Case 2:20-cv-00630-JRS-MJD Document 1 Filed 11/25/20 Page 1 of 20 PageID #: 1

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

__________________________________________

)

PATRICK R. SMITH and

)

BRANDON S. HOLM, individually and on behalf )

of all others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

WILLIAM P. BARR, in his official capacity as )

the Attorney General of the United States;

)

MICHAEL CARVAJAL, in his official capacity )

as the Director of the Federal Bureau of Prisons; )

and T.J. WATSON, in his official capacity as

)

Complex Warden for the Terre Haute Federal

)

Correctional Complex,

)

)

Defendants.

)

__________________________________________)

Case No. 2:20-cv-630

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs PATRICK R. SMITH and BRANDON S. HOLM (“Plaintiffs”), by their undersigned attorneys, bring this complaint individually and on behalf of all others similarly situated against defendants WILLIAM P. BARR, in his official capacity as the Attorney General of the United States, MICHAEL CARVAJAL, in his official capacity as the Director of the Federal Bureau of Prisons, and T.J. WATSON, in his official capacity as Complex Warden for the Terre Haute Federal Correctional Complex (collectively, “Defendants”), and allege as follows:
INTRODUCTION 1. This is an action for declaratory and injunctive relief to protect Plaintiffs from serious and substantial risks to their health due to Defendants’ plan to open the doors of the Terre Haute Federal Correctional Complex (“FCC Terre Haute”) to scores of outside visitors in connection with upcoming scheduled executions.

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2. The country is besieged by the COVID-19 pandemic. More than 58 million people worldwide have contracted COVID-19, and more than a million people have died.1 In the U.S., more than 12 million people have tested positive for the disease, and roughly 256,000 people have died.2
3. Indiana has not been spared. Almost 290,000 people have tested positive, and more than 5,250 people have died.3 And things are getting worse, not better. With winter approaching, the number of cases in Indiana has been “significantly and steadily increasing” and hospitalizations are “at an all-time high,” prompting Governor Holcomb to issue an Executive Order that imposes stricter measures to “counter the spread” of COVID-19, including “social distancing” requirements and limits on how many people may convene “in a single space.”4
4. Incarcerated individuals have no control over their own health and safety during this crisis. They do not have the option to “socially distance” from others or to limit the number of people in their space. They are at the mercy of those who decide and implement the conditions of their confinement and, of immediate relevance here, the polices regarding who is allowed in the prison and when such visits are permitted.
5. The plaintiffs in this case are incarcerated at FCC Terre Haute. They are struggling to stay safe and healthy during these unprecedented times, and their situation is being made worse by the actions challenged in this lawsuit.
6. The Attorney General of the United States and the Federal Bureau of Prisons plan to carry out executions at FCC Terre Haute on December 8, December 10, and December 11, 2020,

1 See Johns Hopkins University of Medicine, Coronavirus Resource Center, at https://coronavirus.jhu.edu/ (last visited Nov. 22, 2020).
2 Id.
3 See https://coronavirus.jhu.edu/region/us/indiana (last visited Nov. 22, 2020).
4 Executive Order 20-48 at 2, 6, 8-9, at www.in.gov/gov/files/Executive_Order_20-48_ColorCoded_County_Assessments.pdf.

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and on January 14 and January 15, 2021.5 Each execution is expected to result in roughly 200 people, many from across the country, congregating at or near the prison. These individuals will interact with members of the local community at hotels and restaurants before going to the prison, they will interact with each other and prison staff when they enter the prison, and they will congregate in small and confined spaces in the prison as the executions are carried out. Many, if not all, of the FCC Terre Haute staff who interact with these visitors will then return to their regular duties throughout FCC Terre Haute, including interacting with Plaintiffs and others in the prison population.
7. The upcoming execution events are putting the individually named Plaintiffs and all other incarcerated people at FCC Terre Haute at significant risk of serious illness or even death, for no good reason. Prior to 2020, there had been only three federal executions in the United States in the last forty-three years.6 There is no legitimate justification for holding executions now, at the height of the pandemic, and creating in the process a significant risk of serious health complications or death for Plaintiffs and all other people incarcerated at FCC Terre Haute.
8. Plaintiffs bring this lawsuit on their own behalf and on behalf of a putative class of all incarcerated individuals at FCC Terre Haute, with a modest request: that the scheduled executions be enjoined until the threat of the COVID-19 pandemic has passed and Plaintiffs and members of the Class have received an appropriate vaccine. This relief will cause no harm to the Defendants, but it will ameliorate the significant risk of substantial harm to Plaintiffs and other members of the class (in addition to countless other individuals).

5 See Federal Bureau of Prisons, Federal Execution Information, at https://www.bop.gov/resources/federal_executions_info.jsp (last visited Nov. 19, 2020).
6 See Historical Information, Capital Punishment, at www.bop.gov/about/history/federal_executions.jsp.

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JURISDICTION AND VENUE 9. This Court has jurisdiction pursuant to 28 U.S.C. § 1331. The Court has authority to grant declaratory relief under the Declaratory Judgment Act, 28 U.S.C. § 2201. 10. Venue is proper in this District under 28 U.S.C. § 1391 because a substantial part of the events and omissions giving rise to the claims asserted in this complaint have occurred and continue to occur in this District.
PARTIES 11. Plaintiff Patrick R. Smith, inmate registration number 53264-074, is incarcerated at FCC Terre Haute. He is housed in C-Dorm at FCI Terre Haute, a medium security federal correctional institution at FCC Terre Haute. He is serving a 53-month sentence and his scheduled release date is January 24, 2022. Mr. Smith has asthma and hyper-inflated lungs with chronic coarsened interstitial markings, among other health complications. Mr. Smith has twice sought compassionate release due to his health conditions and the COVID-19 pandemic pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). His first request, dated March 26, 2020, was denied by the warden. He did not receive a response from the warden to his second request, dated June 12, 2020, within thirty days. He thereafter filed a petition for compassionate release with the United States District Court for the Eastern District of Tennessee, without the aid of counsel. The court denied his motion. 12. Plaintiff Brandon S. Holm, inmate registration number 19005-030, is incarcerated at FCC Terre Haute. He is housed in C-Dorm at FCI Terre Haute. He is serving a 60-month sentence and is eligible for release to a halfway house on April 21, 2023. Mr. Holm has anxiety and regularly suffers from panic attacks and shortness of breath related to his anxiety. As a child, he had open-heart surgery for a congenital heart defect. Mr. Holm sought compassionate release due to his health conditions and the COVID-19 pandemic pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), and currently has a petition for compassionate release or release to home confinement pending in the United States District Court for the Southern District of Iowa. The court has not yet ruled on Mr. Holm’s request.

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13. Defendant William P. Barr is the Attorney General of the United States. Attorney General Barr oversees the Bureau of Prisons (“BOP”), an agency within the United States Department of Justice (“DOJ”), and has responsibility over carrying out death sentences against federal prisoners. He is sued in his official capacity for the purpose of obtaining declaratory and injunctive relief.
14. Defendant Michael Carvajal is the Director of the BOP. He oversees the operations of BOP facilities (including FCC Terre Haute), BOP staff, and individuals in BOP custody. Defendant Carvajal is responsible for designating the date, time, and place for a sentence of death. He is sued in his official capacity for the purpose of obtaining declaratory and injunctive relief.
15. Defendant T.J. Watson is the Complex Warden for FCC Terre Haute. He is sued in his official capacity for the purpose of obtaining declaratory and injunctive relief.
FACTUAL ALLEGATIONS A. The COVID-19 epidemic is a global health emergency, and Indiana has been
hit particularly hard. 16. In a period of only nine months, more than 12 million people in the United States have tested positive for COVID-19 and more than 256,000 people have died.7 The high mortality rate is likely to continue or worsen in coming weeks, as sharp increases in case numbers are followed a few weeks later by increases in hospitalizations, which are then followed by increases in deaths. 17. As of November 15, 2020, 53.7 million confirmed cases and 1.3 million deaths from COVID-19 have been reported worldwide to the World Health Organization.8

7 See Johns Hopkins University COVID-19 Data Center, https://coronavirus.jhu.edu/ (last visited Nov. 23, 2020).
8 See World Health Organization, Overview, Weekly Epidemiological Update, https://www.who.int/publications/m/item/weekly-epidemiological-update---17-november-2020 (last visited Nov. 19, 2020).

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18. This month, Indiana has seen single-day records of reported COVID-19 cases and was “ranked 35th in the world in per capita COVID-19 deaths.”9
B. COVID-19 is a highly contagious and lethal disease. 19. In severe cases, COVID-19 can lead to respiratory failure, permanent lung, heart, or neurological damage, or death, among other serious complications. The disease is spread through respiratory droplets, and the only measure that fully prevents infection is avoiding contact with others. According to the federal Centers for Disease Control and Prevention (the “CDC”), social distancing—remaining at least six feet from all other persons not sharing one’s household— is a cornerstone of reducing transmission of respiratory diseases such as COVID-19. 20. As the CDC warns, “the more people you interact with, the more closely you interact with them, and the longer that interaction, the higher your risk of getting and spreading COVID-19.”10 21. According to the CDC, adults of any age with the following underlying medical conditions are at increased risk of severe illness from the virus that causes COVID-19: cancer, chronic kidney disease, COPD (chronic obstructive pulmonary disease), heart conditions (such as heart failure, coronary artery disease, or cardiomyopathies), immunocompromised state (weakened immune system) from solid organ transplant, obesity, pregnancy, sickle cell disease, smoking, or Type 2 diabetes mellitus.11 22. Likewise, adults of any age with the following underlying medical conditions might be at an increased risk of severe illness from the virus that causes COVID-19: asthma (moderateto-severe), cerebrovascular disease (affects blood vessels and blood supply to the brain), cystic

9 See Indianapolis Star, “If Indiana were a country, our COVID-19 mortality rate would be 35th worst in the world,” https://www.indystar.com/story/news/health/2020/11/18/covid-indiana-death-ratecoronavirus-ranks-35th-world/6338823002/ (Nov. 18, 2020).
10 See Centers for Disease Control and Prevention, People with Certain Medical Conditions (updated Nov. 2, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/peoplewith-medical-conditions.html) (original emphasis) (last visited Nov. 19, 2020).
11 Id.

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fibrosis, hypertension or high blood pressure, immunocompromised state (weakened immune system) from blood or bone marrow transplant, immune deficiencies, HIV, use of corticosteroids, use of other immune weakening medicines, neurologic conditions (such as dementia), liver disease, overweight, pulmonary fibrosis (having damaged or scarred lung tissues), thalassemia (a type of blood disorder), or Type 1 diabetes mellitus.12
23. Older adults are also at increased risk of severe illness from the virus that causes COVID-19.13 Eight out of ten COVID-19-related deaths reported in the United States have been among adults aged 65 years and older.14
24. Men also appear to be at greater risk of death from COVID-19, as more men than women are dying from the disease.15
C. Incarcerated people are particularly vulnerable to COVID-19. 25. Prisons are petri dishes for COVID-19. “The infrastructure of most prisons and jails is … conducive to spreading disease,” similar to what is seen on a cruise ship.16 Indeed, the risk of exposure is even greater for incarcerated people, “as correctional officers and other staff frequently leave the facility and then return” and “social distancing is typically a physical impossibility.”17

12 Id.
13 See Centers for Disease Control, Older Adults (updated Sept. 11, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html (last visited Nov. 19, 2020).
14 Id.
15 See Derek M. Griffith, Ph.D. et al., “Men and COVID-19: A Biopsychosocial Approach to Understanding Sex Differences in Mortality and Recommendations for Practice and Policy Interventions,” Prev. Chronic Dis. 2020; 17:-:200247 (July 16, 2020), available at https://www.cdc.gov/pcd/issues/2020/20_0247.htm (last visited Nov. 23, 2020).
16 Laura Hawks, MD, et al., “COVID-19 in Prisons and Jails in the United States,” JAMA Intern Med. 2020; 180(8):1041-1042, available at https://jamanetwork.com/journals/jamainternalmedicine/ fullarticle/2765271 (last visited Nov. 16, 2020).
17 Id.

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26. prisons.18

Nine of the ten largest COVID-19 outbreaks in the country have occurred in

27. According to a report on the CDC’s website, “[h]igh COVID-19 attack rates can

occur in correctional and detention facilities…. During May 7-21 [2020], among 98 incarcerated

and detained persons who were quarantined because of exposure to the virus, 71 (72%) had

laboratory-confirmed SARS-CoV-2 infection identified through serial testing.”19

28. Prison populations also “have a high prevalence of chronic diseases, increasing their risk for severe COVID-19–associated illness....”20 Roughly 50% of all incarcerated persons

have at least one chronic disease and many are over the age of 60.21

29. According to the CDC, restrictions on the non-essential movement of inmates and

visitors into and out of prisons and social distancing are key components of managing the transmission of COVID-19 in prisons and the communities in which they are located.22

18 See “San Quentin Prison was Free of the Virus. One Decision Fueled an Outbreak.,” N.Y. Times (June 30, 2020), available at www.nytimes.com/2020/06/30/us/san-quentin-prison coronavirus.html.
19 Henry Njuguna, MD, et al., Serial Laboratory Testing for SARS-CoV-2 Infection Among Incarcerated and Detailed Persons in a Correctional and Detention Facility—Louisiana, April-May 2020, Morbidity and Mortality Weekly Report (July 3, 2020), available at https://www.cdc.gov/mmwr/volumes/69/wr/mm6926e2.htm?s_cid=mm6926e2_w (last visited Nov. 16, 2020).
20 “Mass Testing for SARS-CoV-2 in 16 Prisons and Jails — Six Jurisdictions, United States, April–May 2020,” https://www.cdc.gov/mmwr/volumes/69/wr/mm6933a3.htm (Aug. 21, 2020).
21 Matthew J. Akiyama, M.D., et al., “Flattening the Curve for Incarcerated Populations — Covid-19 in Jails and Prisons, The New England Journal of Medicine 2020; 382:2075-2077, available at https://www.nejm.org/doi/full/ 10.1056/NEJMp2005687?fbclid=IwAR2ZCntaDAKmLMzBX544lkRPL344bGMklN8mbghZkNgvU6X RoP0H9WLSF9A (last visited Nov. 16, 2020).
22 See CDC, “Interim Guidance on Management of Coronavirus Disease in Correctional and Detention Facilities,” available at https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html (updated Oct. 21, 2020) (last visited Nov. 23, 2020).

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D. Conditions at FCC Terre Haute exacerbate the risk of COVID-19 transmission.
30. FCC Terre Haute is comprised of three separate complexes, differentiated by the level of security. The complexes include (1) a U.S. Penitentiary (USP), which is a high security complex; (2) a Federal Correctional Institution (FCI), which is a medium level complex; and (3) a Satellite Prison Camp (SPC), which is a minimum-security level complex.
31. USP Terre Haute has six general population units that are designed as a “bow-tie” with two floors for non-death row inmates and a Special Confinement Unit (SCU) for death-row inmates. In addition to these living quarters, there are dining facilities, health services, maintenance shops, a commissary, a UNICOR factory, and an inmate visiting area. Buildings are in a general square shape, with a large, confined yard for recreational time. USP has a rate capacity of 910 inmates.
32. FCI Terre Haute has ten housing units with a rated capacity of 560 inmates. FCI also has a dining facility, health services, maintenance shops, a commissary, and an inmate visiting area.
33. SPC Terre Haute has a main building that includes living quarters, a dining room, and a gymnasium. There are eight dormitory-style housing units within the complex, with a total rated capacity of 324 inmates. The units contain two-man, eight-man, and 12-man rooms.
34. Two of the three FCC Terre Haute complexes have more inmates than their rated capacity, increasing the already prevalent risk of COVID-19 transmission. The USP has a rated capacity of 910 inmates but currently houses approximately 1,269 inmates. The FCI has a rated capacity of 560 inmates but currently houses approximately 875 inmates.
35. In the C-Dorm of the FCI Terre Haute complex, where the named Plaintiffs are incarcerated, prisoners are housed in cells with more than one person, in close quarters. Social distancing is impossible, given the small amount of space in the cell.
36. Social distancing is also impossible in the communal bathroom facilities. C-Dorm is equipped with 6 toilets, 4 urinals, 10 sinks, and 8 showers for the entire dorm population, along

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with 4 soap dispensers. As of November 12, 2020, one of the toilets was out of order, two urinals were out of commission, and three sinks did not work.
37. Social distancing is also difficult to achieve in most other settings within FCC Terre Haute. Inmates are almost never six feet away from another person, whether inside or outside.
38. The use of masks at FCI Terre Haute is inconsistent among both staff and inmates. 39. Inmates who serve food to other inmates continue to serve in this role after testing positive for COVID-19. 40. Sinks in communal bathrooms are often filthy. Soap dispensers often do not contain soap, and bar soap is not always available. 41. BOP staff and inmates have daily contact in all FCC Terre Haute complexes. 42. The BOP reported its first case of COVID-19 at FCC Terre Haute on or about May 16, 2020. 43. Since then, at least three Terre Haute prisoners have died from the virus, and many more prisoners and staff have contracted COVID-19. 44. According to a recent BOP report, at least 82 inmates and 14 staff members are currently positive for COVID-19 at FCC Terre Haute, an additional 158 prisoners and 29 staff members had the virus but recovered, and one prisoner has died; at USP Terre Haute, at least 4 inmates and 2 staff members are currently positive, another 91 inmates and 5 staff members had the virus but recovered, and at least 2 inmates have died..23 45. Despite the recoveries, some individuals might become re-infected with the COVID-19 virus.24 46. It is not clear how much of the prison population at FCC Terre Haute (prisoners and staff) has been tested, or how the BOP decides whether a death was COVID-related. In all

23 See COVID-19 Cases, https://www.bop.gov/coronavirus/index.jsp (as visited on Nov. 24, 2020).
24 See Centers for Disease Control, Reinfection with COVID-19 (updated Oct. 27, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/your-health/reinfection.html (last visited Nov. 25, 2020).

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events, the number of COVID cases and COVID deaths at FCC Terre Haute is likely higher than reported on the BOP website.
E. Defendants know about the serious health and safety risks of COVID-19 and recognize that movement in and out of prisons significantly increases those risks.
47. On March 26, 2020, Defendant Barr issued a Memorandum to Defendant Carvajal regarding “Prioritization of Home Confinement as Appropriate in Response to COVID-19 Pandemic.”25 The memorandum authorized Defendant Carvajal to “grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic.”26 Defendant Barr recognized Defendants’ obligation to “do the best we can to minimize the risk of COVID-19 to those in our custody, while also minimizing the risk to the public.”27
48. On April 3, 2020, Defendant Barr issued another Memorandum to Defendant Carvajal, recognizing the BOP’s “profound obligation to protect the health and safety of all inmates.”28 Defendant Barr charged Defendant Carvajal to “immediately review all inmates who have COVID-19 risk factors, as established by the CDC,” starting with facilities where COVID19 was “materially affecting operations.”29
49. Defendants have known for some time that movement into and out of BOP prisons was a source of risk to inmates and to prison staff. To “mitigate the spread of COVID-19,” Defendants announced at the start of the pandemic that they were heavily restricting movement in and out of BOP prisons.30

25 See Memorandum for Director of Bureau of Prisons (Mar. 26, 2020), available at https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement.pdf (last visited Nov. 20, 2020).
26 Id.
27 Id.
28 Memorandum for Director of Bureau of Prisons (Apr. 3, 2020), available at https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf (last visited Nov. 20, 2020).
29 Id.
30 See Federal Bureau of Prisons, “BOP Implementing Modified Operations,” www.bop.gov/coronavirus/covid19_status.jsp.

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50. In March 2020, BOP suspended internal prisoner movement “with limited exceptions.”31
51. Also in March, BOP suspended all visitation, including legal visits at all federal prisons.32 Under this policy, BOP systematically canceled previously scheduled visits and refused to schedule future visits for both contact and non-contact meetings, including at Terre Haute.
52. In April, BOP issued a memorandum reporting that stopping visits had a “major impact” on keeping staff, prisoners, visitors, and the community at large safe from COVID-19.33
53. Other measures have also been announced by BOP, including at Terre Haute.34 The measures have been inconsistently implemented and, in all events, have not prevented the spread of COVID among prison inmates and prison staff.
F. Defendants know that executions will introduce additional, unnecessary risks of COVID-19 exposure at FCC Terre Haute.
54. The BOP’s execution plans and protocols anticipate the likely involvement of hundreds of individuals in each execution that occurs at FCC Terre Haute. An “execution team” consisting of some 40, geographically disbursed BOP staff members will spend several days at the prison before each execution preparing. Another specially staffed team of roughly 50 BOP employees will also travel to Terre Haute from other prisons (which might also be experiencing COVID-19 outbreaks). These teams will be assisted by up to 100 BOP staff at Terre Haute,

31 See Federal Bureau of Prisons, “Updates to BOP COVID-19 Action Plan,” www.bop.gov/resources/news/20200319_covid19_update.jsp.
32 See Federal Bureau of Prisons COVID-19 Action Plan,” at https://www.bop.gov/resources/news/20200313_covid-19.jsp (updated Mar. 13, 2020) (last visited Nov. 22, 2020).
33 See Mem. for Inmate Families and Friends from M. Carvajal, Director, Federal Bureau of Prisons (Apr. 21, 2020), available at www.bop.gov/resources/news/pdfs/202004211_memo_to_inmate_ families_and_friends.pdf.
34 See Federal Bureau of Prisons, BOP Modified Operations, at https://www.bop.gov/coronavirus/ covid19_status.jsp (updated Oct. 8, 2020) (last visited Nov. 19, 2020).

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including those pulled from their normal duties, who will provide security and support for each execution.
55. The individuals who converge in Terre Haute to participate in the executions will stay in local hotels or homes, eat in local restaurants, and use local transportation. Many will travel by air or other public transit. One or more of those individuals could easily have been exposed to or infected with COVID-19 at home, on planes, in airports or hotels, at their BOP regional facilities, or in their communities more broadly. They will then convene and intermingle in small enclosed spaces with staff from FCC Terre Haute, which has numerous known COVID-19 cases among its inmates and staff, for group training, practices, meetings, and on-site work.
56. The strict security protocol associated with such executions will enhance the risks for the prisoners, staff, and ultimately anyone attending the execution or later interacting with those who did.
57. Large numbers of media representatives and demonstrators will likely converge on or near the prison grounds for each execution. Those who enter the prison will be subjected to inperson screening and security details. The media must participate in a Media Orientation at the institution prior to the execution and, on the date of the execution, will be contained within a single Media Center with communal restrooms. Demonstrators for and against capital punishment are instructed by the prison to meet at locations in the community for processing by BOP staff and then be transported to the prison in vans.
58. The execution facility, sometimes referred to as the “Death House,” is a small, single story building on the Terre Haute grounds. In addition to the roughly 40 members of the execution team, federal regulations authorize the attendance of up to 24 witnesses to the execution: six individuals selected by the death row prisoner, including his or her spiritual advisor and legal team, eight citizen witnesses, including members of the victim’s family, and ten members of the press. See 28 C.F.R. § 26.4(c)(3)-(4). Thus, the execution facility might hold, in close quarters, the 40-member execution team, up to 24 witnesses, the death row prisoner, and an unspecified number of attorneys from the DOJ. Again, many of these individuals will have traveled great

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distances, including by plane or other public transit, and stayed in local hotels and eaten in local restaurants before assembling on the day of the execution.
59. The witnesses to the execution and prison staff will be shuttled together in vans to the execution facility from a designated location in accordance with USP protocol. In the days leading up to the execution, attorneys may be required to visit with their client in the Death House. During the execution itself, witnesses are grouped into four separate viewing rooms—one for media; one for the victim’s family members; one for attorneys, the prisoner’s loved ones, and his or her spiritual advisor; and one for government officials. It is not possible to socially distance in these cramped viewing rooms. Additionally, those in the viewing rooms cannot see or be seen by the prisoner unless they are inches from the Plexiglass that separates the witnesses from the prisoner.
60. The fact that the government schedules multiple executions in the same week further increases the risk of contracting COVID-19 for everyone in the prison population or participating in the executions. Three executions occurred the week of July 12, 2020, two the week of August 26, and two the week of September 20; two executions are scheduled for a single week in December, and three more are scheduled for the same week in January. Each execution brings its own group of counsel, spiritual advisers and family for the inmate who is to be executed, together with demonstrators, media witnesses, the victim’s family members, spiritual support, and government officials from all over the country--all of whom then interact with each other and BOP staff inside the prison and the Death House, and with members of the community outside the prison. Everyone then returns to their families and their communities, having potentially spread or contracted the disease before doing so.
61. The number of COVID-19 cases in FCC Terre Haute and in the local community increased after the executions that were held at FCC Terre Haute in July, August and September of this year.

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62. The American Bar Association, members of Congress, and others have called upon the federal government to postpone the pending executions because of the health risks they create.35
G. There is no need to conduct executions in December 2020 or January 2021.
63. There is no urgency to conducting the executions that are currently scheduled. 64. Executions are not necessary for the effective operation of the federal criminal justice system, as demonstrated by the fact that only three federal executions took place in the United States between 1957 and 2020.36 There were no federal executions in the 1960s, 1970s, 1980s, 1990s, or 2010s.37 There were two federal executions in 2001, and one in 2003.38 65. In July 2019—prior to the onset of the COVID-19 global pandemic—Attorney General Barr directed BOP to adopt a proposed Addendum to the Federal Execution Protocol, thereby “clearing the way for the federal government to resume capital punishment after a nearly two decade lapse....”39 66. Since then, following various stays of execution, the federal government has carried out eight executions at USP Terre Haute—three occurred the week of July 12, 2020, two the week of August 26, 2020, two the week of September 20, 2020, and one occurred on November 19, 2020.40

35 See Letter from ABA President Patricia Lee Refo to President Donald J. Trump (Nov. 12, 2020) (urging postponement of the executions because of the “alarming surge in COVID-19 cases nationwide,” and noting the risks presented to the health and safety of prisoners and their counsel, as well as prison staff), available at https://www.americanbar.org/content/dam/aba/administrative/government_affairs_office/fedexecutions-letter-111220.pdf.; Letter from the Congressional Black Caucus to Attorney General William Barr (Nov. 17, 2020) (urging postponement and noting a “a causal link” between executions held earlier this year and “COVID-19 surges”), available at https://cbc.house.gov/uploadedfiles/ cbc_letter_to_ag_barr_on_pending_executions.pdf.
36 See Historical Information, Capital Punishment, www.bop.gov/about/history/federal_executions.jsp.
37 Id.
38 Id.
39 See DOJ Press Release, https://www.justice.gov/opa/pr/federal-government-resume-capitalpunishment-after-nearly-two-decade-lapse.
40 See Historical Information, supra.

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Case 2:20-cv-00630-JRS-MJD Document 1 Filed 11/25/20 Page 16 of 20 PageID #: 16

67. More federal executions took place over a three-week period in 2020 than occurred in the prior 66 years.
68. Lisa Montgomery was scheduled to be executed on December 8, for crimes she committed in 2004. This would make her the first woman to be executed by the federal government since Ethel Rosenberg was executed in 1953. On November 19, 2020, however, the U.S. District Court for the District of Columbia enjoined Attorney General Barr and his codefendants from executing Lisa Montgomery “before December 31, 2020,” because her attorneys contracted severe cases of COVID when visiting her in the Texas federal prison where she is currently being held and are unable to assist her in presenting “a meaningful petition for a reprieve or commutation of sentence to the President.” See Memorandum Opinion at 9 (Dkt. No. 19) and Order at 1 (Dkt. No. 20), Montgomery v. Barr, Civil Action No. 20-3261 (RDM) (D.D.C. Nov. 19, 2020). The Defendants have moved her execution date to January 12, 2021. Brandon Bernard is scheduled to be executed on December 10, for crimes he committed in 1999. He was 18 years old when the crimes were committed, which is the minimum age at which the death penalty may be imposed.41
69. Additional executions have recently been scheduled by Defendants to take place at FCC Terre Haute, on December 11, 2020, January 14, 2021, and January 15, 2021.
CLASS ACTION ALLEGATIONS 70. Pursuant to Fed. R. Civ. P. 23, the individual named Plaintiffs bring this action on behalf of themselves and on behalf of all persons similarly situated. 71. Plaintiffs seek to represent a class consisting of all people who are currently or who will in the future be incarcerated at FCC Terre Haute during the COVID-19 pandemic (the “Class”). 72. The members of the Class are so numerous that joinder of all members is impracticable. See Fed. R. Civ. P. 23(a)(1). There are approximately 2,300 incarcerated people

41 See Roper v. Simmons, 543 U.S. 551 (2005) (holding that the 8th and 14th Amendments of the U.S. Constitution forbid the execution of offenders who were younger than 18 when the crime occurred).

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Case 2:20-cv-00630-JRS-MJD Document 1 Filed 11/25/20 Page 17 of 20 PageID #: 17
at FCC Terre Haute, a significant percentage of whom are at an increased risk of harm from COVID-19 due to age or previous or existing medical conditions.
73. There are questions of law and fact common to the Class, including: (1) whether COVID-19 present a substantial risk of harm to individuals incarcerated at Terre Haute FCC; (2) whether holding executions at FCC Terre Haute during the current pandemic violates class members’ constitutional right to be free from unreasonable risk of death and bodily harm; and (3) whether all further executions at FCC Terre Haute should be enjoined until such time as the COVID-19 virus no longer constitutes an ongoing pandemic that jeopardizes the public health. See Fed. R. Civ. P. 23(a)(2).
74. The claims of the class representatives are typical of the claims of the Class. See Fed. R. Civ. P. 23(a)(3). The individual named Plaintiffs are currently incarcerated at FCC Terre Haute and will be exposed to the risks attendant to the upcoming scheduled executions.
75. The individual named Plaintiffs will fairly and adequately protect the interests of the Class. See Fed. R. Civ. P. 23(a)(4). The interests of the class representatives are consistent with those of the Class members. Counsel for Plaintiffs are not aware of any conflicts with the unnamed members of the proposed Class. Plaintiffs are represented by counsel.
76. A class action is appropriate because Defendants have acted and refuse to act on grounds that apply generally to the Class, so that final injunctive and declaratory relief is appropriate with respect to the class as a whole. See Fed. R. Civ. P. 23(b)(2).
EXHAUSTION OF ADMINISTRATIVE REMEDIES 77. Plaintiffs are not required to exhaust administrative remedies under 42 U.S.C. § 1997e because there is no available administrative remedy. The BOP Administrative Remedy Program cannot provide any relief relative to the upcoming scheduled executions and, even if administrative remedies were available, they would offer no possible relief in time to prevent the imminent danger from the upcoming scheduled executions.

