Farmer, 511 U.S. at 837, 845 (quotation marks omitted), becomes dramatically more difficult during a pandemic; and BOP officials must balance their efforts to mitigate the virus against innumerable other considerations, including risks to inmate health, public health and public safety from transferring or releasing inmates en masse. As the Supreme Court has acknowledged, “[r]unning a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.” Turner v. Safley, 482 U.S. 78, 85 (1987). The “formidable
2

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task of running a prison” falls to those other two branches, and “separation of powers concerns counsel a policy of judicial restraint” and “deference to the appropriate prison authorities.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987). Prison officials, not special masters or mediators, are the ones who “make the difficult judgments concerning institutional operations.” Pesci v. Budz, 935 F.3d 1159, 1166 (11th Cir. 2019) (citing Turner, 482 U.S. at 89); see also Swain v. Junior, No. 20-11622, 2020 WL 2161317, at *4 (11th Cir. May 5, 2020) (“The injunction hamstrings [jail] officials with years of experience running correctional facilities, and the elected officials they report to, from acting with dispatch to respond to this unprecedented pandemic.”); Prison Legal News v. Sec’y, Fla. Dep’t of Corr., 890 F.3d 954, 965 (11th Cir. 2018) (explaining the “substantial deference to the decisions of prison administrators because of the complexity of prison management, the fact that responsibility therefor is necessarily vested in prison officials, and the fact that courts are ill-equipped to deal with such problems.”).2
Additionally, as the Court noted during the PI hearing (Tr. 551), several Circuit Courts of Appeals have stayed preliminary injunctions requiring officials at prisons or detention centers to take specified actions in response to COVID-19. The Eleventh Circuit, for instance, made clear that the Eighth Amendment leaves room for prison officials to make policy judgments about how to “allocate scarce resources among different … operations necessary to fight the pandemic.” Swain, 2020 WL 2161317, at *5; see also Valentine, 956 F.3d at 802; Marlowe v. LeBlanc, No. 20-30276, 2020 WL 2043425, at *2-*3 (5th Cir. Apr. 27, 2020); Roman v. Wolf, No. 20-55436, 2020 WL 2188048 (9th Cir. May 5, 2020).
2 In Collier v. Sozio, No. 20-CV-2183 (E.D.N.Y.) (Cogan, J.), wherein petitioner-inmates seek the appointment of a Special Master in connection with a purported COVID-19 outbreak at the Queens Detention Facility, the court denied petitioner-inmates motion for a Temporary Restraining Order on May 18, 2020, and noted that the court is “certainly not inclined to, at this point, appoint a special master to run the prison, nor am I inclined to run the prison myself” as “[t]hat is a very radical test that would require a very strong showing of an Eighth Amendment violation.” Collier, Dkt. Entry dated May 18, 2020 (referencing transcript).
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Like in the Fifth Circuit’s decision in Valentine, Petitioners here “cited no evidence that [BOP] subjectively believe[s] the measures [it is] taking are inadequate”; “[t]o the contrary, the evidence shows that [BOP] has taken and continues to take measures—informed by guidance from the CDC and medical professionals—to abate and control the spread of the virus.” 956 F.3d at 802; see also id. at 801-02 (acknowledging that “infectious diseases generally and COVID-19 specifically can pose a risk of serious or fatal harm to prison inmates,” but concluding that precautions generally complying with the CDC’s prison-specific recommendations satisfied the Eighth Amendment); Marlowe, 2020 WL 2043425, at *3 (“Although the virus has spread within [the facility], given the many prevention measures [the facility] has taken, an increase in infection rate alone is insufficient to prove deliberate indifference.”); Swain, 2020 WL 2161317, at *4 (recognizing that an “increase in COVID-19 infections” is not itself “proof that the defendants deliberately disregarded an intolerable risk”). On May 14, 2020, the Supreme Court denied a motion to vacate the Fifth Circuit’s stay of the district court’s preliminary injunction in Valentine, thereby leaving the stay in place. Valentine v. Collier, No. 19A1034, 2020 WL 2497541 (U.S. May 14, 2020).3
Accordingly, for the reasons set forth in Respondent’s opposition papers (Dkt. Nos. 79-83) and as established throughout the preliminary injunction hearing, as well as in the Findings of Fact below, Petitioners have failed to meet their heightened burden of establishing that a preliminary injunction is warranted here.
3 See Baez v. Moniz, No. 20-cv-10753 (LTS), 2020 WL 2527865 (D. Mass. May 18, 2020) (denying motion for a preliminary injunction where petitioners failed to show deliberate indifference with respect to claims of Eighth Amendment violations at their facility, as petitioners had not established a likelihood of success on their constitutional claims.).
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PROPOSED FINDINGS OF FACT I. Petitioners’ Allegations
1. The gravamen of Petitioners’ allegation is that, because of their age and/or medical conditions, they have elevated risk of serious, adverse outcomes if they contract COVID-19 and must be released because detention at the MDC per se poses an increased risk of health complications or death from COVID-19. See Am. Pet. (Dkt. No. 60).
2. Petitioners request broad and extraordinary relief, including the immediate release of 537 allegedly vulnerable persons (inclusive of the four remaining Petitioners) with undefined “appropriate precautionary public health measures” and the appointment of a “Special Master on an emergency basis to Chair a Coronavirus Release Committee to evaluate Vulnerable Persons and make recommendations for ameliorative action for other persons at the MDC.” Am. Pet. 3637 (Dkt. No. 60). Petitioners also ask the Court to order Respondent “to mitigate” COVID-19related risk at the MDC, and to certify the Petition as a Class Action. Id. II. Pertinent Procedural History
3. On March 27, 2020, Petitioners commenced this habeas action. Dkt. No. 1. 4. On March 30, 2020, Petitioners moved for a temporary restraining order (TRO). Dkt. No. 12. 5. On April 1, 2020, the Court held a hearing on Petitioners TRO motion. Dkt. Entry dated April 1, 2020. 6. On April 8, 2020, this Court denied Petitioners’ TRO motion. Dkt. Entry dated April 8, 2020 Order. The Court denied the TRO motion and noted on the record that: (i) the appointment of a Special Master is not appropriate in connection with the grant of a TRO which is “ordinarily . . . an order of short duration to address imminent harm that’s going to occur;” and
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(ii) the “extraordinary remedy of a mandatory injunction [ordering Petitioners’ release] is [not] warranted [] at this point.” April 1, 2020 Hearing Tr. at 21-22.
7. On April 23, 2020, Petitioners filed an Amended Habeas Petition. Dkt. No. 60. 8. On April 24, 2020, Respondent moved to dismiss on the grounds that the Court lacked jurisdiction over Petitioners’ claims. Dkt. Nos. 62, 88. 9. On April 30, 2020, Petitioners moved for a preliminary injunction. Dkt. Nos. 7173. Respondent opposed Petitioners’ PI motion. Dkt. No. 79. 10. From May 12-14, 2020, the Court held a preliminary injunction hearing, during which Homer Venters, M.D., testified on behalf of the Petitioners. BOP Assistant Director Nicole English, Asma Tekbali, and Jeffrey Beard, Ph.D., testified on behalf of Respondent. III. National Steps Taken by BOP to Address COVID-19 11. In January 2020, the BOP became aware of the first identified COVID-19 cases in the United States and quickly took steps to prevent its introduction and spread in BOP institutions, including the MDC. The BOP’s response has occurred over six distinct “phases” to date. Ex. YY (Declaration of Lt. Commander D. Jordan, RN/BSN) (“Jordan Decl.”) ¶¶ 6-17 (Dkt. No. 47-1). 12. The BOP’s national guidance has undergone a number of changes in response to the evolving threat. The BOP has established a COVID-19 resource section (“COVID-19 Resource Section”) on its public webpage which is available at: https://www.bop. gov/coronavirus/. This webpage includes updates on the BOP’s response to COVID-19 and positive COVID-19 tests among inmates and staff at BOP institutions nationwide. Ex. YY (Jordan Decl.) ¶ 4 (Dkt. No. 47-1). 13. The BOP has issued a series of phases of its national response to the COVID-19 pandemic, which apply generally across all BOP institutions, including the MDC. Ex. YY (Jordan Decl.) ¶ 5 (Dkt. No. 47-1).
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14. The BOP has taken and is continuing to take significant measures in response to the COVID-19 pandemic to protect the safety and security of all staff and inmates, as well as members of the public. Ex. YY (Jordan Decl.) ¶ 5 (Dkt. No. 47-1).
A. Action Plan for COVID-19 – Phase One 15. In January 2020, the BOP began Phase One of its Action Plan for COVID-19. Ex. YY (Jordan Decl.) ¶ 7 (Dkt. No. 47-1). 16. Phase One activities included, among other things, seeking guidance from the BOP’s Health Services Division regarding the COVID-19 disease and its symptoms, where in the United States infections were occurring, and the best practices to mitigate its transmission. Ex. YY (Jordan Decl.) ¶ 7 (Dkt. No. 47-1); Ex. E (BOP 85-86). 17. The BOP’s Health Services Division is responsible for medical, dental, and mental health (psychiatric) services provided to Federal inmates in Bureau facilities, including health care delivery, infectious disease management, and medical designations.4 Ex. YY (Jordan Decl.) ¶ 7 (Dkt. No. 47-1). 18. In addition, an agency task force was established, to begin strategic planning for COVID-19 BOP-wide. Ex. YY (Jordan Decl.) ¶ 7 (Dkt. No. 47-1). 19. This strategic planning included building on the BOP’s existing procedures for pandemics, such as implementing its pre-approved Pandemic Influenza Plan. Ex. YY (Jordan Decl.) ¶ 7 (Dkt. No. 47-1); Exs. C, D, K, L. 20. From January 2020 through the present, the BOP has been coordinating its COVID19 efforts with subject-matter experts both internal and external to the agency, including implementing guidance and directives from the World Health Organization (WHO), the Centers
4 https://www.bop.gov/about/agency/org hsd.jsp.
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for Disease Control and Prevention (CDC), the Office of Personnel Management (OPM), the Department of Justice (DOJ), and the Office of the Vice President. Ex. YY (Jordan Decl.) ¶ 7 (Dkt. No. 47-1); Exs. E, G.
B. Action Plan for COVID-19 – Phase Two 21. On March 13, 2020, the BOP implemented Phase Two of its Action Plan. Ex. YY (Jordan Decl.) ¶ 8 (Dkt. No. 47-1). 22. Phase Two put into place a number of restrictions across all BOP facilities over a 30-day period, to be reevaluated upon the conclusion of that time period. Ex. YY (Jordan Decl.) ¶ 8 (Dkt. No. 47-1). 23. Specifically, the BOP suspended the following activities for an initial period of 30 days, with certain limited exceptions: social visits; legal visits; inmate facility transfers; official staff travel; staff training; contractor access; Volunteer visits; and tours. Ex. YY (Jordan Decl.) ¶ 8 (Dkt. No. 47-1). 24. On March 13, 2020, BOP’s Central Office issued nationwide guidance regarding modified operations to prevent and mitigate the spread of COVID-19. The guidance has undergone updates since it was first issued. Latest updates available at: https://www.bop.gov/coronavirus/covid19_status.jsp. Exs. TT (Declaration of Associate Warden Milinda King) (“King Decl.”) ¶ 26 (Dkt. No. 18-1); Ex. WW at Ex. 3 (Dkt. No. 18-2). 25. During Phase Two, inmates were subjected to new screening requirements. Ex. YY (Jordan Decl.) ¶ 9 (Dkt. No. 47-1). 26. Specifically, all newly arriving BOP inmates were screened for COVID-19 symptoms and “exposure risk factors,” including, for example, if the inmate had traveled from or through any high-risk COVID-19 locations (as determined by the CDC), or had had close contact with anyone testing positive for COVID-19. Ex. G.
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27. Asymptomatic inmates with exposure risk factors were quarantined, and symptomatic inmates with exposure risk factors were isolated and evaluated for possible COVID19 testing by local BOP medical providers. Ex. YY (Jordan Decl.) ¶ 9 (Dkt. No. 47-1).
28. Staff were also subjected to enhanced health screening in areas of “sustained community transmission,” as determined by the CDC, and at medical referral centers. Ex. YY (Jordan Decl.) ¶ 9 (Dkt. No. 47-1).
29. On March 19, 2020, MDC implemented this enhanced screening for staff and contractors at that time. Ex. YY (Jordan Decl.) ¶ 9 (Dkt. No. 47-1).
30. The enhanced screening measures required all staff to self-report any symptoms consistent with COVID-19, as well as any known or suspected COVID-19 exposure, and further required all staff to have their temperature taken upon entry into any BOP facility. Ex. YY (Jordan Decl.) ¶ 10 (Dkt. No. 47-1).
31. In addition to the measures listed above, the BOP implemented national “modified operations” in order to maximize social distancing within BOP facilities. These modifications included staggered meal and recreation times in order to limit congregate gatherings. Additionally, the BOP established a set of quarantine and isolation procedures for known or potential cases of COVID-19. Ex. E; Ex. YY (Jordan Decl.) ¶ 11 (Dkt. No. 47-1).
C. Action Plan for COVID-19 – Phase Three 32. On March 18, 2020, the BOP implemented Phase Three of the COVID-19 Action Plan for BOP locations that perform administrative services (i.e., non-prison locations), which followed DOJ, Office of Management and Budget, and OPM guidance for maximizing telework. Ex. YY (Jordan Decl.) ¶ 12 (Dkt. No. 47-1). 33. In this phase, individuals who had the ability to telework and whose job functions did not require them to be physically present were directed to begin teleworking. Ex. YY (Jordan
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Decl.) ¶ 12 (Dkt. No. 47-1). 34. Additionally, and in accordance with the Pandemic Influenza contingency plan, all
cleaning, sanitation, and medical supplies were inventoried to ensure an adequate supply. Exs. C, D, E.
35. The MDC has sufficient cleaning, sanitation, and medical supplies. Ex. YY (Jordan Decl.) ¶ 13 (Dkt. No. 47-1).
D. Action Plan for COVID-19 – Phase Four 36. On March 26, 2020, the BOP implemented Phase Four of its Action Plan. Ex. YY (Jordan Decl.) ¶ 14 (Dkt. No. 47-1). 37. In Phase Four, the BOP revised its preventative measures for all institutions. Specifically, the agency updated its quarantine and isolation procedures to require all newly admitted inmates to the BOP, whether in areas of sustained community transmission or not, to be assessed using a screening tool and temperature check. Ex. YY (Jordan Decl.) ¶ 14 (Dkt. No. 471). 38. This screening tool and temperature check applied to all new intakes, detainees, commitments, prisoners returned on writ from judicial proceedings, and parole violators, regardless of their method of arrival. Ex. YY (Jordan Decl.) ¶ 14 (Dkt. No. 47-1). 39. Thus, all new arrivals to any BOP institution—even those who were asymptomatic—were placed in quarantine for a minimum of 14 days or until cleared by medical staff. Ex. YY (Jordan Decl.) ¶ 14 (Dkt. No. 47-1). 40. Symptomatic inmates were placed in isolation until they tested negative for COVID-19, or were cleared by medical staff as meeting CDC criteria for release from isolation. Ex. E; Ex. YY (Jordan Decl.) ¶ 14 (Dkt. No. 47-1).
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E. Inmates considered for home confinement based on March 26, 2020 guidance from the Attorney General
41. On March 26, 2020, the Attorney General of the United States issued a memorandum directing the BOP to consider “at-risk inmates who are non-violent and pose minimal likelihood of recidivism and who might be safer serving their sentences in home confinement rather than in BOP facilities.” Pet. (Dkt. No. 1-4) at Ex. E attached to the declaration of Deirdre D. von Dornum. The Attorney General issued the memorandum to “ensure that [the BOP] utilize[s] home confinement, where appropriate, to protect the health and safety of BOP personnel and the people in our custody.” Id. The Attorney General’s Memorandum states in part:
I am hereby directing you to prioritize the use of your various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic. Many inmates will be safer in BOP facilities where the population is controlled and there is ready access to doctors and medical care. But for some eligible inmates, home confinement might be more effective in protecting their health. See Memorandum to the Director of the Federal Bureau of Prisons: Prioritization of Home Confinement as Appropriate in Response to COVID-19 Pandemic (Mar. 26, 2020) (https://www. bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf) 42. MDC is open and willing to consider inmates who are appropriate for release to Residential Reentry Centers (“RRC”) or home confinement provided they are eligible and do not pose a danger to the community. Exs. TT, UU (King Decl. Ex. 1) (Program Statement, 7310.04) (Dkt. No. 18-2); Ex. TT (King Decl.) ¶ 4 (Dkt. No. 18-1). This review is initially conducted by a unit team to determine whether the inmate is eligible. Id. Appropriate candidates are referred to the Residential Reentry Manager for a final determination. Id. F. Action Plan for COVID-19 – Phase Five 43. On March 31, 2020, the BOP ordered the implementation of “Phase 5 of its COVID-19 Action Plan,” effective April 1, 2020 (referred to as “Phase 5”). Ex. YY (Jordan Decl.)
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¶ 15 (Dkt. No. 47-1); Ex. XX (King Supp. Decl.) ¶ 2 (Dkt. No. 21); see also https://www.bop.gov/resources/news/20200331_covid19_action_plan_5.jsp.
44. For a 14-day period beginning April 1, 2020: A. All inmates were confined to their living quarters for the majority of the day to decrease the spread of the virus. Ex. XX (King Supp. Decl.) ¶ 4 (Dkt. No. 21). B. Meals, commissary items, laundry, recreation materials, education materials, medical services and psychology services were delivered directly to inmates’ housing units. C. Inmates were released from their cells in small groups to engage in activities such as showers, exercise, phones, and Trust Fund Limited Computer System (TRULINCS5) access. During these time periods, inmates have been directed to maintain appropriate physical distancing.
Ex. YY (Jordan Decl.) ¶ 16 (Dkt. No. 47-1); see also Ex. F. 45. MDC has implemented Phase Five. Ex. YY (Jordan Decl.) ¶ 16 (Dkt. No. 47-1);
Ex. XX (King Supp. Decl.) ¶ 3 (Dkt. No. 21). 46. BOP guidance, however, instructs that “to the extent practicable, inmates should
still have access to programs and services that are offered under normal operating procedures, such as mental health treatment and education.” Ex. XX (King Supp. Decl). ¶ 5 (Dkt. No. 21).
47. At the MDC, inmates have been periodically released from their cells in order to shower, to have access to email, and access to the social telephones and dedicated, unmonitored phone lines that dial directly to the Federal Defenders of the Eastern and Southern Districts of New York. Ex. XX (King Supp. Decl.) ¶ 6 (Dkt. No. 21).
48. At the MDC, inmates are permitted to make legal telephone calls, legal calls for court appearances, and legal video-teleconferences. Ex. XX (King Supp. Decl.) ¶ 7 (Dkt. No. 21). Symptomatic inmates are permitted to make legal calls, but do not leave their unit. Id.
5 TRULINCS is the internal Bureau computer and electronic message platform that inmates use to communicate with staff in the institutions and individuals in the community. Through this platform, inmates receive updates, notices, and can read inmate bulletins posted on the system by BOP staff.
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49. At the MDC, inmates are permitted limited time to review discovery material outside of their assigned cells as well. These measures have been implemented to ensure inmates retain access to counsel, the courts, and their legal materials. Ex. XX (King Supp. Decl.) ¶ 7 (Dkt. No. 21).
50. Finally, at the MDC, the BOP has permitted limited gathering to facilitate meal preparation in food services, laundry, and commissary access, to the extent practicable. Ex. XX (King Supp. Decl.) ¶ 8 (Dkt. No. 21).
G. The Attorney General’s April 3, 2020 Memorandum to BOP 51. On April 3, 2020, the Attorney General issued a memorandum to the Director of the BOP regarding the increasing use of home confinement at institutions most affected by COVID-19. Dkt. No. 32-1 (Attorney’s General’s April 3, 2020 memorandum to BOP). 52. In the April 3 memorandum, the Attorney General states that “[t]he mission of BOP is to administer the lawful punishments that our justice system imposes” and that “[e]xecuting that mission imposes on us a profound obligation to protect the health and safety of all inmates.” Dkt. No. 32-1. 53. The Attorney General notes that the recent passage of the CARES Act now authorizes the Attorney General “to expand the cohort of inmates who can be considered for home release upon [his] finding that emergency conditions are materially affecting the functioning of the Bureau of Prisons.” The Attorney General has made that finding and has asked BOP to immediately maximize appropriate transfers to home confinement for appropriate inmates at certain BOP facilities. Dkt. No. 32-1. 54. The Attorney General also reiterated that BOP “cannot simply release prison populations en masse onto the streets.” The Attorney General added that “[t]he last thing our massively over-burdened police forces need right now is the indiscriminate release of thousands
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of prisoners onto the streets without any verification that those prisoners will follow the laws when they are released, that they have a safe place to go where they will not be mingling with their old criminal associates, and that they will not return to their old ways as soon as the walk through the prison gates.” Dkt. No. 32-1.
55. The Attorney General concluded that BOP must continue to make the “careful, individualized determinations [that] BOP makes in the typical case” as “[e]ach inmate is unique and each requires the same individualized determinations we have always made in this context.” Dkt. No. 32-1.
H. BOP issues Operations Memorandum dated April 3, 2020 regarding home confinement under the First Step Act
56. On April 3, 2020, the BOP issued an Operations Memorandum regarding home confinement under the First Step Act. Dkt. No. 33-1.
I. Action Plan for COVID-19 – Phase Six 57. On April 13, 2020, the Director of the BOP ordered the implementation of Phase 6 of its COVID-19 Action Plan. Ex. YY (Jordan Decl.) ¶ 17 (Dkt. No. 47-1). 58. Specifically, the Director ordered an extension of the nationwide action in Phase 5, which applies to medical screening, limited inmate gathering, daily rounds, limited external movement, and fit testing, until May 18, 2020. Ex. YY (Jordan Decl.) ¶ 17 (Dkt. No. 47-1). 59. Phase Six has been implemented at MDC. Ex. YY (Jordan Decl.) ¶ 18 (Dkt. No. 47-1). IV. The MDC 60. The MDC is an administrative facility that houses both pre-trial detainees, holdover inmates, and designated (cadre) inmates, who serve their federal sentence at the institution. Ex. TT (King Decl.) ¶ 2 (Dkt. No. 18-1).
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61. As of March 31, 2020, the MDC housed approximately 1,749 inmates, including 38 female inmates, and 101 designated (cadre) inmates. Ex. TT (King Decl.) ¶ 3 (Dkt. No. 18-1); Am. Pet. ¶ 14 (approximately 1700 inmates).
62. The MDC is a high-rise facility with 17 housing units, including a women’s only unit. Ex. RR (Beard Report) 10; Ex. 40 (Deposition Transcript of Associate Warden Milinda King (“King Tr.”)) 95. The MDC houses inmates with all security classification levels minimum to maximum security. Ex. RR (Beard Report) 9. Inmates at the MDC are divided into separate housing units. Ex. RR (Beard Report) 10. During this pandemic, to avoid the risk of crosscontamination across units, inmates typically do not transfer between housing units at the MDC. Ex. 26 (Health Services Administrator Stacey Vasquez Deposition Transcript) (“Vasquez Tr.”) 25, 182, 201; Ex. YYYY (Vasquez Decl.) ¶ 6.
63. The MDC’s Health Services unit provides medical care to inmates at the MDC. The Health Services Unit comprises 30 to 35 health care workers on staff at MDC, including nurses, IOP nurses, nurse practitioners, doctors, pharmacists, a Health Services Administrator and dentists. Ex. 26 (Vasquez Tr.) 165-66. The MDC has medical staff coverage twenty-four hours per day, seven days per week. Ex. 26 (Vasquez Tr.) 167-73. V. Ongoing Efforts To Address Issues Posed By COVID-19 at the MDC
64. In addition to the steps taken at the national level, MDC itself has taken a number of additional measures in response to the COVID-19 pandemic to prevent the introduction and spread of COVID-19 into its facility, including providing inmate and staff education; conducting inmate and staff screening; putting into place testing, quarantine, and isolation procedures in accordance with BOP policy and CDC guidelines; ordering enhanced cleaning and medical supplies; and taking a number of other preventative measures. Ex. YY (Jordan Decl.) ¶ 19 (Dkt. No. 47-1).
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A. Screening of current inmate population 1. BOP medical staff members are performing twice-daily medical rounds in all housing units
65. BOP staff members at the MDC are taking a number of measures to screen its current resident inmate population daily. Ex. YY (Jordan Decl.) ¶ 32 (Dkt. No. 47-1).
66. All inmates are encouraged to self-monitor and to report symptoms of illness to unit staff either orally or via a written request to staff. The MDC’s Health Services Department, which is staffed with a full complement of medical providers, are required to be present in each MDC housing unit at least twice per day in order to conduct sick call and pill line. Ex. 26 (Vasquez Tr.) 169, 182, 183, 202-04.
67. The presence of medical staff affords inmates further opportunity to report any medical concerns. Ex. YY (Jordan Decl.) ¶ 35 (Dkt. No. 47-1). During these twice-daily medical rounds, inmates are free to identify any symptoms they may be experiencing. Ex. 26 (Vasquez Tr.) 39-40.
68. If an inmate has a fever over 100.4, the inmate is isolated and the medical staff assesses the inmate’s symptoms. Ex. 26 (Vasquez Tr.) 41. If the inmate reports symptoms, but has no fever, the medical staff similarly assesses the inmate’s symptoms. Ex. 26 (Vasquez Tr.) 41.
69. Further, medical staff carry sick call request forms when they make rounds in the event any inmates seek to make a sick call request. Ex. 26 (Vasquez Tr.) 48-49. Throughout the institution, correctional staff make 30-minute rounds on every unit. Ex. 26 (Vasquez Tr.) 187.
70. Further, MDC institutes pill lines and insulin lines twice per day in every housing unit, and medical staff perform sick call every day on the housing units. Ex. TT (King Decl.) ¶ 18 (Dkt. No. 18-1).
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71. In addition, unit staff and other department representatives (including staff from education, commissary, psychology, and recreation) are required to conduct weekly rounds in each MDC housing unit to address any concerns of the inmate population. Ex. YY (Jordan Decl.) ¶ 35 (Dkt. No. 47-1). If an inmate has an issue that he or she wants to bring to the staff’s attention, he or she can do so via a written request, commonly known as a cop-out, at any time, or during these rounds with staff. Ex. YY (Jordan Decl.) ¶ 35 (Dkt. No. 47-1).
2. BOP medical staff members are performing twice-daily medical rounds in the quarantine and isolation units where they also conduct temperature and wellness checks
72. With respect to the quarantine and isolation units, MDC medical staff make twicedaily rounds and also conduct temperature and wellness checks on inmates in those units. Ex. 26 (Vasquez Tr.) 26-27, 38-40, 78-79; Ex. LLL (Declaration of Health Services Administrator Stacey Vasquez) (“Vazquez Decl.”) p. 3, ¶ 6 (Dkt. No. 80).
73. During the wellness check medical staff ask inmates how they are doing, and, to the extent, inmates only speak Spanish, a number of the medical personnel also speak Spanish, and have access to translation services. Ex. 26 (Vasquez Tr.) 41-44; Ex. LLL (Vasquez Decl.) p. 7 (Dkt. No. 80).
74. MDC’s screening protocols are consistent with CDC guidelines. Ex. AA (Tekbali Report) 4-5.
B. The MDC has a robust sick call system 1. Inmates have ready access to the sick call system and BOP staff are timely responding to those requests
75. The MDC has a sick call system by which inmates can request to see medical staff by making a verbal request to staff or submitting either a paper copy or electronic sick call request to MDC medical staff. Ex. 26 (Vasquez Tr.) 186-87.
76. When MDC medical staff receive sick call requests—whether verbally from the
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inmate, or by paper or electronic sick call requests—the medical staff triage the requests. Ex. 26 (Vasquez Tr.) 54, 188-90, 194; Ex. RR (Beard Report) 6.
77. If the request reflects an acute or emergent condition, medical staff would respond immediately to the requests. Ex. 26 (Vasquez Tr.) 54, 198. When a sick call request is triaged, if an inmate’s condition is acute or emergent, the medical provider would examine the patient immediately and the encounter would not necessarily be placed on the schedule, but would be noted as an encounter in each inmate’s own medical records. See Declaration of Cdr. Scott A. Griffith, MSN, RN-BC, U.S. Public Health Service, Dkt. No. 97-1.
78. MDC medical staff members are prioritizing immediate medical care for anyone who claims symptoms indicative of COVID-19 infection. Ex. TT (King Decl.) ¶ 22 (Dkt. No. 181).
79. Prior to the COVID-19 pandemic, inmates were encourage to utilize primarily the electronic sick call system through TRULINCS. Dkt. No. 89-1 at Ex. A (“Sick Call System” provision from Inmate Admission & Orientation Handbook). However, after implementation of modified procedures as a result of the pandemic, BOP staff allowed inmates to submit paper sick call requests when they did not have access TRULINCS. Tr. 179-80.
80. When medical staff receive the paper sick call requests, they triage the request by either seeing the inmate immediately, if the inmate has acute and emergency symptoms, or place the inmate on the BOP’s medical scheduling system to be seen at a later time by a medical professional. Ex. 26 (Vasquez Tr.) 186-87, 195-96.
81. Before April 24th, the sick call requests were the discarded after the inmate was seen by medical staff if the inmate had an acute condition, or the inmate was added to the BOP’s scheduling system, including recording the nature of the inmate’s complaint, regardless of whether
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expressed verbally, in writing, or through TRULINCS. Ex. 26 (Vasquez Tr.) 187-191, 196-97. A notation of that encounter is memorialized in the inmate’s own medical records. Ex. 26 (Vasquez Tr.) 190-91. Further, the medical records system retains the information about the substance of the inmate’s complaint. Ex. 26 (Vasquez Tr.) 188-91.
82. In light of the pandemic, the MDC has additional temporary staff on hand to assist in triaging sick call requests. Ex. 26 (Vasquez Tr.) 194.
83. During the pandemic, inmates have multiple ways to communicate health concerns to medical staff. Medical staff at the MDC are conducting twice-daily medical rounds in the quarantine and isolation units and conducing temperature and wellness checks on all inmates in those units. Ex. LLL (Vasquez Decl.) p. 3. For all other inmates in the general population units, medical staff conduct twice-daily rounds in those units as well. Ex. RR (Beard Report) 6. Inmates have had ample opportunity to meet with and talk to medical staff during those rounds. Correctional staff also conduct rounds every thirty minutes on every housing unit at which time inmates again can raise any emergent medical concerns they may have. Tr. 189.
2. There is no evidence that allegedly missing sick call requests relate to the named Petitioners
84. Petitioners allege that BOP’s destruction of paper sick call requests in early April shows a constitutional violation. Dkt. No. 86 (Petitioners’ motion in limine). However, absent from the record is anything indicating that any of the named Petitioners, or the various declarants made paper sick requests, but had those requests destroyed. Dkt. No. 89 (Respondent’s opposition to motion in limine).
85. Respondent has produced paper sick call requests since April 24th. Dtk. No. 89. 86. Importantly, on May 19, 2020, Respondent produced paper sick call requests between April 1 and April 24, that had already been processed. Dkt. No. 97-2 (confirming
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production of paper sick call requests dated prior to April 24, 2020). MDC Health Services staff confirms that BOP medical providers have indeed reviewed and responded to these paper sick call requests. Id.
87. But even assuming other paper sick call records, other than those produced on May 19, 2020, were lost or destroyed, any sick call requests that may have been discarded were discarded after the inmate was seen by medical staff if the inmate had an acute condition, or the inmate was added to the BOP’s scheduling system. Ex. 26 (Vasquez Tr.) 186-87, 195-96. Regardless, a notation of that encounter is memorialized in the inmate’s individual medical records. Further, it is undisputed that they are now being retained, and Respondent has already produced these documents to Petitioners. Dtk. No. 89.
88. Venters claims without reliable evidence that BOP is not timely responding to sick call requests. Tr. 91. Venters’s claim is based purely on speculation and self-serving statements from inmates and based on the review of only one inmate’s medical file. Tr. 139-40, 140, 141. Venters nonetheless admitted that during his inspection, inmates notified him that they indeed had been seen by medical staff. Tr. 148.
89. On May 19, 2020, Respondent produced to Petitioners a report of sick calls processed between April 1 and May 9, 2020. Dkt. No. 97 (confirming production of the report of sick calls processed).
90. These documents support that the BOP responded to sick call requests in a timely fashion, despite Venters’s conclusion to the contrary. Tr. 179-80 (English).
91. In light of the production of the paper sick call requests submitted prior to April 24, 2020, the “Activities Report,” and the evidence submitted by the Respondent that the substance of written sick call requests are maintained in the medical record system (Dkt. No. 97), the Court
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must reject Petitioners’ request for spoliation or, alternatively, an adverse inference for BOP’s failure to retain paper sick call requests for the period of April 1 through April 24, 2020.
92. Notably, Petitioners rely upon sick call records in support of their allegation that the sick call system at MDC is not functioning. However, Petitioners did not seek the evidence of responses to these sick call requests. An internal BOP investigation, which did look into these sick call responses, concluded that the sick call system was functioning properly. Tr. 179-80 (English); Ex. OOO. Petitioners argue that the sick call requests indicate that some inmates submitted “multiple” requests, but there is no reason to believe this is the case. There is no way to ascertain the credibility of the allegations in the records, and inmates may believe that their requests have been “ignored” when they have already been scheduled for sick call at another time during the day. Ex. 26 (Vasquez Tr.) 186-87.
C. BOP staff members screen inmates coming into the MDC 93. Due to the “Stay in Shelter” order implemented on April 1, 2020, inmate movement at the MDC is currently highly restricted. Ex. YY (Jordan Decl.) ¶ 24 (Dkt. No. 47-1). Movement in and out of the MDC, and movement within the facility, has been minimized as much as possible. Ex. YY (Jordan Decl.) ¶ 48; Ex. XX (King Decl.) ¶ 4 (Dkt. No. 21). 94. The screening measures for both inmates and staff are currently in place, and will remain in effect even after the “Stay in Shelter” order is lifted, until BOP officials determine that they are no longer necessary to prevent and/or manage the introduction or spread of COVID-19 in the MDC. Ex. YY (Jordan Decl.) ¶ 24 (Dkt. No. 47-1). 95. BOP health services staff members screen all new inmates, as well as any inmate returning to the facility, e.g., from a hospital trip or court. Ex. 26 (Vasquez Tr.) 102-05; Ex. LLL (Vasquez Decl.) ¶ 6 (Dkt. No. 80); Tr. 80 (Venters acknowledges that symptom and temperature checks performed on new inmates to the MDC). These screenings include questions relating to
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symptoms consistent with COVID-19, and risk of exposure, including recent travel. Ex. TT (King Decl.) ¶ 5 (Dkt. No. 18-1).
96. If the inmate is asymptomatic, the inmate is housed in the intake unit and quarantined for 14 days. Ex. 26 (Vasquez Tr.) 103, 109-10. If the inmate is symptomatic with COVID-19 symptoms, the inmate is placed in an isolation unit. Ex. 26 (Vasquez Tr.) 106-07.
97. In accordance with the BOP’s Action Plan, few new inmates are expected to arrive at the institution in the near future. Inmate transfers between institutions and air lifts have been canceled, and the MDC is not currently accepting detainees or inmates who voluntarily surrender. Ex. YY (Jordan Decl.) ¶¶ 8, 26 (Dkt. No. 47-1).
98. MDC has been screening inmates for COVID-19 since March 19, 2020. Ex. YY (Jordan Decl.) ¶ 25 (Dkt. No. 47-1).
99. Incoming detainees are initially screened in Receiving and Discharge (“R&D”), not in the intake housing unit or general population. They are then brought to an intake unit where they are quarantined for 14 days to ensure the inmates do not develop symptoms. After the expiration of 14 days, and upon medical clearance, inmates may be released into general population. Ex. TT (King Decl.) ¶ 6 (Dkt. No. 18-1).
100. Specifically, inmates who arrived after March 19, 2020, as well as inmates who may be sent to the institution in the future, were and will be screened immediately upon their arrival in accordance with the following screening protocols, Ex. YY (Jordan Decl.) ¶ 26 (Dkt. No. 47-1):
(1) When inmates arrive, they are met by medical providers from the Health Services Department, who conduct an initial screening in a designated area at the MDC separate from other staff and inmates. The medical providers wear personal protective equipment (PPE) during the screening process. Ex. YY (Jordan Decl.) ¶ 27 (Dkt. No. 47-1).
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(2) Inmates are screened for symptoms of COVID-19 (including fever, cough, and shortness of breath), as well as for “exposure risk factors,” including whether the inmate has traveled from, or through, any locations identified by the CDC as increasing epidemiologic risk within the past 14 days, or has had close contact with anyone diagnosed with COVID-19 in the post 14 days. Ex. I. The screening takes place in a single, controlled area separate and apart from other inmates and prison staff. Ex. YY (Jordan Decl.) ¶ 28 (Dkt. No. 47-1).
(3) Following this initial screening, inmates are escorted to an isolation/quarantine unit at the MDC. There, they are quarantined for 14 days to ensure that they do not develop any symptoms consistent with COVID-19. If they do not have symptoms or exposure risk factors, they are placed in a quarantine unit. If they do have symptoms or exposure risk factors, they are placed in a separate isolation unit. The isolation unit is used for all symptomatic inmates, inmates with exposure risk factors, and inmates with a pending COVID-19 test. In these quarantine and isolation units, all staff wear PPE; inmates in quarantine or isolation are required to wear a surgical mask. Ex. YY (Jordan Decl.) ¶ 29 (Dkt. No. 47-1).
(4) After the expiration of 14 days, and upon medical clearance, inmates may be released into the general population. Ex. YY (Jordan Decl.) ¶ 30 (Dkt. No. 47-1).
(5) This initial screening procedure at the MDC allows for screening to occur in a controlled environment, and further ensures the rest of the inmate population is not exposed to newly-arrived inmates until they are properly screened and cleared by Health Services Department medical providers. Ex. YY (Jordan Decl.) ¶ 31 (Dkt. No. 47-1).
101. Inmates being transported to court are also screened in accordance with standing
administrative orders issued by the Chief Judges of the Eastern and Southern Districts of New
York. These orders require that all inmates’ temperature be taken, and if he or she registers a body
temperature of 100.4 degrees or higher, the inmate will not be produced. Ex. TT (King Decl.) ¶ 7
(Dkt. No. 18-1).
102. Venters testified at the hearing that two inmates claimed to have not been screened
upon arrival to MDC, and that MDC failed to keep documentation of this screenings, but in light
of the evidence submitted by the Respondent documenting the screening of those two inmates, the
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Court should not credit these unsupported allegations. Ex. ZZZZ (Inmate Screening Forms). D. BOP staff members and visitors are screened at the front door 103. Since March 19, 2020, all individuals entering the MDC (including staff, delivery
drivers, or any other visitors) are directed to a single point of entry. Every person entering the institution must undergo a health screening upon entry. Ex. 26 (Vasquez Tr.) 130-31, 138-39. This includes having his or her temperature taken and being asked a number of questions to evaluate his or her risk of exposure, as well as whether he or she has been experiencing any symptoms of illness. Ex. M (Staff Screening Tool); Ex. YY (Jordan Decl.) ¶ 40 (Dkt. No. 47-1); Ex. 26 (Vasquez Tr.) 130; Ex. M (Staff Screening form); Ex. LLL (Vasquez Decl.) p. 6 (Dkt. No. 80).
104. Temperature checks are not the only factor considered when screening staff, as screeners also ask staff if they have signs or symptoms of COVID-19. Ex. 26 (Vasquez Tr.) 13034; Ex. M (Staff Screening form).
105. The individuals conducting this health screening at the front entrance of the MDC are authorized to recommend denial of entry, subject to review by Health Services staff, to any individual if he or she has a body temperature of 100.4 degrees Fahrenheit, or above, or reports other symptoms consistent with COVID-19 (although they may consult with BOP medical providers in advance of the decision to deny entry). Ex. YY (Jordan Decl.) ¶ 41 (Dkt. No. 47-1); Ex. TT (King Decl.) ¶ 23 (Dkt. No. 18-1).
106. BOP employees at the MDC have also been educated regarding the importance of staying home if they are feeling ill, and are required to self-report any COVID-19 exposure (known or suspected) as well as any positive COVID-19 test. If a BOP staff member is tested for COVID19, they are not permitted to return to work until after receiving the results of the test. Ex. YY (Jordan Decl.) ¶ 42 (Dkt. No. 47-1).
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107. When conducting temperature checks at the front door, BOP screeners may wait until the staff members have acclimated to the indoor temperature before taking temperature checks or they take the temperature from the staff members’ necks, which are typically warmer. Ex. 26 (Vasquez Tr.) 135-36; Ex. RR (Beard Report) 5; Tr. 145 (Venters waited for his own temperature check).
108. The BOP has tasked department heads with performing an intake screen on all incoming staff. Only department heads may conduct the screening as they are non-bargaining staff. By limiting the staff who can conduct these temperature checks, the BOP is attempting to limit the unnecessary dissemination of employee information. Additionally, staff tasked with screening incoming staff have been trained on the operation of the thermometer. Ex. WWWW (Declaration of Assistant Human Resource Manager Arlene Ferguson-Houk) (“Ferguson-Houk Decl.”) ¶ 28.
109. Staff utilize a screening tool and the same questions are asked of every staff member. These questions are based on the key signs and symptoms of COVID-19. Ex. WWWW (Ferguson-Houk Decl.) ¶ 29 with Attachment A-Staff Screening Tool.
110. Staff are expected to arrive at the institution wearing a facemask in an effort to reduce the introduction of new germs into the institution. The thermometers used are infrared and, as a result, they are subject to environmental factors. If staff test low, they are asked to step aside until their temperature can be taken correctly. Ex. WWWW (Ferguson-Houk Decl.) ¶ 30.
111. Staff have been provided PPE at various intervals during this pandemic. PPE is typically given to staff when they enter the institution. Most recently, staff have been provided with cloth masks made by Unicor. These masks are provide the same level of protection, if not more, than the surgical masks previously issued. Ex. WWWW (Ferguson-Houk Decl.) ¶ 31.
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E. Placement of inmates on quarantine status or in the isolation unit curb the spread of COVID-19
112. Inmates who present with symptoms consistent with COVID-19 are evaluated by MDC’s Health Services department. Based upon the evaluation, a determination will be made whether isolation6 and testing is appropriate. Ex. TT (King Decl.) ¶ 8 (Dkt. No. 18-1). Detainees may also be placed in a quarantine setting if exposed to a person with COVID-19, where they will be monitored daily for an incubation period of at least 14 days. Quarantine is only discontinued once 14 days elapse with no inmates developing new symptoms. Ex. TT (King Decl.) ¶ 10 (Dkt. No. 18-1).
1. Placement of inmates on quarantine status 113. MDC uses quarantine to separate asymptomatic inmates who have been in contact with symptomatic inmates during the incubation period, which is up to 14 days for COVID-19. Ex. YY (Jordan Decl.) ¶ 49 (Dkt. No. 47-1). Inmates are housed together during this 14-day period with other asymptomatic inmates in a housing unit. Ex. YY (Jordan Decl.) ¶ 49 (Dkt. No. 47-1). Steps are taken to not add or introduce new inmates to a quarantine housing unit after the 14-day quarantine clock has started. Ex. YY (Jordan Decl.) ¶ 49 (Dkt. No. 47-1). At the end of the 14day period, the inmates may be released from quarantine if no inmates develop COVID-19 symptoms or are diagnosed with COVID-19. Ex. YY (Jordan Decl.) ¶ 49 (Dkt. No. 47-1). If additional inmates present with symptoms during the incubation period, these symptomatic inmates are isolated and the 14-day quarantine period begins anew. Ex. YY (Jordan Decl.) ¶ 49 (Dkt. No. 47-1).
6 Isolation means that an inmate is confined to his or her cell, except to place a legal call or to shower. Personal protective equipment (“PPE”) will be utilized by staff in either of those circumstances. Quarantine, on the other hand, refers to inmates remaining on their housing unit, cohorted together. They are not required to remain in his or her cell, and may interact and utilize the common area. However, they will not be moved from the housing unit to other areas of the institution.
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114. As stated above, inmates receive twice-daily temperature and wellness checks and if any symptoms are reported, they are documented. If an inmate becomes symptomatic or has a temperature of greater than or equal to 100.4 F., the inmate is placed in isolation. Ex. YY (Jordan Decl.) ¶ 49 (Dkt. No. 47-1).
115. If any inmate is isolated, those inmates housed in the same housing unit with him or her will be quarantined pending results of the test, or 14 days, whichever is sooner. Ex. TT (King Decl.) ¶ 9 (Dkt. No. 18-1).
2. Inmates placed in isolation based on “clinical decision” by medical providers
116. The MDC uses isolation to separate inmates who present with symptoms consistent with COVID-like illness from quarantined asymptomatic or general population inmates. Ex. YY (Jordan Decl.) ¶ 48 (Dkt. No. 47-1). If the inmate tests positive, the entire housing unit is placed under quarantine, and the remaining inmates are checked twice per day for symptoms. Ex. 26 (Vasquez Tr.) 24-27, 27-28, 30-31, 85.7 The inmate who tested positive is then transferred to an isolation unit and housed in a single cell. Ex. 26 (Vasquez Tr.) 26-27, 34, 45; Tr. 120 (single celled).
117. In the absence of a test, the decision to place inmates in the isolation unit is a clinical decision made by MDC medical staff based on an inmate’s symptoms. Ex. 26 (Vasquez Tr.) 5658 (emphasis added), 61, 65, 66, 89-90, 120; Ex. LLL (Vasquez Decl.) p. 5 (Dkt. No. 80). Even Venters agrees that the decision to place an inmate in isolation is based in part on a “clinical decision.” Tr. 154-55 (emphasis added). Venters further agreed that he would not place an inmate
7 Inmates that come into the institution are placed under quarantine in the intake unit. Ex. 26 (Vasquez Tr.) 25-26; 31. The MDC places inmates in quarantine for 14 days before they are transferred out of the MDC. Ex. 26 (Vasquez Tr.) 25, 29-30. For the past month and a half, approximately seven units at the MDC, at various times, have been under quarantine. Vasquez Tr. 33.
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in the isolation unit based on one sign/symptom alone, but anticipates that inmates would have multiple signs/symptoms before they are placed in the isolation unit. Tr. 155.
118. The MDC transfers inmates, suspected of having COVID-19, to the isolation unit immediately without waiting for the tests results given that test results often take 1-2 days to arrive. Ex. 26 (Vasquez Tr.) 61-62, 115.
119. Inmates placed in isolation present with symptoms consistent with COVID-19. Inmates who remain in isolation have either have tested positive for COVID-19 or are “presumed positive.” Ex. 26 (Vasquez Tr.) 56, 61-63, 118. If the cellmate of the inmate, who had tested positive, develops symptoms, the cellmate also is transferred to the isolation unit and is “presumed positive.” Ex. 26 (Vasquez Tr.) 31, 34, 36-37, 61-63, 77, 85, 90, 118.
120. BOP staff at the MDC follow CDC guidelines in identifying potential COVID-19 symptoms, including fever, cough, shortness of breath. Ex. 26 (Vasquez Tr.) 119-20; Ex. LLL (Vasquez Decl.) pgs. 5-6, ¶¶ 17-19 (Dkt. No. 80).
121. Inmates that are presumed positive, in general, do not receive tests because the clinical management of the inmate is the same whether the inmate has tested positive or is presumed positive. Ex. 26 (Vasquez Tr.) 118-19. Ultimately, the MDC will treat the inmate’s symptoms regardless of whether they tested positive or are presumed positive. Ex. 26 (Vasquez Tr.) 118-19.
122. If the cellmate of an inmate, who has tested positive, is asymptomatic, the cellmate remains quarantined in his cell alone.8 Ex. 26 (Vasquez Tr.) 34, 85. All other asymptomatic inmates remain in their unit and are not placed in isolation. Ex. 26 (Vasquez Tr.) 66. However, if
8 Other than a cellmate of an inmate that had tested positive, no other inmates on a housing unit are considered a close contact with the inmate that tested positive because all inmates are currently secured in their respective cells. Ex. 26 (Vasquez Tr.) 34-35.
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other inmates on the same housing unit develop symptoms, medical staff make a clinical decision whether to presume those inmates as positive as well. Ex. 26 (Vasquez Tr.) 31-32.
123. Per CDC guidelines, asymptomatic inmates are not currently tested. Ex. 26 (Vasquez Tr.) 90, 129; Ex. AA (Tekbali Report) 2; Ex. LLL (Vasquez Decl.) ¶¶ 15-21 (Dkt. No. 80).
124. Given the limited number of tests available, the BOP does not test the symptomatic inmates from the same housing unit as an inmate who has tested positive, but would treat that individual as positive for COVID-19 if he develops symptoms, and monitor the inmate accordingly. Similarly, if an inmate on the same housing unit from which an inmate had a positive test, develops symptoms, then the BOP will presume that inmate as positive as well. Ex. 26 (Vasquez Tr.) 30-31.
125. The BOP’s practice has been to isolate inmates who have tested positive for COVID-19 and consider the cellmate presumptively positive, only if symptomatic. The BOP’s practice is consistent with CDC guidelines. Ex. AA (Tekbali Report) 5. Further, the BOP practice of isolating inmates, and presuming inmates positive is consistent with the standard of care in the community and given the CDC’s guidance limiting the use of widespread testing. Ex. AA (Tekbali Report) 4-5; Ex. G (“CDC Guidance on Management of COVID-19 in Correctional and Detention Facilities”); Ex. III (Flowers Decl.) (Dkt. No. 82) at Ex. A. If the cellmate remains asymptomatic, he remains quarantined in his cell. Ex. 26 (Vasquez Tr.) 34.
126. Venters criticizes the BOP for failing to have a medical exam room inside the isolation unit, but he testified he did not recall if there was clinical space in the unit. Tr. 85. However, consistent with CDC guidance, the medical exam room is located on the same floor and located immediately outside the isolation unit. Tr. 85; Ex. 26 (Vasquez Tr.) 75:16-76:17; Ex. RR
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(Beard Report) 7. 127. In the isolation unit, symptomatic inmates are housed in the upper tier of the
housing unit; other, non-symptomatic inmates are housed in the lower tier of the housing unit. Venters agrees that housing inmates separately on the upper and lower tier is consistent with CDC guidelines. Tr. 103.
128. Inmates have surgical masks to wear when interacting with staff or leaving the assigned cell and their proximity to staff and other inmates is minimized. Medical staff determine if COVID-19 testing is necessary based on applicable guidelines and community standards. If the inmate’s condition merits hospitalization, the inmate will be transported to a local hospital. Ex. YY (Jordan Decl.) ¶ 48 (Dkt. No. 47-1).
129. MDC follows a symptom-based approach to releasing inmates from isolation. Ex. 26 (Vasquez Tr.) 82. Inmates remain in the isolation unit for at least seven days after the onset of symptoms, and until at least 72 hours of improved symptoms, no fever, and no use of antipyretics as per CDC guidelines. Ex. 26 (Vasquez Tr.) 81-82; Ex. AA (Tekbali Report) 5.
F. BOP staff properly monitor high risk inmates at the MDC 130. As part of the ongoing effort to ensure the safety of the inmates at the MDC, Respondent directed BOP staff to create a list of inmates who are most at risk for potential complications for COVID-19. MDC has identified inmates who fall into categories designated by the CDC as higher risk for COVID-19. This list is updated periodically, especially as guidance by the CDC regarding who is at greater risk is updated. Ex. TT (King Decl.) ¶ 25 (Dkt. No. 18-1). Respondent already has taken steps to identify individuals who may be at risk of developing COVID-19 related complications. Ex. RR (Beard Report) 3. 131. BOP staff with the Health Services department reviewed inmate medical records to determine which individuals at MDC were considered “high risk” for complications due to
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COVID-19 pursuant to CDC guidelines. Ex. YY (Jordan Decl.) ¶ 34 (Dkt. No. 47-1) (BOP staff took a more conservative approach when compiling its initial list).9
132. These guidelines can be found at: https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/groups-at-higher-risk.html. Per CDC guidance, “high-risk” individuals include those over 65 and those with significant underlying medical conditions, such as chronic lung disease, moderate to severe asthma, liver disease, and diabetes. Ex. YY (Jordan Decl.) ¶ 33 (Dkt. No. 47-1); see also Tr. 93 (Venters).
133. Any inmate who presents with symptoms consistent with COVID-19 will be evaluated by a medical provider. Based upon this evaluation, a determination will be made whether isolation or testing is appropriate. Ex. YY (Jordan Decl.) ¶ 36 (Dkt. No. 47-1).
134. High-risk detainees are not at any greater risk of contracting the COVID-19 than non-high-risk detainees. Tr. 93, 154 (Venters); accord Ex. 26 (Vasquez Tr.) 206-08 (MDC protects all inmates, not just high-risk inmates); Ex. AA (Tekbali Report) 2.10
G. COVID-19 Testing at the MDC 135. At the conclusion of the preliminary injunction hearing, the Court noted that it is “disinclined to find deliberate indifference in having failed to conduct earlier testing given [] the supply limitations.” Tr. 553.
1. Given the limited availability of tests since the onset of the pandemic, the BOP does not have the capacity to test all inmates at the MDC
136. The CDC has identified four “priority levels” for testing individuals with a
9 To identify which inmates at the MDC should be considered “high risk,” staff searched the Bureau’s medical records for (1) all inmates aged 55 and over; and (2) all inmates who have been diagnosed with a condition identified by the CDC as being “high risk.” The MDC searched for inmates 55 and over, rather than 65 and older, in an abundance of caution and to be conservative in its approach to assessing risk. Ex. YY (Jordan Decl.) ¶ 34 (Dkt. No. 47-1). 10 Venters recommends cohorting high-risk detainees together. Tr. 93. The MDC does not cohort higher risk inmates. Ex. 26 (Vasquez Tr.) 208. Further, cohorting is not necessary because the best intervention for higher risk inmates is to limit their contact with other inmates, which the MDC has been doing. Ex. AA (Tekbali Report) 3.
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suspected COVID-19 infection. Ex. YY (Jordan Decl.) ¶ 43 (Dkt. No. 47-1); Ex. J. Priority levels one through three include hospitalized patients and healthcare workers with symptoms (Priority Level 1); symptomatic patients in long-term care facilities, individuals 65 years or older, individuals with underlying conditions, and first responders (Priority Level 2); and symptomatic critical infrastructure workers, individuals who do not meet any of the criteria in Priority Levels 1 or 2, healthcare workers and first responders, and individuals with mild symptoms in communities experiencing high numbers of COVID-19 hospitalizations (Priority Level 3). Id. The fourth, or non-priority level, is for individuals without symptoms. Id.
137. The CDC has made clear that “[n]ot everyone needs to be tested for COVID-19,” and “decisions about testing are at the discretion of state and local health departments and/or individual clinicians.” Ex. YY (Jordan Decl.) ¶ 44 (Dkt. No. 47-1); Tr. 284; see also cdc.gov/coronavirus/2019-ncov/symptoms-testing/testing.html.
138. As is well known, testing within New York City has been extremely limited given the lack of available tests and its status as one of the most densely populated metropolitan area in the country and the comparative lack of available tests for this size of a population. Ex. 26 (Vasquez Tr.) 122. In light of the limited tests available, the CDC has instructed the public to selfquarantine if they develop COVID-19 symptoms. Ex. AA (Tekbali Report) 2.
139. Like the broader community, testing at the MDC has been limited. Ex. 26 (Vasquez Tr.) 82; Ex. YY (Jordan Decl.) ¶ 47 (Dkt. No. 47-1). BOP has made numerous requests to LabCorp weekly for additional tests, but given the limited tests available, LabCorp has been unable to keep up with the demand for tests. Ex. 26 (Vasquez Tr.) 115-17.
140. At the MDC, decisions to test inmates are clinical decisions made by MDC health care professionals. Ex. 26 (Vasquez Tr.) 90, 117; Ex. AA (Tekbali Report) 2 (“decisions to test
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are based on clinical presentation and provider’s discretion.”); Ex. LLL (Vasquez Decl.) pgs. 4, 5; ¶¶ 15-21 (Dkt. No. 80). The decision whether to test an inmate for COVID-19 is made by BOP medical providers based on a number of criteria, which may include, but are not limited to: (1) the nature and severity of the symptoms; (2) the inmate’s potential exposure to COVID-19; (3) whether the inmate is considered “high-risk,” and (4) whether the inmate is on a work detail, such as food service, that requires the inmate to interact with other inmates or staff. Ex. YY (Jordan Decl.) ¶ 45 (Dkt. No. 47-1).
141. In the event that an inmate develops symptoms in a housing unit, and that individual is the first inmate to present with COVID-19 symptoms, the MDC tests that individual. Ex. 26 (Vasquez Tr.) 117, 119.
142. Importantly, MDC’s practice of presuming inmates as positive, rather than testing all symptomatic inmates—given the limited number of tests available both in the community and at the MDC—is consistent with CDC guidelines and the standard of care. Ex. AA (Tekbali Report) 5.
143. As of May 19, 2020, 6 MDC inmates have tested positive for COVID-19 and 39 staff members have tested positive for COVID-19. See https://www.nyed.uscourts.gov/pub/ bop/MDC_MCC_20200519_045055.pdf (Coronavirus(COVID-19) Information); see also Ex. YY (Jordan Decl.) ¶ 46 (Dkt. No. 47-1).
144. Pursuant to BOP Program Statement 6031.04, Patient Care, an inmate may request a clinical service, such as testing, through medical staff who will determine if the clinical service is medically necessary. See Ex. N; Ex. YY (Jordan Decl.) ¶ 50 (Dkt. No. 47-1).
145. Due to privacy concerns, the BOP does not inform inmates of a staff member who tests positive, because the staff member typically has not had close, prolonged contact with the
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inmate. Ex. 26 (Vasquez Dep.) 157-59, 162-63. In any event, inmates and BOP staff wear masks when they come into close prolonged contact as a pre-cautionary measure. Id. at 163.
2. BOP staff at the MDC are not tested by the BOP 146. Venters recommends that the BOP test staff who possess risk factors, or have signs or symptoms of COVID-19. Tr. 101. The BOP, however, does not use its limited tests to test staff members at the MDC because staff members may receive testing in the community, on their own. Ex. 26 (Vasquez Dep.) 145-46; Ex. WWWW (Ferguson-Houk Decl.) ¶ 12.
3. BOP announces expansion of testing 147. On May 7, 2020, the BOP announced efforts to expand rapid testing capabilities. See https://www.bop.gov/resources/news/pdfs/20200507_press_release_expanding _rapid_testing.pdf. H. BOP medical staff send inmates with acute conditions to local hospitals for
treatment, if necessary 148. During the pandemic, two inmates have been sent to local hospitals due to acute conditions, not specifically for COVID-19 symptoms, and those inmates received tests, at the hospital. Ex. LLL (Vasquez Decl.) ¶ 8 (Dkt. No. 80). One tested positive for COVID-19; the other tested negative. Ex. LLL (Vasquez Decl.) ¶ 8 (Dkt. No. 80). However, the hospital did not consider either inmate’s conditions serious and discharged both inmates back to the MDC. Ex. 26 (Vasquez Tr.) 185-8; Ex. TT (King Decl.) ¶¶ 27, 28 (Dkt. No. 18-1); Tr. 118-19 (Venters testifying that he was aware of only one inmate that had to go to the hospital due to COVID-19 symptoms). 149. The inmate who originally tested positive is no longer symptomatic, had been isolated, and consistent with CDC and BOP guidance, has been released to general population. Ex. TT (King Decl.) ¶ 29 (Dkt. No. 18-1). The situation is contained, but also continuously monitored for future developments, and further guidance and action as appropriate. Ex. TT (King
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Decl.) ¶ 30 (Dkt. No. 18-1). 150. Consistent with Venters’s opinion that if a person at MDC gets sick and they need
to go to the hospital, they should go to the hospital; this is precisely what is occurring at the MDC. Ex. RR (Beard Report) 5.
151. Even if an inmate were to go to the hospital for COVID-19, it would not, in and of itself, be sufficient to show deliberate indifference. Swain, 2020 WL 2161317, at *4 (“court treated the increase in COVID-19 infections as proof that the defendants deliberately disregarded an intolerable risk. In doing so, it likely violated the admonition that resultant harm does not establish a liable state of mind.”).
I. Inmate and Staff Education relating to COVID-19 152. From the outset of the COVID-19 pandemic, BOP staff members have taken significant steps to educate inmates regarding the pandemic. Ex. III (Flowers Decl.) ¶¶ 3, 19 (Dkt. No. 82); Ex. LLL (Vasquez Decl.) p. 8 (Dkt. No. 80). BOP staff members have provided regular updates to inmates and other staff regarding the virus and the BOP’s response, and have educated inmates and staff regarding measures that they themselves should take to stay healthy. Ex. YY (Jordan Decl.) ¶ 20 (Dkt. No. 47-1).
1. Inmate bulletins and town halls 153. BOP staff members have informed inmates about best practices regarding personal hygiene to prevent the spread of COVID-19. Ex. YY (Jordan Decl.) ¶ 21 (Dkt. No. 47-1); Ex. TT (King Decl.) ¶ 13 (Dkt. No. 18-1). Staff have conducted town hall meetings with the inmate population advising them of the symptoms of COVID-19, instructing them to self-monitor for COVID-19 symptoms, and to immediately report such symptoms to sick call. Ex. YY (Jordan Decl.) ¶ 21 (Dkt. No. 47-1). Specifically, Associate Warden Milinda King has met with all inmates at the institution both as a group, initially, and individually going cell to cell through “town halls”
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after the implementation of modified operations to educate them about COVID-19. Ex. 40 (King Tr.) 86-87.
154. Executive staff members conducted town halls on March 13, 2020, March 20, 2020, March 21, 2020, March 24, 2020, and March 27, 2020. As guidance changes, BOP staff members will continue to provide updates to the inmate population and staff members. Ex. RRRR; Ex. TT (King Decl.) ¶ 14 (Dkt. No. 18-1).
155. The BOP has posted electronic bulletins on TRULINCS, accessible to all inmates on the computer educating them about infection control practices including wearing masks and social distancing. Ex. 40 (King Tr.) 86-87; Ex. RRRR (inmate bulletins). Ex. YY (Jordan Decl.) ¶ 21 (Dkt. No. 47-1). Information bulletins have been posted on TRULINCS in both English and Spanish about COVID-19, symptoms, and the BOP’s response to the pandemic. Ex. TT (King Decl.) ¶ 14 (Dkt. No. 18-1).
156. CDC guidance posters have been placed throughout the institution. Ex. 40 (King Tr.) 86-87; Ex. RR (Beard Report) 6. Information sheets are posted in numerous locations around the MDC, including inmate housing units, the front lobby, on restroom doors, and within all departments. Ex. H; Ex. YY (Jordan Decl.) ¶ 21 (Dkt. No. 47-1).
157. BOP medical providers also have educated inmates on COVID-19 symptoms and safety measures. Ex. YY (Jordan Decl.) ¶ 22 (Dkt. No. 47-1). Department heads, Associate Wardens, and Warden also conduct rounds in the housing units, and are available to answer questions from inmates regarding personal hygiene practices. Ex. YY (Jordan Decl.) ¶ 22 (Dkt. No. 47-1).
2. BOP informs staff members about personal hygiene best practices 158. BOP staff members have explained best practices regarding personal hygiene to prevent the spread of COVID-19 to staff. Staff have been notified via email and in a recall (or all
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staff conference calls).11 Ex. TT (King Decl.) ¶ 13 (Dkt. No. 18-1). 159. Information sheets visible to staff members are posted in numerous locations
around the facility, including inmate housing units, the front lobby, and all departments. Staff are also notified of important updates by the BOP alert system known as the ops planner. Ex. VV (information sheets); Ex. TT (King Decl.) ¶ 13 (Dkt. No. 18-1).
160. Medical staff have been trained to appropriately don and remove PPE. This same training has also been made available to all staff at the institution. Ex. YY (Jordan Decl.) ¶ 23 (Dkt. No. 47-1).
J. Cleaning and sanitation 161. The MDC has more than an adequate supply of soap, sinks, water, personal hygiene products, toilet paper, cleaning supplies and PPE. Ex. 40 (King Tr.) 31-34, 38-40, 46-48; accord Ex. RR (Beard Report) 6-10; Ex. III (Flowers Decl.) ¶¶ 25-26 (Dkt. No. 82); Ex. ZZ (King Decl.) ¶¶ 7-15 (Dkt. No. 81); Ex. XXXX (Rohlfs Decl.) ¶¶ 4-10, 18. MDC staff conduct daily inventory to ensure an adequate supply of PPE. Ex. 40 (King Tr.) 32.
1. All inmates receive soap and have access to personal hygiene materials through commissary
162. All inmates have access to sinks, water, and soap at all times. Ex. TT (King Decl.) ¶ 11 (Dkt. No. 18-1). New inmates admitted to the MDC receive soap, and all inmates may receive new soap upon request. Ex. YY (Jordan Decl.) ¶ 51 (Dkt. No. 47-1). Soap also is made available to all inmates weekly, and upon request. Ex. 40 (King Tr.) 26-28, 31; Ex. ZZ (King Decl.) ¶¶ 1518 (Dkt. No. 81).
163. Soap is delivered to all unit teams on a biweekly basis. Ex. TT (King Decl.) ¶ 11 (Dkt. No. 18-1). An inmate may request additional soap from unit team if he or she needs to, or
11 A recall is another name for a facility-wide meeting that staff are encouraged to attend.
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purchase soap from commissary. Ex. TT (King Decl.) ¶ 11 (Dkt. No. 18-1). 164. For inmates without sufficient funds to purchase soap in the commissary, soap is
provided at no cost to the inmate. Inmates are able to wash their clothing and linens twice weekly. Ex. YY (Jordan Decl.) ¶ 51 (Dkt. No. 47-1).
165. Additional personal hygiene materials are available to inmates through the commissary that staff members retrieve for inmates. Ex. 40 (King Tr.) 46-48; Ex. ZZ (King Decl.) ¶¶ 3-10 (Dkt. No. 81).
166. Guidance from the BOP’s Central Office Health Services Division indicates that any type of soap (whether anti-bacterial or deodorant) is effective as long as proper handwashing procedures are followed. Ex. TT (King Decl.) ¶ 12 (Dkt. No. 18-1). Additionally, hand washing with soap and water is superior to using hand sanitizer. Ex. TT (King Decl.) ¶ 12 (Dkt. No. 18-1). Hand sanitizer is a last resort when soap and water are not available, which they are. Ex. TT (King Decl.) ¶ 12 (Dkt. No. 18-1). Hand sanitizer is available throughout the MDC, and the MDC has sufficient sanitizer in stock. Ex. 40 (King Tr.) 35-37. Staff have regular, consistent access to soap and hand sanitizer. Soap is located in staff restrooms and hand sanitizer is located in various staff common areas. Ex. YY (Jordan Decl.) ¶ 54 (Dkt. No. 47-1).
2. Enhanced sanitation procedures 167. Additional sanitation procedures have been put in place. The BOP has increased sanitation frequency at the MDC. Frequent cleaning of all common area high-contact surfaces is being conducted throughout the day. Common areas outside inmate living areas, including the MDC lobby, bathrooms, are also cleaned with the same disinfectant on a daily basis (and often multiple times per day). Ex. YY (Jordan Decl.) ¶ 52 (Dkt. No. 47-1); Ex. TT (King Decl.) ¶ 15 (Dkt. No. 18-1). Housing units are cleaned daily and more frequently, including high touch areas, by inmate orderlies or staff. Ex. 40 (King Tr.) 40, 52-55. All common areas in inmate housing
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units are cleaned daily, and are typically cleaned by inmate orderlies multiple times throughout the day, with a designated disinfectant known to kill human coronavirus. Ex. YY (Jordan Decl.) ¶ 52 (Dkt. No. 47-1).
168. Each housing unit has been stocked with cleaning supplies for use by inmate orderlies and other inmates to clean both the common areas and their individual housing areas on a daily basis. Ex. YY (Jordan Decl.) ¶ 53 (Dkt. No. 47-1).
169. The MDC also uses a strong disinfectant and cleaning solution as result of the pandemic (i.e., HDQC2). Ex. 40 (King Tr.) 40, 53, 60-61; Ex. RR (Beard Report) 6, 8; Ex. III (Flowers Decl.) ¶ 27 (Dkt. No. 82); Ex. LLL (Vasquez Decl.) p. 5 (Dkt. No. 80). The BOP has authorized the use of a stronger cleaning agent made available to all inmates. Ex. LLL (Vasquez Decl.) pgs. 5-6 (Dkt. No. 80). Stronger cleaning supplies have been issued and used by inmates and staff alike. Ex. TT (King Decl.) ¶ 15 (Dkt. No. 18-1).
170. BOP staff members have made disinfectant available to all inmates so that they may use it to clean their own living areas on a regular basis. Ex. YY (Jordan Decl.) ¶ 52 (Dkt. No. 471). Inmate orderlies have been provided cleaning materials, and cleaning supplies are available on the housing unit for use by inmates to clean their personal living spaces (cells). Ex. TT (King Decl.) ¶ 16 (Dkt. No. 18-1). Inmates are required to clean their own cells daily, and are provided cleaning supplies that they can keep in their cells. Ex. 40 (King Tr.) 40, 42, 44-46.
171. Inmates are not provided with hand sanitizer due to security concerns. Specifically, inmates are not permitted to have access to alcohol and products containing alcohol because inmates may attempt to remove and consume the alcohol, thereby causing health and safety concerns for inmates and staff. Ex. YY (Jordan Decl.) ¶ 53 (Dkt. No. 47-1).
172. Whether the cleaning is performed by inmates or staff is of no significance as there
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is no allegation that the inmates are somehow unable to clean as effectively as others, nor does the standard of care require the use of professional cleaners. Ex. AA (Tekbali Report) 3.
3. Phones and computers are routinely cleaned 173. With respect to phones and computers used by inmates, there are disinfectant spray bottles and wipes next to the phones and computers, which are placed there when inmates are released from their cells on Mondays, Wednesdays and Fridays. Ex. 40 (King Tr.) 40, 57-58; Ex. 26 (Vasquez Tr.) 35; Ex. LLL (Vasquez Decl.) p. 6 (Dkt. No. 80). Inmates are required to disinfect the phones and computers both before and after they are used. Ex. 40 (King Tr.) 56-57; Ex. RR (Beard Report) 6, 8. If the inmate neglects to do so, inmate orderlies will wipe down the phones and computer before the next inmates uses those items. 174. Showers also are disinfected before and after each use. Ex. 40 (King Tr.) 58-59.
4. MDC was “deep-cleaned” after an inmate tested positive 175. Once BOP staff members learned that an inmate tested positive for COVID-19, BOP staff conducted a deep clean of the facility. Ex. TT (King Decl.) ¶ 17 (Dkt. No. 18-1). Inmate orderlies were provided PPE in order to assist in cleaning during this period. Ex. TT (King Decl.) ¶ 17 (Dkt. No. 18-1). K. All inmates and staff provided with PPE
1. Masks have been provided to all inmates and staff 176. Beginning on or about April 5, 2020 inmates were provided a surgical mask; every inmate at the MDC has a mask, which is distributed once per week; inmates can ask for replacement masks as well. Ex. 40 (King Tr.) 69, 76; Ex. 26 (Vasquez Tr.) 74; Ex. ZZ (King Decl.) ¶¶ 20-25 (Dkt. No. 81); Ex. ZZ (King Decl.) ¶ 20 (Dkt. No. 81); Ex. LLL (Vasquez Decl.) p. 8 (Dkt. No. 80); Ex. YY (Jordan Decl.) ¶ 56 (Dkt. No. 47-1). 177. Two masks are distributed to BOP staff once per week. Ex. 40 (King Tr.) 69, 76;
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Ex. LLL (Vasquez Decl.) p. 8 (Dkt. No. 80). BOP staff wear masks unless they are able to social distance. Ex. 40 (King Tr.) 71; Ex. AA (Tekbali Report) 7. Consistent with CDC guidelines, when BOP staff members are able to social distance, from each other, masks are not required. Ex. 40 (King Tr.) 71; Ex. AA (Tekbali Report) 7; Ex. LLL (Vasquez Decl.) pgs. 6, 8 (Dkt. No. 80). Cloth masks have now been issued which will be washed and reused. If there is an issue with one of their cloth masks, inmates can request a replacement. Ex. ZZ ¶ 20. On April 30, 2020, Rabadi received three cloth masks. Id. at ¶ 21. On April 30, 2020, Hair received three cloth masks. Id. at ¶ 22. On April 28, 2020, Lopez received three cloth masks. Id. at ¶ 23.
178. MDC procedures for distributing masks to inmates and staff are consistent with the standard of care. Ex. AA (Tekbali Report) 5.
2. Staff provided with additional PPE for quarantine, isolation, and screening areas
179. BOP staff members have been provided additional PPE to be used in appropriate locations throughout the MDC such as quarantined areas, isolation units, and screening sites. Ex. TT (King Decl.) ¶ 20 (Dkt. No. 18-1); Ex. YY (Jordan Decl.) ¶ 55 (Dkt. No. 47-1).
180. When BOP staff enter the quarantine and isolation units, they have PPE available to them, and if not available, are able to request PPE. Ex. 26 (Vasquez Tr.) 50-51, 59-61, 82-83; Ex. 40 (King Tr.) 81. In the event that staff are expected to come into contact with inmates in those units, they must wear appropriate PPE. Ex. 26 (Vasquez Tr.) 51, 59-61, 82-83; Ex. 40 (King Tr.) 72-74; Ex. RR (Beard Report) 6, 7, 10. On other occasions, because inmates are secured in their cells, the full set of PPE is not necessary. Ex. 26 (Vasquez Tr.) 51; Ex. 40 (King Tr.) 75-76; Ex. LLL (Vasquez Decl.) p. 6 (Dkt. No. 80).
181. BOP staff follow CDC guidance with respect to wearing PPE. Ex. 40 (King Tr.) 86; Ex. AA (Tekbali Report) 5; Ex. LLL (Vasquez Decl.) p. 6 (Dkt. No. 80); Ex. ZZ (King Decl.)
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¶ 19 (Dkt. No. 81). For example, BOP staff are not required to wear gloves, but, instead are encouraged to wash their hands, per CDC guidelines, unless they are handling unsafe items, working in the isolation unit or expect to touch inmates. Ex. 40 (King Tr.) 81, 83; Ex. AA (Tekbali Report) 6.
182. Surgical masks are available to all BOP staff members, and for those staff members who have not received fit-testing for N-95 respirator masks, additional testing is being performed if requested by staff. Ex. TT (King Decl.) ¶ 20 (Dkt. No. 18-1).
183. MDC has sufficient PPE on hand, including N-95 respirator masks, surgical masks, and nitrile gloves, to meet its current and anticipated needs, as well as the ability to order additional PPE should the need arise. Ex. YY (Jordan Decl.) ¶ 55 (Dkt. No. 47-1).
L. Efforts to promote social distancing and reduced group meetings have been successful
184. Since approximately April 1, 2020, all inmates at the MDC have been subject to modified operations, including being secured in their cells. Ex. YY (Jordan Decl.) ¶ 15 (Dkt. No. 47-1); Ex. III (Flowers Decl.) ¶ 7 (Dkt. No. 82). Inmates are permitted to exit their cells on Monday, Wednesdays, and Fridays, initially for thirty minutes, but now for one-hour each. Ex. 40 (King Tr.) 87-88. When inmates are permitted to exit their cells, they are required—consistent with CDC guidance—to wear masks.12 Ex. 40 (King Tr.) 78, 86-87; Ex. LLL (Vasquez Decl.) p. 6 (Dkt. No. 80).
185. To promote social distancing, BOP staff limit the number of inmates that may exit their cells at any given time limiting the number to 10 inmates at staggered periods. Ex. 40 (King Tr.) 87-89. Venters acknowledges that “staggering” is “appropriate” to promote social distancing.
12 Venters conceded that CDC guidelines do not specify that N-95 masks must be used. Tekbali agrees that the use of N-95 masks for inmates is unnecessary and not consistent with guidelines. Ex. AA (Tekbali Report) 3.
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Tr. 145; accord Ex. AA (Tekbali Report) 7.13
186. Most of the inmates at the MDC are double-celled, except inmates in the isolation
unit. Given space and staffing limitations, the MDC is unable to accommodate all inmates in
single cells. Ex. 26 (Vasquez Tr.) 34, 38. Regardless, CDC guidance provides for detention
centers to cohort inmates in light of space limitations. Ex. 26 (Vasquez Tr.) 34, 38.
187. Further, after the onset of the pandemic, there has been a significant decrease in routine group meetings among inmates and staff. Ex. TT (King Decl.) ¶ 19 (Dkt. No. 18-1).14 VI. The BOP has implemented infection control procedures recommended by the CDC
188. The CDC has issued guidance relating to COVID-19 infection control procedures
that are considered authoritative. See, e.g., Tr. 130-31 (Venters). Further, the CDC has issued
guidance for appropriately mitigating the COVID-19 risk in correctional facilities. Ex. JJJ
(Flowers 2-27) (Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities).15
