1/18/2021
Create an Alert for This Case on RECAP

CM/ECF - NCED

CLOSED,SA-2

U.S. District Court EASTERN DISTRICT OF NORTH CAROLINA (Western Division)
CIVIL DOCKET FOR CASE #: 5:20-hc-02088-FL

Hallinan et al v. Scarantino et al Assigned to: District Judge Louise Wood Flanagan Cause: 28:2241 Petition for Writ of Habeas Corpus (Federal)

Date Filed: 05/26/2020 Date Terminated: 06/29/2020 Jury Demand: None Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: U.S. Government Defendant

Petitioner Charles Hallinan

represented by Jeffrey S. Wilkerson Winston & Strawn LLP 300 S. Tryon Street, 16th Floor Charlotte, NC 28202-0178 704-350-7714 Fax: 704-350-7800 Email: jwilkerson@winston.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Jeanne Ireland Winston & Strawn LLP 300 S. Tryon Street, 16th Floor Charlotte, NC 28202-0178 704-350-7812 Fax: 704-350-7800 Email: eireland@winston.com ATTORNEY TO BE NOTICED

Emily Elizabeth Seawell ACLU of North Carolina Legal Foundation P. O. Box 28004 Raleigh, NC 27611 919-256-5891 Email: eharwell@acluofnc.org ATTORNEY TO BE NOTICED

Gretchen Vetter Scavo Winston & Strawn LLP 300 S. Tryon Street, 16th Floor Charlotte, NC 28202-0178 704-350-7785 Fax: 704-350-7800 Email: gscavo@winston.com ATTORNEY TO BE NOTICED

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Petitioner Josean Kinard

CM/ECF - NCED
Jaclyn A. Maffetore ACLU of North Carolina Legal Foundation P. O. Box 28004 Raleigh, NC 27611 919-354-5070 Email: jmaffetore@acluofnc.org ATTORNEY TO BE NOTICED
Kristi L. Graunke ACLU of North Carolina Legal Foundation P. O. Box 28004 Raleigh, NC 27611 919-354-5066 Email: kgraunke@acluofnc.org ATTORNEY TO BE NOTICED
Maria V. Morris American Civil Liberties Union, National Prison Project 915 15th St. NW, 7th Floor Washington, DC 20005 202-548-6607 Fax: 202-393-4931 Email: mmorris@aclu.org ATTORNEY TO BE NOTICED
Patrick A. Doerr Winston & Strawn LLP 300 S. Tryon Street, 16th Floor Charlotte, NC 28202-0178 704-350-7700 Fax: 704-350-7800 Email: pdoerr@winston.com ATTORNEY TO BE NOTICED
Sarah A. Hinger American Civil Liberties Union, Racial Justice Program 125 Broad St. New York, NY 10004 212-519-7882 Email: shinger@aclu.org ATTORNEY TO BE NOTICED
represented by Jeffrey S. Wilkerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Jeanne Ireland (See above for address) ATTORNEY TO BE NOTICED

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Petitioner Arnold J. Hill

CM/ECF - NCED
Emily Elizabeth Seawell (See above for address) ATTORNEY TO BE NOTICED
Gretchen Vetter Scavo (See above for address) ATTORNEY TO BE NOTICED
Jaclyn A. Maffetore (See above for address) ATTORNEY TO BE NOTICED
Kristi L. Graunke (See above for address) ATTORNEY TO BE NOTICED
Maria V. Morris (See above for address) ATTORNEY TO BE NOTICED
Patrick A. Doerr (See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey S. Wilkerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Jeanne Ireland (See above for address) ATTORNEY TO BE NOTICED
Emily Elizabeth Seawell (See above for address) ATTORNEY TO BE NOTICED
Gretchen Vetter Scavo (See above for address) ATTORNEY TO BE NOTICED
Jaclyn A. Maffetore (See above for address) ATTORNEY TO BE NOTICED
Kristi L. Graunke (See above for address) ATTORNEY TO BE NOTICED

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CM/ECF - NCED
Maria V. Morris (See above for address) ATTORNEY TO BE NOTICED

Patrick A. Doerr (See above for address) ATTORNEY TO BE NOTICED

Petitioner Benjamin D. McRae

Sarah A. Hinger (See above for address) ATTORNEY TO BE NOTICED
represented by Elizabeth Jeanne Ireland (See above for address) ATTORNEY TO BE NOTICED

Emily Elizabeth Seawell (See above for address) ATTORNEY TO BE NOTICED

Gretchen Vetter Scavo (See above for address) ATTORNEY TO BE NOTICED

Jaclyn A. Maffetore (See above for address) ATTORNEY TO BE NOTICED

Kristi L. Graunke (See above for address) ATTORNEY TO BE NOTICED

Maria V. Morris (See above for address) ATTORNEY TO BE NOTICED

Patrick A. Doerr (See above for address) ATTORNEY TO BE NOTICED

Sarah A. Hinger (See above for address) ATTORNEY TO BE NOTICED

Jeffrey S. Wilkerson (See above for address) ATTORNEY TO BE NOTICED

Petitioner

John Dailey

represented by Jeffrey S. Wilkerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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CM/ECF - NCED

Elizabeth Jeanne Ireland (See above for address) ATTORNEY TO BE NOTICED

Emily Elizabeth Seawell (See above for address) ATTORNEY TO BE NOTICED

Gretchen Vetter Scavo (See above for address) ATTORNEY TO BE NOTICED

Jaclyn A. Maffetore (See above for address) ATTORNEY TO BE NOTICED

Kristi L. Graunke (See above for address) ATTORNEY TO BE NOTICED

Maria V. Morris (See above for address) ATTORNEY TO BE NOTICED

Patrick A. Doerr (See above for address) ATTORNEY TO BE NOTICED

Petitioner Lee M. Ayers

Sarah A. Hinger (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey S. Wilkerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Jeanne Ireland (See above for address) ATTORNEY TO BE NOTICED

Emily Elizabeth Seawell (See above for address) ATTORNEY TO BE NOTICED

Gretchen Vetter Scavo (See above for address) ATTORNEY TO BE NOTICED

https://ecf.nced.uscourts.gov/cgi-bin/DktRpt.pl?125912897218191-L_1_0-1

Jaclyn A. Maffetore (See above for address) ATTORNEY TO BE NOTICED
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CM/ECF - NCED

Kristi L. Graunke (See above for address) ATTORNEY TO BE NOTICED

Maria V. Morris (See above for address) ATTORNEY TO BE NOTICED

Patrick A. Doerr (See above for address) ATTORNEY TO BE NOTICED

Petitioner George B. Riddick

Sarah A. Hinger (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey S. Wilkerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Jeanne Ireland (See above for address) ATTORNEY TO BE NOTICED

Emily Elizabeth Seawell (See above for address) ATTORNEY TO BE NOTICED

Gretchen Vetter Scavo (See above for address) ATTORNEY TO BE NOTICED

Jaclyn A. Maffetore (See above for address) ATTORNEY TO BE NOTICED

Kristi L. Graunke (See above for address) ATTORNEY TO BE NOTICED

Maria V. Morris (See above for address) ATTORNEY TO BE NOTICED

Patrick A. Doerr (See above for address) ATTORNEY TO BE NOTICED

https://ecf.nced.uscourts.gov/cgi-bin/DktRpt.pl?125912897218191-L_1_0-1

Sarah A. Hinger (See above for address) ATTORNEY TO BE NOTICED
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Petitioner Jorge Luis Maldonado

CM/ECF - NCED
represented by Jeffrey S. Wilkerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Jeanne Ireland (See above for address) ATTORNEY TO BE NOTICED

Emily Elizabeth Seawell (See above for address) ATTORNEY TO BE NOTICED

Gretchen Vetter Scavo (See above for address) ATTORNEY TO BE NOTICED

Jaclyn A. Maffetore (See above for address) ATTORNEY TO BE NOTICED

Kristi L. Graunke (See above for address) ATTORNEY TO BE NOTICED

Maria V. Morris (See above for address) ATTORNEY TO BE NOTICED

Patrick A. Doerr (See above for address) ATTORNEY TO BE NOTICED

Petitioner Antwan Harris

Sarah A. Hinger (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey S. Wilkerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Jeanne Ireland (See above for address) ATTORNEY TO BE NOTICED

Emily Elizabeth Seawell (See above for address) ATTORNEY TO BE NOTICED

https://ecf.nced.uscourts.gov/cgi-bin/DktRpt.pl?125912897218191-L_1_0-1

Gretchen Vetter Scavo
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CM/ECF - NCED
(See above for address) ATTORNEY TO BE NOTICED

Jaclyn A. Maffetore (See above for address) ATTORNEY TO BE NOTICED

Kristi L. Graunke (See above for address) ATTORNEY TO BE NOTICED

Maria V. Morris (See above for address) ATTORNEY TO BE NOTICED

Patrick A. Doerr (See above for address) ATTORNEY TO BE NOTICED

Petitioner Anthony Butler

Sarah A. Hinger (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey S. Wilkerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Jeanne Ireland (See above for address) ATTORNEY TO BE NOTICED

Emily Elizabeth Seawell (See above for address) ATTORNEY TO BE NOTICED

Gretchen Vetter Scavo (See above for address) ATTORNEY TO BE NOTICED

Jaclyn A. Maffetore (See above for address) ATTORNEY TO BE NOTICED

Kristi L. Graunke (See above for address) ATTORNEY TO BE NOTICED

Maria V. Morris (See above for address) ATTORNEY TO BE NOTICED

Patrick A. Doerr

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Petitioner Troy A. Titus

CM/ECF - NCED
(See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) ATTORNEY TO BE NOTICED
represented by Jeffrey S. Wilkerson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Elizabeth Jeanne Ireland (See above for address) ATTORNEY TO BE NOTICED
Emily Elizabeth Seawell (See above for address) ATTORNEY TO BE NOTICED
Gretchen Vetter Scavo (See above for address) ATTORNEY TO BE NOTICED
Jaclyn A. Maffetore (See above for address) ATTORNEY TO BE NOTICED
Kristi L. Graunke (See above for address) ATTORNEY TO BE NOTICED
Maria V. Morris (See above for address) ATTORNEY TO BE NOTICED
Patrick A. Doerr (See above for address) ATTORNEY TO BE NOTICED
Sarah A. Hinger (See above for address) ATTORNEY TO BE NOTICED

V. Respondent Warden Thomas Scarantino

represented by Genna D Petre United States Attorney's Ofﬁce 310 New Bern Avenue, Suite 800 Raleigh, NC 27601 919-575-3900 ext. 6076

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CM/ECF - NCED
Email: gpetre@bop.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua L. Rogers United States Attorney's Ofﬁce - EDNC 150 Fayetteville Street, Suite 2100 Raleigh, NC 27601 919-856-4530 Email: Joshua.Rogers4@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent Michael Carvajal

Michael D. Bredenberg Federal Medical Center P. O. Box 1600 Butner, NC 27509 919-575-3900 x 6078 Fax: 575-4813 Email: mbredenberg@bop.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Genna D Petre (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua L. Rogers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Respondent Jeffrey Allen

Michael D. Bredenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Genna D Petre (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua L. Rogers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.nced.uscourts.gov/cgi-bin/DktRpt.pl?125912897218191-L_1_0-1

Michael D. Bredenberg (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
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CM/ECF - NCED

Date Filed 05/26/2020

# Docket Text
1 PETITION for Writ of Habeas Corpus Under 28 U.S.C. § 2241 and Class Action Complaint for Injunctive and Declaratory Relief ( Filing fee $ 5 receipt number 04175440346.), ﬁled by Lee M. Ayers, Troy A. Titus, Arnold J. Hill, George B. Riddick, Antwan Harris, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, Charles Hallinan, Anthony Butler, John Dailey. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 - Declaration of Petitioner Lee M. Ayers, # 3 Exhibit 2 - Declaration of Petitioner John Dailey, # 4 Exhibit 3 - Declaration of Roger Duane Goodwin, # 5 Exhibit 4 - Declaration of Petitioner Charles Hallinan, # 6 Exhibit 5 - Declaration of Michael Harrington, # 7 Exhibit 6 - Declaration of Petitioner Antwan Harris, # 8 Exhibit 7 - Declaration of Petitioner Arnold J. Hill, # 9 Exhibit 8 - Declaration of Lewis Donnell Huntley, # 10 Exhibit 9 - Declaration of Petitioner Josean Kinard, # 11 Exhibit 10 - Declaration of John Krokos, # 12 Exhibit 11 - Declaration of Petitioner Jorge Luis Maldonado, # 13 Exhibit 12 - Declaration of Petitioner Benjamin D. McRae, # 14 Exhibit 13 - Declaration of Randy Flores Ortiz, # 15 Exhibit 14 - Declaration of Petitioner George B. Riddick, # 16 Exhibit 15 Declaration of Petitioner Troy Aurelius Titus, # 17 Exhibit 16 - Declaration of William Robert Whyte, # 18 Exhibit 17 - Declaration of Expert Dr. Chris Beyrer, M.D., M.P.H., # 19 Exhibit 18 - Declaration of Expert Dr. Joe Goldenson, M.D., # 20 Exhibit 19 - Declaration of Expert Dan Pacholke, # 21 Exhibit 20 - U.S. Department of Justice, Federal Bureau of Prisons Press Releases on Inmate Deaths at FCI Butner I Prison, # 22 Exhibit 21 - Memo from Attorney General William Barr dated March 26, 2020 to the Director of Bureau Prisons re Prioritization of Home Conﬁnement As Appropriate In Response to COVID-19 Pandemic, # 23 Exhibit 22 - Memo from Attorney General William Barr dated April 3, 2020 to the Director of Bureau of Prisons re Increasing Use of Home Conﬁnement at Institutions Most Affected by COVID-19, # 24 Exhibit 23 Memo from Andre Matevousian and L. Cristina Grifﬁth dated April 13, 2020 to All Chief Executive Ofﬁcers re Coronavirus (COVID-19) Phase 6 Action Plan, # 25 Exhibit 24 - Centers for Disease Control Coronavirus (COVID-19) Social Distancing Guidelines, # 26 Exhibit 25 - Centers for Disease Control Coronavirus (COVID-19) How to Protect Yourself & Others Guidelines, # 27 Exhibit 26 - Centers for Disease Control Coronavirus (COVID-19) How COVID-19 Spreads Information Sheet, # 28 Exhibit 27 - Centers for Disease Control Coronavirus (COVID-19) Assessing Risk Factors for Severe COVID-19 Illness Guidelines, # 29 Exhibit 28 - Centers for Disease Control Coronavirus (COVID-19) Older Adults Information Sheet, # 30 Exhibit 29 Centers for Disease Control Morbidity and Mortality Weekly Report (MMWR) dated May 6, 2020, # 31 Exhibit 30 - Centers for Disease Control Coronavirus (COVID-19) Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, # 32 Exhibit 31 - Opposition to Defendant Wesam El-Hanaﬁs Motion for Compassionate Release, United States v. El-Hanaﬁ, No. 1:10-cr-00162-KMW (S.D.N.Y. May 13, 2020), ECF No. 247 at 16, # 33 Exhibit 32 Defendant Thompsons Status Report on Compassionate Release Motion and Request for Additional Court Action at 2, United States v. Thompson, No. 1:15-cr-00448 (E.D. Ill. Apr. 20, 2020), ECF No. 81, # 34 Exhibit 33 - Opinion and Order, United States v. Wesam El-Hanaﬁ, No. 10-cr-162 (KMW) (S.D.N.Y. May 19, 2020), ECF No. 252, # 35 Exhibit 34 - Criminal Minutes-General, United States v. Krokos, No. 12-cr-527 (C.D. Cal. May 1, 2020), ECF No. 1016, # 36 Exhibit 35 - Minute Entry, United States v. Thompson, No. 15-cr-448 (N.D. Ill. April 17, 2020), ECF No. 80, # 37 Civil Cover Sheet, # 38 Proposed Summons, # 39 Proposed Summons, # 40 Proposed Summons, # 41 Proposed Summons, # 42 Proposed Summons, # 43 Proposed Summons) (Wilkerson, Jeffrey) (Entered: 05/26/2020)

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05/26/2020
05/26/2020 05/26/2020 05/26/2020 05/26/2020 05/26/2020 05/26/2020 05/26/2020 05/26/2020 05/26/2020 05/26/2020 05/26/2020 05/26/2020
05/27/2020 05/27/2020
05/27/2020 05/27/2020
05/27/2020

CM/ECF - NCED
2 Notice of Appearance ﬁled by Jeffrey S. Wilkerson on behalf of Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus. (Wilkerson, Jeffrey) (Entered: 05/26/2020)
3 Financial Disclosure Statement by Lee M. Ayers (Wilkerson, Jeffrey) (Entered: 05/26/2020)
4 Financial Disclosure Statement by Anthony Butler (Wilkerson, Jeffrey) (Entered: 05/26/2020)
5 Financial Disclosure Statement by John Dailey (Wilkerson, Jeffrey) (Entered: 05/26/2020)
6 Financial Disclosure Statement by Charles Hallinan (Wilkerson, Jeffrey) (Entered: 05/26/2020)
7 Financial Disclosure Statement by Antwan Harris (Wilkerson, Jeffrey) (Entered: 05/26/2020)
8 Financial Disclosure Statement by Arnold J. Hill (Wilkerson, Jeffrey) (Entered: 05/26/2020)
9 Financial Disclosure Statement by Josean Kinard (Wilkerson, Jeffrey) (Entered: 05/26/2020)
10 Financial Disclosure Statement by Jorge Luis Maldonado (Wilkerson, Jeffrey) (Entered: 05/26/2020)
11 Financial Disclosure Statement by Benjamin D. McRae (Wilkerson, Jeffrey) (Entered: 05/26/2020)
12 Financial Disclosure Statement by George B. Riddick (Wilkerson, Jeffrey) (Entered: 05/26/2020)
13 Financial Disclosure Statement by Troy A. Titus (Wilkerson, Jeffrey) (Entered: 05/26/2020)
14 Notice of Related Case ﬁled by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus . (Wilkerson, Jeffrey) (Entered: 05/26/2020)
Case Submitted to District Judge Louise Wood Flanagan for initial review. (Castania, M) (Entered: 05/27/2020)
15 ORDER DIRECTING CLERK TO CONTINUE MANAGEMENT OF CASE. Signed by District Judge Louise Wood Flanagan on 5/27/2020. (Castania, M) (Entered: 05/27/2020)
16 Letter sent to U.S. Attorney with Petition for Writ of Habeas Corpus. Answer due by 6/3/2020. (Castania, M) (Entered: 05/27/2020)
17 Notice of Appearance ﬁled by Emily Elizabeth Seawell on behalf of Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus. (Seawell, Emily) (Entered: 05/27/2020)
18 Notice of Appearance ﬁled by Jaclyn A. Maffetore on behalf of Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard,

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05/27/2020 05/27/2020
05/28/2020 05/28/2020 05/28/2020 05/28/2020
05/28/2020
05/28/2020 05/28/2020

CM/ECF - NCED
Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus. (Maffetore, Jaclyn) (Entered: 05/27/2020)
19 Notice of Appearance ﬁled by Kristi L. Graunke on behalf of Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus. (Graunke, Kristi) (Entered: 05/27/2020)
20 Summonses Issued as to Jeffrey Allen, Michael Carvajal, Thomas Scarantino, U.S. Attorney Robert J. Higdon, U.S. Attorney Civil Process Clerk, and U.S. Attorney General. (Castania, M) NOTICE: Counsel shall print the attached summons(es) and serve. (Entered: 05/27/2020)
21 Notice of Appearance ﬁled by Michael D. Bredenberg on behalf of Jeffrey Allen, Michael Carvajal, Thomas Scarantino. (Bredenberg, Michael) (Entered: 05/28/2020)
22 Notice of Appearance ﬁled by Joshua L. Rogers on behalf of Jeffrey Allen, Michael Carvajal, Thomas Scarantino. (Rogers, Joshua) (Entered: 05/28/2020)
23 Notice of Appearance ﬁled by Genna D Petre on behalf of Jeffrey Allen, Michael Carvajal, Thomas Scarantino. (Petre, Genna) (Entered: 05/28/2020)
24 Emergency MOTION for Temporary Restraining Order , Preliminary Injunction, and Writ of Habeas Corpus ﬁled by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus. (Attachments: # 1 Text of Proposed Order : Order Granting Petitioners/Plaintiffs' Motion for Temporary Restraining Order, Preliminary Injunction, and Writ of Habeas Corpus) (Wilkerson, Jeffrey) (Entered: 05/28/2020)
25 Memorandum in Support regarding 24 Emergency MOTION for Temporary Restraining Order , Preliminary Injunction, and Writ of Habeas Corpus ﬁled by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus. (Wilkerson, Jeffrey) (Entered: 05/28/2020)
Motion Submitted to District Judge Louise Wood Flanagan regarding 24 Emergency MOTION for Temporary Restraining Order, Preliminary Injunction, and Writ of Habeas Corpus. (Castania, M) (Entered: 05/28/2020)
26 Declaration of Jeffrey S. Wilkerson in Support of 24 Emergency MOTION for Temporary Restraining Order , Preliminary Injunction, and Writ of Habeas Corpus ﬁled by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 - Decl. of Petitioner Ayers, # 3 Exhibit 2 - Decl. of Petitioner Dailey, # 4 Exhibit 3 Decl. of Goodwin, # 5 Exhibit 4 - Decl. of Petitioner Hallinan, # 6 Exhibit 5 Decl. of Harrington, # 7 Exhibit 6 - Decl. of Petitioner Harris, # 8 Exhibit 7 Decl. of Petitioner Hill, # 9 Exhibit 8 - Decl. of Huntley, # 10 Exhibit 9 - Decl. of Petitioner Kinard, # 11 Exhibit 10 - Decl. of Krokos, # 12 Exhibit 11 - Decl. of Petitioner Maldonado, # 13 Exhibit 12 - Decl. of Petitioner McRae, # 14 Exhibit 13 - Decl. of Ortiz, # 15 Exhibit 14 - Decl. of Petitioner Riddick, # 16 Exhibit 15 - Decl. of Petitioner Titus, # 17 Exhibit 16 - Decl. of Whyte, # 18 Exhibit 17 Decl. of Dr. Beyrer, # 19 Exhibit 18 - Decl. of Expert Dr. Goldenson, # 20 Exhibit 19 - Decl. of Expert Pacholke, # 21 Exhibit 20 - Press Releases on Inmate Deaths, # 22 Exhibit 21 - Barr Memo dated March 26, 2020, # 23 Exhibit 22 - Barr Memo