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Case 2:20-cv-00630-JRS-MJD Document 1 Filed 11/25/20 Page 18 of 20 PageID #: 18

COUNT I Violation of the Eighth Amendment to the U.S. Constitution 78. Plaintiffs repeat and re-allege the preceding paragraphs as if fully set forth here. 79. Plaintiffs bring this claim on their own behalf and on behalf of the Class against all Defendants. 80. Plaintiffs and members of the Class have a right to be free from cruel and unusual punishment under the Eighth Amendment to the U.S. Constitution. These constitutional protections extend to “conditions of confinement that are not formally imposed as a sentence for a crime,” Helling v. McKinney, 509 U.S. 25, 29-30 (1993), and that are “sure or very likely to cause serious illness and needless suffering…,” id. at 33. 81. Defendants’ actions in conducting executions at FCC Terre Haute in the middle of the pandemic expose the Plaintiffs and members of the class to a substantial risk of contracting COVID-19, a serious and highly contagious disease that can lead to severe illness or death. Defendants have failed to take reasonable measures to provide for safe living conditions for the named Plaintiffs and members of the Class, and they have unnecessarily and unreasonably imposed on all Plaintiffs an increased risk of contracting a disease that is very likely to cause serious illness and needless suffering. 82. As set forth above, hundreds of people are likely to descend on FCC Terre Haute for each of the scheduled executions, many after travelling from different parts of the country and interacting in hotels and restaurants with individuals who might be contagious carriers of the COVID-19 virus. The individuals who come to Terre Haute will interact with members of the local community and with FCC Terre Haute staff members, who will later interact with the individual Plaintiffs and members of the Class. COVID-19 is a serious and highly contagious disease that can lead to severe illness or death. Defendants are therefore setting up a potentially lethal chain reaction at FCC Terre Haute. 83. Defendants are well aware of the substantial risk of harm that COVID-19 poses to all individuals and the particular risks that Plaintiffs and members of the Class face. The risks of

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Case 2:20-cv-00630-JRS-MJD Document 1 Filed 11/25/20 Page 19 of 20 PageID #: 19

COVID-19 are well publicized and widely known, including the heightened risks for incarcerated persons. And Defendants have openly acknowledged the risks of COVID-19, including the significant risks attendant to bringing individuals into and out of the prison in the midst of the pandemic.
84. Defendants are also well aware of the CDC’s recommendation that the movement of people into and out of a prison be restricted if there are positive COVID-19 cases in or out of the prison, so as to reduce the spread of the disease.
85. Despite this knowledge, Defendants have failed to take reasonable and known measures to mitigate the dangers of COVID-19 by choosing to move forward with additional executions at FCC Terre Haute in December 2020 and January 2021. Defendants’ actions in moving forward with execution plans in the face of the known risks constitute deliberate indifference to the health and safety of the individual Plaintiffs and members of the Class.
86. As a result of Defendants’ actions and inactions, the individual Plaintiffs and members of the Class face irreparable harm, both from the violation of their constitutions rights and the substantial risk of contracting COVID-19 and sustaining a serious illness that could lead to death.
87. The individual Plaintiffs and members of the Class are being threatened with unsafe, life-threatening conditions in their prison and are entitled to injunctive relief to prevent the violation of their constitutional rights.
REQUEST FOR RELIEF
Wherefore, Plaintiffs respectfully request that the Court: A. Declare that conducting executions at FCC Terre Haute as planned by Defendants during the pendency of the COVID-19 pandemic violates the Eighth Amendment right against cruel and unusual punishment with respect to the named Plaintiffs and the Class; B. Enter a preliminary and a permanent injunction ordering Defendants not to conduct further executions at FCC Terre Haute until such time as the COVID-19 virus no longer

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Case 2:20-cv-00630-JRS-MJD Document 1 Filed 11/25/20 Page 20 of 20 PageID #: 20

constitutes an ongoing pandemic that jeopardizes the public health and Plaintiffs and members of the Class have received an appropriate vaccine; and
C. Order such other and further relief as this Court deems just, proper, and equitable.

Dated: November 25, 2020

Respectfully submitted,

/s/ John R. Maley John R. Maley Barnes & Thornburg LLP 11 South Meridian Street Indianapolis, Indiana 46204-3535 Telephone: (317) 231-7464 (direct)
(317) 432-5509 (mobile) Facsimile: (317) 231-7433 John.maley@btlaw.com

Robert A. Burgoyne, pro hac vice* Caroline M. Mew, pro hac vice* Perkins Coie LLP 700 13th St. NW, Suite 800 Washington, DC 20005-3960 Telephone: (202) 654-1767 Facsimile: (202) 654-6211 rburgoyne@perkinscoie.com cmew@perkinscoie.com

Sarah Howland, pro hac vice* Perkins Coie LLP 1155 Avenue of the Americas, 22nd Floor New York, N.Y. 10036-2711 Telephone: (212) 262-6900 showland@perkins.coie.com

Attorneys for Plaintiffs

*Motions to appear pro hac vice forthcoming

150291934.1

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 U.S. District Court Southern District of Indiana (Terre Haute) CIVIL DOCKET FOR CASE #: 2:20-cv-00630-JMS-DLP

SMITH et al v. BARR et al Assigned to: Judge Jane Magnus-Stinson Referred to: Magistrate Judge Doris L. Pryor Cause: 28:2201 Declaratory Judgement

Date Filed: 11/25/2020 Date Terminated: 03/16/2021 Jury Demand: None Nature of Suit: 555 Prisoner Petitions - Prison Condition Jurisdiction: U.S. Government Defendant

Plaintiff PATRICK R. SMITH

represented by Caroline M. Mew PERKINS COIE LLP 700 13th St. NW Suite 800 Washington, DC 20005-33960 202-654-1767 Fax: 202-654-6211 Email: cmew@perkinscoie.com PRO HAC VICE ATTORNEY TO BE NOTICED

Robert A. Burgoyne PERKINS COIE LLP 700 13th St. NW Suite 800 Washington, DC 20005-3960 202-654-1744 Fax: 202-654-6211 Email: rburgoyne@perkinscoie.com PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah Howland PERKINS COIE LLP 1155 Avenue of the Americas 22nd Floor New York, NY 10036-2711 (212) 262-6900 Fax: (212) 977-1649 Email: showland@perkinscoie.com PRO HAC VICE

Plaintiff BRANDON S. HOLM
V. Defendant WILLIAM P. BARR U.S. Attorney General

ATTORNEY TO BE NOTICED
John R. Maley BARNES & THORNBURG, LLP (Indianapolis) 11 South Meridian street Indianapolis, IN 46204 (317) 231-7464 Fax: (317) 231-7433 Email: jmaley@btlaw.com ATTORNEY TO BE NOTICED
represented by Caroline M. Mew (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robert A. Burgoyne (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sarah Howland (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John R. Maley (See above for address) ATTORNEY TO BE NOTICED
represented by Jordan L. Von Bokern U.S. DEPARTMENT OF JUSTICE (Washington DC) 1100 L Street, NW Washington, DC 20001 202-305-7919 Fax: 202-616-8460 Email: jordan.l.von.bokern2@usdoj.gov ATTORNEY TO BE NOTICED

Defendant MICHAEL CARVAJAL Director of Federal Bureau of Prisons
Defendant T.J. WATSON Warden of Terre Haute Federal Correctional Complex

Lisa A. Olson U.S. DEPARTMENT OF JUSTICE (Washington DC) 1100 L Street, NW Washington, DC 20001 202-514-5633 Fax: 202-616-8470 Email: lisa.olson@usdoj.gov ATTORNEY TO BE NOTICED
Shelese M. Woods UNITED STATES ATTORNEY'S OFFICE (Indianapolis) 10 West Market Street Suite 2100 Indianapolis, IN 46204 (317) 226-6333 Fax: (317) 226-5027 Email: shelese.woods@usdoj.gov ATTORNEY TO BE NOTICED
represented by Jordan L. Von Bokern (See above for address) ATTORNEY TO BE NOTICED
Lisa A. Olson (See above for address) ATTORNEY TO BE NOTICED
Shelese M. Woods (See above for address) ATTORNEY TO BE NOTICED
represented by Jordan L. Von Bokern (See above for address) ATTORNEY TO BE NOTICED
Lisa A. Olson (See above for address) ATTORNEY TO BE NOTICED
Shelese M. Woods

(See above for address) ATTORNEY TO BE NOTICED

Date Filed 11/25/2020
11/25/2020 11/30/2020 11/30/2020
11/30/2020 11/30/2020 11/30/2020
11/30/2020 11/30/2020

# Docket Text
1 COMPLAINT (Class Action Complaint for Declaratory Judgment and Injunctive Relief) against All Defendants, filed by All Plaintiffs. (Filing fee $400, receipt number 0756-6295043) (Attachments: # 1 Civil Cover Sheet, # 2 Proposed Summons, # 3 Proposed Summons, # 4 Proposed Summons)(Maley, John) (Entered: 11/25/2020)
2 NOTICE of Appearance by John R. Maley on behalf of Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH. (Maley, John) (Entered: 11/25/2020)
3 ORDER OF RECUSAL. Clerk is directed to randomly reassign case and notify parties of newly assigned Judge. Signed by Judge James R. Sweeney II on 11/30/2020. (BRR) (Entered: 11/30/2020)
4 NOTICE of Reassignment of Case to Judge Jane Magnus-Stinson. Judge James R. Sweeney II is no longer assigned to this case. Please include the new case number, 2:20-cv-00630-JMS-MJD, on all future filings in this matter. (RSF) (Entered: 11/30/2020)
5 PRACTICES AND PROCEDURES before Judge James R. Sweeney II. (KAA) (Entered: 11/30/2020)
6 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (KAA) (Entered: 11/30/2020)
7 MOTION for Attorney(s) Robert A Burgoyne to Appear pro hac vice (Filing fee $100, receipt number 0756-6295949), filed by Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH. (Attachments: # 1 Exhibit A - Attorney Certification, # 2 Text of Proposed Order)(Maley, John) (Entered: 11/30/2020)
8 Summons Issued as to WILLIAM P. BARR, MICHAEL CARVAJAL, T.J. WATSON. (KAA) (Entered: 11/30/2020)
9 MOTION for Attorney(s) Caroline M. Mew to Appear pro hac vice (Filing fee $100, receipt number 0756-6296008), filed by Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH. (Attachments: # 1 Exhibit A - Attorney Certification, # 2 Text of Proposed Order)(Maley, John) (Entered: 11/30/2020)

11/30/2020 11/30/2020 11/30/2020 11/30/2020

10 MOTION for Attorney(s) Sarah Howland to Appear pro hac vice (Filing fee $100, receipt number 0756-6296049), filed by Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH. (Attachments: # 1 Exhibit A - Attorney Certification, # 2 Text of Proposed Order)(Maley, John) (Entered: 11/30/2020)
11 NOTICE of Reassignment of Case to Magistrate Judge Doris L. Pryor. Magistrate Judge Mark J. Dinsmore is no longer assigned to this case. Please include the new case number, 2:20-cv-00630JMS-DLP, on all future filings in this matter. (RSF) (Entered: 11/30/2020)
12 Emergency MOTION for Preliminary Injunction and Request for Expedited Consideration, filed by Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH. (Attachments: # 1 Text of Proposed Order)(Maley, John) (Entered: 11/30/2020)
13 Appendix of Exhibits in Support of Motion re 12 Emergency MOTION for Preliminary Injunction and Request for Expedited Consideration , filed by Plaintiffs BRANDON S. HOLM,
PATRICK R. SMITH. (Attachments: # 1 Exhibit A - Dr. Joe Goldenson Declaration, # 2 Exhibit A-1 - Goldenson CV,
# 3 Exhibit B - Shelby Rampolo Declaration, # 4 Exhibit B-1 Rick Winter Declaration from 2:20-cv-336, # 5 Exhibit B-2 Timothy Floyd Declaration from 2:20-cv-336, # 6 Exhibit B-3 BOP Execution Protocol from 2:20-cv-336, # 7 Exhibit B-4 - Rick
Winter Declaration from 2:20-cv-350, # 8 Exhibit B-5 5/19/19 PREA, # 9 Exhibit B-6 - 11/19/20 Screenshot BOP website, # 10 Exhibit B-7 - 11/19/20 Screenshot BOP website, # 11 Exhibit B-8 - Demonstrator Info, # 12 Exhibit B-9 - Interim Guidance, # 13 Exhibit B-10 - FAQs, # 14 Exhibit B-11 - AFGE Complaint, # 15 Exhibit C - Sarah Howland Declaration Regarding Smith, # 16
Exhibit C-1 - 11/5/2020 Lee Email, # 17 Exhibit C-2 - Smith Screenshot, # 18 Exhibit C-3 - Smith First Request for Compassionate Release, # 19 Exhibit C-4 - Smith's Second Request for Compassionate Release, # 20 Exhibit C-5 - 6/30/20 Denial of Smith's Second Request, # 21 Exhibit D - Sarah Howland
Declaration Regarding Holm, # 22 Exhibit D-1 - 11/4/20 Rieger Email, # 23 Exhibit D-2 - Holm Screenshot, # 24 Exhibit D3 - 9/28/20 Judicial Request, # 25 Exhibit D-4 - 7/30/20 Pro Se Judicial Request, # 26 Exhibit E - Jennifer Davis Declaration,

11/30/2020 12/01/2020 12/01/2020 12/02/2020
12/02/2020
12/02/2020

# 27 Exhibit F - Cassandra Stubbs Declaration, # 28 Exhibit F1 - BOP FOIA Excerpts, # 29 Exhibit G - Yusuf Ahmed Nur Declaration, # 30 Exhibit G-A - 11/26/20 Inconclusive COVID test reults, # 31 Exhibit G-B - 11/30/20 Positive COVID test results)(Maley, John) (Entered: 11/30/2020)
14 BRIEF/MEMORANDUM in Support re 12 Emergency MOTION for Preliminary Injunction and Request for Expedited Consideration , filed by Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH. (Maley, John) (Entered: 11/30/2020)
15 PRACTICES AND PROCEDURES before Judge Jane MagnusStinson. (KAA) (Entered: 12/01/2020)
16 MOTION for Emergency Hearing re 12 Emergency MOTION for Preliminary Injunction and Request for Expedited Consideration (Plaintiffs' Request for Hearing on their Emergency Motion for Preliminary Injunction), filed by Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH. (Attachments: # 1 Text of Proposed Order)(Maley, John) (Entered: 12/01/2020)
17 SCHEDULING ORDER: A Status Conference is set for 12/3/2020 at 1:30 PM (Eastern Time) by Telephone before Magistrate Judge Doris L. Pryor. The purpose of the conference is to discuss a briefing schedule for the pending motion for preliminary injunction. Counsel shall attend the conference by calling the designated phone number, to be provided by the Court via email generated by the Court's ECF system. Signed by Magistrate Judge Doris L. Pryor on 12/2/2020.(KAA) (Entered: 12/02/2020)
18 ORDER granting 7 Motion to Appear pro hac vice. Attorney Robert A. Burgoyne for BRANDON S. HOLM,Robert A. Burgoyne for PATRICK R. SMITH added. Applicant shall register for electronic filing, as required by Local Rule5-3, within ten (10) days of the entry of this Order. Copy to Mr. Burgoyne via US Mail. Signed by Magistrate Judge Doris L. Pryor on 12/2/2020. (KAA) (Entered: 12/02/2020)
19 ORDER granting 9 Motion to Appear pro hac vice. Attorney Caroline M. Mew for BRANDON S. HOLM,Caroline M. Mew for PATRICK R. SMITH added. Applicant shall register for electronic filing, as required by Local Rule 5-3, within ten (10) days of the entry of this Order. Copy to Ms. Mew via US Mail. Signed by Magistrate Judge Doris L. Pryor on 12/2/2020. (KAA) (Entered: 12/02/2020)

12/02/2020

20 ORDER granting 10 Motion to Appear pro hac vice. Attorney Sarah Howland for BRANDON S. HOLM,Sarah Howland for PATRICK R. SMITH added. Applicant shall register for electronic filing, as required by Local Rule 5-3, within ten (10) days of the entry of this Order. Copy to Ms. Howland via US Mail. Signed by Magistrate Judge Doris L. Pryor on 12/2/2020. (KAA) (Entered: 12/02/2020)

12/02/2020

22 NOTICE of Appearance by Shelese M. Woods on behalf of Defendants WILLIAM P. BARR, MICHAEL CARVAJAL, T.J. WATSON. (Woods, Shelese) (Entered: 12/02/2020)

12/03/2020

23 NOTICE of Appearance by Lisa A. Olson on behalf of Defendants WILLIAM P. BARR, MICHAEL CARVAJAL, T.J. WATSON. (Olson, Lisa) (Entered: 12/03/2020)

12/03/2020

24 NOTICE of Appearance by Jordan L. Von Bokern on behalf of Defendants WILLIAM P. BARR, MICHAEL CARVAJAL, T.J. WATSON. (Von Bokern, Jordan) (Entered: 12/03/2020)

12/03/2020

25 ENTRY SETTING HEARING - The above cause is set for a hearing on Plaintiff's Motion for Preliminary Injunction, Dkt 16 , on Tuesday, December 8, 2020 at 10:00 a.m. by video. The parties are to file witness and exhibit lists on or before December 7, 2020 by 10:00 a.m. The Court has reserved up to 2 hours for the hearing. The court will contact counsel by separate email with the information to be used to participate in this hearing. SEE ORDER. Distributed pursuant to distribution list. Signed by Judge Jane Magnus-Stinson on 12/3/2020.(KAA) (Entered: 12/03/2020)

12/03/2020

27 MINUTE ORDER for proceedings held before Magistrate Judge Doris L. Pryor: The parties appeared by telephone for a Status Conference on December 3, 2020. The Court sets the following briefing schedule for the pending motion for preliminary injunction:*Defendants' Response is due by December 5, 2020 at 12:00 am.*Plaintiffs' Reply is due by December 7, 2020 at 10:00 am.The call was held and concluded. Signed by Magistrate Judge Doris L. Pryor. (CAG) (Entered: 12/04/2020)

12/04/2020

26 Order Directing Briefing - The defendants' brief in response to the plaintiffs' motion for a preliminary injunction is due at 12:00 a.m. on December 6, 2020. The Court directs the defendants to answer the following questions in their brief: (See Order.) Copies distributed pursuant to distribution list. Signed by Judge Jane Magnus-Stinson on 12/4/2020.(RSF) (Entered: 12/04/2020)

12/05/2020 28

RESPONSE in Opposition re 12 Emergency MOTION for Preliminary Injunction and Request for Expedited Consideration ,

filed by Defendants WILLIAM P. BARR, MICHAEL

CARVAJAL, T.J. WATSON. (Attachments: # 1 Exhibit 1, Declaration of T.J. Watson, # 2 Exhibit 2, Declaration of Kevin Pistro)(Von Bokern, Jordan) (Entered: 12/05/2020)

12/07/2020

29 Appendix of Exhibits in Support of Reply in Support of Motion re 12 Emergency MOTION for Preliminary Injunction and Request for Expedited Consideration , filed by Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH. (Attachments: # 1 Exhibit A Second Rampolo Declaration, # 2 Exhibit A-1 - Vigo County COVID data, # 3 Exhibit A-2 - Pennsylvania/National COVID data 11.29.20, # 4 Exhibit A-3 - Indiana/National COVID data 11.22.20, # 5 Exhibit A-4 - CDC Summary of Guidance Dec. 2020, # 6 Exhibit B - Second Nur Declaration)(Burgoyne, Robert)

Modified on 12/7/2020 - created link to 31 12/07/2020)

(RSF). (Entered:

12/07/2020 30

APPENDIX re 28 Response in Opposition to Motion List of Exhibits for Preliminary Injunction Hearing by All Defendants. (Olson, Lisa) Modified on 12/7/2020 -edited title (RSF). (Entered: 12/07/2020)

12/07/2020 31

REPLY in Support of Motion re 12 Emergency MOTION for Preliminary Injunction and Request for Expedited Consideration , filed by Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH. (Burgoyne, Robert) (Entered: 12/07/2020)

12/07/2020

32 Exhibit List , filed by Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH, Witness List for Preliminary Injunction Hearing, filed by Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH. (Burgoyne, Robert) (Entered: 12/07/2020)

12/07/2020

33 MOTION for Leave to File Two Supplemental Declarations in Support of Their Opposition to Plaintiffs' Motion for a Preliminary Injunction, filed by Defendants WILLIAM P. BARR, MICHAEL CARVAJAL, T.J. WATSON. (Attachments: # 1 Affidavit Supplemental Declaration of T.J. Watson, # 2 Affidavit Declaration of Rick Winter)(Olson, Lisa) (Entered: 12/07/2020)

12/08/2020

34 ORDER - This matter comes before the Court on Defendants' Motion for Leave to File Two Supplemental Declarations in Support of Their Opposition to Plaintiffs' Motion for a Preliminary Injunction, Dkt. 33 . The Court, being duly advised, hereby finds

that said Motion should be GRANTED. Signed by Magistrate Judge Doris L. Pryor on 12/8/2020. (RSF) (Entered: 12/08/2020)

12/08/2020

35 MINUTE ORDER for proceedings held before Judge Jane MagnusStinson: A hearing on the plaintiffs' motion for preliminary injunction was held by video conference on December 8, 2020 16 . The plaintiffs seek to enjoin all scheduled federal executions until the COVID-19 crisis has abated. Counsel Robert Burgoyne, Sarah Howland and John Maley appeared for plaintiffs Patrick Smith and Brandon Holm. Lisa Olson and Jordan L. Von Bokern appeared on behalf of the U.S. Department of Justice, and Shelese Woods appeared on behalf of the U.S. Attorney's Office. The hearing was recorded by Court Reporter, Jean Knepley.The parties presented oral argument on the pending motion. No witnesses were called. Spectators were present by video.The Court will issue an order in due course. Signed by Judge Jane Magnus-Stinson. (Court Reporter Jean Knepley.)(MRI) (Entered: 12/08/2020)

12/08/2020

36 MOTION for Leave to File Post-Hearing Responses to Questions, filed by Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH. (Burgoyne, Robert) (Entered: 12/08/2020)

12/08/2020 37

Order Denying Motion for Preliminary Injunction - Circuit precedent arising from prior recent executions makes clear the nearly limitless discretion the Attorney General possesses in conducting federal executions. The only limitation to such discretion argued here is the Eighth Amendment to the United States Constitution, and the plaintiffs have not met their burden of showing their constitutional claim is likely to succeed. That others, or a court, might exercise discretion differently in light of the risks presented by a deadly virus is not the relevant calculus. The plaintiffs' emergency motion for preliminary injunction, dkt. 12 , is therefore denied. The plaintiffs' motion for leave to file post-hearing responses to the Court's questions, dkt. 36 , is granted. The Court considered these responses in deciding the motion. (See Order.) Signed by Judge Jane Magnus-Stinson on 12/8/2020. (RSF) (Entered: 12/08/2020)

12/08/2020

38 TRANSCRIPT of Video Motion for Preliminary Injunction held on 12-8-2020 before Chief Judge Jane Magnus-Stinson. (35 pages.) Court Reporter/Transcriber: Jean Knepley (Telephone: (317) 6963565). Please review Local Rule 80-2 for more information on redaction procedures. Redaction Statement due 12/29/2020. Release of Transcript Restriction set for 3/8/2021. (Knepley, Jean) Released on 3/9/2021 (SWM). (Entered: 12/08/2020)

12/08/2020

39 NOTICE of FILING of OFFICIAL TRANSCRIPT of Video Motion for Preliminary Injunction held before Chief Judge Jane Magnus-Stinson on 12-8-2020 (Knepley, Jean) (Entered: 12/08/2020)

12/09/2020 40

MOTION for Leave to Take Limited, Expedited Discovery, filed by Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH.

(Attachments: # 1 Exhibit 1 - Example Contact Tracing Records)(Burgoyne, Robert) (Entered: 12/09/2020)

12/09/2020 41

Order Directing Defendants to Respond to Motion for Leave to Take Expedited Discovery The plaintiffs have filed a motion for leave to take expedited discovery regarding positive COVID-19 cases among execution team members and FCC Terre Haute staff, as well as any interaction between these COVID-positive individuals and FCI Terre Haute inmates and staff. The defendants shall have until 11:59 p.m. on December 9, 2020, to respond to the plaintiffs' motion. Signed by Magistrate Judge Doris L. Pryor on 12/9/2020.(RSF) (Entered: 12/09/2020)

12/09/2020 42

MOTION to Stay Discovery, filed by Defendants WILLIAM P. BARR, MICHAEL CARVAJAL, T.J. WATSON. (Attachments:

# 1 Text of Proposed Order)(Woods, Shelese) (Entered: 12/09/2020)

12/09/2020 43

RESPONSE in Opposition re 40 MOTION for Leave to Take Limited, Expedited Discovery , filed by Defendants WILLIAM P. BARR, MICHAEL CARVAJAL, T.J. WATSON. (Woods, Shelese) (Entered: 12/09/2020)

12/10/2020

44 ***PLEASE DISREGARD - VACATED AT 45 *** Order Directing Plaintiffs to Respond to Motion to Stay Discovery - On December 9, 2020, the plaintiffs filed a motion for expedited discovery. Dkt. 40 . Also on December 9, the defendants responded and filed a motion to stay discovery. Dkt. 42 ; dkt. 43 . The plaintiffs shall have until 11:59 p.m. on December 10, 2020, to respond to the defendants' motion to stay discovery. Signed by Magistrate Judge Doris L. Pryor on 12/10/2020 (Entered: 12/10/2020)

12/10/2020 45

Order Granting Motion for Expedited Discovery and Denying Motion to Stay Discovery - The plaintiffs' motion for leave to take

12/23/2020 46
12/28/2020 47
12/28/2020 48

limited expedited discovery, dkt. 40 , is granted to the extent that the defendants' shall have through December 15, 2020, to respond to the plaintiffs' discovery requests. Given the timesensitive nature of the plaintiffs' claims and the possibility that the plaintiffs will file another motion for preliminary injunction in the near future, there is good cause for expedited discovery. The
defendants' motion to stay discovery, dkt. 42 , is denied. The order directing the plaintiffs to respond to the defendants' motion to stay discovery, dkt. 44 , is vacated. Signed by Magistrate Judge Doris L. Pryor on 12/10/2020. (RSF) (Entered: 12/10/2020)
MINUTE ORDER for proceedings held before Magistrate Judge Doris L. Pryor: The parties appeared by telephone for a conference on December 22, 2020. John Maley and Robert Burgoyne appeared for the plaintiffs. Assistant United States Attorney Shelese Woods appeared for the defendants. The parties discussed discovery disputes. The defendants shall provide supplemental unredacted discovery responses as discussed during the conference. The call was held and concluded. Signed by Magistrate Judge Doris L. Pryor. (CAG) (Entered: 12/23/2020)
Second MOTION for Preliminary Injunction , filed by Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH. (Attachments: # 1
Appendix Index of Exhibits, # 2 Exhibit 1 - Fefferman
Declaration, # 3 Exhibit 1-A - Fefferman CV, # 4 Exhibit
1-B - BOP declarations, # 5 Exhibit 1-C - Contact tracing
records, # 6 Exhibit 2 - Formosa Declaration, # 7 Exhibit
3 - Mew Declaration, # 8 Exhibit 3-A - Responses to Doc.
Reqs., # 9 Exhibit 3-B - Responses to Interrogatories, # 10
Exhibit 3-C - Dec. 22 ltr. and Supp. Response to Doc. Req. 1)(Burgoyne, Robert) (Entered: 12/28/2020)
BRIEF/MEMORANDUM in Support re 47 Second MOTION for Preliminary Injunction , filed by Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH. (Burgoyne, Robert) (Entered: 12/28/2020)

12/28/2020 49

MOTION for Expedited Briefing on Second Motion for Preliminary Injunction, filed by Plaintiffs BRANDON S. HOLM, PATRICK R.

SMITH. (Attachments: # 1 Text of Proposed Order)(Burgoyne, Robert) (Entered: 12/28/2020)

12/29/2020 50

ORDER granting 49 Motion for expedited briefing on their second motion for preliminary injunction. Defendants shall file their opposition to Plaintiffs' second motion for preliminary injunction on or before January 4, 2021. Plaintiffs' shall file their reply brief on or before January 6, 2021. The Court will notify the parties whether it will hold a hearing on the motion. Signed by Judge Jane MagnusStinson on 12/29/2020. (RSF) (Entered: 12/29/2020)

01/04/2021 51

RESPONSE in Opposition re 47 Second MOTION for Preliminary Injunction , filed by Defendants WILLIAM P. BARR, MICHAEL CARVAJAL, T.J. WATSON. (Attachments: # 1

Exhibit 1 - Third Declaration of TJ Watson, # 2 Exhibit 2

- Second Declaration of Rick Winter, # 3 Exhibit 3 - Excerpt of Hearing Transcript)(Von Bokern, Jordan) (Entered: 01/04/2021)

01/05/2021 52

Order Directing Plaintiffs to Address 18 U.S.C. § 3626(a)(2) - The plaintiffs are directed to address in their reply whether the relief they request satisfies the requirements of 18 U.S.C. § 3626(a)(2) and, if not, to propose relief that does satisfy them. (See Order.) Signed by Judge Jane Magnus-Stinson on 1/5/2021.(RSF) (Entered: 01/05/2021)

01/05/2021

53 ***PLEASE DISREGARD - DUPLICATE ENTRY OF 52

*** Order Directing Plaintiffs to Address 18 U.S.C. § 3626(a)(2) - The plaintiffs are directed to address in their reply whether the relief they request satisfies the requirements of 18 U.S.C. § 3626(a)(2) and, if not, to propose relief that does satisfy them. SEE ORDER. Signed by Judge Jane Magnus-Stinson on 1/5/2021.(JRB) Modified on 1/5/2021 (RSF). (Entered: 01/05/2021)

01/06/2021

54 REPLY in Support of Motion re 47 Second MOTION for Preliminary Injunction , filed by Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH. (Burgoyne, Robert) (Entered: 01/06/2021)

01/07/2021 55

Order Granting in Part and Denying in Part Plaintiffs' Second Motion for Preliminary Injunction - The plaintiffs here--two inmates at FCI Terre Haute--have made a strong showing that they face an unconstitutional health risk if the defendants carry out scheduled executions without significant modifications to their COVID-19 prevention measures. The plaintiffs' second motion for

preliminary injunction, dkt. 47 , is granted in part and denied in part. A separate order for preliminary injunction shall issue. (See Order.) Signed by Judge Jane Magnus-Stinson on 1/7/2021. (RSF) (Entered: 01/07/2021)

01/07/2021 56

Order Granting Preliminary Injunction - The Court concluded in an order issued on this date that plaintiffs Patrick R. Smith and Brandon S. Holm have demonstrated that they are entitled to a preliminary injunction. The defendants are enjoined from carrying out any future executions in the next 60 days without implementing the following policies: SEE ORDER. Signed by Judge Jane Magnus-Stinson on 1/7/2021.(RSF) (Entered: 01/07/2021)

01/10/2021 57

Emergency MOTION for Pre- and Post-Execution Compliance Reports, filed by Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH. (Attachments: # 1 Text of Proposed Order)(Burgoyne, Robert) (Entered: 01/10/2021)

01/10/2021

58 MARGINAL ENTRY - Defendants shall file any response to the

Plaintiffs' motion 57 by noon January 11, 2021. No reply is necessary. Signed by Judge Jane Magnus-Stinson on 1/10/2021.(RSF) (Entered: 01/10/2021)

01/11/2021 59

RESPONSE in Opposition re 57 Emergency MOTION for Pre- and Post-Execution Compliance Reports , filed by Defendants WILLIAM P. BARR, MICHAEL CARVAJAL, T.J. WATSON. (Von Bokern, Jordan) (Entered: 01/11/2021)

01/11/2021 60

Order Granting in Part and Denying in Part Plaintiffs' Emergency Motion for Pre- and Post-Execution Compliance Reports - the

plaintiffs' motion, dkt. 57 , is granted in part and denied in part. Within 15 days of each execution carried out at FCC Terre Haute, the defendants shall each file with the Court a sworn affidavit or declaration under penalty of perjury attesting that they have complied with the Court's preliminary injunction. Any other requested relief is denied. Nothing in this entry prevents the Court from taking additional enforcement action, should it learn its

01/15/2021 61
01/15/2021 62
01/15/2021 63
01/15/2021 64
01/15/2021 65

injunction is not being followed. (See Order.) Signed by Judge Jane Magnus-Stinson on 1/11/2021. (RSF) (Entered: 01/11/2021)
Emergency MOTION Requiring Defendants to Show Cause Why They Should Not Be Held in Contempt, filed by Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH. (Attachments: # 1
Exhibit 1 - Davis Declaration, # 2 Exhibit Attachment to
Davis Decl. - G. Hale Twitter, # 3 Exhibit 2 - Breeden
Declaration, # 4 Text of Proposed Order)(Burgoyne, Robert) (Entered: 01/15/2021)
Order Directing Defendants Michael Carvajal and T.J. Watson to
Show Cause - The plaintiffs' motion, dkt. 61 , is granted to the extent that defendants T.J. Watson and Michael Carvajal shall have until 7:00 p.m. Eastern on January 15, 2021, to show cause why they should not be held in contempt for violating the injunction. The response must be personally verified by each of these defendants. (See Order.) Signed by Judge Jane Magnus-Stinson on 1/15/2021.(RSF) (Entered: 01/15/2021)
RESPONSE in Opposition re 61 Emergency MOTION Requiring Defendants to Show Cause Why They Should Not Be Held in Contempt , filed by Defendants WILLIAM P. BARR, MICHAEL CARVAJAL, T.J. WATSON. (Attachments:
# 1 Exhibit A - Winter declaration, # 2 Exhibit B -
Watson declaration, # 3 Exhibit C - Carvajal declaration)(Von Bokern, Jordan) (Entered: 01/15/2021)
REPLY in Support of Motion re 61 Emergency MOTION Requiring Defendants to Show Cause Why They Should Not Be Held in Contempt , filed by Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH. (Burgoyne, Robert) (Entered: 01/15/2021)
Order Denying in Part Plaintiffs' Motion for Finding of Contempt -
The plaintiffs' motion, dkt. 61 , is denied in part. The Court shall not stay executions pending a ruling on the motion to show cause. Nor shall the Court prohibit the officials who removed their

01/21/2021 66
01/27/2021 67
01/29/2021 68
01/29/2021 69
02/02/2021 70

masks during the execution on January 14, 2021, from participating in the execution on January 15, 2021. However, the defendants shall ensure that these two officials shall not have close contact with any FCC Terre Haute personnel, beginning immediately and for the remainder of the officials' time at FCC Terre Haute in January 2021. "Close contact" shall be defined as "being within 6 feet of a person for a cumulative total of 15 minutes or more over a 24-hour period." The defendants shall certify compliance with this requirement in accordance with the terms in the Court's order dated January 11, 2021. The Court may set a hearing for additional factfinding in a future order. (See Order.) Signed by Judge Jane Magnus-Stinson on 1/15/2021.(RSF) (Entered: 01/15/2021)
NOTICE of Parties' First Extension of Time re Filing a response to pleading defined by Fed. R. Civ. P. 7(a), filed by Defendants WILLIAM P. BARR, MICHAEL CARVAJAL, T.J. WATSON. (Woods, Shelese) (Entered: 01/21/2021)
NOTICE of Compliance, filed by Defendants WILLIAM P. BARR,
MICHAEL CARVAJAL, T.J. WATSON, re 56 Preliminary
Injunction, 65 Entry, 60 Order on Motion. (Attachments:
# 1 Exhibit 1, Watson Decl., # 2 Exhibit 2, Carvajal Decl.) (Woods, Shelese) (Entered: 01/27/2021)
NOTICE of Compliance, filed by Defendants WILLIAM P. BARR,
MICHAEL CARVAJAL, T.J. WATSON, re 56 Preliminary
Injunction, 65 Entry, 60 Order on Motion. (Attachments: # 1 Exhibit 1, Carvajal Decl., # 2 Exhibit 2, Watson Decl.) (Woods, Shelese) (Entered: 01/29/2021)
NOTICE of Compliance, filed by Defendants WILLIAM P. BARR,
MICHAEL CARVAJAL, T.J. WATSON, re 56 Preliminary
Injunction, 65 Entry, 60 Order on Motion. (Attachments:
# 1 Exhibit 1, Carvajal Decl., # 2 Exhibit 2, Watson Decl.) (Woods, Shelese) (Entered: 01/29/2021)
SCHEDULING ORDER: A Status Conference is set for 2/5/2021 at 3:00 PM (Eastern Time) by Telephone before Magistrate Judge Doris L. Pryor. The purpose of the conference is to discuss case

status. Counsel shall attend the conference by calling the designated phone number, to be provided by the Court via email generated by the Court's ECF system. Signed by Magistrate Judge Doris L. Pryor on 2/2/2021(KAA) (Entered: 02/02/2021)

02/09/2021 72

MINUTE ORDER for proceedings held before Magistrate Judge Doris L. Pryor: The parties appeared by telephone for a conference on February 5, 2021. Robert Burgoyne appeared for the plaintiffs. Assistant United States Attorney Shelese Woods appeared for the defendants. On or before February 12, 2021, the plaintiffs will notify the Court whether they seek a hearing on their emergency

motion requiring defendants to show cause, dkt. 61 . The matter is set for a telephone status conference on February 16, 2021 at 8:30 a.m. (Eastern). The purpose of the conference is to discuss case status. Counsel shall attend the conference by calling the designated phone number, to be provided by the Court via email generated by the Court's ECF system. Signed by Magistrate Judge Doris L. Pryor. (CAG) (Entered: 02/09/2021)

02/12/2021

74 RESPONSE to Defendants' Reports Regarding Compliance, re 68

Notice (Other), 69 Notice (Other), 67 Notice (Other), filed by Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH. (Burgoyne, Robert) (Entered: 02/12/2021)

02/17/2021 75

MINUTE ORDER for proceedings held before Magistrate Judge Doris L. Pryor: The parties appeared by telephone for a conference on February 16, 2021. Robert Burgoyne appeared for the plaintiffs. Assistant United States Attorney Shelese Woods appeared for the defendants. The parties discussed the plaintiffs' recent filing, dkt. 74. The matter is set for a telephone status conference on February 19, 2021, at 11:00 a.m. (Eastern). The purpose of the conference is to discuss case status. Counsel shall attend the conference by calling the designated phone number, to be provided by the Court via email generated by the Court's ECF system. Signed by Magistrate Judge Doris L. Pryor. (CAG) (Entered: 02/17/2021)

02/18/2021

77 RESPONSE re 74 Response , filed by Defendants WILLIAM P. BARR, MICHAEL CARVAJAL, T.J. WATSON. (Woods, Shelese) (Entered: 02/18/2021)

02/19/2021 78

Order Denying Without Prejudice Plaintiffs' Motion to Require Supplemental Report:The plaintiffs filed this civil rights action alleging that the defendants, by conducting executions during a pandemic, showed deliberate indifference to their health and safety.