189. Guidance from the CDC provides for flexibility depending on the unique
circumstances and space limitations of the prisons. “The guidance may need to be adapted based
on individual facilities’ physical space, staffing, population, operations, and other resources and
13 Female inmates are housed in a dormitory-style women’s unit. Ex. 26 (Vasquez Tr.) 101; Flowers Decl. (Dkt. No. 82) ¶ 15 Although their bunks may be less than six feet away from each other, the MDC has endeavored, where possible, to alternate bed assignments where one inmate sleeps on the top bunk, and the neighboring inmate would sleep on the bottom bunk. Ex. 40 (King Tr.) 96-97. When female inmates arrive, they are initially quarantined and housed individually in single cells. Ex. 26 (Vasquez Tr.) 100. After the quarantine period, assuming the inmate is asymptomatic, the female inmates are then transferred to the women’s general housing unit. Ex. 26 (Vasquez Tr.) 100-01. Female inmates are required to wear masks in the unit, if they are unable to social distance. Ex. 40 (King Tr.) 96-97, 101; Ex. 26 (Vasquez Tr.) 102; Ex. III (Flowers Decl.) ¶¶ 17, 22-23 (Dkt. No. 82). Given the size of the housing unit, and the number of female inmates, the inmates in the women’s unit are able to engage in social distancing. Ex. 26 (Vasquez Tr.) 102. 14 Access to legal counsel remains of paramount importance at the MDC. The MDC is mitigating the risk of exposure by increasing the amount and provision of legal calls and now offering video teleconferences (VTC) with attorneys on a limited basis. Ex. TT (King Decl.) ¶ 21 (Dkt. No. 18-1). 15 https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdf.
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conditions.” Ex. JJJ, Flowers 2; Ex. G.16 BOP staff at the MDC have implemented many of the guidelines suggested by the CDC, as discussed below:
190. Staff rounds. CDC guidance recommends that prisons, “[c]onsider having healthcare staff perform rounds on a regular basis to answer questions about COVID-19.” Ex. JJJ, Flowers 13. As for monitoring inmates in quarantine, CDC guidance states “quarantined individuals should be monitored for COVID-19 symptoms twice per day, including temperature checks.” Ex. JJJ, Flowers 22. Consistent with CDC guidance, BOP is performing twice-daily medical rounds in isolation and quarantine and conducting temperature and wellness checks during those rounds. The MDC is also conducting twice-daily medical rounds in all other units. Correctional staff also perform rounds in every housing unit every 30 minutes. See section V.A.1, above.
191. Cleaning. The CDC recommends intensified cleaning and disinfecting procedures to include cleaning and disinfecting surfaces and objects that are frequently touched using cleaners as appropriate for the surface. Ex. JJJ, Flowers 10. The CDC recommends ensuring adequate supplies to support intensified cleaning and disinfection practices, and to have a plan in place to restock rapidly if needed. Ex. JJJ, Flowers 8. The BOP has enhanced cleaning protocols in place along with adequate supplies. See section V.J, above.
192. Social distancing. The CDC acknowledges that social distancing strategies will need to be tailored to the individual space in the facility and the needs of the population and staff. Ex. JJJ, Flowers 12. Strategies include: suspend group programs where participants are likely to be in closer contact than they are in their housing environment. Ex. JJJ, Flowers 12. The BOP
16 “At this time, different facility types (e.g., prison vs. jail) and sizes are not differentiated. Administrators and agencies should adapt these guiding principles to the specific needs of their facility.” Ex. JJJ, Flowers 4 (emphasis in original)
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has suspended group activities and allows inmates out of their cells at staggered times to promote social distancing. See section V.L, above.
193. Testing. With respect to testing, CDC guidance provides that testing is a clinical decision. “Clinicians should use their judgment to determine if a patient has signs and symptoms compatible with COVID-19 and whether the patient should be tested.” See Evaluating and Testing Persons for Coronavirus Disease 2019 (COVID-19) (https://www.cdc.gov/coronavirus/2019ncov/hcp/clinical-criteria.html), Ex. AA, Tekbali 19. CDC guidance does not contemplate testing all symptomatic inmates before they are placed in isolation. See id.
194. Contrary to CDC guidance, Venters advocates testing all MDC inmates regardless of whether they have symptoms, starting with high risk inmates. Tr. 93. Venters’s opinion is not supported by CDC guidance.
195. In the absence of testing, consistent with CDC guidance, inmates at the MDC are evaluated and treated as indicated even if a presumed positive case is identified. Testing does not change BOP’s clinical management of the symptoms. Ex. 26 (Vasquez Tr.) 118-19.
196. CDC guidance states: “As soon as an individual develops symptoms of COVID19, they should wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals.” Ex. JJJ, Flowers 16. See section V.E, above, regarding isolation procedures.
197. Similarly, to come off isolation, the CDC does not require testing of those individuals either. “For individuals who will NOT be tested to determine if they are still contagious:
• The individual has been free from fever for at least 72 hours without the use of fever-reducing medications; and The individual’s other symptoms have improved (e.g., cough, shortness of breath); and
• At least 7 days have passed since the first symptoms appeared
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Ex. JJJ, Flowers 18 (emphasis added). 198. Further, for inmates in a quarantine unit, CDC contemplates that inmates that
become symptomatic need not be tested. CDC guidance provides: “If an individual who is part of a quarantined cohort becomes symptomatic . . . . If the individual is not tested for COVID-19: the 14-day quarantine clock for the remainder of the cohort must be reset to 0.” Ex. JJJ, Flowers 22
199. Medical exam room. CDC guidance with respect to the location of exam rooms provides: “If possible, designate a room near each housing unit to evaluate individuals with COVID-19 symptoms, rather than having them walk through the facility to be evaluated in the medical unit.” Ex. JJJ, Flowers 12; see also Ex. JJJ, Flowers 11. Since the onset of the pandemic, BOP medical staff have been providing treatment on every housing unit and every housing unit as a medical exam room on the same floor as the unit. Tr. 85. VII. Hearing Testimony
A. Venters acknowledges significant steps taken by MDC to control the spread of COVID-19
200. Petitioners relied on the opinion of Venters who admitted in the past to engaging in scientific misconduct by falsifying data to reach his desired conclusions. Tr. 66-69, 128-29. The Court similarly should disregard Venters’s opinions that rely nearly exclusively on unchallenged inmate interviews and declarations that support his desired conclusions.
201. Venters has no experiencing dealing with COVID-19 in either a clinical or correctional setting. Venters has not published any scholarly articles in peer-reviewed journals relating to COVID-19. Tr. 126. The only article Venters has written relating to COVID-19 is an op-ed in the Hill advocating for change in the prison system. Tr. 126. Further, Venters admittedly has not seen any patients in the past there years, Tr. 130.
202. Venters has no experience working in a federal correctional system, Tr. 126, and
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suggests that his work at the Rikers Island correctional facility applies to the MDC, even though Rikers and the MDC differ significantly in terms of size and inmate population. Tr. 163-64; Ex. RR (Beard Report) 4-5.
203. On April 23, 2020, Venters conducted an inspection of the MDC. Tr. 71-72. Venters visited the intake unit, several housing areas, the Health Services unit, SHU, a cadre unit, a unit under quarantine, and the isolation unit. Tr. 72.
204. During the inspection, Venters talked to 17 inmates, Tr. 72, half of whom were preselected by Petitioners’ attorneys. Tr. 127, 134-35. Inmates were questioned both by Venters and attorneys appearing on behalf of Petitioners. Tr. 135.
205. Venters’s unreliable recollection of inmate conversations. His recollection of inmate conversations was unreliable. Venters recounts in detail in his report conversations he had with specific inmates, however, approximately 12 hours earlier during his deposition, Venters could not recall, inter alia, the name of a single inmate -- except the first name of one inmate in the isolation unit -- who he had talked to during the inspection. Tr. 132. Further, during his deposition, Venters could not quantify with any precision the number of inmates who raised certain complaints. Tr. 132.
206. As set forth in detail below, Venters admitted to a number of items he observed that underscore the flaws in his opinion. For example, during his inspection, Venters admitted that he observed inmates with soap, Tr. 137, 145; inmates had cleaning supplies and disinfecting solution, Tr. 137, 146; he observed staff and inmates wearing masks, Tr. 146; he saw disinfectant spray bottles and wipes in the housing units, Tr. 146; and he conceded that he is not aware of any inmates at the MDC who should be hospitalized. Tr.153.
207. Inmates tell Venters that they had been seen by medical staff. With respect to
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Venters’s opinion relating to sick call, Venters has no knowledge whether a healthcare provider responded to a sick call request. Tr. 138, 141. Venters’s assessment of BOP’s response to sick call requests was based primarily on what inmates had told him. Tr. 139-40. But, as set forth in sections VIII and IX, below, information relayed to Venters by inmates is inherently unreliable.
208. Venters’s assessment of non-responsiveness to sick calls was based, again, on unreliable representations from inmates, and on his review of only one set of patient records. Tr. 140, 141. Venters’s reliance on only one set of inmate records to extrapolate as to the BOP’s response to all inmate sick call requests is inherently unreliable especially where, as here, inmates also relayed to him that BOP medical staff had, in fact, responded to sick call requests, and inmates told him that they had been seen by healthcare staff. Tr. 148.
209. Venters’s assertion that he observed a nurse, conducting a temperature check on an inmate, but not a wellness check was based on a single nurse he observed for only a “few minutes.” Venters then extrapolates from that one brief encounter, his general assertion that BOP staff members were only conducting temperature checks, but not wellness checks. Tr. 142-43.
210. Even assuming medical staff do not ask inmates about symptoms, during wellness checks, which BOP denies, Venters acknowledged that during those encounters, inmates still could self-report any symptoms they may be experiencing to the medical staff. Tr. 144.
211. Nevertheless, Venters admittedly observed temperature checks being performed. Tr. 143. Venters also observed BOP staff members using hand sanitizer before and after donning and doffing PPE. Tr. 146.
212. Inmates tell Venters they have cleaning supplies. During the inspection, inmates told Venters that they had cleaning supplies and had cleaned their own cells. Tr. 146. Venters admitted that he did not inspect any of the MDC’s inventory during the inspection with respect to
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cleaning or disinfectant solutions. Tr. 136. 213. Venters agrees with BOP procedures. Venters agreed with the BOP’s procedures
for denying symptomatic staff from coming to the MDC. Tr. 150. He also agreed with the BOP’s procedures for taking inmates off quarantine. Tr. 151.
214. Venters concedes that his opinion relating to testing is inconsistent with CDC guidance. Venters advocated for increased testing of both inmates and staff, but admitted his opinion was not supported by any CDC guidance. Tr. 159-162; see also section V.G, above (CDC guidance regarding testing). Venters acknowledged that there is no one standard of care when it comes to testing high-risk patients, nor has the CDC provided clear guidelines as to which individuals should be tested or testing as it comes to the correctional setting. Tr. 159-60. Venters further agreed that there has been a shortage of tests. Tr. 160-61.
215. Venters’s claims relating to N-95 masks are inconsistent with CDC guidance. Venters opined that symptomatic patients should receive an N-95 mask. Tr. 158, 256. However, CDC guidance does not recommend giving inmates N-95 masks. Ex. G (BOP 111); Ex. JJJ, Flowers 26; Tr. 158-59, 268-69; Ex. AA (Tekbali Report) 3. Venters conceded that CDC guidelines do not specify that N-95 masks must be used by patients. Tr. 158-59.
216. Venters further claimed that staff in the isolation unit should wear N-95 masks. Tr. 104. However, Venters’s opinion is inconsistent with CDC guidance. As CDC guidelines make clear, N-95 masks are reserved for health care professionals and first-responders. Ex. AA (Tekbali Report) 3; Tr. 271. N-95 masks are readily available to BOP staff at the MDC when needed. Ex. 26 (Vasquez Tr.) 50.
217. Venters’s opinion of cohorting high risk inmates places them at greater risk of COVID-19-related complications. Venters recommended cohorting high risk inmates. Tr. 93,
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95. However, Respondent’s expert, Asma Tekbali, credibly testified that cohorting high risk inmates increases, not decreases, their risk of infection and serious complications if they were to contract the virus. Tr. 238, 259. Further, the MDC does not have enough open empty units to move approximately 390 high risk inmates to house together. Ex. 26 (Vasquez Tr.) 209. MDC does appropriately monitor and look at risk factors when units are designated as quarantine based off of a symptomatic inmate being identified.17 See section VII B.2 (dashboard). Further, there are security concerns that may exist in cohorting high risk patients together. Tr. 95 (Venters); Tr. 346-47 (Beard).
218. Venters observes inmates and staff wearing PPE. Venters criticized the perceived lack of PPE at the MDC; however, during the inspection, Venters did not ask to see any room that had PPE or the MDC’s inventory. Tr. 144-45. Nevertheless, Venters testified that he saw staff with surgical masks. Tr. 105. Venters conceded that PPE, including gowns and masks, are worn when interacting with people who have COVID-19. Tr. 105. However, inmates are locked in their cells and there was no direct contact between staff and inmates at the time of Venters’s inspection. Tr. 83-84. Venters further found that most staff members had masks on, and observed inmates wearing masks as well. Tr. 105.
219. Daily exams of symptomatic patients in a clinical setting is not called for by the CDC. Venters opined that inmates in the isolation unit need to be seen daily in a clinical setting, rather than in their cell. Tr. 161-62. However, this opinion is not based on any accepted standard of care. Tr. 242 (Tekbali). Further, inmates in the isolation unit are able to be examined in their own cell where BOP staff can check, inter alia, an inmate’s temperature, and oxygen levels. Tr. 162-63. Venters is also aware that medical staff go into the units 1-2 times per day to
17 In terms of Venters’s recommendations in ¶ 64 of his report, prior to the filing of this action, MDC had already implemented many of his recommendations. Ex. LLL (Vasquez Decl.) pp. 2-8.
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see inmates. Tr. 153-54. Further, Venters acknowledged that inmates are sent to a local hospital if BOP staff at the MDC are not able to treat them. Tr. 149.
B. Venters’s methodology of relying reflexively on inmate allegations is flawed 220. Throughout his report, Venters relies primarily on inmate allegations to support his findings in the report. For example, he concludes that MDC is not screening inmates arriving at the facility nor are they keeping track of such symptoms based only on the stories of two inmates who, according to Venters, were not screened. Tr. 78-80; Ex. 25 (Venters Report) ¶ 18; Ex. 25 at 7 n. 2. Venters, however, did not review documentation confirming whether the inmates had been screened. Tr. 156-57. 221. The documentary evidence proves otherwise. Both of these inmates were screened and asked about possible symptoms, and those screenings were properly documented by MDC staff. Ex. ZZZZ (inmates screened and symptoms checked; boxes checked or a line drawn through them). Since these inmate allegations are not reliable, the Court should find that Venters’s conclusions are not reliable either. The challenges with relying on unsubstantiated inmate recollection is evidenced by Venters’s reliance on statements that two inmates were not screened upon entering MDC.18 See sections VIII and IX, below (challenging inmate declarations). C. Assistant Director Nicole English credibly testified that the allegations in
Venters’s report were “not accurate” 222. BOP Assistant Director of Health Services Nicole English oversees medical and health services for all of BOP, and is responsible for overseeing the clinical and non-clinical health
18 Based on these allegations alone, Venters condemned the BOP for not properly screening inmates and added an assumption that they had insufficient documentation where they did. This, of course, fell apart when Respondent introduced exhibit ZZZZ, the records documenting the screenings of the two inmates in question – signed by the medical staff who conducted the screenings. Petitioners’ counsel reflexively challenged these documents, but Respondent submits that this argument is not credible; it makes no sense that medical staff would skip required screenings, potentially risking exposure not only to inmates but to themselves and their colleagues because the disease does not discriminate between inmate and staff, and then try some halfhearted cover up. The simpler, and credible, explanation is that these two inmates at issue were simply not accurate in what they reported to Venters, and Respondent submits the same principle applies to many of the inmate allegations upon which Venters’s findings rely.
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staff. Tr. 166-68. She is heavily involved in proposing and distributing nationwide protocols to combat COVID-19. Tr. 168. She also is familiar with the MDC, having been there on inspections to address previous issues at the institution. Tr. 169.
223. English explained the importance of mitigating the risk posed by COVID-19 by detailing the experience of two other BOP institutions, where, unlike the situation at MDC, there was an outbreak of COVID-19. English described the hallmarks of an outbreak from her description of Elkton, Ohio, where the Ohio National Guard had to be deployed, or Oakdale, Louisiana where the CDC had to come help with inmate treatment on an emergency basis. Tr. 176-77, 197.
224. The BOP took Venters’s allegations in his report so seriously that English received a call from the Deputy Director of the BOP -- second in command at the BOP -- and was directed to assemble a team within 90 minutes of the call, and prepare for a surprise, unannounced inspection of the MDC the very next day -- Saturday, May 2, 2020 -- to verify the allegations in Venters’s report. Tr. 168-69, 171.
225. English is fully aware of the consequences of an outbreak, and, as a result, was concerned when she reviewed Venters’s report setting forth allegations about the state of affairs at MDC, allegations she considered “alarming.” Tr. 204-05. English had deep concerns about ensuring that MDC was properly implementing BOP’s well thought out COVID-19 protocols and guidelines, which she explained, were based on CDC guidance. Tr. 204.
226. English assembled a team of experts for that tour – Andre Matevousian, who specializes in security and correctional programs; Zachary Kelton, from BOP’s General Counsel’s office; and [Commander] Michael Bonislawski with the Public Health Service who serves as an emergency response nurse. Tr. 170-71. English selected Bonislawski for her team because she
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wanted someone experienced in the daily operations of working in a sick call environment and such expertise was more valuable than a clinic director or physician who does not perform these kind of critical, front line duties. Tr. 202-03. With this team, English ensured she had the knowledge base to obtain an informed view of the current situation at MDC.
227. It was important to English that the inspection be unannounced – English and her team took painstaking steps in this regard. Tr. 169-70, 208. Not only was the Respondent Warden Edge not notified in advance, but neither was his supervisor, the Northeast Regional Director. Tr. 169-70.
228. English and her team met at 11 a.m. on a Saturday, organizing the inspection from a Post Office in yet another effort to avoid advance notice to MDC. Tr. 169-70. The Deputy Director of the BOP then called the Regional Director, and the inspection team arrived unannounced at the MDC at 11:30 a.m. Tr. 169-71. The BOP staff at the MDC did not even have time to tell Warden Edge about the inspection between the team’s arrival and their meeting with him – English was the first to tell Warden Edge the inspection was occurring. Tr. 172.
229. Before arriving at MDC, she had deep concerns based on Venters’s report, especially since she knew MDC had a new warden and that she had been underwhelmed by MDC’s cleanliness in her prior visit in December 2019. Tr. 172-73, 175.
230. English credibly testified that she was “pleasantly surprised” to learn staff “were doing what they needed to do to keep themselves and the inmates safe.” Tr. 175 (emphasis added).
231. Once inside the MDC, English’s team members were assigned to inspect specific areas of the MDC based on their areas of expertise. Matevousian inspected the quarantine, isolation, special housing unit, and several general housing units. Tr. 209. Kelton inspected all of the general housing units, the legal setup for the video conferencing, and a number of common
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areas. Tr. 209. Bonislawski spent a majority of the time in the quarantine, special housing and general housing units, and additional time in the Health Services Department looking at BEMR (Bureau Electronic Medical Records), BOP’s electronic medical records system, and the sick call processes in the institution. Tr. 209-10. Each one of the staff members sent English their findings that she incorporated into her report (Ex. OOO). Tr. 210. The subject matter experts visited the quarantine and isolation units and SHU. Tr. 173.
232. English spoke to approximately 30 staff members. Tr. 211. She observed the medical rounds and staff members talking to inmates through their cell doors. Tr. 212. In addition, English observed staff taking temperatures during rounds. Tr. 213.
233. English was very impressed by what she saw: namely, how clean the institution was; how the BOP COVID-19 action plan was activated; how screening was employed; how social-distance policies were put in place; how personal protective equipment was used; and infection control practices were put in place. Tr. 175.
234. English testified that while not required to be at MDC on Saturday, Warden Edge was present at the facility when she and her team arrived suggesting that this speaks highly about his leadership and his caring about the safety, security and health needs of those in his institution – the polar opposite of indifference. Tr. 225-26.
235. English and the Warden visited every floor of the institution. Tr. 173. The inspection lasted approximately three and a half hours. Tr. 174.
236. Her detailed report, which she finalized by May 4, 2020, Tr. 174, 200, is found at Exhibit OOO and is summarized below:
1. Entry point screening – Ex. OOO at MDC 3 237. English and her team were screened at the front lobby where they had their temperature checked and were asked a series of questions regarding whether any of them were
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symptomatic. Tr. 171, 177-78. The information was annotated on a screening form. Tr. 171, 17778. English was wearing a mask and was asked whether she wanted to wear gloves. Tr. 171-72. English found that BOP staff members had followed protocols as it related to staff screening at the front lobby. Tr. 177.
238. Specifically, English and her team observed the front lobby officer and the processing of incoming staff to the facility. The officer administered a questionnaire regarding general staff wellness and any symptoms related to the COVID-19 virus. The officer took the staff temperature and recorded all of the data on a screening form. The staff entering were given face coverings or surgical masks upon request, if they were not already wearing a face covering. In addition, disposable gloves were observed on-site for staff use. Ex. OOO (MDC 3).
239. A shift change occurred at 2:00 p.m. English and her team observed staff entering and exiting the secure portion of the institution. In each instance, staff were observed wearing face coverings, and avoiding contact with other staff. Staff minimized their finger/hand contact with high-touch surfaces such as Sallyport doors. Staff entering and exiting were occasionally reminded, “not to touch [their] face,” and to use hand sanitizer regularly. Information about COVID-19 and prevention/mitigation strategies was also observed to be easily accessible in the front lobby area. Ex. OOO (MDC 3-4).
2. Inmate screening tools – Ex. OOO at MDC 4 240. English further found that the inmate screening tool was being used appropriately. Tr. 178. Specifically, English reported that protocols established indicated that all new detainees and returning inmates are screened by BOP Health Services staff, using the national inmate screening tool, before entering the institution. Additionally, twice-daily rounds were occurring in all of the units, during which time the inmates have access to medical staff to report medical or mental health issues to be addressed. Ex. OOO (MDC 4).
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241. The BOP performs twice-daily temperature and wellness checks on all isolated and quarantined inmates. In order to reduce the spread of COVID-19, MDC staff are performing daily checks at the inmate’s cell door, twice a day. Questions regarding wellness and symptomatic criteria are asked at the inmate’s cell door. Ex. OOO (MDC 4).
242. English reported that the BOP utilizes dashboards developed to track all isolated and quarantined inmates. The dashboards are utilized locally, regionally and nationally to monitor and analyze all COVID-19 related data. The MDC has approximately 390 high-risk inmates that are monitored through the dashboards. The isolation and quarantine units are utilized to manage those cases if deemed appropriate. Ex. OOO (MDC 4). Specifically, English noted that these COVID-19 inmates are tracked on a dashboard that shows “the cases in isolation, the cases in quarantine,” and both asymptomatic and symptomatic positives. Tr. 207, 215-16. The dashboard also tracks high risk inmates. Id.
3. Sick call procedures – Ex. OOO at MDC 4 243. English reported that they reviewed the process of “sick call” at the MDC to ensure that inmates had proper access to medical care. A review of the BEMR as well as interviews with staff and randomly selected inmates were conducted. Ex. OOO (MDC 4). 244. English found that a review of BEMR data revealed the Health Services Department during the month of March resolved 686 sick call requests. Ex. OOO (MDC 4); Tr. 214. There were 125 sick calls which were waiting to be seen and scheduled. Ex. OOO (MDC 4); Tr. 214. No cases of urgent/emergent were waiting to be seen. Ex. OOO (MDC 4); Tr. 21415, 216-17. Further, English found that BOP’s responses to sick calls at the MDC was timely and sufficient. Tr. 214-15, 216-17. 245. English further reported that all urgent or emergent requests were attended to depending on severity either immediately or the same day based on medical staff triage and
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medical determinations. For all non-urgent/routine requests, the nursing staff was reviewing BEMR data for duplication of requests, need for medication refills or other items which they can resolve. If an inmate needs to be seen by a provider, they are placed on the scheduler for one to two weeks wait time. Ex. OOO (MDC 5).
236. English reported that nurses are assigned to ensure that proper sick call processes are in place and are being reviewed daily. Ex. OOO (MDC 5).
247. During the COVID-19 pandemic, processes have changed due to inmates not having as much access to the electronic messaging system, or TRULINCS. Inmates have continued to submit sick call requests via TRULINCS, as well as submitting their medical issues via paper requests. In all cases, the medical staff are reviewing them. There is a process in place to sort out the paper requests located in the nursing area which clearly states, “Needs reviewedsick call” and “sick call-completed.” Ex. OOO (MDC 5).
248. English reported that correctional staff are picking up sick call forms from the inmates and placing them in the medical treatment rooms. While correctional staff believe they are being helpful, it created a problem for clinical staff to triage medical issues onsite or real time. Ex. OOO (MDC 5).
249. English “saw sick call procedures that were in question actually occurring.” Tr. 175. English spoke to more than 50 inmates. Unlike Venters, these inmate conversations were random, not hand-picked by Petitioners’ attorneys. English asked each the same “two questions”: “are you able to access medical care?” and “do you have any medical concerns?” Tr. 204. The responses did not give English any pause – inmates were being seen by medical staff. Tr. 194-97.
250. Unlike Venters, who criticized MDC’s sick call system based solely on selfinterested inmate allegations and a look at sick call requests – notably Venters did not look at any
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of the sick call responses or records of care given to inmates other than one inmate in the isolation unit – English and her team examined responses to those sick call requests to see the number of completed and scheduled encounters. Tr. 179.
251. English found that “based on the sheer volume” it was “very much apparent there is a process in place” for sick call. Tr. 179. Her observations reflected the COVID-19 response as it was supposed to happen – inmates were seen for sick call and inmates with COVID-19 symptoms were placed on isolation, if medically necessary. Their prior units were placed on quarantine where inmates were given regular temperature checks. Tr. 207, 215-16.
4. Quarantine and isolation units and procedures – Ex. OOO at MDC 5 252. English stated in her report that there are adequate supplies and stock of appropriate PPE for use by all employees. The inmate population had all been supplied a mask. Interviews were conducted with randomly chosen inmates to inquire about access to soap/cleaning supplies and masks. Every inmate she spoke with stated that they have access to proper supplies. Ex. OOO (MDC 5). 253. Supply areas were checked in the Health Services Unit and found to be fully stocked with all types of PPE. Ex. OOO (MDC 5). 254. The isolation room had a cart in the Sallyport with Tyvek suits, gloves and N-95 masks available for use by all people entering the isolation area.19 Ex. OOO (MDC 5); Tr. 183. There was a trash can available for doffing. The quarantine area was receiving masks and gloves by the Captain at the start of each shift on a cart which they pushed to the location. There was no cart with supplies available at the entrance. Ex. OOO (MDC 5).
19 Venters noted that during his tour he noted that a PPE cart outside the isolation unit did not contains masks. Tr. 104. However, Venters’s finding was inconsistent with the findings of Beard and English who both found adequate PPE outside the isolation unit. Venters further claimed that in the isolation unit, he did not see staff wearing gowns or masks, nor were there gowns in the cart. Tr. 104. However, as Vasquez noted, staff are not required to wear the full set of PPE if they are not coming in contact with inmates. Ex. 26 (Vasquez Tr.) 84, 87, 59-60.
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255. All staff during the visit who were observed and questioned in the unit said that they have access to proper PPE. All staff that observed during the visit had proper PPE in use. Ex. OOO (MDC 6).
256. Proper sanitation efforts were being conducted in each unit as well as administrative areas multiple times per week using an electrostatic fog machine. Ex. OOO (MDC 6).
257. When interviewed, inmates stated that they were also cleaning common areas multiple times a day using sanitation spray, which they stated they have full access to. Ex. OOO (MDC 6).
5. Infection control practices – Ex. OOO at MDC 6 258. English reported that every floor and department was visited during the visit. English reported that there are two main buildings of MDC and each floor and every housing unit in the West Building, including the quarantine unit (unit 41), the isolation unit (unit 84), and the Special Housing Unit were visited. The female dormitory unit in the East Building was also visited and inmates were interviewed. In addition, all staff departments and staff offices, where staff were present were visited. It was observed and through interviews with staff and inmates, that each area had a high use of PPE by staff and inmates; signage and posted instructions regarding use of PPE, best practices to prevent the spread of COVID-19, and the details of modified operations were visible; and there were procedures for provision of legal calls for inmates given the restriction on legal visitation. Ex. OOO (MDC 6).
6. Staff use of PPE – Ex. OOO at MDC 6 259. English reported that in each unit visited, unit officers and unit staff were appropriately wearing face coverings and gloves. In response to inquiries about the availability of PPE, no staff reported an inability to access BOP-provided PPE. The institution was well stocked with PPE, in quantities that appeared more than adequate for immediate needs. Ex. OOO (MDC
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6); Tr. 181. Although in most areas PPE was reported to be delivered by mobile cart on a known schedule, there was a stationary cart with PPE at the Sallyport to the isolation unit, along with instructions not to remove the cart and a garbage can for doffing PPE upon exiting the unit. Ex. OOO (MDC 6).
260. Hand sanitizer was observed on each floor in various locations, although on one floor the dispenser at the elevator was missing. Staff were observed to regularly use hand sanitizer when passing dispensers. Overall, staff access to, and use of, PPE appeared to be significantly in line with CDC guidance and agency direction. Ex. OOO (MDC 7).
261. English found staff wearing masks and the only people in the institution without masks were the inmates in their cells. Tr. 182.
7. Inmate use of personal protection equipment - Ex. OOO at MDC 7 262. Inmates observed in common areas of units were wearing face coverings, as were inmate workers observed during movement to their work details. Ex. OOO (MDC 7). 263. Inmates secured in their cells in the Special Housing Unit were unsurprisingly not wearing face coverings. Ex. OOO (MDC 7). 264. None of the inmates interviewed reported a lack of PPE or a lack of access to sanitation supplies, although there were concerns raised about the efficacy. The only significant complaints raised by inmates were unrelated to COVID-19; inmates in the Special Housing Unit were more interested in raising issues about their detention than discussing concerns about COVID-19. Ex. OOO (MDC 7). 265. English confirmed that the “inmate population had all been supplied a mask.” Tr. 181.
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8. Sanitation supplies and access – Ex. OOO at MDC 7 266. English reported that observation in all areas indicated inmates have access to adequate personal hygiene supplies for hand washing, and disinfectant products effective against the virus that causes COVID-19 for daily cleanings. Additionally, inmates had access to showers and access to clean laundry. Inmates are provided with soap upon request, however most inmates choose to buy from commissary based off personal preference. The approved chemical for use on the COVID-19 virus is Hdqc2 and is provided for daily cleaning by all inmates and inmate orderlies. A review of cleaning protocols and inventory of cleaning supplies indicated 9 backpack sprayers were in use as well as 250 gallons of Hdqc2 was on-hand. Ex. OOO (MDC 7-8).20 267. English spoke to inmates who reported that they did not have trouble accessing any chemicals or supplies. Tr. 185. During the inspection, English observed sanitizer throughout the facility. Tr. 190.
9. Temperature control in the units, cells and common areas – Ex. OOO at MDC 9
268. English reported that the team did not take temperature readings of each unit to directly measure room temperatures. Gauging on a personal comfort level, the inmate units did not feel unreasonably cold, and units seemed sanitary and bright. Ex. OOO (MDC 9). Further, English did not notice any issues with temperature at the MDC. Tr. 186, 220, 221.
10. Food service procedures – Ex. OOO at MDC 9 269. English observed the preparation of food and she did not see any issues with respect to food service. Tr. 186-87. The meal service was observed in several units. Ex. OOO (MDC 9). All inmates were wearing PPE appropriately. The food was delivered to each cell door with no
20 Unlike Venters, when English and her team did not see equipment or cleaning supplies, they actually asked where it was and found plenty of accessible supplies including “9 backpack sprayers and 250 gallons of hdq2C cleaner,” which is CDC approved to kill COVID-19. Tr. 181-82.
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interruption. The food was kept hot in the heated serving equipment. The portions appeared substantial and the quality appeared appetizing. Ex. OOO (MDC 9).
11. Emergency response and preparedness – Ex. OOO at MDC 9 270. English reported that the MDC’s command center operations were observed. The command center is staffed 24 hours, 7 days a week, with at least 2 staff. The command center tracks COVID-19 infection rates for staff and inmates, monitors all unit and institution cameras and actively manages any activity with inmate emergencies. Correctional staff make 30 minute rounds each shift in the units to monitor the safety of inmates and physical security. Ex. OOO (MDC 9). English noted that the command center at the MDC had been activated as a result of the pandemic. Tr. 187. 271. With respect to the broken call buttons, Venters faults the MDC for having nonworking duress buttons. Tr. 106, 107. But as English testified, medical staff are doing twice-daily rounds; correctional officers make rounds every 30 minutes. Tr. 187, 206. Inmates have multiple ways to summon medical assistance, including by reaching out to a BOP staff member, correctional staff, during the twice-daily medical rounds, Ex. 26 (Vasquez Tr.) 78-79, and through paper or electronic sick call requests. Ex. LLL (Vasquez Decl.) p. 4
12. Legal visiting – Ex. OOO at MDC 9 272. English reported that they observed areas where videoconference appearances/legal visits and for legal phone calls take place. At the time of the inspection, however, no legal calls or video appearances were taking place. Observation of the actual utilization of the space as well as discussion of protocols and practical realities of the process with legal and unit staff were conducted. Ex. OOO (MDC 9). 273. The video units were in conference rooms (or a secured room in the Special Housing Unit) and appeared to be in good working order. The system is touchscreen based, and
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if properly sanitized between uses should present a minimal vector for the spreading of infectious diseases. The videoconference areas were behind windowed doors, which were able to provide reasonable audio privacy while allowing appropriate staff supervision. Ex. OOO (MDC 9).
13. Communications to inmates of CDC guidance through Warden and Town Hall – Ex. OOO at MDC 10
274. English reported that there are town halls conducted in the units and fliers handed out weekly to all inmates that address their access to health care. Staff have been briefed multiple times along with regular emails regarding institution operations and current CDC protocols. Ex. OOO (MDC 10).
275. English noted that posters were posted in English and Spanish. The institution has a Spanish speaking medical staff member at the institution seven, (7) days a week. Based on interviews with staff and inmates, there have been no concerns addressed by inmates to staff with regard to Spanish speaking inmates not being able to convey their issues. The institution has a phone line dedicated to assist inmates with translation if there is not an interpreter immediately available. Ex. OOO (MDC 10-11).
276. English further reported that weekly town halls are conducted with psychology services staff. They provide written information or hand-outs to inmates about the pandemic and ways to manage stress related to the virus. Case managers and counselors are also making regular rounds in the units and the special housing unit and are accessible to inmates. Ex. OOO (MDC 11).
277. English found that the BOP had sufficiently communicated to inmates CDC guidance through town hall meetings and communications by the warden. Tr. 188-89. Further various staff were making rounds including chaplaincy staff, case managers, and counselors, all of whom were meeting and talking to inmates. Tr. 189.
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14. Signage and instruction for procedures and CDC guidance – Ex. OOO at MDC 11
278. Throughout the institution, at both high-traffic locations and at locations with specific missions (such as the quarantine and isolation units), English observed appropriate and adequate signage reminding staff to take appropriate hygiene precautions and to utilize PPE. Ex. OOO (MDC 11). Further, English saw plenty of signs and posters relating to COVID-19 throughout the MDC. Tr. 189-90.
15. Communication to staff regarding CDC guidance and testing – Ex. OOO at MDC 12
279. English reported that CDC Guidance has been posted on the agency intranet website (Sallyport), indicating staff testing is currently voluntary and must be done locally through state and local resources. Current protocols allow for staff to have their temperature taken and a questionnaire completed for self-assessment of symptoms. Based on responses and symptoms, staff may self-quarantine at home. Ex. OOO (MDC 12).
280. English was also aware of significant communications with BOP staff. Tr. 191. On the issue of testing for COVID-19, English explained that BOP already has a number of Abbott Labs tests deployed at “hotspots” and is planning to deploy machines to MDC to increase capacity. Tr. 226.
16. English’s Recommendations were implemented “on the spot” by the Warden. Ex. OOO at MDC 12-13
281. In the “Recommendations” section of her report, English stated that the MDC as observed by the team was not in disarray nor was it failing in its response to the COVID-19 virus pandemic as had been reported in Venters’s Report. Ex. OOO (MDC 12).
282. English’s report, in evidence at exhibit OOO, and upon which the Court can rely, reads as a point by point rebuttal of Venters’s allegations – the report puts it perhaps a bit too diplomatically, “[a]llegations made through outside stakeholders were not … entirely … accurate.”
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Ex. OOO (MDC 12).
283. English reported that during the unannounced visit, staff and inmates appeared to
have and be properly utilizing PPE and sanitation supplies; staff morale appeared to be high; and
inmate complaints were minor. Units and transit areas were bright and clean, and hand sanitizer
and reminders about PPE and appropriate hygiene were placed at numerous appropriate locations.
Ex. OOO (MDC 12).
284. English set forth the following recommendations:
• Protocols should be put into place to ensure sanitization of the phone handsets used for legal phone calls between users is being conducted. Longer term, it is believed that increasing the use of the videoconference units rather than fax machine handsets would be able to achieve reduced viral spread and increased auditory privacy. Ex. OOO (MDC 13).
• Ensure stationary PPE carts be deployed at unit entrances, or at the very least at the entrance to the quarantine unit. While there were no significant concerns raised about availability of PPE for staff, replicating the model used at the isolation unit (stationary cart with supplies and disposal method) would avoid even the appearance that PPE is not being made readily available for staff who need it to enter a unit or open a cell. Ex. OOO (MDC 13).
• Ensure that hand sanitizer and trash cans are available at all times where donning and doffing of PPE takes place. It is also recommended to post CDC donning and doffing picture guides at each location. Place a cart in a secure area in the quarantine unit so staff has access immediately to PPE, the same as it is set up for the isolation unit. These can be found on the COVID-19 Sallyport page. Ex. OOO (MDC 13).
• Provide all staff/visitors a method to decontaminate all equipment (radios, keys, CO) at control when they are leaving. This can be accomplished using the red spray or using alcohol wipes. The equipment is a very likely source of spreading this virus from employee to employee. Ex. OOO (MDC 13).
• Ensure that the HSA holds the nursing staff accountable to their assigned task of reviewing all sick call requests as well as processing the requests daily. Ex. OOO (MDC 13).
• Communicate to Correctional staff to not pick up sick call forms and place them in the medical treatment rooms which are located on each floor. They
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should be left for clinical staff to retrieve and triage inmates at the cell door. Ex. OOO (MDC 13). 285. English discussed the recommendations with the Warden immediately following the inspection. English confirmed that the Warden implemented the recommendations immediately. Respondent adopted these recommendations and the identified issues were fixed, to quote AD English, “on the spot.” Tr. 180, 192, 199-99. 286. In terms of English’s recommendations, English explained that the steps MDC was taking to prevent the transmission of COVID required MDC to revert to an antiquated process – using written sick call requests, resulting in some hiccups, like custody staff bringing the slips to the wrong place in an effort to be helpful to inmates – which is not indifference. Tr. 179-80, 19697. This, she believed, resulted in a brief delay of a couple of hours receipt of medical care so she recommended that Respondent correct this process.21 Tr. 179-80; 195-96. English explained that urgent requests were being seen immediately. But, like anything else, the triage depended on the symptoms of the individual inmate and BOP medical staff acted accordingly. Tr. 179-80, 195-97. 287. Further, English recommended that staff provide cleaning solution and alcohol wipes to clean and disinfect equipment that is passed between staff members on shift changes. She recommended consistent placement of PPE equipment. Tr. 191-94. 288. English’s credible testimony establishes that BOP and MDC management take seriously the threat of COVID-19, addressing the areas of weakness, as the response to the
21 Venters recommends “Same-day review of every sick-call slip and electronic submission that will (i) trigger immediate (same day or next morning) assessment for COVID-19 and (ii) provide data that creates a facility wide symptom tracking dashboard that health care staff will use.” MDC, however, has nationally set form tracking mechanisms that we are using to track all isolated and quarantined inmates. Any inmates reporting symptoms related to COVID-19 are initially assessed by the medical staff member making rounds. If there is a need to further evaluate the inmate, the inmate is brought out of the cell and assessed further. We are also following our regular sick call procedures for all other issues. Ex. LLL (Vasquez Decl.). Sick call process during these twice-daily rounds, medical staff carry sick call request forms in the event any inmates seek to make a sick call request. Ex. 26 (Vasquez Tr.) 4849.
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pandemic evolves. 289. Petitioners’ counsel asked English whether, if true, the issues identified in Venters’s
report were “alarming” – and she admitted they were. But when asked “Did you see any of those things occurring during your team members’ inspection?”, English answered succinctly – “no.” Tr. 227.
290. Indeed, it is hard to fathom, in light of English’s report and her credible, knowledgeable testimony that there is any basis to find that Warden Edge is indifferent to the health and safety of those in his institution, or in any way indifferent to the threats posed by COVID-19.
D. The Court should credit the testimony of Epidemiologist Asma Tekbali that that COVID-19 at the MDC is under control 1. Tekbali’s current experience addressing COVID-19
291. Asma Tekbali, an epidemiologist and infection preventionist is on the frontlines of monitoring the spread of coronavirus at Lenox Hill/Northwell Health. Tr. 231-34. Tekbali is responsible for infection prevention control for a major New York City hospital. Tr. 231, 232, 234. The Court recognized Tekbali as an expert in epidemiology and infection control and denied Petitioners’ motion to preclude her testimony. Tr. 235, 236, 449.22
292. Unlike Venters – who may have prison experience but purports to discuss best practices about a pandemic about which he lacks any in-depth knowledge, has confronted only conceptually and understands mostly by reading guidance posted on the CDC’s website -- Tekbali has actual real-life experience battling COVID as she advises health care providers about how to keep themselves and their patients safe. Tr. 234-35.
22 Petitioners’ argument that Tekbali lacks corrections experience is irrelevant as COVID-19 does not discriminate based on setting; infection control experience in any institutional setting is applicable. Tekbali has advised other kinds of institutions on infection control measures in the past, and there is no reason her knowledge and experience about mitigating the spread of this outbreak somehow melts away at a prison’s door. Tr. 234-35.
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293. While Venters’s only COVID-related written work is penning an op-ed in a publication focused on politics pushing his prison reform agenda through the lens of the outbreak, Tekbali has published two peer-reviewed, science-based articles in a prestigious publication on COVID issues, focusing on the risks to pregnant women. Tr. 233-34; Ex. QQ.
294. To the extent Petitioners tried to frame Tekbali as under experienced, her testimony showed otherwise. Tekbali was informed and credible, basing her testimony on a fundamental understanding of COVID-19 and how it spreads. In sum, hers is exactly the kind of front-line clinical hospital experience upon which this Court should rely upon in determining complex issues in a pandemic caused by a novel virus.
2. Objective data relating to the low number of hospitalizations and deaths reflect that the BOP has successfully controlled the spread of COVID-19 at the MDC and that there is no outbreak at the facility.
295. Tekbali opined that based on CDC guidance and her professional experience, infection control policies and procedures within MDC have been adequate in preventing the spread of COVID-19. Tr. 237. Further, the BOP’s efforts distributing soap, keeping inmates locked in their cells, and masking throughout the facility have helped significantly decrease the risk of transmission among inmates. Tr. 248-49.
296. As Tekbali credibly testified, epidemiologists look to hospitalization and death rates—both of which are objective statistics—to determine whether infection rates are under control. Tr. 238-39. There were only two visits to the hospital by MDC inmates with acute conditions; both of whom were tested at the hospital. Tr. 239. Only one of whom tested positive, neither of whom required a hospital admission, and, there have been no deaths. Ex. LLL (Vasquez Decl.) ¶ 8; Ex. 26 (Vasquez Tr.) 185-86; Tr. 97 (“nobody has died”).
297. A high rate of hospitalizations would indicate an outbreak at the facility with patients that require a higher level of care; low death rates and hospitalizations would correlate
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with lower levels of infection. Tr. 239. At the MDC, the rate of hospitalization of inmates has been extremely low. Tr. 239.
298. Venters relies on a chart in his supplemental expert report to show that there is a higher number of staff testing positive for COVID-19 than inmates, while the number of inmate infections has flattened. Ex. 82 (Supplemental Report of Dr. Homer Venters, dated May 11, 2020); Tr. 98 (flattened), 113.
299. Tekbali refutes Venters’s claim that the rate of infection among inmates should correlate with the rate of infection of staff members. Tr. 247. Venters assumes that the BOP is under-testing because he assumes the rates of infection between inmates and staff should be increasing at the same time. Tr. 98-99, 115.
300. Tekbali opined that Venters’s chart reflecting the total number of positive tests indicates instead that there has not been a widespread infection of COVID-19 within the facility. Tr. 247. Tekbali points out that Venters fails to take into account that staff members are out in the community in New York City -- the epicenter of the pandemic. Tr. 116, 117; Tr. 247.
301. Tekbali opined that an increased rate of staff testing positive, along with a flattening rate of inmates testing positive, more likely indicates that the MDC infection control measures are effective. Tr. 247. Staff continue to get exposed, and potentially infected in the community, while MDC is successful at mitigating the spread within its prison walls. Tr. 247. This, again, is consistent with the objective evidence of a lack of hospitalizations and death.
3. Tekbali credibly impeaches Venters’s other opinions lacking basis in CDC guidance or the standard of care
302. Tekbali’s testimony exposes the lack of support of Venters’s other conclusions as well.
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(i) CDC does not recommend cohorting high risk inmates. 303. Tekbali disputes Venters’s opinion that high risk inmates should be cohorted together. Tr. 238. Tekbali credibly testified that cohorting high risk patients together is not a common practice particularly where, as here, cohorting high risk patients in light of COVID-19 would increase their risk of developing significant illness. Tr. 238. Tekbali further opined that based on CDC guidance, anyone who is high risk is advised to be isolated alone, not cohorted with other high risk individuals. Tr. 238.
(ii) Most patients develop only mild symptoms with fever being the most prevalent symptom.
304. The most prevalent symptom of COVID-19—93 percent of patients—based on CDC guidance is fever. Tr. 240; Tr. 147, 148 (Venters). Tekbali opined credibly that temperature checks -- an objective test -- is the easiest way to determine if a patient has the most common symptom of COVID-19. Tr. 245, 281. Tekbali also explained that MDC’s use of temperature checks of inmates in quarantine is the same technique used in the hospital because most COVID19 patients present with a fever and it is an easy objective metric to track. Tr. 245, 281. Venters admitted that inmates in the isolation unit receive a temperature check or have their oxygen levels checked. Tr. 84.
305. Most patients—about 80 percent—present with mild symptoms. Tr. 240. For patients with mild symptoms, there is essentially no treatment; such symptoms can be treated with antipyretic and Tylenol to reduce the fever. Tr. 240, 242.
306. That is exactly what MDC accomplishes with their twice-daily temperature and wellness checks for every inmate in isolation.
307. Typically, a patient with mild symptoms would not be hospitalized. Tr. 242. Per CDC guidance, symptomatic patients are advised to isolate and manage their symptoms. Tr. 242.
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If the patient’s condition deteriorates and begins to experience symptoms such as labored breathing, blue lips or confusion, they are advised to call their medical provider or go to the emergency department. Tr. 242.
308. Patients with mild symptoms are advised to self-isolate and not see their doctor daily, contrary to Venters’s opinion that symptomatic patients undergo daily clinical examinations. Tr. 242; Tr. 82 (Venters).
309. Venters opined that any inmate with COVID would require daily medical examinations in a medical office. Tr. 82-83. However, Tekbali states that seeing a doctor daily would have limited utility because providers are not able to treat COVID-19 symptoms, but can only help manage the symptoms. Tr. 242.
310. Petitioners rely on this unfounded opinion for one of their key arguments – that the absence of medical encounters for 9 days for a COVID-19 patient therefore means that he was not provided care. As Tekbali explained, constant medical encounters with a patient with non-urgent symptoms is simply not the standard of care. Tr. 242.
311. Indeed, Venters’s demand for frequent and unnecessary medical exams would also increase the risk of infection to staff and other inmates alike. The fact that a particular inmate did not need medical care during his course of COVID-19 does not mean that he was neglected; to the contrary, it demonstrates that the inmate had symptoms for which the only treatment was continued monitoring. Tellingly, Venters met with the inmate in the isolation unit during his inspection and at no time did Venters, a medical doctor, notify anyone that the inmate needed any additional or immediate medical attention.
(iii) Testing has been limited nationally. 312. Testing throughout the country, including New York, has been limited given the lack of available tests for COVID-19. Tr. 241. In the absence of a test, symptomatic patients are
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treated the same as patients, who have tested positive, namely that providers would treat or manage the patient’s symptoms. Tr. 241. Tekbali explained that limited supplies of PPE and testing are not evidence of indifference, they are consistent with the very challenges facing all medical institutions of all kinds across the country as they continue to develop best practices to manage the pandemic.
(iv) Laundry does not pose any undue risk. 313. Tekbali refutes Petitioners’ allegation that laundry at the MDC increases the risk of infection. Tr. 243. However, Tekbali opined that there is low risk of infection through contact with COVID-19 positive linens or patient clothing. Tr. 243.
(v) BOP’s use of PPE is consistent with CDC guidance. 314. Tekbali opined that for those going about their daily activities, gloves are not required and, in fact, recommends hand hygiene through hand washing or use of sanitizers. Tr. 243, 244. 315. Venters’s opinion regarding N-95 masks for patients is contrary to CDC guidance, and as Tekbali credibly testified his opinion is unheard of in the medical community. Tr. 244. Tekbali further stated that COVID-19 is transmitted primarily through “respiratory droplets” through “close contact,” and that it is not an airborne virus. Tr. 244. Thus, use of a negative pressure cell, as advocated by Venters, is unnecessary and, as even Tekbali testified, her own hospital does not use negative pressure rooms for COVID-19 patients. Tr. 245. Further, neither the CDC nor Department of Health recommend placing COVID-19 patients in negative pressure rooms. Tr. 245. 316. Venters also advocated the use of booties and foot covers in his report. However, Tekbali again debunked Venters’s opinion stating that booties and foot covers are not recommended as standard PPE for COVID-19 patients. Tr. 245. Further CDC guidance does not
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advise use of booties and foot covers for medical staff or inmates. Tr. 245-46. 317. Further, contrary to Venters’s claim, Tekbali opined that, given the national PPE
shortage, masks can be reused as long as they are not soiled or broken. Tr. 246, 268. (vi) Isolation procedures at the MDC comport with CDC guidance.
318. Tekbali opined, consistent with the BOP’s approach, that a patient should be isolated if they are confirmed or presumed positive for COVID-19. Tr. 246.
(vii) Rodriguez successfully recovered from COVID-19. 319. Tekbali was aware that Petitioner Rodriguez had a positive antibody test after he left the MDC. Tr. 246. Tekbali opined that the positive test demonstrates that Rodriguez successfully recovered from COVID-19, while under the BOP’s care, without complications. Tr. 246-47.23
(viii) COVID-19 is different from influenza. 320. Tekbali acknowledged that the BOP initially framed its COVID-19 response based on its influenza pandemic plan. Tr. 248. However, as the CDC and researchers learned more about COVID-19, they recognized that the influenza and COVID-19 are different viruses, present differently and required different isolation and PPE protocols. Tr. 248. Tekbali challenges Venters’s opinion that the BOP should apply influenza protocols to COVID-19. Tr. 248.
* * * 321. Tekbali concluded that BOP’s response to the pandemic at the MDC was adequate from an infection control perspective, and in line with best practices and CDC guidance – isolating inmates to the extent possible, providing masks, encouraging proper hand hygiene practices, ensuring that staff wear masks in the facility.
23 Rodriguez’s specific claims, which are now moot, are addressed infra.
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E. The Court should credit the testimony of Prison Management Expert Dr. Jeffrey Beard that the MDC is effectively implementing policies protecting staff and inmates from COVID-19
322. Beard provided expert testimony regarding the positive steps BOP has taken at the MDC in response to the COVID-19 virus. Tr. 304-419; Ex. RR 1.
323. Petitioners failed to proffer any expert testimony from a prison management expert. 1. Beard’s experience in prison management
324. Dr. Jeffrey Beard testified at the preliminary injunction hearing as a prison management expert. Tr. 304-419. Beard’s expert report and CV is also in evidence. Ex. RR.
325. Beard has over forty years of experience working in correctional institutions. Tr. 305-16; Ex. SS.
326. After obtaining his Ph.D. in counseling, Beard worked as a psychological services associate, a supervisor, a deputy superintendent, and a superintendent in the Pennsylvania Department of Corrections (“PDOC”). Tr. 308-09; Ex. SS. As an acting superintendent and superintendent, Beard’s role was “the same as a warden in the Bureau of Prisons”; he was “essentially a manger of a small city” and was “running the whole institution.” Tr. 309; Ex. SS. He was responsible for the “inmates’ care, the staff safety, and just [the] running of the whole place.” Tr. 312; Ex. SS.
327. Beard then worked as a Regional Deputy and Executive Deputy of Supervision for the PDOC, where he had oversight of all of the prisons in Pennsylvania. Tr. 309. For the last ten years of his career at PDOC, he served as Secretary of PDOC, where he ran “the entire corrections department” for the state. Tr. 309. Beard was appointed to that position by Governor Tom Ridge and reappointed to that position by Governor Ed Rendell. Tr. 309. Beard oversaw a $1.8 billion budget at PDOC. Tr. 312.
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328. After working as a consultant and working at the Justice Research Center at Penn State University, Governor Jerry Brown appointed Beard to be the Secretary of Corrections in California (“CDOC”). Tr. 309-11; Ex. SS. At CDOC, Beard oversaw dozens of facilities, 130,000 inmates, more than 30,000 parolees, and more than 50,000 employees. Tr. 311-12. Beard oversaw at $10 billion budget at CDOC. Tr. 312.
329. Beard, who is a member of various correctional professional organizations and has received numerous awards,24 testified that he is “well aware” of what prisons should look like and how they should be operated, in light of his experience inspecting prisons, which includes 700 to 800 visits to prisons, and experience with emergency planning, riots and disturbances. Tr. 312, 315-16; 319-20.
330. Beard testified that he reviewed over a thousand pages of documents filed in this action, including depositions, declarations and MDC purchase orders and invoices for soap and cleaning supplies. Ex. 87; Tr. 315-20.
331. In addition to the documents reviewed, Beard conducted a site visit of the MDC, during which he inspected the same housing units that Venters visited. Ex. RR at 6-7; see also Tr. 326-41. During Beard’s tour of the MDC on April 28, 2020, he spoke with inmates and staff. Ex. RR at 5-7; Tr. 329-30; 337.
2. Beard’s inspection of the MDC 332. As set forth in his expert report, Beard testified that, when he first arrived at the MDC on April 28, 2020, he was medically screened by a staff member before entering the facility. Tr. 322-23; Ex. RR at5. The staff member took his temperature and asked him a series of questions
24 Beard has received numerous professional awards, including the Carl Robinson Award for the Middle Atlantic States, a Lifetime Achievement Award from the Pennsylvania Prison Wardens Association, the Michael Frankie Award which is the top award given out by the Association of State Correctional Administrators, and the Distinguished Achievement Award for the Center for Evidence-Based Policy from George Mason University. Ex. SS; Tr. 313.
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from a preprinted form relating to whether he suffered any COVID-19 symptoms or was exposed to anyone who had COVID-19, in addition to his recent travel to potential COVID-19 hotspots. Tr. 323. The staff member conducting the screening wore a mask, and added Beard’s completed screening form to a booklet which included, as Beard observed, additional completed screening forms. Tr. 324; Ex. RR at 5.
333. Like Venters, Beard visited the health services area, the cadre unit which houses inmate who are assigned to MDC as workers, a quarantine unit, the isolation unit, and the Special Housing Unit (“SHU”). Ex. RR at 6; Tr: 325.
(i) Beard observed medical exam rooms in or near each housing unit he and Venters visited.
334. Beard began his tour of the MDC at the health services area of the facility where he observed a number of exam rooms, dental clinic, eye exam room, x-ray and treatment areas. Ex. RR at 5; Tr. 326-27. Based on his conversations with Ms. Vasquez, Beard learned that, “just as in the community at large, routine dental, and eye exams were not being conducted.” Ex. RR 5. Inmates were being seen their unit’s private medical exam rooms instead of the health services facility. Ex. RR 5.
335. Consistent with his expert report, Beard testified that in the housing units that he and Venters both visited, each had medical exam rooms either inside the unit or within a few feet of the unit’s entrance. Tr. 323-34; 336; 337; Ex. RR at 5.
(ii) Beard observed staff and inmates at the MDC wearing masks and other PPE.
336. Beard observed that all inmates wore masks when they were outside their cells. Tr. 332; 336-37; 339; Ex. RR at 6. Similarly, Beard observed that all staff members wore masks when they were outside of their office. Tr. 326; 332; Ex. RR at 6.
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337. Consistent with his expert report, Beard testified that, based on his observations during the MDC tour, nurses wore PPE including a gown, face shield, gloves and a mask while preparing to see inmates and saw another nurse enter a housing unit with a car containing both medical supplies and PPE. Ex. RR at 6; Tr. 323; 328. The quarantine unit had a sign on the door of each cell noting the date the inmate started his quarantine and they date they would complete quarantine. Ex. RR at 7: Tr. 331-32.
(iii) Beard observed adequate cleaning supplies for inmate and staff use.
338. Specifically, and consistent with his expert report and review of the documentary evidence, Beard testified that he observed bar soap in all the cells he looked into, in addition to other cleaning materials including spray bottles and liquid soap for inmates’ use. Tr: 329; 332; 335; 337; 338; Ex. RR at 8. Beard also testified that inmate workers showed him the supplies MDC provides inmates to clean the common areas and their cells. Tr. 329; 331; 337; Ex. RR at 8. Beard testified that staff members showed him cleaning supplies for the inmates’ use, and inmates also showed him cleaning supplies, consistent with the purchase orders and invoices. Ex. RR at 6; Tr. 316; 328; 335; 342.
339. Beard observed hand sanitizer located throughout the areas he visited for staff use, and signs regarding best practices to protect against COVID-19 was “present everywhere,” in addition to substantial supplies of soap consistent with the purchase orders and invoices. Tr. 316; 328; 334-35; 342; Ex. RR at 6.
340. Beard testified that inmates and staff in all four housing units showed him “large spray bottles of what was HDQC2,”25 in addition to “another disinfectant” used to “clean the
25 HDQC2 is recognized by the State of New York and the Environmental Protection Agency as a disinfectant that may be used to clean surface areas to prevent the spread of the coronavirus. See https://www.dec ny.gov/docs/materials minerals pdf/covid19.pdf
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common areas, to clean the computers … and the telephones between uses, and in the showers.” Tr. 330; Ex. RR at 6-7. Beard also witnessed a storage room in the Special Housing Unit in which a large quantity of soap was contained. Tr. 338-39. In every unit he visited, staff reported to Beard that inmates had access to these cleanings supplies to clean their cells, and adequate cleaning supplies in general.
3. Beard concludes that the MDC is a well-run detention center 341. Beard explained that as a detention center, MDC faces unique challenges, including a transient inmate population (which includes pre-trial and post-trial inmates); inmates who are on appeal for sentences; “low, medium, minimum, [] maximum security inmates”; “gang members”; mentally ill inmates; sex-offenders; “high profile inmates.” Tr. 322, 347. Beard added that transient facilities can easily show wear and damage to the facility. Tr. 322. Notwithstanding these challenges, as a result of his assessment, Beard came to the conclusion that the MDC was a “pretty darn well-run facility.” Tr. 340. 342. Beard testified that based on his inspection, discussions with staff and inmates, and review of the documents in this case, that the MDC-Brooklyn is effectively implementing practices that protects inmates and staff alike from the coronavirus and that it is a clean, well-run correctional facility with dedicated professional staff with adequate PPE for staff and inmates. Tr. 340-43; Ex. Ex. RR at 10. Beard found staff “knowledgeable” regarding the MDC’s response to the COVID19 threat. Tr. 330; 331; 337; 342. Beard found the interactions between inmates and staff as positive, and indicative of inmates viewing MDC staff as resources. Tr. 330; 339. For example, in SHU, Beard witnesses inmates calling out to an MDC captain because “they obviously knew him and wanted to talk to him” and that same captain knew the inmates’ names as he responded to the inmates. Tr. 339-40.
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4. Beard’s conclusions regarding the MDC are more credible than Venters’s self-serving observations
343. Beard testified that he disagreed with Venters’s opinion that staff did not wear masks, and that MDC inmates did not have masks. Tr. 343; Ex. RR at 8.
344. Beard disagreed with Venters’s methodology of relying exclusively on the statements of seventeen inmates relating to the availability of soap, masks and cleaning supplies instead of taking time to “look around.” Tr. 343-44; Ex. RR at 8. Beard noted that Venters did not speak with the inmates responsible for cleaning the common areas in the housing units, whereas Beard did speak to inmates who showed him their cleaning supplies. Ex. RR at 8.
345. Beard testified that the isolation unit does have a medical exam room in the immediate proximity to the isolation unit, despite Venters’s conclusion that the isolation unit lacks an exam room. Ex. RR at 9.
346. Beard testified that, based on his forty-years of experience in corrections, Venters’s recommendation that the MDC place hundreds of high-risk inmates in a cohort regardless of security classifications as not feasible, and from “a security perspective, it would be almost impossible to do.” Tr. 347. Consistent with his report, Beard testified that the diverse nature of the MDC inmate population would make this impractical, and that he “had a serious problem with” Venters’s recommendation. Tr 346; Ex. RR at 9. Beard testified that the MDC, as a detention center, has pretrial inmates, inmates with differing security classifications, cadre inmates, minimum, low, medium and maximum-security inmates, including gang members who may need to be separated, in addition to sex offender inmates, mentally ill inmates, and others may be vulnerable or in a high-profile case. Ex. RR at 9. Beard, based on his decades-long career in prison management, testified that if, per Petitioners’ allegation that “maybe 20 to 25 percent of the
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population [is] high risk [for COVID-19 infection] to now to try to cohort them all together and to maintain things from a security perspective, it would be almost impossible to do.” Tr. 347.
347. Nor could Beard comment on Venters’s statement that he was able to place adolescent inmates in a cohort in facilities maintained at Rikers Island because Venters had not quantified the size of the cohort in his testimony. Instead, Beard concluded that placing 20-25 percent of the MDC’s population, as the Petitioners ask this Court to order the MDC to do, in a cohort was not feasible based on security concerns. Tr. 347. VIII. The Remaining Petitioners Should Not Be Released from MDC
348. At the conclusion of the preliminary injunction hearing, the Court noted that it “would be disinclined to order the release of the [inmate Petitioners].” Tr. 549. The Court added:
I just don’t think the record suggests, setting aside any type of PLRA obstacles or other obstacles that might exist. I wouldn’t conclude from this record that there are no things in the [MDC] that could be safe for the individuals at the MDC[;] that’s not even something that Dr. Venters argued[.] [T]hat’s not a conclusion that I’m inclined to draw at this point in this case. Tr. 549. A. Elodia Lopez’s claims do not amount to an Eighth Amendment violation
1. Lopez’s Criminal History 349. Lopez, who is 55 years old, arrived at the MDC on January 15, 2020. Lopez is scheduled to be released on July 28, 2020. Am. Petition, Prayer for Relief. 350. On June 22, 1994, Lopez pled guilty to conspiracy to possess with intent to distribute and distribute marijuana, in violation 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(C). Ex. VVV. At the time of her guilty plea, Lopez was free on bail, but she failed to appear for sentencing, and remained a fugitive from December 30, 1994 until her arrest on June 13, 2019. Ex. VVV.
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2. Lopez’s pending compassionate release application 351. By email request dated March 24, 2020 addressed to “AW Custody,” Lopez requested compassionate release complaining of untreated pain in her left toe, sensitivity to cleaning materials and not knowing what is inside the “sprays” the inmates clean with, need for a mask, and fear that her lungs may collapse. Ex. UUUU. 352. On April 9, 2020, the Federal Defenders filed an emergency motion to reduce Lopez’s sentence under 18 U.S.C. § 3582(c)(i) before her sentencing judge, Judge Frederick J. Scullin, Jr. in the Northern District of New York. United States v. Elodia Lopez, No. 93-cr-306 (N.D.N.Y.), Ex. WWW; Ex. QQQ. 353. Initially, the Government opposed Lopez’s motion for compassionate release because she had not exhausted her remedies before the BOP. Ex. VVV. As of April 30, 2020, the date the BOP denied Lopez’s request for compassionate release, Lopez’s motion for compassionate release became ripe for her sentencing judge’s consideration. Ex. UUU. To date, the court has not issued his decision. United States v. Elodia Lopez, No. 93-cr-306 (N.D.N.Y.).
3. Lopez receives consistent and adequate medical care at the MDC 354. Lopez’s medical records demonstrate that she has received consistent and adequate medical care at the MDC. 355. BOP completed Lopez’s intake screening at MDC on January 15, 2020. Her history and physical evaluation was conducted on February 7, 2020. Ex. ZZZ at MDC 78-109.
356.
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359.
26 Lopez was counseled as to how to use the sick call system and is aware of how to use it. Ex. XXX at MDC 72.
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363. Petitioners’ statement during summations on May 14, 2020 that Lopez is experiencing “flu-like symptoms” has no evidentiary support in Lopez’s medical records. Tr. 489.
Petitioners have put forth no evidence that Lopez complains of flu-like symptoms at the MDC, because none exist.
364. Accordingly, Lopez has complained of no untreated COVID-19 symptoms and Petitioners’ counsel’s statement during summation that Lopez runs the risk of not receiving medical care at the MDC, despite receiving consistent care since she arrived in January 2020, is without any basis in the record.
365. Lopez has access to soap, cleaning supplies, and masks for her use. Lopez received a surgical mask in early April and three cloth masks on April 28. Ex. ZZ at 4. Lopez has made multiple purchases in the commissary, including soap, so she knows she has that option. Lopez has not made any recent soap purchases which establishes that she has a sufficient supply of soap for her to use. Ex. GGG.27
B. James Hair’s claims do not amount to an Eighth Amendment violation 1. Hair’s Criminal History
366. Hair is twenty-nine years old. Am. Pet. ¶ 13. His term of incarceration is set to expire on August 15, 2026. Am. Pet. ¶ 94.
367. Following his guilty plea to conspiracy to distribute and possess with intent to distribute cocaine, Hair was sentenced to 117 months imprisonment and a five-year supervised
27 In her Declaration, Associate Warden Caryn Flowers stated that because Lopez is a volunteer laundry orderly, she is permitted to shower before and immediately after her shift and is given gloves for her work. Ex. III.
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release term. United States v. Hair, 780 F. App’x 86 (4th Cir. 2019). On October 21, 2019, the Fourth Circuit dismissed Hair’s appeal of his conviction ruling that Hair “knowingly and voluntarily waived his right to appeal his conviction and sentence, except as to any sentence in excess of the statutory maximum.” Id.
368. On April 20, 2020, Hair filed a 28 U.S.C. § 2255 habeas petition to set aside his conviction on ineffective assistance of counsel grounds. United States v. James Hair, No. 93 CR 306 (FJS) (D. Md.), Dkt. No. 60.
2. Hair receives consistent and adequate medical care at the MDC 369. Hair’s medical records demonstrate that he has received consistent and adequate medical care at the MDC. Ex. NNNN. 370. Hair reports having multiple sclerosis. Am. Pet. ¶ 94.
371.
372.
28 In July 2019, at a prior BOP facility, Hair failed to report to health care services for his scheduled appointment in response to his sick call request. Ex. NNNN at MDC 419, 421.
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379. 380.
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384. 88