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CM/ECF - NCED
dated April 3, 2020, # 24 Exhibit 23 - Matevousian Memo dated April 13, 2020, # 25 Exhibit 24 - CDC COVID-19 Social Distancing Guidelines, # 26 Exhibit 25 -
CDC COVID-19 How to Protect Yourself & Others Guidelines, # 27 Exhibit 26 CDC COVID-19 How COVID-19 Spreads Info Sheet, # 28 Exhibit 27 - CDC COVID-19 Assessing Risk Factors for Severe COVID-19 Illness Guidelines, # 29 Exhibit 28 - CDC COVID-19 Older Adults Info Sheet, # 30 Exhibit 29 - CDC Morbidity & Mortality Weekly Report dated May 6, 2020, # 31 Exhibit 30 - CCD COVID-19 Interim Guidance on Mgmt of Coronavirus Disease 2019 in Correctional & Detention Facilities, # 32 Exhibit 31 - Opposition to Defendants Motion for Compassionate Release, United States v. El-Hanaﬁ, # 33 Exhibit 32 - Defendants Status Report on Compassionate Release Motion and Request for Addl Court Action, United States v. Thompson, # 34 Exhibit 33 - Opinion and Order, United States v. Wesam El-Hanaﬁ, # 35 Exhibit 34 - Minutes, United States v. Krokos, # 36 Exhibit 35 - Minute Entry, United States v. Thompson, # 37 Exhibit 36 COVID-19 Tested Positive Cases from BOP Website on 03/31/2020, # 38 Exhibit 37 April 27, 2020 Screenshot of BOP COVID-19 Cases Dashboard, Sorted to Show Cases at FCC Butner) (Wilkerson, Jeffrey) Modiﬁed on 5/29/2020 to correct docket text to note this is a declaration, not a memorandum. (Castania, M) (Entered: 05/28/2020)
27 RESPONSE to Motion regarding 24 Emergency MOTION for Temporary Restraining Order , Preliminary Injunction, and Writ of Habeas Corpus Preliminary Response ﬁled by Jeffrey Allen, Michael Carvajal, Thomas Scarantino. (Bredenberg, Michael) (Entered: 05/29/2020)
Notice to Counsel for Petitioners regarding 26 Declaration in Support. By no later than Monday, June 1, 2020, counsel is directed to deliver to the clerk's ofﬁce at New Bern, courtesy copies of all ﬁlings at document number 26. (Castania, M) (Entered: 05/29/2020)
TEXT ORDER - In this action initiated by complaint ﬁled May 26, 2020, upon defendants' request, (DE 27 ), and in the court's discretion, defendants have until June 3, 2020, to submit any response to plaintiffs' motion for temporary restraining order ﬁled May 28, 2020. (DE 24 ). Plaintiffs' request therein that response be made by June 1, 2020, therefore is denied. Any voluminous material(s) made a part of defendants' anticipated response shall be presented to the clerk's at New Bern also in paper form not later than June 4, 2020, the day after the ﬁling is due. SO ORDERED by District Judge Louise Wood Flanagan on 5/29/2020. (Castania, M) (Entered: 05/29/2020)
28 Notice ﬁled by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus regarding 24 Emergency MOTION for Temporary Restraining Order , Preliminary Injunction, and Writ of Habeas Corpus (Notice of Subsequent Facts). (Wilkerson, Jeffrey) (Entered: 05/29/2020)
29 Declaration regarding 24 Emergency MOTION for Temporary Restraining Order , Preliminary Injunction, and Writ of Habeas Corpus (Supplemental Declaration of Jeffrey Wilkerson) by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus (Attachments: # 1 Exhibit 1 - Additional Press Releases on Inmate Deaths) (Wilkerson, Jeffrey) (Entered: 05/29/2020)
30 Notice ﬁled by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus regarding 24 Emergency MOTION for Temporary

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Restraining Order , Preliminary Injunction, and Writ of Habeas Corpus (Second Notice of Subsequent Facts). (Wilkerson, Jeffrey) (Entered: 06/01/2020)

06/01/2020

31 Declaration regarding 24 Emergency MOTION for Temporary Restraining Order , Preliminary Injunction, and Writ of Habeas Corpus (Second Supplemental Declaration of Jeffrey S. Wilkerson) by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus (Attachments: # 1 Exhibit 1 COVID-19 Tested Positive Cases from BOP Website on 05/25/2020, # 2 Exhibit 2 Additional Press Releases on Inmate Deaths) (Wilkerson, Jeffrey) (Entered: 06/01/2020)

06/02/2020

32 Notice ﬁled by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus regarding 24 Emergency MOTION for Temporary Restraining Order , Preliminary Injunction, and Writ of Habeas Corpus (Third Notice of Subsequent Facts). (Wilkerson, Jeffrey) (Entered: 06/02/2020)

06/02/2020

33 Declaration regarding 24 Emergency MOTION for Temporary Restraining Order , Preliminary Injunction, and Writ of Habeas Corpus (Third Supplemental Declaration of Jeffrey S. Wilkerson) by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus (Attachments: # 1 Exhibit 1 - Additional Press Release on Inmate Death, # 2 Exhibit 2 - Screenshot of BOP Inmate Locator Site, # 3 Exhibit 3 - COVID-19 Tested Positive Cases from BOP website on 06/01/2020) (Wilkerson, Jeffrey) (Entered: 06/02/2020)

06/03/2020

34 MOTION to Dismiss , or in the alternative,, MOTION for Summary Judgment ﬁled by Jeffrey Allen, Michael Carvajal, Thomas Scarantino. (Rogers, Joshua) (Entered: 06/03/2020)

06/03/2020 35 Memorandum in Support regarding 34 MOTION to Dismiss , or in the alternative, MOTION for Summary Judgment ﬁled by Jeffrey Allen, Michael Carvajal, Thomas Scarantino. (Rogers, Joshua) (Entered: 06/03/2020)

06/03/2020

36 Statement of Material Facts regarding 34 MOTION to Dismiss , or in the alternative, MOTION for Summary Judgment ﬁled by Jeffrey Allen, Michael Carvajal, Thomas Scarantino. (Rogers, Joshua) (Entered: 06/03/2020)

06/03/2020

37 Appendix to the Statement of Facts regarding 34 MOTION to Dismiss , or in the alternative, MOTION for Summary Judgment ﬁled by Jeffrey Allen, Michael Carvajal, Thomas Scarantino. (Attachments: # 1 Declaration of Phillip Clark, Complex Case Management Coordinator, # 2 Attachment 1 Compassionate release request records related to Charles Hallinan, Register Number 75207-066, # 3 Attachment 2 Compassionate release request records related to Josean Kinard, Register Number 33603-058, # 4 Attachment 3 Compassionate release request records related to Arnold Hill, Register Number 09077-007, # 5 Attachment 4 Compassionate release request records related to John Dailey, Register Number 39637-044, # 6 Attachment 5 Compassionate release request records related to Lee Ayers, Register Number 03882007, # 7 Attachment 6 Compassionate release request on behalf Lee Ayers, Register Number 03882-007 (May 11, 2020), # 8 Attachment 7 Compassionate release request records related to Jorge Maldonado, Register Number 63756-018, # 9 Attachment 8 Compassionate release request records related to Anthony Butler, Register Number 65583-056, # 10 Declaration of Andrew Stock, Clinical Director, # 11 Declaration of Mary Strassel, Assistant Supervisor of Education, and Team Leader of the FCC Butner Planning Section Team, # 12 Attachment 1 Coronavirus Disease 2019 (COVID-19) Inmate Screening Tool, Version 2.0 (February 2020), # 13 Attachment 2 Memorandum

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to All Staff from Complex Warden T. Scarantino (March 4, 2020), # 14 Attachment 3 Memorandum for LSCI Inmate Population from Food Service (March 12, 2020), # 15 Attachment 4 E-mail correspondence to All Staff from Complex Warden Scarantino (March 13, 2020), # 16 Attachment 5 Food Services Memo (March 13, 2020), # 17 Attachment 6 FCI II Education Department 30 Day Modiﬁed Schedule, beginning on March 14, 2020, # 18 Attachment 7 Phase I FMC Butner Master Movement Schedule, # 19 Attachment 8 Memorandum for LSCI Inmate Population, # 20 Attachment 9 Memorandum for the Inmate Population from FCI I Warden Sullivan (March 13, 2020)) (Rogers, Joshua) (Entered: 06/03/2020)

06/03/2020

38 Appendix to the Statement of Facts regarding 34 MOTION to Dismiss , or in the alternative, MOTION for Summary Judgment ﬁled by Jeffrey Allen, Michael Carvajal, Thomas Scarantino. (Attachments: # 1 Attachment 10 E-mail from FCI Butner Warden Sullivan, # 2 Attachment11MemorandumforD.J.Harmon,Regional Director MidAtlantic Region from FCI II Warden Leu (March 18, 2020), # 3 Attachment 12 E-mail to staff from Complex Warden Scarantino and Modiﬁed Move Attachment (March 20, 2020), # 4 Attachment 13 E-mail to All Staff regarding the Staff Fitness Center (March 24, 2020), # 5 Attachment 14 March 26, 2020 Memo from Warden to Inmates, # 6 Attachment 15 E-mail from Complex Warden Scarantino to All Staff (March 25, 2020), # 7 Attachment 16 Coronavirus Information FCI I (March 25, 2020), # 8 Attachment 17 FMC Modiﬁed Move Plan (March 26, 2020), # 9 Attachment 18 LSCI Laundry Procedures Memo (March 26, 2020), # 10 Attachment 19 Memorandum to the Inmate Population from FCI II Warden Leu (March 26, 2020), # 11 Attachment 20 Memorandum for Inmate Population from Complex Warden Scarantino (March 26, 2020), # 12 Attachment 21 FCI I Warden Sullivan e-mail to staff (March 27, 2020), # 13 Attachment 22 E-mail from Complex Warden Scarantino to all staff (March 27, 2020), # 14 Attachment 23 E-mail to all staff regarding the Staff Center Showers (March 27, 2020), # 15 Attachment 24 Memorandum to Inmate Population from LSCI Warden Lyn (March 27, 2020), # 16 Attachment 25 E-mail to all staff regarding Respirator Fit Test, # 17 Attachment 26 E-mail from FCI I Warden Sullivan to all staff, # 18 Attachment 27 Phase IV COVID-19 Action Plan Memorandum for All Staff from FMC Captain (March 31, 2020), # 19 Attachment 28 E-mail to all Staff from LSCI Warden Lyn, # 20 Attachment 29 Memorandum to Inmate Population from LSCI Warden Lyn (March 31, 2020), # 21 Attachment 30 Memorandum from Captain Leslie to LSCI Warden Lyn regarding COVID-19 Modiﬁed Operations at LSCI Butner, # 22 Attachment 31 Memorandum to the Inmate Population from FCI II Warden Leu (April 1, 2020), # 23 Attachment 32 E-mail from Complex Warden Scarantino to All Staff, # 24 Attachment 33 Mobile Screening Site E-mail (April 2, 2020), # 25 Attachment 34 Mobile Screening Site Update (April 2, 2020), # 26 Attachment 35 E-mail from LSCI Warden Lyn to all staff (April 2, 2020), # 27 Attachment 36 LSCI Butner Modiﬁed Lockdown Plan (April 3, 2020), # 28 Attachment 37 E-mail to All Staff from FCI I Warden Sullivan (April 4, 2020), # 29 Attachment 38 Memorandum for all FCI II Staff from FCI II Warden Leu (April 5, 2020), # 30 Attachment 39 Unit Ofﬁcers Plan for April 4-5, 2020, # 31 Attachment 40 E-mail to All Staff from LSCI Warden Lyn, # 32 Attachment 41 E-mail to All Staff from Complex Warden Scarantino) (Rogers, Joshua) (Entered: 06/03/2020)

06/03/2020

39 Appendix to the Statement of Facts regarding 34 MOTION to Dismiss , or in the alternative, MOTION for Summary Judgment ﬁled by Jeffrey Allen, Michael Carvajal, Thomas Scarantino. (Attachments: # 1 Attachment 42 FCC Butner COVID-19 Virus Prevention Measures and Complex Sanitation handout (April 2020), # 2 Attachment 43 E-mail to staff from FCI I Warden Sullivan (April 7, 2020), # 3 Attachment 44 E-mail to All Staff from Complex Warden Scarantino (April 9, 2020), # 4 Attachment 45 Memorandum to All Staff from Complex Warden Scarantino (April 9, 2020), # 5 Attachment 46 E-mail to All Staff from FCI I Warden Sullivan (April 12, 2020), # 6

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Attachment 47 E-mail to All Staff from Complex Warden Scarantino (April 15, 2020), # 7 Attachment 48 Memorandum to the Inmate Population from FCI I Warden Sullivan (April 15, 2020), # 8 Attachment 49 Memorandum for Inmate Population from LSCI Warden Lyn (April 16, 2020), # 9 Attachment 50 E-mail to All Staff from Warden Sullivan (April 16, 2020), # 10 Attachment 51 Memorandum to All Camp Staff regarding Camp Operations Through Monday, April 20, 2020, from Acting Captain M. Kemmerer, # 11 Attachment 52 Memorandum regarding Islamic Ramadan Procedures from P. Hong, Staff Chaplain, to LSCI Warden Lyn (April 16, 2020), # 12 Attachment 53 E-mail from Acting Associate Warden with Inmate Schedule attached (April 19, 2020 and April 20, 2020), # 13 Attachment 54 E-mail to All Staff from Complex Warden Scarantino (April 20, 2020), # 14 Attachment 55 E-mail to Staff from LSCI Warden Lyn (April 28, 2020), # 15 Attachment 56 Memo from FCI Captain regarding Camp Modiﬁed Operations (May 1, 2020), # 16 Attachment 57 Memo from FCI Captain regarding FCI I Modiﬁed Operations (May 1, 2020), # 17 Attachment 58 Email to Complex Executive Assistant from Assistant Trust Fund Supervisor (May 1, 2020), # 18 Attachment 59 E-mail to All Staff from Complex Warden Scarantino (May 4, 2020), # 19 Attachment 60 E-mail to Staff from LSCI Warden Lyn (May 5, 2020), # 20 Attachment 61 E-mail to Staff from FCI I Warden Sullivan (May 7, 2020), # 21 Attachment 62 E-mail to All Staff from Complex Warden Scarantino (May 14, 2020), # 22 Attachment 63 Memorandum to Inmate Population from FCI II Warden Leu (May 19, 2020), # 23 Attachment 64 Memorandum to Inmate Population from Complex Warden Scarantino (May 19, 2020), # 24 Attachment 65 e-mail to All Staff from Complex Warden Scarantino (June 1, 2020), # 25 Declaration of Kellie Harden) (Rogers, Joshua) (Entered: 06/03/2020)
40 Appendix to the Statement of Facts regarding 34 MOTION to Dismiss , or in the alternative, MOTION for Summary Judgment ﬁled by Jeffrey Allen, Michael Carvajal, Thomas Scarantino. (Attachments: # 1 Declaration of Luis Martinez, # 2 Attachment 1 FCC Butner Complex Plan, Sanitation (Jan. 26, 2017), # 3 Attachment 2 Memorandum for All FCC Staff from Complex Warden Scarantino regarding Cleaning and Disinfecting of Daily Equipment (March 17, 2020), # 4 Attachment 3 FMC COVID-19 Preventative Measures/Sanitation Tracking Sheet, # 5 Attachment 4 FMC Cadre Sanitation Measures and Rotation Schedule, # 6 Declaration of Christina Kelley, # 7 Attachment 1 Administrative Remedy Generalized Retrieval, Inmate Kinard, Reg. No. 33603-058 (June 2, 2020), # 8 Attachment 2 Administrative Remedy Generalized Retrieval, Inmate McCrae, Reg. No. 87682-007 (June 2, 2020), # 9 Attachment 3 Administrative Remedy Generalized Retrieval, Inmate Riddick, Reg. No. 72403-053 (June 2, 2020), # 10 Attachment 4 Administrative Remedy Generalized Retrieval, Inmate Harris, Reg. No. 55884-056 (June 2, 2020), # 11 Attachment 5 Administrative Remedy Generalized Retrieval, Inmate Hallinan, Reg. No. 75207-066 (June 2, 2020), # 12 Attachment 6 Administrative Remedy Generalized Retrieval, Inmate Hill, Reg. No. 09077-007 (June 2, 2020), # 13 Attachment 7 Administrative Remedy Generalized Retrieval, Inmate Dailey, Reg. No. 39637-044 (June 2, 2020), # 14 Attachment 8 Administrative Remedy Generalized Retrieval, Inmate Ayers, Reg. No. 03882-007 (June 2, 2020), # 15 Attachment 9 Administrative Remedy Generalized Retrieval, Inmate Maldonado, Reg. No. 63756-018 (June 2, 2020), # 16 Attachment 10 Administrative Remedy Generalized Retrieval, Inmate Butler, Reg. No. 65583-056 (June 2, 2020), # 17 Attachment 11 Administrative Remedy Generalized Retrieval, Inmate Titus, Reg. No. 58299-083 (June 2, 2020)) (Rogers, Joshua) (Entered: 06/03/2020)
41 MOTION for Leave to File Excess Pages as to Docket Entry Number 35 ﬁled by Jeffrey Allen, Michael Carvajal, Thomas Scarantino. (Attachments: # 1 Text of Proposed Order) (Rogers, Joshua) (Entered: 06/03/2020)

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42 RESPONSE in Opposition regarding 24 Emergency MOTION for Temporary Restraining Order , Preliminary Injunction, and Writ of Habeas Corpus ﬁled by Jeffrey Allen, Michael Carvajal, Thomas Scarantino. (Rogers, Joshua) (Entered: 06/03/2020)
43 Notice ﬁled by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus regarding 24 Emergency MOTION for Temporary Restraining Order , Preliminary Injunction, and Writ of Habeas Corpus (Fourth Notice of Subsequent Facts). (Wilkerson, Jeffrey) (Entered: 06/04/2020)
44 Declaration regarding 24 Emergency MOTION for Temporary Restraining Order , Preliminary Injunction, and Writ of Habeas Corpus (Fourth Supplemental Declaration of Jeffrey S. Wilkerson) by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus (Attachments: # 1 Exhibit BOP Website Screenshot COVID-19 Cases, # 2 Exhibit Additional Press Release on Inmate Death) (Wilkerson, Jeffrey) (Entered: 06/04/2020)
45 ORDER granting 41 Motion for Leave to File Excess Pages. Signed by District Judge Louise Wood Flanagan on 6/4/2020. (Castania, M) (Entered: 06/04/2020)
TEXT ORDER regarding 24 Emergency MOTION for Temporary Restraining Order, Preliminary Injunction, and Writ of Habeas Corpus - This matter is before the court on petitioners' motion for temporary restraining order or preliminary injunction, ﬁled May 28, 2020. (DE 24). Where respondents ﬁled lengthy opposition to the motion on June 3, 2020, (DE 42), the court in its discretion allows petitioners to ﬁle reply brief on or before June 8, 2020. Courtesy copy of the ﬁling shall be delivered to the clerk's ofﬁce in New Bern on or before June 9, 2020. SO ORDERED by District Judge Louise Wood Flanagan on 6/4/2020. (Castania, M) (Entered: 06/04/2020)
46 Notice ﬁled by Jeffrey Allen, Michael Carvajal, Thomas Scarantino regarding 42 Response in Opposition to Motion, 34 MOTION to Dismiss , or in the alternative, MOTION for Summary Judgment . (Attachments: # 1 Exhibit 1 - Nellson v. Barnhart, D.E 45 Order) (Petre, Genna) (Entered: 06/05/2020)
47 REPLY to Response to Motion regarding 24 Emergency MOTION for Temporary Restraining Order , Preliminary Injunction, and Writ of Habeas Corpus ﬁled by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus. (Wilkerson, Jeffrey) (Entered: 06/08/2020)
48 Declaration regarding 24 Emergency MOTION for Temporary Restraining Order , Preliminary Injunction, and Writ of Habeas Corpus (Fifth Supplemental Declaration of Jeffrey S. Wilkerson) by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus (Attachments: # 1 Exhibit 1 - BOP Press Releases re Additional Deaths, # 2 Exhibit 2 - Screenshots of BOP COVID-19 Cases Website) (Wilkerson, Jeffrey) (Entered: 06/08/2020)
49 Notice of Special Appearance for non-district by Maria V. Morris on behalf of All Plaintiffs. (Morris, Maria) (Entered: 06/09/2020)
50 Afﬁdavit of Service for Summons ﬁled by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus served on Jeffery Allen, M.D. on 06/01/2020. (Wilkerson, Jeffrey) (Entered: 06/09/2020)

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51 Afﬁdavit of Service for Summons ﬁled by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus served on Michael Carvajal on 06/01/2020. (Wilkerson, Jeffrey) (Entered: 06/09/2020)

06/09/2020

52 Afﬁdavit of Service for Summons ﬁled by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus served on Thomas Scarantino on 06/01/2020. (Wilkerson, Jeffrey) (Entered: 06/09/2020)

06/09/2020

53 Afﬁdavit of Service for Summons ﬁled by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus served on Robert J. Higdon, U.S. Attorney for the EDNC, Attention: Civil Process Clerk on 06/01/2020. (Wilkerson, Jeffrey) (Entered: 06/09/2020)

06/09/2020

54 Afﬁdavit of Service for Summons ﬁled by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus served on Robert J. Higdon, U.S. Attorney for the EDNC. (Wilkerson, Jeffrey) (Entered: 06/09/2020)