On January 7, 2021, the Court granted in part the plaintiffs' motion for preliminary injunction and prohibited the defendants from carrying out executions without taking certain precautions. Dkts. 55 and 56. On January 11, 2021, the Court directed the defendants to file sworn affidavits or declarations following each execution attesting to their compliance with the preliminary injunction. Dkt. 60. The defendants filed declarations on January 27 and January 29, 2021. Dkts. 6769. The plaintiffs filed a purported response to those declarations, dkt. 74, asking for a Court order directing the defendants to file a supplemental report documenting their compliance with the preliminary injunction. The Court construes this response as a motion for the Court to order a supplemental report, and that motion, dkt. 74 , is denied without prejudice. The plaintiffs have not shown that the discovery process is inadequate for them to obtain the information they seek. If, after discovery, the plaintiffs wish to challenge the defendants' declarations as inadequate, this Order does not prevent them from doing so. Signed by Judge Jane Magnus-Stinson on 2/19/2021.(NLR) (Entered: 02/19/2021)

02/22/2021

79 MOTION to Dismiss for Lack of Jurisdiction , filed by Defendants WILLIAM P. BARR, MICHAEL CARVAJAL, T.J. WATSON. (Woods, Shelese) (Entered: 02/22/2021)

02/22/2021 80

BRIEF/MEMORANDUM in Support re 79 MOTION to Dismiss for Lack of Jurisdiction , filed by Defendants WILLIAM P. BARR, MICHAEL CARVAJAL, T.J. WATSON. (Woods, Shelese) (Entered: 02/22/2021)

02/22/2021

81 MINUTE ORDER for proceedings held before Magistrate Judge Doris L. Pryor: The parties appeared by telephone for a conference on February 16, 2021. Robert Burgoyne appeared for the plaintiffs. Assistant United States Attorney Shelese Woods appeared for the defendants. The parties discussed discovery. The defendants will produce responses to the plaintiffs' discovery requests by March 5, 2021. The matter is set for a telephone status conference on March 18, 2021, at 9:45 a.m. (Eastern). The purpose of the conference is to discuss case status. Counsel shall attend the conference by calling the designated phone number to be provided by the Court via email generated by the Court's ECF system. Signed by Magistrate Judge Doris L. Pryor. (CAG) (Entered: 02/22/2021)

03/15/2021

83 RESPONSE to Motion re 79 MOTION to Dismiss for Lack of Jurisdiction , filed by Plaintiffs BRANDON S. HOLM, PATRICK R. SMITH. (Burgoyne, Robert) (Entered: 03/15/2021)

03/15/2021

86 MOTION to Appoint Counsel, filed by Plaintiff PATRICK R. SMITH. (Attachments: # 1 Exhibit, # 2 Envelope)(AAS) (Entered: 03/17/2021)

03/16/2021 84

Order Dismissing Action as Moot - The defendant's motion to dismiss, dkt. 79 , is granted. This action is dismissed for lack of jurisdiction. The plaintiffs' pending motion for an order requiring

the defendants to show cause, dkt. 61 , is denied as moot. Final judgment shall now enter. Signed by Judge Jane Magnus-Stinson on 3/16/2021. (KAA) (Entered: 03/16/2021)

03/16/2021 85

FINAL JUDGMENT - The Court now enters final judgment. This action is dismissed for lack of jurisdiction. Signed by Judge Jane Magnus-Stinson on 3/16/2021.(KAA) (Entered: 03/16/2021)

03/18/2021

87 Order Denying Motion to Appoint Counsel - Mr. Smith has submitted a letter to the Court asking for counsel to investigate his unrelated claim that prison medical staff are denying him adequate care. Dkt. 86. The Court construes this letter as a motion for counsel, and the motion, dkt. 86 , is denied. The clerk is directed to include a blank prisoner complaint form with Mr. Smith's copy of this Order. SEE ORDER. Copy to Plaintiff via US Mail. Signed by Judge Jane Magnus-Stinson on 3/18/2021. (Attachments: # 1 Prisoner Complaint Form) (KAA) (Entered: 03/18/2021)

Case #: 2:20-cv-00630-JMS-DLP

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 Case 2:20-cv-00630-JMS-DLP Document 12 Filed 11/30/20 Page 1 of 4 PageID #: 81

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

________________________________________________

)

PATRICK R. SMITH and BRANDON S.

)

HOLM, individually and on behalf of all others similarly )

situated,

)

)

Plaintiffs,

)

)

v.

)

)

WILLIAM P. BARR, in his official capacity as the

)

Attorney General of the United States; MICHAEL

)

CARVAJAL, in his official capacity as the Director

)

of the Federal Bureau of Prisons; and T. J. WATSON, in )

his official capacity as Complex Warden for the Terre )

Haute Federal Correctional Complex,

)

)

Defendants.

)

________________________________________________)

No. 2:20-cv-630-JMS-DLP

PLAINTIFFS’ EMERGENCY MOTION FOR PRELIMINARY INJUNCTION AND REQUEST FOR EXPEDITED CONSIDERATION
Pursuant to Fed. R. Civ. P. 65 and S.D. Ind. L.R. 65-2, plaintiffs Patrick R. Smith and Brandon S. Holm (“Plaintiffs”), individually and on behalf of a putative class of all others similarly situated, specifically, all people who are currently incarcerated at the Terre Haute Federal Correctional Complaint (“FCC Terre Haute”), hereby move for a preliminary injunction prohibiting the Defendants from conducting further executions at FCC Terre Haute during the ongoing COVID-19 pandemic, until such time as Plaintiffs and all other members of the putative Class have received an effective vaccine and COVID-19 no longer jeopardizes their health and their lives.
As set forth in the accompanying memorandum of law and demonstrated in the supporting declarations, Plaintiffs are likely to succeed on the merits in this case and will suffer irreparable harm in the absence of a temporary restraining order and preliminary injunction. The balance of

150351820.1

Case 2:20-cv-00630-JMS-DLP Document 12 Filed 11/30/20 Page 2 of 4 PageID #: 82

harms weighs in Plaintiffs’ favor, and the public interest favors a preliminary injunction temporarily prohibiting the executions and the public health risk they present.
Counsel for Plaintiffs notified Defendants of the filing of this action by sending a copy of the Complaint by email to Assistant United States Attorney for the Southern District of Indiana, Shelese Woods, shortly after it was filed on November 27. Counsel for Plaintiffs will also send an email copy of this motion and the accompanying papers to Ms. Woods promptly after filing. Emergency relief is needed and expedited consideration is requested, given that the next execution is scheduled to occur at FCC Terre Haute on December 10, 2020.
Wherefore, Plaintiffs respectfully request that the Court grant their motion and preliminarily enjoin Defendants from conducting further executions at FCC Terre Haute until such time as Plaintiffs and all other members of the putative Class have received an effective vaccine and COVID-19 no longer jeopardizes their health and their lives.

Dated: November 30, 2020

Respectfully submitted,

/s/ John R. Maley_________ John R. Maley Barnes & Thornburg LLP 11 South Meridian Street Indianapolis, Indiana 46204-3535 Telephone: (317) 231-7464 (direct)
(317) 432-5509 (mobile) Facsimile: (317) 231-7433 John.maley@btlaw.com

Robert A. Burgoyne, pro hac vice* Caroline M. Mew, pro hac vice* Perkins Coie LLP 700 13th St. NW, Suite 800 Washington, DC 20005-3960 Telephone: (202) 654-1767 Facsimile: (202) 654-6211 rburgoyne@perkinscoie.com cmew@perkinscoie.com

150351820.1

- 2 -

Case 2:20-cv-00630-JMS-DLP Document 12 Filed 11/30/20 Page 3 of 4 PageID #: 83
Sarah Howland, pro hac vice* Perkins Coie LLP 1155 Avenue of the Americas, 22nd Floor New York, N.Y. 10036-2711 Telephone: (212) 262-6900 showland@perkins.coie.com
Attorneys for Plaintiffs
*Pro hac vice applications pending

150351820.1

- 3 -

Case 2:20-cv-00630-JMS-DLP Document 12 Filed 11/30/20 Page 4 of 4 PageID #: 84

CERTIFICATE OF SERVICE

I hereby certify that on November 30, 2020, copies of the foregoing document and the

accompanying declarations and proposed order were filed electronically. Service of this filing

will be made on all ECF-registered counsel by operation of the court's electronic filing system.

Parties may access this filing through the court's system, including to:

Shelese M. Woods Civil Chief
United States Attorney’s Office 10 W. Market Street Suite 2100
Indianapolis, IN 46204 shelese.woods@usdoj.gov

I further certify that on November 30, 2020, copies of the foregoing document and the

accompanying declarations and proposed order were mailed, by first-class U.S. Mail, postage

prepaid and properly addressed to the following:

William P. Barr, Attorney General U.S. Department of Justice
950 Pennsylvania Avenue, NW Washington, DC 20530

Michael Carvajal Acting Director Federal Bureau of Prisons
U.S. Department of Justice 320 First St., NW
Washington, DC 20534

T.J. Watson, Complex Warden USP - Terre Haute U.S. Penitentiary
4700 Bureau Road South Terre Haute, IN 47802

Respectfully submitted,

150351820.1

/s/ John R. Maley John R. Maley
- 4 -

 
 Case 2:20-cv-00630-JMS-DLP Document 37 Filed 12/08/20 Page 1 of 17 PageID #: 701

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

PATRICK R. SMITH, et al. Plaintiffs,
v. WILLIAM P. BARR, et al.
Defendants.

)

)

)

)

)

No. 2:20-cv-00630-JMS-DLP

)

)

)

)

Order Denying Motion for Preliminary Injunction

The novel coronavirus, or COVID-19, has killed more than 280,000 Americans and more

than 6,000 Indiana residents. COVID-19 infections are surging in Indiana, with hospitalizations at

an all-time high. At FCC Terre Haute, 285 inmates and staff member are currently COVID-

positive. Despite these alarming numbers, the Attorney General of the United States and Federal

Bureau of Prisons have determined that proceeding with the execution of five condemned inmates

at FCC Terre Haute in December and January is an appropriate course of action.

The plaintiffs are two inmates at FCI Terre Haute who have preexisting conditions that

increase their likelihood of severe complications if they were to contract COVID-19. The plaintiffs

allege that the government's decision to proceed with the scheduled executions manifests

deliberate indifference to their health. They have moved the Court to enjoin all five executions

until the threat of the pandemic has passed and all inmates and staff at FCC Terre Haute have been

vaccinated.

Although the Court shares the plaintiffs' concerns that conducting executions at this time

may well result in more COVID-19 cases for those involved in the executions, the plaintiffs have

1

Case 2:20-cv-00630-JMS-DLP Document 37 Filed 12/08/20 Page 2 of 17 PageID #: 702
not shown that increased risk extends to them, and thus have not shown a likelihood of success on the merits of their motion. Accordingly, the motion for preliminary injunction must be denied.
I. Background A. COVID-19 in the Community COVID-19 has been spreading in the United States since early 2020. It is a highly contagious and deadly disease. While most people who contract COVID-19 experience mild symptoms, the virus can lead to respiratory failure, lung damage, heart damage, neurological damage, and death. The virus is generally spread "through exposure to respiratory droplets when a person is in close contact with someone who has COVID-19," though there is also evidence that transmission can occur amongst people who are farther apart if they are in enclosed spaces with inadequate ventilation.1 Wearing masks, hand-washing, and social distancing help prevent the spread of the virus. Id. This year, more than 13 million people in the United States have tested positive and more than 280,000 Americans have died from COVID-19-related illnesses.2 The virus has upended every aspect of American life. More Americans work from home than ever. Businesses such as restaurants, movie theaters, and concert venues have shuttered—some temporarily, some permanently. Millions of children are attending school virtually. Hospitals' resources are stretched to their limits. Dr. Anthony Fauci, the nation's top infectious disease expert, has urged Americans to cancel Christmas travel plans, citing the uptick in cases from ill-advised Thanksgiving travel.3
1 CDC, How COVID-19 Spreads, https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/how-covid-spreads.html (last updated Oct. 28, 2020). 2 CDC, Covid Tracker, https://covid.cdc.gov/covid-data-tracker/#cases_casesper100klast7days (last accessed Dec. 8, 2020). 3 Alex Korab, Dr. Fauci Warns You Cancel Christmas Travel Now, YAHOO LIFE (Dec. 4, 2020), https://www.yahoo.com/lifestyle/dr-fauci-warns-cancel-christmas-125504391.html
2

Case 2:20-cv-00630-JMS-DLP Document 37 Filed 12/08/20 Page 3 of 17 PageID #: 703
On March 6, 2020, Indiana Governor Eric Holcomb declared a public health emergency
throughout the State of Indiana and renewed that declaration for the ninth time on December 1,
2020.4 In Indiana, more than 387,000 Indiana residents have contracted COVID-19, and 5,986
have died.5 Indiana has experienced a surge of positive cases in recent weeks. As of December 1,
2020, Indiana ranks second in the nation for COVID-19 hospitalizations per capita, with roughly
50 out of every 100,000 Hoosiers currently hospitalized with COVID-19.6 The number of Indiana
residents now hospitalized with COVID-19 exceeds any other time in the pandemic. Id. With over
1,400 COVID-19 deaths, November was the deadliest month in Indiana since the pandemic
began.7
In light of the surge of cases in Indiana, Governor Holcomb has implemented new measures
to "counter the spread" of COVID-19, including enhanced social distancing and limits on how
many people may convene "in a single space."8 The Indiana Department of Health has created a
system of color-coding counties based on the number of weekly cases per 100,000 and the seven-
4 Executive Order 20-49, Ninth Renewal of the Public Health Emergency Declaration for the COVID-19 Outbreak, (Dec. 1, 2020) available at, https://www.in.gov/gov/files/ExecutiveOrder-20-49-Ninth-Renewal-of-Emergency-Declaration.pdf 5 IN.GOV, Department of Health: Health Department Updates Statewide COVID-19 Case Counts (Dec. 7, 2020), https://events.in.gov/event/health_department_updates_statewide_covid19_case_counts_5636 6 Shari Rudavsky and Emily Hopkins, Indiana has more people per capita hospitalized for coronavirus than any other state but one, INDIANAPOLIS STAR (Dec. 1, 2020), https://www.indystar.com/story/news/health/2020/12/01/indiana-covid-state-2nd-nationhospitalizations-per-capita/6468779002/ 7 Shari Rudavsky and Stephen Beard, November is deadliest month to date for Indiana, INDIANAPOLIS STAR (Dec. 3, 2020), https://www.indystar.com/story/news/health/2020/12/03/indiana-covid-deaths-hit-record-highnovember/3797155001/ 8 Executive Order 20-48, County—Based Measures and Restrictions Based on the Impact and Spread of the Coronavirus Disease (Nov. 19, 2020), available at https://www.in.gov/gov/files/Executive_Order_20-48_Color-Coded_County_Assessments.pdf
3

Case 2:20-cv-00630-JMS-DLP Document 37 Filed 12/08/20 Page 4 of 17 PageID #: 704
day positivity rate. Id. Counties rated Red have the highest number of active cases, followed by Orange, Yellow, and Blue. Id. Health guidelines depend on the county's color. Id. For counties designated as Orange, no more than 50 individuals may be present at an event "in a single space, indoors or outdoors, at the same time"; for counties designated as Red, the limit is 25 individuals. Id. Groups seeking to host an event with more individuals are required to submit a safety plan to the local board of health. Id. Vigo County is currently designated Orange, but local health officials expect Vigo County to turn Red by the week of December 6, 2020.9 Due to rising number of COVID-19-related deaths, the Vigo County Health Department recently rented "four refrigerated semi-trailers" to serve as a temporary morgue, with a health department administrator stating, "We have to have some place for mass casualties to go, and this is one of those situations that is going to get worse before it gets better."10
B. COVID-19 in the BOP Prisons have been hotspots for COVID-19 outbreaks.11 There are many challenges in the prison setting that create an increased risk of a COVID-19 outbreak: prisoners and staff cannot appropriately practice social distancing; prisons lack adequate personal protective equipment; prisons are often poorly ventilated; and prisoners are transported between facilities, hospitals, and
9 WTHI-TV 10, Looking ahead to the future: Vigo County's COVID-19 status may turn red (Dec. 2, 2020), https://www.wthitv.com/content/news/Looking-ahead-to-the-future-Vigo-countymay-be-going-red--573268361.html 10 Sue Loughlin, Vigo County orders refrigerated trucks for bodies, TRIBUNE-STAR (Nov. 13, 2020), https://www.tribstar.com/news/vigo-county-orders-refrigerated-trucks-forbodies/article_a200de04-25c7-11eb-92b9-277611899579.html 11 See, e.g., Edmund L. Andrews, Why prisons and jails have become COVID hotspots, Stanford Engineering (Sept. 23, 2020), https://engineering.stanford.edu/magazine/article/why-prisonsand-jails-have-become-covid-hotspots
4

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court in multi-person vans.12 Because of the inherent risk of exposure to COVID-19 in the correctional setting, the CDC has designated correctional officers as high priority to receive a vaccine once it becomes available.13 As of December 1, 2020, in the United States more than 227,300 prisoners have tested positive for COVID-19, and over 1,500 inmates have died.14 Specific to the Federal Bureau of Prisons (BOP), as of December 7, 2020, there are 124,610 federal inmates and approximately 36,000 staff members. Of those, 5,555 inmates and 1,613 staff are currently positive with COVID-19, over 22,600 inmates and 2,100 staff have recovered, and at least 151 inmates and 2 staff members have died.15 At FCC Terre Haute, 264 inmates and 21 staff currently have COVID-19, 301 inmates and 48 staff have recovered, and at least 3 inmates have died. Id.
Despite the surge in COVID-19 cases in Vigo County (and the rest of the country) and the current COVID-19 outbreak at FCC Terre Haute, the Department of Justice has scheduled five executions at FCC Terre Haute in December 2020 and January 2021: Brandon Bernard on December 10, Alfred Bourgeois on December 11, Lisa Montgomery on January 12, Cory Johnson on January 14, and Dustin Higgs on January 15.16 Citing concern with the increase of COVID-19
12 CDC, COVID-19 in Correctional and Detention Facilities, United States, February – April 2020 (May 6, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e1.htm 13 CDC, Meeting of the Advisory Committee on Immunization Practices (ACIP) (Nov. 23, 2020), https://www.cdc.gov/vaccines/acip/meetings/downloads/min-archive/summary-2020-11.pdf. 14 THE MARSHALL PROJECT, A State-by-State Look at Coronavirus in Prisons, https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-at-coronavirus-in-prisons (last updated Dec. 7, 2020). 15 BOP, Covid-19 Cases, https://www.bop.gov/coronavirus/index.jsp. (last updated Dec. 7, 2020). 16 Federal Bureau of Prisons, Scheduled Executions, https://www.bop.gov/resources/federal_executions_info.jsp
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cases, the American Bar Association,17 members of Congress,18 and a group of nearly 100 law
enforcement professionals19 have urged the government to postpone the executions until they are
safe to conduct—perhaps until a vaccine is widely available. No state has held an execution since
July 2020, and several state executions have been postponed for COVID-related reasons.20
FCC Terre Haute is situated on approximately 1,145 acres and is comprised of three
separate prisons in three separate buildings: the United States Penitentiary (USP), which is a high
security prison; the Federal Correctional Institution (FCI), which is a medium security prison; and
the Federal Prison Camp (FPC), which is a minimum security prison camp. Dkt. 28-1 at ¶ 6. There
is also a utility plant, a staff training center, the National Bus Center, a garage, and other buildings
on the property. Id.
The execution facility is separate from the other buildings. Id. It is approximately one
hundred feet from the FCI but is physically separated by perimeter fencing and razor wire. Id. The
execution facility is the equivalent of several city blocks from the FPC, which is further south on
17 Letter from ABA President Patricia Lee Refo to President Donald J. Trump (Nov. 12, 2020), https://www.americanbar.org/content/dam/aba/administrative/government_affairs_office/fedexecutions-letter-111220.pdf 18 See, e.g., Letter from the Congressional Black Caucus to Attorney General William Barr (Nov. 17, 2020), https://cbc.house.gov/uploadedfiles/cbc_letter_to_ag_barr_on_pending_executions.pdf. 19 Fair and Just Prosecution, Joint Statement by Criminal Justice and Law Enforcement Leaders in Opposition to Application of the Federal Death Penalty (Dec. 2020), available at https://fairandjustprosecution.org/wp-content/uploads/2020/12/FJP-Federal-Death-Penalty-JointStatement.pdf 20 See Death Penalty Information Center, Outcomes of Death Warrants in 2020, https://deathpenaltyinfo.org/stories/outcomes-of-death-warrants-in-2020 (showing last state execution held in Texas on July 8, 2020, and other cases postponed due to COVID-19) (last updated Nov. 30, 2020); Travis Loller, ASSOCIATED PRESS (Dec. 3. 2020), Tennessee inmate's execution put on hold due to COVID-19, https://abcnews.go.com/US/wireStory/tennesseeinmates-execution-put-hold-due-covid-19-74526641 (Tennessee Supreme Court indefinitely postponing inmate's execution "because of the multiple issues caused by the continuing COVID19 pandemic.").
6

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the property, and even farther from the USP, which is south of the FPC. Id. The execution facility is quite small. The chamber is approximately ten feet by twelve feet and is flanked by three even smaller viewing rooms separated by plexiglass. See dkt. 13-5 at ¶ 9, dkt. 13-29 at ¶¶ 14–15.
The BOP and FCC Terre Haute have issued a variety of directives in light of the pandemic. Dkt. 28-1 at ¶ 8. The guidelines are derived from the World Health Organization, the Centers for Disease Control (CDC), the Office of Personnel Management, and the Office of the Vice President. Id. The BOP announced agency-wide modified operations in response to COVID-19 on March 13, 2020,21 and the modifications remain in place to date. Id. BOP-wide modifications include the following measures, among others: (1) all staff, contractors, and visitors undergo temperature checks and COVID-19 screenings, with those who register a temperature of 100.4° Fahrenheit or higher denied access to the grounds; (2) as much as possible, staff are being assigned to the same posts and are not rotating; (3) inmate movement is limited so as to prevent congregating and to maximize social distancing; (4) all new intakes to an institution are screened for COVID-19, and those who test positive or exhibit symptoms are placed in medical isolation, while those who test negative and are asymptomatic are placed in quarantine. Id.
At FCC Terre Haute, policies in place require all staff, inmates, and visitors to wear masks inside the institution, and masks are provided if a visitor does not have one. Id. at ¶ 9. Social distancing is practiced "[w]here possible." Id. Staff are required to self-report any COVID-19 exposure (known or suspected) as well as any positive COVID-19 test. Id. at ¶ 10. Staff do not move between the separate facilities and buildings unless necessary, although some positions "by their nature involve working at multiple institutions, including custody staff, facilities staff, as
21 Federal Bureau of Prisons, Federal Bureau of Prisons COVID-19 Action Plan: Agency-wide Modified Operations, (Mar. 13, 2020), https://www.bop.gov/resources/news/20200313_covid19.jsp
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well as medical, dental, and psychology staff." Id. FCC Terre Haute has multiple rapid Abbot test machines which are used to immediately test symptomatic inmates (and asymptomatic inmates with whom the sick inmates have been in close contact) in an effort to isolate and quarantine them more quickly. Id. at ¶ 12.
Each execution will bring approximately 50 to 125 individuals to FCC Terre Haute. Dkt. 28-1 at ¶ 16. Each execution requires the efforts of approximately 40 BOP employees brought from out-of-state facilities ("the execution team") and approximately 70 FCC Terre Haute staff. Id. at ¶¶ 16–17, 22. The execution team does not quarantine upon their arrival in Indiana because they generally arrive only a few days prior to a scheduled execution. Id. at ¶ 17. The execution team is primarily engaged in duties in and around the execution facility and generally does not interact with inmates outside of the execution facility. Id. The execution team generally does not enter the FCI, USP, or FPC while at FCC Terre Haute, although some members of the team interact with FCC Terre Haute personnel incident to their role in the operation of the execution. Id. During these interactions, "BOP staff are required to wear masks and to the extent possible remain socially distanced." Id. The FCC Terre Haute staff who help facilitate execution-related events have duties such as managing check points and perimeter security, staffing the command center, and escorting witnesses and demonstrators. Id. at ¶ 22. These "FCC staff will have some interaction with both the public and the BOP personnel attending the execution." Id.
Other individuals who otherwise would not be at FCC Terre Haute—including media witnesses, members of the defendants' legal team, victims' family members, and inmates' family members—also congregate at the prison to witness the execution. Id. at ¶ 16. These individuals do not enter FCI or interact with any FCC Terre Haute inmates other than the condemned. Id. at ¶ 19. Although demonstrators are permitted to demonstrate on FCC Terre Haute grounds, so far none
8