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385.
386.
C. Ayman Rabadi’s claims do not amount to an Eighth Amendment violation 387. As discussed further below, Rabadi is scheduled to be released from the MDC this week, at which point he will be transferred to a residential reentry center, commonly referred to as a halfway house. Ex. AAAA. Rabadi remains at the MDC under quarantine until he leaves this week. Ex. AAAA. Rabadi’s habeas petition will be moot once he leaves the MDC.
1. Rabadi’s criminal history 388. As background, on October 19, 2018, U.S. District Judge Kenneth M. Karas of the Southern District of New York issued an arrest warrant for Rabadi based on a Petition for Violation of Supervised Release. Rabadi had been serving a term of supervised release after having served a three-year term of imprisonment for his conviction, in June 2014, of engaging in a wire fraud scheme that involved impersonating a federal officer. United States v. Rabadi, No. 13 Cr. 353 (KMK), Dkt. No. 87 (hereinafter “Rabadi Dkt. No. __”). 389. On May 31, 2019, Rabadi pled guilty to violating the terms of his supervised release by committing wire fraud in violation of 18 U.S.C. §§ 1343 and was sentenced to twenty-four months in prison for the violation of supervised release, which was the statutory maximum. Rabadi Dkt. Nos. 82, 94.
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2. The Court denies Rabadi’s request for compassionate release 390. On April 3, 2020, Rabadi filed a motion seeking compassionate release based on his concerns related to being exposed to COVID-19 at the MDC before Judge Karas, who had previously sentenced Rabadi. Rabadi Dkt. No. 84. 391. On April 14, 2020, Judge Karas denied Rabadi’s motion without prejudice after determining that the court lacked authority to order the relief Rabadi sought under the compassionate release statutory provision, 18 U.S.C. § 3582(c)(1)(A), because he had failed to exhaust his administrative remedies. Rabadi Dkt. No. 94; United States v. Rabadi, No. 13 Cr. 353, 2020 WL 1862640, at *1 (S.D.N.Y. Apr. 14, 2020). The court denied Rabadi’s “application without prejudice to renewal if the BOP does not act upon his request within thirty days of its receipt.” Id. at *4. 392. On May 4, 2020, Rabadi filed a letter renewing his motion for compassionate release. Rabadi Dkt. No. 95. 393. On May 9, 2020, the Government informed Judge Karas that Rabadi was scheduled to be transferred from the MDC to a halfway house on or about May 19, 2020, and that in anticipation of his transfer, Rabadi had been placed in quarantine for 14 days. Rabadi Dkt. No. 98. 394. On May 11, 2020, Rabadi responded by asking that Judge Karas place him in home confinement immediately and to cut short his quarantine at the MDC. Rabadi Dkt. No. 100. In support, Rabadi complained of a recent, untreated, heart-attack like symptoms at the MDC. Id. 395. In response, the Government filed Rabadi’s redacted medical records reflecting his May 5, 2020, MDC encounter with health services. Rabadi Dkt. No. 101-2. Rabadi’s counsel had failed to provide these records to Judge Karas. Rabadi Dkt. No. 101-2.
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396. Rabadi’s medical records establish that the MDC evaluated Rabadi on May 5 regarding his chest pain and reflected, “[d]iagnosis could have possibly been anxiety vs. cardiac,” he was “stable enough to return to the housing unit,” and an EKG was performed which showed “no significant changes since last one on file from 08/09/2015.” Rabadi Dkt. No. 101-2. Moreover, Rabadi acknowledges that he declined to go to the hospital to rule out cardiac disease, as is documented in the same records, including in a form in which Rabadi expressly stated that he was rejecting medical advice. Rabadi Dkt. No. 101-3.
397. On May 12, 2020, Judge Karas denied Rabadi’s May 11 motion to be released to home confinement and in advance of his quarantine’s conclusion at the MDC. Rabadi Dkt. No. 102. Judge Karas held that:
[g]iven the fact that BOP is transferring Mr. Rabadi to an RRC on May 19, 2020, that he will then be set up by Probation for home confinement, and that he is to be in quarantine until then, the only question is whether he should be released before May 19. The argument he makes is that he can quarantine at home. However, that suggestion ignores the risk that releasing Mr. Rabadi before the end of his quarantine time would jeopardize the employees at the RRC and at the Probation Department. While Mr. Rabadi has been complaining of chest pains, there is no evidence that his complaints are being ignored. Therefore, the application to expedite Mr. Rabadi’s release before 5/19/20 is denied. Rabadi Dkt. No. 102. 398. Since Judge Karas has already denied Rabadi’s request for release based on his conditions of confinement, the Petitioners’ request that this Court order Rabadi’s release based on the conditions of his confinement is now moot. As acknowledged by Judge Karas, there is no dispute that Rabadi received medical care at the MDC. Id.
3. Rabadi receives consistent and adequate medical care at the MDC 399. Rabadi’s medical records demonstrate that he has received consistent and adequate medical care at the MDC. Ex. QQQQ. 400. Rabadi arrived at the MDC on December 12, 2019. Ex. QQQQ.
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401. 402.
403. 404. 405. 406. 407.
29 Th
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On May 5, 2020, Rabadi was seen by the MDC in connection with his complaint for chest pains with a diagnosis that Rabadi’s complaints “could have possibly been anxiety vs. cardiac,” he was “stable enough to return to the housing unit,” and an EKG was performed which showed “no significant changes since last one on file from 08/09/2015.” Rabadi Dkt. No. 101-2. Rabadi executed a form showing he refused to be sent to a hospital in connection with his chest pains. Rabadi Dkt. No. 101-3.
D. Justin Rodriguez’s claims do not amount to an Eighth Amendment violation and are moot
408. At the time this action was commenced, Rodriguez was twenty-six years old and his term of incarceration was set to expire on June 9, 2020. Am. Pet. ¶¶ 11; 89. Rodriguez alleges he is at risk for a COVID-19 infection because of his “significant health problems,” namely, asthma. Pet. ¶ 89.
409. Rodriguez was released from the MDC on April 26, 2020, and is currently in home confinement. Ex. 76. Although he is not incarcerated at the MDC, Petitioners’ counsel decided not to call Rodriguez to testify at the preliminary injunction hearing.
410. On or about July 25, 2016, Rodriguez was charged in a 12-person superseding indictment for participating in a drug-trafficking organization that operated in and around the New York City area. Rodriguez was charged in two counts: conspiracy to distribute and to possess with the intent to distribute 5 kilograms and more of cocaine, 280 grams and more of crack cocaine, a detectable quantity of heroin, and marijuana, in violation of Title 21, United States Code, Sections 841(b)(1)(A), (C), (D), and 846 (Count One); and, firearms trafficking, in violation of Title 18, United States Code, Section 922(a)(1)(A) (Count Two). United States v. Justin Rodriguez, SDNY, 16-Cr.-167, ECF No. 47 (hereinafter “Rodriguez Dkt. __”).
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411. On June 21, 2017, Rodriguez pled guilty to a lesser-included offense of Count One of Indictment S1, and admitted to participating in a conspiracy to distribute cocaine, in violation of 21 U.S.C. § 841(b)(1)(C) and 846. Rodriguez Dkt. 6/21/17 Entry. On September 29, 2017, the court sentenced Rodriguez to 57 months’ imprisonment. Rodriguez Dkt. 179. The court explained that Rodriguez’s conduct was “exceeding[ly] serious,” because of the “incredible danger” posed by his activity, i.e., “this defendant possessed a loaded firearm, threatened violence in connection with drug dealing, and sold firearms to other members of the community.” Rodriguez Dkt. No. 179, Sentencing Tr. 10-11.
412. On March 27, 2020, Rodriguez submitted a letter to the Respondent requesting home confinement to reside with his mother in Staten Island, New York, under 18 U.S.C. § 3624. Rodriguez Dkt No. 329- 2.
413. Respondent denied the request because Rodriguez was ineligible for home confinement based on his status as a holdover inmate. Id. Construing Rodriguez’s request as one for compassionate release under 18 U.S.C. § 3582, Respondent denied it finding that Rodriguez had not identified any significant changes to his medical condition reflecting a “terminal or debilitated medical condition.” Id.
414. On April 5, 2020, Rodriguez filed a motion for compassionate release under The First Step Act, 18 U.S.C. § 3582(c)(1)(A)(i), or, in the alternative, home confinement, and sought “to modify his sentence to time served or immediately release him to home confinement for the remainder of his term of incarceration to be followed by the previously imposed period of supervised release” based on the threat of COVID-19. Rodriguez Dkt. No. 329 at 1.
415. In his compassionate release motion, Rodriguez did not allege that the MDC failed to provide him with adequate medical care.
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416. By Order dated April 14, 2020, Judge Preska denied Rodriguez’s motion. Rodriguez Dkt. No. 335. Judge Preska noted that Rodriguez had been disciplined multiple times during his incarceration at MDC. Id. at 4. Judge Preska noted that:
[Rodriguez] has offered no evidence to suggest the MDC and the BOP more broadly are not taking seriously the pandemic or his own personal medical history. To the contrary, as set out in the Government’s papers, the BOP has made significant efforts to respond, and these measures have provided quite successful so far. As of April 7, the MDC – where Rodriguez is housed – reported a total two inmates who tested positive for COVID-19. The MDC houses 1,734 total inmates. [] That means that approximately 0.12% of MDC inmates have been confirmed to have COVID-19. Id. at 7. 417. Furthermore, Judge Preska recounted the steps BOP and the MDC has taken to address the COVID-19 threat and concluded that: [The steps taken by BOP] belie any suggestion that the BOP is failing meaningfully to address the risks posed by COVID-19 or take seriously the threat the pandemic poses to current inmates. To the contrary, it shows that the BOP has taken the threat very seriously, and has mitigated it to an extraordinary degree. Id. at 8. 418. The court then concluded that Rodriguez had “not set forth a basis to believe that there are extraordinary and compelling reasons for him to be released early” because “[a]ll he has done is to note that he has asthma, he is in prison, and there is a COVID-19 outbreak nationwide” which “is not enough.” Id. at 9. 419. With respect to Rodriguez’s request for home confinement, Judge Preska denied that request concluding that BOP “not the [c]ourt, has the sole authority to prescribe home confinement post-incarceration” under 18 U.S.C. § 3624(c). Id. at 11. 420. In addition, Judge Preska ruled that BOP: with its professional medical staff and its systemic measures to address the spread of COVID-19, is well situated to make a determination as to whether Rodriguez
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should be eligible for home confinement, consistent with the Attorney General’s Memorandum for Prioritization of Home Confinement As Appropriate in Response to COVID-19 Pandemic (March 26, 2020), or could otherwise be accommodated at the facility. This is especially so because the BOP staff at the MDC are uniquely situated to understand the circumstances in the facility; the risk to Rodriguez; and whether, if other defendants who are deemed at high risk of COVID-19 and who would qualify under other release programs are released to home confinement, there is a way to accommodate Rodriguez at the MDC in a safe manner. Id. As Rodriguez has been released, his claims are moot. E. The named Petitioners lack commonality and typicality with other putative
class members 421. Each named Petitioner stands in a unique procedural and factual posture. Ex. LLL (Vasquez Decl.) (Dkt. No. 80) ¶¶ 24-42, 43-66, 67-76. 422. Indeed, the proposed class members do not even have similar medical backgrounds, as they all have vastly different risk profiles for COVID-19 based on preexisting conditions, age, and a host of other factors. See CDC Guidance, People Who are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html. The Court acknowledged these myriad issues at the April 1st TRO hearing; this Court questioned if Petitioners’ action could be “an appropriate class action when there are . . . individual issues that would go to release, individual issues that could go to the medical circumstances.” See April 1, 2020 Tr. 113:3-6. 423. Three of the named Petitioners (Chunn, Rodriguez, and McBride) are not even members of the proposed class, as they have been released from the MDC. 424. It would thus be impossible to objectively ascertain the members of this proposed class, particularly since the class as defined by Petitioners is not limited to certain inmates at MDC, but instead defines the class as “all current and future people detained at MDC and the subclass of all current and future medically vulnerable people detained at MDC.” Pet. Mot. 31 (Dkt. No. 73). This requirement makes the proposed class a moving target, especially as consideration for
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inmates’ requests for bail, compassionate release, or other forms of relief from incarceration remain ongoing, and inmates are receiving such relief from their sentencing judges.30 IX. The Statements of Non-Party Declarants Do Not Support the Need for a
Preliminary Injunction A. The non-party inmate declarations are insufficient to show an Eighth
Amendment violation 425. The non-party inmate declarations are vague and contain hearsay (and often double, or even triple, triple) hearsay. Indeed, a number of the declarants refer to unnamed inmates who allegedly had symptoms without any information relating to when they had symptoms. 426. At the same time, many non-party inmate declarations confirm that staff are wearing masks, and that the declarants themselves receive both masks and cleaning supplies. Many of the non-party declarants confirm that they do not, and have not, suffered any untreated COVID-19 symptoms. Below is a response to Petitioners’ assortment of non-party inmate declarations: 427. On April 20, inmate Judie Olivera claims an officer watching us overnight “had COVID-19” and was still allowed to work because “she heard about it” from “another officer talking on the phone.” Ex. 29 at ¶ 9. Olivera otherwise confirms she has no untreated COVID-19 symptoms. Ex. 29. 428. Former named Petitioner Hassan Chunn, who was released from MDC on April 8, 2020, confirms that he received a mask on April 5, “medical staff had face shields and gowns” and staff wore surgical masks. Ex. 66 at ¶¶ 9, 16. Chunn stated that he received a mask on April 5, three days before he left the MDC, and confirms that staff wore masks. Ex. 66 at ¶ 16, 9. The parties have agreed that Chunn’s claims are moot and that he should be dismissed from this case.
30 Respondent incorporates his opposition to Petitioners’ motion for class certification herein. Dkt. Nos. 79-83.
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Dkt. Entry dated May 13, 2020. 429. According to a statement provided by inmate Rasheen Richardson (Ex. 60 at 1),
dated April 20, 2020, addressed to Petitioners’ counsel who, apparently, had solicited “information [from MDC inmates] in regards to the condition here at MDC,” Richardson does not complain of any untreated COVID-19 symptoms, but instead confirms that medical staff “comes around 1 to 2 times a day to check temperatures” Ex. 60 at 2.
430. By declaration dated April 20, 2020, inmate Cesar Castillo complains of not having a mammogram performed, but does not complain about untreated COVID-19 symptoms. Ex. 59 at 1.
431. By declaration dated April 29, 2020, inmate Latie Whitley complains of no COVID-19 symptoms or lack of medical care, and does not know if inmates in his unit have symptoms. Ex. 57 at ¶¶ 5, 14.
432. By declaration dated April 28, 2020, inmate Marco Batista writes that most staff wear masks; Batista has a mask; staff in his unit do not seem sick; and Batista complains of no untreated COVID-19 symptoms or sick calls he has placed in connection with COVID-19 symptoms to which he has received no response. Ex. 53 at ¶¶ 5, 14.
433. By declaration dated April 27, 2020, inmate Jason Singer confirms that once a week inmates are given masks; Singer adds that he was tested at the MDC for COVID-19 and his test was negative. Ex. 54 at ¶¶ 12, 7.
434. By declaration dated April 17, 2020, inmate Radhys Molina writes that “[o]rderlies are coming to collect garbage and are wearing masks” and staff “are wearing masks”; Molina complains of no untreated COVID-19 symptoms. Ex. 52 at ¶¶ 12, 14.
435. By declaration dated April 24, 2020, inmate Jamel Roberts confirms that inmates
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in his unit “get new masks once a week”; reports no untreated COVID-19 symptoms (despite having asthma); and also reports having completed a period in quarantine because his cell was next to two inmates whom he believes tested positive for COVID-19. Ex. 56 at ¶¶ 5, 7.
436. By declaration dated April 29, 2020, inmate Thomas J. Miller does not complain of untreated COVID-19 symptoms, and confirms that, as an orderly, he was given a gown and gloves and goggles, and has separately received soap and masks. Ex. 47 at ¶ 6. Miller’s declaration merely refers to an unnamed inmate “transferred into the unit from outside the facility” who coughed and complained of COVID-10 symptoms but gives no other identifying information such as date. Ex. 47 at ¶ 4.
437. On May 4, 2020, inmate Dino Sanchez complains of no untreated COVID-19 symptoms. Ex. 51.
438. By declaration dated April 21, 2020, inmate Dana Dray McCann confirms that he receives soap and a mask each week and that staff wear mask. Ex. 50 at ¶¶ 6, 8, 12. In addition, McCann confirms that orderlies in his unit wear masks and that trash bags are available for inmates’ trash. Ex. 50 at ¶ 11.
439. By declaration dated April 17, 2020, inmate Hector Soria does not complain of untreated COVID-19 symptoms. Ex. 48.
440. By declaration dated April 20, 2020, inmate Hugh Brian Haney confirms the MDC gives him a mask each week and expressly stated he has no COVID-19. Ex. 49 at ¶¶ 8, 13.
441. By declaration dated April 20, 2020, inmate Ronell Watson complains of no untreated COVID-19 symptoms and confirms that he has received soap and masks. Ex. 45 at ¶¶ 8, 10.
442. By declaration dated April 21, 2020, inmate Richard Drayton complains of no
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untreated COVID-19 symptoms and confirms receipt of masks and receipt of cleaning disinfectant. Ex 42. Drayton states that he “heard that an inmate” was taken to SHU with symptoms of the virus, but provides no further detail. Ex. 42 at ¶ 11.
443. By declaration dated April 24, 2020, inmate Kawain Nelson confirms that inmates in his unit that show symptoms consistent with COVID-19 “are taken off the unit.” Ex. 36 at ¶ 14. He confirms receipt of a mask. Id. at ¶ 10.
444. Yasser Andre Platt confirms that he received a mask and receives a new one weekly, and complains of no untreated COVID-19 symptoms. Ex. 37 at ¶¶ 8, 11.
445. By declaration dated April 28, 2020, Derrilyn Needham, an inmate in the female housing unit, confirms that she has received masks, and as of April 28, Needham states that the MDC will give female inmates one mask each day. Ex. 33 at ¶ 10. Needham confirms that orderlies in the unit receive “large yellow cleaning gloves” to clean the female housing unit. Id. at ¶ 11. Needham also receives weekly soap, and several bottles of cleaning solution to clean the dormitory area. Id. at ¶¶ 12, 15. Needham requested a COVID-19 test but was denied an exam after being examined by MDC medical staff. Id. at ¶¶ 19-27. Needham, through counsel, sought a court order compelling the MDC to test her for COVID-19. Id. at ¶¶ 24-29. On May 15, 2020, Judge William H. Pauley, III, denied Needham’s request for emergency medical attention in the form of a COVID-19 test. United States v. Derrilyn Needham, -- F. Supp. 3d. --, 2020 WL 2512105, at *1 (S.D.N.Y. May 15, 2020). Judge Pauley construed her request as one brought under 28 U.S.C. § 2241, and ruled that venue did not lie in the Southern District of New York, but even if it did, the court declined to disturb the BOP’s decision regarding Needham’s medical treatment at the MDC. Id. at *3. In response to Needham’s April 28, and April 29 requests for a COVID-19 test, and her April 24 request for emergency medical attention at the MDC, Judge
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Pauley also noted that Ms. Needham had received medical care from MDC staff on April 27, May 1, May 2, and May 3 and at each exam, providers using their clinical judgment, determined that Needham did not meet the diagnostic criteria for COVID-19 testing. Id. at *1. Judge Pauley reasoned that “[g]ranting Needham’s request would interfere with the internal management of MDC” and that the “BOP has its own protocols for managing infectious diseases” and that medical care for inmates includes “the sort of issues that the Supreme Court has instructed courts to ordinarily defer to corrections officials’ expert judgment.” Id. at *3 (internal citations omitted).
B. Anthony Sanon’s declaration should be afforded no weight 446. Petitioners rely on the declaration of Senior Officer Specialist Anthony Sanon (“Sanon”) to support their allegations. As discussed below, Sanon’s declaration should be afforded no weight by the Court. 447. Sanon did not report to work at MDC from December 1, 2019, through February 18, 2020. Ex. WWWW at ¶ 17. Since February 2020, Sanon’s access to the MDC has been limited because, at Sanon’s request, he was placed on “Limited Light Duty” (“LLD”). Ex. WWWW at ¶¶ 20-21. 448. LLD is a type of assignment offered to staff who have suffered an injury and who cannot fulfill the obligations of their assigned post. LLD assignments help ensure the safety of staff, inmates, and the institution by acknowledging staff may be ill-equipped to respond to emergencies due to health issues. Ex. WWWW at ¶ 20. All LLD assignments for staff are based on the medical concerns each employee presents and is designed to ensure their own safety, as well as all staff present in the institution. Ex. WWWW at ¶ 21. 449. On February 6, 2020, Sanon was offered an LLD assignment at MDC in response to his claim that he sustained an on-the-job injury/illness on September 11, 2019. Ex. WWWW at ¶ 21. Sanon accepted this LLD assignment on February 19, 2020. Ex. WWWW at ¶ 21.
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450. As part of his LLD assignment, BOP assigned Sanon to the West Front Lobby as a “#3 Officer.” The #3 Officer typically interfaces with incoming individuals. This includes greeting visitors and attorneys, issuing lockers for personal effects, checking the roster program to make sure visitors are approved. There is limited mobility required by this position and it allows Sanon an opportunity to rest in accordance with his medical needs. Ex. WWWW at ¶ 21.
451. Under the terms of his LLD assignment, Sanon is prohibited from entering the secure confines of the institution and responding to emergency situations and he is legally bound to abide by his medical restrictions at all times. Ex. WWWW at ¶ 22.
452. Since his return to work on February 19, 2020, and pursuant to his LLD status, Sanon is not permitted to enter MDC whether on official union time or during his assigned shift. Ex. WWWW at ¶ 23.
453. Sanon’s schedule has been adjusted to prevent him from having to proceed past the control center, into the secure confines of the MDC, including inmate housing units. All LLD assignments for all staff are based on the medical concerns each employee presents and is designed to ensure their own safety, as well as all staff present in the institution. Ex. WWWW at ¶ 23.
454. According to MDC’s Acting Safety Manager, Tristan Rohlfs, who provided a declaration dated May 11, 2020 in response to Sanon’s allegations regarding the lack of PPE for staff at the MDC (Ex. XXXX), the MDC’s safety department orders and provides surgical masks, N-95 respirator masks, soap, hand sanitizer, and disinfecting chemicals for the institution and institutional staff. Ex. XXXX at ¶ 1.
455. In November 2019, MDC’s safety department purchased more than 80 cases of hand soap for staff. Each case contains twelve 1,000 mL cartridges of soap. As of May 11, 2020, at least 30 cases remain, and there is no current need to purchase additional hand soap.
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Accordingly, contrary to Sanon’s allegations, MDC has ample soap in stock to provide to staff in common areas of the institution. Ex. XXXX at ¶ 4.
456. MDC received 75 hand sanitizer dispensers on April 7, 2020 from a vendor. Staff installed and filled them simultaneously during the week of April 7, 2020. Since their installation, the safety department refills the dispensers periodically, by request or on an as needed basis. Contrary to Sanon’s allegations, these dispensers were not filled for the first time on April 22, 2020. Instead, they were filled three weeks before the date he claims, and as needed thereafter. Ex. XXXX at ¶ 75.
457. As of March 11, 2020, MDC’s inventory of PPE included 1,000 surgical masks and 6,500 N-95 respirator masks. Ex. XXXX at ¶ 6.
458. The safety department has provided, and continues to provide, surgical masks to the correctional services department for distribution to all staff. Ex. XXXX at ¶ 7.
459. During and throughout this pandemic, MDC’s safety department has obtained at least 15,000 surgical masks from the Northeast Regional Office. These masks are distributed to staff, and they must sign to acknowledge receipt. Ex. XXXX at ¶ 8.
460. MDC’s safety department has obtained cloth masks from UNICOR -- the BOP’s prison industry -- to distribute to staff. During the week of April 27, 2020, three cloth masks were issued to staff. These masks have been issued BOP-wide in accordance with CDC guidelines. They are washable and reusable. Since these were provided, MDC has slowed down on the provision of surgical masks to staff in an effort to guard the supply for potential future needs. Ex. XXXX at ¶ 9.
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461. During and throughout this pandemic, MDC’s safety department has purchased at least 1,000 additional N-95 respirator masks. MDC’s safety department has also obtained at least 1,000 N-95 respirator masks from the BOP’s Northeast Regional Office. Ex. XXXX at ¶ 10.
462. These N-95 respirator masks are provided by the safety department to the correctional services department for distribution to fit-tested individuals working housing units subject to isolation and quarantine. Ex. XXXX at ¶ 11.
463. The Occupational Safety and Health Administration (“OSHA”) mandates that fit testing occur before staff can be issued an N-95 respirator mask. Ex. XXXX at ¶ 12.
464. OSHA’s Respiratory Protection Standard is codified in 29 C.F.R. § 1910.134. This standard requires three elements for staff to properly utilize an N-95 respirator mask: (1) medical clearance, (2) training; and (3) fit-testing. Currently, at MDC, staff have the opportunity to be fittested by Safety staff four days per week. Ex. XXXX at ¶ 13.
465. Staff must first fill out a questionnaire, providing information to a licensed health care provider regarding any conditions that would preclude them from wearing a respirator. Ex. XXXX at ¶ 14. Once medically cleared, staff will then receive training on proper donning and offing procedures, types of respirator masks, limitations of the respirator masks, and other relevant information. Ex. XXXX at ¶ 14. Finally, staff must complete a fit-test with the same make, model, and type of respirator that would be provided by the facility. Ex. XXXX at ¶ 14. Fit-testing ensures that users are receiving the expected level of protection by minimizing any contaminant leakage into the facepiece. Ex. XXXX at ¶ 14.
466. The OSHA respirator standard prohibits tight-fitting respirators to be worn by workers who have facial hair that comes between the sealing surface of the facepiece and the face of the wearer. Facial hair that lies along the sealing area of a respirator, such as beards, sideburns,
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or some mustaches, will interfere with respirators that rely on a tight facepiece seal to achieve maximum protection. Ex. XXXX at ¶ 15.
467. Upon information and belief, Sanon has not been properly fit-tested in at least the last three years at MDC. Sanon has indicated that he has not shaved—and will not shave—in order to be fit-tested. Ex. XXXX at ¶ 16.
468. MDC cannot accept donated PPE because the safety department cannot verify the protection factor or proper fit of the equipment provided. Ex. XXXX at ¶ 17.
469. In May 2020, the safety department has provided disinfectant wipes to be placed outside both the East and West Control Centers, so staff may sanitize any equipment obtained and utilized during their assigned shift. Staff have been advised that equipment can and should be disinfected throughout the day, but at a minimum, staff can utilize these disinfectant wipes prior to turning their equipment in at the end of their assigned shift. Ex. XXXX at ¶ 18.
470. Sanon alleges that there is “no system in place to warn Correction Officers when they have worked closely with other staff who test positive.” Ex. 79 at ¶ 9. But Sanon’s allegation is unsupported. When a staff member tests positive, MDC’s Health Services is responsible for conducting contact investigations of the close contacts of the positive staff member. Ex. YYYY at ¶ 3. Through this investigation, BOP informs those who may have had close contacts with the positive individual of the potential for infection. Ex. YYYY at ¶ 3. MDC’s Health Services advise the staff members they should self-monitor for symptoms while at home and at work. Ex. YYYY at ¶ 3. Additionally, MDC asks staff members to conduct temperature checks twice daily, monitor their symptoms, practice good hand hygiene, and wear a mask. MDC asks staff members to tell their supervisor immediately, and to go home if their condition changes while at work. Ex. YYYY, ¶ 3. Consistent with privacy regulations, the MDC does not share information regarding the
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identity of staff members who test positive for COVID-19 with other staff (including Sanon) or