06/09/2020

55 Afﬁdavit of Service for Summons ﬁled by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus served on William Barr, U.S. Attorney General on 06/02/2020. (Wilkerson, Jeffrey) (Entered: 06/09/2020)

06/10/2020

56 Notice of Appearance ﬁled by Gretchen Vetter Scavo on behalf of All Plaintiffs. (Scavo, Gretchen) (Entered: 06/10/2020)

06/10/2020

57 Notice of Appearance ﬁled by Elizabeth Jeanne Ireland on behalf of All Plaintiffs. (Ireland, Elizabeth) (Entered: 06/10/2020)

06/10/2020

58 Notice of Appearance ﬁled by Patrick A. Doerr on behalf of All Plaintiffs. (Doerr, Patrick) (Entered: 06/10/2020)

06/10/2020

NOTICE OF DEFICIENCY regarding 56 Notice of Appearance, 58 Notice of Appearance, 57 Notice of Appearance. When ﬁling a notice of appearance in this case, counsel cannot select "All Plaintiffs". (With CM/ECF, there are no plaintiffs in HC cases.) Counsel are directed to reﬁle their notices of appearance and select each party that counsel will be representing. (Notice of electronic ﬁling manually sent to gscavo@winston.com, eireland@winston.com, and pdoerr@winston.com.) (Castania, M) (Entered: 06/10/2020)

06/10/2020

59 Notice of Appearance ﬁled by Gretchen Vetter Scavo on behalf of Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus. (Scavo, Gretchen) (Entered: 06/10/2020)

06/10/2020

60 Notice of Appearance ﬁled by Elizabeth Jeanne Ireland on behalf of Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus. (Ireland, Elizabeth) (Entered: 06/10/2020)

06/10/2020

61 Notice of Appearance ﬁled by Patrick A. Doerr on behalf of Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus. (Doerr, Patrick) (Entered: 06/10/2020)

06/11/2020 62 ORDER denying 24 Motion for Temporary Restraining Order, Preliminary

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Injunction, and Writ of Habeas Corpus. Signed by District Judge Louise Wood Flanagan on 6/11/2020. (Castania, M) (Entered: 06/11/2020)
63 Notice of Special Appearance for non-district by Sarah A. Hinger on behalf of Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus. (Hinger, Sarah) (Entered: 06/11/2020)
64 Consent MOTION for Extension of Time to File Response/Reply as to 34 MOTION to Dismiss , or in the alternative, MOTION for Summary Judgment ﬁled by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus. (Attachments: # 1 Exhibit A - Proposed Order) (Wilkerson, Jeffrey) (Entered: 06/23/2020)
Motion Submitted to District Judge Louise Wood Flanagan regarding 64 Consent MOTION for Extension of Time to File Response to 34 MOTION to Dismiss, or in the alternative, MOTION for Summary Judgment. (Castania, M) (Entered: 06/23/2020)
65 ORDER granting 64 Motion for Extension of Time to File Response to 34 MOTION to Dismiss, or in the alternative, MOTION for Summary Judgment Response due by 7/1/2020. Signed by District Judge Louise Wood Flanagan on 6/24/2020. (Castania, M) (Entered: 06/24/2020)
66 STIPULATION of Dismissal Without Prejudice Under Rule 41(a)(1)(A)(ii) by Lee M. Ayers, Anthony Butler, John Dailey, Charles Hallinan, Antwan Harris, Arnold J. Hill, Josean Kinard, Jorge Luis Maldonado, Benjamin D. McRae, George B. Riddick, Troy A. Titus (Wilkerson, Jeffrey) (Entered: 06/29/2020)

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01/18/2021 17:38:11

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Description: Docket Report

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22

Cost:

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 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

CHARLES HALLINAN, JOSEAN KINARD, )

ARNOLD J. HILL, BENJAMIN D. MCRAE, )

JOHN DAILEY, LEE M. AYERS, GEORGE )

B. RIDDICK, JORGE LUIS MALDONADO, )

ANTWAN HARRIS, ANTHONY BUTLER, )

and TROY A. TITUS, on behalf of themselves )

and similarly situated individuals,

)

)

Petitioners/Plaintiffs,

)

)

v.

)

)

THOMAS SCARANTINO, Complex Warden, )

Federal Correctional Complex Butner;

)

MICHAEL CARVAJAL, Federal Bureau of )

Prisons Director; and JEFFERY ALLEN,

)

Federal Bureau of Prisons Medical Director, in )

their official capacities,

)

)

Respondents/Defendants.

)

)

Case No. 5:20-HC-02088-FL
HEARING REQUESTED IMMEDIATE RELIEF SOUGHT

MEMORANDUM OF LAW IN SUPPORT OF PETITIONERS/PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER,
PRELIMINARY INJUNCTION, AND WRIT OF HABEAS CORPUS

Case 5:20-hc-02088-FL Document 25 Filed 05/28/20 Page 1 of 40

TABLE OF CONTENTS

Page

INTRODUCTION AND NATURE OF THE CASE ....................................................................................................1

FACTUAL BACKGROUND........................................................................................................................................3

I.

COVID-19 Is Highly Dangerous.....................................................................................................................3

II.

COVID-19 Poses Significant Dangers for Everyone at Butner.......................................................................5

A.

An ongoing, uncontrolled deadly outbreak of COVID-19 rages at Butner.......................................5

B.

Butner houses some of the most medically fragile individuals in federal prisons ............................6

C.

Without reducing the population, crowding and physical layout of Butner make COVID-19’s

deadly spread a certainty...................................................................................................................7

D.

There is no proper “quarantine,” isolation conditions are inhumane and dangerous, and people

frequently move between units .........................................................................................................8

III. Butner’s Response to the Outbreak Is Patently Inadequate to Mitigate the Risk of Harm............................11

A.

Respondents are aware of the substantial risk to Petitioners...........................................................11

B.

People are falling seriously ill and dying at Butner because Respondents’ actions have been

patently inadequate .........................................................................................................................13

LEGAL STANDARD .................................................................................................................................................16

ARGUMENT ..............................................................................................................................................................17

I.

Petitioners Are Likely to Succeed on the Merits of Their Claim ..................................................................17

II.

Petitioners Face Irreparable Harm if They Remain Confined at Butner .......................................................23

III. Release Would Serve the Public Interest.......................................................................................................23

IV. The Balance of Equities Tips Heavily in Petitioners’ Favor .........................................................................24

V.

This Court Has Authority to Grant Release...................................................................................................25

VI. Respondents Cannot Raise Failure to Exhaust to Avoid Responsibility for Violating Petitioners’ Rights...28

CONCLUSION ...........................................................................................................................................................29

i
Case 5:20-hc-02088-FL Document 25 Filed 05/28/20 Page 2 of 40

TABLE OF AUTHORITIES
Page(s)
Cases
Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320 (2015) ............................................................................................................................................. 27
Baez v. Moniz, No. CV 20-10753-LTS, 2020 WL 2527865 (D. Mass. May 18, 2020) ................................................................26
Banks v. Booth, 2020 WL 1914896 (D.D.C. April 19, 2020).........................................................................................................23
Basank v. Decker, 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020) ................................................................................................ 22, 26
Beck v. Hurwitz, 380 F. Supp. 3d 479 (M.D.N.C. 2019) ................................................................................................................. 23
Bent v. Barr, 2020 WL 1812850 (N.D. Cal. Apr. 9, 2020) ........................................................................................................ 22
Boston v. Bauknecht, No. 6:07-0250-GRA-WMC, 2007 WL 3119482 (D.S.C. Oct. 22, 2007) ............................................................. 28
Brown v. Plata, 563 U.S. 493 (2011) ....................................................................................................................................... 17, 26
Cameron v. Bouchard, No. CV 20-10949, --- F.Supp.3d ----, 2020 WL 2569868 (E.D. Mich. May 21, 2020), on reconsideration 2020 WL 2615740 (E.D. Mich. May 22, 2020), stay denied, No. 20-1469 (6th Cir. May 26, 2020).................................................................................................................................passim
Condon v. Haley, 21 F. Supp. 3d 572 (D.S.C. 2014) ........................................................................................................................ 23
Cordaro v. Finley, No. 3:10-CR-75, 2020 WL 2084960 (M.D. Pa. Apr. 30, 2020) ........................................................................... 26
Coreas v. Bounds, 2020 WL 2201850 (D. Md. Apr. 30, 2020)..........................................................................................................23
Coreas v. Bounds, No. CV TDC-20-0780, 2020 WL 1663133 (D. Md. Apr. 3, 2020) ................................................................ 21, 26
Coreas v. Bounds, No. CV TDC-20-0780, 2020 WL 2292747 (D. Md. May 7, 2020) ...................................................................... 22
Coronel v. Decker, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020) ................................................................................................ 22, 24
Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001) ............................................................................................................................................... 27
ii
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Cox v. Quinn, 828 F.3d 227 (4th Cir. 2016) ................................................................................................................................ 18
Cristian A.R. v. Decker, 2020 WL 2092616 (D.N.J. Apr. 12, 2020) ........................................................................................................... 22
De’lonta v. Johnson, 708 F.3d 520 (4th Cir. 2013) ................................................................................................................................ 20
Dunkley v. Hamidullah, No. 6:06-2139-JFA-WMC, 2007 WL 2572256 (D.S.C. Aug. 31, 2007).............................................................. 28
Elrod v. Burns, 427 U.S. 347 (1976) ............................................................................................................................................. 23
Farmer v. Brennan, 511 U.S. 825, 114 S. Ct. 1970 (1994)................................................................................................................... 17
Hawkins v. Cohen, 327 F.R.D. 64 (E.D.N.C. 2018), modified on reconsideration, 2018 WL 6445416 (E.D.N.C. Dec. 10, 2018) ...................................................................................................................................................... 30
Helling v. McKinney, 509 U.S. 25 (1993) ......................................................................................................................................... 17, 18
Hutto v. Finney, 437 U.S. 678 (1978) ............................................................................................................................................. 17
Martinez-Brooks v. Easter, No. 3:20-CV-00569 (MPS), 2020 WL 2405350 (D. Conn. May 12, 2020) ............................................. 21, 25, 26
McPherson v. Lamont, No. 3:20CV534 (JBA), 2020 WL 2198279 (D. Conn. May 6, 2020)...................................................................29
Native Angels Home Health, Inc. v. Burwell, No. 5:15-CV-234-FL, 2015 WL 12910710 (E.D.N.C. June 4, 2015) .................................................................. 17
Oldham v. Beck, 75 F. App’x 122 (4th Cir. 2003) ........................................................................................................................... 18
Peyton v. Rowe, 391 U.S. 54 (1968) ............................................................................................................................................... 25
Plata v. Brown, 427 F. Supp. 3d 1211 (N.D. Cal. 2013) ................................................................................................................ 27
Porter v. Clarke, 290 F. Supp. 3d 518 (E.D. Va. 2018), aff’d, 923 F.3d 348 (4th Cir. 2019), as amended (May 6, 2019).................................................................................................................................................................23
Preiser v. Rodriguez, 411 U.S. 475 (1973) ............................................................................................................................................. 25
Prieto Refunjol v. Adducci, No. 2:20-CV-2099, 2020 WL 2487119 (S.D. Ohio May 14, 2020) ..................................................................... 24
iii
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Putney v. Likin, 656 F. App’x 632 (4th Cir. 2016) ......................................................................................................................... 17
Reaves v. Dep’t of Corr., 404 F. Supp. 3d 520 (D. Mass. 2019)...................................................................................................................27
Ross v. Blake, 136 S. Ct. 1850 (2016) ................................................................................................................................... 28, 29
Scinto v. Stansberry, 841 F.3d 219 (4th Cir. 2016) .......................................................................................................................... 17, 18
Thakker v. Doll, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020) ................................................................................................ 22, 25
United States v. El-Hanafi, No. 1:10-cr-00162-KMW (S.D.N.Y. May 19, 2020) ..................................................................................... 14, 15
United States v. Taylor, No. 3:18-cr-282, 2020 WL 2084974 (M.D. Pa. Apr. 30, 2020) ........................................................................... 26
Valentine v. Collier, -- U.S. --, 2020 WL 2497541 (May 14, 2020)......................................................................................................11
Wilson v. Williams, 2020 WL 1940882 (N.D. Ohio Apr. 22, 2020), stay denied, No. 20-3447 (6th Cir. Apr. 27, 2020), stay denied, 590 U.S. --- (May 26, 2020)...........................................................................................passim
Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir.2005) .................................................................................................................................. 28
Statutes
18 U.S.C. § 3626 ......................................................................................................................................................... 26
18 U.S.C. § 3626(a)(3) ................................................................................................................................................ 27
18 U.S.C. § 3626(g)(2) .......................................................................................................................................... 26, 28
28 U.S.C. § 2241 ..................................................................................................................................................passim
28 U.S.C. § 2241(c)(3) ................................................................................................................................................ 25
Other Authorities
28 C.F.R. § 542............................................................................................................................................................28
85 Fed. Reg. 15337........................................................................................................................................................1
ABC News, https://abcnews.go.com/Health/timeline-coronavirus-started/story?id=69435165............................................... 28
iv
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Amanda Lamb, Former Inmate Says Butner Officials “Slow-Rolling” Prisoner Releases During Pandemic, https://www.wral.com/coronavirus/former-inmate-says-butner-officials-slow-rolling-prisonerreleases-during-pandemic/19056209 .................................................................................................................... 20
Attorney General William Barr, Memorandum for Director of Bureau Prisons, Office of the Attorney General, 2 (Mar. 26, 2020), https://www.justice.gov/file/1262731/download .................................................................................................... 2
Attorney General William Barr, Memorandum for Director of Bureau of Prisons, Office of the Attorney General (Apr. 3, 2020), https://www.justice.gov/file/1266661/download .................................................................................................. 11
BOP COVID-19 Resource Page, https://www.bop.gov/coronavirus/ ......................................................................................................................... 5
BOP COVID-19 website (March 31, 2020), https://www.bop.gov/coronavirus/ ......................................................................................................................... 5
BOP Implementing Modified Operations, Federal Bureau of Prisons https://www.bop.gov/coronavirus/covid19_status.jsp .......................................................................................... 15
Care Level Classification for Medical and Mental Health Conditions or Disabilities, Federal Bureau of Prisons, https://www.bop.gov/resources/pdfs/care_level_classification_guide.pdf ............................................................. 6
COVID-19 Coronavirus: COVID-19 Cases, Federal Bureau of Prisons, https://www.bop.gov/coronavirus/ ............................................................................................................. 1, 12, 15
COVID-19 Dashboard by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins, Johns Hopkins Univ. & Med. Coronavirus Resource Center, https://coronavirus.jhu.edu/map.html ..................................................................................................................... 1
COVID-19 Dashboard by the Centers for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU), Johns Hopkins University: Coronavirus Resource Center, https://coronavirus.jhu.edu/map.html ................................................................................................................... 12
Dan Kane, Coronavirus Outbreak at Butner Prison Continues to Surge. Now it’s Spreading to Staff, News & Observer (April 9, 2020), https://www.newsobserver.com/news/local/crime/ article241901551.html ........................................................... 5
Director M.D. Carvajal Addresses All Staff: COVID-19 Video Update Number 5: April 22, 2020, Federal Bureau of Prisons (April 22, 2020), https://www.bop.gov/resources/news/20200422_dir_message.jsp; COVID-19 Cases.........................................13
Director M.D. Carvajal Addresses All Staff: COVID-19 Video Update Number 6: April 29, 2020, Federal Bureau of Prisons (April 22, 2020), https://www.bop.gov/resources/news/20200429_dir_message.jsp....................................................................... 12
COVID-19 Video Update Number 7: May 6, 2020, https://www.youtube.com/watch?v=wxdS2FKjAUw ..........................................................................................13
Fed. R. Civ. P. 65(b)(1) ............................................................................................................................................... 17
Fed. R. Civ. P. 65(c) .................................................................................................................................................... 30
v
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Fed. R. Evid. 706 ......................................................................................................................................................... 30
Fei Zhou, et al., Clinical Course and Risk Factors for Mortality of Adult Inpatients with COVID19 in Wuhan, China: A Retrospective Cohort Study, 395 The Lancet 1054 (Mar. 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext ........................................ 4
How COVID-19 Spreads, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html ................................ 3
Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctional-detention.pdf .......................... 19
Josiah Rich, Scott Allen, and Mavis Nimoh, We must release prisoners to lessen the spread of coronavirus, Washington Post (March 17, 2020).................................................................................................13
Kathryn Dreger, What You Should Know Before You Need a Ventilator, N.Y. Times (Apr. 4, 2020) .......................... 4
Kerry Kennedy Meltzer, I’m Treating Too Many Young People for the Coronavirus, The Atlantic (March 26, 2020), https://www.theatlantic.com/ideas/archive/2020/03/young-people-are-not-immunecoronavirus/608794/; .............................................................................................................................................. 4
Memorandum for All Chief Executive Officers: Coronavirus (COVID-19) Phase Six Action Plan, Federal Bureau of Prisons (Apr. 13, 2020), https://prisonology.com/wp-content/uploads/2020/04/COVID-19-Phase-6-Plan-2020-0413.pdf.................................................................................................................................................................... 10
Neeltje van Doremalen, et al, Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1, New England J. Med. (March 17, 2020), nejm.org/doi/10.1056/NEJMc2004973 .................................................................................................................. 3
Older Adults, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html ....................................... 4
People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higherrisk.html................................................................................................................................................................ 19
Population Statistics: Inmate Population Breakdown, Federal Bureau of Prisons, https://www.bop.gov/mobile/about/population_statistics.jsp ................................................................................. 1
Population Statistics: Inmate Population Breakdown, Federal Bureau of Prisons, https://www.bop.gov/mobile/about/population_statistics.jsp ................................................................................. 7
Population Statistics: Inmate Population Breakdown, Federal Bureau of Prisons, https://www.bop.gov/mobile/about/population_statistics.jsp ............................................................................... 25
Population Statistics: Inmate Population Breakdown, Federal Bureau of Prisons, https://www.bop.gov/mobile/about/population_statistics.jsp#bop_pop_table ....................................................... 6
PREA Audit Report, National PREA Resource Center, Bureau of Justice Assistance 1 (Apr. 2, 2017), https://www.bop.gov/locations/institutions/buh/PREA_butner.pdf ....................................................................... 6
vi
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Press Release, Inmate Death at FCI Butner I (Apr. 12, 2020), https://www.bop.gov/ resources/news/pdfs/20200412_press_release_inmate_death_but_covid19.pdf .................................................. 23
Press Release, NC Governor Roy Cooper, Governor Cooper Declares State Of Emergency To Respond To Coronavirus COVID-19 (Mar. 10, 2020), https://governor.nc.gov/news/governor-cooper-declares-state-emergency-respondcoronavirus-covid-19.............................................................................................................................................. 1
Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization 12 (Feb. 28, 2020), https://www.who.int/docs/default-source/coronaviruse/who-china-joint-mission-on-covid-19final-report.pdf ....................................................................................................................................................... 4
Screenshot of BOP COVID-19 website (April 27, 2020), https://www.bop.gov/coronavirus/ ......................................................................................................................... 5
U.S. and World Population Clock, United States Census Bureau, https://www.census.gov/popclock/ (last visited May 27, 2020, 6:39 p.m.) ..........................................................12
WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19 - 3 March 2020, World Health Organization (Mar. 3, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-themedia-briefing-on-covid-19---3-march-2020 ......................................................................................................... 3
Xianxian Zhao, et al., Incidence, clinical characteristics and prognostic factor of patients with COVID-19: a systematic review and meta-analysis, MedRxiv (March 20, 2020), https://cutt.ly/etRAkmt; Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://cutt.ly/ytEimUQ .......................................................................................................................................... 4
vii
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INTRODUCTION AND NATURE OF THE CASE COVID-19 is a global pandemic that has profoundly changed the world. President Trump and Governor Roy Cooper have declared states of emergency.1 Globally, over five million people have tested
positive and more than 350,000 people have died. In the United States, over 1.7 million people have tested positive, and more than 100,000 have died.2 While the world has taken dramatic measures to combat COVID-19, for the 4,438 people housed in the Federal Correctional Complex Butner (“Butner”),
recommended measures—particularly physical distancing and avoiding close contact with others—are
nearly impossible. The result is dire: ten men at Butner have died, and hundreds more (including staff) have tested positive. Two deaths have been reported just since the day this case was filed. Without Court
intervention, the disease will continue its rapid spread and more people will die. Prisons are hotbeds for the transmission of COVID-19, and Butner is worse than most. Indeed,
Butner, which houses a disproportionately large number of medically vulnerable people and is well over its
maximum capacity, is one of the country’s hardest-hit facilities. Over 380 incarcerated people—8 percent of the Butner population—and more than 40 staff members, have tested positive.3 And because BOP has
not implemented widespread testing of incarcerated people and is not testing staff, the true number of
infected people is almost certainly higher. Crowding at Butner exacerbates the risk. All aspects of daily life take place in cramped quarters,
and physical distancing is nearly impossible. Many people are housed in large rooms with between 70 and
1 Proclamation No. 9994, 85 Fed. Reg. 15337 (Mar. 13, 2020); Press Release, NC Governor Roy Cooper, Governor Cooper Declares State Of Emergency To Respond To Coronavirus COVID-19 (Mar. 10, 2020), https://governor.nc.gov/news/governor-cooper-declares-state-emergency-respond-coronaviruscovid-19.
2 COVID-19 Dashboard by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins, Johns Hopkins Univ. & Med. Coronavirus Resource Center, https://coronavirus.jhu.edu/map.html (last visited May 28, 2020).
3 COVID-19 Coronavirus: COVID-19 Cases, Federal Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited May 27, 2020) [hereinafter COVID-19 Cases]; see Population Statistics: Inmate Population Breakdown, Federal Bureau of Prisons, https://www.bop.gov/mobile/about/population_statistics.jsp (last updated May 21, 2020) (showing populations for Butner Low FCI (1,201), Butner Medium I FCI (656), Butner Medium II FCI (1,461), and Butner FMC (909), Butner Camp (211)).
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160 people. They sleep in small cubicles in groups of two or three just a few feet from one another, with only a partial “wall” separating the groups. They share limited showers, sinks, toilets, computers, and phones, most of which are cleaned only once per day despite frequent use. They line up closely multiple times a day for food and medicine. Staff and incarcerated people move from unit to unit, increasing the odds that the virus will spread. Compounding matters, the testing, illness identification, and treatment are insufficient. Purported “quarantine” practices are dangerous and ineffective.
Many men at Butner face an even higher risk of serious illness or death from COVID-19 because they are medically vulnerable with pre-existing health conditions.4 Indeed, all ten men who have died from COVID-19 at Butner so far were medically vulnerable, and all but one were over age 50.
Respondents/Defendants (“Respondents”) know of the COVID-19 outbreak, the associated deaths at Butner, and the extraordinary danger COVID-19 poses. Weeks ago, Attorney General Barr recognized this grave risk and directed the BOP to transfer, on an expedited basis, certain incarcerated persons to home confinement without the need for individualized requests.5 Yet Respondents have failed to do so in any meaningful way—even now, months after Governor Cooper declared a state of emergency and Attorney General Barr issued his directive. Meanwhile, the virus rages on inside the facility. Plaintiffs/Petitioners (“Petitioners”), who seek to represent the men in custody at Butner, remain at an extreme risk of irreparable harm, and Respondents have failed to take appropriate steps to protect their constitutional rights.
Accordingly, Petitioners seek a writ of habeas corpus under 28 U.S.C. § 2241 and a temporary restraining order (“TRO”) and/or preliminary injunction under Rule 65 ordering (i) the appointment of a court-appointed expert to define the Medically Vulnerable Subclass and determine appropriate categories
4 Medically vulnerable people make up more than 38 percent of the prison population (see Declaration of Dr. Chris Beyrer (“Beyrer Decl.”) (attached as Ex. 17 to Declaration of Jeff Wilkerson (“Wilkerson Decl.”) at 29). The percentage of the population is likely to be even higher at Butner, where there is a dedicated medical facility.
5 Attorney General William Barr, Memorandum for Director of Bureau Prisons, Office of the Attorney General, 2 (Mar. 26, 2020), https://www.justice.gov/file/1262731/download (attached as Ex. 21 to Wilkerson Decl.) [hereinafter Barr March 26 Memo]. 2
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of release;6 (ii) immediate consideration for release of persons in the Medically Vulnerable Subclass

according to the expert’s plan; and (iii) preparation of a detailed and feasible COVID-19 mitigation plan,

containing measures for immediate and medically sound screening, testing, quarantine, and medical

isolation (where appropriate) of the remaining incarcerated persons after release of the Medically

Vulnerable Subclass. This relief is constitutionally required to avoid the continued loss of life and severe

illness caused by Respondents’ insufficient response to COVID-19.