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have chosen to come onto the grounds, instead electing to demonstrate in an area across the street from the property. Id. at ¶ 21. If demonstrators choose to enter the property, they will be screened and temperature checked. Id. Further, the demonstration area is near the main public road and not near any of the prison buildings. Id.
COVID-19 tests for BOP employees are conducted on a voluntary basis. Id. at ¶ 23. Eight federal executions have taken place this year, and only five to seven members of the BOP execution team have elected to be tested after returning to their home communities. Id. In July, a BOP staff member who had interacted with the execution team tested positive for COVID-19 before an execution. Hartkemeyer v. Barr, 2:20-cv-00336-JMS-DLP, dkt. 77-1. Per BOP policy, contact tracing was immediately initiated to determine the staff member's close contacts, and no additional cases of COVID-19 were discovered as a result of traced persons' contact with the infected member. Dkt. 28-1 at ¶ 24.
Although safety measures have been implemented, enforcement is another matter. Orlando Hall was the last person to be executed at FCC Terre Haute on November 19, 2020. Mr. Hall's spiritual advisor, Yusuf Ahmed Nur, witnessed the execution and observed several instances of non-compliance with the aforementioned policies. To attend the execution, Mr. Nur drove to the Vigo County Sheriff's office parking lot, where a BOP staff member drove him, three witnesses, two prison officials, and a chaplain in a van to USP for processing. Dkt. 13-29 at ¶ 5. The eight individuals were in the van with the windows rolled up for about 15 minutes. Id. He observed several BOP staff either not wearing masks or wearing them incorrectly. Dkt. 13-29 at ¶¶ 8, 11, 18. Mr. Nur alleges that neither of the two executioners wore masks at all within the execution chamber, id. at ¶ 15, but another witness attested that the two individuals wore masks except to make announcements as the execution process began, dkt. 33-2 at ¶¶ 6–7. Mr. Nur tested
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positive for COVID-19 shortly after the execution. Dkt. 13-29 at ¶¶ 25–29. Mr. Nur believes he contracted COVID-19 because of his participation in Mr. Hall's execution, but given his contact with his children and a host of other unknowns, the source of his illness is uncertain.
Six execution team members also tested positive for COVID-19 approximately a week after Mr. Hall's execution. Dkt. 33-2 at ¶ 8. The government did not advise Mr. Nur about the positive tests amongst the execution team—although any contact between the COVID-positive execution team members and Mr. Nur is unclear—nor did the government contact Mr. Nur regarding his positive COVID-19 test results to conduct any contact tracing. Dkt. 29-6 at ¶¶ 9–10. The COVID-positive execution team members are following CDC guidelines with respect to whether they will travel to Terre Haute for the December executions. Dkt. 33-2 at ¶ 9.
Plaintiffs Smith and Holm reside in FCI and thus do not interact with inmates on death row, who reside at USP, or with anyone in the execution facility. At FCI, they have also personally observed flouting of the COVID-19 safety policies, including lack of proper social distancing, little or no access to soap, lack of mask enforcement, sick inmates serving food, and a two-week disruption of hot water. Dkts. 13-15 at ¶¶ 30–32, 40–43; 13-21 at ¶ 17–23. Mr. Smith also believes from personal observation that there have been more COVID-19-related inmate deaths at FCC Terre Haute than reported on the BOP website. Dkt. 13-15 at ¶ 28. The plaintiffs' observations, of course, are not specific to execution-related events but the operation of the facility generally. Significantly, the plaintiffs acknowledge that these violations that affect them directly are not the subject of this lawsuit. See dkt. 31 at 13 ("While the COVID-mitigation efforts at FCC Terre Haute have indeed been insufficient, they are not the subject of this lawsuit.").
According to the plaintiffs, the number of positive COVID-19 cases at FCC Terre Haute increased after the executions that took place in August and September. Dkt. 13-27 at ¶¶ 25;
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dkt. 13-1 at ¶¶ 60–62. Three executions took place the week of August 23, when there were 26 positive cases at FCC Terre Haute. The next week, there were 88 positive cases, followed by another 32 the following week. After the executions that took place on September 22 and 24, the number of positive cases amongst inmates went from 2 to 7 new cases (Sept. 27–Oct. 3), the next week 8 more (Oct. 4–10), and the next week 19 more (Oct. 11−19). After Mr. Hall's execution, 104 staff and inmates were positive as of November 27, and 285 inmates and staff are positive as of December 7.22 However, COVID-19 cases have been increasing in Vigo County and Indiana generally these past few weeks.23
The Court held a hearing by video on December 8, 2020, to discuss the plaintiffs' motion for a preliminary injunction. Counsel for the government did not know whether any of the 21 staff who are currently COVID-positive were among the 70 FCC staff who performed execution-related duties at Mr. Hall's execution. Although contact tracing for the six COVID-positive execution team members was presumably conducted, see dkt. 28-1 at ¶ 24, counsel for the government did not know if contact tracing for these individuals resulted in the discovery of additional COVID-19 cases at FCC Terre Haute. The Court is unfortunately hamstrung by the limited information the government chose to disclose.
II. Standing The defendants argue that the plaintiffs do not have standing to bring their Eighth Amendment claim because any future injury is speculative, not traceable to the defendants' actions, and cannot be remedied by the relief they seek. Dkt. 28 at 12−15. But the defendants' standing arguments rely on a number of disputed facts that need not be resolved at this stage. Compare id.
22 BOP, Covid-19 Cases, https://www.bop.gov/coronavirus/index.jsp (last visited Dec. 8, 2020). 23 Indiana COVID-19 Dashboard and Map, https://www.coronavirus.in.gov/2393.htm (last updated Dec. 7, 2020).
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at 12−14 (asserting that BOP has implemented "rigorous safety measures" and arguing that plaintiffs might be infected with COVID-19 whether or not executions go forward), with dkt. 14 at 13−18 (alleging numerous breaches of these safety measures and arguing that executions increase the already existent risk of prisoners contracting COVID-19). The plaintiffs have sufficiently alleged that carrying out additional executions creates at least some additional risk that they will contract COVID-19. That is enough at this stage of proceedings, so the Court will not dismiss for lack of standing. See Booker-El v. Superintendent, Indiana State Prison, 668 F.3d 896, 899 (7th Cir. 2012) ("[T]he injury-in-fact requirement can be satisfied by a threat of future harm or by an act which harms the plaintiff only by increasing the risk of future harm that the plaintiff would have otherwise faced, absent the defendant's actions." (quoting Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 634 (7th Cir.2007)) (alteration in Booker-El).
III. Preliminary Injunction In deciding whether to issue a preliminary injunction to stay an execution, the Court must consider "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Nken v. Holder, 556 U.S. 418, 434 (2009). "The first two factors . . . are the most critical." Id. The burden to show "likely" success is lightest when the prospect of irreparable injury is greatest, and vice versa. Mays v. Dart, 974 F.3d 810, 822 (7th Cir. 2020). A. Likelihood of Success on the Merits The Eighth Amendment prohibits cruel and unusual punishment. Corollary to this prohibition is a duty upon prison officials, who must "ensure that inmates receive adequate food, clothing, shelter, and medical care, and must 'take reasonable measures to guarantee the
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safety of the inmates.'" Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526−27 (1984)). To prove Eighth Amendment deliberate indifference, the plaintiffs must show that the defendants knew of, but disregarded, a "substantial risk of harm" to their health. Goodloe v. Sood, 947 F.3d 1026, 1030−31 (7th Cir. 2020). The level of disregard required is roughly equivalent to criminal recklessness. Davis v. Kayira, 938 F.3d 910, 915 (7th Cir. 2019).
The defendants do not dispute that contracting COVID-19 would be a serious harm. But they argue that conducting executions in the manner they have planned does not constitute deliberate indifference toward the plaintiffs.
The plaintiffs make well-supported—though disputed—allegations that the defendants and prison staff could do more to prevent COVID-19 transmission in the prison. See, eg., dkt. 14 at 13−14 (alleging that social distancing is impossible even in communal areas, that inmates commonly interact with others who have recently tested positive, that protective equipment is lacking, that inmates are required to reuse masks for months at a time, and that mask use is not enforced); see also dkts. 13-5 at ¶¶ 30–32, 40–43; 13-21 at ¶ 17–23 (supporting declarations). While certainly most disturbing, these allegations do not demonstrate a strong likelihood of success on the plaintiffs' claim that the defendants have shown deliberate indifference by making the decision to proceed with executions.
The plaintiffs also make well-supported—though disputed—allegations that executions, like any mass gathering, are risky during the COVID-19 pandemic. See, e.g., id. at 14−18 (describing multiple close contacts among those present, staff failures to wear masks properly or at all, and a spiritual advisor's positive COVID-19 test on November 29, 2020, following the execution of Orlando Hall on November 24). But the plaintiffs will not be present for the scheduled executions, and the Seventh Circuit has made clear that the defendants have nearly unfettered
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discretion to schedule executions, pandemic or no. See, e.g., Peterson v. Barr, 965 F.3d 549, 552−53 (7th Cir. 2020) (rejecting as "frivolous" a victim's grandmother's claim to postpone the execution until after the resolution of the COVID-19 pandemic to ensure she could safely witness it).
What the plaintiffs do not allege with sufficient evidentiary support is a causal relationship between the executions and the rate of COVID-19 infections in the general prison population. To be sure, the evidence shows—and common sense dictates—that carrying out executions on prison property with prison staff involved creates some additional risk of COVID-19 infection for prisoners, including the plaintiffs. But "[t]he Eighth Amendment demands that officials ensure 'reasonable safety,' not that they protect against all risks." Estate of Simpson v. Gorbett, 863 F.3d 740, 746 (7th Cir. 2017). To succeed on their claim, the plaintiffs must show, at least, that the decision to carry out executions during the pandemic creates substantial additional risks for their health.
The plaintiffs' primary evidence of additional execution-based risk is the increase in positive cases at the prison following some of the execution dates. Dkt. 14 at 18−19; see dkt. 29-2 at 7 (graph of new weekly positive cases in Vigo County and at FCC Terre Haute, from March 15 to November 28, 2020). But the correlation is not consistent after each execution, and the most reasonable inference to draw from the plaintiffs' evidence is that FCC Terre Haute's infection rates are driven by the rates of infection in Vigo County. For each notable increase in positive cases at FCC Terre Haute, there is a corresponding increase over the prior two-to-three weeks in Vigo County. See dkt. 29-2 at 7. The correlation is not definitive, to be sure, but it seriously undermines the plaintiffs' contention that executions are driving the increases in positive COVID-19 cases. It
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is also consistent with the defendants' argument that FCC Terre Haute staff are more likely to be infected outside of work than when interacting with the execution team.
The plaintiffs appeal to common sense and imply causation from some level of correlation between executions and COVID-19 cases at FCC Terre Haute. But without compelling scientific or statistical evidence, they do not have a strong likelihood of success on their Eighth Amendment claim.
B. Irreparable Injury, Defendants' Interests, and Public Interests The irreparable injury analysis here overlaps significantly with both standing and likelihood of success. As discussed above, the plaintiffs have not shown that they are likely to be infected with COVID-19 because of the scheduled executions, and thus have no demonstrated an irreparable injury. The defendants have a substantial legal interest in timely enforcement of criminal defendants' sentences, such that the Court should not stay an execution lightly. Bucklew v. Precythe, 139 S. Ct. 1112, 1133 (2019) ("Both the [government] and the victims of crime have an important interest in the timely enforcement of a sentence."); Finally, the constitutional right of plaintiffs' and/or the putative class members' to be free from unreasonable risk of exposure to COVID-19 is a significant public interest. See Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012) ("[I]t is always in the public interest to prevent the violation of a party's constitutional rights." (quotation marks and citation omitted)). But this factor does not weigh heavily here because the plaintiffs have not shown that the scheduled executions will create a substantial additional risk to their health.24
24 The Court makes no finding that the conduct of the executions will not create a substantial additional risk to the health of the other participants in the execution.
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Taken together, the Nken factors weigh against issuing a preliminary injunction, and thus the plaintiffs' motion must be denied.
IV. Conclusion Circuit precedent arising from prior recent executions makes clear the nearly limitless discretion the Attorney General possesses in conducting federal executions. The only limitation to such discretion argued here is the Eighth Amendment to the United States Constitution, and the plaintiffs have not met their burden of showing their constitutional claim is likely to succeed. That others, or a court, might exercise discretion differently in light of the risks presented by a deadly virus is not the relevant calculus. The plaintiffs' emergency motion for preliminary injunction, dkt. [12], is therefore denied. The plaintiffs' motion for leave to file post-hearing responses to the Court's questions, dkt. [36], is granted. The Court considered these responses in deciding the motion. IT IS SO ORDERED.
December 8, 2020
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Distribution: Robert A. Burgoyne PERKINS COIE LLP rburgoyne@perkinscoie.com Sarah Howland PERKINS COIE LLP showland@perkinscoie.com John R. Maley BARNES & THORNBURG, LLP (Indianapolis) jmaley@btlaw.com Caroline M. Mew PERKINS COIE LLP cmew@perkinscoie.com Lisa A. Olson U.S. DEPARTMENT OF JUSTICE (Washington DC) lisa.olson@usdoj.gov Jordan L. Von Bokern U.S. DEPARTMENT OF JUSTICE (Washington DC) jordan.l.von.bokern2@usdoj.gov Shelese M. Woods UNITED STATES ATTORNEY'S OFFICE (Indianapolis) shelese.woods@usdoj.gov
17

 
 Case 2:20-cv-00630-JMS-DLP Document 47 Filed 12/28/20 Page 1 of 3 PageID #: 793

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

________________________________________________

)

PATRICK R. SMITH and BRANDON S.

)

HOLM, individually and on behalf of all others similarly )

situated,

)

)

Plaintiffs,

)

)

v.

)

)

JEFFREY A. ROSEN,1 in his official capacity as the

)

Acting Attorney General of the United States; MICHAEL )

CARVAJAL, in his official capacity as the Director

)

of the Federal Bureau of Prisons; and T. J. WATSON, in )

his official capacity as Complex Warden for the Terre )

Haute Federal Correctional Complex,

)

)

Defendants.

)

________________________________________________)

No. 2:20-cv-630-JMS-DLP

PLAINTIFFS’ SECOND MOTION FOR PRELIMINARY INJUNCTION Pursuant to Fed. R. Civ. P. 65 and S.D. Ind. L.R. 65-2, plaintiffs Patrick R. Smith and Brandon S. Holm (“Plaintiffs”), individually and on behalf of a putative class of all others similarly situated, specifically, all people who are currently incarcerated at the Terre Haute Federal Correctional Complex (“FCC Terre Haute”), hereby move for a preliminary injunction that postpones all executions at FCC Terre Haute until Defendants can demonstrate that the executions do not create a substantial risk that Plaintiffs and other inmates will contract COVID-19. Specifically, Defendants should be required to demonstrate that an adequate number of inmates have received an effective vaccine or that Defendants have modified the execution logistics to significantly reduce the risk of spreading COVID-19 at FCC Terre Haute. As set forth in the accompanying memorandum of law and demonstrated in the supporting declarations, Plaintiffs are likely to succeed on the merits in this case and will suffer irreparable

1 Substituted for former Attorney General William P. Barr pursuant to Fed. R. Civ. P. 25(d).
150611793.1

Case 2:20-cv-00630-JMS-DLP Document 47 Filed 12/28/20 Page 2 of 3 PageID #: 794

harm in the absence of a temporary restraining order and preliminary injunction. The balance of harms weighs in Plaintiffs’ favor, and the public interest favors a preliminary injunction temporarily prohibiting the executions and the public health risk they present.
Wherefore, Plaintiffs respectfully request that the Court grant their motion and preliminarily enjoin Defendants from conducting executions at FCC Terre Haute until such time as Defendants demonstrate that the executions do not create a substantial risk that Plaintiffs and other inmates will contract COVID-19.

Dated: December 28, 2020

Respectfully submitted,
/s/ Robert A. Burgoyne_________ John R. Maley Barnes & Thornburg LLP 11 South Meridian Street Indianapolis, Indiana 46204-3535 Telephone: (317) 231-7464 (direct)
(317) 432-5509 (mobile) Facsimile: (317) 231-7433 John.maley@btlaw.com
Robert A. Burgoyne, pro hac vice Caroline M. Mew, pro hac vice Perkins Coie LLP 700 13th St. NW, Suite 800 Washington, DC 20005-3960 Telephone: (202) 654-1767 Facsimile: (202) 654-6211 rburgoyne@perkinscoie.com cmew@perkinscoie.com
Sarah Howland, pro hac vice Perkins Coie LLP 1155 Avenue of the Americas, 22nd Floor New York, N.Y. 10036-2711 Telephone: (212) 262-6900 showland@perkins.coie.com
Attorneys for Plaintiffs

150611793.1

- 2 -

Case 2:20-cv-00630-JMS-DLP Document 47 Filed 12/28/20 Page 3 of 3 PageID #: 795
CERTIFICATE OF SERVICE I hereby certify that on December 28, 2020, a copy of the foregoing document was filed electronically. Service of this filing will be made on all ECF-registered counsel by operation of the court’s electronic filing system.
/s/ Robert A. Burgoyne Robert A. Burgoyne

150611793.1

- 3 -

Case 2:20-cv-00630-JMS-DLP Document 47-2 Filed 12/28/20 Page 1 of 22 PageID #: 799
EXHIBIT 1

Case 2:20-cv-00630-JMS-DLP Document 47-2 Filed 12/28/20 Page 2 of 22 PageID #: 800

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

________________________________________________

)

PATRICK RYAN SMITH; and BRANDON SCOTT

)

HOLM, Individually and on Behalf of All Other Inmates )

at the Terre Haute Federal Correctional Complex,

)

)

Plaintiffs,

)

)

v.

)

)

WILLIAM P. BARR, in his official capacity as the

)

Attorney General of the United States; MICHAEL

)

CARVAJAL, in his official capacity as the Director

)

of the Federal Bureau of Prisons; and T.J. Watson, in

)

his official capacity as Complex Warden for the Terre )

Haute Federal Correctional Complex,

)

)

)

Defendants.

)

________________________________________________)

No. 2:20-cv-630-JMS-DLP

DECLARATION OF DR. NINA H. FEFFERMAN I, Nina Fefferman, certify under penalty of perjury that the following statement is true and correct: 1. I am a full Professor at the University of Tennessee, Knoxville, in both the Department of Ecology and Evolutionary Biology and the Department of Mathematics. I am also the Director of the Mathematical Modeling Consulting Center at the National Institute for Mathematical and Biological Synthesis, and the Associate Director of the University of Tennessee One Health Initiative. My research focuses on complex adaptive systems, with a focus on the interplay between individual behavior and infectious disease epidemiology. Complex
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adaptive systems are systems that have a large number of components that interact and adapt such that the system is more complicated than its various parts— for example, living organisms, economies, or cities.
2. I have worked for the past 16 years as a researcher of the epidemiology, ecology, and evolution of infectious disease, pandemic preparedness, national biosecurity, and infrastructure protection. I hold a Master’s degree in mathematics from Rutgers University and a PhD in Biology from Tufts University.
3. For over a decade, I was one of the primary researchers of the Command, Control, and Interoperability Center for Advanced Data Analysis, a U.S. Department of Homeland Security (“DHS”) Center of Excellence, where I ran a research group focusing on the mathematics of both biosecurity and cybersecurity. As part of my role in that center, I actively contributed models and policy recommendations to DHS and its affiliate agencies for how to manage and mitigate pandemic threats from H1N1 2009 flu, Ebola in West Africa, and Zika virus. I have also consulted for various additional state and federal agencies and private companies, domestically and abroad, in the area of outbreak management since 2004.
4. I have studied COVID-19 extensively since February, 2020 and modeled the COVID-19 outbreak with specific attention to the risks of spread from and within carceral facilities and the corresponding implications for community healthcare resources. I received a grant from the National Science Foundation on May 1, 2020 to model the coupled social and epidemiological networks that determine the success of behavioral interventions on limiting spread of COVID-19. In addition to my research, I have given numerous presentations in my field, including presentations about modeling for the pandemic for the National Institute for Mathematical and Biological Synthesis on March 31, 2020 and modeling the risk of COVID-19 for prisons and health care resources at COVID-19 Special Track to 28th Conference on Intelligent
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Systems for Molecular Biology on July 16, 2020. 5. My C.V., attached as Exhibit A, includes a list of my honors, experience, and
publications. 6. I have been asked to evaluate the risk that holding three federal executions during
the week of January 11, 2020 poses to prisoners detained in FCC Terre Haute, including in particular FCI Terre Haute. I am donating my time reviewing materials and preparing this report. If I were to provide any live testimony, it would also be provided pro bono.
7. This declaration is based upon my experience modeling COVID-19, my review of the scientific literature regarding COVID-19, and my review of materials provided to me by counsel. For the description of the execution plans and layout of FCC Terre Haute, I rely upon multiple declarations signed by BOP staff, including those from Rick Winter, an attorney with the Bureau of Prisons (November 21, 2019; July 12, 2020; November 24, 2020), and T.J. Watson, the Warden of FCC Terre Haute. These declarations are attached as Exhibit B. I rely upon a fairly limited set of BOP materials regarding contact tracing and testing related to FCC Terre Haute and federal executions, which I understand have been produced by FCC Terre Haute or BOP (with redactions), attached as Exhibit C.
8. Based on my review of these materials, it is my opinion that the plan to carry out executions during the week of January 11, 2021 poses a substantial risk of COVID-19 spread and illness to FCC Terre Haute prisoners, including those incarcerated at FCI Terre Haute. As explained below, this is because the executions will introduce hundreds of individuals to the prison environment, significantly increasing the number of potential exposures to infection from COVID-19 for the staff and in turn for prisoners at FCI Terre Haute, USP Terre Haute and the FPC. The risk is not limited to inmates in USP Terre Haute, where death row prisoners are housed, because of the high transmissibility of COVID-19, including by individuals who are pre-
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symptomatic and asymptomatic; the involvement in the executions of numerous FCC Terre Haute staff members from all facilities, who then return to their normal duties and extensively interact with inmates and fellow staff members in those facilities; and the ease with which any disease is transmitted in a congregate setting like a prison, where social distancing is impossible and other preventative measures such as wearing masks and frequent hand-washing occur inconsistently at best. The risk is compounded if a prison is overcrowded, which I understand is the case here (including within FCI Terre Haute), and if a prison fails to systematically test prison staff and inmates and then contact trace those staff and inmates who test positive, which appears to be the case at FCC Terre Haute. Holding executions also disrupts the existing precautions enacted at FCC Terre Haute to reduce the spread of COVID-19.
9. In the context of COVID-19 transmission, people can act as carriers in spreading the disease even when they are exhibiting no symptoms (and may never exhibit any symptoms), and relatively modest contact with an infected individual can result in passing the disease to someone else -- who, again, may or may not exhibit symptoms, or may do so only several days later, but is nonetheless capable of spreading the disease. And once disease begins to spread, one case quickly becomes two, two become four, four become eight, eight become sixteen, etc., in exponential progression.
10. COVID-19 is not a static disease that is easily contained, even in the best environment and even with the conscientious implementation of safety measures. A prison is the antithesis of such an environment. Bringing anyone who has COVID-19 into a prison complex -- even one as geographically large as FCC Terre Haute and with separate facilities within the complex -- creates a significant risk of spreading COVID to all parts of the complex. The risk is, of course, greatest when the incidence of COVID infections outside the prison is extremely high, as is the case now and as will continue to be the case for the near term at least. It is essential to
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do everything one can to limit the number of contacts among individuals, some of whom might be infectious, where other factors are not guaranteed to be controlled (e.g., social distancing, adequate ventilations systems, consistent use of masks, adequate restroom facilities, adequate facilities and policies for quarantining or isolating inmates, etc.).
11. Quantifying the increased risk of contracting COVID-19 to inmates in the USP Terre Haute, the FCI Terre Haute, and the FPC from holding executions at FCC Terre Haute would be difficult to do, because relevant data and contact tracing information are extremely limited and have not, to the best of my knowledge, been made fully available to the plaintiffs’ counsel. One has, however, the scientific evidence regarding how quickly and extensively COVID-19 spreads, generally and within a prison setting; how spread can occur from individuals showing no symptoms; how spread of COVID-19 is not geographically contained; how group gatherings contribute significantly to such a spread; and how certain populations are at an increased health risk if they contract disease, which include males, people over 65, and individuals with pre-existing conditions (all of which define large numbers of individuals within FCC Terre Haute).
12. Based upon this scientific evidence, and as noted above, it is my opinion that inmates from all three facilities within FCC Terre Haute would face a substantially increased risk of contracting COVID-19, and suffering serious health problems as a result, if executions continue at FCC Terre Haute at the current time and in the manner in which executions have been held earlier this year at the prison. The extent of this risk cannot be quantified given the information available, but it is certainly higher than if no executions occurred at the present time and, in my opinion, it is substantial. The executions risk increased importation of new COVID19 infections as well as more efficient transmission of the virus within the prison because of staff mixing and other factors relating to the executions and conditions within the prison.
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13. It is perhaps helpful in this regard to consider examples of how COVID-19 has spread well beyond the narrow geographical confines in which contact first occurred between an infectious individual and a susceptible individual. One such example is a highly publicized wedding that occurred in rural Maine, attended by only 55 people. The wedding led to COVID19 outbreaks in the local community, in a long-term care facility located in a different county, and in a correctional facility in yet another county. Overall, at least 177 COVID-19 cases were linked to the event, including seven hospitalizations and seven deaths.1 The spread to the correctional facility occurred because a facility employee attended the wedding and then worked his normal shifts in different housing units at the correctional facility, leading to 18 other staff members, 16 members of staff households, and 48 inmates testing positive.2 This is emblematic of how easily one infectious person can infect many people throughout a correctional facility, leading to otherwise avoidable infection and risk of serious complications, including death.
14. A second example was a business conference in Boston attended by approximately 175 people over two days in February 2020.3 With the luxury of extensive genome data and reliable contact tracing information, researchers concluded that a single positive case likely led
1 “Multiple COVID-19 Outbreaks Linked to a Wedding Reception in Rural Maine — August 7–September 14, 2020,” CDC Morbidity and Mortality Report at 1686-87 (Nov. 13, 2020) (“The reception was held at a lodging establishment in county A that had an attached restaurant and four dining areas, including the event room, breakfast room, bar, and an open deck. Guests were seated indoors in the event room, which had 10 tables, with 4–6 guests seated around each table. The total number of wedding guests (55) exceeded Maine’s 50-person limit for indoor gathering in a shared space. Facility staff members had conducted temperature checks for all guests at the facility entrance; these were reported as normal. Although the facility had signs posted at the entrance instructing visitors to wear masks, guests did not comply with this requirement nor maintain a physical distance of ≥6 feet, and staff members did not enforce these measures; all staff members wore masks. The facility did not collect contact information from guests.”), https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6945a5-H.pdf. 2 Id. at 1688-89. 3 “Phylogenetic analysis of SARS-CoV-2 in Boston highlights the impact of superspreading events,” Science Mag. (Dec. 10, 2020), https://science.sciencemag.org/content/early/2020/12/09/science.abe3261.
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to roughly 100 people from the event testing positive, which in turn may have led to as many as 300,000 becoming infected in Massachusetts, in other states, and in other countries. The disease did not remain within the conference facilities, or Boston, or the adjoining counties, or even the United States.
15. In similar fashion, execution events -- which involve roughly the same number of participants as the Boston conference and more participants than the Maine wedding -- could lead to a spreading of the disease well beyond an initial point of contact, even if it begins within the building that houses the death chamber or elsewhere in USP Terre Haute. I am not suggesting that executions will lead to as many as 300,000 people contracting COVID-19 who otherwise might not have done so, as with the Boston conference, or even 177 people, as with the Maine wedding (although the latter number is certainly possible). The point is simply that, given the current prevalence of COVID throughout most of the United States, including Indiana, one or more people in a large group, who have not been quarantining, are likely COVID-positive and will spread infection to multiple individuals absent adequate safeguards, who in turn will further spread the disease, well beyond where it began. This is not a low-risk hypothetical, it is a highprobability likelihood, with potentially deadly consequences.
16. Individuals traveling to Terre Haute for executions. The BOP describes a large number of individuals who will travel to Terre Haute for each execution. This includes the:
a. The BOP execution team members. Most recently, BOP has stated that the “execution team is comprised of approximately 40 BOP employees who are employed at locations other than FCC Terre Haute.” (Ex. B p. 9, ¶ 17). Previously, BOP referred to an execution team of over 40 BOP staff members. The BOP noted that the “staff members will, by necessity, be removed from their normal duties, which include a wide range of correctional and administrative positions within the BOP. Pursuant to the current operational plan, these staff members are scheduled to cease their normal duties several days in advance of a scheduled execution, in order to give the team time to practice and prepare for their role in an execution. In addition to the team members, a number of BOP administrators will be present as well, also ceasing their normal duties in the days in advance of an execution.” (Ex. B p. 2, Winter Decl. ¶ 5.) (emphasis added).
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b. An unknown number of contractors. (Ex. B p. 2, Winter Decl. ¶ 6.) (“Additionally, the BOP plans to use contractors who have made themselves available and presumably have made any necessary arrangements for personal and work related matters based on the executions scheduled in December.”) (emphasis added).
c. Several out of state witnesses to the execution. It is my understanding that none of the individuals scheduled for execution in January 2020 are from Indiana and that all of the family members of the victims as well as the family members and counsel for the prisoners reside out of state.
d. Journalists witnessing the executions or covering the executions. e. Protestors of the execution. f. Additional security from “federal, state, and local law enforcement agencies.” (Ex. B. p.
2, Winter Decl. ¶ 7). Most recently, the BOP estimated that between 50 and 125 individuals will travel to Terre Haute for each federal execution. (Ex. B. p. 9, Watson Decl. ¶ 16). For the execution scheduled for January 12, 2020, of Lisa Montgomery, it appears that additional personnel will be involved because of the need to transport Ms. Montgomery from a Texas women’s prison where she is currently incarcerated (and where her lawyers apparently contracted COVID when visiting her). (Ex. B pp. 17-18, Winter Decl. ¶¶ 4, 7-8). The execution team members “arrive only a few days prior to a scheduled execution” and begin “various team-sensitive tasks upon their arrival.” (Ex. B p. 9, Watson ¶ 17). They do not quarantine upon arrival. Id.
17. Each of the individuals traveling to the Terre Haute facility is a potential carrier of the COVID-19 disease and a potential source of infection to others with whom they have close contacts. A close contact is defined by the CDC as someone who is within six feet of an infected person for at least 15 minutes cumulative over a day, starting from 2 days before the onset of the illness. Individuals traveling to the executions may be infected without knowing it before they begin the travel, either in the period before onset of symptoms or in the absence of symptoms if
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they are asymptomatic. Those individuals might also become exposed through travel. Airplane travel, staying in hotels, taking cabs or an Uber, and eating at restaurants all carry risks. The potential for one infected person to pass the virus to a group is the basis for the health directives issued by state and local public health officials around the country discouraging holiday travel and gatherings. It is also the basis for the CDC’s recommendation that prisons avoid all nonessential visitors when there is a COVID outbreak inside the prison or in the local community.
18. FCI Terre Haute staff’s participation in the executions and the risk of spread to FCI Terre Haute prisoners. The involvement of FCI Terre Haute staff in the executions poses significant risk for spreading of COVID-19 throughout the complex, including to FCI Terre Haute prisoners, in light of the large number of prison staff involved in the executions and the many interactions those staff have with others as a result of and following the executions. Somewhere between 70 and 200 FCC Terre Haute staff participate in the security, logistics and transportation support during an execution. (Ex. B p. 2, Winter Decl. ¶ 8, describing 200 FCC Terre Haute staff members); (Ex. B p. 11, Watson Decl. ¶ 22 describing execution events as requiring “70 or more” FCC Terre Haute staff). The Complex Warden described the role of FCC Terre Haute employees:
These FCC Terre Haute employees are not considered part of the execution team, and instead include staff that work at the USP, FCI, and FPC. For example, FCC staff manage check points and perimeter security, staff the command center, and escort witnesses and demonstrators. FCC staff managing check points will check ID’s and temperatures; some staff in the command center will likely meet with some execution team staff in order to coordinate the operation; and staff escorting witnesses and demonstrators will by necessity interact with the witnesses and demonstrators. (Ex. B p. 11, Watson Decl. ¶ 22). (See also Watson Decl. ¶ 17: “Some members of the execution team have interaction with FCC Terre Haute personnel incident to their role in the operation of the execution. For example, the execution team may interact [with FCC Terre Haute staff] wen going through security check points, receiving the inmate, receiving witnesses, and meeting with Terre Haute personnel to discuss operations logistics and equipment.”)
FCI prisoners are at heightened risk of spread of COVID-19 for each interaction that FCI staff
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have in preparing for or carrying out the executions that places them in close contact of potentially infected individuals. FCI prisoners are also at a heightened risk of contracting COVID from any contact they have with any staff member (assigned to FCI Terre Haute or not) who, although not involved with the executions, subsequently interacted as a close contact with any FCC employee who was involved with the executions.
19. As with the consequences of the Maine wedding or the Boston conference referenced above, there may well be degrees of separation between FCI inmates and individuals who directly participated in an execution and who may have been infected. Those degrees of separation, however, mean even less in a prison environment than they did after the wedding or conference, because prison staff work in multiple facilities, adequate protective measures are not taken relative to execution team members and other visitors before they enter FCC Terre Haute, and adequate protective measures are not taken after an execution before FCC staff members are allowed to resume their normal duties. I discuss such protective measure later in this declaration.
20. COVID-19 is highly efficient at transmission before individuals become symptomatic. It may be fourteen days before an infected person becomes symptomatic, or as short as 2 days. In a carceral setting, where rates of transmission are particularly high because of crowding (and, in the case of FCC Terre Haute, overcrowding) and the lack of adequate ventilation, this is of heightened concern. The worst-case scenario is where one individual becomes a super spreader, spreading infection to a large number of individuals over a short period of time. But even assuming an average reproduction number (or R0, pronounced “R naught”) of 2 for COVID-19 (i.e., the average number of individuals someone infects when positive), the disease will spread quickly for each day it is undetected. This means that if a correction officer contracted COVID19, his infection was not detected, and he continued to work for three days before becoming
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symptomatic, each of those three days could see a two-fold increase in the number of individuals at the prison infected by the staffer. For example, on day 1, the staffer could infect 2 people and by day 3 (the first day anyone might notice the staffer was infected without exhaustive screening of apparently healthy people), eight people might have become infected based on average infection rates:
See “R0: How scientists quantify the intensity of an outbreak like coronavirus and predict the pandemic’s spread,” The Conversation, https://theconversation.com/r0-how-scientists-quantifythe-intensity-of-an-outbreak-like-coronavirus-and-predict-the-pandemics-spread-130777.
21. The individuals at risk are all those who were close contacts with anyone who was infected, defined by the CDC as someone “within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.” The CDC notes that the individual exposures should be added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes). For example, a staff member who goes through security three times a day for five minutes each is a close contact of those other staff
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Case 2:20-cv-00630-JMS-DLP Document 47-2 Filed 12/28/20 Page 13 of 22 PageID #: 811 members who work at the security check point and sit or stand within 6 feet of those who pass through security. 22. The declaration filed by Rick Winter on July 12, 2020 and contact tracing documents concerning the July federal executions provide a window into the exposures created by one FCI Terre Haute staff member who participated in the execution preparations while positive for COVID-19, before he was aware of his exposure or illness. (Ex. B pp. 20-22, Winter Decl.; Ex. C). That staff member – I will designate him as Staffer A - indicated in his contact tracing interview that he was in contact with “A lot” of staff and “A lot” of prisoners in days before the onset of his illness, including contact with prisoners through rounds of prisoner units. (See Exhibit C).
Staffer A reported that while conducting his daily tasks during the days between exposure and diagnosis, many of the persons he came into contact with at the prison were not masked.
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23. The BOP noted that Staffer A, while potentially infected, “among other things, attended the law enforcement meeting with outside law enforcement in preparation for the scheduled executions; attended a meeting regarding the handling of demonstrators at the scheduled executions; and attended to an issue at the SCU.” (Ex. B p. 21, Winter Decl. ¶ 6). Based on that information and assuming the execution-related meetings were at least 15 minutes long, Staffer A’s close contacts included: all FCC Terre Haute staff assisting in the execution, other federal employees and other law enforcement who attended the law enforcement meeting; all FCC Terre Haute staff who attended the demonstrator meetings; other federal employees who attended the meeting; all incarcerated people in the USP or FCI who were within six feet of Staffer A for a total of 15 minutes in any 24-hour period in the two days before his exposure; and all other staff in contact with Staffer A or another infectious individual throughout the work shift for a total of 15 minutes, including at security, in break or meal rooms, or other staff meetings. Any of those individuals who became infected would themselves have created their own waves of exposure.
24. The introduction of potential new sources of infection in prisons is particularly concerning because of the higher rates of contact amongst susceptible incarcerated people, due to the density and structure of prison housing arrangements (including limited ability to quarantine potentially exposed individuals and to segregate individuals who test positive), the lack of ability to socially distance or isolate, inadequate facilities for personal hygiene, difficulty in maintaining adequate disinfection of high-touch surfaces, and poor ventilation within prisons. These dynamics drive the resulting efficacy (or lack of efficacy) of any proposed interventions.
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25. Impact on COVID-19 preventative measures and contact tracing. The BOP has pledged to “continue to do everything [it] can to mitigate the spread of COVID-19 in [its] facilities,” which presumably includes incorporating CDC recommended precaution into visiting procedures. The BOP has said that it is following guidance from both the CDC and the World Health Organization. (Ex. B p. 6, Watson Decl. ¶ 8). It has adopted a number of preventative COVD-19 measures, including “[a]s much as possible” assigning staff to the same posts (rather than rotating staff between facilities) “as an additional measure to mitigate the spread of the virus.” (Ex. B p. 6, Watson Decl. ¶ 8, citing BOP COVID 19 Modified Operations). (However, staff apparently do move “between the separate facilities and buildings” when “necessary, for example, if one institution is in need of additional staff due to staff being on leave on a given day, or otherwise requires assistance of additional staff.” (Ex. B p. 7, Watson Decl. ¶ 10)).
26. Visitation at FCI Terre Haute is suspended to reduce the spread of COVID-19. Federal Bureau of Prisons, FCI Terre Haute, https://www.bop.gov/locations/institutions/tha/ (Dec. 19, 2020) (“! Visiting at the prison camp has been suspended until further notice.”).
27. The BOP quarantines and isolates all new intake to the prison into either quarantine for asymptotic individuals or medical isolation for symptomatic individuals for at least 14 days. BOP Modified Operations, https://www.bop.gov/coronavirus/covid19_status.jsp.
28. Prisoners are only released to the general population after a negative COVID-19 test at the end of the quarantine period. Id.
29. These precautions are sound. However, they are significantly undermined by the federal executions, which require large numbers of staff to be reassigned to execution-related functions. The Warden has described the impact of the executions on functioning of the prison, saying that “[w]ith its staff pulled away from their normal duties, FCC Terre Haute will not be
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able to operate under normal conditions. For example, due to expected staffing issues and changes in security procedures, FCC Terre Haute will not be able to prepare inmate meals in the ordinary fashion.” (Ex. B p. 2, Winter Decl. ¶ 5). The fact that large numbers of staff must be pulled form normal duties is of consequence in light of COVID-19 for a number of reasons. The plan to pull significant numbers of staffing itself adds pressure to the system for likelihood of spread within the prison. By pulling staff from their regular duties, other staff will necessarily be reassigned to cover those missing positions. This increases the circles of exposure. Reduced staffing also means that staff will likely have a slower response time to respond to individuals who become sick and need medical attention, thereby increasing the exposure times for cell-mates or cell neighbors of those developing symptoms.
30. There are other areas of concern. For example, without adequate staffing, the distribution plan for meals or medications could require additional movement or gathering of larger groups of inmates at one time, increasing exposures. The staffing shortage problems are exacerbated by the fact that, according to the BOP website, 20+ FCC Terre Haute employees currently have COVID-19 and presumably are out of the workplace. Other staff must cover for the staff members who are out of work, again leading to increased exposures and an increased risk of spread among the inmate population, including within FCI Terre Haute.
31. The redistributing and mixing of staff also complicate efforts to conduct meaningful contact tracing. The CDC stresses the importance of “case investigation and contact tracing, a core disease control measure employed by local and state health department personnel” as a method for or preventing spread of COIVD-19.4 The CDC directs that public health staff should work to identify all individuals with close contacts to an exposed person, and then to warn those individuals
4 https://www.cdc.gov/coronavirus/2019-ncov/php/principles-contact-tracing.html. 15