inmates. Ex. YYYY at ¶ 4.

471. Sanon’s lack of knowledge of the work of BOP officials in response to COVID-19

renders his declaration meritless.

CONCLUSION

The credible evidence in this action establishes that Respondent has not been deliberately

indifferent to the needs of Petitioners and that Petitioners cannot meet any of the standards for the

preliminary injunctive relief that they seek. For the foregoing reasons, the Court should deny

Petitioners’ motion for a preliminary injunction, deny Petitioners’ request for class certification

and grant the Respondent any such other and further relief as this Court may deem proper and just.

Dated: Brooklyn, New York May 19, 2020

RICHARD P. DONOGHUE United States Attorney Counsel for Respondent Eastern District of New York 271-A Cadman Plaza East, 7th Fl. Brooklyn, New York 11201

By:

/s/

James R. Cho

Seth D. Eichenholtz

Joseph A. Marutollo

Paulina Stamatelos

Assistant U.S. Attorneys

Attorneys for Respondent

(718) 254-6519/7036/6288/6198

james.cho@usdoj.gov

seth.eichenholtz@usdoj.gov

joseph.marutollo@usdoj.gov

pauline.stamatelos@usdoj.gov

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Case 1:20-cv-01590-RPK-RLM Document 99-1 Filed 05/19/20 Page 1 of 2 PageID #: 3273 U.S. Department of Justice

United States Attorney Eastern District of New York
271 Cadman Plaza East Brooklyn, New York 11201

By ECF (w/ enclosure)

May 19, 2020

Honorable Rachel P. Kovner United States District Judge United States District Court Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201

Re: Chunn, et al. v. Warden Derek Edge, Civil Action No. 20-cv-1590 (Kovner, J.) (Mann, M.J.)

Dear Judge Kovner:

Enclosed please find Respondent’s Post-Hearing Proposed Findings of Fact. Respondent respectfully informs the Court that this filing contains a limited number of redactions; these redactions are displayed where the proposed Findings of Fact reference the contents of exhibits containing confidential medical information, which have already been submitted to the Court under seal. See Transcript of Preliminary Injunction Hearing, p. 431:5-9 (filing certain medical records under seal).

Respondent will file, under separate cover, a motion requesting leave to file an unredacted version of his Proposed Findings of Fact under seal.

Respectfully submitted,

RICHARD P. DONOGHUE United States Attorney

By:

/s/

James R. Cho

Seth D. Eichenholtz

Joseph A. Marutollo

Paulina Stamatelos

Assistant U.S. Attorneys

(718) 254-6519/7036/6288/6198

james.cho@usdoj.gov

seth.eichenholtz@usdoj.gov

joseph.marutollo@usdoj.gov

pauline.stamatelos@usdoj.gov

Case 1:20-cv-01590-RPK-RLM Document 99-1 Filed 05/19/20 Page 2 of 2 PageID #: 3274 cc: All Counsel of Record (by ECF)

 
 Case 1:20-cv-01590-RPK-RLM Document 101 Filed 05/20/20 Page 1 of 59 PageID #: 3392

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI, by his Next Friend MIGDALIZ QUINONES; JUSTIN RODRIGUEZ, by his Next Friend JACKLYN ROMANOFF; ELODIA LOPEZ; and JAMES HAIR,
individually and on behalf of all others similarly situated,
Petitioners,
-against-
WARDEN DEREK EDGE,
Respondent.