FACTUAL BACKGROUND

I.

COVID-19 Is Highly Dangerous

The virus that causes COVID-19 is highly contagious, with no vaccine and no known cure.7 It

spreads mainly through person-to-person contact, “respiratory droplets,”8 and contact with contaminated

objects.9 Asymptomatic people can transmit the virus, making it particularly difficult to prevent.10 COVID-

19 is deadly, with an overall mortality rate of 3.4 percent.11 The disease can cause pneumonia, acute

6 The term “release,” as used here, refers to discharge of incarcerated persons from Butner’s physical confines, not necessarily release from custody. Release options may include, but are not limited to: enlargement of custody; release to parole or community supervision; transfer furlough (to another facility, hospital, or halfway house); or non-transfer furlough, which could entail a released person’s eventual return to Butner once the pandemic is over and the viral health threat is abated. Any releases should include requirements for testing, care, and distancing, as informed by a public health expert.
7 Declaration of Dr. Joe Goldenson, M.D. (“Goldenson Decl.”) (attached as Ex. 18 to Wilkerson Decl.), at 2; Declaration of Dr. Chris Beyrer, M.D., M.P.H. (“Beyrer Decl.”) (attached as Ex. 17 to Wilkerson Decl.) at 2.
8 How COVID-19 Spreads, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last visited May 26, 2020) (attached as Ex. 26 to Wilkerson Decl.); Goldenson Decl. at 2; Beyrer Decl. at 4.
9 Id. See also Neeltje van Doremalen, et al, Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1, New England J. Med. (March 17, 2020), nejm.org/doi/10.1056/NEJMc2004973 (noting lengths of time SARS-nCoV-2 can survive in the air (3 hours), on cardboard (24 hours), plastic (3 days), and steel (2 days)); Goldenson Decl. at 2.
10 Person-to-Person Spread, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (last visited May 26, 2020); Goldenson Decl. at 2; Beyrer Decl. at 4.
11 WHO Director-General's Opening Remarks at the Media Briefing on COVID-19 - 3 March 2020, World Health Organization (Mar. 3, 2020), https://www.who.int/dg/speeches/detail/who-director-general-sopening-remarks-at-the-media-briefing-on-covid-19---3-march-2020. By comparison, seasonal influenza “generally kills far fewer than 1% of those infected.” Id.; Beyrer Decl. at 2.
3
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respiratory distress syndrome, respiratory failure, heart failure, or sepsis.12 Current treatments for severe
cases of COVID-19 are highly invasive and include isolation, oxygen, and mechanical ventilation.13 Those
who survive COVID-19 can suffer severe and permanent damage to the lungs and other vital organs.14
All people risk serious illness and death from COVID-19, but some face especially high risks.15
People over 50 are more likely to require hospitalization, admission to intensive care units, and/or die.16
People with certain underlying medical conditions—regardless of age—face higher risk of hospitalization
and death.17 Such conditions include diabetes, chronic lung disease, blood disorders, moderate to severe
asthma, serious heart conditions, severe obesity, chronic kidney disease undergoing dialysis, chronic liver
disease, endocrine disorders, metabolic disorders, neurological and neurologic and neurodevelopmental
conditions, compromised immune systems as a result of cancer treatment, organ, or bone marrow
transplants, prolonged use of corticosteroids, HIV, high blood pressure, a history of smoking, or other
immune deficiencies.18 The World Health Organization estimates a mortality rate of 13.2 percent for those
with cardiovascular disease, 9.2 percent for diabetes, 8.4 percent for hypertension, 8 percent for chronic
respiratory disease, and 7.6 percent for cancer.19
12 Fei Zhou, et al., Clinical Course and Risk Factors for Mortality of Adult Inpatients with COVID-19 in Wuhan, China: A Retrospective Cohort Study, 395 The Lancet 1054 (Mar. 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext.
13 Kathryn Dreger, What You Should Know Before You Need a Ventilator, N.Y. Times (Apr. 4, 2020), https://www.nytimes.com/2020/04/04/opinion/coronavirus-ventilators.html.
14 Beyrer Decl. at 2. 15 See, e.g., Kerry Kennedy Meltzer, I’m Treating Too Many Young People for the Coronavirus, The
Atlantic (March 26, 2020), https://www.theatlantic.com/ideas/archive/2020/03/young-people-are-notimmune-coronavirus/608794/; Goldenson Decl. at 2; Beyrer Decl. at 2-3. 16 See, e.g., Goldenson Decl. at 2; Beyrer Decl. at 2-3, 28; Xianxian Zhao, et al., Incidence, clinical characteristics and prognostic factor of patients with COVID-19: a systematic review and meta-analysis, MedRxiv (March 20, 2020), https://cutt.ly/etRAkmt; Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://cutt.ly/ytEimUQ (data analysis based on WHO China Joint Mission Report); Older Adults, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/older-adults.html (last visited May 22, 2020) (attached as Ex. 28 to Wilkerson Decl.). 17 Xianxian Zhao, et al.; see also Beyrer Decl. at 28. 18 Xianxian Zhao, et al.; see also Goldenson Decl. at 2; Beyrer Decl. at 28. 19 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization 12 (Feb. 28, 2020), https://www.who.int/docs/default-source/coronaviruse/who-chinajoint-mission-on-covid-19-final-report.pdf; see also Beyrer Decl. at 29.
4
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Only three measures are known to reduce the spread of this fatal virus: (i) “social or physical distancing,” of at least six feet of space between people;20 (ii) covering the mouth and nose with a mask;21 and (iii) vigilant hygiene practices, including frequently washing hands and regularly disinfecting surfaces.22 The most important of these is distancing, without which even vigilant efforts to improve hygiene will not slow the virus.23 Because asymptomatic people can transmit the virus, everyone—not just those with symptoms—must practice distancing and other preventative measures.24 II. COVID-19 Poses Significant Dangers for Everyone at Butner
All prisons are at increased risk for rapid spread of COVID-19.25 But the conditions at Butner and Respondents’ failure to sufficiently address the risks posed by COVID-19 render it a death trap.
A. An ongoing, uncontrolled deadly outbreak of COVID-19 rages at Butner COVID-19 was first confirmed at Butner in late March 2020.26 As of March 30, two incarcerated people and a staff member were diagnosed with COVID-19.27 Less than a month later, the number of confirmed cases had risen to more than 200.28 As one person formerly incarcerated at Butner put it, COVID-19’s spread was “like a chain reaction.”29 As of the date of this filing, over 400 people at Butner— 377 incarcerated people and 44 staff—have tested positive.30 Ten have died: Charles Richard Rootes (age 81), Gary Edward Nixon (age 57), Andre Williams (age 78), John Doe (age 46), Fabian Tinsley (age 67),
20 See Social Distancing, Quarantine, and Isolation, Centers for Disease Control and Prevention, (attached as Ex. 24 to Wilkerson Decl.); Goldenson Decl. at 2-3; Beyrer Decl. at 4.
21 See How to Protect Yourself & Others, Centers for Disease Control and Prevention, (attached as Ex. 25 to Wilkerson Decl.); Goldenson Decl. at 2-3; Beyrer Decl. at 20-21.
22 See id.; Goldenson Decl. at 2-3; Beyrer Decl. at 4, 19-20. 23 Beyrer Decl. at 4. 24 Goldenson Decl. at 2-3; Beyrer Decl. at 4. 25 Goldenson Decl. at 3-5; Beyrer Decl. at 29. 26 Dan Kane, Coronavirus Outbreak at Butner Prison Continues to Surge. Now it’s Spreading to Staff,
News & Observer (April 9, 2020), https://www.newsobserver.com/news/local/crime/ article241901551.html. 27 Archived screenshot of BOP COVID-19 website (March 31, 2020), https://www.bop.gov/coronavirus/ (attached as Ex. 36 to Wilkerson Decl.). 28 Screenshot of BOP COVID-19 website (April 27, 2020), https://www.bop.gov/coronavirus/ (attached as Ex. 37 to Wilkerson Decl.). 29 Declaration of Lewis Donnell Huntley (“Huntley Decl.”), (attached at Ex. 8 to Wilkerson Decl.) at 3-4. 30 BOP COVID-19 Resource Page, https://www.bop.gov/coronavirus/ (last visited May 25, 2020).
5
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William Walker Minto (age 73), William E. Miller (age 58), Jerry Lynn Dempsey (age 59), Eric Spiwak
(age 73), and Isaac Byers (age 52).31 Per Respondents’ press releases, all of these men were medically
vulnerable, and at least eight went into respiratory failure before BOP brought them to the hospital.32
B. Butner houses some of the most medically fragile individuals in federal prisons
Butner houses 4,438 men,33 including some of the most medically vulnerable in BOP custody. One
facility within Butner, FMC Butner, is a hospital serving people with health care needs classified as Care
Level 4, the BOP’s highest classification.34 Butner also houses hundreds, if not thousands, of men whose
health care needs are classified as Care Level 3.35 Much of the population at Butner is over age 50,36 and
many suffer from ailments like cancer,37 hypertension and heart disease,38 compromised immune systems,39
and diabetes40—the very conditions that the CDC has recognized as making people particularly vulnerable
to severe illness or death if they contract COVID-19.41 In FMC Butner alone, a whole floor of some 240
31 U.S. Department of Justice, Federal Bureau of Prisons Press Releases on Inmate Deaths at FCI Butner I Prison (attached as Ex. 20 to Wilkerson Decl.).
32 Id. 33 Population Statistics: Inmate Population Breakdown, Federal Bureau of Prisons,
https://www.bop.gov/mobile/about/population_statistics.jsp#bop_pop_table. 34 Care Level Classification for Medical and Mental Health Conditions or Disabilities, Federal Bureau of
Prisons, https://www.bop.gov/resources/pdfs/care_level_classification_guide.pdf, at 3. Conditions that result in Care Level 4 include “cancer on active treatment, dialysis, quadriplegia, stroke or head injury patients, [and] major surgical treatment.” Id. 35 See PREA Audit Report, National PREA Resource Center, Bureau of Justice Assistance 1 (Apr. 2, 2017), https://www.bop.gov/locations/institutions/buh/PREA_butner.pdf at 2 [hereinafter PREA Audit Report]; see also Declaration of Arnold J. Hill (“Hill Decl.”) (attached as Ex. 7 to Wilkerson Decl.) at 1; Declaration of Benjamin D. McRae (“McRae Decl.”) (attached as Ex. 12 to Wilkerson Decl.) at 1; Declaration of George B. Riddick (“Riddick Decl.”) (attached as Ex. 14 to Wilkerson Decl.) at 1. 36 See, e.g., Declaration of Charles Hallinan (“Hallinan Decl.”) (attached as Ex. 4 to Wilkerson Decl.) at 3-4; McRae Decl. at 3. 37 See, e.g., Declaration of Randy Ortiz (“Ortiz Decl.”) (attached as Ex. 13 to Wilkerson Decl.) at 1; Declaration of Michael Harrington (“Harrington Decl.”) (attached as Ex. 5 to Wilkerson Decl.) at 1; Declaration of John Dailey (“Dailey Decl.”) (attached as Ex. 2 to Wilkerson Decl.) at 1; Hallinan Decl. at 1; Riddick Decl. at 1. 38 See, e.g., Hill Decl. at 1; Hallinan Decl. at 1; McRae Decl. at 1; Declaration of Antwan Harris (“Harris Decl.”) (attached as Ex. 6 to Wilkerson Decl.) at 1. 39 See, e.g., Declaration of Jorge Maldonado (“Maldonado Decl.”) (attached as Ex. 11 to Wilkerson Decl.) at 1 (noting kidney transplants); Ortiz Decl. at 1; Dailey Decl. at 2; Declaration of Lee Ayers (“Ayers Decl.”) (attached as Ex. 1 to Wilkerson Decl.) at 2. 40 See, e.g., Hill Decl. at 1. 41 See supra note 16.
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people are seriously immunocompromised because they are undergoing active treatment for cancer.42 C. Without reducing the population, crowding and physical layout of Butner make COVID-19’s deadly spread a certainty Further exacerbating the inherent dangers of an infectious disease outbreak in a prison populated
largely with sick and elderly people is the crowded layout of Butner.43 Butner houses approximately 4,438 men,44 hundreds more than the maximum population for which it was built.45 Even if it were functioning at only maximum capacity, Butner’s housing layout is designed perfectly to spread this virus. In much of the facility, people live in large open rooms that hold as many as 150 people.46 The rooms have cubicles set up with partial “walls” to divide them, but they provide no protection from an airborne illness.47 As many as four people are crammed into each cubicle, each sleeping within a few feet of one another.48 Other men are housed in rows of bunk beds along walls or in hallways others pass through.49 To access the bathroom there, a man must pass by other bunks on both sides, without room to distance and without control over whether an individual in those bunks will cough or sneeze.50 In a separate section, men are housed in celled units of about 120 people.51 Like the cubicles, the cells hold between one and four people.52 Whether housed in cubicles or cells, the men cannot maintain a six-foot distance from other men around them.53
42 Ortiz Decl. at 1. 43 Beyrer Decl. at 7-14. 44 See Population Statistics: Inmate Population Breakdown, Federal Bureau of Prisons,
https://www.bop.gov/mobile/about/population_statistics.jsp (last updated May 21, 2020). 45 See PREA Audit Report at 1 (listing capacity at 3,998 men). 46 See Declaration of Josean Kinard (“Kinard Decl.”) (attached as Ex. 9 to Wilkerson Decl.) at 1; McRae
Decl. at 1; Hill Decl. at 2; Dailey Decl. at 2; Hallinan Decl. at 2; Maldonado Decl. at 4. 47 Declaration of John Krokos (“Krokos Decl.”) (attached as Ex. 10 to Wilkerson Decl.) at 2; Kinard Decl.
at 1; McRae Decl. at 2; Hill Decl. at 2; Hallinan Decl. at 2. 48 See Hill Decl. at 2; Hallinan Decl. at 2; McRae Decl. at 2; Dailey Decl. at 4; Krokos Decl. at 2. 49 See, e.g., Declaration of Roger Goodwin (“Goodwin Decl.”) (attached as Ex. 3 to Wilkerson Decl.) at
3; Huntley Decl. at 1. 50 See Huntley Decl. at 1. 51 See Ayers Decl. at 2; Riddick Decl. at 1. 52 See Ayers Decl. at 2; Riddick Decl. at 3. 53 See Hallinan Decl. at 2; Dailey Decl. at 2-3; Hill Decl. at 2; Krokos Decl. at 2; Maldonado Decl. at 6;
McRae Decl. at 2; Harris Decl. at 1; Ayers Decl. at 2; Riddick Decl. at 2-3. 7
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The men at Butner must also share common areas to meet their most basic needs. Men in cubicles must share bathrooms with everyone in their unit.54 Men in the celled units share toilets and sinks with cellmates and share showers with everyone in the unit.55 Most shared bathrooms are cleaned just once a day, despite use by scores of men.56 The men in a housing unit also share phones and computers. Men are shoulder to shoulder as they use this equipment and while they wait their turn.57 Like bathrooms, most phones and computers are cleaned once daily.58 They are not disinfected between their near-constant use.59
In the cubicle-based units, men line up, close together, multiple times per day to receive meals and medications. In celled units, meals and medications are brought to each cell,60 resulting in frequent direct contact with different individuals—including staff who visit other units and incarcerated people housed elsewhere.61
Butner could hardly have been designed to more efficiently transmit a deadly virus from person to person. Even if it were operating only at maximum capacity, the risk of COVID-19 there is too great. The overcrowding of the facility only serves to exacerbate an already unacceptable risk that Respondents have chosen not to prevent.
D. There is no proper “quarantine,” isolation conditions are inhumane and dangerous, and people frequently move between units
To prevent the spread of COVID-19, it is critical to separate those with the virus from those without it.62 Quarantine is used at Butner for incarcerated people transferring into the facility and those slated to
54 See Hallinan Decl. at 2; Dailey Decl. at 3; Hill Decl. at 2-3; Krokos Decl. at 4; McRae Decl. at 2; Harris Decl. at 2.
55 Riddick Decl. at 3; Ayers Decl. at 3. Only in the hospital unit do the cells contain a toilet, sink and shower, shared only by the cellmates. See Ortiz Decl. at 2.
56 Dailey Decl. at 3. In one housing unit at FCI Butner Low, the bathrooms are cleaned twice a day. See Hill Decl. at 2; Harris Decl. at 2.
57 See, e.g., Ayers Decl. at 5; see also Riddick Decl. at 4. 58 See, e.g., Ayers Decl. at 4-5; Dailey Decl. at 3-4; Kinard Decl. at 2; Krokos Decl. at 4; Hill Decl. at 3. 59 See, e.g., Dailey Decl. at 3-5; Hill Decl. at 3; Ayers Decl. at 4-5; Kinard Decl. at 1; Harris Decl. at 3. 60 See, e.g., Riddick Decl. at 3-4; Ayers Decl. at 4. 61 See, e.g., Ortiz Decl. at 1. 62 Beyrer Decl. at 22-23.
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leave BOP.63 Men believed to have COVID-19 are placed in isolation.64 Neither Butner’s quarantine nor its isolation is medically sound or effective.65 And the constant flow of people between units is counterproductive and dangerous.66
If a person incarcerated at Butner is suspected or confirmed to have COVID-19, he is placed in isolation in the Special Housing Unit (“SHU”).67 But this is not medical isolation with proper monitoring;68 this is solitary confinement. For example, Roger Goodwin, who takes daily medications to control his diabetes and has a rare immunodeficiency disorder, was taken to “isolation” in a filthy room in the SHU after testing positive for COVID-19, and was not given any of his medications, his toiletries, or even a cup to drink from for days.69 Other than the direction to drink fluids and once or twice-daily checks of his vital signs, he received no medical advice or treatment for COVID-19 while in isolation.70 After 17 days in isolation, he was transported back to the Camp on a bus with about 20 to 30 other men.71 He was not retested for COVID-19, and he does not know how (or if) Respondents determined that it was safe for him to return to the general population.72
Moreover, Respondents are not timely isolating people who exhibit symptoms or even those who test positive. After one housing unit was tested, Respondents did not move some residents who tested positive until five days after receiving the test results.73 Thus, with full knowledge of the danger, Respondents kept known COVID-positive people in close quarters with uninfected people for five days.
63 See, e.g., Ortiz Decl. at 1, Goodwin Decl. at 3. 64 See, e.g., Riddick Decl. at 5; Ayers Decl. at 5; Hill Decl. at 4; McRae Decl. at 3. 65 Beyrer Decl. at 22-23, 27. 66 Id. at 26-27. 67 See, e.g., Ayers Decl. at 5; Hill Decl. at 4; Hallinan Decl. at 4-5; Dailey Decl. at 4; Riddick Decl. at 5;
McRae Decl. at 3. 68 Beyrer Decl. at 22-23, 27; Hill Decl. at 4 69 Goodwin Decl. at 5-6. 70 Id. at 6. 71 Id. at 7. 72 Id. 73 See Maldonado Decl. at 7.
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Respondents’ quarantine practices are similarly problematic.74 Quarantine is necessary for prisoners “who are close contacts of a known or suspected case” and for new entrants into the facility, as a way of limiting the outbreak in the facility.75 Respondents set up quarantine in a deeply and obviously flawed manner:
• Men in quarantine share a bathroom with other men from a housing unit not under quarantine.76 • Men in quarantine are separated from the men not in quarantine only by a “make-shift wall.”77 • A prisoner orderly, not in quarantine, cleans the bathroom after men in quarantine use it, then
returns to his housing unit (not in quarantine).78 • In FMC Butner, men transferring into Butner (whose COVID-19 status is unknown) are
“quarantined” in cells on the floor where cancer patients are housed.79 The same workers deliver food and medicine to their cells as to the cells of the cancer patients.80 Housing these men on a floor filled with immunocompromised cancer patients is extremely dangerous.81 • Based on the number of confirmed COVID-19 cases at Butner, a significant number of the men housed there have been in close contact with others who have tested positive for the virus.82 • Of the 15 Petitioners and declarants in contact with someone who tested positive, none stated that they were put in quarantine.83 Instead of properly isolating those with COVID-19, incarcerated people and staff move frequently between units. Incarcerated people work in other parts of Butner and regularly interact with people housed
74 Beyrer Decl. at 22-23. 75 See Memorandum for All Chief Executive Officers: Coronavirus (COVID-19) Phase Six Action Plan,
Federal Bureau of Prisons (Apr. 13, 2020), https://prisonology.com/wpcontent/uploads/2020/04/COVID-19-Phase-6-Plan-2020-04-13.pdf (“Phase Six Action Plan”) (attached as Ex. 23 to Wilkerson Decl.) at 2-3. 76 See, e.g., Maldonado Decl. at 5. 77 See, e.g., id. 78 Id. 79 See, e.g., Ortiz Decl. at 1. 80 Id. 81 Goldenson Decl. at 7. 82 Id. 83 Ayers Decl. at 5; Dailey Decl. at 5; Hallinan Decl. at 5; Harrington Decl. at 4; Harris Decl. at 6; Hill Decl. at 5; Huntley Decl. at 5; Kinard Decl. at 4; Krokos Decl. at 6-7; Maldonado Decl. at 8; McRae Decl. at 4; Ortiz Decl. at 3; Riddick Decl. at 6; Declaration of Troy Aurelius Titus (“Titus Decl.”) (attached as Ex. 15 to Wilkerson Decl.) at 3; Declaration of William Robert Whyte (“Whyte Decl.”) (attached as Ex. 16 to Wilkerson Decl.) at 9-10.
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in other units—including the SHU (where people presumed to be sick with COVID-19 are housed), then return to their housing units each night.84 III. Butner’s Response to the Outbreak Is Patently Inadequate to Mitigate the Risk of Harm
“[I]n this pandemic . . . inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm.” Valentine v. Collier, -- U.S. --, 2020 WL 2497541, at *3 (May 14, 2020) (statement of Justice Sotomayor, joined by Justice Ginsburg). Because incarcerated people cannot take direct steps to decrease their risk of serious illness and death from COVID-19, they must rely on BOP to do so on their behalf. 85 Respondents know of their “profound obligation to protect the health and safety of all [incarcerated people]”86 and the risk to the people in custody.87 Yet their response is patently inadequate to safeguard the health and safety of those in their charge.88 Tragically, some practices at Butner that purportedly protect against the virus’ spread appear to have the opposite effect, including the lockdown protocol’s systemic impact on meals, laundry access, telephone and computer use.89 Respondents’ inadequate response poses an immediate threat to incarcerated persons’ lives, and reducing the Butner population is the only way to halt the serious ongoing and irreparable harm of COVID-19.90
A. Respondents are aware of the substantial risk to Petitioners Months into this pandemic, Respondents are well aware of the obvious and substantial risk of harm from COVID-19. In late March, Attorney General Barr, the head of the agency that includes the BOP, acknowledged that the BOP must “minimize the risk of COVID-19 to those in [BOP] custody,” and directed Respondent Carvajal to maximize the use of home confinement to “protect the health and safety of BOP
84 See, e.g., Ayers Decl. at 6; Dailey Decl. at 4-5. 85 See Declaration of Dan Pacholke (“Pacholke Decl.”) (attached as Ex. 19 to Wilkerson Decl.) at 2-3
(suggesting significant reduction in population at Butner). 86 Attorney General William Barr, Memorandum for Director of Bureau of Prisons, Office of the Attorney
General (Apr. 3, 2020), https://www.justice.gov/file/1266661/download (attached as Ex. 22 to Wilkerson Decl.) [hereinafter Barr April 3 Memo]. 87 Barr March 26 Memo. 88 See generally Beyrer Decl. 89 Id.; see also Ayers Decl. at 3-5 (explaining that it was “impossible” to do laundry during lockdown), Riddick Decl. at 2; Dailey Decl. at 3-4; Kinard Decl. at 2; Krokos Decl. at 4; Hill Decl. at 3. 90 Beyrer Decl. at 31-33; see also Pacholke Decl. at 5.
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personnel and the people in our custody,” noting that for some “home confinement might be more effective
in protecting their health.”91 After Congress passed the Coronavirus Aid, Relief, and Economic Security
(CARES) Act, Attorney General Barr found that “emergency conditions are materially affecting the
functioning” of BOP, noting the “significant levels of infection” at several BOP facilities.92 He directed
Respondent Carvajal to review immediately for potential home confinement all at-risk individuals, not just
those previously considered eligible.93
But even without those directives, Respondents knew the danger. According to BOP, as of May
27, 2020, BOP houses 136,610 incarcerated people and has a staff of about 36,000, for a total on-site
population of about 172,610.94 As of the same date, 5,043 incarcerated people and 600 BOP staff had at
some point tested positive for COVID-19, for a total of 5,643 known positive individuals.95 Based on BOP’s
own numbers, its infection rate as a percent of the total on-site population is about 3.2 percent. That rate is
more than six times the current infection rate in the rest of the United States.96 And 64 people held in BOP
facilities have died from COVID-19 so far, including ten at Butner.97 As of May 27, 2020, Butner is tied
for the highest number of COVID-19 deaths across all BOP facilities, and is among the top five federal
prisons for number of confirmed cases (over 440).98
91 See Barr March 26 Memo. 92 Id. 93 Id. 94 COVID-19 Coronavirus: COVID-19 Cases, Federal Bureau of Prisons,
https://www.bop.gov/coronavirus/ (last visited May 25, 2020). 95 Id. 96 As of May 25, 2020, total U.S. population is about 329,707,516. U.S. and World Population Clock,
United States Census Bureau, https://www.census.gov/popclock/ (last visited May 27, 2020, 6:39 p.m.). As of May 25, 2020, there were around 1,695,776 confirmed COVID-19 infections in the United States. COVID-19 Dashboard by the Centers for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU), Johns Hopkins University: Coronavirus Resource Center, https://coronavirus.jhu.edu/map.html (last visited May 25, 2020, 6:40 p.m.). Total infections divided by total population yields about 0.0051 or 0.51 percent. 97 COVID-19 Coronavirus: COVID-19 Cases, Federal Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited May 25, 2020). 98 Id. The number of people with COVID-19 at Butner is likely much higher than the confirmed numbers reflect. Respondent Carvajal confirmed that BOP performed testing on 2,700 mostly asymptomatic individuals residing in some of the worst-affected federal prisons, and an astonishing 70 percent of them tested positive. That testing does not appear to include the men at Butner. See, e.g., Director M.D. Carvajal Addresses All Staff: COVID-19 Video Update Number 6: April 29, 2020, Federal Bureau of
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B. People are falling seriously ill and dying at Butner because Respondents’ actions have been patently inadequate
Despite ten deaths and a large outbreak of a deadly disease, Respondents have taken only minimal steps to protect the medically vulnerable men at Butner from COVID-19.99 In addition to the raw numbers, dire reports from inside Butner confirm that Respondents’ efforts to protect incarcerated people from COVID-19 are ineffective at best and deadly at worst.
As discussed in this brief, Respondents’ grossly inadequate efforts expose Petitioners to inevitable COVID-19 infection and all that it entails. Attorney General Barr directed Respondents—nearly two months ago—to take immediate and aggressive steps to transfer people to home confinement, recognizing that “time is of the essence.”100 So too, public health experts urge rapid release from custody of those most vulnerable to COVID-19.101 Respondents have failed to use their available statutory authority to reduce the population of Butner with sufficient speed or in sufficient volume to mitigate the severe risk posed by COVID-19. Since Attorney General Barr’s first memo, Respondents Carvajal and Allen have transferred, on average, only one person per facility every other day to home confinement.102 Very few have been transferred from Butner.103 For example, Petitioner John Dailey, who has terminal cancer, was approved for transfer from Butner on April 23 or 24 because of the high risk he faces from COVID-19.104 He has since been informed that he will be not be transferred out of Butner until August—three months from
Prisons (April 22, 2020), https://www.bop.gov/resources/news/20200429_dir_message.jsp; COVID-19 Video Update Number 7: May 6, 2020, https://www.youtube.com/watch?v=wxdS2FKjAUw. 99 Beyrer Decl. at 28-32. 100 Barr April 3 Memo. 101 See, e.g., Josiah Rich, Scott Allen, and Mavis Nimoh, We must release prisoners to lessen the spread of coronavirus, Washington Post (March 17, 2020), https://wapo.st/2JDVq7Y; See also Goldenson Decl. at 7-8; Beyrer Decl. at 32-33. 102 Director M.D. Carvajal Addresses All Staff: COVID-19 Video Update Number 5: April 22, 2020, Federal Bureau of Prisons (April 22, 2020), https://www.bop.gov/resources/news/20200422_ dir_message.jsp; COVID-19 Cases. 103 See, e.g., Ayers Decl. at 4; Hallinan Decl. at 5; Hill Decl. at 5; McRae Decl. at 4; Riddick Decl. at 6; Titus Decl. at 5; see also Beyrer Decl. at 32. 104 Dailey Decl. at 5.
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now.105 Respondents also continue to oppose motions for compassionate release.106 For example, they
opposed motions by Declarants Huntley and Krokos, which courts nevertheless granted.107 On May 19,
another court ordered the release of a person whose motion for compassionate release Respondents
opposed.108 Each of the members of the Medically Vulnerable Subclass is at increased risk from COVID-
19, either because of age, underlying medical condition, or both.109 Respondents’ opposition to the release
of medically vulnerable people exhibits deliberate indifference in violation of the Eighth Amendment.
Respondents also have failed to adjust conditions to permit physical distancing at Butner. Because
Respondents have not released people, incarcerated people cannot maintain the recommended six feet of
distance from others.110 People sleep within a few feet of multiple other people.111 They wait in close-
packed lines multiple times a day to receive meals, medicines, and other items.112 They are close to others
when they use, or wait for, bathrooms, phones and computers.113 Respondents’ failure to take even
elementary steps to implement physical distancing constitutes deliberate indifference.
105 Id. 106 See, e.g., Ayers Decl. at 1-2, 6-7; Goodwin Decl. at 1-3; Harrington Decl. at 1, 4; Hill Decl. at 1-2, 4-5;
Maldonado Decl. at 1, 3-4, 7-8; Huntley Decl. at 4; Krokos Decl. at 1, 7. 107 Huntley Decl. at 4; Krokos Decl. at 1, 7. 108 Opinion and Order Granting Defendant Wesam El-Hanafi’s Motion for Compassionate Release, United
States v. El-Hanafi, No. 1:10-cr-00162-KMW (S.D.N.Y. May 19, 2020), ECF No. 252 (attached as Ex. 33). 109 See Hallinan Decl. at 1-2 (79 years old, bladder cancer and prostate cancer in remission, hyptertension, cardiovascular disease, and an autoimmune disorder (celiac)); Dailey Decl. at 1 (62 years old, suffers from an aggressive and terminal case of non-Hodgkins lymphoma); Hill Decl. at 1-2 (68 years old, hypertension and cardiovascular disease, which required triple bypass surgery in 2019, spinal cord injury causing confinement to wheelchair, diabetes); McRae Decl. at 1 (43 years old, hypertension, blood clots in lungs and limbs, severe obesity); Ayers Decl. at 1-2 (37 years old, pernicious anemia, autoimmune disorder); Riddick Decl. at 1 (52 years old, in remission from lymphoma, diabetes, high cholesterol, childhood arthritis, severe obesity); Maldonado Decl. at 1-4 (52 years old, kidney disease leading to two prior transplants, kidney function currently in decline, must take immune-suppressing medication, malignant hypertension, tachychardia). Plaintiff Anthony Butler suffers from diabetes, Hepatitis B, and a heart murmur that causes him shortness of breath. See Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 and Class Action Complaint for Injunctive and Declaratory Relief, Dkt. No. 1. 110 See Beyrer Decl. at 4, 7; Goldenson Decl. at 2, 6. 111 See, e.g., Ayers Decl. at 2; Hallinan Decl. at 2; McRae Decl. at 2; Hill Decl. at 2; Dailey Decl. at 3. 112 See, e.g., Krokos Decl. at 5; Hallinan Decl. at 3; Hill Decl. at 3. Dailey Decl. at 3; McRae Decl. at 2. 113 See, e.g., Hill Decl. at 3; Kinard Decl. at 2; McRae Decl. at 2.
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Respondents’ testing process is also inadequate. As of May 8, 2020, just 459 COVID-19 tests had been administered to incarcerated people at Butner, out of approximately 4,550 people.114 Approximately 318 tested positive.115 Respondents do not test Butner staff; instead, they rely on “self-reporting and temperature checks.”116 As of May 22, BOP reported 44 Butner staff had tested positive for COVID-19.117
Even when Respondents do conduct tests, they fail to conduct them in a manner that would limit the virus’s spread.118 After conducting testing in one housing unit, Respondents did not move some people who tested positive out of the unit until five days after receiving the test results.119 During that time, those who tested positive were not quarantined or isolated, and they shared the same bathrooms and other areas with those who had tested negative.120 When testing is not conducted, Respondents only sporadically check temperatures.121 Other times, a person with symptoms of COVID-19 must request sick call to get his temperature taken.122 Respondents have not waived the co-pay for sick call.123 Without widespread testing and tracing, it is impossible to know COVID’s reach at Butner; Respondents’ failure to ascertain this critical information constitutes deliberate indifference to the people incarcerated there.
Butner’s quarantine practices are also unsafe and ineffective.124 For example, Respondents placed some people transferring into Butner in “quarantine” on a floor with cancer patients,125 putting the cancer patients at extreme risk.126 One housing unit was emptied to serve as a quarantine area for people slated
114 Gov’t Opp. to Mtn. Compassionate Release, United States v. El-Hanafi, No. 1:10-cr-00162-KMW (S.D.N.Y. May 13, 2020) ECF No. 247 (attached as Ex. 31 to Wilkerson Decl.).
115 Id. 116 See BOP Implementing Modified Operations, Federal Bureau of Prisons
https://www.bop.gov/coronavirus/covid19_status.jsp (last visited May 22, 2020). 117 COVID-19 Coronavirus: COVID-19 Cases, Federal Bureau of Prisons,
https://www.bop.gov/coronavirus/ (last visited May 25, 2020). 118 Beyrer Decl. at 18–20. 119 See Maldonado Decl. at 7. 120 Id. 121 See, e.g., Dailey Decl. at 4; Hallinan Decl. at 4; Krokos Decl. at 6; Goodwin Decl. at 7; Beyrer Decl. at
19. 122 See, e.g., Dailey Decl. at 4; Krokos Decl. at 5; Hallinan Decl. at 4-5. 123 Id.; see also Hill Decl. at 4; McRae Decl. at 3; Riddick Decl. at 5. 124 See Beyrer Decl. at 23-24; Goldenson Decl. at 7. 125 See, e.g., Ortiz Decl. at 1. 126 Goldenson Decl. at 7.
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for release.127 But this arrangement meant that the people who had been housed there were transferred to other units, which led to significant crowding in those units, thereby making physical distancing even more difficult.128 Butner set up a quarantine area; however, men in the quarantine unit shared a bathroom with a non-quarantined housing unit.129 An orderly from the non-quarantined housing unit cleans the bathroom after the quarantined men use it, then returns to the non-quarantined housing unit.130
Respondents’ decision to have staff and incarcerated people move between units and interact with people in different housing units increases the likelihood that the virus will spread. For example, incarcerated people go to work in their jobs at UNICOR and in the kitchen, where they interact with people from other housing units.131 On about May 13, two kitchen workers had fevers and were taken from the kitchen to the SHU.132 Some incarcerated people are required to clean the areas used by people believed to have COVID-19; they then return to their own housing units.133
In sum, conditions at Butner remain largely the same as they were before the outbreak: housing remains cramped and crowded, men must line up for meals and medications, bathrooms and common areas are shared, hygiene products are limited, and people move between units. The disparity between infection rates and deaths outside and inside Butner makes clear that Respondents’ minimal efforts simply are not working. Instead, more incarcerated persons fall ill with COVID-19, and the death toll rises. Although conditions cannot be corrected fully to prevent the existing illnesses—nor save those who have already met an untimely and tragic death—this Court can, and should, step in now to prevent more tragedy.
LEGAL STANDARD To obtain a TRO or preliminary injunction, a plaintiff must establish “1) that it is likely to succeed on the merits; 2) that it is likely to suffer irreparable harm in the absence of preliminary relief; 3) that the
127 See Goodwin Decl. at 3. 128 See id. at 3-4. 129 See Maldonado Decl. at 5. 130 Id. 131 See, e.g., Ayers Decl. at 6; Hill Decl. at 4; Krokos Decl. at 6; McRae Decl. at 3. 132 Hallinan Decl. at 4. 133 See e.g., Dailey Decl. at 5; Maldonado Decl. at 5; Whyte Decl. at 8.
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balance of equities tips in his favor; and 4) that an injunction is in the public interest.” Native Angels Home