Case 2:20-cv-00630-JMS-DLP Document 47-2 Filed 12/28/20 Page 17 of 22 PageID #: 815 of the exposure and recommend 14-day home quarantines after their last known exposure. It has made clear that “identifying contacts and ensuring they do not interact with others is critical to protect communities from further spread.” Id. 32. Returning to the example of Staffer A, he was notified on July 8 of his own exposure to someone who was positive, took a test for COVID-19 on July 8, and received his positive test results on July 11. (Ex. C, p. 1). The BOP reported on July 12 that it had begun contact tracing for Staffer A. This is consistent with the spreadsheet that shows that staff continued to be identified and tested for several days after the disclosure. BOP contact tracing documents of “exposure testing info” for staff show that the 23 additional BOP staff who were exposed to Staffer A were identified and given tests on July 12, July 13, July 14, July 15, July 16, or July 17. (Ex. C, pp. 9-10). As it turns out, these staff all had negative tests:
(Ex. C, p. 9). Had any one of them been positive, however, several days would have gone by 16

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since Staffer A tested positive, during which dozens if not hundreds of contacts might have occurred with other staff and with inmates, and the inmates could easily have been located in different facilities given staffing practices at FCC Terre Haute.
33. Contact tracing in this environment, where staff’s regular routines and assignments are disrupted, creates new challenges and at a minimum almost certainly slows and interferes with the contact tracing. Introducing a large number of individuals with multiple contacts throughout the prison system, with overlapping training meetings involving multiple staff – like prison-wide doctors and custodians – increases the number of individuals who can reseed the infection. For each day that the contact tracing is slowed, there is the exponentially growing possibility of undetected transmission and spread to other staffers and prisoners. It also creates the possibility that some exposed individuals will not be detected because of the unusual and disrupted work patterns of the day. Staffer A, for example, was not able to identify by name all of the staff with whom he came into contact several days earlier. The spreadsheets indicate that four additional staff who were symptomatic were tested between July 18 and July 27, each of whom tested positive for COVID-19:
(Ex. C, p. 10). Three of these four staff members worked at FCI Terre Haute and developed
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symptoms between July 17, 2020 and July 25, 2020. 5 Did they contract COVID from Staffer A, who assisted with the execution? Possibly.
34. I am not aware of any records that show any contact tracing with respect to prisoners. If it is occurring, it appears to be episodic not systematic--and it should be systematic. There have been multiple outbreaks of COVID-19 among prisoners within FCI Terre Haute. https://experience.arcgis.com/experience/ab22fb4c564e4f4b986e257c685190e8/page/page_2/.
35. The introduction of large numbers of personnel to the prison facility who interact with FCI and other staff is a likely explanation for waves of infection that have occurred in connection with prior executions. The fact that infections may not have spiked following every execution, or may not have increased as dramatically, does not negate the significance of instances in which spikes did occur, given the various factors that influence the spread of COVID (e.g., the prevalence of COVID infections outside the prison at the time of a given execution and thus the probability that one or more visitors would be infectious while participating in the execution). To use an analogy, if there is a 60% chance of a given hurricane making landfall and it ends up turning beforehand, that does not mean there wasn’t a huge risk to staying in the projected path of that hurricane. The next hurricane could well make landfall as predicted.
36. The more recent COVID-19 cases from November provide another example to view the disruption to meaningful contact tracing and subsequent risk to prisoners at FCC Terre Haute. Following a November 17, 2020 execution, a number of individuals reported positive COVID-19 tests: 9 of the execution team members who carried out the execution and the spiritual advisor to the executed prisoner who observed the execution tested positive. The execution team members were all within the execution facility for more than 15 minutes and should be considered
5 Staffer who had symptoms on 7/17/2020 worked at FCI, Ex. C p. 72; staffer who developed symptoms on 7/19/2020 worked at FCI, Ex. C p. 62; staffer who had symptoms on 7/25 worked in USP & FCI, Ex. C, p. 53.
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close contacts of everyone who attended the execution; they also likely spent more than 15
minutes within other locations at the USP, including time with staff from FCC Terre Haute. The
BOP reports that, except for one team member who was the subject of an unknown degree of
contact tracing by his BOP institution, BOP did not do contact tracing of these individuals:
Defendants state that they do not possess the test results for these individuals because the tests were conducted by outside, third-party providers, not the Bureau of Prisons. The Defendants also state that the Bureau of Prisons conducted contact tracing for one of the staff members at his home Institution; however, the Defendants to do not possess responsive documents regarding the other eight staff members because the Bureau of Prisons did not conduct the contact tracing for those individuals. By way of explanation, the execution team is comprised of members from various BOP locations and was designed to protect the confidentiality of its members. Therefore, when team members report back to their home institution, the institution staff many not know that the employee was a member of the execution team in order to contact trace them, nor do they generally know the identities of other staff members who are part of the execution team. Moreover, some execution teams members who tested positive did not return to work at their home institution until meeting CDC guidelines; therefore negating the need for contact tracing at all. Defendants have produced the redacted contact tracing records for the one execution team staff member of whom it possess responsive records. (Ex. C, p. 5).
37. Because the BOP did not conduct contact tracing for eight of the nine infected
execution team members and says it did not receive copies of any contacting tracing reports done
by outside entities (if any contact tracing was done), BOP’s attempts, if any, to identify FCC
Terre Haute staff who may have been infected would have been hamstrung and incomplete. The
explanation by the BOP for why it did not need to do contact tracing of those infected members
of the execution team – that some of those individuals isolated at home after testing positive –
suggests a basic and disturbing misunderstanding of the principles and purpose of contact tracing.
38. It is my understanding that the BOP also did not do contact tracing of the spiritual
advisor who attended the November execution and then tested positive. According to his
declaration, which I have read, the spiritual advisor was transported in a closed-environment
shuttle bus van with eight other people to the execution, a trip that would have lasted at least 15
minutes. The Warden’s declaration suggests that transporting witnesses is the kind of assignment
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to which FCC Terre Haute staff were assigned. If the bus were staffed by FCC Terre Haute staff, those staff should have been notified as close contacts and tested. Staff who were in the execution facility with the spiritual advisor, or who processed him at security and who may have escorted him for a total of 15 minutes within the prison, should also have been notified and tested. I am not aware of any records indicating that this occurred. If it did not occur, all those close contacts became possible sources of disease spread within all parts of the complex. Indeed, they became possible sources of disease spread within the Complex even if contact tracing and testing were done, for the period leading up to when any test results were obtained.
39. In addition to the increased risk to prisoners of contracting COVID-19, a separate area of concern is the very real probability that some of the individuals attending the training, visitation, and/or execution will become exposed and travel home with the virus, increasing the overall level of risk to the broader community. Without contact tracing, exposures in this kind of large-scale event will be hard to control and prevent from spreading infection.
40. Necessary safety measures. The safest way to avoid having executions spread COVID-19 within FCC Terre Haute is not to have executions during the current pandemic. Alternatively, one would delay all further executions until staff and inmates have been vaccinated. A third option would be to implement safety measure that would significantly reduce the risk that executions pose to inmates and to others in and out of FCC Terre Haute.
41. In order to proceed with executions in a manner that does not subject staff and prisoners of FCC Terre Haute to a substantial risk of exposure to COVID-19, the BOP would need to institute appropriate safety measures that would include at least the following measures. First, the BOP should impose precautionary restrictions upon the 70-200 persons (execution team members, other BOP staff, media, family members and legal teams, state and local law enforcement personnel and contractors) who travel to Terre Haute to participate in some manner
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in the executions to ensure that they do not bring the virus into the prison. The BOP should mandate a two (2) week quarantine once they have arrived in Terre Haute (and with the 2-week clock being reset if anyone within a combined quarantine, such as individuals traveling together, develops symptoms during quarantine), and a negative test before they begin performing their duties relating to the executions or otherwise interact with any FCC Terre Haute staff. Second, if multiple executions are scheduled for the same week (as is true for the executions scheduled in January and was true with past executions), the BOP should require rapid testing each morning for those BOP staff and FCC Terre Haute staff participating in each execution during each day of the week, to ensure that they did not become exposed and develop infection after their quarantine period. Third, the BOP should restrict congregation of the execution personnel with FCC Terre Haute staff, impose strict social distancing requirements when any interactions occur, and strictly enforce mask mandates (including prohibiting meal sharing or other activities which require removal of masks). The BOP should develop policies to ensure that execution personnel and staff members are not engaged in profligate activities together during the quarantine period, such as those involving alcohol, or other inhibition-lowering activities. Fourth, no FCC Terre Haute employee should be allowed to return to his or her normal duties within the Complex until they have quarantined for a two-week period and tested negative for COVID-19. Finally, if the BOP or FCC Terre Haute has identified an infected team member, they must conduct comprehensive and complete contact tracing in accordance with CDC guidelines.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing declaration is true and correct. Executed on December 28, 2020.
__________________________ Nina H. Fefferman, PhD 21

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EXHIBIT A

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Nina H. Fefferman
http://feffermanlab.org

Nationality: United States of America Telephone: 781 710 5025 e-mail: nina.h.fefferman@gmail.com

Departments: Ecology and Evolutionary Biology & Mathematics
Address: 447 Hesler Biology Building University of Tennessee
Knoxville, TN 37996

Education

2005 2001 1999

PhD in Mathematical Biology from the Department of Biology, Tufts University. Advisor: J. Michael Reed
MS in Mathematics from the Department of Mathematics, Rutgers University. Advisor: J. Beck
AB in Mathematics from Princeton University

Positions

202020182018 2016 - 2018 2015 - 2016 2012 - 2016 2011 - 2016 2008 - 2012 2007 - 2016 2005 - present 2005 - 2007 2005

Associate Director, UT One Health Initiative, University of Tennessee, Knoxville Director, Mathematical Modeling Consulting Center, University of Tennessee,
Knoxville Professor, Depts. of Mathematics & Ecology and Evolutionary Biology, University
of Tennessee, Knoxville Associate Professor, Depts. of Mathematics & Ecology and Evolutionary Biology,
University of Tennessee, Knoxville Program Director, Graduate Program in Ecology and Evolution, Rutgers University Associate Professor, Dept. of Ecology, Evolution, and Natural Resources, Rutgers
University Assistant/Associate Professor, School of Public Health, University of Medicine and
Dentistry of New Jersey Assistant Professor, Dept. of Ecology, Evolution, and Natural Resources, Rutgers
University
Research Assistant/Associate Professor, The Center for Discrete Mathematics and Theoretical Computer Science, Rutgers University
Co-Director, Tufts University Initiative for the Forecasting and Modeling of Infectious Disease (InForMID), Tufts University School of Medicine
Visiting Research Associate, Center for Discrete Math and Theoretical Computer Science (DIMACS), Rutgers University
Short Term Visitor, School of Natural Sciences, Institute for Advanced Study

Honors/Awards

2019 2019
2017 2016 2015 2012

Invited Participant of the 11th.Triennial Invitational Choice Symposium Invited Performer/Participant, Stand Up Science – a public performance featuring stand-up comics and scientists discussing their work Invited Research Team Leader: AWM Women in Mathematical Biology Workshop Invited Speaker at the National Academy of Sciences Sackler Colloquium Coauthored an article chosen for the cover of Phil Trans Roy Soc B (issue 370.1665) Invited to Health Foo 2012

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2011
2010 2009 2007 -

Shared the Virginia Governor's Technology Award in the category of ‘Cross-Boundary Collaboration in Modeling & Simulation’ for our study ‘Strategic Default in the Context of a Social Network: An Epidemiological Approach’. Speaker at TEDx Midatlantic Rutgers University Packard Fellow Nominee Coauthored an article chosen for the cover of The Lancet Infectious Diseases (vol. 7) Invited to give 22 Keynote, Plenary, or Public Lectures (see Invited Talks for details), over
three continents

Media Coverage (interviews and coverage):
Television/Online Video Broadcasts: The Washington Post, 2020 BBC International, 2020 WBIR News, 2019 NJTV News, 2015 Discovery Channel “How Stuff Works” (Season 2: “Games Unboxed”), 2011 BBC World News Aug 21, 2007 CBS News Aug 22, 2007 Canada Television (CTV) Aug 21, 2007 AT&T Tech Channel Sept, 2007
Radio Broadcasts: NPR Marketplace, Mar 2020 NPR WUOT Knoxville, Mar 2017 PRI Studio 360, Sept 2016 New Tech City, WNYC, Oct 2014 PRI Studio 360, Sept 2014 PRI Studio 360, Jan 2013 BBC UK News, Aug 2007 National Public Radio Podcast “Science Friday”, Sept 2007 AM900 CHML, Sept 2007 National Public Radio “All Things Considered”, Oct 2005
Print/Online Media (2005-present): ABC News, ABS CBN News, ARS Technical, Canadian Press (via CBC), Cell, The Daily Mail (UK), The Daily Telegraph (Australia), The Economist, Forbes, Fox News, G1.com.br (Brazil), The Gist (Slate.com), O Globo (Brazil), Gazet Van Antwerpen (Belgium), La Jornada (Mexico), KevinMD, Knox News, Medical News Today, New Scientist, NU.nl (Netherlands), PC Gamer, Reuters, TIME, The Washington Post, Science News, Slate.com, the South African Star, Tech News World, Wired, Yahoo! Entertainment, You Made I and many more…

Research Support

Active 2020-2021

$198,932

2020-2022 $359,849

2017-2022 $138,964

NSF RAPID – DEB Coupled Social and Epidemiological Networks and COVID-19
DoD Minerva DECUR - The Topology of Interdependent Multi-Domain Behavioral Systems
NSF IOS - Melding Mathematical and Theoretical

PI PI UT-PI

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Models of Stress

2017-2021 $2,498,876 NSF EEID – Co-evolutionary Epidemiology of Avian UT-PI

Malaria

Completed

2018-2020 $196,628 SESYNC/NIMBioS Modeling Risk Perception, Vector- PI

borne Diseases, and Environmental

Integrity

2016-2019

$99,938 NSF EAGER – CISE – Distributed Anomaly Detection PI

2018-2019

$2,000 Haines Morris Grant – Internal UTK Competition

Co-PI

2016-2018

$50,000 US - Israel Binational Science Foundation (BSF)

Co-PI

2016-2018 $190,000 NSF RAPID – DEB – Modeling Zika Virus Control

PI

2015-2018 $292,804 USFWS – White-Nose Syndrome Open Grant

Co-PI

2015-2017

$21,003 NSF RAPID – Information & Intelligent Systems –

PI

Virtual Worlds and Experiential Learning

2016-2017

$75,000 US START Center – Leadership in Social Networks

PI

2017

$30,000 Syngenta – Workshop Grant – Math of Agribusiness

Co-I

2016-2017 $100,000 National Academies Keck Futures Initiative

Co-PI

2015-2017 $130,000 NSF EAGER – DEB – Machine Learning for Co-

Co-PI

Evolutionary Systems

2012-2016 $1,228,053 Dept. of Homeland Security – CyberSecurity

PI

2014-2016 $100,000 Dept. of Homeland Security – Next Generation

Project PI

Communications and Interoperability

2009-2016 $275,000 Dept. of Homeland Security – BioSecurity

Project PI

2011-2014 $3,853,332 NSF EASM – Ocean Sciences – SocioEconomic Systems Co-PI

and Climate Change

2011-2012

$22,500 UCDPER – Emergency Preparedness

Co-PI

2010-2012 $384,000 Dept. of Homeland Security – Virtual Worlds and

Project PI

Experiential Education

2010-2011

$99,944 Dept. of Homeland Security – Self-Organizing

Project PI

Surveillance Systems

2010

$22,500 Dept. of Homeland Security – BioSecurity

Co-PI

2009-2012 $299,886 NSF – DEB – ULTRA-Ex

Co-PI

2009-2011

$89,318 UCDPER – Emergency Preparedness

PI

2009-2010

$10,000 USDA CSREES Multi-State Research Fund – Vector- Co-I

borne Disease Control

2008

$99,990 NIH NAID SBIR – Epidemiological Surveillance

PI

2008

$5,000 Rutgers Climate and Environmental Change Initiative

PI

2008

$75,000 Rutgers Academic Excellence Fellowship, Climate and Co-I

Health Research Initiative

2007

$22,500 Dept. of Homeland Security – BioSecurity

PI

2007

$22,500 Dept. of Homeland Security – BioSecurity

PI

2006

$5,000 Tufts Summer Scholars Award – Epidemiology

PI

2003-2004

$42,000 NIH R01 Supplement - Epidemiology

Co-PI

2003-2004

$1,500 Tufts Institute of the Environment

Co-I

2003

$500 MASI Student Travel Award

PI

2003

$1,500 TIES Student Travel Award

PI

Consultancies

2020

American Civil Liberties Union (ACLU)

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2020 2018 2017-present 2009-present 2011-2012 2006-2007 2004-2009 2004 2004

The State of Vermont, Department of Education Ogilvy Humane Society International US Centers for Disease Control Research Institute for Housing America Trust Fund New Jersey, Department of Corrections NIH U19 (Center PI: Gorski) T-cell Mediated Immunity National Defense University DARPA

Participation in Research Centers

Center NIMBioS (National Institute for Mathematical and Biological Synthesis)

Position Leadership Team

Description of Role Active participant in working group, organizer of multiple tutorials, mentor for summer research experience for undergraduates, and founding director of the Mathematical Modeling Consulting Center

InForMID (Tufts University Initiative for the Forecasting and Modeling of Infectious Diseases)

Center Co-Director

Researcher and Administrative lead in the area of mathematical modeling of infectious disease epidemiology

CCICADA (US Dept of Homeland Security Command, Control, and Interoperability Center for Advanced Data Analysis)

Project PI

Principle Investigator into data analysis relating to social behavior in virtual/technologically enable environments, bio-security, and bio-inspired algorithms in cyber-security

DIMACS (The Center for Discrete Mathematics and Theoretical Computer Science)

Member

Active participant in working groups, collaborations, and conferences (including acting as organizer for multiple workshops/conferences/tutorials) in all areas of mathematical macrobiology

START (US Dept of Homeland Security Center for the Study of Terrorism and Responses to Terrorism)

Project PI

Principle Investigator working on understanding social behavior and algorithms driving the emergence of extremism and leadership in

Publications (peer reviewed):
* = a student or post-doctoral researcher advised by Fefferman during the research effort reported
Journal Articles: Published or In Press