No. 20 Civ. 01590
PETITIONERS’ PROPOSED FINDINGS OF FACT

Petitioners, by and through their undersigned counsel, respectfully submit the following proposed findings of fact.
Inadequate COVID-19 Testing 1. MDC inmates have received only 16 tests since the beginning of the COVID-19 pandemic, at least 3 of which were given by outside hospitals.1 As of April 27, the MDC had only received 20 tests over the course of the COVID-19 pandemic.2

1 05/19/2020 Report from the Bureau of Prisons regarding the Metropolitan Detention Center and Metropolitan Correctional Center, available at https://www.nyed.uscourts.gov/covid-19. 2 Ex. 26 (Vasquez Depo) Tr. 115:3-14.
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2. The MDC has represented that it has at all times had an adequate number of tests.3 However, it has not had enough tests to test every inmate with COVID-19 symptoms.4
3. The number of positive tests at the MDC is not indicative of the number of detained people who have COVID-19 at the MDC, because the MDC has no idea how many people in the MDC have COVID-19 symptoms.5
4. The MDC’s reports of positive COVID-19 test results provide an artificially low picture of the total number of people with COVID-19 in the facility. MDC admits that there are at least five prisoners it presumes were positive that it did not test.6
3 Ex. 26 (Vasquez Depo) Tr. 122:17-20 (“So my question is whether at any point so far in the pandemic MDC has had operated without an adequate number of tests? A. No.”). 4 Ex. 80 (Response to Interrogatory No. 1) (“Inmates with COVID-19 symptoms as evaluated by MDC medical staff, are housed in the isolation unit. As of March 13, 2020, when the MDC first started to house inmates in the isolation unit as a result of the COVID-19 pandemic, a total of 19 inmates have, at some point, been housed in the isolation unit.”); Ex. 76 (Decl. of Justin Rodriguez) ¶¶ 7, 15-18 (reporting COVID-19 symptoms while at MDC, and a positive COVID-19 antibody test upon release). 5 Ex 26 (Vasquez Depo) Tr. 65-66 (there are people who have expressed symptoms of COVID who have not been placed in isolation and she has no idea how many such people there are); May 12 Tr. 207 (Ms. English admits she did not find out how many people had been placed in isolation for COVID-19 symptoms at the MDC. “I looked at processes.” Ms. English did not find out how many people had been identified as presumptive positives at the MDC.). 6 Ex. 26 (Vasquez Depo) Tr. 62-63.
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5. There are more prisoners in the MDC who are or were positive for COVID-19, but were not tested. At least eleven inmates have complained that they were not administered COVID-19 tests, even though they reported COVID-19 symptoms.7 At least one of those inmates, Justin Rodriguez, repeatedly reported symptoms consistent with COVID-19 to the MDC staff, but was never tested or put in isolation. Upon his release, Mr. Rodrigeuz had antibody testing indicating that he had contracted COVID19.8
6. Respondent has used the MDC’s artificially low positive test results to argue that detained people should not be granted compassionate release.9 Courts have accepted this argument.10
7 Exs. 28, 30, 33, 35, 44, 47, 55, 65, 66, 76, 81. 8 Ex. 76 (Decl. of Justin Rodriguez) ¶¶ 7, 15-18; Ex. 71 (Rodriguez positive COVID-19 antibody test results). 9 United States v. Rodriguez, 16-cr-00167-LAP, Dkt. 331 (S.D.N.Y., April 7, 2020) (“As of today, the MDC – where Rodriguez is housed – reported a total two inmates who tested positive for COVID-19. The MDC houses 1,734 total inmates. See BOP website for MDC Brooklyn. That means that approximately 0.12% of MDC inmates have been confirmed to have COVID-19. . . All of these steps belie any suggestion that the BOP is failing to meaningfully address the risks posed by COVID-19 or take seriously the threat the pandemic poses to current inmates.”). 10 Id. Dkt. 335 (order denying request for release, and repeating the Government’s contention that as of April 7, “the MDC – where Rodriguez is housed – reported a total two inmates who tested positive for COVID-19”).
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7. Respondent has no consistent standard for deciding when to test detained people for COVID-19. It maintains that the decision to test is “a clinical decision made at the institutional level.”11
8. Analysis of MDC sick call requests produced in this litigation confirm that inmate reports of COVID-19 symptoms far outnumber the COVID-19 tests that have been administered at MDC. 210 sick call requests reporting at least one COVID-19 symptom were submitted.12 This number does not include those paper sick call requests that MDC destroyed, which could reasonably be expected to contain a higher proportion of COVID-19 symptoms than electronic requests, as sicker inmates would be less likely to leave their cells and use the computer to make an electronic request.
9. Respondent’s expert Dr. Beard agrees with the current CDC guidance for testing that designates residents and staff in “prisons with symptoms” as “HIGH PRIORITY” for testing – and testified that they should be tested, if possible. 13 Petitioners’ expert Dr. Venters also agrees, stating that “[g]iven the systemic concerns with addressing the sick-call system in MDC, heavy consideration should be given to testing all people detained in MDC.” He notes that while doing so may take time to implement: “it is essential to implement a phased testing of detained people, starting with high risk patients and those who present with COVID-19 systems.”14 11 Ex. 26 (Vasquez Depo) Tr. 120. 12 Ex. 9; Ex. 24; Ex. 78. 13 May 12 Tr. 284:16-286:5. 14 Ex. 25 (Dr. Venters Facility Evaluation) ¶ 27.
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10. A shortage of tests and test reagents is not an impediment to broader testing at the MDC. 15 Many large correctional systems are testing their prison populations. Even as of late March, the New York City Department of Correction was testing all symptomatic and some asymptomatic individuals detained in the city’s jails.16 Respondent’s own correctional expert testified that he was aware that many correctional systems had “stepped up” their testing and were testing more broadly.17
11. Respondent does not test its staff for COVID-19, despite staff having requested such tests. 18
12. The MDC does not test its staff even though, as both parties’ experts acknowledge, the virus comes into the facility and moves through the facility because staff contract the virus in the community and then come into the facility and move throughout it, interacting with detained people.19
15 May 12 Tr. 160: 25; 161: 1-3. Dr. Venters noted that lack of access to testing was not a current impediment to testing, but probably was an impediment six weeks prior to the hearing.
16 Ex. 34 (Cohen Decl.) ¶ 5-6. 17 May 13 Tr. 411: 23-25; 412: 1-5. 18 Ex. 26 (Vasquez Depo) Tr. 146-147; Ex. 79 (Sanon Decl. ) ¶ 14 (“The MDC is not testing staff to limit the spread of the virus. I would like everyone who works at the facility to be tested. To date, the MDC has not provided a testing site. Corrections Offers need to find their own tests. As a result, it has been difficult to get people tested. I have personally called around to try to locate testing sites for my members.”). 19 May 12 Tr. 116: 22-25; 117: 1-5; 247: 17-24.
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13. The MDC does not require that staff report their positive COVID-19 test results.20 However, 39 staff have voluntarily reported positive COVID-19 test results.21
14. The difference in the prevalence of positive COVID-19 tests among staff versus incarcerated people likely indicates a significant undercount of the number of detained people with COVID-19 in the MDC. As Dr. Venters explained: “My concern is that the systematic failures in sick call and screenings that are happening, and the observation that staff numbers are going up while the number of tests positive for detained people are flat, leaves me concerned that there is a significant amount of COVID-19 activity and infection among detained people that is currently undetected.”22
Inadequate Screening for COVID-19 Symptoms A. MDC Does Not Screen for COVID-19 Symptoms; At Most, It Merely
Conducts Insufficient “Wellness Checks” 15. In its Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (the “CDC Correctional Guidelines”) the CDC “recommends verbal screening and temperature checks for
20 Ex. 26 (Vasquez Depo) Tr. 147. 21 05/19/2020 Report from the Bureau of Prisons regarding the Metropolitan Detention Center and Metropolitan Correctional Center, available at https://www.nyed.uscourts.gov/covid-19. 22 May 12 Tr. 98-99.
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incarcerated/detained persons.”23 The CDC Correctional Guidelines also recommends that facilities should “[i]mplement daily temperature checks in housing units where COVID-19 cases have been identified, especially if there is concern that incarcerated/detained individuals are not notifying staff of symptoms.”24
16. The CDC’s Correctional Guidelines are regarded as the most authoritative source of policy recommendations by both parties. The MDC’s experts unanimously agreed that CDC Guidance should be followed. For example, according to Ms. Tekbali, there is “nothing” in the CDC Corrections Guidance that she would disagree with.25 Further, Dr. Beard stated that the CDC Guidance on Corrections “seems to be the most authoritative source in dealing with this that we have”26 and, that there was nothing in the Guidance “that [he] specifically saw that [he] disagreed with.”27
17. Despite this unanimous agreement with the CDC Correctional Guidelines, the MDC has failed to implement active screening for symptoms as well as temperature checks.
23 Ex. 6 at 26 (emphasis added). 24 Ex. 6 at 22. 25 May 12 Tr. 253:3-5. Ms. Tekbali also conceded that quarantine units should be run in accordance with CDC Correctional Guidance. May 12 Tr. 275:6-8. 26 May 13 Tr. 395:13-14. 27 May 13 Tr. 395:18-19.
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18. Thirteen people housed at the MDC Reported that they received no screening for COVID-19 beyond temperature checks.28
19. Respondent admits that inmates in its general population are not regularly screened for COVID-19. 29 BOP, however, has claimed on its website that they are screening and conducting daily temperature checks throughout general population.30 The MDC also admits that it does not ask any specific COVID-19 questions when conducting its “wellness checks”.31 Nor does it keep any records of what questions are asked (if any) or how they are answered by inmates.32 The only question that Ms. Vasquez, MDC’s Health Services Administrator, asks when conducting her own rounds is “how are you doing?”33
20. During summation, counsel for Respondent in response to a question from the Court, asserted that the reason the MDC staff do not conduct sign and symptom checks by asking about COVID-19 signs and symptoms is because “you don’t want to
28 Exs. 28, 32, 36, 37, 38, 39, 43, 44, 47, 48, 55, 64. 29 Ex. 26 (Vasquez Depo) Tr.48:11-16; see also May 13 Tr. 324:19-21 (Dr. Beard testifies that MDC conducts twice a day sick calls in general population but describes temperature and wellness checks only in quarantine and isolation). 30 Ex. 19 at PETS 1603. 31 Ex. 26 (Vasquez Depo) Tr. 38:20-25, 39:1-10; 40-44. 32 Ex. 26 (Vasquez Depo) Tr. 44. 33 Ex. 26 (Vasquez Depo) Tr. 44:3-15.
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lead the inmates either.” 34 However, counsel’s assertion is inconsistent with CDC guidance35 and is not supported by anything in the record.
21. These screening failures were evident during Dr. Venters’ visit to the MDC on April 23, 2020. He reported that “none of the people [that he] spoke with reported symptom screening at all. That is, they were never asked whether they had cardinal symptoms of COVID-19 including, for example: fatigue, shortness of breath, cough and other symptoms identified by the CDC. According to Dr. Venters’ medical expertise and experience, “it is essential that such active screening should be part of any [response] during a viral outbreak. To fail to do so can result in catastrophic consequences to populations exposed to a communicable virus, such as COVID-19.”36
22. Dr. Venters also observed that “[w]hen the MDC staff screens people for COVID-19, they rely only on temperature checks, which is a serious deviation from accepted standards.”37
23. This practice of relying on temperature checks is inadequate and contrary to the CDC Correctional Guidelines on “Verbal Screening and Temperature Check
34 May 14 Tr. 545: 12-18. 35 Ex. 6 at 26 36 Ex. 25 (Dr. Venters Facility Evaluation) ¶ 21. 37 Ex. 25 (Dr. Venters Facility Evaluation) ¶ 2. See also Ex. 25 (Dr. Venters Facility Evaluation) ¶ 18 “The CDC recommends that all new admissions to a detention facility should be screened for both signs and symptoms of COVID-19 … Several people I spoke with reported that they had not been screened at all when they arrived in MDC, a clear deviation from basic CDC guidelines.”
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Protocols for Incarcerated/Detained Persons, Staff and Visitors.” 38 This guidance recommends verbal screening for symptoms of COVID-19 by way of the following questions: (i) “Today or in the past 24 hours, have you had any of the following symptoms? Fever, felt feverish, or had chills? Cough? Difficulty breathing? (ii) “In the past 14 days, have you had contact with a person known to be infected with the novel coronavirus (COVID-19)?”39
24. The CDC Correctional Guidelines also recommend “[w]hen evaluating and treating persons with symptoms of COVID-19 who do not speak English, using a language line or provide a trained interpreter when possible.”40 The MDC does not consistently ensure that people who do not speak English are provided with language interpretation to report symptoms.41
25. The MDC’s “wellness checks” are perfunctory, if they occur at all. In fact, the MDC admits that the wellness checks sometimes happen through the food slot,42 and that the “wellness checks” of an entire housing unit within MDC only take about an hour or so, even though there are about 120 people per unit.43 This is a clear deviation from
38 Ex. 6 at 26. 39 Ex. 6 at 26. 40 Ex. 6 at 23. 41 Ex. 51 (Sanchez Decl.) ¶¶ 11-12. 42 Ex. 26 (Vasquez Depo) Tr. 79. 43 Ex. 26 (Vasquez Depo) Tr. 43:8-16.
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the CDC guidelines.. In fact, Ms. Tekbali has indicated that she considers questions regarding COVID-19 symptoms to be an “important” part of the screening procedure.44
26. These simple questions—if implemented regularly and recorded adequately—could have a dramatic effect on the MDC’s ability to control the spread of COVID-19 in the facility. According to Dr. Venters: “we’re trying to find people as early as possible, and so it really comes down to this simple question. Do you want to find people with early COVID-19 in case you way want to be inclusive, which is what the CDC says that symptom and temperature checks, or do you want to find them later in which case you could be more reactive and just check temperature.”45
27. Although in her testimony, Respondent’s expert stated that up to 93% of people with COVID-19 experience fever,46 the CDC guidance on which her report relies does not support her assessment that fever is nearly this prevalent in typical cases. In her report, Ms. Tekbali relies upon CDC’s Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19).47 This guidance cites a study that found fever present in only 44% of patients hospitalized for coronavirus at
44 May 12 Tr. 282:4-7. 45 May 12 Tr. 141:13-18. See also May 12 Tr. 75:1-3 (“To the extent a facility wants to find people who have COVID-19, it should include a structured set of questions [about] symptoms and also a temperature check.”). 46 May 12 Tr. 240:14-16. 47 Ex. BB.
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admission. 48 The same study found that fever presents at higher rates (89%) during hospitalization.49 Ms. Tekbali’s report states that temperature screening is the standard in hospitals, but does not address the standard in correctional or other residential settings.50
B. MDC’s Inmate Temperature Checks are Sporadic and Insufficient 28. An elevated temperature is not always an early indication that an individual may be positive for a COVID-19 infection.51 More often, it is a symptom that occurs at the time an individual may need to be hospitalized—a different time frame, which is not appropriate when trying to combat the spread of COVID-19 in a correctional facility. 52 Nevertheless, temperature checks appear to be the only method guided by policy that MDC is using as a means to attempt to identify potential cases of COVID-19 in its facility. 29. Respondent’s implementation even of temperature checks is inconsistent and sporadic. As of April 27, 2020, the MDC reports that once a day temperature checks are not happening in the general population, because MDC “has not been given Central Office guidance about that.”53 Dr. Venters noted that in their responsive reports “neither [MDC] expert rebutted reports by detained people that the housing area temperature 48 Ex. BB, Tekbali 10. 49 Id. 50 Ex. AA at 3. 51 May 12 Tr. 147-148. 52 May 12 Tr. 147-148. 53Ex. 26 (Vasquez Depo) Tr. 211-12.
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checks have slowed in frequency from twice daily, to less than daily.”54 Thus, it is clear from the MDC’s own evidence that it is not conducting temperature checks regularly, despite the CDC’s recommendation of both verbal screening and temperature checks for incarcerated/detained persons.”55 .
30. This failure to implement a straight-forward policy was also confirmed on the ground at the MDC. Fourteen MDC inmates have reported that there is no routine screening of COVID-19.56 And as Dr. Venters learned during his visit to the MDC, inmates reported only irregular temperature screening. In his own words: “based on my interviews with people on [unit 40], no symptom screening was occurring at all, and the limited checking of a single sign—temperature—was intermittent.”57 Such a limited and intermittent approach to temperature checks is insufficient to control an outbreak of COVID-19.
B. MDC’s Intake/Entry Screening is Insufficient 31. According to the CDC Correctional Guidelines correctional facilities should “[p]erform pre-intake screening and temperature checks for all new entrants. Screening should take place in the sallyport, before beginning the intake process.”58 The
54 Ex. 82 (Venters Supp. Report) ¶ 3(a). 55 Ex. 6 at 26 (emphasis added). 56 Exs. 28, 32, 36, 37, 38, 39, 43, 44, 47, 48, 55, 64, 66, 83. 57 Ex. 25 ¶ 20. 58 Ex. 6 at 10.
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CDC Correctional Guidelines go on to state that this applies to “incarcerated/detained persons, staff, volunteers, and visitors who enter correctional and detention facilities, as well as incarcerated/detained persons who are transferred to another facility or released from custody.”59 The CDC Correctional Guidelines also recommend that if possible, all new intakes should be quarantined “for 14 days before they enter the facility’s general population (SEPARATELY from other individuals who are quarantined due to contact with a COVID-19 case).”60 Indeed, Ms. Tekbali agrees with such a recommendation, stating that “everyone who enters the facility should be triaged at the front door.”61
32. The MDC has not implemented consistent, adequate screening for all new entrants to the building. According to Dr. Venters, “people [that he] spoke with reported that they had not been screened at all when they arrived in MDC, a clear deviation from basic CDC guidelines.”62 This represents a “systemic lack of quality assurance”63 and could serve to work against other policies that MDC attempts to put in place to control the spread of COVID-19 throughout the facility.64
33. Individuals entering the MDC are not always screened for symptoms of COVID-19. The completed “Inmate Screening Tool” for one individual who entered the 59 May 12 Tr. 281. 60 Ex. 6 at 14. 61 May 12 Tr. 281. 62 Ex. 25 (Dr. Venters Facility Evaluation) ¶ 18. 63 May 12 Tr. 79:16-17. 64 Ex. 25 (Dr. Venters Facility Evaluation) ¶ 4.
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MDC on April 14, 2020 has no markings in the section titled “Assess Symptoms” aside from a notation of “97.0” next to the “fever” box.65 The “Assess Symptoms” section of the screening tool has yes or no boxes for fever, cough, and shortness of breath, but none of these boxes were checked for this individual.66 The “Assess the Risk of Exposure” section, which has yes or no boxes for “Traveled from, or through, any of the locations identified by the CDC as increasing epidemiologic risk” and for “Had close contact with anyone diagnosed with COVID-19 illness within the last 14 days,” was also left blank.67
34. The MDC is not properly screening staff at entry. The MDC has admitted that staff are not asked about whether they have had contact with people who are positive for COVID-19 in the community.68 Given the rising level of staff infections of COVID19, this is concerning.
65 Ex. ZZZZ at 2. 66 Id. 67 Id. 68 May 12 Tr. 224:15-19; Ex. 79 (Sanon Decl.) ¶ 12 (“MDC continues to assign nonmedical personnel to screen the staff.”); id. ¶ 13 (“[W]hen staff are screened, we are not asked if we have been exposed to anyone who is positive for COVID-19 in the last 14 days.”).
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MDC Does Not Track COVID-19 Symptoms 35. Respondent does not track the reporting of symptoms consistent with COVID-19 within the prison, and it has no idea how many people have reported symptoms consistent with COVID-19.69 36. Respondent’s lack of knowledge with respect to symptomatic inmates leads to inadequate care and triaging of MDC’s prisoner population. The CDC guidelines related to management of COVID-19 cases, including the guidelines related to the use of medical isolation, rely on the prompt identification of inmates with COVID-19 symptoms and housing units with symptomatic inmates.70 Thus, it is crucial that MDC have a thorough understanding of the number of inmates who have symptoms on each day of the ongoing pandemic. 37. MDC admits that its method of triage for COVID-19 relies on knowledge of inmate symptoms. As the BOP’s Assistant Director Ms. English testified, triage for COVID-19 at MDC “would depend on the symptoms . . . It would depend on whether or not if they were symptomatic and voicing their concerns.”71 Ms. English also admitted
69 Ex. 26 (Vasquez Depo) Tr. 65-66; 94-95; Ex.80 (Resp.’s Response to Interrogatory No. 1(f)) (confirming that BOP does not track COVID-19 symptoms)); May 13 Tr. 517:12 (Dr. Beard admitted that he did not know if anyone at MDC had symptoms when he visited the facility). 70 Ex. 6 at 15-17. 71 May 12 Tr. 196:6-9.
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that it would be alarming if the MDC was not tracking people with COVID-19 symptoms.72
38. Neither the MDC nor the BOP is currently tracking who in the MDC has reported symptoms consistent with COVID-19.73 Respondent concedes that the MDC does not track COVID-19 symptoms. Other than testing data, the only data that the MDC tracks is the number of people who are in quarantine and isolation.74 The MDC’s choice not to track symptoms therefore undermines its COVID-19 triage measures.
39. The use of a tracking tool that collects information on inmate symptoms is a standard approach to prison outbreaks of communicable disease. During his testimony, Dr. Venters proposed that the MDC adopt a standardized COVID-19 surveillance tool which includes COVID-19 symptoms and signs, including temperature checks, to be administrated twice daily by nursing staff to all incarcerated persons who possess highrisk factors, patients in quarantine, and patients in isolation.75 He suggested that the information collected using this tool could be added to inmates’ paper or electronic medical records, which MDC staff can use to track symptoms by housing area.76 Dr.
72 May 12 Tr. 205. 73 May 12 Tr. 197 (symptoms only appear in an individual person’s chart); May 14 Tr. 538-39; Ex. 26 (Vasquez Depo) Tr. 93-94 (dashboard system is tracking people in isolation, quarantine, positive tests, but not tracking symptoms); May 12 Tr. 207. 74 Ex. 26 (Vasquez Depo) Tr. 93-95, 176 (central BOP system is tracking people in
isolation, quarantine, and tracking positive tests, but is not tracking symptoms). 75 See May 12 Tr. 80:17-82:14. 76 Id.
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Venters notes that this approach is “eminently doable in both the paper and the electronic world.”77 He spoke from experience, as he has employed this approach when managing outbreaks in his previous positions.78
A. The MDC’s Sick Call System is Broken and Fails to Deliver Adequate Care to Inmates
40. A functioning sick call system is foundational to both patient care and outbreak management in prisons. In order for a facility to take steps to provide medical care to sick inmates while controlling the outbreak, it requires a sick call system that simultaneously allows inmates to report symptoms and requires timely responses to their requests. Yet, even in the midst of the COVID-19 pandemic, MDC’s sick call system is severely deficient. MDC “fails to provide timely and adequate response for individual patients with symptoms of COVID-19 and also fails to integrate sick call information into tracking of the outbreak.”79
41. First, detained people at the MDC struggle to report symptoms to the MDC staff. The MDC’s own Associate Warden concedes that the emergency call buttons located in cells are broken and are not likely to be fixed in the near future.80 Absent functioning medical call buttons, frequent medical rounds would be ideal in order
77 Id. 78 Id. 79 Ex. 82 (Venters Supp. Report) ¶ 3. 80 Ex. 40 (King Depo) Tr. 103.
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to track inmate symptoms.81 Yet, MDC is not conducting regular medical rounds for its general population to screen for COVID-19 symptoms.82 Even if the emergency call buttons were working and regular medical rounds were occurring, many inmates are afraid to report symptoms because they fear they will be placed in solitary confinement.83
42. Second, the MDC does not provide timely responses to sick call requests. The MDC agrees that sick call requests should be considered in a timely way.84 The MDC also agrees that it is important to train staff on the importance of reporting health related problems among detainees.85 However, 22 inmates at the MDC have reported a failure to respond to sick call requests in a timely manner, and some reported never receiving a response despite submitting multiple requests for care.86
81 May 12 Tr. 288:15. 82See May 13 Tr. 365:2-4. 83 Ex. 11 (von Dornum Decl.) ¶ 37; Ex. 26 (Vasquez Depo.) Tr. 45:5-15 (Prisoners have not been assured that they will not be placed in the SHU if they report symptoms). 84 May 12 Tr. 286:21. 85 May 12 Tr. 281:10-13. 86 Ex. 29 (Olivera Decl.), Ex. 32 (Dixon Decl.), Ex. 33 (Needham Decl.), Ex. 35 (Finch Decl.), Ex. 36 (Nelson Decl.), Ex. 37 (Platt Decl.), Ex. 38 (Pierson Decl.), Ex. 39 (SojosValladares Decl.), Ex. 44 (Carpenter Decl.), Ex. 45 (Watson Decl.), Ex. 47 (Miller Decl.), Ex. 48 (Soria Decl.), Ex. 51 (Sanchez Decl.), Ex. 52 (Molina Decl.), Ex. 54 (Singer Decl.), Ex. 55 (Deutsch Decl.), Ex. 57 (Whitley Decl.), Ex. 59 (Castillo Decl.), Ex. 63 (Rabadi Decl.), Ex. 65 (Hair Decl.), Ex. 66 (Chunn Decl.), Ex. 81 (Gonzalez Decl.), Ex. 83 (Hair Supp. Decl.).
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43. Many incarcerated people throughout the MDC have not been screened even when they have multiple COVID-19 symptoms. 87 Mr. Sojos-Valladares, who eventually was moved to isolation because of his COVID-19, asked medical staff on multiple occasions to take his temperature while he was in general population, but they refused, only providing him medical care when he refused to eat.88 Another incarcerated person was told that she would not be evaluated for her multiple COVID-19 symptoms because the medical staff were dealing with emergencies first.89
44. In addition to these deficiencies, there is also no way of knowing exactly how many inmates reported symptoms of COVID-19 and were not seen promptly. As Ms. Vasquez explained, paper sick call requests were discarded after a clinical encounter was scheduled but before the patient was seen.90 According to Dr. Venters, “[w]ithout having the paper form that the patient filled out, and being able to compare that to what a nurse or some other clinical person writes or a scheduler writes in the electronic medical record, it renders it impossible to know that if the thing the patient was worried about was
87 See Ex. No. 28 (Bynum Decl.) ¶ 8 (despite reporting multiple COVID-19 symptoms, nurse only took his temperature); Ex. 31 (Mabry Decl.) (had chills, coughing, stomach aches, and headaches but did not see a doctor; Ex. 32 (Dixon Decl.) ¶¶ 1113 (complained of headache fever, and chills, but never received medical care); Ex. 38 (Pierson Decl.) ¶ 21 (cellmate with COVID 19 symptoms remained in cell and did not receive medical care).
88 Ex. 39 (Sojos-Valladares Dec.) ¶ 5. 89 Ex. 46 (Wilson Decl.) (reporting sore throat, headaches, fatigue, and loss of sense of
taste and smell). 90 Ex. 26 (Vasquez Depo.) Tr 194.
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addressed or even acknowledged when they finally saw somebody.” 91 Thus, it is impossible to understand whether an actual healthcare provider – or, in fact, anyone at all – responds to sick call requests at MDC. Dr. Venters stated that, in fact, “[i]t seems unknowable from my understanding of this system in this facility . . .” and that “the crux of the failure is that the system is set up to make that unhelpful.”92
45. The MDC does not contradict Dr. Venters’ observations. It merely asserts that its procedures, if followed, are adequate. As Ms. English admitted, her observations regarding sick call requests were based only on what she saw the day she visited the MDC. She could not confirm or deny what other testifying experts observed before her visit.93 Ms. English’s team also made no assessment of the MDC’s response to sick call requests reporting COVID-19 symptoms. She merely observed medical rounds and how some inmates filled out sick call requests. 94 Dr. Beard also did not observe staff responding to sick call requests during his visit.95 In addition, he did not review any documents related to sick call requests or review any surveillance video footage of staff responding to sick call requests.96 In fact, Dr. Beard noted that his report does not
91 May 12 Tr. 140:18-24. 92 May 12 Tr. 132:23-24, 138:20-21. 93 May 12 Tr. 210:5-10. 94 May 12 Tr. 214:2-25. 95 May 13 Tr. 364:1-7. 96 Id.
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address Dr. Venter’s observations of the MDC’s sick call system failures.97 Finally, Ms. Vasquez admitted that her daily report to the BOP via the Century System includes no information about COVID-19 and does not track symptoms.98 Ms. Vasquez also stated that her daily report to MDC staff and legal counsel on COVID-19 does not include information about COVID-19 symptoms – it merely tracks the inmates who are isolated, quarantined, and tested.99
46. Even when inmates are able to successfully report COVID-19 symptoms to staff, Respondent chooses not to promptly address all COVID-19 symptoms. According to Ms. Vasquez, loss of sense of taste is not considered an emergent request worthy of immediate care because it is “not quantifiable.”100 Therefore, inmates who report that symptom will likely not be seen for 2.5 weeks. 101 A sore throat also would “probably not” be considered an urgent request by MDC staff. 102 Therefore, MDC
97 May 13 Tr. 369:17-25, 370:1-11; Ex. 80 (Resp. Response to Interrogatory No. 1(f)), 4 (“The BOP does not maintain records of the total number of inmates who requested medical care for COVID-19 symptoms. The BOP is unable to determine the total number of requests for medical care for COVID-19 symptoms. The BOP does not contain in any centralized fashion sick call requests for COVID-19 symptoms.”) 98 Ex. 26 (Vasquez Depo.) Tr. 94-95 (Central Health Office receives daily reports of quarantine, isolation numbers but not of symptoms). 99 Id. 100 Ex. 26 (Vasquez Depo.) Tr. 196. 101 Id. 102 Id. at 197.
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admits that some inmates with active COVID-19 symptoms must wait for weeks to be seen for the first time by medical staff.
B. Inadequate Contact Tracing 47. Ms. Tekbali testified that contact tracing is a core disease control measure that it is a key strategy for preventing further spread of COVID-19.103 48. However, Ms. Vasquez made it clear that the MDC’s approach to contract tracing incorrectly assumes social distancing both within and outside of the MDC, which sharply decreases the effectiveness of its contact tracing measures. When the MDC conducts contact investigations of inmates, it automatically considers a prisoner’s cellmate as that prisoner’s only close contact, because MDC assumes proper social distancing as to all other prisoners and staff members in the facility.104 This is the case even though MDC admits that keeping the recommended distance from others is not always possible in the facility.105 MDC staff would also never be considered a close contact of a prisoner, regardless of the nature of their interactions with the prisoner.106
103 May 12 Tr. 262:11-14. 104 Ex. 26 (Vasquez Depo.) Tr. 83-85. 105 Ex. III (Flowers Decl.) ¶¶ 15-20, 23 (“Due to the physical design of the [women’s] unit, there are occasions where the female inmates may not always achieve the ideal distance based on the bunk assignments while they are sleeping.”). 106 Ex. 26 (Vasquez Depo.) Tr. 87:14-16.
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Furthermore, MDC does not take any preventive action to protect the general population from inmates with potential COVID-19 exposure.107
49. MDC’s contact tracing for staff is also deficient, despite its continued hiring of staff from all around the country.108 MDC does not ask its staff about close contacts in the community with positive or presumed positive people.109 Staff are not even required to report if they have tested positive for COVID-19, which makes contact tracing ineffective.110
50. The MDC does not keep any records of its contact tracing investigations for inmates, and Ms. Vasquez, the Health Services Administrator for the prison, is not sure if there is any written guidance about performing contact tracing.111 This illustrates
107 Ex. 80 (Response to Interrogatory No. 1), 3 (“Inmates are isolated and housed in the isolation unit if they have COVID-19 symptoms, not ‘due to suspected COVID-19 exposure.’”). 108 Ex. 79 (Sanon Decl.) ¶ 7-8 (“Bureau of Prisons is bringing people from other parts of the country to work in MDC Brooklyn. There are officers working at the MDC from the Philadelphia Federal Detention Center and from USP Lewisburg in Pennsylvania, among other facilities . . . It was recently reported that an officer from USP Lewisburg, who had filled in at MDC Brooklyn because we are short-staffed, tested positive while working in Brooklyn and was sent home to be quarantine.”). 109 Ex. 26 (Vasquez Depo.) Tr. 136. 110 Ex. 26 (Vasquez Depo.) Tr. 147; Ex. 79 (Sanon Decl.) ¶ 9: “There is currently no system in place to warn Correction Officers when they have worked closely with other staff who test positive.” 111 Ex. 26 (Vasquez Depo.) Tr. 88; Vasquez (Ex. YYYY) ¶ 3 (“[H]ealth services is responsible for conducting contact investigations of the close contacts of the positive staff member.”).
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the lack of any meaningful and effective contact tracing procedures at MDC, which can lead to widespread transmission of COVID-19 from exposed inmates and staff within the prison.
MDC Does Not Provide Adequate Medical Care for those Sick with COVID-19 or at High Risk of Contracting COVID-19
A. MDC Does Not Provide Adequate Medical Care for those with COVID-19 51. Detained people at the MDC who report symptoms of COVID-19 are not isolated or provided prompt medical care. The MDC has received at least 210 reports of COVID 19 symptoms since March 13 and yet, by its own calculation, it has placed only 19 people in isolation to date.112 This is contrary to the CDC Correctional Guidelines, which provide that “[a]s soon as an individual develops symptoms of COVID-19, they should wear a face mask (if it does not restrict breathing) and should be immediately placed under medical isolation in a separate environment from other individuals.”113 52. Respondent admits that the MDC is not isolating inmates even when they report COVID-19 symptoms, and that it does not know how many inmates who report symptoms are not isolated.114
112 Exs. 9, 24, 78 (BOP SCR 1 – 1192); Ex. 80 (Respondent’s Response to Interrogatory 1(a), dated April 27, 2020). 113 Ex. 6 at 15. 114 Ex 26 (Vasquez Depo.) Tr. 65-66 (“Are there people who have expresses symptoms of COVID who have not been placed in isolation? A Yes. Q: Can you tell me when that would happen that a person who expressed COVID symptoms would not be placed in medical isolation? A. That is a clinical providers judgment. Q Do you know how many
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53. Sixteen detained people housed at the MDC reported not receiving treatment while sick with COVID-19 symptoms.115
54. Several people detained at MDC reported COVID-19 symptoms to staff, but did not receive timely, or in some cases any, medical attention.116
55. Multiple detainees reported that they were not asked about, and even were ignored when they reported, common symptoms of COVID-19, including shortness of breath. 117 Failing to provide medical attention where a patient presents a compelling history of COVID-19 symptoms without elevated temperature places that individual at risk of serious illness.118 Examples of MDC’s failure to provide medical attention to individuals at MDC who reported COVID-19 can be found throughout the record.119
56. For a week, Victor Sojos-Valladares suffered from symptoms of COVID19 and despite his complaints to both custody and medical staff, he was not screened
such people there have been at the MDC? A No. Q Do you know if there have been more than ten? A I wouldn't be able to tell you that.”). 115 Exs. 27, 28, 31, 32, 33, 35, 36, 39, 43, 44, 46, 47, 55, 65, 66, 81. 116 Ex. 39 (Sojos Valladares Decl.); Ex. 76 (Rodriguez Decl.); Ex. 33 (Needham Decl.);
Ex. 28 (Bynum Decl.); Ex. 35 (Finch Decl.); Ex. 66 (Chunn Decl.); Ex. 44 (Carpenter Decl.); Ex. 30 (Gomez Decl.); Ex. 65 (Hair Decl.) Ex. 55 (Deutsch Decl.). 117 Ex. 82 Supp. Venters Rep. ¶ 6. 118 May 12 Tr. 75:6-12. 119 Ex. 25, Venters Rep. ¶ 58; Ex. 82 Supp. Venters Rep. ¶ 6; May 12 Tr. 75:6-12; Ex. 39, Sojos Valladares Decl.; Ex. 76, Rodriguez Decl.; Ex. 33, Needham Decl.; Ex. 28, Bynum Decl.; Ex. 35; Finch Decl.; Ex. 66, Chunn Decl.; Ex. 44, Carpenter Decl.; Ex. 30, Gomez Decl.; Ex. 65, Hair Decl.; Ex. 55, Deutch Decl.
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during that time. His cell-mate was also sick at this time.120 Mr. Sojos-Valladares initially suffered from headaches, but throughout the week his symptoms worsened and included difficulty breathing. He made several paper and electronic sick-call requests. 121 He reported feeling so desperate for medical attention that he began to refuse meals. On April 15, the day after he began refusing meals, staff took his temperature, which was elevated, and he was taken into isolation by staff who were not wearing masks or gloves.122
57. Mr. Anaya-Martinez, the cell-mate of Mr. Sojos-Valladares, similarly made several sick call requests due to his symptoms of shortness of breath, chills, severe weakness, and loss of sense of taste and smell, all, according to Dr. Venters, symptoms of COVID-19.123 After three or four requests, a nurse came to take his temperature and left when the reading was normal, without asking him about his symptoms. This nurse did not speak Spanish, which is how Mr. Anaya-Martinez communicates.124
58. During this week Mr. Sojos-Valladares and Mr. Anaya-Martinez were reporting COVID-19 symptoms, they were held on a unit that housed approximately 120 people in double cells and who all shared phones, computers and showers.125 Several 120 Ex. 39, Sojos Valladares Decl. ¶ 5. 121 Ex. 25, Venters Rep. ¶ 58 122 Ex. 39 ¶ 5; Ex. 25 ¶ 60. 123 Ex. 25 ¶ 57. 124 Ex. 25 ¶ 58. 125 Ex. 39, ¶ 8.
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days after the first sick call request was made, both men came out of their cells to use the common areas.126
59. Justin Rodriguez was housed in the MDC’s unit 53 until the middle of April.127 Mr. Rodriguez, who suffers from asthma, reported that there were both sick and elderly people on his unit, and that all of them were double-celled.128 In late March, Mr. Rodriguez began to feel sick, with chills, weakness and having lost his sense of taste and smell.129 He requested medical attention from custody staff and asked both medical and custody staff several times for sick call slips, but staff never provided them.130 Finally, someone responded by coming to take his temperature, but because it was normal said there was nothing to be done. The officers also told him that without a fever, medical attention was not available. He suffered this way in his cell for approximately two weeks.131
60. Mr. Rodriguez was released to a halfway house on April 26, 2020 and then home on April 28, 2020. Upon his release from the halfway house, he went to urgent
126 Ex. 25¶ 59 127 Ex. 76, ¶ 6. 128 Ex. 76, ¶ 3-4, 6 129 Ex. 76, ¶ 7 130 Ex. 76, ¶ 7 131 Ex. 76, ¶ 7
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care and was tested for COVID-19 antibodies. 132 He tested positive for COVID-19 antibodies.133
61. For approximately three weeks, while housed in the women’s dorm at MDC, Derrilyn Needham experienced COVID-19 symptoms, including extreme weakness, trouble breathing, chills, cough, loss of sense of taste and weight loss.134 Ms. Needham informed Associate Warden Flowers of her symptoms on Monday, April 20. Flowers responded that there would be no testing at MDC.135 Ms. Needham requested care during the time she was experiencing symptoms both verbally and in writing.136 On April 24, Ms. Needham's lawyer wrote to U.S. District Judge Pauley regarding her care at the MDC and on April 27, she received a visit from a physician's assistant ("PA").137 The PA questioned why she would want a test now, given that she had symptoms for so long and had been exposed to everyone in the dorm and told her to imagine the panic on the unit if she were to test positive.138 Ms. Needham told the PA that she was particularly concerned because she had been in close contact with a Lieutenant who had worked in
132 Ex. 76, ¶ 15-17. 133 Ex. 71. 134 Ex. 33, Needham Decl., ¶ 19. 135 Ex. 33, ¶ 20-21 136 Ex. 33, ¶ 23. 137 Ex. 33, ¶ 24-25. 138 Ex. 33, ¶ 26.
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women's dorm before testing positive.139 Ms. Needham was neither placed in quarantine nor tested for COVID-19.140
62. Steven Bynum, who is housed on unit 53 at the MDC experienced COVID-19 symptoms, including headache, shortness of breath and stomach pain.141 He also lost his sense of taste and smell for seventeen days. Throughout the time that he experienced symptoms, he requested medical care, including screening and testing for COVID-19. The only response he received was a nurse coming to his cell to check his temperature. The nurse told him that he could not get tested or see a doctor because he did not have a fever and had not fainted.142
63. Hassan Chunn, who suffers from several medical conditions, including coronary heart disease, high blood pressure, diabetes and asthma, filed an electronic sickcall request reporting symptoms, including a dry cough and tightness in his chest.143 His cellmate also had similar symptoms and filed a sick call request. Neither of them received a response to their request.144 He also brought his symptoms to the attention of the staff conducting pill call, who told him they could not see him and that he needed to submit a “cop-out.” When Mr. Chunn informed the staff that he already had submitted a 139 Ex. 33, ¶ 29. 140 Ex. 33, ¶ 33-35. 141 Ex. 28 (Bynum Decl.) ¶ 1, 8 142 Ex. 28, ¶ 8. 143 Ex. 66 (Chunn Decl.), ¶ 18, 21. 144 Ex. 66, ¶ 21.
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Case 1:20-cv-01590-RPK-RLM Document 101 Filed 05/20/20 Page 31 of 59 PageID #: 3422 request, they told him he would just need to wait for care. He was never seen by medical staff after submitting his “cop-out.”145 64.
65. 66.
145 Ex. 66, ¶ 22. 146 Ex. 9, BOP SCR 508. 147 Ex. 9, BOP SCR 509
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67.
68. 69.
148 Ex. 9, BOP SCR 15. 149 Ex. 9, BOP SCR 495. 150 Ex. 9, BOP SCR 502. 151 Ex. 9, BOP SCR 374.
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Case 1:20-cv-01590-RPK-RLM Document 101 Filed 05/20/20 Page 33 of 59 PageID #: 3424 70.
71. 72.
73.
152 Ex. 9, BOP SCR 39. 153 Ex. 9, BOP SCR 375. 154 Ex. 9, BOP SCR 379. 155 Ex. 9, BOP SCR 247.
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Case 1:20-cv-01590-RPK-RLM Document 101 Filed 05/20/20 Page 34 of 59 PageID #: 3425 74. 75. 76.
156 Ex. 9, BOP SCR 478. 157 Ex. 9, BOP SCR 776. 158 Ex. 9, BOP SCR 846
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Case 1:20-cv-01590-RPK-RLM Document 101 Filed 05/20/20 Page 35 of 59 PageID #: 3426 77. 78.
79.
80. 159 Ex. 9, BOP SCR 664. 160 Ex. 9, BOP SCR 679. 161 Ex. 9, BOP SCR 699.
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81.
82.
83.
162 Ex. 78, BOP SCR 999. 163 Ex. 78, BOP SCR 1019. 164 Ex. 78, BOP SCR 1151.
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84.
85.
86.
165 Ex. 78, BOP SCR 1152. 166 Ex. 78, BOP SCR 1002. 167 Ex. 78, BOP SCR 1066.
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87. Mr. Victor Sojos-Valladares reports that while held in the isolation unit after testing positive with COVID-19 on April 17, 2020, he exhibited symptoms such as shortness of breath, fever and others. However, he did not have another documented medical encounter until April 27, 2020.170 During this time, he reported that not one single health professional listened to his lungs or heart, despite his initial presentation of shortness of breath.171
88. Mr. Justin Rodriguez reports that he was in a shared cell in housing area 53 in March 2020 when he started to feel ill, and exhibited symptoms of shortness of breath, feeling feverish, chills, weakness and loss of his sense of smell.172 Mr. Rodriguez reports that he asked for sick call slips 5 or 6 times from correction officers as well as the nurses who passed to take his temperature each day. His requests were never met and he 168 https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-managementpatients.html 169 May 12 Tr. 287. 170 See Ex. 82 (Venters Supp. Report) ¶ 17. 171 Ex. 39 (Sojos-Valladares Decl.) ¶ 5. 172 Ex. 76 (Rodriguez Decl.) ¶¶ 6-7.
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was both unable to obtain a sick call slip to fill out, and also unable to get any medical attention despite his COVID-19 symptoms for two weeks.173
89. Mr. Rodriguez was ultimately transferred to the isolation unit because of an elevated temperature. 174 Once on the isolation unit, Mr. Rodriguez reports being locked in his cell for 24 hours per day, with the exception of a shower every three days, and without any medical encounters occurring. He reports being discharged home where he took a COVID-19 antibody test which was positive, confirming the fact that he had been infected with COVID-19 while at the MDC.175
90. According to Dr. Venters, “[w]ithout conducting daily structured encounters with COVID-19 patients, the BOP remains unable to detect when this clinical deterioration would occur, and increases the risk of serious illness and death among these patients.” 176 Indeed, “[t]he expert reports proffered by the MDC do not allay [Dr. Venters’] fears that practices inside the MDC are causing many people with symptoms of COVID-19 to be denied assessment and care, and that … those who do become identified as having COVID-19 are not being adequately protected.”177
B. The MDC has failed to implement adequate protections for people known to be at high risk for serious illness and death from COVID-19
173 Rodriguez Declaration at para. 7. 174 Rodriguez Declaration at para. 13. 175 Rodriguez Declaration at para. 17. 176 Ex. 82 (Venters Supp. Report) ¶ 18 (emphasis added). 177 Ex. 82 (Venters Supp. Report) ¶ 20.
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91. Per CDC guidance, individuals who are at greater risk of complications from COVID-19 if the disease is contracted are deemed “high risk.”178 These guidelines can be found at: https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/groups-at-higher-risk.html.179 Those who are “high risk” include those over 65 and those with significant underlying medical conditions, such as chronic lung disease, moderate to severe asthma, liver disease, and diabetes. 180 Certain health conditions associated with Multiple Sclerosis, including Asthma, can increase the risk for COVID19 complications.181
92. At the beginning of the COVID-19 pandemic, the MDC’s Health Services Department reviewed inmate medical records in order to determine which individuals at MDC Brooklyn were considered “high risk” for complications due to COVID-19 pursuant to CDC guidelines.”182
93. The MDC compiled a written list of individuals confined in the MDC deemed to be “high risk” if they contracted COVID-19.183 The list originally contained 537 people; as of April 27, 2020, the list contained approximately 380 individuals.184
178 Ex. 10 (Jordan Decl.) ¶ 33; May 12 Tr. 93:13-21. 179 Ex. 10 (Jordan Decl.) ¶ 33. 180 Ex. 10 (Jordan Decl.) ¶ 33. 181 May 12 Tr. 278-279. 182 Ex. 10 (Jordan Decl.) ¶¶ 33, 34. 183 Ex. 26, Vasquez Tr. at 204:18-205:3. 184 Ex. 26, Vasquez Tr. at 205:4-8.
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94. The MDC does not use the list of high-risk inmates that it prepared in any way.185
95. Other than compiling the list of high-risk individuals in its custody, the MDC has taken no specific affirmative steps to protect these high risk individuals from COVID-19 infection.186 High risk individuals do not receive additional screening, they are not as a group isolated in any way, and they are not placed in single cells based on being high risk.187
96. High-risk individuals confined in the MDC require additional protections from COVID-19 infection than individuals who are not deemed high-risk pursuant to the CDC guidelines.188 For example, Respondent’s expert, Ms. Tekbali, agreed that high risk patients should ideally be housed alone in single cells, consistent with CDC Guidance,189 and should be checked twice a day.190
185 Ex. 26, Vasquez Tr. at 206:3-8 (“Q: How often is that list updated? A: As needed. It is not a medical tool that we use. It is kept basically for you all and the court. We have access to the medical record. Q: How does the MDC use that list? A: MDC does not use that list.”) 186 Ex. 26, Vasquez Tr. 207:15-209:18. 187 Ex. 26, Vasquez Tr. 207:25-208:12. 188 May 12 Tr. 94:11-17 (“High-risk patients need special protection.”). 189 May 12 Tr. 260:4-10. 190 May 12 Tr. 282:17.
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97. In the sworn Declarations submitted to the Court in support of Petitioners’ motion, 15 high-risk individuals in the MDC with underlying medical conditions reported a lack of monitoring or care by medical staff.191
98. As Dr. Venters notes, neither of the MDC’s experts responded to his criticisms that “The BOP has failed to implement adequate protections for people known to be at high risk for serious illness and death from COVID-19.”192
99. Dr. Venters states that “Cohorting patients based on risk factors is an essential and common practice in correctional settings, including in outbreak response. I have managed numerous outbreaks in correctional settings and view this as a critical tool in protecting the most vulnerable patients. Even the BOP’s own pandemic influenza plan anticipates that patients may be cohorted based on chronic health problems such as diabetes.”193
100. According to Dr. Venters, the approach of cohorting patients “is not only important to create increased levels of protection, but to provide higher levels of screening and surveillance. Cohorting high-risk patients does not mean that they are to be transferred from single cell settings to open dorms. In fact, the use of single cell housing areas for high risk patients is beneficial, but the MDC’s practice of having high-risk 191 Exs. 29, 35, 38, 42, 45, 46, 47, 51, 56, 57, 63, 64, 65, 66, 81, 83. 192 See Ex. 82 (Venters Supp. Report) ¶. 2(b); see also Ex. 82 (Venters Supp. Report) ¶ 12 “Neither expert report provided convincing rebuttal of my concern that the BOP has failed to implement adequate protections for people known to be at high risk for serious illness and death from COVID-19.” 193 Ex. 82 (Venters Supp. Report) ¶ 14.
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patients spread throughout the facility, and often in double bunk cells, means that there is no special or heightened surveillance of their health status.”194
101. Dr. Venters’ recommendation is that high-risk individuals be housed “in a single cell which is really standard practice now around the country in this COVID response. And the place where they are, the single cell, should have extra protections so that they can be surveilled more clearly and more tightly for symptoms and that there can be higher levels of training and infection control.”195
102. Respondent’s correctional expert Dr. Beard does not consider himself to be “expert in medical care delivery in prisons.”196
103. Respondent’s correctional expert, Dr. Beard, misunderstands Dr. Venters’ cohorting recommendation.197 Beard admits he did not base his opinion on cohorting on review of any documents, any information about housing at MDC, or any document that supports his view.198 Dr. Beard admitted that he would have to have far more information
194 Ex. 82 (Venters Supp. Report) ¶ 14. 195 May 12 Tr. 119:24-25, 120:1-8. 196 May 13 Tr. 351:15-17. 197 May 13 Tr. 346:10-13 (“Q. … did you read Dr. Venters’s reports as recommending that hundreds of inmates regardless of inmates’ security classifications be housed together? A. Yes. I saw that and I saw that in his testimony.”). 198 May 13 Tr. 373-373.
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about a facility than he has about the MDC to be able to draw conclusions about cohorting.199
104. MDC has not isolated its “at risk” population because “the number of inmates who fall into this category is too large to contain and isolate on one or even two units.200
105. Dr. Venters recommends that the MDC implement expanded testing in the MDC, and during the time it takes to scale up testing, “it is essential to implement a phased testing of detained people, starting with high risk patients and those who present with COVID-19 systems.”201
106. The MDC does not consider individuals who are at high risk for illness or death if they contract COVID-19 to quality for the compassionate release process.202
107. Petitioner Elodia Lopez is “high risk” within the meaning of the CDC’s COVID-19 guidelines, since she has a medical history that includes a previous lung infection, Type II diabetes, high blood pressure, and high cholesterol.203
108. Petitioner James Hair is “high risk” within the meaning of the CDC’s COVID-19 guidelines, since he has a medical history that includes asthma, as well as multiple sclerosis.204 199 May 13 Tr. 377-378. 200 Ex. 26 (Vasquez Depo) Tr. at 209; Ex. 13. 201 See Ex. 25 (Dr. Venters Facility Evaluation) ¶. 27 202 Ex. WWW. 203 See Ex. 25 (Dr. Venters Facility Evaluation) ¶ 52.
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Impossibility of Social Distancing 109. Ms. Tekbali testified that she agrees with the CDC guidance that social distancing is a cornerstone of reducing transmission of respiratory diseases such as COVID-19, and that six feet is the optimum distance for social distancing. 205 The CDC Correctional Guidance recommends “[i]mplement[ing] social distancing strategies to increase the physical space between incarcerated/detained persons (ideally 6 feet between all individuals, regardless of the presence of symptoms).”206 110. This is impossible in the majority of the MDC, where people are double bunked and the beds are three to four feet apart.207 111. Eight detained people reported problems with social distancing within double cells and/or in common spaces.208 112. The MDC acknowledges that common spaces are not set up for social distancing. For example, when inmates use the computers, “[t]he computers are pretty close. The computers are like side by side.”209
204 May 13 Tr. 279:12-16. 205 May 12 Tr. 264:13-16; May 12 Tr. 264:19-23. 206 Ex. 6 at 11. 207 Ex. 40 (King Depo) Tr. 95:2-4, 96:17-23. 208 Exs. 27, 28, 29, 31, 32, 33, 35, 36, 37, 38, 39, 41, 42, 43, 44, 45, 46, 47, 50, 51, 53, 54, 55, 57, 64, 65, 66, 81. 209 Ex. 40 (King Depo) Tr. 9:10-11.
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113. Social distancing is especially problematic in the dormitory style housing in which women live at MDC. The beds in the women’s dormitory are less than 6 feet apart and it is not always possible to stagger the women “high, low, high, low” in order to create more distance.210
114. The MDC acknowledges that this dormitory-style housing “presents unique challenges.” Some women have “failed to comply with the directive they wear their masks,” and not practiced social distancing. 211 Bunk assignments do not always allow for six feet of distance while sleeping.212
115. Women living in dorm-style housing have reported symptoms, but not been isolated.213
116. Medical and custody staff move between quarantine, isolation, and general population sections. 214 No one monitors staff for compliance with infections disease protocols when transferring between units.215
117. 25 inmates have reported that people moved in and out of their units during the COVID-19 crisis.216 Anthony Sanon also reports that “MDC continues to
210 Ex. 40 (King Depo) Tr. 97:16-19; Ex. 33 (Needham Decl.) ¶ 3. . 211 Ex. III (Flowers Decl.) ¶¶ 15-18. 212 See Ex. III (Flowers Decl.) ¶ 23. 213 Ex. 33 (Needham Decl.) ¶¶ 19-35; Ex. 64 (Lopez Decl.) ¶ 8. 214 Ex. 26 (Vasquez Depo) Tr.95-96. 215 Ex. 26 (Vasquez Depo) Tr. 95-96.
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move inmates between units inside the facility on a weekly basis. People go into and out of SHU based on their disciplinary status. Other people are moved into and out of the intake unit and the isolation unit.”217
Inadequate PPE and Hygiene Supplies A. The MDC Agrees with the Importance of Proper PPE 118. Ms. Tekbali agrees that it is best practice for staff at the MDC to orient other staff and detained people on the proper use of masks.218 This is in line with the CDC Correctional Guidelines, which recommend “that all staff (healthcare and nonhealthcare) and incarcerated/detained persons who will have contact with infectious materials in their work placements have been trained to correctly don, doff, and dispose of PPE relevant to the level of contact they will have with confirmed and suspected COVID-19 cases.”219 119. Ms. Tekbali also agrees that detained people should be provided with adequate access to masks where possible and that the facility should provide replacement masks when masks become soiled or damaged.220 She testified that detained people
216 Exs. 28, 32, 35, 36, 37, 38, 39, 41, 42, 43, 44, 45, 47, 48, 49, 51, 52, 53, 54, 56, 63, 64, 65, 66, 81, 83. 217 Ex. 79 (Sanon Decl.) ¶ 19. 218 May 12 Tr. 266:8-9. 219 Ex. 6 at 23. 220 May 12 Tr. 266:13-16.
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should be given masks more frequently than once a week if they use a mask for more than three hours a week.221
120. Ms. Tekbali also agreed that gloves should be worn in compliance with CDC Corrections guidance. 222 The CDC Corrections guidance recommends that incarcerated people use gloves when working in a work placement handling laundry or used food service items from a COVID-19 case or case contact and working in a work placement cleaning areas where a COVID-19 case has spent time.223
121. Ms. Tekbali also agreed with the CDC Corrections guidance recommendation that staff wear gloves when performing temperature checks, having direct contact with confirmed or suspected COVID-19 cases (including asymptomatic people under quarantine), handling laundry or used food service items from a COVID-19 case or case contact, and when cleaning areas where COVID-19 case has spent time.224
122. MDC agrees that PPE should be worn by staff when interacting with suspected cases of COVID-19.225
B. MDC Does Not Provide Proper PPE to Inmates
221 May 12 Tr. 266:15. 222 May 12 Tr. 272-274. 223 Ex. 6 at 25. 224 May 12 Tr. 273; Ex. 6 at 25. 225 May 12 Tr. 275:1-5.
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123. However, 22 inmates reported no access to masks until this lawsuit was filed. 226 Petitioners’ expert, Dr. Venters noted that “Detainees do not have access to adequate cleaning solutions or personal protective equipment.”227
124. As of April 27, people housed at MDC were given one mask per week.228 People housed at MDC are not given gloves, unless they work as an orderly.229
125. The MDC has 3,000 N95s sitting unused in storage but not a single person housed at MDC has been fit tested for one or given one to wear.230 According to Ms. Tekbali, N-95s protect a wearer from aerosols and the coronavirus can be aerosolized by flushing toilets.231 The toilets in cells in the MDC are uncovered, thereby creating a need for N-95s.232
126. Mask wearing at the MDC is imperfect. For example, on his tour of the facility, respondent’s expert Dr. Beard observed an inmate being brought into SHU whose mask had fallen down, leaving his nose uncovered.
226 Exs. 27, 28, 31, 32, 33, 35, 36, 37, 38, 42, 44, 45, 47, 49, 52, 53, 55, 57, 63, 64, 66, 81. 227 Ex. 25 ¶ 4. 228 Ex. 40 (King Depo) Tr. 64:6-7. 229 Ex. 40 (King Depo) Tr. 64:6-21. 230 Ex. 40 (King Depo) Tr. 66, 78, 81. 231 May 12 Tr. 269:18-25;Ex. 10 (Jordan Decl.) ¶ 56: “On April 5, 2020, all inmates and staff were provided protective face masks for daily use. They were provided new masks on April 12, 2020.” 232 May 12 Tr. 270:6-8.
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C. MDC Does Not Provide Proper PPE to Staff, or Penalize Staff for Not Using It Properly
127. MDC maintains that it has sufficient PPE and that the facility has a lot of PPE in storage.233
128. Staff at the MDC are required to wear masks.234 Staff at the MDC are generally not required to wear gloves.235
129. It is a requirement that staff wear face shields or goggles and gowns when dealing with an inmate who has tested positive for COVID-19.236 A sign on a door in the quarantine unit instructed staff “if you’re seeing this inmate, essentially, this is the PPE equipment that you need to have which was mask, face guard, gown, gloves.”237
130. The MDC’s policies regarding wearing an N95 when working on the isolation or quarantine unit are ill-defined. In her deposition, Assistant Warden King said both that if staff have direct contact with positive or symptomatic patients, i.e. working on the isolation or quarantine units, they are required to wear N-95s, and also that staff are not required to wear N-95s but are provided N-95s.238 Respondent’s expert, Dr.
233 May 13 Tr. 328:1-5. 234 Ex. 40 (King Depo) Tr. 69:10-12. 235 Ex. 40 (King Depo) Tr. 81. 236 Ex. 40 (King Depo) Tr. 85. 237 May 13 Tr. 332:3-6. 238 Ex. 40 (King Depo) Tr. 69-73.
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Beard, reported that medical staff are required to wear an N-95 when coming in direct contact with a person housed on the isolation unit.239
131. Dr. Beard admitted that custody staff, who he reported are not required to wear N-95s, would come into direct contact with people housed on the isolation unit when bringing them out to shower and to the medical exam room, which is located outside the unit.240 Dr. Beard wore an N-95 during the inspection.241
132. According to Dr. Venters, staff in the isolation unit “should have full PPE and that includes a face shield that includes an N-95 mask. For the health staff it includes, you know, the ability to both put on that PPE on and take it off in a way that doesn’t promote contamination.”242
133. Assistant Warden King testified that staff “should” be wearing appropriate PPE at all time and that is her “expectation” but did not testify to the reality of whether staff were consistently wearing PPE when interacting with people housed at the MDC.243
134. Twenty-two detained people housed at the MDC reported that they observed staff working without wearing PPE.244
239 May 13 Tr. 396:14-17. 240 May 13 Tr. 396:18-25. 241 May 13 Tr. 363:15-16. 242 May 12 Tr. 104:7-11. 243 Ex. 40 (King Depo) Tr. 73:15-19. 244 Exs. 27, 28, 31, 32, 33, 37, 38, 41, 42, 43, 44, 45, 46, 51, 53, 55, 56, 63, 64, 65, 66, 81.
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135. According to Anthony Sanon, who has worked at the MDC for 20 years, as of April 22, 2020, staff at the MDC did not have access to N-95s on the isolation unit.245 Mr. Sanon reported that it was only after the Petitioners’ expert inspection of the facility on April 23, 2020, that the isolation unit received N-95 masks.246
136. Mr. Sanon also reported that staff “do not have access to gowns for protection and there are no face shields in the isolation unit.”247
137. Respondent’s expert Dr. Beard did observe PPE out and available in the quarantine unit.248 Staff and workers on the unit were wearing masks only.249
D. MDC Agrees with the Importance of Adequate Hygiene and Sanitation Supplies, But Does Not Provide them to Inmates
138. Respondent agrees that, given the importance of hand washing, it is the best practice to provide people at no cost adequate personal hygiene supplies for hand washing, and effective disinfectant products for daily cleaning. 250 Indeed, the CDC Correctional Guidance recommends that facilities “Provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing. . . . Provide
245 Ex. 79 (Sanon Decl.) ¶¶ 2, 28. 246 Id. 247 Ex. 79 (Sanon Decl.) ¶ 30. 248 May 13 Tr. 332:8-9. 249 May 13 Tr. 332:13-14. 250 May 12 Tr. 276:22.
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liquid soap where possible. If bar soap must be used, ensure that it does not irritate the skin and thereby discourage frequent hand washing.”251
139. CDC Correctional Guidance instructs: “Several times per day, clean and disinfect surfaces and objects that are frequently touched, especially in common areas. Such surfaces may include objects/surfaces not ordinarily cleaned daily (e.g., doorknobs, light switches, sink handles, countertops, toilets, toilet handles, recreation equipment, kiosks, and telephones).”252 CDC Correctional Guidance also states that “[s]taff should clean shared equipment several times per day and on a conclusion of use basis (e.g., radios, service weapons, keys, handcuffs).” 253 Respondent also agrees that common surfaces should be disinfected throughout the facility.254
140. Petitioners’ expert, Dr. Venters explained: “I would have expected—at minimum—that the MDC had sufficient levels of PPE, cleaning solution and equipment, an adequate quantity of tests available and that common, high-touch surfaces such as phones and computers would be cleaned between uses, and that no-touch waste receptacles would be present in the facility common areas and housing areas.”255
251 Ex. 6 at 8. 252 Ex. 6 at 9. 253 Id. 254 May 12 Tr. 275 255 Ex. 25 (Dr. Venters Facility Evaluation) ¶ 41.
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141. Despite this, twenty-eight people housed at the MDC reported insufficient access to sanitation products for their cells.256 Thirty people housed at the MDC reported insufficient access to soap and/or hand sanitizer.257
142. Staff also reported inadequate cleaning supplies, and access to soap and hand sanitizer as of March 22, 2020.258
143. Assistant Warden King testified only to the theoretical availability of personal hygiene and cleaning supplies.259
144. Assistant Warden King testified that people housed at the MDC are not given soap automatically (only on request) and that the type of soap and schedule on which it is provided has not changed since the pandemic began.260
145. And yet, Respondent’s expert, Dr. Beard testified that people housed at the MDC should be getting soap more frequently than they ordinarily do.261
256 Exs. 27, 28, 29, 32, 33, 35, 36, 37, 38, 39, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 57, 63, 65. 257 Exs. 27, 28, 29, 31, 32, 33, 35, 36, 37, 38, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 54, 55, 56, 57, 63, 64, 65, 81. 258 Ex. 79 (Sanon Decl.) ¶ 25: “We have very recently received sanitizer for cleaning equipment at the control station”; id. ¶ 26: “As of March 22, 2020, Correction Officers at MDC did not have adequate access to soap. Then we got hand sanitizer dispensers, but they were empty. I have only seen them get filled when we were having an outside inspection. Until last week, we did not have access to sanitizing wipes to clean our shared equipment, such as radios.” 259 Ex. 85 (King Depo) Tr. 24:13-18. 260 See Ex. 85 (King Depo) Tr. 26:6-9, 27:14-19, and 34:2-10.
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146. Respondent agrees that it is important that sufficient disinfecting supplies are provided to people housed at the MDC so that they can clean high-touch areas or items (including, but not limited to, phones and computers) between each use.262
147. Despite this agreement, twenty people housed at the MDC reported that there was no regular cleaning of common spaces or shared items between use.263
148. Assistant Warden King testified to her “expectation” that cells and common areas are cleaned often by orderlies and that phones and computers are cleaned before and after use by those using them, but could not testify to whether this was actual practice at the MDC.264
149. Ms. English recommended sanitation of legal phones and touchscreens, because she could not tell if they were being sanitized.265
150. While staff on the quarantine unit told Dr. Beard that phones and computers were cleaned by orderlies between each use, Dr. Beard did not ask when this practice began or ask the inmate workers themselves if this was true.266 261 “Q And given that these are smaller than the regular sized bars of soap and given that we’re in a pandemic when people would need to wash their hands more frequently, is it your opinion that inmates would need to receive soap more frequently than they would during other times? A I would think so.” May 13 Tr. 382:17-22. 262 May 12 Tr. 276:12-17; Rohlfe (Ex. XXXX) ¶ 18: “In May 2020, the safety department has provided disinfectant wipes to be placed outside both the East and West Control Centers.” 263 Exs. 28, 31, 32, 33, 35, 36, 37, 38, 42, 43, 45, 46, 47, 49, 51, 54, 55, 64, 65, 81, 83. 264 See Ex. 85 (King Depo Excerpts) Tr. 56: 2-7, 56:20-23. 265 May 12 Tr. 221:14-20.
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151. Assistant Warden King admitted that MDC employed “every day” cleaning in the unit after they discovered their first positive.267
Respondent’s Witnesses Have Limited Knowledge and Limited Expertise
152. (i) None of Respondent’s testifying experts and witness have any medical training; and (ii) all of Respondent’s testifying experts concede that their observations were severely limited.
153. First, Dr. Beard is not an expert in the delivery medical care in a correctional setting. In fact, Dr. Beard admitted that he has no medical or epidemiology training 268 and does not consider himself an “expert in medical care delivery in prisons.”269 Nevertheless, Dr. Beard has attempted to opine on medical issues in this case.270
154. A court previously rejected Dr. Beard’s sworn declaration finding that its claims of a safer prison system and reduced spread of disease had no factual basis in the
266 May 13 Tr. 384:7-16. 267 Ex. 40 (King Depo) Tr. 40. 268 May 13 Tr. 351:8-11. 269 May 13 Tr. 351:15-17. 270 See Ex. RR (Beard Report) at 10 (“Second, from the medical perspective, the inmates have been essentially isolated together on individual housing units for many weeks.”[Emphasis added]).
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record.271 The fact that neither Dr. Beard nor Ms. Tekbali is a physician is concerning given the fact that this case revolves around the standard of medical care being given to inmates in a correctional facility during a global pandemic.
155. Dr. Beard’s observational evidence also lacks credibility. He has admitted that his tour of the MDC only lasted about two hours.272 Dr. Beard did not speak to any detained people housed at the MDC. In his own words: “I was told not to seek inmates out specifically because I might accidentally get one shouldn’t complainant in the case and their counsel is not there and so they asked me to be careful about not engaging directly inmates specifically.”273
156. Ms. Tekbali’s opinions about the MDC’s response to COVID-19 are subject to a number of limitations. Ms. Tekbali is not an expert on correctional facilities,274 and has had no prior experience with correctional facilities.275 In fact, other than accompanying a colleague for fingerprinting, she has never been inside a correctional facility.276
271 May 13 Tr. 418:5-25. 272 May 13 Tr. 354:9-13. 273 May 13 Tr. 329:12-16. 274 May 12 Tr. 251. 275 May 12 Tr. 251:21-23. 276 May 12 Tr. 251.
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157. Ms. Tekbali has no first-hand knowledge of the conditions at the MDC.277 Ms. Tekbali admitted that her opinions about hospitalization rates were not based on data from the MDC. 278 Ms. Tekbali expressed having no opinion about factual disputes regarding conditions at the MDC, except for discrepancies between MDC policies and CDC guidelines. 279 Ms. Tekbali stated that she has no opinion about Dr. Venters’ Facility Evaluation, nor about his supplemental report.280
158. Ms. English’s testimony confirmed that her observations at MDC were perfunctory. Ms. English admitted that her observations were based only on what she saw the day she visited MDC and testified that she could not confirm or deny what other testifying experts saw.281 Ms. English admitted that she did not look at sick call records firsthand, and does not know how her team reviewed them.282 She also did not look at past practice at MDC.283 Perhaps most tellingly, however, Ms. English claims that she spoke to 50 inmates, but spent only “seconds” with each one.284 Such observations are insufficient to determine whether the MDC was instituting a proper medical standard of 277 May 12 Tr. 253. 278 May 12 Tr. 291. 279 May 12 Tr. 256. 280 May 12 Tr. 254:19-21. 281 May 12 Tr. 210:8-10. 282 May 12 Tr. 214:5-15. 283 May 12 Tr. 208:21-25. 284 May 12 Tr. 203:9-15.
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care in response to the COVID-19 pandemic. But even if Ms. English did satisfactorily observe and interrogate the practices at MDC, she admitted that she has no medical training,285 and therefore, she cannot credibly opine on MDC’s response to COVID-19.