Health, Inc. v. Burwell, No. 5:15-CV-234-FL, 2015 WL 12910710, at *2 (E.D.N.C. June 4, 2015) (citation

omitted). A court may issue a TRO without awaiting a response if it finds “immediate and irreparable

injury … will result to the movant before the adverse party can be heard in opposition.” Fed R. Civ. P.

65(b)(1). Once a plaintiff shows entitlement to preliminary relief, courts have broad power to fashion

equitable remedies to address constitutional violations in prisons. Hutto v. Finney, 437 U.S. 678, 687 n.9

(1978). Courts “must not shrink from their obligation to enforce the constitutional rights of all persons,

including prisoners [and] . . . may not allow constitutional violations to continue simply because a remedy

would involve intrusion into the realm of prison administration.” Brown v. Plata, 563 U.S. 493, 511 (2011).

ARGUMENT

I.

Petitioners Are Likely to Succeed on the Merits of Their Claim

Petitioners are likely to show that confining the Medically Vulnerable Subclass at Butner places

them at substantial risk of harm from COVID-19, violating their Eighth Amendment rights. Prison officials

are required to provide for reasonable safety of incarcerated persons and address their serious medical

needs. Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970 (1994); Scinto v. Stansberry, 841 F.3d 219,

225 (4th Cir. 2016). Prison officials must provide incarcerated persons with “humane conditions of

confinement,” including “adequate food, clothing, shelter, and medical care,” and they must “take

reasonable measures to guarantee the safety of the [incarcerated people].” Farmer, 511 U.S. at 832 (internal

quotation marks omitted). They must address the serious medical needs of incarcerated persons, even where

the risk of harm is far less immediate or certain than is the case here. See, e.g., Helling v. McKinney, 509

U.S. 25, 33-34 (1993) (nonsmoking incarcerated person stated Eighth Amendment claim for relief because

of exposure to environmental tobacco smoke); Putney v. Likin, 656 F. App’x 632, 637 (4th Cir. 2016)

(remanding case in which the court “erred by ignoring the risk of harm posed by depriving someone of a

mattress for over four months”) (emphasis in original).