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68. Lemanski*, N., S. Schwab, D. Fonseca, and N.H. Fefferman. (In press) Coordination Among Neighbors Improves the Efficacy of the Zika Control Despite Economic Costs. PLoS Neglected Tropical Diseases.
67. Wilson, S., S. Sindi, H. Brooks, M. Hohn, C. Price, A. Radunskaya, N. Williams, and N.H. Fefferman. 2020. How Emergent Social Patterns in Allogrooming Combat Parasitic Infections. Frontiers in Ecology and Evolution. 8:54.
66. DeNegre*, A., Myers*, K., and N.H. Fefferman. 2020. Impact of Strain Competition on Bacterial Resistance in Immunocompromised Populations. Antibiotics. 9(3):114
65. Myers*, K., A. Redere*, and N.H. Fefferman. 2020. How Resource Limitations and Household Economics May Compromise Efforts to Safeguard Children During Outbreaks. BMC Public Health. 20(1):1-14.
64. Suarez*, G., O. Udiani*, B. Allan, C. Price, S. Ryan, E. Lofgren, A. Coman, C. Stone*, L. Gallos*, and N.H. Fefferman. 2020. A Generic Arboviral Model Framework for Exploring Tradeoffs Between Vector Control and Environmental Concern. Journal of Theoretical Biology. 490 (2020) 110161.
63. DeNegre*, A., Myers*, K., and N.H. Fefferman. 2020. Impact of Chemoprophylaxis Policy for AIDS-immunocompromised Patients on Emergence of Bacterial Resistance. PLoS One. 15(1): e0225861.
62. Gallos*, L., S. Havlin, G. Stanley, and N.H. Fefferman. 2019. Propinquity drives the emergence of network structure and density. Proceedings of the National Academy of Sciences. 116(41):20360-20365.
61. Stone*, C., S. Schwab*, D. Fonseca, and N.H. Fefferman. 2019. Contrasting the Value of Targeted vs. Area-Wide Mosquito Control Scenarios to Limit Arbovirus Transmission for Different Tropical Urban Population Centers. PLoS Neglected Tropical Diseases. 13.7: e0007479.
60. Myers*, K, A. DeNegre*, L.K. Gallos*, N. Lemanski*, A. Mayberry, A. Redere*, S. Schwab*, O. Stringham, & N.H. Fefferman. 2019. Dynamic Ad Hoc Social Networks in Improvised Intelligence / Counter-Intelligence Exercises: A Department of Homeland Security Red-Team Blue-Team Live-Action Roleplay. Journal of Homeland Security and Emergency Management. https://doi.org/10.1515/jhsem-2018-0027.
59. Suarez*, G.P., L.K. Gallos, and N.H. Fefferman. 2019. A Case Study in Tailoring a Bio-Inspired Cyber-Security Algorithm: designing anomaly detection for multilayer networks. Journal of Cyber Security and Mobility. 8(1):113-132.
58. DeNegre*, A., K. Myers*, M. Ndeffo, and N.H. Fefferman. 2019. Emergence of Antibiotic Resistance in Immunocompromised Host Populations. PLoS One 14 (2), e0212969.
57. Schwab*, S., C. Stone*, D. Fonseca, and N.H. Fefferman. 2019. (Meta)population Dynamics Determine Effective Spatial Distributions of Mosquito-Borne Disease Control. Ecological Applications 29(3): e01856.
56. Kebir*, A., N.H. Fefferman, and S.B. Miled. 2018. A general structured model of a hermaphrodite population. Journal of Theoretical Biology. 449:53-59.
55. Lemanski*, N.J. and N.H. Fefferman. 2018. Expanding the evolutionary theory of aging: honeybees as a test case for an optimal decision making model of senescence. American Naturalist. 191(6):756-766.
54. Schwab*, S., C. Stone*, D. Fonseca, and N.H. Fefferman. 2018. The importance of being urgent: the impact of surveillance target and scale on mosquito-borne disease control. Epidemics. 23:5563.
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53. Beckage, B., L. Gross, S. Metcalf, E. Carr, K. Lacasse, J. Winter, P. Howe, N. Fefferman, A. Zia, and T. Franck. 2018. Integrating human behavior and risk perception into a climate model. Nature Climate Change. 8:79–84.
52. Maslo, B., O. Stringham, A. Bevan, A. Brumbaugh, C. Sanders, M. Hall, and N.H. Fefferman. 2017. High Survival of Some Infected Bat Populations Veils a Persistent Extinction Risk from White-nose Syndrome. Ecosphere. 8(12):e02001.10.1002/ecs2.2001.
51. Stone*, C.M., S.R. Schwab*, D.M. Fonseca, N.H. Fefferman. 2017. Human movement, cooperation, and the effectiveness of coordinated vector control strategies. Journal of the Royal Society Interface. 14(133):20170336.
50. Lemanski*, N.J. and N.H. Fefferman. 2017. Coordination Between the Sexes Constrains the Optimization of Reproductive Timing in Honey Bee Colonies Nature Scientific Reports. 7:2740.
49. Egizi, A., N.H. Fefferman, and R. Jordan. 2017. Relative Risk of Infection with Ehrlichiosis Agents and Lyme Disease in an Area Where Both Vectors are Sympatric. Emerging Infectious Diseases. 23(6):939-945.
48. Greenbaum*, G. and N.H. Fefferman. 2017. Application of network methods for understanding evolutionary dynamics in discrete habitat. Molecular Ecology. DOI: 10.1111/mec.14059
47. Maslo, B., R. Valentin, K Leu, K Kerwin, A Bevan, G.C. Hamilton, N.H. Fefferman, and D.M. Fonseca. 2017. ChiroSurveillance: The Use of Native Bats to Detect Invasive Agricultural Pests. PLoS One. 12(3), e0173321.
46. Robinson*, O.J., O.P. Jensen, M.M. Provost, S. Huang, N.H. Fefferman, A. Kebir and J.L. Lockwood. 2017. Evaluating the vulnerability of sex-changing fish to harvest: A game-theoretic approach. ICES Journal of Marine Science. 74(3):652-659.
45. Gallos*, L., M. Korczynski*, and N.H. Fefferman. 2017. Anomaly Detection Through Information Sharing Under Different Topologies. EURASIP Journal on Information Security. 2017:5. DOI:10.1186/s13635-017-0056-5.
44. Maslo, B., S. Gignoux-Wolfsohn, and N.H. Fefferman. 2017. Success of Wildlife Disease Treatment Depends on Host Immune Response. Frontiers in Ecology and Evolution. 5(28).
43. Lofgren*, E., A. Egizi, and N.H. Fefferman. 2016. Patients as Patches: Ecology and Epidemiology in Healthcare Environments. Infection Control and Hospital Epidemiology. 37(12):1507-1512.
42. Korczynski*, M., A. Hamieh*, J. H. Huh, H. Holm, S. R. Rajagopalan, and N. H. Fefferman. 2016. Hive Oversight for Network Intrusion Early Warning Using DIAMoND: A Bee-Inspired Method for Fully Distributed Cyber Defense. IEEE Communications Magazine 54(6):60-67.
41. Gallos*, L. and N.H. Fefferman. 2015. Simple and efficient self-healing strategy for damaged complex networks. Physical Reviews E. 92(5):052806.
40. Kebir*, A., N.H. Fefferman, S. Ben Miled. 2015. Understanding hermaphrodite species through game theory. Journal of Mathematical Biology. 71(6-7):1505-1524.
39. Gallos*, L., and N.H. Fefferman. 2015. The Effect of Disease-Induced Mortality on Structural Network Properties. PLoS One. DOI: 10.1371/journal.pone.0136704
37. Burkhalter*, J.C., N.H. Fefferman, and J.L. Lockwood. 2015. The impact of personality on the success of prospecting behavior in changing landscapes. Current Zoology. 61:557-568.
36. Robinson*, O., J. Lockwood, O. Stringham*, and N.H. Fefferman. 2015. A Novel Tool for Making Policy Recommendations Based on PVA:Helping Theory Become Practice. Conservation Letters. 8(3):190-198.
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35. Fefferman, N.H. and E.N. Naumova. 2015. Dangers of vaccine refusal near the herd immunity threshold: a modelling study. Lancet Infectious Diseases. S1473-3099(15)70130-1
34. Maslo, B. and N.H. Fefferman. 2015. A Case Study of Bats and White-Nose Syndrome Demonstrating How to Model Population Viability with Evolutionary Effects. Conservation Biology. 29(4):1176-1185. DOI: 10.1111/cobi.12485.
33. Parham, P E. J. Waldock, G.K. Christophides, D. Hemming, F. Agusto, K. J. Evans, N.H. Fefferman, H. Gaff, A. Gumel, S. LaDeau, S. Lenhart, R.E. Mickens, E. Naumova, R. Ostfeld, P. Ready, M. Thomas, J. Velasco-Hernandez, E. Michael. 2015. Climate, Environmental, and Socioeconomic Change – Weighing up the Balance in Vector-Borne Disease Transmission. Philosophical Transactions of the Royal Society B. 370.1665 (2015): 20130551.
32. Egizi, A., N.H. Fefferman, and D. M. Fonseca. 2015. Evidence that implicit assumptions of “no evolution” of disease vectors in changing environments can be violated on a rapid timescale. Philosophical Transactions of the Royal Society B. 370.1665 (2015): 20140136.
31. Greening*, B., N. Pinter-Wollman, and N.H. Fefferman. 2015. Higher-Order Analysis of Information Sharing and Knowledge Capacity in Animal Social Groups Current Zoology. 61(1): 114–127.
30. Gallos*, L. and N.H. Fefferman. 2014. Revealing effective classifiers through network comparison. Europhysics Letters. 108(3): 38001.
29. Lofgren*, E.T., R.W. Moehring, D.J. Anderson, D.J. Weber, and N.H. Fefferman. 2014. A Mathematical Model to Evaluate the Routine Use of Fecal Microbiota Transplantation to Prevent Incident and Recurrent Clostridium difficile Infection. Infection Control and Hospital Epidemiology. 35(1):18-27.
28. Greening*, B. and N.H. Fefferman. 2014. Evolutionary Significance of the Role of Family Units in a Broader Social System. Nature Scientific Reports. 4: 3608
27. Seiler, M.J., Collins, A.J., and N.H. Fefferman. 2013. Strategic Mortgage Default in the Context of a Social Network: An Epidemiological Approach. Journal of Real Estate Research 35(4).
26. Robinson*, O.J., N.H. Fefferman, and J.L. Lockwood. 2013. How to effectively manage invasive predators to protect their native prey. Biological Conservation 165: 146-153.
25. Fefferman, N.H., and L.M. Romero. 2013. Can physiological stress alter population persistence? A model with conservation implications. Conservation Physiology. 1(1): cot012. doi: 10.1093/conphys/cot012
24. Moorthy, M., D. Castronovo, A. Abraham, S. Bhattacharyya, S. Gradus, J. Gorski, Y.N. Naumov, N.H. Fefferman, and E.N. Naumova. 2012. Deviations in influenza seasonality: odd coincidence or obscure consequence? Clinical Microbiology and Infection. 18(10):955-962.
23. Hock*, K. and N.H. Fefferman. 2012. Social organization patterns can lower disease risk without associated disease avoidance or immunity. Ecological Complexity. 12:34–42.
22. Hock*, K. and N.H. Fefferman. 2011. Violating Social Norms when Choosing Friends: How Rule-Breakers Affect Social Networks. PLoS One. 2011; 6(10): e26652
21. Hock*, K. and N.H. Fefferman. 2011. Extending the role of social networks to study social organization and interaction structure of animal groups. Annales Zoologici Fennici. 48(6):365-370.
20. Kafai, Y.B. and N.H. Fefferman. 2010. Virtual Epidemics as Learning Laboratories in Virtual Worlds. Journal of Virtual Worlds Research. 3(2):2-15.
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19. Hock*, K., K.L. Ng, and N.H. Fefferman. 2010. Systems approach to studying animal sociality: individual position versus group organization in dynamic social network models. PLoS One. 5(12): e15789.
18. Fefferman, N.H. and E.N. Naumova. 2010. Innovation in Observation: A Vision for Early Outbreak Detection. Emerging Health Threats. 3:e6. doi: 10.3134/ehtj.10.006
17. Lofgren*, E.T., J.B. Wenger, N.H. Fefferman, D. Bina, S Gradus, S. Bhattacharyya, Y.N. Naumov, J. Gorski, E.N. Naumova. 2010. Disproportional Effects in Populations of Concern for Pandemic Influenza: Insights from Seasonal Epidemics in Wisconsin, 1967-2004. Influenza and Other Respiratory Diseases. 4:205-212.
16. Phan, L., N.H. Fefferman, D. Hui, and D. Brugge. 2010. Impact of Street Crime on Boston Chinatown. Local Environment. 15(5):481-491.
15. Reed, J.M., N.H. Fefferman, and R.C. Averil-Murray. 2009. Vital Rate Sensitivity Analysis and Management Implications for Desert Tortoise. Biological Conservation. 14(12): 2813-3222.
14. Wilson-Rich, N., Spivak, M., Fefferman, N.H., Starks, P.T. 2009. Genetic, Individual, and Group Facilitation of Disease Resistance in Insect Societies. Annual Reviews of Entomology. 54:405-23.
13. Fefferman. N.H. 2008. Biological Experimentation in silico. Annales Zoologici Fennici, 45: 367368.
12. Lofgren*, E., M. Senese*, J. Rogers* and N.H. Fefferman. 2008. Pandemic Preparedness Strategies for School Systems: Is Closure Really the Only Way? Annales Zoologici Fennici, 45: 449-458.
11. Fefferman, N.H. and K.L. Ng*. 2007. How Disease Models on Static Graphs Fail to Approximate Epidemics in Shifting Social Networks. Physical Review E. 76:031919. (This article was selected for reprinting by the Virtual Journal of Biological Physics Research 2007)
10. Lofgren*, E. and N.H. Fefferman. 2007. The Untapped Potential of Virtual Game Worlds to Shed Light on Real World Epidemics. The Lancet Infectious Diseases. 7:625–629. (article content was the cover of the journal)
9. Lofgren*, E., N.H. Fefferman, Y.N. Naumov, J. Gorski and E.N. Naumova. 2007. Influenza Seasonality: Underlying Causes and Modeling Theories. Journal of Virology, 81(11):5429-5436.
8. Lofgren*, E., N.H. Fefferman, M. Doshi and E.N. Naumova. 2007. Assessing Seasonal Variation in Multisource Surveillance Data: Annual Harmonic Regression. Lecture Notes in Computer Science. BioSurveillance 2007. eds D. Zeng et al. 4506:114-123.
7. Fefferman, N.H. and K.L Ng*. 2007. The role of individual choice in the evolution of social complexity. Annales Zoologici Fennici, 44:58-69.
6. Fefferman, N.H., J.F.A. Traniello, R.B. Rosengaus and D.V. Calleri. 2007. Disease Prevention and Resistance in Social Insects: Modeling the Survival Consequences of Immunity, Hygienic Behavior and Colony Organization. Behavioral Ecology and Sociobiology, 61:565-577.
5. Starks, P.T.B. and N.H. Fefferman. 2006. Polistes Nest Founding Behavior: a Model for the Selective Maintenance of Alternative Behavioral Phenotypes. Annales Zoologici Fennici, 43:456467.
4. Fefferman, N.H., and E.N. Naumova. 2006. Combinatorial Decomposition of an Outbreak Signature. Mathematical Biosciences, 202(2):269-287.
3. Fefferman, N.H. and J.M. Reed. 2006. A Vital Rate Sensitivity Analysis that is Valid for NonStable Age Distributions and for Short-Term Planning. The Journal of Wildlife Management, 70(3):649-656.
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2. Fefferman, N.H., and P.T.B. Starks. 2006. A Modeling Approach to Swarming in Honey Bees. Insectes Sociaux, 53(1):37-45.
1. Fefferman, N.H., E.A. O′Neil, and E.N. Naumova. 2005. Confidentiality vs Confidence: The aggravation of aggregation as a remedy in public health. Journal of Public Health Policy, 26(4):430-449.
Under Review: 10. Fefferman, N.H., E.T. Lofgren, N. Li, P. Blue, D.J. Weber, and A.A. Yakubu. Fear, Access, and
the Real-Time Estimation of Etiological Parameters for Outbreaks of Novel Pathogens. (Under Review) 9. Fefferman, N.H. and O. Udiani. Workforce Training, Deployment, Protection, and Management in the Wake of a Pandemic. (Under Review). 8. Lofgren, E. K. Lum, A. Horowitz, B. Madubuonwu, K. Myers, and N. H. Fefferman. The Epidemiological Implications of Jails for Community, Corrections Officer, and Incarcerated Population Risks from COVID-19. (Under Review). 7. Feinberg, F., A. Patania, B. McShane, B. Falk, D. Larremore, E. Feit, J. Helveston, M. Small, M. Braun, N. Fefferman, and E. Bruch. A Framework for Studying Choices in Networks. (Under Review) 6. Beckage, B., K. Lacasse, J.M. Winter, N.H. Fefferman, F.M. Hoffman, L.J. Gross, S.S. Metcalf, T. Franck, E. Carr, A. Zia, and A. Kinzig. The Earth has humans, so why don’t our climate models? (Under Review) 5. Udiani*, O., K. Lacasse, A. Zia, L. Gallos*, P. Zhong*, B. Beckage, E. Carr, T. Franck, L. Gross, F. Hoffman, P. Howe, A. Kinzig, S. Metcalf, J. Winter, and N.H. Fefferman. Recruitment and Mobilization for Social Movements: implications from network modeling. (Under Review) 4. Udiani*, O., and N.H. Fefferman. Could the Need for Rest Provide a Pathway for the Evolution of Division of Labor in Social Species? (Under Review) 3. Gignoux-Wolfsohn, S.A., Pinsky, M.L., Kerwin, K., Herzog, C., Hall, M., Bennett, A.B., Fefferman, N.H. and Maslo, B., Genomic signatures of evolutionary rescue in bats surviving white-nose syndrome. (Under Review) 2. Udiani*, O. and N.H. Fefferman. Has disease risk shaped the evolution of social complexity in insect societies? (Under Review) 1. Siewe*, N., B. Greening*, and N.H. Fefferman. The Potential Role of Asymptomatic Infection in Outbreaks of Emerging Pathogens (Under Review)
Book Chapters:
Published or In Press
10. Fefferman, N.H. When to Turn to Nature-Inspired Solutions for Cyber Systems. 2019. in NatureInspired Security and Resilience. eds. Eltoweissy, Elalfy, Fulp, and Mazurczyk. pp 29-50. The Institution of Engineering and Technology, London, UK.
9. Price, C.R. and N.H. Fefferman. 2019. A Preliminary Exploration of the Professional Support Networks the EDGE Program Creates. in A Celebration of the EDGE Program’s Impact on the Mathematics Community and Beyond (pp. 317-325). Springer, Cham.
8. Brooks. H.Z., M.E. Hohn, C. Price, A.E. Radunskaya, S.S. Sindi, N.D. Williams, S.N. Wilson, N.H. Fefferman. 2018. Mathematical Analysis of the Impact of Social Structure on Ectoparasite Load in Allogrooming Populations. in Understanding Complex Biological Systems with Mathematics eds. A. Radunskaya, R. Segal, B. Shtylla. Association for Women in Mathematics Series, vol 14. pp 47-61. Springer
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7. Williams, N.D., H.Z. Brooks, M.E. Hohn, C. R. Price, A.E. Radunskaya, S.S. Sindi, S.N. Wilson, and N. H. Fefferman. 2018. How Disease Risks Can Impact the Evolution of Social Behaviors and Emergent Population Organization. in Understanding Complex Biological Systems with Mathematics eds. A. Radunskaya, R. Segal, B. Shtylla. Association for Women in Mathematics Series, vol 14. pp 31-46. Springer
6. Korczynski*, M., A. Hamieh*, J.H. Huh, H. Holm, S. R. Rajagopalan, and N.H. Fefferman. 2017. DIAMoND: Distributed Intrusion/Anomaly Monitoring for Nonparametric Detection (invited extended version). in Security, Privacy and Reliability in Computer Communications and Networks. eds. K. Sha, A Striegel, and M Song. River Publishers Series in Communications. River Publishers.
5. Fefferman, N.H. and L.M. Fefferman. 2011. Mathematical Macrobiology: An Unexploited Opportunity in High School Education. in Biomath in the Schools. eds. M.B. Cozzens, and F.S. Roberts. DIMACS Series in Discrete Mathematics and Theoretical Computer Science. Vol 76. American Mathematical Society.
4. Jagai, J., N.H. Fefferman and E.N. Naumova. 2011. Waterborne Disease Surveillance. in Encyclopedia of Environmental Health. eds. J. Nriagu, S. Kcew, T. Kawamoto, J. Patz, and D. Rennie. Elsevier Science. 1st edition
3. Ji, S., W.A. Chaovalitwongse, N.H. Fefferman, W. Yoo, and J.E. Perez-Ortin. 2009. Mechanismbased Clustering of Genome-wide RNA Levels: Roles of Transcription and TranscriptDegradation Rates. in Clustering Challenges in Biological Networks. eds. S. Butenko, P.M. Pardalos, and W.A. Chaovalitwongse. World Scientific Publishing Company.
2. Fefferman, N.H. and J.F.A. Traniello. 2008. Social Insects as Models in Epidemiology: Establishing the Foundation for an Interdisciplinary Approach to Disease and Sociality. in Organization of Insect Societies: From Genome to Sociocomplexity eds J. Gadau and J. Fewell. Harvard University Press
1. MacLeod, N., N. Ortiz, N.H. Fefferman, W. Clyde, C. Schulter, and J. MacLean. 2000. Phenotypic Response of Foraminifera to episodes of global environmental change. in Biotic Response to Global Change. eds S.J. Culver and P. Rawson. Cambridge University Press
Edited Volumes:
1. Fefferman, N.H. (Ed.) (2008) Annales Zoologici Fennici 45(5)
Peer Reviewed Contributed Conference Papers:
8. Suarez*, G.P., L.K. Gallos, and N.H. Fefferman. 2018. A Case Study in Tailoring a Bio-Inspired Cyber-Security Algorithm: designing anomaly detection for multilayer networks. 2018 IEEE Security and Privacy Workshops (SPW). IEEE, 2018.
7. Fields, D. A., Kafai, Y. B., Giang, M. T., Fefferman, N., & Wong, J. 2017. Plagues and people: Mass community participation in a virtual epidemic within a tween online world. Proceedings of the 12th International Conference on the Foundations of Digital Games. DOI: 10.1145/3102071.3102108
6. Kafai, Y. B., Fields, D. A., Giang, M. T., Fefferman, N., Sun, J., Kunka, D., & Wong, J. 2017. Designing for massive engagement in a tween community: Participation, prevention, and philanthropy in a virtual epidemic. In Interaction Design & Children Conference. New York: ACM, 365-370. ISBN: 978-1-4503-4921-5
5. Fields, D. A., Kafai, Y. B., Giang, M. T., Fefferman, N., & Wong, J. 2017. The Dragon Swooping Cough: Mass community participation in a virtual epidemic within a tween online world. In B. Smith, M. Borge, E. Mercier & K. Y. Lim (Eds.) Proceedings of the 12th International Conference
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on Computer Supported Collaborative Learning, Volume 2 (pp. 865-866). Philadelphia, PA: International Society of the Learning Sciences. 4. Fields, D. A., Kafai, Y. B., Sun, J., Fefferman, N., Ellis, E., DeVane, B., Giang, M. T., & Wong, J. 2016. The great dragon swooping cough: Stories about learning designs in promoting participation and engagement with a virtual epidemic. In Barany, A., Slater, S., & C. Steinkuehler (Eds.), Proceedings of the Games + Learning + Society (GLS) 12.0 Conference (pp. 419-424). Pittsburgh, PA: ETC Press.
3. Verma, S., A. Hamieh*, J. H. Huh, H. Holm, S. R. Rajagopalan, M. Korczynski*, and N. H. Fefferman. 2016. Stopping Amplified DNS DDoS Attacks Through Query Rate Sharing Between DNS Resolvers, to appear in the International Conference on Availability, Reliability and Security (ARES). (Note: this is the proceeding of a conference, not a journal, but is equivalent to journal publication for the
field of computer science, however in keeping with the conventions of Biology, Fefferman is last author as PI on the sponsoring grant that funded the research.)
2. Korczynski*, M., A. Hamieh*, J.H. Huh, H. Holm, S. R. Rajagopalan, and N.H. Fefferman. 2015. DIAMoND: Distributed Intrusion/Anomaly Monitoring for Nonparametric Detection. CCCN 2015: 24th International Conference on Computer Communications and Networks, IEEE, 2015.
(Note: this is the proceeding of a conference, not a journal, but is equivalent to journal publication for the field of computer science, however in keeping with the conventions of Biology, Fefferman is last author as PI on the sponsoring grant that funded the research.)
1. Fefferman, N.H., J. Jagai, and E.N. Naumova. 2004. Two - Stage Wavelet Analysis Assessment of Dependencies in Time Series of Disease Incidence. Proceedings of the 2004 Conference of the International Environmetrics Society
Research Mentoring
(bold = current)
Undergraduate Researchers:
Shyretha Brown, Danika Chari, Kaige Chen, Ian Clark, Liz Davis, Anne Eaton, Taylor Eisenstein, Brandon Grandison, Derek Hansen, David Haycraft, John Huffman, Ana Kilgore, John Kim, Edward Lee, Somair Malik, Andrew McConvey, Jeffrey Mandell, Zain Paracha, Luke Postle, Lauren Prince, Asya Pritsker, Cathy Reis, Jeremiah Rogers, Bolanle Salaam, Nicole Scholtz, Margaret Senese, Joshua Smith, Andrew Sohn, Kim Stanek, Johanna Tam, Colleen Thiersch, Elena Tsvetkova, Barton Willage, Immanuel Williams, Nakeya Williams, Barry Walker, Hannah Yin, Yi Ming Yu, Yongqing Yuan, Stefanie Yuen, James Xue, Bobby Zandstra
Graduate Researchers:
(Committee Member, or Advisor for work on funded research projects – not primary dissertation advisor; * = special case)
Kevin Aagard, Emma Bell, Carissa Bleker, Curtis Burkhalter, Jordan Bush, Huilan Chang, Erick Chastain, Fnu Eric Ngang Che, Brittany Coppinger, Ashley Crump, Kathyrn Fair, Alison Golinski, Stephen Grady, Gili Greenbaum, Candice JeanLouis, Hwayoung Jung, Ariel Kruger, Di Li, Eric Lofgren*, Nicholas Lorusso, Adam Marszalek, Benjamin Mcclendon, Anthony Ogbuka, Paul Raff, Orin Robinson, Margaurete Romero, Rajat Roy, Liliana Salvador, Shelby Scott, Tinevimbo Shiri, Brittany Stephenson, Alex Thorn, Rafael Valentine, Alex Villiard, Orion Weldon
(primary research advisor to)
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Jessica Beck, Kelly Buch, Ashley DeNegre, Jeff DeSalu, Brad Greening, Natalie Lemanski, Agnesa Redere, Samantha Schwab, Anna Sisk (co-advised), Oliver Stringham, Karen Wylie Post-Doctoral Researchers:
Dr. Erick Chastain, Dr. Lazaros Gallos, Dr. Manuel Garcia-Quisimondo, Dr. Ali Hamieh, Dr. Karlo Hock, Dr. Cindy Hui, Dr. Jing Jiao, Dr. Amira Kebir, Dr. Maciej Korczynski, Dr. Natalie Lemanski, Dr. Kellen Myers, Dr. Kah Loon Ng, Dr. Chris Stone, Dr. Nourridine Siewe (coadvised by Prof. S. Lenhart), Dr. Gonzalo Suarez, Dr. Oyita Udiani, Dr. Peng Zhong
Courses Developed and Taught (all courses developed from scratch)
• Advanced Mathematical Ecology II (MAT/EEB 682 – University of Tennessee, Knoxville) Spring 2017 and 2019
• Evolution, Disease, and Medicine (ENR110 – Rutgers University / EEB 310 – UT, Knoxville) Fall each year 2009 – 2014, Spring 2018 and 2020
• Conversational Bio-Mathematical Modeling (ENR 428 – Rutgers University/ EEB 475 – UT, Knoxville) Spring 2011 – 2014, 2020
• Problems in Ecology: Academic Pedagogy (ENR 601 – Rutgers University) Fall 2015 • (Co-Developed and Taught) Ethics & Professional Development in Ecology and Evolution (ENR
602 01 – Rutgers University) Spring 2013-2016 (exception – sabbatical Fall 2014-Spring 2015) • Introduction to Modeling Ecology, Evolution, and Epidemiology (ENR 604 – Rutgers
University) Spring each year 2010 – 2016 (exception – sabbatical Fall 2014-Spring 2015) • Introduction to Epidemiological Modeling (ENR 603 – Rutgers University) Fall each year 2009
– 2012 • Elements of Data Analysis and Epidemiology (CMPH 343 – Tufts University School of
Medicine) Spring 2006
Professional Memberships
Association for Women in Mathematics (AWM) Association for Women in Science (AWIS) Complex Systems Society (CSS) Institute of Electrical and Electronics Engineers (IEEE) International Union for the Study of Social Insects (IUSSI) Society for Industrial and Applied Mathematics (SIAM) Society for Mathematical Biology (SMB)
Invited Presentations
*upcoming 2020
Public Interview: “Nina Fefferman,” You Made it Weird podcast Public Lecture: “The Role of Applied Math in Real-time Pandemic Response: How Basic Disease
Models Work,” NIMBioS Webinar Series, Knoxville, TN Public Interview: “Math + Virus + Us,” Here We Are podcast and YouTube video. 2019
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Public Lecture: “Vaccine Acceptance and Epidemic Risks,” Infinite Futures Event Series, Museum of Science and Industry, Chicago, IL.
“When to Turn to Biology for Inspiration in Systems Design,” DIMACS 30th Anniversary Conference, New Brunswick, NJ.
“Patients as patches: Ecological challenges from the epidemiology of healthcare environments,” ESA 2019, Louisville, KY.
“Math and Disease,” Possibilities in Postsecondary Education and Science (PIPES), UTK, Knoxville, TN.
Keynote Address: “Evolving Efficient Solutions: How simple natural systems solve the most complicated problems,” MBI Capstone Conference 2019, Columbus, OH (virtual)
Plenary Talk: “How AIDS prevalence impacts the emergence of antibiotic resistance in bacterial infections,” SIAM BAMM 2019, Richmond, VA.
Public Lecture: “Math and Disease,” Stand Up Science, Farragut, TN. “Biosurveillance and Homeland Security,” Princeton University, NJ. “Understanding Social Communication Systems with Homology Theory,” Complex Systems Seminar,
University of Michigan, Ann Arbor, MI. “Going Against the Grain,” Women Empowered in STEM (WeSTEM) 2019, Champaign, IL. “You’re Worth It: Job Negotiations,” Women Empowered in STEM (WeSTEM) 2019, Champaign, IL.
2018
“Math: A Critical, Treacherous Bridge Between Scientific Disciplines,” American Geophyiscal Union (AGU 2018), Washington DC.
“The Evolution of Social Complexity as Multi-Scale Feedback Control on Networks,” Systems Theory Lunch Colloquium, Harvard Medical School, Boston, MA.
“Saving Bats from Fungal Diseases with Linear Algebra,” Claremont Center for Mathematical Sciences Colloquium, Claremont, CA.
Plenary Talk: “Evolving Efficient Solutions: How simple natural systems solve the most complicated problems,” NIMBioS Undergraduate Research Conference 2018, Knoxville, TN.
Plenary Talk: “Linking Local Decisions with Global Outcomes in Networks: Case Studies in Behavior and Population Health” SIAM Life Sciences 2018, Minneapolis, MN.
“The mathematical biology of networks: from disease outbreaks to cyber-attacks,” TN Governor’s School, University of Tennessee, Knoxville, TN.
“Trans-disciplinary adventures in the mathematical biology of networks: from disease outbreaks to cyber attacks,” DIMACS REU, Rutgers University, Piscataway, NJ.
Public Webinar: “Social and Biological Networks: The Evolution of Social Systems,” US National Academies of Sciences, Engineering, and Medicine: Math Frontiers Webinar Series
2017
“Self-Diagnosing Networks,” Data Institute San Francisco Conference (DSCO17), San Francisco, CA. Keynote: “Evolving Efficient Solutions: How simple natural systems solve the most complicated
problems,” Workshop on Bio-Inspired Security, Trust Assurance, and Resilience (BioSTAR 2017), San Jose, CA. “Wildlife Disease Management Outcomes May Depend on the Mechanism of Host Immune Response,” Distinguished Lecture Series in Immunology and Infectious Diseases, Center for Emerging & Reemerging Infectious Diseases, School of Medicine, University of Washington, Pullman, WA.
2016
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“Evolving Healthy Populations,” International Symposium on Biomathematics and Ecology Education and Research 2016, Charlseton, SC.
“Individuals, Societies, and Climate: Modeling motivations to change,” Oak Ridge National Laboratory Workshop on Human Activity at Scale in Earth System Models, Oak Ridge, TN.
“Network Models in Epidemiology,” US-Canadian Institutes Epidemiology Summer School: Mathematical Modeling of Infectious Disease Spread, MBI, Columbus, OH.
“The Invasion Ecology of Diseases in a Human Environment,” Arthur M. Sackler Colloquia of the National Academy of Sciences, Coupled Human and Environmental Systems, Washington DC.
“Global Feedback Control on Centrality in Self-Organizing Systems”, Mathematical Biosciences Institute Workshop on the Control and Observability of Network Dynamics, MBI, Columbus, OH.
“Zika Control: More Complicated than Hoped?” Next Einstein Forum, Dakar, Senegal.
2015
“Linear Algebraic Tools in Conservation Ecology,” Simon A. Levin Mathematical, Computational and Modeling Sciences Center Seminar, Tempe, AZ.
“Applications of Homology Theory to Animal Communication Systems,” Mathematics and Statistics Colloquium, Arizona State Univ., Tempe, AZ.
“Trade-offs Between Collaboration and Infection Risk: Can ‘social distancing’ improve colony function?” Conference on Complex Systems 2015, Tempe, AZ.
“The Benefits of Ongoing Dynamics in Self-Organizing Social Systems,” Conference on Collective Dynamics and Evolving Networks, Bath, UK.
Plenary Talk: Exploiting the Complexity of Identity to Infiltrate Clandestine Groups – Lessons from a LARP, CyDentity Conference, CCICADA, New Brunswick, NJ.
“Incorporating Evolutionary Rescue into Population Viability Models,” Mathematics of Planet Earth: Workshop on Management of Natural Resources, Washington D.C.
“Distributed Detection Algorithms for Real-Time Maritime CyberSecurity,” Joint CCICADA & AMU Conference on Maritime CyberSecurity, New Brunswick, NJ.
“The Definition of Communication: One way biology and math people accidentally talk past each other and what we might be able to do to fix it,” Annual Meeting, Society for Integrative and Comparative Biology, West Palm Beach, FL.
2014
“BioInspired Anomaly Detection: Social Insects and Network Security,” Dept. of Homeland Security Science and Technology HSARPA CyberSecurity Division Research and Development Showcase and Technical Workshop, Washington D.C.
“n-TANGLE: a new method for comparing networks across scales” Workshop on Advances in Discrete Networks, Dept. of Mathematics, Univ. of Pittsburgh, Pittsburgh, PA.
Keynote Address: “Virtual Worlds Helping Public Health Preparedness,” New Jersey Health Care Quality Institute Annual Meeting, Trenton, NJ.
“A Mathematician’s Role in Fighting Ebola,” Saint Ann’s School, Brooklyn, NY. “Provable Boundaries on Disease Outbreaks in Self-Organizing Social Networks,” The Duke
University Mathematical Biology Colloquium, Durham, NC. Keynote Address: “Designing your own role: Women in STEM,” Tufts University Graduate Student
Luncheon for Women in Science, Medford, MA. “Division of Labor as an Adaptation to Combat Disease Risks?” The Seventh International Symposium
on Biomathematics and Ecology: Education and Research (BEER), Claremont, CA.
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“How dynamic networks affect disease transmission,” The BioCircuits Institute, UCSD, San Diego, CA.
“The Evolution of Social Complexity,” Plant Biology Dept. Seminar, Univ. of Vermont, Burlington, VT.
“Provable Boundaries on Disease Outbreaks in Self-Organizing Social Networks,” Math Dept. Seminar, Univ. of Tennessee at Knoxville, TN.
“Mathematics, Optimization, and the Evolution and Behavior of Social Insects,” Math Dept. Junior Colloquium, Univ. of Tennessee at Knoxville, TN.
“The Life of a Mathematical Researcher,” Saint Ann’s School, Brooklyn, NY. “Mathematics, Optimization, and the Evolution and Behavior of Social Insects,” Social Insect Research
Group Seminar, School of Life Sciences, Arizona State Univ., AZ. “N-tangle: A Network Comparison Method,” Workshop on Animal Social Networks, NIMBioS, TN 2013 “Evolutionary pressures, Infectious Diseases, and Self-Organizing Social Systems,” Evolutionary
Studies Seminar, Co-Sponsored by the Collective Dynamics of Complex Systems Research Group, the Undergraduate Math Club, Upsilon Pi Epsilon, and Pi Mu Epsilon, SUNY Binghamton, NY. “BioInspired Anomaly Detection,” DHS CyberSecurity PI Meeting, Arlington, VA. “Mathematics, Evolutionary Biology, Epidemiology, and National Security”, Saint Ann’s School, Brooklyn, NY. “Evolution of Reproductive Timing and Social Organization in Honey Bees,” Scientific Learning Forum at FMC, Ewing, NJ. “Crowd Sourcing WoW: A Case Study in Improving Pandemic Preparedness,” Annual George M. Sideris Biology Conference, LIU, Brooklyn, NY. 2012 Public Lecture: “Math, Complexity, and Social Groups: Using math to understand the nature of society,” Campus Life Enrichment Committee (CLEC) Lecture, Georgia Southern Univ., GA. “How and Why Static Approximations Can Fail to Give Adequate Insight into Processes on Dynamic Networks,” Math Dept. Colloquium, Georgia Southern Univ., GA. “Theoretical Worlds: An Exploration of Models and Model Systems,” Tufts Univ, Dept. of Civil and Environmental Engineering Seminar Series, Medford, MA. “Help, my avatar is sick!” Panel Talk, SXSW, Austin, TX. “WISE – Women, Ignore Silly Expectations!” 2012 WISE Conference, Texas A&M, TX. 2011 “The Evolution of Social Complexity,” CUNY Initiative for the Theoretical Sciences Workshop on A Unified Theory of Evolution, CUNY, NY. “Balancing Workforce Productivity Against Disease Risks for Environmental and Infectious Epidemics,” Math Dept. Seminar, Univ. of Ghana, Legon, Ghana. “Selective Pressures from Disease on Social Behavior in Hosts,” DIMACS/MBI US - African BioMathematics Initiative: Workshop on Genetics and Disease Control, Elmina, Ghana. Plenary Address: “The Future of Technology and Knowledge,” Next-Generation Communications Interoperability Workshop, Chicago, IL. “Virtual Worlds and Real Epidemics - Insights from WoW's Corrupted Blood Plague,” E-Virtuoses International Conference on Serious Games, Valenciennes, France.
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Plenary Address: “Disease Robustness and Evolutionary Selective Pressures on Social Organization in Eusocial Insects,” Mathematical Biosciences Institute Workshop on Insect Self-Organization and Swarming, Ohio State Univ., OH.
“Hakkar’s Corrupted Blood Plague: How an Outbreak in WoW is Helping Epidemiologists Create Better Disease Models,” Game Developer’s Conference 2011, San Francisco, CA
“Exploring the Role of Behavior in Infectious Disease Dynamics: Mathematical Insights from World of Warcraft and other Virtual Worlds,” DIMACS/CCICADA Student Workshop on Where the Mathematical and Computational Sciences Meet Society, Rutgers University, NJ
“Multi-Dimensional Data and the Influence of Human Behavior in Biosurveillance for Infectious Disease Outbreaks,” Global Biosurveillance Conference: Enabling Science and Technology – 2nd Meeting in the Biological Threat Non-Proliferation Conference Series, Santa Fe, NM
2010 “Distributed Algorithms for Collective Visualization of Data,” Visualanalytics Workshop 2010,
Imperial College London, UK “The Importance of Behavioral Dynamics on Disease Burden,” Southern African Wildlife College,
South Africa “The Impact of Stress on Populations,” DIMACS Advanced Study Institute on Conservation Biology,
Limpopo, South Africa “Social Behavior in Virtual Worlds,” Panel Discussant – InPlay 2010, Toronto, Canada “Self-Organizing Networks, Social Complexity, and Disease Dynamics,” Rensselaer Polytechnic
Institute, NY “Playing with Plague: Exploring Disease Dynamics from Within,” 2010 AAAS Annual Meeting, San
Diego, CA “Epidemiological Pressures on the Evolution of Social Complexity,” Mathematical Methods in Systems
Biology, Tel Aviv, Israel 2009 “Information Theoretic Tool for Biosurveillance,” CCICADA Kickoff Meeting, Rutgers Univ., NJ “Perspectives, Challenges, and Creativity in Understanding Behavioral Epidemiology,” Workshop on
Behavioral Epidemiology, Rutgers Univ., NJ “Evolutionary Implications of Epidemics on Social Behavior,” Evolutionary Genetics and Genomics at
Rutgers, Rutgers Univ., NJ Panel participant and Speaker on Popular Culture and Science, Sheffield Documentary Film Festival
'09, Sheffield, United Kingdom Keynote Address: “Epidemiological Insights from Virtual Worlds,” Life Science Dialogue
Heidelberg, - Inaugural Conference, Germany “Social Stability and Success: A new concept in self-organizing systems and preferential attachment,”
Office of Naval Research Workshop on Complex Systems, Institute for Pure and Applied Mathematics, Los Angeles, CA “The Impact of Household Capital Models on Targeted Epidemiological Control Strategies for Diseases with Age-Based Etiologies,” Makerere Univ., Kampala, Uganda Keynote Address: “Hakkar's Corrupted Blood Plague: How an Outbreak in World of Warcraft is Helping Epidemiologists Create Better Disease Models,” Games for Health – Virtual Worlds, Boston, MA “Network Representations and the Evolution of Social Complexity,” Frontiers in Applied and Computational Mathematics, New Jersey Institute of Technology, NJ
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“Mathematical Optimization, Evolutionary Sociobiology, and Eusocial Insects,” Conference on The Power of Analysis, Princeton Univ., NJ
“Mathematical Insights into Behavioral Epidemiology,” Univ. of Texas Health Science Center, Houston, TX
“Basics of Mathematical Modeling,” Mosquito Modeling Made Easy Day, Center for Vector Biology, Rutgers Univ., NJ
“Mathematical and Computational Methods in Epidemiology and BioSurveillance,” Jackson State University, MS
“Mathematics, Optimization, and the Evolution and Behavior of Social Insects,” UNC, Chapel Hill, Applied Math, NC
“Network models in Epidemiology and Sociobiology: Introduction, Overview, and Recent Advances,” Mathematical Sciences, RPI, NY
2008 “Social Behavior and the Dynamics of Corrupted Blood,” Rice University/Games for Health, Houston,
TX “Possible Selective Mechanisms for the Evolution of Disease-defensive Social Organizations,” Ecology
and Evolution Seminar, Boston Univ., MA “Behavioral Epidemiology in Virtual Worlds: Exploiting the virtual experience,” Advanced
Technology Applications for Combat Casualty Care 08; Telemedicine and Advanced Technologies Research Center Medical Simulation & Training Technology “Recent Advances in the What, How and When of Network Models in Infectious Disease Epidemiology,” SIAM 2008, CA “World of Warcraft Corrupted Blood Disease: Epidemiological Observations and Findings,” Games for Health, Baltimore, MD “Computational Ecology: The Evolution of Sociality,” Frontiers in Applied and Computational Mathematics, New Jersey Institute of Technology, NJ Plenary Talk: “Self-organizing social behavior and disease-defensive organizational strategies in social species,” Complexity 2008, Univ. Illinois Urbana, IL “From the Individual to the Population: Modeling the many levels of evolutionary fitness in social species,” Dept. of Ecology and Evolution and Natural Resources, Rutgers Univ., NJ “Individual Decisions, Group Efficiency," ExxonMobil, Clinton, N.J. 2007 Public Lecture: “Virtual Games, Real Epidemics: Can We Learn Real-Life Lessons in BioDefense from Online Games?” Biosecurity, Biotechnology and Global Health Seminar Series, Program on Science and Global Security, Princeton Univ., NJ “Disease on Networks: Can Static Representations Capture the Full Complexity of a Dynamic Process?” NDSSL Seminar Series, Virginia Bioinformatics Institute, Virginia Tech, VA Public Lecture: “Real People, Virtual Worlds: Watching a Plague Unfold,” Institute for Mathematical Sciences, National Univ. of Singapore “The Continued Mystery of Regular, Old, Annual Flu,” Workshop on Mathematical models for the Study of the Infection Dynamics of Emergent and Re-emergent Diseases in Humans, Institute for Mathematical Sciences, National Univ. of Singapore “Epidemics and the Evolution of Social Complexity,” Program in Ecology and Evolution Seminar Series, Rutgers Univ., NJ “Playing Games at School: Parents, Public Schools, and Children's Health,” DIMACS Workshop on Game Theory in Epidemiology and Ecology, Rutgers Univ., NJ
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“Analyzing Entropy in Biosurveillance,” U.S. Dept. of Homeland Security research briefing, Washington D.C.
“Fantastic Problems in Mathematical Ecology,” DIMACS Bio-Math Connection Field Testers Workshop, Rutgers Univ., NJ
“Does Securing Infrastructure Against Workforce-Depletion Depend on Whether the Risk is Environmental or Infectious?” DIMACS Workshop on Mathematical Modeling of Infectious Diseases in Africa, Univ. of Stellenbosch, South Africa
“Social interaction and disease dynamics,” Workshop on Analysis of Time Series Data in Epidemiology, Tufts Univ. School of Medicine, Boston, MA
“The Behaviors of Individuals and Populations,” Working Group on Spatio-Temporal and Network Modeling of Diseases, ICMS, Edinburgh, Scotland
“The Evolution of Complexity in Already Social Groups,” Dept. of Ecology and Evolutionary Biology, Princeton Univ., NJ
“Disease as a Selective Pressure and the Evolution of Social Complexity,” Applied Biomathematics, Stony Brook, NY
“Vital Rate Sensitivity Analysis: A new method for population viability analysis - Two examples of its use,” Applied Biomathematics, Stony Brook, NY
“Disease as a Selective Pressure and the Evolution of Social Complexity,” Morin Lab, Dept. of Ecology, Evolution and Natural Resources, Rutgers Univ., NJ
2006 “The Role of Individual Choice in the Evolution of Social Complexity and its Implications Towards the
Emergence of Zoonotic Infections,” DIMACS Computational and Mathematical Epidemiology Seminar, Rutgers Univ., NJ “Preparing Societal Infrastructure Against Disease-Related Workforce Depletion,” DIMACS Workshop on Facing the Challenge of Infectious Diseases in Africa, University of the Witswatersrand, South Africa “Fantastic Problems in Mathematical Ecology,” DIMACS Bio-Math Connect Institute for High School Teachers, Denver, CO “Societal Bio-defense - How Can we Accomplish Safety, Stability and Efficiency?” SIAM Annual Meeting, Boston, MA “When females should stop supporting lazy males: mathematics and honey bees?” DIMACS REU Seminar Series, Rutgers Univ., NJ “Selected Problems in Epidemiology.” DIMACS Tutorial on Data Mining and Epidemiology, NJ “How Would Termites Prepare for Pandemic Bird Flu and What Should We Learn From Them?” Joint Dept. of Entomology and Center for Infectious Disease Dynamics Seminar, Penn State Univ., PA “Different Scales of BioDefense - Can societies be both safe and efficient?” DIMACS Computational and Mathematical Epidemiology Seminar, Rutgers Univ., NJ 2005 “Termites in the Nation′s Service,” DIMACS Computational and Mathematical Epidemiology Seminar, Rutgers Univ., NJ “Applications of Self-Organizing Systems to Epidemiology.” DIMACS Mixer Series, Rutgers Univ., NJ “Disease Signatures: A New Combinatorial Method for Epidemiology,” DIMACS Computational and Mathematical Epidemiology Seminar, Rutgers Univ., NJ “Fantastic Problems in Mathematical Ecology,” DIMACS Bio-Math Connect Institute for High School Teachers, Rutgers Univ., NJ
18