Dated: May 19, 2020 New York, New York
285 May 12 Tr. 215:6-8.

EMERY CELLI BRINCKERHOFF & ABADY LLP
By: /s/ Katherine Rosenfeld Katherine Rosenfeld O. Andrew F. Wilson Samuel Shapiro Scout Katovich 600 Fifth Avenue, 10th Floor New York, NY 10020 (212) 763-5000
CARDOZO CIVIL RIGHTS CLINIC Betsy Ginsberg Cardozo Civil Rights Clinic Benjamin N. Cardozo School of Law 55 Fifth Avenue, 11th Floor New York, NY 10003 (212) 790-0871
Alexander A. Reinert 55 Fifth Avenue, Room 1005 New York, NY 10003 (212) 790-0403
DEBEVOISE & PLIMPTON LLP Yeugenia (Jane) Shvets Noelle E. Lyle 919 Third Avenue New York, NY 10022 (212) 909-6000
Attorneys for Petitioners and Putative Class

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 Case 1:20-cv-01590-RPK-RLM Document 112 Filed 06/09/20 Page 1 of 62 PageID #: 3615

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------X

HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI by his Next Friend Migdaliz Quinones; JUSTIN RODRIGUEZ, by his Next Friend Jacklyn Romanoff; ELODIA LOPEZ; and JAMES HAIR,

MEMORANDUM AND ORDER 20-cv-1590 (RPK) (RLM)

individually and on behalf of all others similarly situated,
Petitioners,

-against-

WARDEN DEREK EDGE,

Respondent.

-------------------------------------------------------------X

RACHEL P. KOVNER, United States District Judge:

Six federal prisoners who were detained at the Metropolitan Detention Center (“MDC”) in

Brooklyn when this suit was filed brought this lawsuit to challenge the facility’s response to the

COVID-19 pandemic on constitutional grounds. They contend that MDC officials’ response to

the pandemic has been so deficient as to violate the Eighth Amendment. They seek a preliminary

injunction that would release all MDC inmates whose age or medical condition places them at

heightened risk from the virus and would manage almost every aspect of the facility’s COVID-19

response.

To obtain such an injunction, petitioners must establish a clear or substantial likelihood

that the conditions at the MDC during the COVID-19 pandemic constitute cruel and unusual

punishment. The bar is high: Petitioners must show that officials’ response to the pandemic

reflects “the deliberate infliction of punishment.” Francis v. Fiacco, 942 F.3d 126, 150 (2d. Cir.

2019) (quoting Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999)). The standard is satisfied 1