Prison officials violate the Eighth Amendment when they show “deliberate indifference” to a

substantial risk of serious harm. Scinto, 841 F.3d at 225 (finding inference of deliberate indifference where

17

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prison officials denied plaintiff insulin and failed to provide aid in an alleged medical emergency); Cox v. Quinn, 828 F.3d 227, 236 (4th Cir. 2016). A prison official acts with deliberate indifference when he “kn[ows] of and disregard[s] an excessive risk to [an incarcerated person’s] health or safety.” Scinto, 841 F.3d at 225. A court may conclude that a prison official knows of a substantial risk if, as here, the risk is obvious. Id. at 226.
The deliberate indifference standard is met when prison officials “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” even absent current symptoms. Helling, 509 U.S. at 33–34; Oldham v. Beck, 75 F. App’x 122, 125 (4th Cir. 2003) (lower court prematurely dismissed claims where exposure to tobacco smoke “caused [the plaintiff] various serious health problems and also caused existing health problems to worsen at an accelerated rate”). “That the Eighth Amendment protects against future harm to [incarcerated people] is not a novel proposition,” and prison officials “may [not] be deliberately indifferent to the exposure of [incarcerated people] to a serious, communicable disease.” Helling, 509 U.S. at 33–34.
Here, Petitioners will be able to establish a substantial risk of serious harm to which Respondents have been, and continue to be, deliberately indifferent.
A. Petitioners face a substantial risk of serious harm from COVID-19, which is both highly contagious and deadly
As set forth supra in Section I, COVID-19 is a highly contagious and deadly disease, particularly for members of the Medically Vulnerable Subclass. Because of their confinement at Butner in the midst of an active, poorly managed outbreak of a highly contagious, incurable, and deadly disease, Petitioners face substantial risk of serious harm. They are housed in close quarters and forced to eat, bathe, and perform all daily life activities in a communal setting where they cannot adequately distance from others or protect themselves from this dangerous disease.134 Incarcerated people and staff at Butner travel between different parts of the compound—including areas intended to isolate ill patients—potentially bringing the lethal virus
134 See, e.g., Ayers Decl. at 2-3; Dailey Decl. at 2. 18
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with them.135 Petitioners are forced to line up in tightly packed lines multiple times per day to receive food and medications.136 If a person exhibits symptoms of COVID-19, he is not removed from the housing unit he shares with scores of other people unless he requests a “sick call,” pays the co-pay, and has a high enough temperature,137 even though a high temperature is only one potential symptom of COVID-19. Even then, any treatment (if he receives it at all) is tragically delayed and insufficient.138
The situation of one particular individual at Butner is instructive. Charles Hallinan is 79 years old. He has hypertension, cardiovascular disease, severe and chronic celiac disease, and he has had bladder cancer and prostate cancer. He sleeps each night within six feet of five other men. His ill health makes Mr. Hallinan more susceptible to serious illness if he contracts the virus.139 Just like Mr. Hallinan, other members of the Medically Vulnerable Subclass are at a particularly high risk of suffering serious illness or death from COVID-19.140
B. Respondents are aware of the risks but have not taken reasonable steps to mitigate them Respondents know of and have disregarded the risk facing Petitioners. As discussed above, they have been directly informed of the risk by the head of the agency for which they work, Attorney General Barr.141 Respondent Carvajal, the highest official in the BOP, has acknowledged the risk. And ten men are dead from COVID-19 at Butner. Indeed, as one court recently noted, “the danger COVID-19 poses to the [detainees] and in particular to the Medically-Vulnerable [detainees] is practically common knowledge.” Cameron v. Bouchard, No. CV 20-10949, --- F.Supp.3d ----, 2020 WL 2569868, at *21 (E.D. Mich. May
135 See, e.g., Ayers Decl. at 4; Dailey Decl. at 4-5; Harris Decl. at 5-6; McRae Decl. at 3. 136 See, e.g., Dailey Decl. at 3; Harris Decl. at 2; McRae Decl. at 2; Maldonado Decl. at 2. 137 See Ayers Decl. at 4; Dailey Decl. at 4; Harris Decl. at 2. 138 Maldonado Decl. at 3-4. 139 See Hallinan Decl. at 1-2. 140 Beyrer Decl. at 28-32; Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in
Correctional and Detention Facilities, Centers for Disease Control and Prevention (attached as Ex. 30 to Wilkerson Decl.), https://www.cdc.gov/coronavirus/2019-ncov/downloads/guidance-correctionaldetention.pdf (Mar. 23, 2020); People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last visited May 25, 2020). 141 Barr April 3 Memo.
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21, 2020), on reconsideration 2020 WL 2615740 (E.D. Mich. May 22, 2020), stay denied, No. 20-1469 (6th Cir. May 26, 2020).
Further acknowledging the risk, Respondents have taken minimal actions, such as “locking down” the facility.142 But these actions are so inadequate in the face of the risk facing the men at Butner that they constitute deliberate indifference to the Petitioners’ and the Class’s health and safety. The mere fact that prison officials have taken some action does not foreclose a finding of deliberate indifference. See De’lonta v. Johnson, 708 F.3d 520, 526 (4th Cir. 2013) (“just because [prison officials] have provided De’lonta with some treatment consistent with the GID Standards of Care, it does not follow that they have necessarily provided her with constitutionally adequate treatment”) (emphasis in original); see also Cameron, 2020 WL 2569868, at *22–25 (finding detainees likely to succeed on the merits of their challenge to jail officials’ COVID-19 response, although officials had carried out testing, reduced the jail population, and released some medically vulnerable detainees).
Despite Attorney General Barr’s directives, Respondents have failed to release more than a tiny handful of the many medically vulnerable prisoners at Butner.143 For people who are medically vulnerable, “home confinement or early release is the only reasonable response to this unprecedented and deadly pandemic.” Cameron, 2020 WL 2569868, at *24. The conditions at Butner have not been altered “to any extent that would make it safe enough to protect the Medically-Vulnerable Subclass from the potentially lethal combination of their unique vulnerabilities and COVID-19’s health-shattering consequences.” Id. at 24 (“[a]ny response other than release or home confinement constitutes deliberate indifference”).
Like the defendants in Cameron, Respondents here, despite having been given “authority to take action to release medically-vulnerable inmates” and exhorted by the Attorney General to do so, “are exercising their authority at a pace that disregards the seriousness of the risk faced by medically-vulnerable
142 See supra at 12–13. 143 See, e.g., Amanda Lamb, Former Inmate Says Butner Officials “Slow-Rolling” Prisoner Releases
During Pandemic, posted Apr. 14, 2020 7:49 PM updated Apr. 14, 2020 8:40 PM, https://www.wral.com/coronavirus/former-inmate-says-butner-officials-slow-rolling-prisoner-releasesduring-pandemic/19056209/
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inmates.” Id. at * 24. Such failure to act meaningfully in the face of an unprecedented pandemic is deliberate indifference that leaves Petitioners—and particularly the Medically Vulnerable Subclass—at imminent risk of serious harm, and even death. Martinez-Brooks v. Easter, No. 3:20-CV-00569 (MPS), 2020 WL 2405350, at *23 (D. Conn. May 12, 2020) (“Under the circumstances of the present crisis, the [FCI Danbury] Warden’s failure to make prompter, broader use of this authority [to transfer BOP prisoners to home confinement] to protect the lives of vulnerable inmates is likely to constitute deliberate indifference.”). Indeed, in Martinez-Brooks, the court found that, even if it accepted the defendants’ account that the prison had implemented effective “screening, testing, quarantining, isolation of COVID19 positive inmates, enhanced sanitation, and widespread use of personal protective equipment,” by itself, defendants’ “inadequate implementation of the home confinement authority in the CARES Act constitutes ‘deliberate indifference’ under the Eighth Amendment.” Id.
Beyond failing to release medically vulnerable people from Butner, Respondents have failed to take other necessary measures. They have failed to take steps to enable the men in their custody to maintain a six-foot distance between them. In Cameron, in response to the defendants’ justification of their housing practices, the court found that a jail’s actions that would make social distancing possible in multi-person cells only “if inmates remain in the same positions on opposite corners of the cell” could support a finding of deliberate indifference. Cameron, 2020 WL 2569868, at *23. Here, for the men in the cubicles, even the absurdity proposed by the defendants in Cameron would not enable them to maintain a six-foot distance from others: If all the men stayed in their corners in the cubicles, they would be within a couple of feet of someone in an adjacent cubicle.144 Respondents have done nothing to enable the men to socially distance in their sleeping arrangements. This failure alone demonstrates deliberate indifference. Cameron, 2020 WL 2569868, at *23; Wilson v. Williams, 2020 WL 1940882, at *3 (N.D. Ohio Apr. 22, 2020), stay denied, No. 20-3447 (6th Cir. Apr. 27, 2020), stay denied, 590 U.S. --- (May 26, 2020); Coreas v. Bounds, No. CV TDC-20-0780, 2020 WL 1663133, at *10 (D. Md. Apr. 3, 2020) (finding that housing detainees in close
144 See Dailey Decl. at 2. 21
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quarters, in dormitory-like facilities that hold up to 32 people or two-person cells, could support finding of deliberate indifference during COVID-19 outbreak).
Respondents have also failed to conduct widespread testing of the Butner population, despite evidence of a large and growing outbreak.145 Rather, they assume, without testing, that a person does not have COVID-19 if his temperature is not sufficiently high (or if the person does not have his temperature taken).146 Without testing, there is no way to know how many people at Butner have the virus. The failure to test supports a finding of deliberate indifference. Wilson, 2020 WL 1940882, at *2, 8; see also Coreas v. Bounds, No. CV TDC-20-0780, 2020 WL 2292747, at *4 (D. Md. May 7, 2020).
Respondents have failed to institute quarantine and isolation practices that actually serve to keep infected or potentially infected people away from people who are not infected.147 This places Petitioners and class members at risk and demonstrates deliberate indifference to that risk. Cameron, 2020 WL 2569868, at *23. Further, Respondents have not addressed the risk of shared toilets, sinks, showers, and other communal spaces and items that are not disinfected between each use.148 Their lockdown protocol made it “impossible” for incarcerated people to clean their bedding.149 And they are not enforcing the use of masks by prison staff.150 These failings, too, support a finding of deliberate indifference to the risk faced by the Petitioners and the Class. Cameron, 2020 WL 2569868, at *22.
Respondents’ failure to take adequate measures in the face of the deadly virus coursing through Butner is a paradigmatic case of deliberate indifference.151
145 See Dailey Decl. at 4 (“There has been no widespread testing for coronavirus in my housing unit.”); Hill Decl. at 4 (same); Ayers Decl. at 4. (same); McRae Decl. at 3 (“I don’t know of a single person in my housing unit who has been tested for the coronavirus.”).
146 See Ayers Decl. at 4; Hill Decl. at 4; See McRae Decl. at 3; Riddick Decl. at 5. 147 See Ortiz Decl. at 1; Maldonado Decl. at 5, 7; Goodwin Decl. at 3–4, 5–6. 148 See Dailey Decl. at 3; Ayers Decl. at 3; Hill Decl. at 3; McRae Decl. at 2–3; Riddick Decl. at 4. 149 See Ayers Decl. at 4; Krokos Decl. at 4. 150 See Goodwin Decl. at 7; Kinard Decl. at 2; Krokos Decl. at 5. 151 In addition to the cases already cited, other federal courts across the country have granted TROs or
preliminary injunctions on behalf of vulnerable individuals in custody who are at heightened risk for COVID-19. See, e.g., Cristian A.R. v. Decker, 2020 WL 2092616, at *4 (D.N.J. Apr. 12, 2020); Bent v. Barr, 2020 WL 1812850, at *1 (N.D. Cal. Apr. 9, 2020); Thakker v. Doll, 2020 WL 1671563 (M.D. Pa. Mar. 31, 2020); Coronel v. Decker, 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020); Basank v. Decker,
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II. Petitioners Face Irreparable Harm if They Remain Confined at Butner Petitioners are already suffering irreparable harm. As discussed above, they are being subjected to
a substantial risk of serious harm through the deliberate indifference of Respondents in violation of the Eighth Amendment. “As a general rule, ‘the denial of a constitutional right ... constitutes irreparable harm for purposes of equitable jurisdiction.’” Porter v. Clarke, 290 F. Supp. 3d 518, 533 (E.D. Va. 2018), aff’d, 923 F.3d 348 (4th Cir. 2019), as amended (May 6, 2019). The deprivation of constitutional rights “‘for even minimal periods of time’ constitutes irreparable injury.” Condon v. Haley, 21 F. Supp. 3d 572, 588 (D.S.C. 2014) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).
Petitioners also face the concrete (and irreparable) harm of contracting COVID-19 and the suffering, permanent injury, and death that may ensue. Ten men at Butner with pre-existing medical conditions—men who would have been part of the Medically Vulnerable Subclass had they lived—have died already.152 Failure to act now will result in additional serious illness and death.153
As the court in Wilson recognized, “[w]hile not every inmate who contracts the virus will die, the subclass members are at a much greater risk of doing so. They have a very serious medical need to be protected from the virus.” Wilson v. Williams, 2020 WL 1940882, at *3. Even for the healthy and young men in the Class, some will require hospitalization and some will die. The harm is irreparable and can be prevented only with a restraining order, preliminary injunction, or writ of habeas corpus from this Court. III. Release Would Serve the Public Interest
The current conditions at Butner violate the Eighth Amendment. The public interest is served by preventing the continuing violation of Petitioners’ and the Class’s constitutional rights. Beck v. Hurwitz, 380 F. Supp. 3d 479, 484–85 (M.D.N.C. 2019) (noting public interest in “upholding the constitutional rights of incarcerated persons to receive adequate and essential medical care while in prison”).
2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020); Banks v. Booth, 2020 WL 1914896 (D.D.C. April 19, 2020); Coreas v. Bounds, 2020 WL 2201850, at *3 (D. Md. Apr. 30, 2020). 152 See, e.g., Press Release, Inmate Death at FCI Butner I (Apr. 12, 2020), https://www.bop.gov/ resources/news/pdfs/20200412_press_release_inmate_death_but_covid19.pdf. 153 See Goldenson Decl. at 7-8; Beyrer Decl. 32-33.
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The public interest in minimizing the spread of COVID-19 is impossible to overstate. Respondents have demonstrated that they are unable to manage the spread of COVID-19 without reducing the population at Butner. Petitioners and other members of the class and subclass cannot physically distance from other people. They cannot quarantine or isolate themselves effectively if they have been exposed to or contracted COVID-19. And even with proper hygiene supplies and protective equipment, the virus will continue to spread so long as the men at Butner cannot physically distance themselves.
Apart from protecting Petitioners and the class, release would mitigate against an even larger crisis outside the complex walls than already exists. It is statistically inevitable that COVID-19 will spread from Butner to the larger community.154 Fourty-four staff members at Butner have tested positive and are carrying the virus home and into communities outside the prison’s walls. “[A] COVID-19 outbreak at a detention facility could quickly overwhelm” not only the facility’s medical system, but “surrounding community hospitals” as well. Coronel, 2020 WL 1487274, at *7. The resulting effect on “public health and safety” would harm the public interest. Id. The spread of COVID-19 “endangers the staff’s families who come into contact with [the prison]’s undoubtedly exposed staff.” See Wilson, 2020 WL 1940882, at *3. By contrast, the Medically Vulnerable Subclass members are an easily identifiable and traceable group who could effectively quarantine for 14 days upon release, and would have no need to travel to jobs during that time. Public interest is served by release. IV. The Balance of Equities Tips Heavily in Petitioners’ Favor
The most equitable result here is to immediately consider release of the Medically Vulnerable Subclass and put protocols in place to protect the remaining incarcerated individuals. Any argument that release of the Medically Vulnerable Subclass as a whole presents a danger to public safety is groundless, and in any event cannot overcome the very real, immediate harm to both Petitioners and the public if the outbreak reaches beyond prison walls. See Prieto Refunjol v. Adducci, No. 2:20-CV-2099, 2020 WL 2487119, at *28 (S.D. Ohio May 14, 2020) (“Petitioners have also put forward persuasive evidence that the
154 See Goldenson Decl. 7-8; Beyrer Decl. at 14-17. 24
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current large cluster of positive [COVID-19] cases at Morrow creates a larger threat to public health than does releasing some or all of these detainees from custody.”). Any asserted threat to public safety is diminished under current conditions and far outweighed by the harms of continued detention in a prison racked by COVID-19, including potential death. Cf. Thakker, 2020 WL 1671563, at *9 (holding balance of equities favors releasing detainees because of COVID-19 in part because failure to appear already carries grave consequences and travel is currently restricted). The Medically Vulnerable Subclass is made up of individuals who are older and seriously ill. Butner houses nearly 1,500 men who are considered minimum or low security; the remainder are only medium security.155 Most fundamentally, “public safety” considerations must include not only the hypothetical risk of re-offense by released persons, but also the very real risk posed by a disease that has killed more than 100,000 Americans in a matter of weeks. On balance, the equities favor the Medically Vulnerable Subclass’s release to home confinement or other appropriate placement as compared with remaining in a facility where they are at extreme risk of harm and have insufficient medical care. V. This Court Has Authority to Grant Release
A court may order the release of incarcerated persons, including the Medically Vulnerable Subclass here, when a person is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (“[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody.”); Peyton v. Rowe, 391 U.S. 54, 67 (1968) (§ 2241(c)(3) can afford immediate release for claims other than those challenging the sentence itself).
Section 2241 is an appropriate basis for persons in federal custody to seek release from confinement because COVID-19 poses a risk that is too great to be countenanced under the Constitution. Martinez-
155 Nearly half the Butner population is in the low security facility or minimum security Camp, and the highest security level at Butner is medium security. There is no maximum security section at Butner. See Population Statistics: Inmate Population Breakdown, Federal Bureau of Prisons, https://www.bop.gov/mobile/about/population_statistics.jsp (last updated May 21, 2020) (showing populations for Butner Low (1,201), Butner Medium I (656), Butner Medium II (1,461), and FMC Butner (909)). 25
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Brooks v. Easter, 2020 WL 2405350, at *13-14 (finding that § 2241 was appropriate basis to order transfer from BOP facility to home confinement due to spread of COVID-19 in the facility); United States v. Taylor, No. 3:18-cr-282, 2020 WL 2084974, at *5 (M.D. Pa. Apr. 30, 2020) (“[E]mergency petitions for release, based on COVID19 are properly construed pursuant to 28 U.S.C. § 2241.”); see also Coreas, 2020 WL 1663133, at *7 (noting that “although the grounds on which they seek release relate to their conditions of confinement, Petitioners seek complete release from confinement, which is “the heart of habeas corpus.”); Cordaro v. Finley, No. 3:10-CR-75, 2020 WL 2084960, at *2 (M.D. Pa. Apr. 30, 2020); Basank, 2020 WL 1481503, at *4.
The Court need not wait until finally deciding the merits to order release. Instead, “[d]istrict courts have inherent authority to grant enlargement to a defendant pending a ruling on the merits of that defendant’s habeas petition.” Wilson, 2020 WL 1940882, at *4 (finding “the exceptional circumstances at [FCI] Elkton and the Petitioners’ substantial claims, that are likely to succeed at the merits stage, necessitate the exercise of that authority and that such relief is proper for members of the [medically-vulnerable] subclass” and granting preliminary injunction seeking the release of the subclass). As in Wilson, this Court should exercise its inherent enlargement authority to grant preliminary injunctive relief to the subclass in the form of release.
Nor does the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626, bar this Court from granting release. Petitioners seek a writ of habeas corpus based on Respondents’ inability to provide constitutional conditions of confinement absent a significant reduction in the Butner population, and they seek preliminary injunctive relief. The PLRA does not extend to habeas proceedings challenging the fact of confinement in prison. 18 U.S.C. § 3626(g)(2); Wilson, 2020 WL 1940882, at *10; Martinez-Brooks, 2020 WL 2405350, at *16; Baez v. Moniz, No. CV 20-10753-LTS, 2020 WL 2527865, at *2 (D. Mass. May 18, 2020).
Even if the Court were to conclude that Section 2241 does not afford the relief requested, the Court has the inherent authority to order the release of prisoners when necessary to cure an ongoing constitutional violation. See Brown v. Plata, 563 U.S. 493, 502 (2011) (affirming prisoner release order when necessary
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to cure ongoing denial of adequate medical and mental health care); see also Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015) (recognizing federal courts’ inherent equitable authority to order injunctive and declaratory relief to remedy violations of the Constitution by federal actors); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (“Injunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally.”). Moreover, the PLRA provisions regarding prisoner release orders (18 U.S.C. § 3626(a)(3)) do not prevent this court from granting relief. Petitioners seek discharge of incarcerated persons from the physical confines of Butner, not necessarily release from custody.156 Release options may include, for example, enlargement of custody to home confinement, or to another facility, hospital, or halfway house.157 Such relief is not a “prisoner release order” as defined by the PLRA; the incarcerated people would remain in BOP custody, but their confinement would be enlarged to enable Respondents to meet their constitutional obligations. Wilson, 2020 WL 1940882, at *10. Moreover, the PLRA release provisions do not prevent a court from ordering transfer of incarcerated people out of a prison to correct the violation of a constitutional right where crowding is not the primary cause of the violation. Cameron, 2020 WL 2569868, at *27; see also Plata v. Brown, 427 F. Supp. 3d 1211, 122224 (N.D. Cal. 2013); Reaves v. Dep’t of Corr., 404 F. Supp. 3d 520, 522-24 (D. Mass. 2019). As explained in Cameron:
[T]here are obvious scenarios, unrelated to crowding, where the transfer of prisoners would be necessary to protect their constitutional rights . . . And if a prison were in the path of rising flood waters, a tornado, or a highly contagious and deadly viral pandemic, which threatened cruel and unusual punishment to inmates if not released, and their jailors were not responding adequately to protect them from serious harm, surely a single judge should possess the authority to quickly remedy the situation rather than proceeding through the procedural requirements of § 3626(a)(3). 2020 WL 2569868, at *28 (emphasis added). Such is the case here. This Court can and should exercise its authority to remedy the constitutional violations by ordering Petitioners moved out of harm’s way.
156 See supra, at n.6. 157 Id.
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VI. Respondents Cannot Raise Failure to Exhaust to Avoid Responsibility for Violating Petitioners’ Rights Finally, Respondents cannot avoid the remedy by asserting a failure to exhaust. Petitioners seek a
writ of habeas corpus under 28 U.S.C. § 2241. The PLRA’s requirement for exhaustion of administrative remedies does not apply to habeas petitions. 18 U.S.C. § 3626(g)(2); Cameron, 2020 WL 2569868, at *14.
The exhaustion requirements for Section 2241 are judicially imposed rather than statutory and may be waived when exhaustion would be futile. See, e.g., Dunkley v. Hamidullah, No. 6:06-2139-JFA-WMC, 2007 WL 2572256, at *2 (D.S.C. Aug. 31, 2007); Boston v. Bauknecht, No. 6:07-0250-GRA-WMC, 2007 WL 3119482, at *2 (D.S.C. Oct. 22, 2007); see also Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 239 n.2 (3d Cir.2005). Here, exhaustion would be futile. The only administrative process in the BOP— the Administrative Remedy Program (“ARP”)—is useless for the purpose of seeking protection from the coronavirus. Even under normal circumstances, the ARP is a five-step process that takes five months (150 days) to complete. See 28 C.F.R. § 542. Waiting so long for a result is untenable given the immediate threat to Petitioners here. Under the statutory 150-day timeline, the ARP still would not be complete even if an incarcerated person at Butner had started it on the day the first COVID-19 case in the United States was reported (January 21, 2020).158 And despite these unprecedented times—and Attorney General Barr’s directives to release incarcerated persons to home confinement—Butner has informed incarcerated persons that grievances are “backlogged” and are taking even longer than usual.159 Further, even before the COVID19 outbreak and the development of the “backlog,” Respondents simply did not respond to ARP submissions.160 Any requirement for exhaustion under § 2241 must be waived.
Moreover, even if the Court concludes that this case is properly viewed as a civil matter, governed by the PLRA, there is no available administrative remedy to exhaust. Ross v. Blake, 136 S. Ct. 1850, 1853 (2016) (requiring exhaustion only of “available” remedies). Under the PLRA, “an inmate is required to
158 “Timeline: How coronavirus got started,” ABC News, https://abcnews.go.com/Health/timelinecoronavirus-started/story?id=69435165 (last visited May 11, 2020).
159 See, e.g., Hallinan Decl. at 5; Dailey Decl. at 5; Krokos Decl. at 7; Titus Decl. at 5. 160 Dailey Decl. at 5.
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exhaust those, but only those, grievance procedures that are capable of use to obtain some relief for the action complained of.” Ross, 136 S. Ct. at 1859. The ARP, as explained above, is not capable of use to obtain the relief required in this crisis: immediate release in the face of a fast-developing outbreak of a deadly disease. The ARP takes 150 days ordinarily and is currently backlogged. More people at Butner will be dead before anyone exhausts their administrative remedies. Such a grievance process “is ‘practically speaking, incapable of use’ for resolving COVID-19 grievances.” McPherson v. Lamont, No. 3:20CV534 (JBA), 2020 WL 2198279, at *10 (D. Conn. May 6, 2020), quoting Ross, 136 S. Ct. at 1859 (finding administrative remedies unavailable in the context of COVID-19 because a grievance could take up to 105 business days to resolve). Moreover, the ARP process at Butner is a dead end, and as such, is unavailable. Ross, 136 S. Ct. at 1859. Petitioner Dailey alone has submitted sixty ARP requests while at Butner; he has received responses to just six of them.161
Finally, despite the futility and unavailability of the ARP process, several of the Petitioners have, nonetheless, attempted to grieve Respondents’ failure to address the risk of harm to which they are currently being subjected.162
CONCLUSION The situation inside Butner is dire. Petitioners, many of whom are medically vulnerable, must not be forced to sit helpless, hoping that chance favors them while Respondents’ inaction and defective practices roll the dice with their lives. For the reasons explained above, as well as in Petitioner’s Petition and Complaint (Dkt. No. 1), this Court should issue a writ of habeas corpus, a temporary restraining order and/or preliminary injunction against Respondents Thomas Scarantino, Michael Carvajal, and Jeffery Allen: (1) ordering Respondents to identify, within one day, all people incarcerated at Butner who fit within the Medically Vulnerable Subclass;
161 Dailey Decl. at 5. 162 See, e.g., Ayers Decl. at 4; Hallinan Decl. at 5; Hill Decl. at 4–5.
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(2) appointing an expert to determine appropriate categories of release for each Subclass member

within 48 hours of entrance of the order or injunction (the “Expert List”);

(3) requiring release—without quarantining at Butner—of all persons identified as appropriate for

release within twenty-four (24) hours of creation of the Expert List; and

(4) ordering Respondents to prepare a COVID-19 mitigation plan to be submitted to the Court

within 48 hours and overseen by a qualified public health expert pursuant to Fed. R. Evid. 706, which

outlines:

i.