Case 2:20-cv-00630-JMS-DLP Document 47-3 Filed 12/28/20 Page 20 of 23 PageID #: 840
“How Complex Systems Can Simplify a Complex Problem: What Epidemiologists Can Learn From Insects,” Institute for Advanced Study, Center for Systems Biology Seminar Series, NJ
2004 “Incorporating Behavior and Social Structure into Pathogen Defense Strategies. Conference on Innate
Immunity for Biodefense,” National Defense University's Center for Technology and National Security Policy (CTNSP) & the Department of Defense, Washington D.C. Keynote Address: “Social Insects, Immunocompetence and Epidemiology: A Model System for Systems Modelers,” Vanderbilt Medical School, Dept. of Microbiology and Immunology Annual Retreat, TN “Disease and Immunocompetence in Group-Living Animals: Implications for Human Epidemiology,” DARPA/DSO Workshop on Endogenous Defense, VA Contributed Presentations 2008. “An Interdisciplinary Framework for Defining and Distinguishing Security Desiderata for Personally Sensitive Information,” DIMACS/DyDAn Workshop on Internet Privacy: Facilitating Seamless Data Movement with Appropriate Controls 2006. “A Vital Rate Sensitivity Analysis (VRSA) for Non-stable Age Distributions and Short-term Planning,” North American Ornithological Conference 2004. “A Mathematical Analysis of Reproductive Fission,” North American Section of the International Union for the Study of Social Insects (with published abstract) 2004. “Two-stage Wavelet Analysis Assessment of Dependencies in Time Series of Disease Incidence,” The 2004 Conference of the International Environmetrics Society (with published abstract) 2004. “Mathematical Modeling of Behavior and Ecology in Social Insects: Social mechanisms of pathogen control in termite colonies,” Departmental Research Seminar, Tufts Univ. 2003. “Modeling Waterborne Infectious Outbreaks: When, where and how bad will they be?” The 2003 Conference of the International Environmetrics Society (with published abstract) 2003. “Modeling Disease Resistance through Social Interactions in Termites,” The 2nd Conference on the Mathematics and Algorithms of Social Insects (with published abstract)

Service (external to Home Institution)

Ongoing
2020 2019-2021 2019 2019 2018

Referee of papers for American Naturalist, Annales Zoologici Fennici, Behavioral Ecology and Sociobiology, Biological Conservation, BMC Evolutionary Biology, Bulletin for Mathematical Biology, Canadian Biosystems Engineering, Conservation Letters, IMA Journal of Applied Mathematics, Journal of Biological Dynamics, Journal of Infectious Diseases, Journal of Insect Science, Journal of Nonlinear Dynamics, Mathematical Biosciences, Journal of Medical Internet Research, Journal of the Royal Society Interface, Malaria Journal, Nature, Nature Scientific Reports, Parasites and Vecotrs, PeerJ, Phyiscal Reviews X, PLoS Computational Biology, PLoSOne, PloS Medicine, PNAS, Vaccine, Vector-Borne and Zoonotic Diseases
Deputy Editor PLOS Computational Biology
Director of Development, Enhancing Diversity in Graduate Education (EDGE) Foundation
Guest Editor PLOS Computational Biology
Co-Organizer SIAM Network Science Annual Meeting (NS 19)
NSF ad hoc proposal reviewer

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2018 2018
2017-cont.
2017
2017 2016
2016
2014 2013- 2016
2013 2013-2016 2013-2019
2012
2012
2011
2011
2011 2011
2010
2010
2010
2010 2010
2010
2009
2009 2009
2009 2008-2010 2008-2010

Burroughs Wellcome Fund grant proposal reviewer
Co-Organizer IEEE Symposium on Security and Privacy, entitled: 3rd Workshop on Bio-inspired Security, Trust, Assurance and Resilience (BioSTAR 2018)
Member of the Leadership Team of the National Institute for Mathematical and Biological Synthesis
Co-Organizer NIMBioS Workshop on Applying Optimization Techniques to Agricultural Problems
ARO grant proposal reviewer Co-Organizer MBI (the Mathematical Biosciences Institute at Ohio State) Workshop on
Generalized Network Structures and Dynamics Co-Organizer MBI (the Mathematical Biosciences Institute at Ohio State) Emphasis
Semester on Dynamics of Biologically Inspired Networks ARO grant proposal reviewer Member of Scientific Advisory Board for MBI (the Mathematical Biosciences Institute
at Ohio State) NIH grant proposal reviewer Co-Organizer NIMBioS Working Group on Climate Change and Vector-borne Diseases Invited Participant Joint NIMBioS-SESYNC Working Group on Human Risk
Perception and Climate Change Invited Grant Proposal Reviewer for the United States – Israel Binational Science
Foundation US Environmental Protection Agency FIFRA Scientific Advisory Panel (SAP) on
Pollinator Risk Assessment Framework Invited Participant - External Expert Review Panel for Bioscience Research and
Development at Los Alamos National Laboratory Program Committee Member, The Third International UKVAC Workshop on Visual
Analytics (VAW 2011) NSF grant proposal reviewer Co-Organizer DIMACS/MBI US - African BioMathematics Initiative: Advanced Study
Institute and Workshop on Genetics and Disease Control Organizer of the DIMACS Mini-Workshop on ‘Emergent Properties of Dynamic
Biological Networks’ Lecturer at DIMACS/MBI US - African BioMathematics Initiative: Workshop and
Advanced Study Institute on Conservation Biology Organizer of the DIMACS Mini-Workshop on ‘Game-theoretic Approaches to Medical
Prognosis’ NSF grant reviewer/panel participant Invited International Reviewer for Centre of Excellence Grants for the Australian
Research Council Co-Organizer of the DIMACS Workshop on Modeling and Mitigation of the Impacts of
Extreme Weather Events to Human Health Risks Co-Organizer DIMACS Workshop on Economic Epidemiology, Makerere Univ.,
Kampala, Uganda NSF grant reviewer/panel participant Co-Organizer/ Program Co-Chair Workshop on Economic Epidemiology, Makerere
Univ., Kampala, Uganda Co-Organizer Mosquito Modeling Made Easy Day at the N.J. Center for Vector Biology Member Chief Editorial Committee for the DIMACS Book Series Member Editorial Board of DIMACS Educational Modules Series

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Case 2:20-cv-00630-JMS-DLP Document 47-3 Filed 12/28/20 Page 22 of 23 PageID #: 842

2008 2008
2007
2006-2016 2004 2004 2003
2000-2002 1999

Invited organizer SIAM mini-symposium on Network Models of Infectious Disease Ran the Reconnect Program on Biosurveillance at DIMACS – a week long short course
for teaching faculty at liberal arts institutions on an advanced topic to expand their own and their students research opportunities Mentor to two teams of researchers for Department of Homeland Security funded Research Experience for those at Minority Serving Institutions Advisory/Editorial Board Member for the journal Annales Zoologici Fennici Subject Matter Expert on Innate Immunity and Biodefense, National Defense University Research Consultant, DARPA (via Strategic Analysis, INC.) Developed algorithm for Managing Endangered Species Habitat in Hawaii - MESHH software package (Reed, J.M., N.H. Fefferman, C.S. Elphick, and M. Silbernagle. 2004) Technical Editor (Cryptography) to MacMillan Press Invited Reviewer of AES submission to the National Institute of Standards and Technology, later published as The Twofish Encryption Algorithm, Schneier, et al, 1999, John Wiley & Sons Inc.

Service (internal to Home Institution)

2020 2019-cont. 2019
2019 2018 2018-cont. 2017-cont. 2017
2017 2016-2017
2016-2017
2016-cont.
2015-2016 2014
2010
2009-2010 2009 2009-2010 2008-2012 2008-2010 2008-2010 2007-2009

Advisor to the COVID-19 Re-Imagining Fall Task Force Head of Graduate Admissions, Program in Ecology and Evolutionary Biology Research Mentor for the NIMBioS Summer Research Experiences (SRE) for
Undergraduates Co-Organizer Tutorial on Networks at NIMBioS Serve on departmental Promotion and Tenure Committee for Prof. O’Meara Serve on Faculty Mentoring Committee for Prof. Kivlin Served as Departmental Coordinator for University Future Faculty Program Research Mentor for the NIMBioS Summer Research Experiences (SRE) for
Undergraduates Lecturer for Joint 2017 MBI-NIMBioS-CAMBAM Summer Graduate Program University of Tennessee, Knoxville Department of Ecology and Evolutionary Biology
Search Committee Member and Diversity Advocate (Ecosystem Ecology Search) University of Tennessee, Knoxville Department of Mathematics Search Committee
Member (Mathematical Biology Search) University of Tennessee, Knoxville Program in Ecology and Evolutionary Biology
Graduate Affairs Committee Member Rutgers University Biological Sciences Area Committee Member Rutgers University EENR Department Wildlife Biology Faculty Search Committee
Member Co-Mentor to a team of researchers for Department of Homeland Security funded
Research Experience for those at Minority Serving Institutions Organizer of the EENR seminar series Organizer of the DIMACS Workshop on Behavioral Epidemiology Member E&E Executive Committee Member of EENR Curriculum Committee Member Chief Editorial Committee for the DIMACS Book Series Member Editorial Board of DIMACS Educational Modules Series Member of the Rutgers University Advisory Board to the Office for the Promotion of
Women in Science, Engineering and Mathematics

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Case 2:20-cv-00630-JMS-DLP Document 47-3 Filed 12/28/20 Page 23 of 23 PageID #: 843 2006-2015 Research Advisor for Rutgers Univ. DIMACS REU 2005-2007 Co-organizer DIMACS seminar series Mathematical and Computational Epidemiology
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EXHIBIT 2

Case 2:20-cv-00630-JMS-DLP Document 47-6 Filed 12/28/20 Page 2 of 7 PageID #: 946

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

)

PATRICK R. SMITH and BRANDON S. HOLM,

)

individually and on behalf of all others similarly

)

situated,

)

)

Plaintiffs,

)

)

v.

)

)

)

WILLIAM P. BARR, in his official capacity as the

)

Attorney General of the United States; MICHAEL

)

CARVAJAL, in his official capacity as the Director

)

of the Federal Bureau of Prisons; and T. J. WATSON, in )

his official capacity as Complex Warden for the Terre )

Haute Federal Correctional Complex,

)

)

Defendants.

)

________________________________________________)

No. 2:20-cv-630- JMS-DLP

DECLARATION OF CHARLES P. FORMOSA

I, Charles P. Formosa, declare as follows: 1. I am an investigator with the Federal Public Defender’s Office for the Western
District of Washington, where I have been employed since February of 2007. IFrom July 1995 through November 1998, I was employed by the Office of the Capital Collateral Representative in Florida, where I investigated the cases of inmates sentenced to death by the State of Florida throughout state post-conviction proceedings and Habeas Corpus review. From November 1998 to February 2007, I was employed by the Federal Public Defender’s Office in the Eastern District of California, where I investigated the cases of inmates sentenced to death by the State of California during Habeas Corpus review.

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Case 2:20-cv-00630-JMS-DLP Document 47-6 Filed 12/28/20 Page 3 of 7 PageID #: 947
2. I was part of Brandon Bernard’s legal team. Brandon was executed by the federal government on December 10th, 2020. I was the legal representative for and witness to Mr. Bernard’s execution
3. This declaration is based upon my best memory of my personal involvement and personal observations during the execution process for Brandon.
4. On the morning of Brandon’s execution, I met with him in a visiting room for deathrow inmates at USP Terre Haute. We talked through a partition with three pieces of plexiglass covering the lower parts of the partition except for the three or four inches from the sides of the plexiglass. My previous legal visits were in a similar room but without the fencing and plexiglass. I visited with Brandon for approximately 2 ½ hours.
5. Before my visit with Brandon, I was processed through security where I came into close contact with one BOP staff member and two members of Mr. Bourgeois’ legal team. Mr. Bourgeois was scheduled to be executed on December 11, 2020, and his legal team was visiting with him.
6. In order to get to the visiting rooms, a different BOP employee from the one who processed me walked me and the two members of the legal team for Mr. Bourgeois through the halls of the prison where we eventually we took a 12 by 20 feet elevator to the death row visiting rooms. It was not possible to socially distance in the elevator. During my visit with Brandon, I saw some BOP employees walking in the hall behind him who were not wearing masks. When I left the visit, I took the same elevator with the BOP officer and now three members of the Bourgeois team. Mr. Bourgeois was represented by the Federal Defenders Office in Philadelphia, PA who had traveled to Terre Haute as well. Most of the staff members I interacted with had masks on (though some wore them below their noses).
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Case 2:20-cv-00630-JMS-DLP Document 47-6 Filed 12/28/20 Page 4 of 7 PageID #: 948
7. I left the prison at 3:00 p.m. I grabbed lunch at a drive-thru and then drove downtown to the Sheriff’s office to be picked up by the prison officials to be returned to the prison for the execution. I had been told to arrive at the Sheriff’s parking lot by 3:45 p.m.
8. When I arrived at the Sheriff’s office parking lot, I met with Brandon’s aunt and spiritual advisor. We were outside, but Brandon’s aunt was not wearing a mask and was standing next to Brandon’s spiritual advisor. Brandon’s aunt was initially standing next to her car where two people who were not wearing masks were sitting. I do not remember if the spiritual advisor was wearing his mask at that time. Brandon’s aunt is from Louisiana, but had been staying in Terre Haute for a week with the two people in her car. His spiritual advisor drove from New York with stops in different states before arriving in Terre Haute. The three of us were then met by one female and two male prison officials. They were wearing protective equipment and provided Brandon’s aunt and spiritual advisor with surgical masks. I brought my own mask. They had us fill out forms, and then we waited for about 30 minutes to receive word that we could come to the prison.
9. At that time, they put all of us into a white transit van with four rows of seats which would accommodate approximately 11 people. There were six of us total in the van, including the driver. The windows in the van were not open. During the ride, Brandon’s aunt pulled her mask down exposing her nose and mouth a few times. BOP employees did not request she put her mask back on. I estimate that we spent approximately 15 minutes in the van.
10. They drove us to the USP building, where death row is housed. At the front entrance of the BOP grounds, Brandon’s aunt and spiritual advisor had their temperatures checked. They did not check mine because they recognized me as being at the prison earlier that day. They took us in the lobby to process us. They had us all sit down in the waiting area. Present were the six of us and three officers who processed us. They then called us one at a time to be screened. Each of
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Case 2:20-cv-00630-JMS-DLP Document 47-6 Filed 12/28/20 Page 5 of 7 PageID #: 949
us went through a body scanner and the officers put our shoes, jackets, and belongings through the metal detectors. They then used a hand wand on each of us, wanding us first in the front and then in the back. All of these actions took place in very close proximity with the officers. While each person went through the security measures, the others waited together. The security officers waited for clearance from another area of the prison before moving us in the same van., There weren’t any windows that opened in the security screening room or the waiting area.
11. They then drove us to another building. We entered the front door into a hallway without windows. They took us to a room that also had no windows. My memory is one escort stayed with us most of the time. I remember the other escorts went into a different room with two new males and a new female BOP employee. The room had windows on two sides but I didn’t notice if they were open. One of the new males from the other room came in to ask us how we were doing. The female from the van ride came in as well. I remained in that room with the other two witnesses for Mr. Bernard for approximately two hours. They left the door open, but there were no windows in the room. Brandon’s aunt did not wear her mask for most of the time. She was the person who spoke the majority of the time while in the room and there were only a few instances when she was silent. At one point, his aunt asked me how I could breathe in my mask. His spiritual advisor pulled his mask down to eat snacks several times while sitting within two feet of Brandon’s aunt where he sat the majority of the time. We all were pulling our masks down to drink water. The BOP employee who was in the room with us most of the time sat within three feet of Brandon’s spiritual advisor and aunt.
12. About fifteen minutes before we actually left for the execution building, we were brought out and told to get into the van by the original three BOP employees. Brandon’s spiritual advisor was taken to a different van by a new BOP employee. After two or three minutes, all three
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Case 2:20-cv-00630-JMS-DLP Document 47-6 Filed 12/28/20 Page 6 of 7 PageID #: 950
of us were returned to the same room we had come from. After fifteen or twenty minutes, we were directed to get back in the vans. We were put in our van with the same three employees. Brandon’s aunt removed her mask almost immediately after getting into the van. We were in the van for approximately ten minutes. During that time, Brandon’s aunt told stories and sang a song. At no time did the BOP employees ask her to put her mask back on her face.
13. Once we arrived at the execution building, Brandon’s aunt and I were escorted to a room that was approximately eight by fourteen feet. In the room was the female employee who escorted us to the room from the van and two other BOP employees.
14. The room had an approximately three and half by five window with a blind. In order to see Brandon, I had to stand next to Brandon’s aunt who had pulled her mask down so it was under her chin exposing her mouth and nose. None of the BOP employees asked her to put her mask back on. After five minutes, the blind went up. I could see into the execution chamber but could not see Brandon. I had to move around Brandon’s aunt to see Brandon. Before I moved, I could see Brandon’s spiritual advisor and someone standing next to him. Once I moved around, I saw Brandon was already in the room. He was strapped onto a custom table, though you could not see the body straps because he was covered with a blanket. You could see the tubes going into his body. Standing in the room on the other side of Brandon from me was a BOP employee who made all of the announcements in a loud voice. He never wore a mask. Someone else in the room, whom I could not see, read the death sentence pronouncement. The guy without the mask called to make sure there were not any “impediments” to continuing the execution. I could not see into any other room that might have a view into the execution chamber beyond the room with windows behind Brandon and a window to the right of the BOP employee who was not wearing a mask.
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Case 2:20-cv-00630-JMS-DLP Document 47-6 Filed 12/28/20 Page 7 of 7 PageID #: 951

15. Brandon’s aunt did not wear her mask almost the entire time we were in our room. A couple of minutes after Brandon was pronounced dead, Brandon’s aunt, spiritual advisor and I were escorted to the van by the same people and were taken back to Sheriff’s department’s parking lot. On the ride to the Sheriff’s department, his aunt sobbed most of the time and was not wearing a mask. None of the BOP employees requested she put her mask on.
16. There were no windows that opened to the outside in any of the rooms that I was in throughout the process.
17. Prior to leaving for Terre Haute, I quarantined myself for ten days. I drove my car and parked in the garage next to the airport terminal so I did not have to take a shuttle. I socially distanced myself from others in the airport while waiting to board my plane. While boarding the plane, other passengers were not socially distanced and I had to wait right next to some of the passengers on the plane before I could move forward. Exiting the airplane was even worse for social distancing. The passengers all stood up next to each other to exit the plan. I got my rental car and drove to my hotel.
I declare under penalty of perjury that the foregoing is true and correct.

Dated:

12/17/2020

By: _____________________________________ Charles P. Formosa

6

 
 Case 2:20-cv-00630-JMS-DLP Document 55 Filed 01/07/21 Page 1 of 22 PageID #: 1118

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

PATRICK R. SMITH, et al. Plaintiffs,
v. WILLIAM P. BARR, et al.
Defendants.

)

)

)

)

)

No. 2:20-cv-00630-JMS-DLP

)

)

)

)

Order Granting in Part and Denying in Part Plaintiffs' Second Motion for Preliminary Injunction

The plaintiffs here—two inmates at FCI Terre Haute—have made a strong showing that

they face an unconstitutional health risk if the defendants carry out scheduled executions without

significant modifications to their COVID-19 prevention measures. For this reason and those

discussed below, their second motion for preliminary injunction is granted.

I. Background, Procedural History, and Second Motion for Preliminary Injunction

All federal executions take place at the Federal Correctional Complex ("FCC Terre Haute")

in Terre Haute, Indiana. FCC Terre Haute contains multiple facilities, including, as relevant here,

the United States Penitentiary ("USP"), where death row inmates are housed, the Federal

Correctional Institute ("FCI"), and the execution facility. The plaintiffs—two inmates at the FCI

who purport to represent a class of all incarcerated persons at FCC Terre Haute—allege that the

defendants' decision to carry out executions at FCC Terre Haute during a deadly pandemic violates

their rights under the Eighth Amendment. Dkt. 1, ¶ 8.

The plaintiffs filed an emergency motion for preliminary injunction on November 30,

2020, dkt. 12, which the Court denied on December 8, 2020, dkt. 37. The Court concluded that

although "conducting executions at this time may well result in more COVID-19 cases for those

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Case 2:20-cv-00630-JMS-DLP Document 55 Filed 01/07/21 Page 2 of 22 PageID #: 1119
involved in the executions, the plaintiffs have not shown that increased risk extends to them, and thus have not shown a likelihood of success on the merits of their motion." Id. at 1–2. The Court found that the defendants and prison staff could do more to prevent COVID-19 transmission at FCC Terre Haute generally and that conducting executions during the pandemic is risky, but that the plaintiffs failed to produce evidentiary support in the form of scientific or statistical data to demonstrate that conducting executions during the pandemic creates substantial additional risks to the inmates' health. Id. at 13–14. After denying the motion, the Court granted the plaintiffs' motion for expedited discovery. Dkts. 45, 46.
Brandon Bernard was executed on December 10, and Alfred Bourgeois was executed on December 11.1 Three executions are scheduled for next week: Lisa Montgomery on January 12, Cory Johnson on January 14, and Dustin Higgs on January 15.2
On December 28, 2020, the plaintiffs filed a second motion for preliminary injunction and evidence in support of their motion. Dkt. 47. The evidence includes information about an outbreak of COVID-19 infections at FCC Terre Haute, information produced in discovery by the defendants, and a declaration from an expert in modeling risk for infectious diseases, Dr. Nina Fefferman. Dkts. 47-2–10. The defendants filed a response in opposition with updated declarations from FCC Terre Haute warden T.J. Watson and BOP Regional Counsel Rick Winter. Dkts. 51, 51-1, 51-2. The plaintiffs filed a reply, dkt. 54, and the motion is now ripe for ruling.
As discussed at length in the Court's December 8, 2020 Order, the novel coronavirus, or COVID-19, is killing hundreds of Americans each day, and prisoners are particularly vulnerable.
1 Federal Bureau of Prisons, Historical Information: Capital Punishment, https://www.bop.gov/about/history/federal_executions.jsp (last visited Jan. 7, 2021). 2 Federal Bureau of Prisons, Scheduled Executions, https://www.bop.gov/resources/federal_executions_info.jsp (last visited Jan. 7, 2021).
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Case 2:20-cv-00630-JMS-DLP Document 55 Filed 01/07/21 Page 3 of 22 PageID #: 1120
December 2020 was the deadliest and most infectious month in the United States since the start of
the pandemic, with over 77,000 deaths and 6.4 million new cases.3
When the Court issued its December 8, 2020, Order, 264 FCC Terre Haute inmates and
21 staff members were COVID-19 positive, 3 inmates had died, and 301 inmates and 38 staff
members had recovered. Dkt. 37 at 5. As of January 7, 2021, 108 FCC Terre Haute inmates and
24 staff members are positive, and 1117 inmates and 105 staff members have recovered.4 Put
differently, between those two dates, 657 inmates and 70 staff members tested positive for the
virus. On December 7, 2020, an FCI inmate died in an area hospital after testing positive for
COVID-19 at the prison on November 17, 2020.5 Both Mr. Johnson and Mr. Higgs tested positive
in December, as did other inmates on death row.6
Each execution brings approximately 50 to 125 individuals to FCC Terre Haute. The
execution team consists of approximately 40 BOP employees brought from out-of-state facilities.
Dkt. 28-1 at ¶ 16. The execution team does not quarantine upon their arrival in Indiana. Id. at ¶ 17.
The execution team works primarily in and near the execution facility; they generally do not enter
FCI or USP or interact with inmates other than the condemned. Dkt. 28-1 at ¶ 17. The team does,
3 Nicole Acevedo, December was the deadliest, most infectious month since the start of the pandemic, NBC NEWS, https://www.nbcnews.com/news/us-news/december-was-deadliest-mostinfectious-month-start-pandemic-n1252645 (last updated Jan. 2, 2021). Further, a new, more transmissible COVID-19 variant was identified in the United States in December, and experts are confident that variant is now everywhere. Phil Helsel, Covid variant found in Florida, more cases identified in California, NBC NEWS (Dec. 31, 2020), https://www.nbcnews.com/news/usnews/covid-variant-found-florida-more-cases-identified-california-n1252637 (explaining variant is believed to be more transmissible but not deadlier). 4 Federal Bureau of Prisons, COVID-19 Cases, https://www.bop.gov/coronavirus/ (last updated Jan. 7, 2021). 5 BOP Press Release (Dec. 8, 2020), Inmate Death at FCI Terre Haute, https://www.bop.gov/resources/news/pdfs/20201208_press_release_thx.pdf. 6 Lisa Trigg, TRIBUNE-STAR (Dec. 22, 2020), COVID-19 soars at Terre Haute federal prison complex, https://www.tribstar.com/news/covid-19-soars-at-terre-haute-federal-prisoncomplex/article_57a3ad58-4464-11eb-b444-0702db9b765d.html.
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however, interact with FCC Terre Haute personnel incident to their role assisting with the executions. Id. Approximately 70 FCC Terre Haute staff are removed from their regular duties to assist with the executions by managing check points and perimeter security, staffing the command center, and escorting witnesses and demonstrators. Id. Media witnesses, members of the defendants' legal team, and family members of the victims and inmates also assemble at the prison to witness the execution. Id. at ¶ 16.
At FCC Terre Haute, all staff, inmates, and visitors are supposed to wear masks inside the institution. Id. at ¶ 9. In accordance with CDC and BOP guidelines,7 temperature checks and COVID-19 screening are conducted for everyone entering the grounds, and those with a temperature of 100.4 degrees or higher are denied entry. Id. Staff who transport witnesses and process witnesses through checkpoints are required to wear fit-tested N95 masks, face shields, gloves, and surgical gowns. Dkt. 33-1 at ¶¶ 8–9. For the December executions, all execution team members were supposed to wear N95 masks,8 and they will be required to do so again for the January executions. Dkt. 51-2 at ¶ 6. Further, as of December 30, 2020, FCC Terre Haute received a shipment of COVID-19 vaccinations, and 206 staff and 355 high-risk inmates9 have received the first round of vaccinations out of 709 staff members and 2228 inmates. Dkt. 51-1 at ¶¶ 8–9.
7 See CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html ("CDC Interim Guidance") (last updated Dec. 31, 2020); Federal Bureau of Prisons, BOP Modified Operations, https://www.bop.gov/coronavirus/covid19_status.jsp (last updated Nov. 25, 2020). 8 N95 masks filter out 95% of air particles, making them more protective than cloth masks at preventing the spread of COVID-19. CDC, Personal Protective Equipment: Questions and Answers, https://www.cdc.gov/coronavirus/2019-ncov/hcp/respirator-use-faq.html (last updated Aug. 8, 2020). 9 According to Warden Watson, "The Plaintiffs were not among those inmates initially given the vaccination because they are not medically in a high risk category." Id.
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COVID-19 tests for BOP employees are conducted on a voluntary basis. Dkt. 28-1 at ¶ 23. Eleven BOP employees are known to have tested positive contemporaneously with participating in executions: the FCC Terre Haute staff member disclosed in the Hartkemeyer case, the previously disclosed eight execution team members who participated in Orlando Hall's execution in November, dkt. 33-2 at ¶ 8, an additional execution team member who participated in the July executions, and an additional FCC Terre Haute employee who worked in the USP and FCI who assisted with executions in late September, dkt. 47-9. After the December executions, only three members of the execution team elected to be tested; all tested negative. Dkt. 51-2 at ¶ 5. None of the execution team members have reported a positive COVID-19 test since the December executions, but again only three chose to be tested. Id.
Because the contacts between those involved in the executions and FCC Terre Haute inmates are limited, the Plaintiffs enlisted Dr. Fefferman, a professor in both the Department of Ecology and Evolutionary Biology and the Department of Mathematics at the Professor at the University of Tennessee, Knoxville, to explain how conducting executions at this time could increase inmates' risk of contracting COVID-19. Dkt. 47-2 at ¶1. Dr. Fefferman is a researcher of the epidemiology, ecology, and evolution of infectious disease, pandemic preparedness, national biosecurity, and infrastructure protection. Id. at ¶ 2. She has been studying COVID-19 extensively since February 2020, with specific attention to modeling the risks of spread from and within carceral facilities. Id. at ¶ 4. Dr. Fefferman reviewed materials provided by the plaintiffs' counsel, including the execution plans and layout of FCC Terre Haute, Mr. Winter and Warden Watson's prior declarations, and discovery related to contact tracing and COVID-19 testing related to the executions. Id. at ¶ 7.
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Based on her review of the materials, Dr. Fefferman opined that conducting the January executions poses a substantial risk of COVID-19 spread and illness to FCC Terre Haute prisoners. Id. at ¶ 8. The risk is due to the introduction of hundreds of individuals to the prison environment and the involvement of FCC Terre Haute staff members who are displaced from their normal duties, interact with the individuals involved in the executions, and then return to their duties. Id. The risk is higher when community spread is high, as it is now. Id. at ¶ 10. When community spread is high, it is "essential" to limit the number of contacts among individuals when other factors in the prison setting cannot necessarily be controlled, such as social distancing, improving ventilation systems, consistent use of masks, etc. Id. Dr. Fefferman acknowledged that she could not quantify the extent of the risk with the information available, but in her opinion the risk is substantial. Id. at ¶ 12. Dr. Fefferman explained a variety of factors that account for the increased risk:
 Participants' Travel to FCC Terre Haute: The 50 to 125 individuals traveling to the prison may be unknowingly infected or may contract the virus on account of their interstate travel because of increased risk of exposure from traveling by airplane, staying in hotels, taking taxis, and eating at restaurants. The potential for one infected person to infect a group of people is the basis for health directives issued by state and local public health officials discouraging holiday travel and gatherings, as well as the CDC's recommendations that prisons avoid all nonessential visitors when there is a COVID-19 outbreak inside the prison or in the community. Id. at ¶ 17;
 FCC Terre Haute Staff Involvement: Staff involvement in the executions increases the risk of exposing inmates to the virus due to the high number of staff
6