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when officials exhibit “‘deliberate indifference’ to a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 828 (1994) (citation omitted). But it is not satisfied by negligent “lack of due care for prisoner interests or safety.” Fiacco, 942 F.3d at 150 (quoting Blyden, 186 F.3d at 262).
Based on the record from a two-day evidentiary hearing, I conclude that petitioners have not shown a clear likelihood that MDC officials have acted with deliberate indifference to substantial risks in responding to COVID-19. Rather than being indifferent to the virus, MDC officials have recognized COVID-19 as a serious threat and responded aggressively. They have, for example, implemented heightened sanitation protocols, distributed masks to inmates and staff, required use of masks when social distancing is not possible, initiated COVID-19 screenings upon entry to the MDC, created quarantine and isolation units, and substantially restricted movement within the facility. With those measures in place, just one MDC inmate has been hospitalized in connection with COVID-19, and none have died from the disease, even though the surrounding community has been at the epicenter of the pandemic.
Evidence submitted at the hearing does expose several deficiencies in the MDC’s implementation of Centers for Disease Control and Prevention (“CDC”) guidelines that both parties have treated as authoritative. Those shortcomings merit a swift response from MDC officials—the institutional actors charged in the first instance with ensuring that their facilities are managed in accordance with appropriate standards of care. See, e.g., Turner v. Safley, 482 U.S. 78, 84-85 (1987); Bell v. Wolfish, 441 U.S. 520, 547-48 (1979). But the facility’s aggressive response to a public health emergency with no preexisting playbook belies the suggestion that these apparent deficiencies are the product of deliberate indifference on the part of prison officials.
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PROCEDURAL HISTORY I. Petitioners’ Lawsuit
A. The Petitions Four inmates serving sentences at the MDC filed the initial petition in this case asserting violations of the Eighth Amendment on March 27, 2020. After two of the named petitioners were granted compassionate release from custody by their sentencing judges under 18 U.S.C. § 3582(c)(1)(A), see Order Directing the Compassionate Release of Def. Hassan Chunn, United States v. Chunn, No. 16-cr-388 (E.D.N.Y. Apr. 8, 2020) (Dkt. #32); Order as to Nehemiah Casey McBride, United States v. McBride, No. 15-cr-876 (S.D.N.Y. Apr. 7, 2020) (Dkt. #73), petitioners filed an amended petition on April 23, 2020, raising the same Eighth Amendment claim but adding as named petitioners two additional inmates serving federal sentences at the MDC, including Elodia Lopez, see Am. Pet. (Dkt. #60). Since the amended petition was filed, the remaining petitioners other than Ms. Lopez have also been released or transferred from the MDC. See Ex. 76 (Declaration of Justin Rodriguez) (“Rodriguez Decl.”) ¶ 2 (Dkt. #91-3); Status Report re: Release of Petitioner Ayman Rabadi (May 21, 2020) (Dkt. #104); Status Report re: Transfer of Petitioner James Hair (May 26, 2020) (Dkt. #106). Ms. Lopez remains housed at the MDC. In the petition, which is styled as a representative habeas action or class action petition under 28 U.S.C. § 2241, Ms. Lopez and the other petitioners have sought to represent all individuals detained at the facility during the pandemic. Am. Pet. ¶ 110. They contend that MDC officials have been deliberately indifferent to the risks of COVID-19. Id. ¶¶ 98-103, 122-132. Petitioners argue that, as a consequence, MDC officials have violated the Eighth Amendment rights of sentenced inmates, such as the named petitioners. Ibid. Petitioners further argue that conduct which qualifies as deliberate indifference under the Eighth Amendment also violates the Fifth Amendment rights of pretrial detainees at the MDC, because conduct that violates the Eighth
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Amendment rights of sentenced inmates also violates the Fifth Amendment rights of pretrial detainees. See Mem. Supp. of Pet’rs’ Mot. for Prelim. Inj. (“Pet’rs Br.”) 22 n.6 (Dkt. #73). They have not raised arguments under the Fifth Amendment that are distinct from their deliberateindifference claims under the Eighth Amendment.
To remedy the asserted violations, petitioners seek extensive judicial oversight of the MDC’s response to COVID-19, and they ask that I order respondent to release from custody all medically vulnerable inmates housed at the MDC, see id. at 26-27; Mot. for Prelim. Inj. 2-4 (Dkt. #71), who represent about a quarter of the facility’s population, see Ex. 26 (“Vasquez Tr.”) 205:410.
B. Application for a Temporary Restraining Order On March 30, 2020—three days after the initial habeas petition was filed—the four original petitioners sought a temporary restraining order (“TRO”) directing their immediate release. See Mot. for TRO 1-2 (Dkt. #12). They also requested the immediate appointment of a special master who would make recommendations for the release of other medically vulnerable MDC inmates and make further “recommendations for ameliorative action.” Id. at 2-3. On April 8, 2020, I denied the request for a TRO. I then set a schedule for expedited discovery and for a hearing on petitioners’ anticipated request for a preliminary injunction. See Order (Apr. 8, 2020). II. Petitioners’ Preliminary Injunction Motion Petitioners filed their motion for a preliminary injunction on April 30, 2020. Petitioners seek a preliminary injunction based on Eighth Amendment violations that directs the “immediate release” of the nearly 400 inmates at the MDC whom respondent “has identified as medically
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vulnerable due to underlying health conditions or age.”1 Mot. for Prelim. Inj. 2; see Am. Pet. ¶ 3.
Petitioners also ask the Court to enter a detailed injunction controlling almost every aspect of the
MDC’s response to COVID-19. Mot. for Prelim. Inj. 2-4. The proposed injunction would require:
 Screening all detainees currently housed at the MDC for signs and symptoms of COVID19;
 Screening all new detainees who arrive at the MDC, including those who return from the hospital or are transferred from other correctional facilities;
 Adopting a “standardized COVID-19 surveillance tool,” including temperature checks, to be administered twice daily to (i) all incarcerated persons with elevated COVID-19 risks, (ii) all inmates in quarantine, and (iii) all inmates in isolation;
 Standardizing clinical evaluations of all inmates who are suspected or confirmed to have COVID-19 and administering those evaluations at least daily in a clinical setting;
 Implementing same-day review of every sick-call request to trigger same-day or nextmorning assessment for COVID-19, along with tracking of such requests through a “facility wide symptom tracking dashboard” for use by healthcare staff;
 Identifying, grouping, and testing all inmates who are at elevated risk for COVID-19;
 Ordering the quarantine of all medically vulnerable detainees into units with routine checks for COVID-19 signs and symptoms, including temperature checks;
 Ordering all quarantine units to follow CDC guidelines, in areas such as use of appropriate personal protective equipment (“PPE”), cleaning of common surfaces, and surveillance;
 Testing inmates who exhibit more than one sign or symptom of COVID-19;
 Testing staff who are at risk of serious illness or death from COVID-19 or who exhibit more than one sign or symptom of COVID-19;
 Ordering all staff to wear PPE (including masks) when interacting with any person or when touching surfaces in cells or common areas;
 Ordering that disinfectants be supplied to inmates free of charge;
 Repairing broken emergency call-buttons in cells and requiring frequent medical rounds in units with broken call-buttons until such repairs are completed;
1 When this case was filed, respondent had identified 537 inmates as medically vulnerable. See Pet. ¶ 3 (Dkt. #1). By April 27, 2020, the list had shrunk to approximately 380 inmates because some inmates had been released and because the CDC had revised its list of COVID-19 risk factors. See Ex. 26 (Vasquez Tr.) 205:4-20.
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 Training all staff and orderlies on reporting inmate health issues to medical staff;  Instituting rotations of Spanish-speaking health staff;  Providing free personal hygiene supplies to all inmates, along with daily access to showers
and clean laundry;  Mandating social distancing amongst inmates to the maximum extent possible at the
MDC’s current population level;  Training staff and inmates on the proper use of masks, gloves, and other PPE, and providing
masks and gloves to inmates at no cost to them, to be replaced by the facility as appropriate; and  Providing weekly COVID-19 information sessions for inmates and correctional staff. Ibid. Petitioners further request that the preliminary injunction appoint a Special Master or other Court-appointed expert to “oversee implementation of the Court’s ameliorative injunctive relief,” make recommendations regarding the release of medically vulnerable inmates, and make “additional recommendations for ameliorative action at the MDC.” Id. at 4. In order to enable the Court to enter the broad injunctive decree that petitioners seek, petitioners also seek an order “[c]onditionally certifying the class” of all inmates at the MDC. Id. at 2. Alternatively, they seek an order “awarding class-wide relief under the Court’s general equity powers.” Ibid. III. Preliminary Injunction Hearing I held an evidentiary hearing on petitioners’ motion for a preliminary injunction on May 12 and 13, 2020. Petitioners offered testimony from one witness: Dr. Homer Venters, a physician and epidemiologist who specializes in the provision of health services for incarcerated people, and who conducted an inspection of the MDC on behalf of petitioners on April 23, 2020. See Ex. 25 (Facility Evaluation: Metropolitan Detention Center COVID-19 Response) (“Venters Report”) ¶¶ 7, 13 (Dkt. #72-1).2 Dr. Venters produced a written report that catalogues his observations,
2 Citations to exhibits use those documents’ internal pagination, rather than Bates stamps or other pagination assigned by the parties. Bates stamps are used for documents that lack internal pagination.
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memorializes his conversations with 17 detainees, and offers recommendations. Dr. Venters also produced a supplemental report that addresses the expert reports submitted on behalf of respondents. See Ex. 82 (Suppl. Report of Dr. Homer Venters) (“Suppl. Venters Report”) (Dkt. #91-6). Dr. Venters was sharply critical of the MDC’s response to the pandemic. He described what he saw as “[m]ultiple systemic failures in the COVID-19 response in the MDC,” including failure to properly screen inmates for signs and symptoms of COVID-19, to respond promptly to inmate requests for medical attention, and to implement adequate infection control practices. Venters Report ¶¶ 2-4, 23. Dr. Venters also concluded that “current practices in the MDC do not adequately identify and protect detainees who are particularly vulnerable to the effects of COVID19 due to their high-risk underlying medical conditions.” Id. ¶ 5.
Respondent offered testimony from three witnesses. Nicole C. English, Assistant Director of the Health Services Division at the Bureau of Prisons (“BOP”), testified concerning a surprise inspection she conducted of the MDC on May 2, 2020, after BOP officials learned of the conclusions in Dr. Venters’ report. See Ex. OOO (Assessment of Metropolitan Detention Center, Brooklyn, New York, COVID-19 Response) (“English Report”) 1. Ms. English and three other BOP officials arrived at the MDC unannounced on that date and, after meeting briefly with respondent, split up to evaluate the facility’s response to COVID-19. Ibid. Following her inspection, Ms. English issued her own report describing the observations of the inspection team. The report addressed entry-point screenings, sick-call procedures, use of quarantine and isolation units, infection control practices, and education of inmates and staff, among other topics. Id. at 111. Ms. English offered a handful of recommendations for improvements, but she concluded that the MDC “was not . . . failing in its response to the COVID-19 virus pandemic.” Id. at 11-12.
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Next, respondent offered testimony from Asma Tekbali, an infection preventionist in the Epidemiology Department of Lenox Hill Hospital in New York, who defended the MDC’s infection control practices and criticized some of Dr. Venters’ recommendations. See Ex. AA (Expert Report of Asma Tekbali, M.P.H.) (“Tekbali Report”) (Dkt. #93-1). At Lenox Hill Hospital, Ms. Tekbali has played a role in developing hospital-wide policies on COVID-19 isolation and testing protocols, and containment measures. Id. at 1. In addition to testifying at the hearing, Ms. Tekbali prepared a report on the MDC’s COVID-19 infection control practices, which was entered into evidence. See generally Tekbali Report.
Finally, respondent offered testimony from Dr. Jeffrey Beard, a prison management consultant who served as Secretary of Corrections for two States. See Ex. RR (Report of Jeffrey A. Beard, Ph.D.) (“Beard Report”) 1 (Dkt. #83-2). Dr. Beard inspected the MDC on April 28, 2020, visiting the same areas as Dr. Venters: the screening area, the health services area, the quarantine and isolation units, and the Special Housing Unit (“SHU”). Id. at 5-7; see Prelim. Inj. Hr’g Tr. (“Hr’g Tr.”) 343:16-19; Venters Report ¶ 13. After observing screening, sanitation, isolation, and quarantine protocols and speaking with staff members and inmates regarding these measures, Dr. Beard concluded that the MDC “is effectively implementing practices that protect[] inmates and staff alike from the coronavirus.” Beard Report 10; see id. at 1-11. His report vigorously disputed the factual conclusions that Dr. Venters had drawn from his inspection days earlier. See id. at 7-9. Dr. Beard also contested some of Dr. Venters’ recommendations for addressing the dangers of COVID-19. See id. at 7-10.
The parties offered thousands of pages of documents as exhibits. Petitioners’ documentary evidence included declarations from 36 MDC inmates attesting to shortcomings in the prison’s COVID-19 response. See Exs. 27-33, 35-39, 41-50, 52-57, 59 (Dkt. #72); Ex. 51 (Dkt. #76); Ex.
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63 (Dkt. #71-1); Ex. 64 (Dkt. #71-2); Ex. 65 (Dkt. #71-3); Ex. 66 (Dkt. #71-4); Ex. 76 (Dkt. #913); Ex. 81 (Dkt. #91-5); Ex. 83 (Dkt. #91-9). Petitioners also offered approximately 1,200 inmate sick-call requests, including 210 sick-call requests that petitioners identified as reporting symptoms that could relate to COVID-19. See Exs. 9, 24, 78, 88.
Respondent’s documentary evidence included declarations from Stacey Vasquez, the Health Services Administrator for the MDC, and from Milinda King, an Associate MDC Warden. See Ex. LLL (Decl. of Health Services Administrator Stacey Vasquez) (“Vasquez Decl.”) (Dkt. #80); Ex. TT (Decl. of Associate Warden Milinda King) (“King Decl.”) (Dkt. #18-1); Ex. XX (Suppl. Decl. of Associate Warden Milinda King) (“Suppl. King Decl.”) (Dkt. #21); Ex. ZZ (Decl. of Associate Warden Milinda King) (“Second King Decl.”) (Dkt. #81). Ms. Vasquez offered a point-by-point response to Dr. Venters’ report, arguing that the MDC has already implemented most of Dr. Venters’ proposals and that those it has not implemented are impracticable. See Vasquez Decl. ¶ 6. Ms. King described various steps that MDC officials have taken to address the COVID-19 pandemic. See King Decl.; Suppl. King Decl.; Second King Decl. Both Ms. Vasquez and Ms. King were deposed by petitioners, and petitioners submitted their depositions into evidence. See Vasquez Tr.; Ex. 40 (“King Tr.”) (Dkt. #72). Respondent also introduced a declaration from Lieutenant Commander D. Jordan, the MDC’s Quality Improvement/Infection Prevention Control Officer that describes some of the infection prevention measures the MDC has adopted. See Ex. YY (Decl. Of Lieutenant Commander D. Jordan, RN/BSN) (“Jordan Decl.”) (Dkt. #47-1).
At the start of the hearing, I denied respondent’s request to exclude on hearsay grounds the 36 inmate declarations submitted by petitioners. See Hr’g Tr. 40:5-11. “[H]earsay evidence may be considered by a district court in determining whether to grant a preliminary injunction,” Mullins
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v. City of New York, 626 F.3d 47, 52 (2d Cir. 2010), since “the decision of whether to award preliminary injunctive relief is often based on ‘procedures that are less formal and evidence that is less complete than in a trial on the merits,’” id. at 51 (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). Nevertheless, when a party relies on hearsay statements that are not subject to any cross-examination in seeking a preliminary injunction, the fact that those statements would normally be inadmissible hearsay goes to the weight that such evidence deserves. Id. at 52; see Zeneca Inc. v. Eli Lilly and Co., No. 99 Civ. 1452, 1999 WL 509471, at *4 (S.D.N.Y. July 19, 1999) (“[T]he affidavits are necessarily of less weight than the live testimony of witnesses who were available and subject to cross-examination at the hearing.”); 11A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2949 (3d ed.); see Fed. R. Evid. 802. Accordingly, I have given these declarations somewhat less weight than the accounts of witnesses who offered live testimony regarding personal observations.
At the hearing, I also addressed petitioners’ claim that respondent spoliated evidence by destroying hard-copy sick-call requests. See Pet’rs’ Mots. in Lim. (Dkt. #86). I informed the parties then that I was considering drawing an adverse inference regarding the content of the destroyed records. Hr’g Tr. 450:9-25. I now find it is appropriate to draw an adverse inference that the destroyed records would have contained additional reports of COVID-19 symptoms for the period from April 1, when the MDC began relying heavily on paper sick-call requests, to April 23, the day before respondent began preserving paper sick-call requests. See Hr’g Tr. 451:10-16; 452:10-453:7. Petitioners have satisfied the three-prong test for spoliation sanctions. See Klipsch Grp., Inc. v. ePRO E-Commerce Ltd., 880 F.3d 620, 628 (2d Cir. 2018). First, respondent had an obligation to preserve the paper sick-call records at the time they were destroyed because he was on notice that sick-call requests were central to this litigation. See In re Terrorist Bombings of
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U.S. Embassies in E. Afr., 552 F.3d 93, 148 (2d Cir. 2008). Second, contrary to respondent’s suggestion, see Resp’t’s Opp’n to Pet’rs’ Mots. in Lim. 3-6 (Dkt. #89); Decl. of Cdr. Scott A. Griffith, MSN, RN-BC (“Griffith Decl.”) (Dkt. #97-1), it does not appear that the information in the paper records was uniformly preserved in the MDC’s electronic medical activities report. That report contains multiple vague or blank entries that leave questions as to what symptoms were reported. See, e.g., Attachment to Griffith Decl. (“Activities Report”) 2, 30, 32. Second, respondent destroyed the records with a culpable state of mind. See Klipsch Grp., Inc., 880 F.3d at 628. That requirement is satisfied when documents were destroyed knowingly, even when, as here, the documents appear to have been destroyed without an intent to breach a duty of preservation. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir. 2002). Finally, the destroyed sick-call records were “relevant” to petitioners’ claims, “such that a reasonable trier of fact could find that [they] would support” those claims. See Klipsch Grp., Inc., 880 F.3d at 628 (quoting Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 2012)).
In addition to putting forward evidence of the conditions at the MDC, both parties offered into evidence CDC documents that provide guidance on COVID-19 both generally and in the correctional context. See, e.g., Exs. 6, 20, G, H, J; Exs. BB, CC, EE, GG, HH, II, LL, MM, NN, OO, PP (Dkt. #93-1); Ex. VV (Dkt. #18-2); Ex. JJJ (Dkt. #82-1), Ex. MMM (Dkt. #80-1). The CDC protocols include a 26-page document setting out the CDC’s recommendations for the management of COVID-19 in correctional facilities. See Ex. 20 (“CDC Correctional Guidelines”).
The parties frequently invoke these and other CDC guidance as authoritative. See, e.g., Pet’rs’ Br. 3, 23; Pet’rs’ Proposed Findings of Fact ¶ 16 (Dkt. #101); Mem. Opp’n to Pet’rs’ Mot. for Prelim. Inj. (“Resp’t Opp’n Br.”) 9-12 (Dkt. #79); Resp’t’s Proposed Findings of Fact ¶¶ 188199 (Dkt. #99). And the experts retained by the parties have also treated CDC guidance as
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authoritative. See, e.g., Venters Report ¶¶ 1, 6, 18, 20-21, 41, 46, 47, 52, 62, 64; Beard Report 6, 9-10; Tekbali Report 1-7. After reviewing the CDC guidelines and considering the testimony of the experts regarding those guidelines, I have given the CDC’s guidance substantial weight in assessing petitioners’ challenge to the conditions of confinement at the MDC.
Finally, the parties filed letters after the hearing concerning whether the petitioners who were recently released or transferred from the MDC can continue to pursue their claims on behalf of the putative class. Respondent suggests that all claims other than Ms. Lopez’s are moot. See Status Report re: Transfer of Petitioner James Hair (May 26, 2020). Petitioners do not expressly disagree, but they argue that the petitioners who were released or transferred after the filing of the preliminary injunction motion can “continue to seek relief on behalf of the class even after [their] individual claims have been mooted.” Pet’rs’ Letter (May 27, 2020) 1 (Dkt. #107);. I need not resolve that question to decide petitioners’ motion. The claims of Ms. Lopez are indisputably not moot because Ms. Lopez is still detained at the MDC. And petitioners have made the same basic arguments with respect to all of the named petitioners. While Ms. Lopez is female and the other named petitioners are male, the only gender-related difference in the MDC’s approach to COVID19 appears to be that men have somewhat greater capacity to engage in social distancing, because women are generally housed in dormitory-style accommodations while men are typically housed in two-person cells. Under these circumstances, my determination that Ms. Lopez has not demonstrated a clear likelihood of success on the merits of her Eighth Amendment claim would apply equally to the remaining petitioners if their claims remain live for purposes of seeking injunctive relief on behalf of the asserted class.
Based on the witness testimony and documentary evidence at the hearing, I make the following findings of fact and draw the following conclusions of law.
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FINDINGS OF FACT I. The COVID-19 Outbreak
COVID-19 is an acute respiratory illness caused by a novel coronavirus that first appeared in the United States in January 2020. See Clinical Care Guidance, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-managementpatients.html (last visited June 7, 2020); Evidence for Limited Early Spread of COVID-19 Within the United States, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/mmwr/volumes/69/wr/mm6922e1.htm?s_cid=mm6922e1_w (last visited June 7, 2020). There have now been over 1.9 million cases of COVID-19 in the United States. See Cases in the U.S., CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited June 7, 2020). The State of New York, with 379,322 cases, accounts for about 20% of the nationwide total. See ibid. New York City has been at the epicenter of the outbreak in the United States, with about 208,517 COVID-19 cases. See ibid. Symptoms of COVID-19 include fever, chills, cough, shortness of breath or difficulty breathing, muscle pain, headache, sore throat, and loss of the sense of taste and/or smell. See Ex. MMM (“CDC List of Symptoms of Coronavirus”). Symptoms typically appear between two and 14 days after exposure to the virus. Ibid. The CDC has stated that the disease poses a heightened risk for those who are age 65 or older, those who are immunocompromised, and those who suffer from certain underlying health conditions such as chronic lung disease, moderate to severe asthma, serious heart conditions, severe obesity, diabetes, chronic kidney disease, and liver disease. See People Who Are at Higher Risk, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-at-higher-risk.html (last visited June 8, 2020).
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II. The MDC and Its COVID-19 Action Plan The MDC is a federal detention facility in Brooklyn that housed about 1,630 inmates as of
May 2, 2020. English Report 2. As an institution administered by the BOP, the MDC has been following the BOP’s COVID-19 Action Plan. See Jordan Decl. ¶¶ 4-6. Phase One of that plan, which was implemented in January, involved developing strategies and soliciting guidance for managing the virus response in BOP facilities. Id. ¶ 7. Phase Two, which began on March 13, 2020, suspended virtually all legal and social visitation and started new entry screenings for staff and prisoners. Id. ¶¶ 8-10. In addition, prison officials put into place “modified operations,” such as staggered meal and recreation times, to maximize social distancing. Id. ¶ 11. Phase Three, which took effect on March 18, 2020, required inventories of cleaning, sanitation, and medical supplies, among other steps. Id. ¶ 13. Phase Four, which began on March 26, 2020, strengthened quarantine and isolation procedures. Id. ¶ 14. BOP facilities also began to assess all inmates arriving at its facilities with a screening tool and temperature check. Ibid. Phase Five, which took effect on April 1, 2020, mandated facility-wide lockdowns in every BOP institution for a 14-day period. Id. ¶ 15. During lockdown, inmates are to be secured in their cells where possible, with limited exceptions for essential activities. Ibid. Later phases have extended those lockdowns, which are currently scheduled to remain in effect through at least June 30, 2020. See id. ¶ 16; COVID-19 Action Plan: Phase Seven, FED. BUREAU OF PRISONS, https://www.bop.gov/resources/news/20200520_covid-19_phase_seven.jsp (last visited June 7, 2020). III. The Prevalence of COVID-19 at the MDC
While the parties dispute the prevalence of COVID-19 at the MDC, the evidence at the hearing indicates that the facility has been more successful than many other prisons in preventing an outbreak. In the absence of broad testing, the best available indicator of the extent to which the
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virus has spread within the MDC are deaths and Intensive Care Unit hospitalizations. As Ms. Tekbali explained, those objective measures “are correlated with the rates or with the level of infection,” and are “indicators . . . on how the pandemic is progressing.” Hr’g Tr. 239:5-11. That data suggests that MDC officials have thus far succeeded in preventing a significant outbreak. In the months since the pandemic began, there have been no COVID-linked deaths at the MDC, and only a single MDC inmate has been hospitalized in connection with COVID-19. Vasquez Decl. ¶ 8; Hr’g Tr. 238:20-25. That inmate was discharged back to the MDC the next day. See King Decl ¶¶ 27-28. This data is especially striking because the MDC has identified about a quarter of its population as at elevated risk from COVID-19 due to age or preexisting conditions, and because the MDC is in New York City, which has been at the epicenter of America’s COVID-19 outbreak over the past several months. There have been about17,150 confirmed deaths from COVID-19 in the surrounding community of about 8,340,000 people. See Hr’g Tr. 238:22-239:2; COVID-19: Data, N.Y.C. DEP’T OF HEALTH, https://www1.nyc.gov/site/doh/covid/covid-19-data.page (last visited June 7, 2020); Population, N.Y.C. DEP’T OF CITY PLANNING, https://www1.nyc.gov/site/planning/planning-level/nyc-population/nyc-population.page (last visited June 7, 2020). The MDC’s extremely low COVID-19 hospitalization and death rates suggest that it is faring reasonably well compared to its surrounding community.
Petitioners contend that “a significant amount of COVID-19 activity and infection among detained people” may be “currently undetected” at the facility. Hr’g Tr. 99:15-20 (testimony of Dr. Venters). They note that after the number of confirmed COVID-19 cases among inmates plateaued, reports of staff infections continued to rise from five cases on April 2 to 36 cases on May 5. See Suppl. Venters Report ¶ 8. Petitioners argue that if the MDC had more robust testing in place, the number of confirmed COVID-19 cases among the inmate population would have
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likely followed the same upward trajectory, because the “primary way in which the virus comes into and moves around [a] facility is through the movement of staff.” Hr’g Tr. 116:20-117:5 (testimony of Dr. Venters). Petitioners are correct that the fact that just nine inmates have tested positive thus far sheds little light because the MDC has only tested 68 inmates out of its population of approximately 1,630. See Letter from MCC Warden Licon-Vitale and MDC Warden Edge to Chief Judge Mauskopf (June 4, 2020) (“Edge Letter”) 2 (https://www.nyed.uscourts.gov/pub/bop/MDC_MCC_20200604_044508.pdf). But the number of confirmed cases among staff also sheds limited light on the infection rate among inmates, because divergent rates could be the product not only of limited testing of inmates but also of effective infection-control measures. In any event, reported staff infections are no longer rising quickly. Compare Suppl. Venters Report ¶ 8 (36 cases on May 5), with Edge Letter 2 (40 cases on June 4). And while the MDC more than doubled the number of inmates tested between the end of May and early June, the number of positives increased only from six to nine. Compare Letter from MCC Warden Licon-Vitale and MDC Warden Edge to Chief Judge Mauskopf (May 28, 2020) (available at https://www.nyed.uscourts.gov/pub/bop/MDC_MCC_20200529_093332.pdf) (25 tests and six positives as of May 28) with Edge Letter 2 (68 tests and nine positives as of June 4). Thus, the available data gives reason for cautious optimism about the effectiveness of the facility’s COVID-19 response thus far. IV. Conditions at the MDC
The parties offered divergent accounts at the preliminary injunction hearing concerning what steps the MDC has actually implemented in response to the COVID-19 pandemic and whether those steps are adequate. The evidence establishes that, on the whole, the MDC has responded aggressively to COVID-19, implementing an array of measures that largely track CDC guidance. The record leaves open the possibility, however, that there were early lapses in
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implementation of these policies. And it suggests that in several areas, most notably relating to sick-call responses and use of isolation, the MDC has yet to fully implement the CDC’s recommendations.
A. Inmate Screening at Entry The best available evidence indicates that, contrary to petitioners’ arguments, the MDC has implemented rigorous intake-screening procedures for inmates that comply with CDC guidance. Upon arrival at the MDC, inmates are now directed to a special area designated for receiving and discharge. King Decl. ¶ 6. All inmates entering or re-entering the facility are then screened with a “national inmate screening tool,” Vasquez Decl. ¶ 6(a)-(b), which requires a temperature check as well as an inquiry into COVID-19 risk factors, including symptoms linked to COVID-19, see Ex. ZZZZ (Coronavirus Disease 2019 (COVID-19) Inmate Screening Tool Examples) (“Inmate Screening Examples”); Vasquez Tr. 26:5-8, 104:18-106:3. Asymptomatic inmates are then quarantined in an “intake” unit for 14 days to ensure that they do not develop symptoms before being admitted into the general population. King Decl. ¶ 6; see Jordan Decl. ¶ 14; Vasquez Tr. 24:17-25:13, 26:3-15, 108:22-109:22. Inmates who present COVID-19 symptoms on arrival, and possibly some inmates with exposure risk, are placed in medical isolation. Jordan Decl. ¶ 29; Vasquez Tr. 105:22-106:22. Those inmates are not released from isolation until they test negative for COVID-19 or are cleared by medical staff for release. Jordan Decl. ¶ 14. When they inspected the facility, both Dr. Beard and Ms. English confirmed that these inmate screening procedures were in effect. See Beard Report 7-8, 10; English Report 3. Dr. Venters drew a contrary conclusion after speaking with two identified inmates who “reported that they had not been screened at all when they arrived in [the] MDC.” Venters Report ¶ 18. In response, however, respondent submitted intake forms documenting that those two
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inmates had their temperatures taken and were asked about their symptoms and other risk factors. See Inmate Screening Examples 1-2. Petitioners argue that for one of these inmates, the checkboxes under the sections labeled “Assess the Risk of Exposure” and “Assess Symptoms” were “left blank,” indicating that he was not in fact screened. See Pet’rs’ Proposed Findings of Fact ¶ 33; Inmate Screening Examples 2. However, a closer look at the form reveals that the official who filled it out simply drew a line through the “No” boxes, rather than checking them off individually. Accordingly, petitioners’ claim that “[i]ndividuals entering the MDC are not always screened for symptoms of COVID-19,” Pet’rs’ Proposed Findings of Fact ¶ 33, which is based on those two inmates’ out-of-court statements to Dr. Venters, does not appear to be supported by the evidence.
The MDC’s inmate screening procedures conform to CDC guidelines, which provide that “pre-intake screening and temperature checks for all new entrants” should occur “in the sallyport, before beginning the intake process.” CDC Correctional Guidelines 10. The guidelines further provide that any asymptomatic inmate entering the facility who is a “close contact of a known COVID-19 case” should be placed under quarantine for 14 days. Id. at 11. The MDC’s policy of quarantining asymptomatic inmates upon arrival—whether a close contact of a known COVID-19 case or not—is thus more protective of the inmate population than the policy recommended by the CDC. Finally, the CDC’s guidelines provide that an inmate presenting COVID-19 symptoms on arrival should be placed in medical isolation, CDC Correctional Guidelines 10, which is the approach taken by the MDC.
B. Staff Screening at Entry The MDC is also conducting COVID-19 screenings of staff members upon entry, as the CDC recommends, but it appears to have deviated from CDC guidance in two parts of that process.
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Staff are screened at the point of entry with a screening tool that requires a temperature check and asks employees if they are suffering from a “New On-Set Cough,” “New Onset Trouble Speaking because of Needing to take a Breath,” or a “Stuffy/Runny Nose.” Ex. 22 (Coronavirus Disease (COVID-19) Staff Screening Tool) (“Staff Screening Tool”); see Vasquez Tr. 130:15-131:15. Any staff member with a fever is denied entry to the MDC and placed on leave for three days. See Staff Screening Tool; Vasquez Tr. 138:20-139:12. If a staff member has a normal temperature but exhibits other COVID-19 symptoms, he or she is subjected to a clinical evaluation and may be admitted to the facility on a discretionary basis. See Staff Screening Tool; Vasquez Tr. 139:1324. When Dr. Beard and Ms. English toured the MDC, each observed that these screening procedures for staff members were being followed, and petitioners have not offered evidence to the contrary. See Beard Report 5, 10; English Report 2.
As petitioners observe, however, several aspects of the MDC’s screening process do not appear consistent with CDC guidance. First, staff members are not being asked at entry whether they have had contact with a confirmed COVID-19 case in the past 14 days. See Vasquez Tr. 136:15-21; Staff Screening Tool; cf. CDC Correctional Guidelines 26. Second, the MDC does not appear to categorically bar staff from entering if they exhibit possible symptoms of COVID-19. See Vasquez Tr. 139:13-24 (describing fever as the only symptom that categorically prevents entry); Staff Screening Tool (noting that symptomatic staff may be directed to “Leave” or “Work”); but see Vasquez Tr. 137:21-138:2 (stating that staff who begin to experience COVID19 symptoms on the job are instructed to “[r]eport it immediately to their supervisor and go home”). That contravenes CDC guidance which explains that staff members with COVID-19 symptoms should be sent home immediately. See CDC Correctional Guidelines 12.
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C. Facility-Wide Preventative Measures 1. Social Distancing
MDC officials have implemented measures to promote social distancing that comport with CDC guidance. Female inmates are housed in a dormitory-style unit after a quarantine period when they first enter the facility. Vasquez Tr. 100:24-101:7; Ex. III (Decl. of Associate Warden Caryn Flowers) (“Flowers Decl.”) ¶ 15 (Dkt. #82). They are required to wear masks if they are unable to social distance. King Tr. 96:24-97:2, 99:21-100:3, 101:7-11; Flowers Decl. ¶¶ 17, 2223; see Vasquez Tr. 102:2-16. Because of space constraints, bunks in the unit may be less than six feet apart. King Tr. 96:16-97:18; Flowers Decl. ¶ 23. Nevertheless, MDC officials attempt to alternate bed assignments so that when one inmate sleeps on the top bunk, the neighboring inmate sleeps on the bottom bunk. King Tr. 96:16-25. Given the number of female inmates and the size of the unit, inmates in the women’s unit are generally able to engage in social distancing. See Vasquez Tr. 102:2-16.
Most male inmates are housed in two-person cells, except in the isolation and intake units, where inmates are generally housed alone. See id. at 25:5-13; 33:17-23; 38:4-11; 68:11-17. Male inmates are now secured in their cells for at least 23 hours each day to reduce contacts that could spread the virus, Jordan Decl. ¶ 15; Flowers Decl. ¶ 7; King Tr. 88:6-18, although a small number leave their cells more regularly to work, King Tr. 88:19-23. Male inmates are generally allowed out of their cells in staggered intervals, so that no more than 10 inmates are outside their cells at once. Id. at 88:24-89:7.
The MDC’s actions in this area are consistent with the CDC’s recommendation that correctional facilities implement “strategies to increase the physical space between incarcerated/detained persons,” such as staggering meal and recreational times, limiting group activities, and reassigning bunks to provide more space between inmates. CDC Correctional
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Guidelines 11. The MDC’s lockdown of male inmates is arguably more protective than any of the social distancing measures suggested in CDC guidance. While women are housed in a dormitorystyle unit, rather than in two-person cells, CDC guidance recognizes that social distancing “strategies will need to be tailored to the individual space in the facility.” Ibid. And the MDC’s approach of alternating bed assignments in the women’s unit, where possible, is a strategy that the CDC has expressly recommended for dormitory-style housing units. Ibid.
2. Sanitation The MDC has instituted heightened sanitation protocols that conform to CDC guidance. While inmate declarations raise the possibility that there have been occasional failures to fully live up to the MDC’s policies in this area, particularly in the earliest stages of the pandemic, the evidence does not support finding widespread or ongoing deficiencies.
a. Soap The evidence indicates that soap is now widely available to inmates housed at the MDC. Staff provide soap through several mechanisms. First, soap is provided to new inmates upon arrival. King Decl. ¶ 11; Jordan Decl. ¶ 51. Second, soap is available for purchase at the commissary. King Decl. ¶ 11. Inmates with insufficient funds to purchase soap can obtain it at no cost. Jordan Decl. ¶ 51; King Tr. 25:12-19. Third, soap is delivered on a biweekly basis to staff teams that work in the housing units, and inmates may request additional soap from those team members. King Decl. ¶ 11; King Tr. 24:12-26:16. Accordingly, MDC officials maintain that “[a]ll inmates have access to sinks and soap at all times.” King Decl. ¶ 11. The individuals who inspected the MDC generally confirmed that inmates have access to soap. Ms. English interviewed a number of inmates chosen at random about their access to soap and other hygiene products, and reported that “[e]very inmate stated that they have access to proper supplies.” English Report 4. Ms. English noted that in each area she toured, “inmates have access
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to adequate personal hygiene supplies for hand washing,” and that while “[i]nmates are provided with soap upon request,” most choose to buy soap from the commissary “based off personal preference.” Id. at 6-7. Dr. Beard reached similar conclusions. He “looked in a number of cells and each cell had at least one bar of soap, and some had more than one.” Beard Report 6. Dr. Beard also noticed “a pile of hand soap in a storage area on the housing unit.” Id. at 7. Dr. Venters did not contradict these observations. See generally Venters Report. Many of the inmate declarations in this case also state that inmates are receiving soap on a weekly or near-weekly basis. See, e.g., Ex. 32 (“Dixon Decl.”) ¶ 6; Ex. 35 (“Finch Decl.”) ¶ 6; Ex. 39 (“Sojos-Valladares Decl.”) ¶ 10; Ex. 41 (“Altino Decl.”) ¶ 6.
Other inmate declarations, dated between April 20 and May 4, assert that inmates receive soap infrequently and cannot always obtain soap upon request. See, e.g., Ex. 27 (“Powell Decl.”) ¶ 6; Ex. 47 (“Miller Decl.”) ¶ 7; Ex. 49 (Haney Decl.) ¶ 6; Ex. 51 (“Sanchez Decl.”) ¶ 20. Because almost all of the declarations appear to describe conditions before the facility inspections, it is possible that these declarations are indicative of distribution problems at the outset of the pandemic. But given the in-court testimony attesting to the availability of soap during the facility inspections, I do not conclude these out-of-court statements reflect a widespread or ongoing problem with access to soap.
The MDC’s policies comport with CDC guidance, which recommends that correctional facilities “provide a no-cost supply of soap to incarcerated/detained persons, sufficient to allow frequent hand washing.” CDC Correctional Guidelines 8. While petitioners fault the MDC for failing to make hand sanitizer available to inmates in addition to soap, see Am. Pet. ¶ 75(e), the CDC recommends the use of hand sanitizer only “[i]f soap and water are not readily available,” see Ex. LL (“CDC Guidance on How to Protect Yourself and Others”) at Tekbali 82. And even
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then, hand sanitizer is only an acceptable alternative to soap if it contains “at least 60% alcohol.” Ibid. Like many correctional facilities, the MDC does not permit inmates to possess alcohol-based hand sanitizer. See Jordan Decl. ¶ 53; King Tr. 35:22-36:5. In deference to this policy, the CDC’s correctional guidelines provide that alcohol-based hand sanitizer should only be made available “where permissible based on security restrictions.” CDC Correctional Guidelines 7. The MDC’s policy of making soap and sinks available to inmates, but not alcohol-based sanitizer, does not run contrary to CDC guidance.
b. Cleaning Supplies The best available evidence indicates that inmates are regularly supplied with a potent disinfectant to sanitize their living spaces, although it is possible that access was constrained at the outset of the pandemic. The MDC was authorized in response to the pandemic to use and distribute hdqC2, a powerful disinfectant, throughout the institution. King Tr. 40:2-7. According to Associate Warden King, the MDC has provided inmates with spray bottles and permits inmates to leave their cells on Mondays, Wednesdays, and Fridays to fill their bottles with hdqC2 for spraying and wiping down their cells. Id. at 40:15-23. The individuals who inspected the MDC in connection with this case confirmed that inmates are being provided hdqC2. When Dr. Beard toured the MDC, inmate workers showed him what they use to clean their cells. Beard Report 6. The workers presented to him bottles of hdqC2. Ibid. Dr. Beard testified that he asked these workers if inmates were having difficulty accessing hdqC2 and was told that there was “no problem with access.” Hr’g Tr. 330:9-13. Dr. Beard also noted that in preparing his evaluation of the MDC, he had reviewed a “significant order” for hdqC2 and spray bottles that was placed by the BOP. Beard Report 6. By the time Ms. English arrived at the facility on May 2, the MDC had 250 gallons of hdqC2 on hand. See English Report 7. Ms. English also observed that in all areas she toured, inmates had access to “disinfectant
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products effective against the virus that causes COVID-19 for daily cleanings.” Id. at 6. And while Dr. Venters spoke to several detainees who claimed to have received “insufficient cleaning solution for their cell area,” Venters Report ¶ 42, he also testified that he saw spray bottles and disinfectant wipes in some of the housing areas and that some inmates told him that they had received cleaning supplies for their cells, Hr’g Tr. 146:8-18.
In written declarations dated between April 20 and 28, some inmates state that they have been provided with cleaning material for their cells, albeit not always in sufficient quantity to satisfy demand. See, e.g., Ex. 28 (“Bynum Decl.”) ¶ 4; Ex. 29 (Olivera Decl.) ¶ 6; Ex. 31 (“Mabry Decl.”) ¶ 10; Dixon Decl. ¶¶ 6-7. Other inmate declarations from this period assert that inmates have not been provided with cleaning supplies. See, e.g., Altino Decl. ¶ 7; Ex. 43 (“Hall Decl.”) ¶ 7; Ex. 45 (“Watson Decl.”) ¶ 9; Sanchez Decl. ¶ 20. It is difficult to assess these out-of-court statements because the declarants have not been subjected to any questioning about their claims. Crediting the observations of the individuals who inspected the facility and testified at the hearing, I conclude that the MDC now has an adequate supply of hdqC2 and is making that disinfectant available to inmates, but I do not rule out the possibility that there were occasions early in the pandemic on which individual inmates did not have access to those chemicals.
c. Cleaning of Common Areas and Shared Items MDC officials have also provided cleaning supplies to inmates to wipe down shared items in common areas and have arranged for high-touch areas and surfaces to be cleaned periodically by orderlies. Associate Warden King and Health Services Administrator Vasquez have stated that spray bottles filled with hdqC2 and paper towels have been placed next to the phones and computers shared by inmates so that they can be cleaned between uses. See King Tr. 56:16-58:7; Vasquez Decl. ¶ 6(l). Inmates have been instructed to disinfect those items between each use. Id. at 56:18-57:9. Spray bottles with hdqC2 and Tilex have also been placed in the shower areas for
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inmates to disinfect the showers between uses. Id. at 58:18-59:13. In addition, orderlies have been furnished with cleaning supplies and have been instructed to clean common areas “multiple times throughout the day.” Jordan Decl. ¶ 52; see King Tr. 53:9-56:19.
When Dr. Beard and Ms. English inspected the MDC, they observed that disinfectant had been made available to both inmates and orderlies for cleaning common areas and shared items. During Dr. Beard’s inspection, inmates showed Dr. Beard “the cleaning/disinfectant that had been diluted and put into spray bottles” that “is used on the telephones, computers and to clean common areas.” Beard Report 6. Staff and inmate workers informed Dr. Beard that this disinfectant “was used by [orderlies] to disinfect showers, telephones[,] and computers after each use by an inmate,” and that “spray bottles would be available if individual inmates wanted to clean any area themselves.” Id. at 7-8. Ms. English’s interviews with randomly selected inmates corroborated these observations, although Ms. English noted that in one area she did not see disinfectant spray near the phone handsets. English Report 5; Hr’g Tr. 192:10-19. Dr. Venters also testified that when he visited the MDC he saw disinfectant spray bottles and wipes in the housing units. Hr’g Tr. 146:14-18. In addition, several inmate declarations state that high-touch objects and common areas are being cleaned, both by inmates and orderlies, though a number of those inmates faulted the frequency with which cleaning is taking place. See, e.g., Bynum Decl. ¶ 11; Sanchez Decl. ¶ 20; Ex. 55 (“Deutsch Decl.”) ¶¶ 8-9; Powell Decl. ¶ 5; Dixon Decl. ¶ 10; Mabry Decl. ¶ 10.
Petitioners offer a contrary view, relying on declarations from other inmates dated between April 20 and 29 stating that almost no cleaning of shared items is occurring and that no supplies have been provided for this purpose. See, e.g., Finch Decl. ¶ 10; Ex. 38 (“Pierson Decl.”) ¶ 10; Watson Decl. ¶ 11; Ex. 53 (Batista Decl.) ¶ 9; Deutsch Decl. ¶ 9. They also rely on the reports of several inmates to Dr. Venters when he toured the facility that “they have not observed any
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cleaning of the phones.” Venters Report ¶ 42. I give these statements less weight than in-court testimony because the individuals who made them have not been subjected to questioning about their claims. Moreover, these accounts are contradicted by declarations of other inmates and by the observations that Dr. Beard and Ms. English made when they toured the facility. Indeed, Dr. Venters testified as well that when he visited the MDC he saw disinfectant spray bottles and wipes placed in the housing units. Hr’g Tr. 146:14-18. Taking together the staff declarations, live testimony, inspection reports, and inmate declarations, the MDC appears to be complying with its stated policy of providing supplies so that inmates can clean shared items and common areas, as well as assigning inmate workers to periodically clean those items. But the inmate declarations suggest that the roll-out of this sanitation policy may not have been seamless, and there may have been instances in which the requisite supplies were not available or in which shared items were not cleaned by inmate workers.
In addition to arguing that shared items are not being cleaned in accordance with the MDC’s policies, petitioners have faulted the MDC for failing to ensure that such items are cleaned between each use. See, e.g., Am. Pet. ¶ 54. But the enforced cleaning of shared items between each use, while perhaps an ideal practice, is not called for by the CDC’s guidelines. Rather, those guidelines provide that frequently touched items and common areas should be cleaned “[s]everal times per day.” CDC Correctional Guidelines 9. The MDC complies with that guidance. Moreover, the availability of cleaning supplies so that inmates can disinfect shared items themselves undercuts any argument that cleaning by orderlies between every use should be required.
3. Personal Protective Equipment (PPE) The MDC’s current PPE protocols for both inmates and staff are substantially in compliance with applicable CDC guidelines.
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a. Inmate PPE The best available evidence suggests that inmates are being provided with appropriate PPE in accordance with CDC guidelines. On or about April 5, the MDC provided all inmates with surgical masks. Jordan Decl. ¶ 56. Inmates were provided with new masks on April 12, ibid., and the MDC’s policy going forward has been to provide inmates with new masks on a weekly basis, see King Tr. 76:19-23. Inmates can request new masks from MDC staff if their masks become damaged. King Tr. 76:24-77:9. The MDC has instructed inmates that they must wear masks whenever they leave their cells if they cannot maintain appropriate social distance from others. See King Tr. 78:2-14, 79:10-17. It appears that this policy is being followed. See Beard Report 6 (“[A]ll inmates had and were using their masks as we moved through the facility. It is evident that this has become a part of their regular daily routine.”). A number of inmates acknowledge through written declarations that the MDC has been providing masks on a weekly basis, but some of those inmates complain that the masks have been non-washable. See, e.g., Altino Decl. ¶ 8; Hall Decl. ¶ 8; Ex. 44 (“Carpenter Decl.”) ¶ 8; Dixon Decl. ¶ 8. MDC officials addressed these concerns, responding to complaints about the “poor quality of some of the initial face coverings,” English Report 5, by shifting to washable cloth masks, see Vasquez Decl. ¶ 6(r); Second King Decl. ¶ 20. Petitioners’ expert, Dr. Venters, has criticized the MDC for failing to give inmates N-95 masks, which are tight-fitted respirators specifically designed to filter out airborne particles. See Venters Report ¶ 45; see also Personal Protective Equipment: Questions and Answers, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019ncov/hcp/respirator-use-faq.html (last visited June 7, 2020). Respondent acknowledges that inmates have not been fitted with such masks. See King Tr. 78:15-79:9. But CDC correctional guidance advises that “face masks”—not N-95s—should be provided to inmates “as feasible based
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on local supply.” CDC Correctional Guidelines 25. The same guidelines recommend that even “[i]ncarcerated/detained persons who are confirmed or suspected COVID-19 cases, or [are] showing symptoms of COVID-19” should be provided with face masks, not N-95 respirators. See ibid. Respondent’s expert Asma Tekbali, the witness with the greatest expertise on COVID-19 protocols, has explained that N-95 masks are “reserved for airborne viruses such as tuberculosis and measles” and generally are “indicated for [health care] providers only,” rather than patients. Tekbali Report 3. Accordingly, the MDC’s decision to provide inmates with ordinary face masks, rather than N-95 masks, is consistent with CDC guidance.
Dr. Venters also faults the MDC for failing to provide inmates with gloves unless they work as orderlies. See Venters Report ¶ 64(r). MDC officials have not disputed that the MDC provides gloves to inmates only when they work as orderlies or when they are involved in laundry or food services. See King Tr. 64:4-16. Here too, the MDC’s policy comports with CDC guidelines, which generally recommend hand hygiene, rather than glove-wearing, to protect against COVID-19. See CDC Guidance on How to Protect Yourself and Others at Tekbali 82. The CDC accordingly recommends providing inmates with gloves only if (i) they handle laundry or food service items “from a COVID-19 case or case contact,” or (ii) are assigned to clean an area where a COVID-positive person was present. CDC Correctional Guidelines 25. The MDC’s policy aligns with this guidance.
b. Staff PPE The MDC has instituted PPE policies for staff that conform to CDC guidelines. MDC staff members receive two surgical masks a week and are required to wear masks when they cannot engage in social distancing. King Tr. 69:21-23, 71:19-21. While gloves have been made available to staff, staff members generally are not required to wear gloves except when they perform tasks such as taking temperatures, working in the isolation unit, or dealing with an inmate who is
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confirmed or suspected to have COVID-19. See id. at 81:18-83:16. Dr. Beard and Ms. English both noted that staff were wearing appropriate PPE when they toured the MDC. See Beard Report 6; English Report 5.
In suggesting that staff do not make appropriate use of PPE, petitioners rely on Dr. Venters’ statement that he “observed several correctional staff not wearing gloves or masks,” and that it “was not clear who was mandated to wear masks or gloves.” Venters Report ¶ 43. Petitioners also rely on a number of written declarations from inmates stating that staff members do not always wear masks and gloves. See, e.g., Bynum Decl. ¶ 12; Mabry Decl. ¶ 11; Dixon Decl. ¶ 16; Pierson Decl. ¶ 24. But those observations, without more, do not support the inference that MDC staff members are failing to wear PPE when it is called for. The CDC only recommends that staff members wear gloves when they are undertaking certain tasks, such as performing temperature checks or providing care to quarantined inmates. See CDC Correctional Guidelines 25; Tekbali Report 6. Similarly, the CDC recommends mask-wearing only when it is not possible to engage in social distancing. See generally CDC Correctional Guidelines 25; Tekbali Report 7. Neither the inmate declarants nor Dr. Venters offered a basis to conclude that staff members have been failing to wear masks or gloves when required under CDC protocols.
The MDC also has special PPE protocols for staff who work in the quarantine and isolation units, or who otherwise have direct contact with confirmed or suspected COVID-positive inmates. Consistent with the CDC’s recommendation that staff interacting directly with confirmed or suspected COVID-19 cases wear N-95 masks, see CDC Correctional Guidelines 25, staff members who work in the quarantine or isolation units are given N-95 masks daily, see King Tr. 72:2-22. Each staff member is required to wear an N-95 mask, as well as a gown and either a face shield or goggles, when dealing with inmates who have tested positive for COVID-19. Id. at 69:13-19,
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84:19-85:25. Dr. Beard and Ms. English both noted the availability and use of this specialized PPE when they toured the MDC. Beard Report 7; English Report 5. Ms. English did not see a cart for specialized PPE outside the quarantine unit, but she observed that “[t]he quarantine area was receiving masks and gloves [from] the Captain at the start of each shift on a cart which [was] pushed to the location.” English Report 4. While noting that “there were no significant concerns raised about [the] availability of PPE for staff,” she recommended that a “stationary cart” with PPE be placed in front of all units to “avoid even the appearance that PPE is not being made readily available” to staff who need it. Id. at 12.
Dr. Venters did not reach the same conclusion because when he toured the isolation unit, he observed that the cart stationed outside the unit “lacked any gowns or masks.” Venters Report ¶ 45. From that observation, Dr. Venters drew the conclusion that MDC staff “appear to lack appropriate PPE” for dealing with presumed or confirmed COVID-19 cases. Id. ¶ 46. But that broad conclusion is unwarranted, particularly because later visits to the MDC, including an unannounced inspection, found that staff had access to sufficient PPE and noted that the PPE cart outside the isolation unit was stocked. Given that evidence, it appears likely that Dr. Venters simply came upon the isolation unit’s PPE cart at a time when it needed restocking.
Petitioners also rely on a written declaration from Anthony Sanon, an official in a union that represents correctional officers, in which Mr. Sanon disputes whether the MDC has made appropriate PPE available to staff in the isolation and quarantine units. See Ex. 79 (Sanon Decl.) ¶¶ 28, 30. But Sanon’s declaration deserves less weight than other accounts. He appears to be reporting second-hand information rather than his own observations, he has not been subjected to any kind of questioning, and his statements are contradicted by the sworn testimony of Dr. Beard
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and Ms. English, each of whom were subjected to cross-examination. The best available evidence thus suggests that staff in the isolation and quarantine units have access to appropriate PPE.
4. Communication Regarding COVID-19 MDC officials communicate with inmates about COVID-19 through “weekly town halls” at which “written information” is handed out to inmates. Vasquez Decl. ¶ 6(s). While these “town halls” initially took the form of group meetings, prison officials now distribute information by going cell-to-cell. King Tr. 92:21-93:14. Staff members also make rounds to answer inmates’ questions. Vasquez Decl. ¶ 6(s). The facility evaluations by Ms. English and Dr. Beard corroborated that prison officials are disseminating information about the virus in these ways. See English Report 9-11; Beard Report 3. Ms. English further noted that informational posters have been placed “throughout the institution” in both Spanish and English. English Report 9-11. Dr. Venters’ report did not dispute that the MDC has adopted these educational measures. These communications protocols appear consistent with CDC guidance recommending that correctional institutions give inmates and staff “up-to-date information about COVID-19,” to be conveyed “verbally on a regular basis” and via signs placed “throughout the facility.” CDC Correctional Guidelines 10, 12. D. Testing for COVID-19
The MDC has tested only a small number of inmates for COVID-19, due to limited access to testing, although BOP officials expect that the facility’s testing capacity will be increased in the near future. As noted above, as of June 4, the MDC had tested just 68 inmates for the virus, with nine positive results. Edge Letter 2. The small number of tests conducted reflects MDC officials’ difficulty obtaining test kits thus far. See Vasquez Tr. 116:8-23 (noting that the MDC has made weekly requests for new tests from the lab that services it, without success). That difficulty, in turn, reflects broader supply shortages. See Tekbali Report 3-4. Nevertheless, the
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BOP has arranged for the MDC to receive new testing equipment in the near future. In an apparent reference to the BOP’s acquisition of Abbott ID NOW testing machines for some BOP facilities, Ms. English testified that “machines” will be sent to the MDC “shortly” because it “is being recognized as a detention facility in a hot zone.” Hr’g Tr. 226:15-17; see Press Release, Bureau of Prisons to Expand Rapid Testing Capabilities (May 7, 2020), https://www.bop.gov/resources/news/pdfs/20200507_press_release_expanding_rapid_testing.pdf. The MDC does not test staff because it is not “licensed” to do so, Vasquez Tr. 145:17-146:23, but staff members are encouraged to self-report if they test positive in the outside community, id. at 148:210.
Petitioners have faulted the MDC for failing to conduct “[b]roader testing” thus far. Pet’rs Br. 7. They argue that the MDC should be testing all inmates and staff who possess “more than one sign and/or symptom of COVID-19” or who possess “risk factors for serious illness or death from COVID-19.” Mot. for Prelim. Inj. 3. But petitioners have failed to demonstrate that such an approach has been feasible to date, given the supply shortages discussed by Ms. Vasquez and Ms. Tekbali. Indeed, CDC guidelines implicitly acknowledge that tests are in short supply by providing guidance to clinicians about how to prioritize testing. See Evaluation & Testing, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019nCoV/hcp/clinical-criteria.html (last visited June 8, 2020). While Ms. Tekbali did not dispute that greater testing of inmates with symptoms would be desirable when “possible,” Hr’g Tr. 285:1-15, and the availability of test kits appears to be increasing, it does not appear that the MDC has thus far missed opportunities to engage in widespread testing.
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E. Quarantine and Isolation Procedures The MDC has established quarantine and isolation units whose basic design comports with CDC guidelines. The isolation unit houses inmates who have tested positive for COVID-19 or who are “presumed positive” based on their symptoms. Vasquez Tr. 56:13-23, 61:5-63:21, 118:424. It is the MDC’s policy to test the first inmate in a unit who exhibits symptoms that MDC officials deem consistent with COVID-19. Id. at 119:13-16. The inmate is placed in isolation pending test results and kept in isolation if the test comes back positive. Id. at 61:22-62:6. If the test is positive, the inmate’s entire housing unit is placed under quarantine for 14 days. See King Decl. ¶ 9; Jordan Decl. ¶¶ 37-38; Vasquez Tr. 84:25-85:2. Inmates in the quarantine unit who display symptoms that MDC medical staff deem indicative of COVID-19 are to be treated as “presumed positive” without a test and placed in isolation. See Vasquez Tr. 32:1-8, 56:15-23, 62:14-63:21. Between when the MDC first began isolating inmates in connection with COVID19 and April 27, a total of 19 inmates were confirmed or presumed positive for COVID-19 and placed in the isolation unit for some period. See Ex. 80 (Resp’t’s Response to Interrogatory 1(c)) 3. Inmates in the isolation unit are housed in single cells that each have a dedicated bathroom. Vasquez Tr. 68:11-17. They cannot leave their cells except for limited purposes, such as to make legal calls and to shower. See King Decl. ¶ 8 n.1. Inmates are not released from the isolation unit until (i) seven days after the onset of their symptoms, and (ii) 72 hours without a fever. Vasquez Tr. 81:19-82:4. Male inmates in a quarantined unit remain housed in double cells, id. at 33:17-23, except that the cellmate of the individual who tested positive is housed alone in his original cell, id. at 34:5-23. If the cellmate is determined to be symptomatic, he is transferred to the isolation unit.
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Ibid. Inmates in a quarantined unit may use the unit’s common area but “will not be moved from the housing unit to other areas of the institution.” King Decl. ¶ 8 n.1. The unit remains under quarantine until 14 days have passed since the last inmate was deemed symptomatic for COVID19 and transferred to isolation. See Jordan Decl. ¶ 49.
Medical staff make twice-daily rounds in the quarantine and isolation units. Vasquez Tr. 38:17-40:10, 78:23-79:6; Vazquez Decl. ¶ 6(c); Beard Report 6; English Report 3. On each round, the medical staff conduct temperature and wellness checks. English Report 3. The MDC did not originally specify particular questions to be asked during the wellness checks. Vasquez Tr. 38:2339:10. By the time Ms. English inspected the facility in May, however, medical staff were asking about “wellness and symptomatic criteria.” English Report 3. If the questioning or temperature check suggests that an inmate may have COVID-19 symptoms, the inmate “will be removed from the cell and escorted to a health services exam room on the floor for further examination.” Ibid.
Petitioners raise a number of objections to the MDC’s procedures for quarantine and isolation units. First, petitioners cite 12 declarations from inmates to question whether the MDC has actually been conducting wellness checks or twice-daily temperature checks in those units. See Suppl. Venters Report ¶ 3(a); Pet’rs’ Proposed Findings of Fact ¶ 18 (citing Bynum Decl.; Dixon Decl.; Ex. 36 (Nelson Decl.); Ex. 37 (Platt Decl.); Pierson Decl.; Sojos-Vallardes Decl.; Hall Decl.; Carpenter Decl.; Miller Decl.; Ex. 48 (Soria Decl.); Deutsch Decl.; Ex. 64 (Lopez Decl.)). But only two out of the 12 declarations appear to have been submitted by inmates who had actually spent time in quarantine or isolation units. See Sojos-Valladares Decl.; Miller Decl. And one of those two declarations complains only about the inmate’s experiences before he entered quarantine. See Sojos-Valladares Decl. Respondent, by contrast, has marshalled first-hand deposition testimony from Ms. Vasquez about wellness and temperature checks that she and other
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staff conduct, see Vasquez Tr. 38:17-40:10, 78:23-79:6, and testimony from Ms. English that her staff reported witnessing temperature and wellness checks in quarantine units, see Hr’g Tr. 213:1216. Unlike the single relevant declaration cited by petitioners, the testimony cited by respondent was provided under oath, and subject to cross-examination. I credit this evidence that wellness and temperature check procedures are being implemented in quarantine and isolation units.
Second, petitioners assert that the current twice-daily medical rounds are insufficient. See Mot. for Prelim. Inj. 2. They contend that medical staff must (i) engage in more detailed questioning during wellness checks, (ii) perform “standardized clinical evaluation[s] at least daily” in the isolation unit, and (iii) evaluate inmates in the isolation unit “in a clinical setting and not cell-side.” Mot. for Prelim. Inj. 2. Petitioners’ preferred procedures go beyond anything the CDC has recommended. Their recommendations do not even appear to be consistent with the ordinary standard of care for COVID-19 patients, who are commonly advised to “isolate and manage” symptoms rather than to seek daily assessments from healthcare providers. Hr’g Tr. 242:5-23 (testimony of Ms. Tekbali). To the extent petitioners believe CDC guidelines require more detailed questioning during wellness checks, see Pet’rs’ Proposed Findings of Fact ¶ 15 (citing CDC Correctional Guidelines 26), that view is mistaken. The list of screening questions petitioners highlight is for individuals entering a correctional facility, being transferred to a correctional facility, or being released from a correctional facility—not for daily rounds. CDC Correctional Guidelines 26; see Ex. 6 (“CDC Correctional Guidelines Slides”) at BOP 96. In any event, the MDC has over time augmented its wellness checks to include inquiries about specific symptoms.
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F. Access to Medical Staff Outside of the Isolation and Quarantine Units In the general population units, MDC officials do not conduct regular wellness screenings or temperature checks, but instead principally rely on inmates to alert prison staff to medical problems. See Hr’g Tr. 523:25-524:23. Inmates have at least two opportunities per day to report medical problems to medical staff—when members of the health team go door-to-door at every cell for the sick call and when they go door-to-door at every cell to distribute medications in the process known as the pill line. See Vasquez Tr. 169:11-24, 182:15-183:20, 202:21-204:13; King Decl. ¶ 18. On these rounds, inmates can report symptoms and seek care by submitting sick-call requests—a system discussed in more detail below. Petitioners fault the MDC’s monitoring of the general population because health staff do not initiate wellness screenings or temperature checks. See Pet’rs Br. 8-9; Pet’rs’ Proposed Findings of Fact ¶ 17. But the MDC’s approach tracks the CDC’s recommendations. The CDC’s guidance on “Management Strategies for Incarcerated/Detained Persons without COVID-19 Symptoms” advises correctional facilities to instruct “healthcare staff [to] perform regular rounds to answer questions about COVID-19” and to implement “daily temperature checks in just a subset of housing units”—those “where COVID-19 cases have been identified.” CDC Correctional Guidelines 22. That is precisely what the MDC does, because MDC staff perform twice-daily temperature checks in quarantined units (i.e., those where COVID-19 cases have been identified). See Vasquez Tr. 38:17-40:10, 78:23-79:6; Vazquez Decl. ¶ 6(c); Beard Report 6; English Report 3. G. The Sick-Call System Petitioners raise more substantial concerns about the MDC’s system for handling sick-call requests once they are made. Evidence at the preliminary injunction hearing suggests that the
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MDC’s sick-call process and the related isolation determinations are falling short when measured against CDC standards because of delays in response times and sparing use of isolation.
By way of background, the MDC’s sick-call system permits inmates to report COVID-19 symptoms and seek medical attention verbally, electronically, or through a paper slip. See Ex. 80 (Resp’t’s Response to Interrogatory 1(f)) 4. Inmates usually submitted electronic requests before the pandemic, but the facility now relies heavily on paper requests because most inmates have only occasional computer access during the lockdown. See English Report 4; Hr’g Tr. 179:18-180:3; Eichenholtz Decl., Ex. A 28 (Dkt. #89-1). Inmates can obtain paper sick-call slips from medical staff when they make rounds each day. Vasquez Tr. 48:18-49:2; 186:19-187:7; see King Decl. ¶ 18. Medical staff then pick up the sick-call slips and triage requests as emergent or non-emergent “at the cell door,” Hr’g Tr. 180:10-13; see Vasquez Tr. 54:10-19, 186:19-187:7, 194:13-21; English Report 3-4, although the cell-door triage system was not fully implemented at the beginning of the pandemic, Hr’g Tr. 180:4-15 (testimony from Ms. English noting that before her inspection, correctional staff sometimes collected the sick-call slips instead of leaving them for medical staff, which delayed triage by a few hours). Requests classified as “emergent” are to be addressed that same day, and non-emergent requests are to be entered into a scheduling system for follow-up at a later date. See Vasquez Tr. 54:10-19, 186:21-187:7, 188:13-23, 194:16-21. The MDC has added temporary medical staff to assist with the sick-call system during the pandemic. Vasquez Tr. 194:17-20; Hr’g Tr. 520:10-13.
The evidence at the preliminary injunction hearing indicates that the speed of the MDC’s response to sick-call requests and its use of isolation in response to sick-call requests reporting COVID-19 symptoms both currently fall short of the standards in CDC guidelines. With respect to speed, CDC guidance specifies that inmates experiencing COVID-19 symptoms should be
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evaluated expeditiously—“at the first sign of symptoms.” CDC Correctional Guidelines Slides at BOP 108; see CDC Correctional Guidelines 23. Doing so enables inmates to receive treatment quickly, when treatment is warranted. See CDC Correctional Guidelines 23. And it ensures that inmates who are experiencing COVID-19 symptoms can “be immediately placed under medical isolation,” “[a]s soon as” they develop COVID-19 symptoms. CDC Correctional Guidelines 15; see CDC Correctional Guidelines Slides at BOP 100-01 (recommending isolating “[s]ymptomatic people . . . [i]mmediately once symptoms appear”).
Evidence at the hearing indicates that the MDC is not currently meeting that standard because medical staff may take days or sometimes even weeks to respond to some sick-call requests reporting possible COVID-19 symptoms. Petitioners’ expert concluded based on his interviews of detainees that responses to sick-call requests typically took “between 3-7 days.” Venters Report ¶ 23. And Ms. Vasquez acknowledged that MDC medical staff would likely treat at least one COVID-19 symptom—loss of sense of taste—as non-emergent. Vasquez Tr. 196:310. She stated that the average response time to a non-emergent request is two and a half weeks. Id. at 195:2-8.
Further, multiple inmates submitted declarations stating that they reported symptoms that could be consistent with COVID-19 but did not receive timely responses from medical staff. See, e.g., Sojos-Valladares Decl. ¶ 5; Rodriguez Decl. ¶ 7; Ex. 81 (“Gonzalez Decl.”) ¶ 3; Ex. 66 (“Chunn Decl.”) ¶ 21; Ex. 33 (“Needham Decl.”) ¶¶ 19-27; Powell Decl. ¶¶ 11-12; Miller Decl. ¶ 8, Ex. 54 (“Singer Decl.”) ¶ 12; Ex. 65 (“Hair Decl.”) ¶¶ 12-13; Ex. 46 (“Wilson Decl.”) ¶ 10. Several inmates reported delays even when they described symptoms such as trouble breathing. See, e.g., Rodriguez Decl. ¶ 7; Ex. 88 (“Pet’rs Sick-Call Exhibit”) at BOP_SCR 478, BOP_SCR 679. That is of particular concern because the CDC has designated trouble breathing to be an
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“emergency warning sign[ ]” for COVID-19. CDC List of Symptoms of Coronavirus. Indeed, Health Services Administrator Vasquez acknowledged that symptom to be emergent. Vasquez Tr. 195:9-16.
Moreover, some inmates’ accounts of the medical encounters that occurred after they reported COVID-19 symptoms raise questions about whether MDC medical staff are uniformly performing appropriate screening for COVID-19 when they do respond to sick-call requests reporting possible symptoms. In particular, one inmate who reported experiencing symptoms consistent with COVID-19 stated that despite repeated requests for care, he went at least two weeks without receiving more than a temperature check from a nurse, who told him he could not “get tested or see a doctor” because he “did not have a fever and had not fainted.” Bynum Decl. ¶ 8. Another inmate stated that he experienced shortness of breath and chest tightness and was told via electronic response that he should buy allergy medicine from the commissary. Deutsch Decl. ¶¶ 17-19. And a third inmate reported that a physician’s assistant told her that there was no point to testing her when she had already experienced symptoms for several weeks and that it would create panic in her unit if she tested positive. Needham Decl. ¶¶ 19-27. To be sure, the general course of treatment for many COVID-19 cases is simply to monitor and manage symptoms—there are “virtually no clinical interventions for patients who present with mild symptoms.” Tekbali Report 2; see Hr’g Tr. 241:22-242:23. And it is hard to fully assess these accounts because the record before me does not include medical records and because the declarants did not provide live testimony and were not subject to questioning. It is also not possible to gauge the extent to which these complaints reflect a widespread problem. But these accounts suggesting that several inmates reporting COVID-19 symptoms may have had only a cursory medical encounter, after which they were neither tested nor placed in isolation, reinforce concerns about whether the MDC is
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appropriately responding to sick-call requests describing potential COVID-19 symptoms and then quickly isolating possible cases based on informed clinical judgment.
Sick-call requests themselves provide additional evidence of delayed responses. Petitioners entered into evidence anonymized versions of electronic sick-call requests submitted between March 13 and early May, as well as certain paper sick-call requests from that period. See Pet’rs Sick-Call Exhibit; see also Attachment to Third Suppl. Decl. of Health Services Administrator Stacey Vasquez (“Suppl. Paper Sick Calls”) (see Dkt. #97-2) (additional paper sickcall requests from this time period submitted by respondent). Dr. Venters determined after reviewing a subset of sick-call requests supplied to him by petitioners’ counsel that at least 37 inmates had submitted requests reporting COVID-19 symptoms in which the inmate “expressly identified their concerns as a repeat.” Venters Report ¶ 25. Some of those requests may come from inmates who were seen by medical staff but then filed an additional slip to request further attention. See, e.g., Pet’rs Sick-Call Exhibit at BOP_SCR 822. But the dozens of submissions that appear to be repeat requests corroborate the inmate declarations that reports of symptoms of COVID-19 did not receive timely responses. In sum, taking together Ms. Vasquez’s deposition testimony, the declarations submitted by inmates, and the evidence from the sick-call requests themselves, the MDC appears to be falling short of the CDC’s guidance that correctional facilities should evaluate inmates reporting COVID-19 symptoms quickly, so that potential COVID-19 cases can be isolated immediately and receive swift medical treatment if needed.
The sick-call data also suggests that the MDC is not using isolation as fully as recommended under the CDC guidelines, which call for inmates with COVID-19 symptoms to “be immediately placed under medical isolation.” CDC Correctional Guidelines 15; see CDC Correctional Guidelines Slides at BOP 100-01. The sick-call requests reflect that between March
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13 and early May, roughly 150 to 200 inmates submitted sick-call requests containing symptoms or combinations of symptoms that CDC guidance identifies as possible signs of COVID-19, and roughly 120 to 150 of these had been submitted by April 27. See Pet’rs Sick-Call Exhibit; Suppl. Paper Sick Calls.3 Moreover, I have drawn the inference that an unknown additional number of paper sick-call requests from April 1 to April 23 also contained reports of COVID-19 symptoms. Yet as of April 27, the MDC had only transferred 19 inmates to medical isolation. See Ex. 80 (Resp’t’s Response to Interrogatory 1(c)) 3. The substantial number of sick-call requests reporting COVID-19 symptoms and the small number of inmates placed in isolation are hard to square with the CDC’s guidance that “[i]f an individual has symptoms of COVID-19” such as “fever, cough, [or] shortness of breath,” medical staff should “[p]lace the individual under medical isolation.” CDC Correctional Guidelines 10; see id. at 15; CDC Correctional Guidelines Slides at BOP 10001.
Respondent replies that it would not be reasonable to isolate every inmate who reports a symptom consistent with COVID-19. See Hr’g Tr. 522:19-523:15. After all, many symptoms of COVID-19 are also common symptoms of other ailments, such as sore throat, cough, and headaches. CDC List of Symptoms of Coronavirus. Respondent therefore contends that CDC guidelines are best understood to allow medical staff some discretion regarding whether isolation is warranted. Hr’g Tr. 528:21-529:3. And he notes that petitioners’ expert appeared to agree that a single symptom consistent with COVID-19 would not necessarily warrant isolation. See id. at
3 The exact number of requestsis difficult to calculate, in part because the CDC has updated its list of possible symptoms of COVID-19 over the course of the pandemic. Compare CDC List of Symptoms of Coronavirus, with Symptoms of Coronavirus, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html (last visited June 8, 2020); see also CDC Correctional Guidelines 10.
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155:4-16 (testimony of Dr. Venters that he “would anticipate that most patients who go into an Isolation Unit for COVID-19 would have multiple signs or symptoms”).
But the MDC’s approach does not appear consistent with CDC guidelines even accepting, as I do, that the guidelines are properly understood to allow healthcare providers to exercise clinical discretion in deciding whether to isolate particular inmates. The sick-call data suggests that, for the period from March 13 to early May, the MDC was neither isolating nor testing more than 80 percent of inmates who report symptoms of COVID-19. In other words, in the main, the MDC appears not to be isolating individuals who report COVID-19 symptoms. That seems to be in tension with the CDC’s guidance that those reporting symptoms should be isolated, even if the CDC guidelines are understood to allow discretion in individual cases. The conclusion that MDC staff are not fully utilizing isolation as called for under the CDC guidelines is compounded by several declarations that indicate that the MDC has failed to isolate at least some inmates who exhibited many symptoms of COVID-19 over an extended period. For instance, Victor SojosValladares was not isolated until about a week after he started feeling sick and only after he refused three consecutive meals, seemingly because he did not immediately present with a fever. See Sojos-Valladares Decl. ¶ 5. Similarly, Justin Rodriguez reports “suffering in [his] cell for about two weeks” with multiple COVID-19 symptoms, without being transferred to isolation, because he did not have a temperature. Rodriguez Decl. ¶ 7. A blood test after Mr. Rodriguez was released several weeks later showed he had COVID-19 antibodies. See id. ¶¶ 15-17; Ex. 71. Respondent’s unelaborated explanation that MDC medical staff are making “clinical decisions” about isolation, Resp’t Opp’n Br. 13, does not sufficiently rebut the evidence that the MDC is underutilizing isolation relative to the CDC’s expectations.
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H. Sick-Call Record-Keeping and Tracking Petitioners argue that MDC officials have been deficient in their handling of sick-call requests themselves, contending that officials have failed to preserve records of such requests and that officials have also been deficient because they have not used sick-call data to create an MDCwide symptom dashboard. With respect to preservation, petitioners fault MDC officials for failing to retain paper sickcall requests and then scan them into inmates’ medical records before April 24, 2020. See Hr’g Tr. 14:8-17; Venters Report ¶¶ 28-31. Dr. Venters argued that if the paper requests are discarded, “the health service does not know how many requests were made, and how many responded to,” and providers cannot determine “whether the assessment and care provided was appropriate to the patient’s original concerns.” Venters Report ¶ 29. Respondent does not appear to dispute that some record of the medical complaint raised in a paper request should be maintained for the quality-control purposes that Dr. Venters describes. Instead, respondent argues that the substance of each medical complaint should be recorded in staff comments in the BOP’s electronic scheduling system, in patient medical records, or in both. See Resp’t’s Mem. Opp’n to Pet’rs’ Mots. in Lim. 3; Hr’g Tr. 9:21-23, 11:9-12:3, 519:2-9. Respondent is also now retaining the paper sick-call documents. See Hr’g Tr. 451:10-16. Contrary to respondent’s arguments, it does not appear that the substance of the medical complaints in paper sick-call requests was uniformly preserved in the weeks between April 1, when the facility began relying heavily on paper sick-call requests, and April 24, when respondent began retaining paper sick-call requests. Id. at 451:10-16. When Dr. Venters reviewed one set of medical records that included a sick-call encounter note, Dr. Venters found that there was “no way of knowing” from the patient’s medical record whether the record contained the substance of the
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inmate’s original request, and that therefore he could not determine “if the thing that the patient was worried about was addressed or even acknowledged.” Id. at 140:13-141:23. And while respondent has now produced an activities report reflecting that staff sometimes recorded the nature of an inmate’s complaint in the MDC’s electronic scheduling system, see Activities Report, that report itself suggests that medical staff did not uniformly record inmate complaints. For instance, the comment on one inmate’s scheduler entry simply reads “several medical issues”; the comment field on several other entries is left blank. See, e.g., Activities Report 2, 32.4 Thus, I credit petitioners’ assertion that not all of the sick-call data has been preserved.
Petitioners also fault the MDC for failing to use data from its sick-call requests to create a “facility wide symptom tracking dashboard,” Mot. for Prelim. Inj. 2-3, but they have not demonstrated that this particular method of record-keeping is required under CDC or other guidance. Petitioners argue, more specifically, that a “symptom tracking dashboard” would enable staff to “track the overall incidence of various symptoms by date and location” within the facility. Venters Report ¶ 37; see Hr’g Tr. 80:17-81:13, 479:7-481:12. Respondent does not dispute that the MDC lacks such a centralized tracking system; instead, the facility maintains information about clinical encounters with inmates in their individual medical files. Hr’g Tr. 539:13-17; see Ex. 80 (Resp’t’s Response to Interrogatory 1(f)) 4. A tracking system of the type petitioners recommend might well assist MDC staff in identifying clusters of symptoms consistent with COVID-19 within the facility. That data, in turn, could inform MDC staff in deciding which sick-call requests to prioritize, when to perform testing once the facility has greater capacity to conduct tests, and when
4 Petitioners object to the inclusion in the preliminary injunction record of the activities report and a related declaration from BOP National Health Technology Administrator Scott A. Griffith because respondent did not file these documents until after the evidentiary hearing. Petitioners principally argue that the documents are “late” and therefore “prejudicial” to petitioners, and they raise several concerns about the reliability of the documents. See generally Pet’rs’ Ltr. in Opp’n to Resp’t’s Request 1 (Dkt. #102); see Griffith Decl. I do not find that including these documents in the record is prejudicial to petitioners, given that I have relied on them for the limited purpose of establishing that the activities report does not appear to uniformly preserve inmate complaints.
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isolation is warranted. Nevertheless, the CDC’s detailed 26-page guidance on COVID-19 for correctional facilities does not call for officials to use this particular record-keeping or tracking method. Nor does guidance from any other expert body on medical care or correctional facilities that petitioners have identified. And while petitioners’ expert, Dr. Venters, opined that such a dashboard was “essential” and described his own use of that approach in monitoring infectious disease outbreaks at Rikers Island, see Venters Report ¶¶ 37-39; Hr’g Tr. 64:22-65:13, his testimony did not establish that the tracking method he recommends is standard practice among other institutions. On this record, the tracking system that Dr. Venters recommends appears to be one means by which the MDC could meet its broader goal of implementing effective quarantine and isolation procedures, but it is not apparent that the MDC is violating any applicable standard of care because it has not adopted such a system.
I. Emergency Call Buttons and Translation Services Petitioners raise several facility-wide concerns relating to inmates’ ability to communicate medical concerns to staff, but petitioners have not demonstrated that the MDC’s care is deficient in these areas. First, petitioners allege that inmates’ ability to communicate medical problems to medical staff is unacceptably impaired because while the MDC has emergency call buttons in inmates’ cells, it is undisputed that some of the emergency call buttons do not work. See Pet’rs Br. 15; King Tr. 103:3-13. Respondent has explained that the MDC requested funding to repair these buttons earlier this year but that the funding was denied. King Tr. 103:5-13. And Ms. English testified that many BOP facilities do not have any “duress buttons.” Hr’g Tr. 187:19-25. I cannot conclude the MDC is violating any standard of care because it has not yet performed repairs to buttons that many other federal facilities do not have at all, where the record indicates that inmates can report
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medical concerns through other channels. As noted above, the MDC provides that opportunity through regular medical rounds. See, e.g., Vasquez Tr. 169:11-24, 182:21-184:21, 202:21-204:14; King Decl. ¶ 18; cf. Mot. for Prelim. Inj. at 3 (arguing that until buttons are repaired, MDC staff should “conduct frequent medical rounds in those units where there are malfunctioning call buttons”). Correctional staff also perform rounds every 30 minutes, providing another avenue for reporting medical emergencies. Vasquez Tr. 75:5-9, 187:8-15, 200:23-201:4.
Second, petitioners suggest that the MDC provides inadequate access to Spanish-language interpretation. Mot. for Prelim. Inj. at 3. But Ms. English’s inspection report indicates that the MDC has a Spanish-speaking medical staff member at the facility seven days a week. English Report 9; see Vasquez Decl. ¶ 6(o). Health Services Administrator Vasquez further explained that the facility uses an interpretation service called Language Line if there are no interpreters available to speak with a particular inmate. See Vasquez Tr. 174:19-175:8; Vasquez Decl. ¶ 6(o). While petitioners invoke Dr. Venters’ statement that he spoke with “more than one” Spanish-speaking inmate who reported having difficulty communicating his concerns “based on a language barrier,” Hr’g Tr. 108:9-14; see Venters Report ¶¶ 58-59, petitioners have not established that the accounts of Ms. English and Ms. Vasquez are incorrect, or that the translation services prison officials have described violate any standard of care.
J. Inmates at an Elevated Risk from COVID-19 The MDC is tracking inmates who would face greater health risks if they contracted COVID-19, but it has not sought to protect those inmates using procedures different from those applicable to the rest of the inmate population. At the beginning of the pandemic, the MDC’s Health Services Department reviewed inmate medical records to determine which individuals at the MDC could be considered “high risk” under CDC guidelines due to age or a preexisting
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medical condition. Jordan Decl. ¶¶ 33-34. The MDC then created a list of those inmates. Vasquez Tr. 204:15-205:3. The list originally contained 537 people. Id. at 205:4-6. As of April 27, 2020, the list had shrunk to approximately 380 inmates because some inmates were released and because the CDC delisted some medical conditions as risk factors. Id. at 205:4-20. MDC officials monitor the high-risk list on a dashboard. Hr’g Tr. 215:19-216:2; English Report 3. They also update the list periodically. King Decl. ¶ 25. Beyond maintaining and monitoring the high-risk list, the MDC does not take specific measures within the facility to protect high-risk inmates. Vasquez Tr. 207:16-209:12.
Petitioners fault MDC officials for failing to treat high-risk inmates differently from other inmates in three respects, but the MDC’s approach comports with CDC guidance in those areas. Petitioners first contend that the MDC should house all high-risk inmates in single-person cells. Hr’g Tr. 119:20-120:12. But petitioners have not rebutted the testimony of Health Services Administrator Vasquez that staffing and space constraints prevent the facility from single-celling nearly 400 high-risk inmates—about a quarter of the facility’s population. Vasquez Decl. ¶ 6(f). Nor have petitioners shown that isolation reflects the accepted standard of care for high-risk individuals during the COVID-19 pandemic. The CDC’s detailed guidelines call for isolation of certain inmates—those with COVID-19 symptoms—but conspicuously do not recommend this measure for high-risk inmates. See generally CDC Correctional Guidelines.
Petitioners next argue that the MDC should create a cohort of high-risk inmates, who would be grouped together in the same housing unit or units. See Mot. for Prelim. Inj. 3. They contend that this strategy would make it easier for medical staff to provide more intensive medical supervision. See Hr’g Tr. 486:17-487:11; see also Suppl. Venters Report ¶ 14. But while the CDC recommends cohorting confirmed COVID-19 cases if isolation is not possible, the CDC has not
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recommended cohorting high-risk inmates. See CDC Correctional Guidelines 16. Instead, the CDC merely recommends what the MDC is already doing—being “especially mindful of those who are at higher risk of severe illness from COVID-19,” and “ideally” avoiding cohorting highrisk inmates with “other infected individuals.” Ibid. Moreover, petitioners have not rebutted respondent’s justifications for declining to cohort. Health Services Administrator Vasquez has testified that the MDC does not have enough open space to move the hundreds of high-risk inmates into dedicated units. Vasquez Decl. ¶ 6(f); Vasquez Tr. 209:3-18. And grouping high-risk inmates into a cohort based on their elevated risk from COVID-19 would present security complications, because the MDC has safety-related reasons to keep apart many inmates who might share similar COVID risk profiles, such as gang members. See Hr’g Tr. 346:10-347:23 (testimony of Dr. Beard); Beard Report 9-10. Finally, shuffling inmates into new cohorts in the midst of a pandemic could spread the virus. As Dr. Beard observed, “[i]f MDC-Brooklyn were to move everyone around so that it could cohort the high risk, there is a chance that you could spread the disease throughout the facility during these wide-spread transfers.” Beard Report 10.
Petitioners next contend that the MDC’s care for high-risk inmates is deficient because the MDC is not conducting twice-daily temperature checks of those inmates. See Mot. for Prelim. Inj. 2. But again, CDC guidelines do not suggest that this particular method of monitoring is necessary—despite the fact that they do recommend temperature checks in numerous other contexts, such as upon entry to the facility and for quarantined individuals. See, e.g., CDC Correctional Guidelines 3, 21. As noted above, the CDC instead encourages correctional facilities to be mindful of high-risk inmates and to keep high-risk inmates separated from infected inmates. Id. at 16. Moreover, while MDC medical staff do not perform daily temperature checks in the general population units, they perform them twice daily in the quarantine and isolation units, and
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they conduct twice-daily rounds in the general population units, giving inmates regular access to medical staff. English Report 3; Vasquez Tr. 38:17-40:10, 78:23-79:9; Vazquez Decl. ¶ 6(a), (c). Particularly given these alternative measures, petitioners have not demonstrated that the MDC’s failure to monitor high-risk inmates in precisely the manner they seek violates any standard of care.
DISCUSSION I. Preliminary Injunction Standard
A preliminary injunction is an “extraordinary and drastic remedy.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (citation omitted). Such injunctions are “never awarded as of right.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 24 (2008). To obtain such an injunction, as a general matter, a litigant must establish (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in the party’s favor, and (4) that an injunction is in the public interest. Am. Civil Liberties Union v. Clapper, 804 F.3d 617, 622 (2d Cir. 2015) (citing Winter, 555 U.S. at 20); see Metro. Life Ins. Co. v. Bucsek, 919 F.3d 184, 188 n.2 (2d Cir. 2019) (citing Winter, 555 U.S. at 20).
An even stronger showing on the merits is generally needed when a litigant seeks a “mandatory” injunction that will alter the status quo by commanding some positive act. D.D. ex rel. V.D. v. New York City Bd. of Educ., 465 F.3d 503, 510 (2d Cir. 2006); see North American Soccer League, LLC v. United States Soccer Fed’n, Inc., 883 F.3d 32, 36-37 (2d Cir. 2018). In such cases, the movant must demonstrate a “clear or substantial likelihood of success on merits.” North American Soccer League, 883 F.3d at 37 (citations omitted); see New York Progress & Prot.
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PAC v. Wash, 733 F.3d 483, 486 (2d Cir. 2013).5 Petitioners must make that heightened showing on the merits here, because they seek an injunction that would “alter[] the status quo by commanding” numerous “positive act[s].” D.D. ex rel. V.D., 465 F.3d at 510. They seek an injunction that would require respondent to release all medically vulnerable persons from the MDC and to make major changes at the detention center. For instance, respondent would be ordered to reorganize housing units, change the handling of medical requests, and even modify inmates’ shower schedules. Mot. for Prelim. Inj. 2-4. Petitioners must therefore show “a clear or substantial likelihood of success on the merits.” DD ex rel. V.D., 465 F.3d at 510. As explained below, I conclude that petitioners have not made the requisite showing on the merits, and therefore do not consider whether petitioners have met the additional requirements for a preliminary injunction. II. Likelihood of Success on the Merits
Prison conditions can constitute “cruel and unusual punishment” if prison officials act (or fail to act) with “deliberate indifference to a substantial risk of serious harm to a prisoner.” Farmer, 511 U.S. at 836. A constitutional violation under these principles has both objective and subjective components. First, a prisoner must be incarcerated under conditions that, objectively, pose “a substantial risk of serious harm.” Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 620 (2d Cir. 1996) (citing Farmer, 511 U.S. at 834). Second, because “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment,” a prison official must possess “a ‘sufficiently culpable state of mind,’” which “[i]n prison-conditions cases . . . is one of ‘deliberate indifference’ to inmate health or safety.” Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 297
5 Some Second Circuit decisions—albeit not especially recent ones—have stated that a movant may be able to obtain a mandatory injunction without needing to make the heightened showing of a clear likelihood of success on the merits “where extreme or very serious damage will result from a denial of preliminary relief.” Tom Doherty Assocs., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 34 (2d Cir. 1995). Petitioners have not invoked that standard or argued that they satisfy it.
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(1991)). On the record before me at the preliminary injunction stage, petitioners have not demonstrated a clear likelihood of success on their claim that the MDC’s response to COVID-19 reflects deliberate indifference to a substantial risk of serious harm.
A. Objective Element Petitioners have not shown a clear likelihood of success in demonstrating that they face “a substantial risk of serious harm” from conditions at the MDC, Lewis v. Siwicki, 944 F.3d 427, 43031 (2d Cir. 2019) (quoting Farmer, 511 U.S. at 834), given the measures that prison officials have instituted to address COVID-19 and the best available evidence regarding those measures’ results. There is no “bright line test” to determine if a risk of serious harm is “substantial” for Eighth Amendment purposes. Id. at 432. Rather, a court must “assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling v. McKinney, 509 U.S. 25, 36 (1993) (emphasis in original); see Darnell v. Pineiro, 849 F.3d 17, 30 (2d Cir. 2017); Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002). “In other words,” the Supreme Court has written, “the prisoner must show that the risk of which he complains is not one that today’s society chooses to tolerate.” Helling, 509 U.S. at 36. The Supreme Court has made clear that whether a particular danger poses a substantial risk of serious harm in a prison must be evaluated in light of the steps that the facility has already taken to mitigate the danger. See id, 509 U.S. at 35-36. For instance, when addressing a prisoner’s Eighth Amendment challenge to environmental tobacco smoke exposure in Helling, the Court held that a lower court must consider the prison’s new “formal smoking policy” and the recent changes to the prisoner’s confinement circumstances in assessing whether conditions at the prison presented a substantial risk to the plaintiff’s health. Id. at 36. The Court described it as “[p]lainly
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relevant” to “the objective factor” that the plaintiff had been moved to a new prison and was “no longer the cellmate of a five-pack-a-day smoker.” Id. at 35. The Court also stated that “[i]t is possible that the new [formal smoking] policy will be administered in a way that will minimize the risk to [the plaintiff] and make it impossible for him to prove that he will be exposed to unreasonable risk with respect to his future health or that he is now entitled to an injunction.” Id. at 36. Thus, determining whether prison conditions pose a substantial risk of serious harm from COVID-19, or any other risk, must be determined “after accounting for the protective measures [the prison system] has taken.” Valentine v. Collier, 956 F.3d 797, 801 (5th Cir. 2020).
Under these principles, there is no question that an inmate can face a substantial risk of serious harm in prison from COVID-19 if a prison does not take adequate measures to counter the spread of the virus. Courts have long recognized that conditions posing an elevated chance of exposure to an infectious disease can pose a substantial risk of serious harm. Thus, the Supreme Court has rejected the proposition that prison officials may “be deliberately indifferent to the exposure of inmates to a serious, communicable disease.” Helling, 509 U.S. at 33. And the Second Circuit has explained that “correctional officials have an affirmative obligation to protect inmates from infectious disease.” Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996); see Phelps, 308 F.3d at 185 (noting that the Eighth Amendment reaches conditions that present an “unreasonable risk of serious damage to [prisoners’] future health”). Consistent with that principle, a number of courts have found substantial risk in particular facilities from COVID-19. See, e.g., Martinez-Brooks v. Easter, No. 3:20-cv-00569 (MPS), 2020 WL 2405350, at *31 (D. Conn. May 12, 2020); Mays v. Dart, __ F. Supp. 3d __, 2020 WL 1812381, at *8 (N.D. Ill. Apr. 9, 2020); Banks v. Booth, No. 20-849, 2020 WL 1914896, at *6-7 (D.D.C. Apr. 19, 2020); Swain v. Junior, __ F. Supp. 3d __,
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2020 WL 2078580, at *16 (S.D. Fla. Apr. 29, 2020), stayed on appeal by 958 F.3d 1081 (11th Cir. 2020).
As noted above, however, the relevant inquiry is whether petitioners have shown a substantial risk of serious harm from COVID-19 at the MDC in light of the countermeasures that the facility has in place. The preliminary injunction record leaves substantial reason to doubt petitioners will ultimately succeed in making that showing. The MDC’s response to COVID-19 has been aggressive and has included, among other steps, massively restricting movement within the facility, enhancing sanitation protocols, and creating quarantine and isolation units. And the data—though limited—suggests that these measures have been quite effective in containing COVID-19 thus far. Not a single MDC inmate has died from COVID-19. And just one inmate has been hospitalized for a COVID-19 related illness, even though the MDC’s population has a relatively high rate of comorbidities and the surrounding community has been at the epicenter of the pandemic for months. A plaintiff can certainly raise a claim under the Eighth Amendment based on risks that have not manifested themselves in any adverse health outcome. See Helling, 509 U.S. at 33. But given that COVID-19 can lead to adverse health consequences quickly, and that the MDC has seen no deaths and just one hospitalization so far, it is hard to conclude that inmates are at an elevated risk of contracting COVID-19 inside the MDC relative to the risk they would face in the surrounding community. That raises serious questions about whether petitioners can satisfy the objective prong of the Eighth Amendment test. It is hard to say that prisoners are exposed to a risk that “is not one that today’s society chooses to tolerate,” or a risk “so grave that it violates contemporary standards of decency,” id. at 36, if the risk inside the facility is no greater than—and perhaps less than—the risk outside of it.
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A comparison to a number of cases in which district courts have found a substantial risk of serious harm for Eighth Amendment purposes illustrates the point. The courts in those cases have commonly relied on evidence of elevated COVID-19 risks compared to the outside community. In Mays, for example, the court relied on statistical evidence that the jail “currently has the highest rate of new coronavirus infections in the country,” and it determined that the plaintiffs had “demonstrated that certain of the conditions created by the intentional actions of the Sheriff enable the spread of coronavirus and significantly heighten detainees’ risk of contracting the virus.” 2020 WL 1812381, at *8. In Banks, the court found that the plaintiffs were likely to prevail only after concluding that the defendants’ argument “that Plaintiffs’ risk of infection is the same as that of the outside community” was undercut by undisputed data showing that “the infection rate in [Department of Corrections] facilities was over seven times the infection rate of the District of Columbia at large.” 2020 WL 1914896, at *6. In Martinez-Brooks, the court relied on the fact that it was “undisputed that there is an active and serious outbreak of COVID-19” at the facility in question, 2020 WL 2405350 at *20, which the Attorney General had identified “as one of three experiencing significant outbreaks” across the entire BOP system of more than 100 facilities, id. at *11. And in Swain, the district court similarly relied on evidence of high infection rates, concluding that the “[d]efendants’ contention that the actions they have taken to date are sufficient is belied by the exponential rate of infection since this case commenced.” 2020 WL 2078580, at *16. This case is quite different, at least at this stage of the litigation, because petitioners have not made a comparable showing that those within the facility face a higher risk of infection than those outside of it. Under those circumstances and on this preliminary injunction record, I conclude that petitioners have not demonstrated a clear likelihood of success in establishing that they face a risk so grave that it violates contemporary standards of decency, given the MDC’s existing precautions.
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B. Subjective Element Petitioners have also not shown a clear likelihood that they will succeed in establishing the subjective component of an Eighth Amendment violation—that MDC officials have exhibited “‘deliberate indifference’ to inmate health or safety,” Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 302-03), in their response to COVID-19. Because the Eighth Amendment prohibits only cruel and unusual “punishments,” a prisoner who seeks to establish an Eighth Amendment violation based on conditions of confinement must demonstrate that officials’ conduct reflects “the deliberate infliction of punishment,” and not just “an ordinary lack of due care for prisoner interests or safety.” Fiacco, 942 F.3d at 150; see Farmer, 511 U.S. at 834-35. While officials need not engage in “acts or omissions for the very purpose of causing harm or with knowledge that harm will result,” they must at least “know[] of and disregard[] an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 835, 837; see, e.g., Morgan v. Dzurenda, 956 F.3d 84, 89 (2d Cir. 2020); Cuoco v. Moritsugu, 222 F.3d 99, 106-07 (2d Cir. 2000); Hathaway v. Coughlin, 99 F.3d 550, 553 (1996). In other words, they must act with a mens rea “consistent with recklessness in the criminal law.” Farmer, 511 U.S. at 837. Under this standard, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference.” Id. at 835; see, e.g., Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006). “[A]n official’s failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot . . . be condemned as the infliction of punishment.” Farmer, 511 U.S. at 838. “Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence.” Id. at 842.
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1. The MDC’s Aggressive Actions to Combat COVID-19 Belie Claims of Deliberate Indifference
Under these principles, even if I determined that petitioners had made the required objective showing of substantial risk from COVID-19 under current conditions at the MDC, I would nevertheless conclude that petitioners had not demonstrated a clear likelihood that MDC officials have displayed “deliberate indifference” to the risks of COVID-19 at the facility. The evidence shows that MDC officials have been acting urgently to prevent COVID-19 from spreading and from causing harm. They have imposed dozens of measures, such as (i) enhancing intake screening procedures for all inmates and staff, (ii) providing soap and other cleaning products to inmates at no cost, (iii) increasing cleaning of common areas and shared items, (iv) isolating symptomatic inmates, (v) broadly distributing and using PPE to prevent transmission of the virus, and (vi) modifying operations throughout the facility to facilitate social distancing to the greatest extent possible and abate the risk of spread. Taken together, these and other measures indicate that prison officials are “trying, very hard, to protect inmates against the virus and to treat those who have contracted it,” and belie any suggestion that prison officials “have turned the kind of blind eye and deaf ear to a known problem that would indicate” deliberate indifference. Money v. Pritzker, No. 20-cv-2093, 2020 WL 1820660, at *18 (N.D. Ill. Apr. 10, 2020); see Swain v. Junior, 958 F.3d 1081, 1090 (11th Cir. 2020) (“Accepting, as the district court did, that the defendants adopted extensive safety measures such as increasing screening, providing protective equipment, adopting social distancing when possible, quarantining symptomatic inmates, and enhancing cleaning procedures, the defendants’ actions likely do not amount to deliberate indifference.”). As Judge Engelmayer put it in discussing an inmate’s COVID-19-based challenge to conditions of confinement at the MDC at the start of the pandemic, the “numerous and significant plans and protocols recently implemented by the BOP to protect prisoners” at the MDC
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do not support “find[ing] that the BOP has been deliberately indifferent.” United States v. Credidio, No. 19 Cr. 111 (PAE), 2020 WL 1644010, at *2 (S.D.N.Y. Apr. 2, 2020).
Petitioners argue for a contrary result because, in their view, the MDC’s policies amount to “aspirational goals” that do not reflect “actual practices.” Reply Mem. Supp. of Pet’rs’ Mot. for Prelim. Inj. (“Pet’rs Reply Br.”) 1 (Dkt. #90). But petitioners do not dispute that the MDC is implementing most of the policies that it has adopted to address the COVID-19 pandemic. And the evidence presented at the preliminary injunction hearing contradicts petitioners’ arguments, id. at 7-8, that the MDC’s policies regarding PPE, sanitation, hygiene, and inmate entry screenings are mere aspirations. The MDC conducts entry screenings for inmates in accordance with its policies. See pp. 17-18, supra. And inspections showed that at minimum, by late April, the facility’s policies on PPE, sanitation, and hygiene were being implemented as well. See pp. 2131, supra. While out-of-court declarations raise the possibility that some inmates did not receive adequate quantities of soap and cleaning supplies in the period shortly after the MDC’s heightened protocols were instituted, the record does not suggest that any such instances reflected deliberate indifference, rather than negligent errors in implementing a new policy under emergency conditions. See Swain, 958 F.3d at 1089 (“[L]apses in enforcement” of social-distancing policies during COVID-19 “do little to establish that the defendants were deliberately indifferent,” absent evidence that prison officials were “ignoring or approving the alleged lapses.”); cf. Trammell v. Keane, 338 F.3d 155, 165 (2d Cir. 2003) (concluding that although “deprivation of toiletries, and especially toilet paper, can rise to the level of unconstitutional conditions of confinement,” the plaintiff failed to establish deliberate indifference when “[i]t appear[ed] . . . that the defendants were negligent in replenishing [the plaintiff’s] supply”); Rangolan v. County of Nassau, 217 F.3d 77, 79 (2d Cir. 2000) (finding no deliberate indifference when “the County took steps to protect”
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a vulnerable inmate “but mistakenly failed to implement them”). The sweeping measures that MDC officials have adopted—which the record reflects are more than “aspirational goals,” Pet’rs Reply Br. 1—counsel strongly against a finding that MDC officials are being deliberately indifferent to risks associated with COVID-19.
2. Petitioners Have Not Shown the MDC’s Failure to Fully Implement Several CDC Recommendations Reflects a Mens Rea More Culpable Than Negligence
Petitioners next contend that even if MDC officials have implemented their policies concerning COVID-19, they have displayed deliberate indifference to the risks of the virus because they have not fully implemented several measures that the CDC recommends. As discussed above, petitioners have adduced evidence that MDC officials are falling short of the CDC’s guidance in several respects: While CDC guidance calls for inmates experiencing possible COVID-19 symptoms to be evaluated “at the first sign of symptoms,” CDC Correctional Guidelines Slides at BOP 108, so that potentially infected inmates can be placed in isolation “immediately once symptoms appear,” id. at BOP 100-01, evidence at the hearing indicates that MDC officials may take days or sometimes even weeks to respond to requests for medical attention that describe such symptoms. See pp. 36-40, supra. And while CDC guidelines call for isolating individuals who have symptoms of COVID-19, see CDC Correctional Guidelines at 10, 15, MDC officials appear to have isolated only a fraction of inmates displaying such symptoms, see pp. 40-42, supra. In addition, while the MDC is conducting daily entry-point screenings of staff, including temperature checks, those entry screenings are somewhat less stringent than those recommended by the CDC. See pp. 18-19, supra.
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. Respondent has not disputed that the CDC protocols should guide the MDC’s
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response to COVID-19. In fact, both of respondent’s experts embraced the CDC standards. See Hr’g Tr. 395:2-19 (Dr. Beard); Tekbali Report 1-7. The MDC’s deficiencies in this area accordingly warrant prison officials’ attention.
To establish an Eighth Amendment violation, however, petitioners must show not only that prison officials have committed errors but also that prison officials made those errors with a mental state equivalent to criminal recklessness, “know[ing] of and disregard[ing] an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. Here, the surrounding circumstances suggest that it is far more likely that MDC officials have made negligent errors in implementing complex guidelines during a novel crisis than that they have knowingly disregarded an excessive risk of serious harm. The MDC’s swift and extensive countermeasures are evidence that MDC officials are taking the threat of COVID-19 seriously, amid “shifting parameters and guidance regarding how to combat a previously little known virus,” Money, 2020 WL 1820660 at *18, rather than consciously turning a blind eye to any known danger.
Moreover, the principal CDC guidance as to which the MDC appears to have fallen short to date—sick-call responses and use of isolation—requires complex implementation. The guidance pertaining to sick-call requests calls for quick responses to scores of medical complaints per month relaying symptoms such as cough, sore throat, and headache that could be consistent with COVID-19. That is a massive undertaking, even for a medical staff that the facility has been augmenting during the crisis. And while the CDC guidelines call for extensive use of isolation, both parties appear to agree that the decision to isolate individual inmates should turn to some extent on the application of clinical judgment by healthcare providers. Shortfalls in the immediate implementation of guidelines this complex and resource-intensive do not suggest knowing disregard of a substantial risk of harm, rather than negligent error.
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Finally, any inference that MDC officials have been knowingly disregarding an excessive risk in their implementation of CDC guidance is undercut by the data about the effectiveness of the MDC’s countermeasures thus far. As noted above, the MDC has had no COVID-connected fatalities and only one COVID-linked hospitalization. Petitioners offer little reason to conclude that prison officials have drawn the inference that inmates currently face a substantial risk of serious harm inside the MDC, in the face of data suggesting that the rate of deaths and hospitalizations may be lower inside the facility than outside of it. See Farmer, 511 U.S. at 837 (deliberate indifference requires that a prison official have drawn the inference that a substantial risk of serious harm exists).
3. Petitioners Have Not Established Deliberate Indifference Based on the Failure to Implement Additional Measures Not Called for Under CDC Guidelines
Petitioners finally contend that MDC officials are being deliberately indifferent because they have failed to adopt several steps recommended by petitioners’ expert, Dr. Venters, but not called for by the CDC’s guidance. Petitioners fall far short of establishing deliberate indifference on those grounds. With respect to at least one of the measures that petitioners seek—cohorting of high-risk inmates—respondent has set forth strong arguments that adopting petitioners’ strategy during a pandemic might well spread the virus. With respect to another—testing of all inmates and staff who possess “more than one sign and/or symptom of COVID-19” or who possess “risk factors for serious illness or death from COVID-19,” Mot. for Prelim. Inj. 3—petitioners have failed to demonstrate that such an approach was practicable in the initial months of the pandemic, given shortages in supply. See Hernandez v. Keane, 341 F.3d 137, 146 (2d Cir. 2003) (finding no deliberate indifference from delays in treatment when they were mostly “caused by factors outside defendants’ control”); Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974) (indicating that
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deliberate indifference will not be found if treatment requested was “impossible under the circumstances” or not “practicable”).
Petitioners also take aim at the MDC’s failure to take additional steps that go beyond CDC guidelines, such as (i) instituting daily temperature screenings of all inmates (not just those in quarantine and isolation), (ii) directing orderlies to clean shared items between every use (rather than having orderlies clean periodically and making supplies available for other inmates to perform additional cleanings), and (iii) evaluating inmates in the isolation unit on a daily basis in a clinical setting (rather than through cell-side wellness checks). As discussed above, the CDC has not called for those practices, and petitioners have not demonstrated that respondent’s failure to adopt those specific approaches falls below any standard of care. I cannot conclude on this record that MDC officials’ failure to adopt those measures exposes inmates to a substantial risk of serious harm or that any MDC officials have drawn the inference that their failure to take such measures creates any such risk. Cf. Valentine, 956 F.3d 802 (finding that plaintiffs were unlikely to establish deliberate indifference when the evidence showed that prison officials were taking measures “informed by guidance from the CDC and medical professionals”).
CONCLUSION Prison officials have a responsibility to protect inmates from substantial risks to their health and safety. See, e.g., Farmer, 511 U.S. at 832, 834. That duty has special urgency during the COVID-19 pandemic. The record from the preliminary injunction hearing reflects that MDC officials recognize their duty to inmates and have taken extensive measures to combat the virus. The record also gives reason for cautious optimism about the effectiveness of those measures thus far—with no COVID-connected fatalities and just a single COVID-related hospitalization at the facility even though the surrounding New York City community has been hard hit. On this record, petitioners have not established a clear or substantial likelihood that prison officials have violated
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the Eighth Amendment through deliberate indifference to substantial risks of serious harm at the MDC. They are therefore not entitled to the extraordinary relief they seek: a preliminary injunction at the outset of this case that would release hundreds of prisoners and subject many aspects of the facility’s operations to judicial control.
Because petitioners have not shown a clear or substantial likelihood that they will prevail on their Eighth Amendment claim, I do not address whether petitioners have satisfied any of the other requirements for obtaining a preliminary injunction. Nor do I address the parties’ arguments regarding the scope of relief available in such an injunction. These include petitioners’ contention that classwide relief should be granted before formal class certification and respondent’s argument that the Prison Litigation Reform Act of 1995, 42 U.S.C. §§ 1997e et seq., would prohibit an individual judge from ordering the release of inmates as a remedy. Petitioners, of course, remain free to develop the record further and to renew their requests for injunctive relief if warranted based on additional facts.
The motion for a preliminary injunction is denied.
SO ORDERED.