Immediate testing for all people incarcerated at Butner known to have been in close

proximity with anyone showing any symptoms or having tested positive for COVID-19;

ii.

Immediate medically sound quarantine for all people incarcerated at Butner known to have

been in close proximity to anyone showing symptoms or having tested positive for COVID-19;

iii. Immediate medically sound isolation for all people incarcerated at Butner showing any

symptoms or who have tested positive for COVID-19, in compliance with CDC guidelines;

iv. Appropriate medical treatment for incarcerated people exhibiting symptoms of COVID-

19, including the waiver of any sick call fees;

v.

Additional specific efforts to ensure no spread of COVID-19 from outside the quarantine

area to the quarantine area, including: (1) requiring staff who enter the quarantine area to wear masks;

(2) ensuring proper access to products/materials for proper hygiene; (3) ensuring individuals in the

quarantine area are able to comply with physical distancing guidelines; and (4) frequent disinfecting and

cleaning.

Petitioners request that the Court waive security for the TRO and/or preliminary injunction under

Federal Rule of Civil Procedure 65(c). See Hawkins v. Cohen, 327 F.R.D. 64, 88 (E.D.N.C. 2018), modified

on reconsideration, 2018 WL 6445416 (E.D.N.C. Dec. 10, 2018) (waiving bond requirement where

plaintiffs and class members were indigent public assistance recipients).

Respectfully submitted this 28th day of May, 2020.

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/s/ Jeffrey S. Wilkerson Jeffrey S. Wilkerson [N.C. State Bar No. 51209] Gretchen Scavo [N.C. State Bar No. 48589]* Elizabeth Ireland [N.C. State Bar No. 47059]* Patrick Doerr [N.C. State Bar No. 50673]* Ashley R. Anderson [N.C. State Bar No. 51741]† WINSTON & STRAWN LLP 300 South Tryon Street, 16th Floor Charlotte, NC 28202 Tel: (704) 350-7700 Fax: (704) 350-7800 jwilkerson@winston.com gscavo@winston.com eireland@winston.com pdoerr@winston.com aanderson@winston.com

Maria V. Morris [N.Y. Bar No. 4091435]** AMERICAN CIVIL LIBERTIES UNION 915 15th Street N.W., 7th Floor Washington, DC 20005 Tel: (202) 548-6607 mmorris@aclu.org
Sarah Hinger [N.Y. Bar No. 4823878] AMERICAN CIVIL LIBERTIES UNION 125 Broad St. New York, NY 10004 Tel.: (212) 519-7882 shinger@aclu.org

Jonathan M. Smith [D.C. Bar No. 396578]† Emily Gunston [D.C. Bar No. 1032056]† Lyndsay A. Niles [D.C. Bar No. 1003427]† WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS 700 14th Street NW, Suite 400 Washington, DC 20005 Tel: (202) 319-1000 Fax: (202) 319-1010 jonathan_smith@washlaw.org emily_gunston@washlaw.org lyndsay_niles@washlaw.org

Emily Seawell [N.C. Bar No. 50207] Jaclyn Maffetore [N.C. Bar No. 50849] Kristi Graunke [N.C. Bar No. 51216] AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION Post Office Box 28004 Raleigh, NC 27611 Tel: (919) 834-3466 Fax: (866) 511-1344 eseawell@acluofnc.org jmaffetore@acluofnc.org kgraunke@acluofnc.org

* Admission Forthcoming ** Admission to DC Bar Pending † Special Appearance Forthcoming

Counsel for Petitioners/Plaintiffs

31
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CERTIFICATE OF SERVICE I, Jeffrey S. Wilkerson, hereby certify that a true copy of the foregoing was served on Respondents/Defendants’ counsel of record with the Clerk of the Court via the CM/ECF Document Filing System. This 28th day of May, 2020.
/s/ Jeffrey S. Wilkerson __________ Winston & Strawn LLP 300 S. Tryon Street, 16th Floor Charlotte, NC 28202 (704) 350-7700 Counsel for Plaintiffs/Petitioners
32
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 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION NO. 5:20-HC-2088-FL

CHARLES HALLINAN, JOSEAN

)

KINARD, ARNOLD J. HILL,

)

BENJAMIN D. McRAE, JOHN DAILEY, )

LEE M. AYERS, GEORGE B. RIDDICK, )

JORGE LUIS MALDONADO, ANTWAN )

HARRIS, ANTHONY BUTLER, and

)

TROY A. TITUS, on behalf of themselves )

and similarly situated individuals,

)

)

Petitioners/Plaintiffs, )

v.

)

)

THOMAS SCARANTINO, Complex

)

Warden, Federal Correctional Complex

)

Butner; MICHAEL CARVAJAL, Federal )

Bureau of Prisons Director; and JEFFERY )

ALLEN, Federal Bureau of Prisons

)

Medical Director, in their official

)

capacities,

)

)

Respondents/Defendants. )

RESPONDENTS’ PRELIMINARY RESPONSE TO PETITIONERS’ MOTION FOR TEMPORARY RESTRAINING ORDER

Respondents, by and through the United States Attorney for the Eastern District of North Carolina, hereby submit this Preliminary Response to Petitioners’ Motion for Temporary Restraining Order (“TRO”) (D.E. 24), and respectfully request that the Court allow Respondents a reasonable amount of time, up to and including June 3, 2020, to respond to both the underlying Petition (D.E. 1) and the Motion for a TRO.
On May 26, 2020, Petitioners, through counsel, filed a voluminous petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking injunctive and

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declaratory relief for alleged unconstitutional conditions of confinement. Specifically, Petitioners allege Respondents have violated their Eighth Amendment rights by failing to control the spread of the novel coronavirus (“COVID-19”) at the Federal Correctional Complex in Butner, North Carolina (“FCC Butner”), and by failing to provide proper medical care for those inmates infected with the virus. (D.E. 1). On May 27, 2020, the Court conducted an initial review and allowed the case to proceed. (D.E. 15). The Court also directed Respondents to file a response to the petition on or before June 3, 2020.
At almost 6:00 PM on May 28, 2020, two days after filing the petition, Petitioners filed a Motion for a TRO raising the same issues as they raised in the petition. Respondents’ counsel contacted Petitioners’ counsel, seeking consent for a request that Respondents be permitted to respond to both the petition and the Motion for a TRO by the Court’s June 3, 2020, response date. Petitioners’ counsel stated that they oppose Respondents’ request.1
In both their petition and Motion for a TRO, Petitioners have requested sweeping relief including the unprecedented release of prisoners en masse from federal prison. (D.E. 1, 24). As such, if the Court is inclined to either immediately grant Petitioners’ Motion for a TRO or to deny Respondents’ request to respond to
1 In its May 27, 2020 Order, the Court recognized that although Petitioners may have requested a TRO or preliminary injunction in their petition, they did not properly file such a motion as required by both federal and local rules of civil procedure. [D.E. 15, at 2]. Through the filing of the instant Motion for TRO, Petitioners appear to attempt to remedy their failure, yet now seek to hold Respondents to an unreasonably shorter response time.
2 Case 5:20-hc-02088-FL Document 27 Filed 05/29/20 Page 2 of 4

both the petition and TRO by June 3, 2020, Respondents respectfully request the
opportunity to be heard via oral argument before the Court rules on the motion.
Respectfully submitted, this 29th day of May, 2020.
ROBERT J. HIGDON JR. United States Attorney
By: /s/ Michael Bredenberg MICHAEL BREDENBERG Special Assistant United States Attorney Email: michael.bredenberg@usdoj.gov N.C. Bar # 26068
By: /s/ Genna D. Petre GENNA D. PETRE Special Assistant United States Attorney N.C. Bar # 49466 Email: genna.petre@usdoj.gov
By: /s/ Joshua L. Rogers JOSHUA L. ROGERS Assistant United States Attorney Mississippi Bar # 101468 Email: Joshua.Rogers4@usdoj.gov U.S. Attorney’s Office, Civil Division 150 Fayetteville Street, Suite 2100 Raleigh, NC 27601 Telephone: (919) 856-4530
(919) 575-3900 Facsimile: (919) 856-4821 Attorneys for the Respondents
3
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CERTIFICATE OF SERVICE This is to certify that I have this 29th day of May, 2020, served a copy of the foregoing upon Petitioners’ counsel of record by electronically filing the same with the Clerk of Court via the CM/ECF Document Filing System.
/s/ Michael Bredenberg MICHAEL BREDENBERG Special Assistant United States Attorney U.S. Attorney’s Office, Civil Division 150 Fayetteville Street, Suite 2100 Raleigh, NC 27601 Telephone: (919) 856-4530
(919) 575-3900 x 6078 Facsimile: (919) 856-4821 Email: michael.bredenberg@usdoj.gov N.C. Bar # 26068 Attorney for the Respondents
4 Case 5:20-hc-02088-FL Document 27 Filed 05/29/20 Page 4 of 4

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:20-HC-2088-FL

CHARLES HALLINAN, JOSEAN

)

KINARD, ARNOLD J. HILL,

)

BENJAMIN D. McRAE, JOHN DAILEY, )

LEE M. AYERS, GEORGE B. RIDDICK, )

JORGE LUIS MALDONADO, ANTWAN )

HARRIS, ANTHONY BUTLER, and

)

TROY A. TITUS, on behalf of themselves )

and similarly situated individuals,

)

Petitioners/Plaintiffs,

)

)

v.

)

)

THOMAS SCARANTINO, Complex

)

Warden, Federal Correctional Complex

)

Butner; MICHAEL CARVAJAL, Federal )

Bureau of Prisons Director; and JEFFERY )

ALLEN, Federal Bureau of Prisons

)

Medical Director, in their official

)

capacities,

)

Respondents/Defendants.

)

MEMORANDUM OF LAW IN SUPPORT OF RESPONDENTS’ MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT

INTRODUCTION Courts are “ill equipped to deal with the difficult and delicate problems of prison management.” Thornburgh v. Abbott, 490 U.S. 401, 407–08 (1989) (internal quotations omitted). Yet, that is precisely what Petitioners ask the Court to do. Through a procedurally defective class-action habeas petition, Petitioners inappropriately seek to challenge allegedly unconstitutional conditions of confinement amid the novel coronavirus (“COVID-19”) pandemic. They ask the Court to substitute its judgment for that of Congress and the Bureau of Prisons (“BOP”), to

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take charge of prison management and policy-making, and to sanction a release or transfer en masse of federal inmates—including potentially child molesters; sexually dangerous persons and mentally ill and dangerous persons who have been civilly committed specifically to the Federal Correctional Complex in Butner, North Carolina (“FCC Butner”) for mental health treatment; drug traffickers; and, in the cases of Petitioners Arnold Hill and George Riddick, convicted murderers. Perhaps worse, Petitioners seek that blanket release or transfer on a class basis, irrespective of any inmate’s individual circumstances (including gang affiliations; security levels; need for medical, substance-abuse, or sex-offender treatment; and record of custodial incidents) and the dangers they may pose to other inmates and the community. The Court should not indulge Petitioners’ requests. To the contrary, the petition, on its face, is foreclosed by Fourth Circuit precedent, and should be dismissed in its entirety.
Petitioners are a group of inmates incarcerated at three institutions located at the FCC Butner, purporting to represent a diverse class consisting of all current and future inmates over the age of 50 or who experience medical conditions that make them vulnerable to COVID-19 located at any of the five institutions at FCC Butner. See Petition for Writ of Habeas Corpus [hereinafter “Petition”], D.E. 1 at 60 ¶ 224. Petitioners allege their constitutional rights are being violated because of the possibility they may contract COVID-19 while incarcerated. Id. at 59–60 ¶¶ 217–21. Petitioners seek injunctive relief in the form of immediate release or an
2
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“enlargement” of custody to “alter Petitioners’ place of custody.” Id. at 66–70 ¶ 258. If granted in its entirety, the habeas petition could result in hundreds (or even thousands) of inmates – some of whom are murderers, drug traffickers, child predators, and gang members – being released into the community without a plan to address safety and security, or the inmates’ successful re-entry into society. The petition should be dismissed for myriad reasons.
First, the Court lacks jurisdiction over the petition because Petitioners are challenging the conditions of their confinement. Although “the Supreme Court [has] held that a writ of habeas corpus is the exclusive remedy for inmates seeking release from their confinement,” this Court has expressly held that “release from confinement is not a remedy available for an Eighth Amendment conditions of confinement claim.” Hunt v. Johns, No. 5:10-HC-2176-FL, 2011 WL 3664553, at *2 (E.D.N.C. Aug. 18, 2011) (unpublished). Rather, the appropriate cause of action for allegedly unconstitutional conditions of confinement would, in this case, be one pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which Petitioners have deliberately declined to pursue. Id.; see Rodriguez v. Ratledge, 715 F. App’x 261, 265 (4th Cir. 2017) (unpublished); Preiser v. Rodriguez, 411 U.S. 475 (1973); Strader v. Troy, 571 F.2d 1263, 1269 (4th Cir. 1978).1 The
1 The Court should not convert Petitioners’ petition into a Bivens action for multiple reasons. First, Respondents are represented by 13 lawyers from two nationwide organizations and one nationwide law firm, who presumably considered the available remedies for relief and intentionally rejected pursuing a Bivens claim despite the clear state of the law. The Court need not liberally construe the petition as it would if Petitioners were acting pro se. Cf. Text Order, D.E. 15 at 2 (refusing to “act on
3
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appropriate remedy for any such Bivens claim, moreover, is not the release from custody that Petitioners seek, but a judicially mandated change in conditions.
Petitioners’ attempt to sidestep these limitations on habeas jurisdiction by insisting they are challenging the “fact of their confinement” not the “conditions of their confinement.” See Memorandum of Law in Support of Petitioners’ Motion for Temporary Restraining Order, Preliminary Injunction, and Writ of Habeas Corpus [hereinafter “Pet. Mem.”] D.E. 25 at 34. But that is a semantical distinction without a jurisdictional difference. As several district courts recently observed, “but for” conditions related to COVID-19, Petitioners’ claims “would not exist.” See Wragg v. Ortiz, No. 20-5496, 2020 WL 2745247, at *1 (D.N.J. May 27, 2020); Alvarez v. Larose, No. 20-cv-00782, 2020 WL 2315807, at *3 (S.D. Cal. May 9, 2020). Moreover, neither the Supreme Court nor the Fourth Circuit has never recognized any actual “exceptional circumstance” that would allow Petitioners to challenge their conditions of confinement in these circumstances, particularly because Petitioners have at their disposal a litany of statutory and regulatory avenues (such as the CARES Act) to seek (and possibly obtain) the relief that they seek through this petition. Indeed, some of the Petitioners have even been granted relief under the CARES Act.
Second, the petition should be dismissed because Petitioners failed to exhaust
petitioners’ request in their petition for immediate injunctive relief in the absence of a properly supported motion”). Even if the Court were to liberally construe the petition as a Bivens action, it would still fail. Respondents are expressly named in their official capacity, not their individual capacity, and the allegations do not support the personal involvement by Respondents required to make a Bivens claim.
4
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their administrative remedies under the Prison Litigation Reform Act (“PLRA”).

Under this statute, “no action shall be brought with respect to prison conditions . .

. until such administrative remedies as are available are exhausted.” 42 U.S.C. §

1997e(a) There is no exception to this exhaustion requirement, and recent court

decisions hold that this exhaustion requirement applies to COVID-19-related habeas

petitions brought under 28 U.S.C. § 2241. See, e.g., United States v. Montanez, No.

15-CR-122-FPG, 2020 WL 2183093, at *11 (W.D.N.Y. May 5, 2020); Nellson v.

Barnhart, No. 1:20-cv-00756-PAB, 2020 WL 1890670, at *5 (D. Colo. Apr. 16, 2020).

Third, Petitioners’ habeas petition fails on its merits. Conditions at FCC

Butner are far less dire than Petitioners’ often generic and sensationalized

allegations suggest. Notably, as of June 1, 2020, the Centers for Disease Control and

Prevention (“CDC”) reports that the COVID-19 mortality rate in the United States is

approximately 5.8% (104,396 deaths out of 1,787,680 cases), and that the COVID-19

mortality rate in North Carolina is approximately 3.1% (886 deaths out of 28589

cases). See Centers for Disease Control and Prevention, Coronavirus Disease 2019

(COVID-19), “Cases in the U.S.” (last updated June 1, 2020), available at

https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html

(last

visited June 2, 2020). As of June 2, 2020, FCC Butner has a total population of 4,386

inmates. See Declaration of Phillip Clark [hereinafter “Clark Decl.”], Respondents’

Appendix [hereinafter “R.A.”] 012 ¶ 5. Approximately 700 of those inmates have

tested positive for the COVID-19 virus, and 15 have died as a result of the virus and