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involved and their interaction with "potential new sources of infection," i.e. the individuals who would not be at the prison but for the executions. Because of the lag time between when one becomes infected and symptoms appear, the staff member may be infected by an individual involved in the execution and then several days later, having resumed his normal duties, may expose an inmate to the virus. Id. at ¶¶ 18–24;  Impact on COVID-19 Preventative Measures: The precautions FCC Terre Haute normally takes to reduce the spread of COVID—quarantining new inmates, suspending visitation at FCI Terre Haute, assigning staff to the same posts to minimize their movement within the facility—are undermined by the executions because of the reassignment of many staff members to execution-related functions. Pulling staff from their regular duties and having other staff reassigned to the missing positions "increases the circles of exposure." Further, reduced staffing also causes a slower response time to individuals who are sick and potentially increases the exposure time of the virus to other inmates. Id. at ¶¶ 25–30;  Contact Tracing: While contact tracing is an essential tool to slow the spread of the virus, disrupting staff's regular routines and assignments makes contact tracing more difficult by increasing the likelihood that the infected staff member will be unable to identify all of his contacts. Such was the case with the staff member who became infected before the July executions and was unable to remember his interactions. Id. at ¶ 33. The defendants did not do any contact tracing after learning a spiritual advisor tested positive after a November execution, despite his contacts with FCC Terre Haute staff. Id. at ¶ 38. Further, the defendants did not conduct
7

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contact tracing for the members of the executions team members who tested positive, despite Warden Watson's prior sworn assertion that contact tracing would be conducted for any BOP employee who tested positive following an execution. Dkt. 28-1 at ¶ 24. The defendants stated that the lack of contact tracing of the execution team was to protect the confidentiality of its members, and because "some execution teams members who tested positive did not return to work at their home institution until meeting CDC guidelines; therefore negating the need for contact tracing at all." Dkt. 47-2 at ¶ 37 (quoting discovery response, dkt. 47-9 at 6). Because the purpose of contact tracing would be to identify potential contacts with FCC Terre Haute staff, the explanation that contact tracing was unnecessary because the execution team members isolated at home "suggests a basic and disturbing misunderstanding of the principles and purposes of contact tracing." Id. Dr. Fefferman opined that the introduction of individuals to the facility for the executions and their interaction with FCC Terre Haute staff "is a likely explanation for waves of infection that have occurred in connection with prior executions." Id. at ¶ 35. That spikes in infections did not occur after every execution "does not negate the significance of instances in which spikes did occur, given the various factors that influence the spread of COVID," such as the rate of community spread. Id. Dr. Fefferman identified safety measures that would reduce the risk of spreading COVID-19 to FCC Terre Haute inmates. First, the BOP could not conduct executions until the pandemic has ended. Second, the BOP could delay the executions until all staff and inmates have been vaccinated. Third, the BOP could institute heightened safety measures. The measures Dr. Fefferman states would be necessary include:
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 Members of the execution team should quarantine for 14 days upon arrival to Indiana and test negative before participating in execution-related duties;
 Execution team members and FCC Terre Haute staff involved in the executions should undergo rapid testing each morning they enter the prison grounds;
 The BOP should restrict interaction between the execution team and FCC Terre Haute staff, impose strict social distancing requirements, strictly enforce mask mandates,10 and implement policies prohibiting execution members and staff members from engaging in risky social behaviors such as drinking alcohol during the quarantine period.
 FCC Terre Haute staff members involved in execution-related activities should quarantine for 14 days and test negative for COVID-19 before returning to their normal assignments;
 If BOP or FCC Terre Haute identifies an infected team member, comprehensive contact tracing must take place.
In response to Dr. Fefferman's proposed safety measures, the defendants state that quarantining the execution team prior to the executions or FCC Terre Haute staff after the executions is not feasible. To require the execution team to quarantine upon arrival "would hamper staffing, productivity, and security at the home institutions of the team members, in addition to being financially very costly to the BOP (for example, requiring payment for lodging and meals and paying other staff overtime to cover quarantined staff duties at their home institutions.").
10 In support of their second motion, the plaintiffs included the declaration of Charles Formosa, a mitigation investigator who was a member of Mr. Bernard's legal team and witnessed his execution. Dkt. 47-6. Mr. Formosa witnessed several instances where BOP staff did not wear masks, including a staff member in the execution chambers. Id. at ¶¶ 6, 14
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Dkt. 51-2 at ¶ 8. According to Warden Watson, requiring FCC Terre Haute staff to quarantine for 14 days after the execution would hinder the ability to staff all necessary positions, potentially jeopardizing the safety and orderly operation of the institution. Dkt. 51-1 at ¶ 13. For example, many of the staff conducting temperature checks and symptom screening for individuals entering the grounds are medical staff at the institution; thus, any quarantine "would undermine the ability of the medical department to meet the health and safety needs of the inmate population." Id. The defendants also stated that contact tracing of execution team members is not always possible due to the "paramount need for confidentiality" of the identities of execution team members because "[c]ontact tracing would either provide the identities of team members, or information that would lead to the identities of team members, to individuals who would otherwise not have access to this information, and who could threaten the safety of the team member." Dkt. 51-2 at ¶¶ 11–14.
II. Factual Findings A. Dr. Fefferman and Her Conclusions Are Credible. The defendants do not put forth any expert testimony, but they do challenge Dr. Fefferman's conclusions and her status as an expert. See dkt. 51 at 15−17. Dr. Fefferman's qualifications are unquestionable. She earned a PhD in mathematical biology from Tufts University in 2005. Dkt. 47-3 at 2. She is a professor at the University of Tennessee in both the Department of Ecology and Evolutionary Biology and the Department of Mathematics. And she has advised state and federal agencies on "how to manage and mitigate pandemic threats from H1N1 2009 flu, Ebola in West Africa, and Zika virus." Dkt. 47-2, ¶ 3. Dr. Fefferman appropriately relied on her review on the scientific evidence of how COVID-19 spreads, as well as declarations from BOP officials, data regarding FCC Terre Haute COVID-19 infections, and contact tracing information provided by the defendants. Id., ¶¶ 7, 12.
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B. The Defendants Have Deliberately Chosen Not to Implement CDC Guidance Regarding Contact Tracing and Testing.
The CDC gives detailed guidance on when and how to implement contact tracing for individuals who test positive for COVID-19.11 On December 4, 2020, defendant Warden Watson described the BOP's contact tracing procedures for a staff member who tested positive shortly before the July 2020 executions. Dkt. 28-1, ¶ 24. According to Warden Watson, "[t]he staff member's contacts were determined by the use of video as well as his personal recollection." Id. Warden Watson then declared under penalty of perjury that the "BOP will continue to conduct the same contact tracing procedures if additional staff members test positive in the future." Id. This declaration has proven to be wholly false.
The most recent execution for which the defendants have provided testing data was November 19. Within a week of that execution, six members of the execution team tested positive for COVID-19. The BOP conducted contact tracing for, at most, one of them. See dkt. 47-8 at 4−5, 20; Now the defendants, without acknowledging their prior misrepresentation, assert that contact tracing "is not always possible for members of the execution team, given the paramount need for their confidentiality due to the sensitivity of their occupation and their unique mission." Dkt. 51 at 7. The Court emphatically rejects this assertion. Nothing prevents execution team members from logging their close contacts during their time at FCC Terre Haute and reporting them to proper personnel if they later test positive for COVID-19. And nothing requires that the identity of the COVID-19 positive employee be shared with an individual who is advised through proper tracing that s/he has had close personal contact with such COVID-19 positive individual. It is the fact of the contact, not the identity of the COVID-19 positive person that is significant.
11 "Contact Tracing," CDC Interim Guidance, https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html.
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But even in situations where contract tracing is not feasible—though it is here—the CDC guidelines offer an alternative: broad-based testing. Instead, the defendants have made testing voluntary for execution team members. After the most recent round of executions, only three of the more than forty execution team members chose to be tested. Dkt. 51 at 10. Lack of resources cannot explain the failure to implement broad-based testing, as "FCC Terre Haute has multiple rapid Abbot[t] test machines, and uses them to immediately test symptomatic inmates in order to isolate and quarantine them more quickly." Dkt. 28-1, ¶ 12 (Watson 12/4/20 Declaration).
As Dr. Fefferman concludes, because of the BOP's failure to perform contact tracing and testing for execution team members, their "attempts, if any, to identify FCC Terre Haute staff who may have been infected [will be] hamstrung and incomplete." Dkt. 47-2, ¶ 37.
C. Performing Further Executions as Planned, Without Additional Precautions, Substantially Increases the Risk of the Plaintiffs Contracting COVID-19.
The Court credits Dr. Fefferman's conclusion that "inmates from all three facilities within FCC Terre Haute would face a substantially increased risk of contracting COVID-19, and suffering serious health problems as a result, if executions continue at FCC Terre Haute at the current time and in the manner in which executions have been held earlier this year at the prison." Dkt. 47-2, ¶ 12.
The defendants note that COVID-19 infections have not spiked following every round of executions. Dr. Fefferman convincingly explains that the lack of consistent post-execution spikes is due to the nature of COVID-19 spread. See id., ¶ 35 (describing the probabilistic nature of predicting COVID-19 spread and analogizing to weather prediction). Even in large groups, transmission does not always occur; but when it does, it can spread widely and quickly. See id., ¶¶ 13−14.
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Indeed, the spread of COVID-19 at USP Terre Haute following Orlando Hall's execution

on November 19, 2020—after which several members of the execution team tested positive for

COVID-19—exemplifies this type of spread. The following table summarizes confirmed active

COVID-19 cases among inmates at USP Terre Haute in the weeks following the November 19

execution:12

Date
11/23/2020 11/30/2020 12/ 7/2020 12/14/2020 12/21/2020 12/28/2020
1/3/2021

USP Active Cases 4 6 84 170 252 410 344

Less than two weeks after the November 19 execution, confirmed active cases at the USP began rising. Within a month, the USP had added 400 new active cases—the most active cases among any BOP facility at the time. The defendants emphasize that the number of active cases "stay[ed] steady for the ten days" after the November execution. Dkt. 51 at 17. But this 10-day lag supports Dr. Fefferman's conclusions about execution-related spread: execution team members and visitors pass the virus to FCC staff, who in turn pass it to FCC inmates. Dkt. 47-2, ¶ 8.
As noted in the Court's order denying the plaintiffs' first motion for preliminary injunction, "the evidence shows—and common sense dictates—that carrying out executions on prison property with prison staff involved creates some additional risk of COVID-19 infection for

12 Data from "Facility Case Trends" page at "Dashboards of BOP COVID-19 Cases," available at oig.justice.gov/coronavirus (last accessed January 6, 2021).
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prisoners, including the plaintiffs." Dkt. 37 at 14. Dr. Fefferman could not quantify the increased risk, no doubt in part due to the defendants' failure to implement widespread testing or contact tracing for execution team members. Dkt. 47-2, ¶ 11 (noting that the "relevant data and contact tracing information are extremely limited"). But the Court credits her conclusion, based upon the available scientific evidence, the data from FCC Terre Haute, and the lack of precautions taken during and following executions, that carrying out further executions without additional safeguards will "substantially increase[]" the plaintiffs' risk.
III. Standing The plaintiffs have demonstrated standing to bring this action. The defendants argue that the plaintiffs' alleged injury is speculative. Dkt. 51 at 2. But the Court finds that the plaintiffs have demonstrated injury in the form of a substantially increased risk of contracting COVID-19 due to the defendants' actions and inadequate preventative measures. This threat of future harm is sufficient injury for standing purposes. Booker-El v. Superintendent, Indiana State Prison, 668 F.3d 896, 899 (7th Cir. 2012).
IV. Discussion "To obtain a preliminary injunction, a plaintiff must show that: (1) without this relief, it will suffer irreparable harm; (2) traditional legal remedies would be inadequate; and (3) it has some likelihood of prevailing on the merits of its claims." Mays v. Dart, 974 F.3d 810, 818 (7th Cir. 2020) (citation and quotation marks omitted). The burden to show "likely" success is lightest when the prospect of irreparable injury is greatest, and vice versa. Id. at 822. If the plaintiff meets these three factors, the court must balance "the harm the denial of the preliminary injunction would cause the plaintiff against the harm to the defendant if the court were to grant it." Id. at 818.
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A. Likelihood of Success The Eighth Amendment prohibits cruel and unusual punishment. Corollary to this prohibition is a duty upon prison officials, who must "ensure that inmates receive adequate food, clothing, shelter, and medical care, and must 'take reasonable measures to guarantee the safety of the inmates.'" Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526−27 (1984)). The Eighth Amendment's deliberate indifference framework includes an objective prong and subjective prong. Id. at 834. To prove the objective prong, the plaintiffs must show that conducting executions during the COVID-19 pandemic creates a "substantial risk of serious harm" to their health. Id. For the subjective prong, the plaintiffs must show that the defendants knew of and disregarded the excessive risk of harm to the plaintiffs' health. Id. at 837; see also Goodloe v. Sood, 947 F.3d 1026, 1030−31 (7th Cir. 2020) (citing Farmer standard). The level of disregard required is roughly equivalent to criminal recklessness. Davis v. Kayira, 938 F.3d 910, 915 (7th Cir. 2019). The plaintiffs' first motion for preliminary injunction failed on the objective prong because they failed to provide evidentiary support of a correlation between conducting the executions and exposing inmates at FCC Terre Haute to COVID-19. The defendants maintain that none of the new evidence proffered by the plaintiffs casts doubt on the Court's prior conclusion. The Court disagrees. Dr. Fefferman provides compelling evidence that the manner in which the defendants have conducted the last ten executions has created a substantial risk that the plaintiffs will contract COVID-19 and suffer serious health consequences. The executions introduce a large number of outsiders to the prison complex. These individuals interact with FCC Terre Haute staff who have been displaced from their regular duties to assist with the execution. The CDC recommends assigning staff to the same posts to reduce the spread of the virus.
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Dkt. 13-12 at 2; dkt. 47-2 at ¶ 25. By shuffling staff assignments and exposing FCC Terre Haute staff to outsiders, the defendants increase the number of contacts all prison staff have with the inmates. Dkt. 47-2 at ¶ 30. This is especially risky when community rates are high. Staff displacement also complicates contact tracing once a staff member has tested positive for COVID19. Id. at ¶ 31. As discussed in the factual findings, the Court credits Dr. Fefferman's conclusion that that "inmates from all three facilities within FCC Terre Haute would face a substantially increased risk of contracting COVID-19, and suffering serious health problems as a result, if executions continue at FCC Terre Haute at the current time and in the manner in which executions have been held earlier this year at the prison." Dkt. 47-2, ¶ 12 (emphasis added).13
Moving to the subjective prong, there is compelling circumstantial evidence that the defendants are knowingly disregarding a risk to inmates' health if they proceed with the January executions in the same manner as the earlier executions. See Farmer, 511 U.S. at 842 (noting factfinder may rely on "inference from circumstantial evidence" to find requisite knowledge of a substantial risk.). The defendants cite to cases in which prison administrators were not found to be deliberately indifferent due to the efforts they undertook to reduce the spread of COVID-19 during regular prison operations. Dkt. 51 at 18, n.5, citing, e.g. Wilson v. Williams, 961 F.3d 829, 840–41
13 The plaintiffs argue that the Court may consider members of the putative class—all inmates at FCC Terre Haute—when evaluating the likelihood of success and the risk of irreparable harm, but they have not yet moved to certify the class. The Court need not address whether it may consider the putative class absent a motion for class certification, because the Court finds that the named plaintiffs have presented sufficient evidence of a risk of future harm to them. See Delaney v. DeTella, 256 F.3d 679, 686 (7th Cir. 2019) ("Deliberate indifference is akin to criminal recklessness; thus, it is enough that defendants are aware that their action may cause injury without being able to divine the most likely victim."); Byrd v. Hobart, 761 Fed. App'x 621 (7th Cir. 2019) (holding that a reasonable jury could find that unsanitary kitchen conditions at prison created a risk of future harm that violated the Eighth Amendment, even though the plaintiff had eaten there for years without becoming ill).
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(6th Cir 2020) (finding BOP responded reasonably to risks by screening inmates, limiting group gatherings, staff, and visitors, providing inmates masks and soap, etc.); Valentine v. Collier, 956 F.3d 797, 802 (5th Cir. 2020) (finding plaintiffs were unlikely to establish deliberate indifference when prison officials were taking measures "informed by guidance from the CDC and medical professionals"). But conducting executions at this time is not part of regular prison operations. As the defendants have insisted throughout this and other litigation, the BOP has discretion to set the place and date for executions. The defendants have exercised that discretion by choosing to carry out executions during the height (so far) of the COVID-19 pandemic that has killed more than 350,000 Americans. The defendants therefore must ensure that the consequences of these executions reflect due regard for the safety of non-condemned prisoners in their custody.
When the BOP "is aware of the need to undertake a specific task and fails to do so, the case for deliberate indifference is particularly strong." Goodloe, 947 F.3d at 1031. The defendants know what safety measures are necessary to reduce the spread of COVID-19 within the prison, and claimed they would follow many of them, but their conduct instead demonstrates willful disregard of the risks posed when the measures aren't implemented. The defendants claim to have implemented mask-wearing but have failed to enforce compliance. The defendants have touted the availability of testing but have chosen not to utilize rapid testing of staff and visitors who enter prison grounds. It is telling that Warden Watson acknowledged that one of the reasons visitors are not tested is because "[s]ome visitors are legal or spiritual advisors, as well as members of the media and witnesses whose presence is authorized by 28 C.F.R. § 26.4." Dkt. 51-1 at ¶ 15. His statement reveals a concern that denying entrance to one of these visitors could create a legal impediment to the execution, so the defendants prefer not to know if they are COVID-19 positive. Testing is not required for any staff. The defendants' observation that none of the December
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execution team members received positive test results is not reassuring when less than 10% of the execution team chose to be tested. The defendants ignore the fact that individuals "with asymptomatic and presymptomatic infection are significant contributors" to the transmission and spread of COVID-19.14 Most disconcerting, the defendants represented to the Court that contact tracing would occur after any BOP staff member involved in the executions tested positive. This has not been the case— and the Court finds the failure was not by accident but by design.
B. Irreparable Harm, Inadequate Legal Remedy, and Balancing the Parties' Interests
In its order denying the plaintiffs' first motion for preliminary injunction, the Court found that "the plaintiffs have not shown that they are likely to be infected with COVID-19 because of the scheduled executions, and thus have not demonstrated an irreparable injury." Dkt. 37 at 15. That has now changed. As discussed in Sections II.C, III, and IV.A, the Court now finds that plaintiffs have presented credible, compelling evidence that they face a substantially increased risk of contracting COVID-19 absent an injunction. Traditional legal remedies are inadequate to remedy that injury.
The defendants have a substantial legal interest in timely enforcement of criminal defendants' sentences. Bucklew v. Precythe, 139 S. Ct. 1112, 1133 (2019) ("Both the [government] and the victims of crime have an important interest in the timely enforcement of a sentence."). But the plaintiffs do not seek relief that would necessarily prevent the government from timely carrying out executions. Indeed, by taking additional precautions discussed below in Section V, the defendants may carry out executions in January as scheduled without violating the plaintiffs' Eighth Amendment rights. These additional precautions would not be costless, but any costs to the
14 CDC, Guidance for Expanded Screening Testing to Reduce Silent Spread of SARS-CoV-2, https://www.cdc.gov/coronavirus/2019-ncov/php/open-america/expanded-screening-testing.html (last updated Dec. 3, 2020).
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defendants do not outweigh the risk to the plaintiffs of contracting COVID-19 if executions go forward as scheduled without additional precautions.
Taken together, the parties' competing interests weigh in favor of a preliminary injunction prohibiting the defendants from carrying out the January executions as scheduled without additional precautions. The constitutional right of plaintiffs and/or the putative class members to be free from unreasonable risk of exposure to COVID-19 is a significant public interest. See Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012) ("[I]t is always in the public interest to prevent the violation of a party's constitutional rights." (quotation marks and citation omitted)). Former Attorney General Barr has suggested as much: "Executing [the BOP's] mission imposes on us a profound obligation to protect the health and safety of all inmates."15 Not only the BOP's mission, but the Eighth Amendment to the United States Constitution requires no less.
V. The Preliminary Injunction Where, as here, a court enters a preliminary injunction in a civil case regarding prison conditions, the injunction "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). The plaintiffs seek an injunction prohibiting "further executions at FCC Terre Haute until inmates no longer face an unreasonable risk of contracting COVID-19 because of the executions." Dkt. 48 at 8. They propose two paths by which the risk of COVID-19 could be sufficiently mitigated. First, the defendants could "administer an FDA-approved vaccine to the inmate population." Second, the defendants could implement a series of testing and quarantine measures
15 Mem. for Director of BOP re Increasing Use of Home Confinement at Institutions Most Affected by COVID-19, at 1, 3 (April 3, 2020), https://www.justice.gov/file/1266661/download.
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to minimize the risk of COVID-19 transmission to inmates from execution activities. These proposed measure include (1) a 14-day quarantine for execution team members upon arriving in Terre Haute, (2) a negative COVID-19 test before each team member is allowed to begin execution duties, (3) daily testing for execution team members throughout their post-execution time in Terre Haute, (4) a 14-day quarantine for FCC staff after any involvement in execution-related duties, (6) a negative COVID-19 test before any such staff member is allowed to return to normal duties, and (7) comprehensive contact tracing for any BOP or FCC staff member who tests positive for COVID-19.
These extensive precautions (or a vaccination of the full inmate population) might constitute best practices from an epidemiological perspective, but the Eighth Amendment does not require defendants to eliminate all additional risk. See Collins v. Seeman, 462 F.3d 757, 762 (7th Cir. 2006) ("A defendant with knowledge of a risk need not take perfect action or even reasonable action" to avoid Eighth Amendment liability) (quotation marks omitted). The Court concludes that defendants can avoid violating the plaintiffs' Eighth Amendment rights by implementing a less onerous set of precautions than those the plaintiffs propose:
1. Enforce mask requirements for all staff participants in the executions. 2. Maintain contact logs for all FCC Terre Haute staff members involved in any
execution who have close contact—within 6 feet for a total of 15 minutes over the course of a 24-hour period—with any other person during execution preparation, during an execution, or during the post-execution process. 3. For 14 days following any such close contact, require all impacted FCC Terre Haute staff members to produce a negative COVID-19 result using one of the complex's
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Case 2:20-cv-00630-JMS-DLP Document 55 Filed 01/07/21 Page 21 of 22 PageID #: 1138 rapid testing machines each day before beginning ordinary duties that involve interaction with FCC inmates.
4. Conduct thorough contract tracing for any such FCC staff member who tests positive for COVID-19 during this 14-day period.
The Court will therefore issue a preliminary injunction prohibiting the defendants from carrying out executions unless and until the defendants have implemented the above precautionary measures.
VI. Conclusion The plaintiffs' second motion for preliminary injunction, dkt. [47], is granted in part and denied in part. A separate order for preliminary injunction shall issue. IT IS SO ORDERED. Date: 1/7/2021
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Distribution: Robert A. Burgoyne PERKINS COIE LLP rburgoyne@perkinscoie.com Sarah Howland PERKINS COIE LLP showland@perkinscoie.com John R. Maley BARNES & THORNBURG, LLP (Indianapolis) jmaley@btlaw.com Caroline M. Mew PERKINS COIE LLP cmew@perkinscoie.com Lisa A. Olson U.S. DEPARTMENT OF JUSTICE (Washington DC) lisa.olson@usdoj.gov Jordan L. Von Bokern U.S. DEPARTMENT OF JUSTICE (Washington DC) jordan.l.von.bokern2@usdoj.gov Shelese M. Woods UNITED STATES ATTORNEY'S OFFICE (Indianapolis) shelese.woods@usdoj.gov
22

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

PATRICK R. SMITH, BRANDON S. HOLM,
Plaintiffs,
v.
WILLIAM P. BARR, MICHAEL CARVAJAL, T.J. WATSON,
Defendants.

)

)

)

)

)

)

No. 2:20-cv-00630-JMS-DLP

)

)

)

)

)

)

Order Granting Preliminary Injunction

The Court concluded in an order issued on this date that plaintiffs Patrick R. Smith and

Brandon S. Holm have demonstrated that they are entitled to a preliminary injunction. The

defendants are enjoined from carrying out any future executions in the next 60 days without

implementing the following policies:

1. The defendants will enforce mask requirements for all staff participants in the

executions.

2. The defendants will maintain contact logs for all FCC Terre Haute staff members

involved in any execution who have close contact—within 6 feet for a total of 15

minutes over the course of a 24-hour period—with any other person during

execution preparation, during an execution, or during the post-execution process.

3. For 14 days following any such close contact, the defendants will require the

impacted FCC Terre Haute staff member to produce a negative COVID-19 result

using one of the complex's rapid testing machines each day before beginning

ordinary duties that involve interaction with FCC inmates.

4. The defendants will ensure that thorough contract tracing is conducted for any such

FCC staff member who tests positive for COVID-19 during this 14-day period.

IT IS SO ORDERED.

January 7, 2021

^ Judge stamp upper left

Distribution:
Robert A. Burgoyne PERKINS COIE LLP rburgoyne@perkinscoie.com
Sarah Howland PERKINS COIE LLP showland@perkinscoie.com
John R. Maley BARNES & THORNBURG, LLP (Indianapolis) jmaley@btlaw.com
Caroline M. Mew PERKINS COIE LLP cmew@perkinscoie.com
Lisa A. Olson U.S. DEPARTMENT OF JUSTICE (Washington DC) lisa.olson@usdoj.gov
Jordan L. Von Bokern U.S. DEPARTMENT OF JUSTICE (Washington DC) jordan.l.von.bokern2@usdoj.gov
Shelese M. Woods UNITED STATES ATTORNEY'S OFFICE (Indianapolis) shelese.woods@usdoj.gov

 
 Case 2:20-cv-00630-JMS-DLP Document 84 Filed 03/16/21 Page 1 of 2 PageID #: 1257

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

PATRICK R. SMITH, et al. Plaintiffs,
v. WILLIAM P. BARR, et al.
Defendants.

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No. 2:20-cv-00630-JMS-DLP

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Order Dismissing Action as Moot

The plaintiffs, two inmates at the Federal Correctional Center (FCC) in Terre Haute,

Indiana filed this action alleging that the defendants were deliberately indifferent to their health

and safety by carrying out executions at the FCC during the COVID-19 pandemic. They sought

only injunctive relief.

On February 22, 2021, the defendants moved to dismiss this action as moot, arguing that

there is no live controversy because there are no further executions currently scheduled and there

is no reasonable expectation that another federal execution will be scheduled in the near future.

Dkt. 80 at 3−5. The plaintiffs do not oppose the motion to dismiss.

Accordingly, the defendant's motion to dismiss, dkt. [79], is granted. This action is

dismissed for lack of jurisdiction. The plaintiffs' pending motion for an order requiring the

defendants to show cause, dkt. [61], is denied as moot. Final judgment shall now enter.

IT IS SO ORDERED.

Date: 3/16/2021

Case 2:20-cv-00630-JMS-DLP Document 84 Filed 03/16/21 Page 2 of 2 PageID #: 1258
Distribution:
Robert A. Burgoyne PERKINS COIE LLP rburgoyne@perkinscoie.com
Sarah Howland PERKINS COIE LLP showland@perkinscoie.com
John R. Maley BARNES & THORNBURG, LLP (Indianapolis) jmaley@btlaw.com
Caroline M. Mew PERKINS COIE LLP cmew@perkinscoie.com
Lisa A. Olson U.S. DEPARTMENT OF JUSTICE (Washington DC) lisa.olson@usdoj.gov
Jordan L. Von Bokern U.S. DEPARTMENT OF JUSTICE (Washington DC) jordan.l.von.bokern2@usdoj.gov
Shelese M. Woods UNITED STATES ATTORNEY'S OFFICE (Indianapolis) shelese.woods@usdoj.gov