Dated: Brooklyn, New York June 9, 2020

/s/ Rachel Kovner RACHEL P. KOVNER United States District Judge

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------X

HASSAN CHUNN; NEHEMIAH McBRIDE; AYMAN RABADI by his Next Friend Migdaliz Quinones; JUSTIN RODRIGUEZ, by his Next Friend Jacklyn Romanoff; ELODIA LOPEZ; and JAMES HAIR,

ORDER 20-cv-1590 (RPK) (RLM)

individually and on behalf of all others similarly situated,
Petitioners,

-against-

WARDEN DEREK EDGE,

Respondent.

-------------------------------------------------------------X

RACHEL P. KOVNER, United States District Judge:

Petitioners seek to publicly file an exhibit from the preliminary injunction hearing in this

case that contains inmate requests for medical attention during the COVID-19 pandemic.

See Pet’rs’ Letter (May 18, 2020) (Dkt. #96). Petitioners introduced those requests into evidence

as Exhibit 88 in support of their motion for a preliminary injunction. Respondent opposes

petitioners’ request, arguing that the exhibit should be kept under seal principally to protect the

privacy of the inmates who made the requests. See Resp’t’s Letter (May 20, 2020) (Dkt. #103).

Intervenor First Look Media Works, Inc., has filed a letter arguing that the exhibit should not be

kept under seal. Intervenor’s Letter (May 19, 2020) (Dkt. #98).

Exhibit 88 consists of 210 electronic and paper requests for medical attention, commonly

referred to as sick-call requests, in which inmates reported symptoms that petitioners identified as

possibly relating to COVID-19. Respondent redacted the inmates’ names and register numbers

before producing the sick-call requests in discovery. See Order (Apr. 14, 2020) 4-5 (Dkt. #43). 1

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Petitioners have agreed to further redact any information about inmates’ housing units before publicly filing the exhibit. See Pet’rs’ Letter 2. I conclude that redacting the inmates’ names, register numbers, and housing units—as well as any information about their arrival and departure dates—will adequately protect the inmates’ privacy interests. Therefore, petitioners may file Exhibit 88 with those redactions.
DISCUSSION A common law presumption of access attaches to “judicial documents”—those documents filed with the court that are “relevant to the performance of the judicial function and useful in the judicial process.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006) (quoting United States v. Amodeo (Amodeo I), 44 F.3d 141, 145 (2d Cir. 1995)); see Brown v. Maxwell, 929 F.3d 41, 49 (2d Cir. 2019). In addition, “the public and the press have a ‘qualified First Amendment right to . . . access certain judicial documents,’” including those that are “derived from or [are] a necessary corollary of the capacity to attend” judicial proceedings as to which there is a First Amendment right of access. Lugosch, 435 F.3d at 120 (quoting Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91, 93 (2d Cir. 2004)). Notwithstanding these presumptions, judicial documents “may be kept under seal if ‘countervailing factors’ in the common law framework or ‘higher values’ in the First Amendment framework so demand.” Id. at 124. Under the common law, these countervailing factors must be balanced against the weight of the presumption of access to a particular document. The weight of the presumption of access, in turn, depends on the “role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts.” Mirlis v. Greer, 952 F.3d 51, 59 (2d Cir. 2020) (quoting United States v. Amodeo (Amodeo II), 71 F.3d 1044, 1049 (2d Cir. 1995)). Further, when the First Amendment presumption
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of access applies, restrictions on public access may only be justified with “specific, on the record findings” that “closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Lugosch, 435 F.3d at 120 (quoting In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987)).
Exhibit 88 is a judicial document entitled to a presumption of access under both the common law and First Amendment. Petitioners submitted Exhibit 88 in support of their motion for a preliminary injunction. Cf. id. at 121-24 (finding that a presumption of access under the common law and the First Amendment attached to documents filed in connection with a summary judgment motion). And Exhibit 88 was relevant to petitioners’ motion. The contents of individual sick-call requests—including the symptoms reported and any indicia of delayed responses—are relevant to whether respondent has an effective sick-call system in place. And whether respondent has an effective sick-call system in place is relevant to petitioners’ argument that MDC officials are violating the Eighth Amendment by disregarding a substantial risk of serious harm to inmates from COVID-19.
Balancing the privacy interests at issue in the sick-call documents against the strong presumption of access under both the common law and the First Amendment frameworks, I conclude that Exhibit 88 can be publicly filed with appropriate redactions. As respondent observes, Resp’t’s Letter 2-3, the inmates who submitted the sick-call requests have strong privacy interests in identifiable medical information, see United States v. Erie Cty., N.Y., 763 F.3d 235, 239-241, 244 n.8 (2d Cir. 2014) (suggesting that it would be “especially appropriate” to redact “medical information identifiable to particular prisoners” before unsealing certain documents); see also Amodeo II, 71 F.3d at 1051 (noting that “illnesses” are among those matters that “weigh more heavily against access”). But those privacy interests can be adequately protected by the redaction
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of inmate names, register numbers, housing units, and arrival and departure dates. It would be difficult, if not impossible, to identify inmates based on anonymized reports of symptoms like headaches and sore throats. And to the extent that a request includes information about a more identifiable condition, anyone who could identify an inmate based on that information alone would necessarily be aware of that inmate’s condition already, which significantly undermines the argument that the request must be sealed to protect privacy interests.
Nor are further restrictions justified by the risk that inmates may be identified by their handwriting or use of another language. See Resp’t’s Letter 2. Most of the sick-call requests in Exhibit 88 are electronic requests, and the few that are handwritten almost exclusively discuss concerns that are relatively common and not especially personal. Moreover, the requests are all in English or Spanish, which undermines any argument that the inmate submitting the request could be identified based on the language used in the request. Fully restricting access to Exhibit 88 is too broad a remedy to protect inmates’ privacy interests because those interests can be protected through the more narrowly tailored method of redacting names, register numbers, housing units, and arrival and departure dates. Accordingly, Exhibit 88 can be filed on the public docket with that identifying information redacted.

SO ORDERED.

Dated:

Brooklyn, New York June 11, 2020

/s/ Rachel Kovner RACHEL P. KOVNER United States District Judge

4