5

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its interaction with their other co-morbid medical conditions. See Declaration of Kellie Harden [hereinafter “Harden Decl.”], R.A. 353–54 ¶ 6; Declaration of Dr. Andrew Stock [hereinafter “Stock Decl.”], R.A. 121 ¶ 149. The 15 inmates who have died had long-term, pre-existing medical conditions which the CDC lists as risk factors for developing more severe COVID-19 disease.2 See Stock Decl., R.A. 121 ¶ 149. Thus, although the FCC Butner infection rate may be higher than the general population, the FCC Butner mortality rate of approximately 2.1% is lower than the rates for the general population. Contrary to Petitioners’ claims then, FCC Butner’s efforts have been more effective in managing infections and treating inmates than those of medical facilities in the general population. Accordingly, FCC Butner’s conditions and responses to the crisis cannot possibly be constitutionally deficient.
Finally, the Court should strike Petitioners’ class allegations. Petitioners cannot satisfy any of the Rule 23(a) elements for class certification because habeas petitions are highly fact-specific, and the proposed class members (including Petitioners) have different preexisting medical conditions and security classifications and designations, and are located in different facilities within the FCC Butner Complex. As one court recently held in denying class status to a COVID-19-related petition, “simply put, there is no way to decide which inmates should stay, and which inmates should go, without diving into an inmate-specific inquiry” antithetical to a class action lawsuit. Money v. Pritzker, No. 20-cv-2093, 2020 WL 1820660, at *15
2 See https://www.bop.gov/resources/press_releases.jsp. 6
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(N.D. Ill. Apr. 10, 2020). STATEMENT OF FACTS3
As demonstrated in detail in Respondents’ Statement of Material Facts, filed contemporaneously with this memorandum, Respondents have taken an inordinate amount of precautionary steps in order to prevent and reduce the spread of COVID19 within at FCC Butner.
FCC Butner is a federal prison complex that houses five separate institutions: a Federal Medical Center (“FMC Butner” or “FMC”), two medium Federal Correctional Institutions (“FCI Butner I” or “FCI I”, and “FCI Butner II” or “the FCI II”)), a Low Security Institution (“LSCI Butner” or “LSCI”)), and a federal prison camp, (“the Camp”, “FPC Butner”, or “FPC”). See Clark Decl., R.A. 012 ¶ 5. The current population of the complex is 4,360. Id.
Since January 2020, in order to combat the spread of COVID-19 at its institutions, BOP has been coordinating with subject-matter experts at multiple organizations and agencies, including the World Health Organization (“WHO”) and the CDC. See Federal Bureau of Prisons COVID-19 Action Plan, https://www.bop.gov/resources/news/20200313_covid-19.jsp (last visited May 30, 2020). Specifically, in January 2020, BOP implemented an action plan consistent with WHO and CDC recommendations, to combat the spread on COVID-19 in
3 Because Respondents are moving in the alternative for summary judgment, Respondents are filing contemporaneously herewith a Statement of Material Facts and Appendix pursuant to the Local Civil Rules.
7
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individual facilities. See Declaration of Mary Strassel [hereinafter “Strassel Decl.”], R.A. 132–33 ¶ 7. Over the course of the crisis, BOP has updated that plan on several occasions. Currently, BOP has implemented seven phases of the plan. See Strassel Decl., R.A. 155 ¶ 73. As a result of this plan, FCC Butner has initiated screening tools for inmates and staff. See Strassel Decl., R.A. 133, 134–35 ¶¶ 8, 13. FCC Butner also modified operations to ensure social distancing between inmates and staff, including altering inmate movement, so that smaller groups went to dining hall, education, recreation, chapel, and other activities at any given time. See Strassel Decl., R.A. 135 ¶ 14. Each institution across the Complex had modified movement schedules to increase social distancing and limit contact between inmates. See Strassel Decl., R.A. 135 ¶ 14. Subsequently, FCC Butner began satellite feeding all inmates in their assigned units or cells, and small group gatherings were halted for education, chapel, recreation, and all other instances where inmates were previously permitted to meet. FCC Butner began providing those services in a modified manner in the individual cells and housing units. See Strassel Decl., R.A. 137 ¶ 22.
FCC Butner also began quarantining all incoming inmates and established quarantine and isolation units at each institution. See Strassel Decl., R.A. 135–36 ¶¶ 14, 18. FCC Butner has continually educated both staff and inmates on the procedures set up as well as the prevention, contraction, and transmission of the virus. See Strassel Decl., R.A. 136–37 ¶¶ 19, 20. All staff have been provided with Personal Protection Equipment (“PPE”) which includes surgical masks and N-95
8
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masks. See Strassel Decl., R.A. 140 ¶ 32. All inmates have been provided with cloth masks which are to be worn at all times. See Strassel Decl., R.A. 148 ¶ 56. FCC Butner is also conducting COVID-19 testing in accordance with CDC guidelines. See Harden Decl., R.A. 353 ¶ 5. FCC Butner is also isolating inmates who present with COVID-19-like symptoms; and quarantining asymptomatic inmates who have contracted the virus. See Stock Decl., R.A. 104–05 ¶¶ 61–66.
During the course of the crisis, FCC Butner also implemented enhanced sanitation plans including daily cleaning and sanitizing all common areas; and providing inmates with disinfectant cleaners, and continuous access to soap, water, and sanitizers. See Declaration of Luis Martinez [hereinafter “Martinez Decl.”], R.A. 358, 360 ¶ 8–9, 14.
Additionally, in accordance with the Attorney General’s direction to maximize its authority to place inmates on home confinement for service of their sentence of imprisonment, FCC Butner staff have evaluated at least 932 inmates under the CARES Act. See Clark Decl., R.A. 021 ¶ 32. At least 87 inmates have been referred for placement on home confinement, 42 inmates have been transferred to home confinement and 9 inmates have been transferred to Residential Re-entry Centers (“RRC”). See Clark Decl., R.A. 021 ¶ 32. An additional 24 inmates are pending transfer to home confinement or an RRC. See Clark Decl., R.A. 021 ¶ 32. Twentyfour inmates are currently awaiting final decision from the BOP’s Residential Reentry Management Office regarding their referral for home confinement. See
9
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Clark Decl., R.A. 022 ¶ 33. Since late March 2020, an additional 56 inmates have been released from FCC Butner via compassionate release granted by the individual’s sentencing court based upon various issues, including COVID-19. See Clark Decl., R.A. 022 ¶ 34.
On May 26, 2020, Petitioners filed the instant petition alleging Respondents have “not taken the necessary steps to address the risk faced by the people in their custody.” See Petition, D.E. 1 at 4 ¶ 13. Prior to filing their petition, not a single one of the named Petitioners filed a single administrative remedy related to COVID-19, unconstitutional conditions of confinement, or the alleged deliberate indifference of Respondents in reference to COVID-19. See Declaration of Christina Kelley [hereinafter “Kelley Decl.”], R.A. 401–02 ¶¶ 9–16.
STANDARD OF REVIEW A. Motion to Dismiss Pursuant to Rule 12(b)(1). Federal district courts are courts of limited subject matter jurisdiction. Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). When a district court lacks subject matter jurisdiction, the matter must be dismissed. Arbaugh v. Y&H Corp., 546 U.S. 500, 506–07 (2006). When a defendant challenges subject matter jurisdiction, the burden of proving subject matter jurisdiction rests with the plaintiff. See United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009); Evans v. B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642, 647 (4th Cir. 1999); Adams v. Bain, 697 F.2d 1213. 1219 (4th Cir. 1982). Courts have recognized two
10
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distinct types of challenges under 12(b)(1): a facial challenge to the subject matter jurisdiction, arguing that the allegations in the complaint are insufficient to establish jurisdiction; or a factual challenge asserting “that the jurisdictional allegations of the complaint [are] not true.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). In regards to a facial challenge, a court can properly dismiss for lack of subject matter jurisdiction where a claim fails to allege facts upon which the court may base jurisdiction. Adams, 697 F.2d at 1219. In that case, all the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he would receive under Fed. R. Civ. P. 12(b)(6). Id. A factual challenge contends that the jurisdictional allegations of the complaint are not true, allowing a trial court to go beyond the allegations of the complaint in an evidentiary hearing to determine if there are facts to support the jurisdictional allegations. Id. Respondents makes both here.
B. Motion to Dismiss Pursuant to Rule 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when it contains factual allegations that permit the court to reasonably infer the defendant is liable for the alleged misconduct. Ashcroft, 556 U.S. at 678. Although a court must take all factual allegations as true for purposes of a Rule
11
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12(b)(6) motion, the court need not “accept as true a legal conclusion couched as a factual allegation.” Id. (quoting Twombly, 550 U.S. at 555). A court “need not accept factual allegations that constitute nothing more than legal conclusions or naked assertions.” Southern Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, L.L.C., 713 F.3d. 175, 182 (4th Cir. 2013) (internal quotation marks omitted). The facts alleged in the complaint “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
In ruling on a motion to dismiss pursuant to 12(b)(6), a court is not confined to the “four corners of the complaint.” United States ex rel Oberg v. Penn Higher Educ. Assist. Agency, 745 F.3d 131, 136 (4th Cir. 2014). The court may consider exhibits to pleadings and documents attached to the motion to dismiss, “so long as they are integral to the complaint and authentic” or subject to judicial notice. Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013) (quoting Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009)); Clatterbuck v. City of Charlottesville, 708 F.3d 549 (4th Cir. 2013) (in addition to the complaint, the court may also consider documents incorporated by reference in the complaint and matters subject to judicial notice).
C. Motion for Summary Judgment Pursuant to Rule 56. Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a), Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving
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for summary judgment has the initial burden to show the absence of an essential element of the nonmoving party’s case and to demonstrate that he or she is entitled to judgment as a matter of law. Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 185 (4th Cir. 2004). Once a motion for summary judgment is made, the opposing party has the burden of showing that there is a genuine factual dispute. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–87 (1986). A court must view the facts, and the inferences drawn from the facts, in the light most favorable to the non-moving party. Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 F.3d 324, 332 (4th Cir. 2009). To avoid summary judgment, the plaintiff “must do more than simply show that there is some metaphysical doubt as to the material facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). The plaintiff instead must affirmatively show genuine disputes over material facts. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (“[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.”); Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (“At the summary judgment stage, a nonmoving party ‘must offer some hard evidence showing that its version of the events is not wholly fanciful.’”).4
A party “cannot create a genuine issue of material fact through mere
4 A dispute is “genuine” only if it shows a true conflict between established facts. Thompson Everett, Inc. v. Nat’l Cable Adv., 57 F.3d 1317, 1323 (4th Cir. 1995). A dispute is “material” only if it bears directly on “an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322.
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speculation or the building of one inference upon another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) (citing Barwick v. Celotex Corp., 736 F.2d 946, 963 (4th Cir. 1984)). Unsupported speculation is insufficient to defeat a summary judgment motion. Ash v. United Parcel Serv., 800 F.2d 409, 411–12 (4th Cir. 1986); Ross v. Commc’n Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985). A plaintiff’s “naked opinion, without more,” as to the merits of the case does not prevent summary judgment. Goldberg v. B. Green & Co., 836 F.2d 845, 848 (4th Cir. 1988). “Only disputes over facts that might affect the outcome of the [litigation] . . . will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is thus proper “where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there [being] no genuine issue for trial.” Matsushita, 475 U.S. at 587 (internal quotations marks omitted).
D. Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. Title 28 U.S.C. § 2241 “gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are ‘in custody in violation of the Constitution or laws or treaties of the United States.’” Maleng v. Cook, 490 U.S. 488, 490 (1989) (emphasis omitted) (quoting 28 U.S.C. §§ 2241(c)(3), 2254(a)). Under the federal habeas statute, federal courts may consider “not only constitutional claims but claims of statutory interpretation as well.” Bowrin v. United States INS, 194 F.3d 483, 487 (4th Cir. 1999). In addition, only “attacks on the execution of a
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sentence are properly raised in a § 2241 petition.” In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997).
ARGUMENT As explained herein, this Court should dismiss Petitioners’ § 2241 petition, both for lack of jurisdiction and for failure to state a legally viable claim of a constitutional violation. Alternatively, this Court should grant summary judgment for the Respondents because Petitioners cannot establish Respondents acted with deliberate indifference. Finally, the Court should strike Petitioners’ class allegations. A. The petition must be dismissed for lack of jurisdiction because
challenges to conditions of confinement are not cognizable under habeas corpus.5 Petitioners had at their disposal multiple legal avenues for challenging the conditions of their confinement and seeking their release, including a Bivens action for alleged Eighth Amendment violations, a request for home confinement pursuant to the CARES Act, and a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1) and the First Step Act. Choosing to ignore all of those potential causes of action, Petitioners pursue instead a novel legal theory founded in principles of habeas corpus and unsupported by this Court’s and the Fourth Circuit’s precedent. Petitioners’ decision – made through counsel – is fatal to their claim. Conditions-of-confinement cases are not cognizable under habeas corpus.
5 To the extent the Court disagrees that this issue is jurisdictional, Respondents respectfully request the Court construe it as a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
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Wilborn v. Mansukhani, 795 F. App’x 157, 162–64 (4th Cir. 2019) (per curiam)
(unpublished) (collecting cases); Hunt v. Johns, No. 5:10-HC-2176-FL, 2011 WL
3664553, at *2 (E.D.N.C. Aug 18, 2011) (unpublished).6 To avoid that conclusion,
Petitioners contend that they challenge not the “conditions of their confinement” but
rather the “fact of their confinement.” See Pet. Mem., D.E. 25 at 34. Petitioners’
factual allegations belie their artful construction. Nowhere in their 71-page pleading
(not to mention the hundreds of pages of attachments) do Petitioners contend that
they or any other inmate at FCC Butner were wrongly convicted and sentenced in
violation of the laws and Constitution of the United States. Rather, for page after
page, Petitioners complain only about their conditions of confinement.
District courts in this Circuit routinely dismiss such habeas petitions for lack
of subject matter jurisdiction. 7 For good reason—such relief is expressly foreclosed
6 Although the Supreme Court has theoretically left open the door to habeas relief in a conditions-of-confinement case, neither it nor the Fourth Circuit has yet allowed for such a use of § 2241. See Muhammad v. Close, 540 U.S. 749, 751 n.1 (2004) (observing that the Court has never followed the speculative dicta in Presier); Wilborn, 795 F. App’x at 163–64.
7 See, e.g., Rodriguez, 715 F. App’x at 266 (holding that the district court properly found petitioner’s request to be transferred to another institution as not cognizable under § 2241, as it challenged a condition of confinement, rather than its fact or duration); Braddy v. Wilson, 580 F. App’x 172, 173 (4th Cir. 2014) (finding that when petitioner alleged constitutional violations “regarding only the conditions of his confinement” not the fact or duration of his sentence, his claims were properly brought under Bivens not § 2241); Lee v. Winston, 717 F.2d 888, 892 (4th Cir. 1983) (“Although there may ultimately be an area of limited substantive overlap between … habeas corpus and § 1983, the main thrusts of the two are obviously quite different. The former is primarily a vehicle for attack by a confined person on the legality of his custody and the traditional remedial scope of the writ has been to secure absolute release—either immediate or conditional—from that custody. Conversely § 1983
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by Fourth Circuit precedent that was reaffirmed less than seven months ago. Wilborn, 795 F. App’x at 162–64. More recently, at least two district courts within the Fourth Circuit have declined to grant habeas relief to a prisoner based on the potential spread of COVID-19. See United States v. Johnson, No. RBD-14-0441, 2020 WL 1663360, at *5 (D. Md. Apr. 3, 2020) (“As the Defendant is challenging the conditions of his confinement—namely, the potential spread of COVID-19—§ 2241 and § 2255 are not the appropriate vehicles for his petition.); McCarson v. Reherman, No. 2:20-01386-HMH-MGB, 2020 WL 2110770, at *1 (D.S.C. May 4, 2020) (“Although McCarson seeks relief pursuant to § 2241, the substantive content of her petition, coupled with her motion for injunctive relief, demonstrate that her claims are raised pursuant to the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), Pub. L. No. 116-136, § 12003(b)(2) (2020), and the First Step Act, Pub. L. No. 115391, December 21, 2018, 132 Stat. 5194. McCarson does not question the validity or constitutionality of her sentence, but rather contests her conditions of confinement. Therefore, McCarson’s claims are not cognizable under § 2241.) (citing Rodriguez, 715 F. App’x at 266) (internal citations omitted)).8
cannot be used to seek release from illegal physical confinement[.]”); Wilborn v. Mansukhani, 795 F. App’x 157, 164 (4th Cir 2019) (“This case presents no basis to deviate from our previous holdings. Therefore, we conclude Wilborn’s claim seeking to have the BOP reconsider where he is being housed is one that would not fall within the scope of habeas corpus.”). 8 Moreover, other district courts outside of the Fourth Circuit have similarly ruled that habeas relief is not available to prisoners filing petitions based on the spread of COVID-19. See Livas v. Myers, No. 20-422, 2020 WL 1939583, at *19–22 (W.D. La. Apr. 22, 2020) (declining to exercise jurisdiction over habeas petition challenging
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The Court’s “inherent equitable authority” is no silver bullet to that
jurisdictional bar. Contra Petition, D.E. 1 at 65, 66 ¶¶ 251, 257. “The power of federal
courts of equity to enjoin unlawful executive action is subject to express and implied
. . . limitations,” and “[c]ourts of equity can no more disregard statutory and
constitutional requirements and provisions than can courts of law.” Armstrong v.
Exceptional Child Center, Inc., 575 U.S. 320, 327–28 (2015).9 As explained above,
courts lack subject matter jurisdiction to consider habeas petitions seeking to redress
allegedly unconstitutional conditions of confinement. Because subject matter
jurisdiction “is an Article III . . . requirement” that “functions as a restriction on
federal power,” courts have no “inherent equitable authority” to manufacture habeas
remedies where none exist.
Particularly here. As the Supreme Court has explained, district courts “should
conditions related to COVID-19 or serve as a “serve as a de facto ‘super warden’”); see also Grinis v. Spaulding, No. 20-10738, 2020 WL 2300313, at *5 (D. Mass. May 8, 2020) (“There is a substantial question whether the relief the petitioners seek,” which is release because of COVID-19, is properly sought by means of a habeas petition under § 2241.”); Wragg v. Ortiz, No. 20-5496, 2020 WL 2745247, at *18 (D.N.J. May 27, 2020) (“True, Petitioners seek early release from prison, but they do not do so on the basis that their convictions or sentences are invalid. Instead, they seek injunctive relief based on unconstitutional conditions of confinement, a type of challenge that neither the Supreme Court nor the Third Circuit has yet recognized as a cognizable habeas claim.”); see also Mendez v. Kallis, No. 20-cv-924, 2020 WL 2572524 (D. Minn.); Cardona v. Bledsoe, 681 F.3d 533, 537 (3d Cir. 2012). Thus, the petition should be dismissed for lack of subject matter jurisdiction.
9 That Petitioners cite Armstrong for the general notion that courts have, in certain circumstances, equitable authority to enjoin unconstitutional actions by federal officials betrays, at best, a fundamental misunderstanding of Armstrong’s actual holding.
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withhold relief in [a] collateral habeas corpus action where an adequate remedy available in the criminal proceeding has not been exhausted.” Stack v. Boyle, 342 U.S. 1, 6–7 (1951); accord Cole v. Spear, 747 F.2d 217, 220–21 (4th Cir. 1984) (en banc) (holding that district court should have declined to exercise jurisdiction over habeas action where petitioner, who sought separation from military service as a conscientious objector, failed to exhaust her remedies under the military system of justice); see also Archuleta v. Hedrick, 365 F.3d 644, 648–49 (8th Cir. 2004) (noting that “habeas corpus is an extraordinary remedy typically available only when the petitioner has no other remedy”); Taniguchi v. Schultz, 303 F.3d 950, 955 (9th Cir. 2002).
Opposing this conclusion, Petitioners contend that “Respondents have created obstacles preventing people incarcerated at Butner from seeking assistance in mitigating their risk themselves” and that “[t]he Administrative Remedies Process . . . is unavailable.” Petition, at 55 ¶ 201–02. Both generally and with respect to specific named inmates, Petitioners are wrong. BOP is not delaying, harassing, or engaging in bad faith in order to prevent Petitioners from exercising the orderly process of seeking home confinement or compassionate release. Consistent with guidance from the Attorney General of the United States, see Petition, D.E. 1 at 43– 44 ¶¶ 155–59, BOP is instead considering (and granting) home confinement requests on an increasingly frequent basis to inmates that are suitable for such relief based on fact-specific and individualized determinations. See Clark Decl., R.A. 021 ¶ 30, 32.
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Although Petitioners disagree with the pace of and conclusions reached during those home-confinement reviews, see Petition, D.E. 1 at ¶¶ 165–74, their disagreement does not somehow create a constitutional violation for deliberate indifference.10
With specific respect to Petitioners Dailey, Maldonado, Kinard, Hallinan, Hill, Ayers, and Butler, all have filed requests with their respective FCC Butner warden requesting a compassionate release. See generally Clark Decl., R.A. 026–035 ¶ 51– 90. Each request was subsequently denied by the respective warden, meaning that Petitioners could then utilize the administrative remedy system to seek redress prior to filing a motion for compassionate release with their sentencing court pursuant to 18 U.S.C. § 3582(c)(1)(A). In fact, Petitioners Dailey, Maldonado, and Butler have all filed motions for compassionate release with their sentencing courts as of the date of this filing. See Sealed Document 171 Motion to Reduce Sentence, United States v. Dailey, No. 4:17-CR-00304-RLW-1, D.E. 174 (E.D. Mo. filed Apr. 13, 2020); Emergency Motion to Reduce Sentence Amended Emergency Motion for Compassionate Release, United States v. Maldonado, No. 4:15-CR-00044-MW-MAF, D.E. 494 (N.D. Fla. filed May 4, 2020); Pro Se Motion for Compassionate Release, United States v. Butler, No. 5:18-CR-00475-BO, D.E. 56 (E.D.N.C. filed Apr. 23,
10 Furthermore, although the CARES ACT gives BOP broad discretion to expand the use of home confinement during the COVID-19 pandemic, courts have no authority under that provision to place a prisoner in home confinement. See United States v. Gray, No. 4:12-cr-54-FL, 2020 U.S. Dist. Lexis 70270, *6–7 (E.D.N.C. April 22, 2020) (denying the defendant’s motion for home confinement on the grounds that the court was without jurisdiction to order the BOP to place him in home confinement). The Court should not permit Petitioners to bypass, through artful pleading, statutory restrictions on the Court’s authority and manufacture jurisdiction where none exists.
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2020). Those petitioners’ respective sentencing courts have denied all three requests for compassionate release, which shows not only that the orderly process for raising and adjudicating individual claims works, but that FCC Butner’s decision not to release those petitioners was legitimate. See United States v. Dailey, No. 4:17-CR00304-RLW-1, D.E. 180 (E.D. Mo. Apr. 20, 2020); United States v. Maldonado, No. 4:15-CR-00044-MW-MAF, D.E. 501 (N.D. Fla. May 13, 2020); United States v. Butler, No. 5:18-CR-00475-BO, D.E. 60 (E.D.N.C. May 19, 2020).11
Additionally, the BOP has reviewed Petitioners for release to home confinement, consistent with the First Step Act and CARES Act. See Clark Decl., R.A. 026 ¶ 50. According to Complex Case Management Coordinator Phil Clark, Petitioners McCrae and Dailey have both been approved for home confinement under the CARES Act, with Petitioner McCrae eligible on June 9, 2020, and Petitioner Dailey eligible on August 20, 2020. Id. at R.A. 028, 30 ¶¶ 59, 66. Similarly, it appears that Petitioner Maldonado might also soon be eligible for home confinement. Id. at R.A. 032 ¶ 78. The remaining Petitioners have each been reviewed for home confinement eligibility under the CARES Act, but are not currently appropriate for home confinement for varying reasons, including, but not limited to, inadequate completion of his sentence, high PATTERN scores, and history or current offense
11 Petitioner Harris has also filed a motion for home confinement, house arrest, or to vacate his sentence, which has not been ruled on by his sentencing court as of the date of this filing. See Pro Se Motion for home confinement, house arrest or vacate sentence, United States v. Harris, No. 5:11-CR-00247-BO, D.E. 109 (E.D.N.C. filed May 18, 2020).
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history of violence. See generally Clark Decl., R.A. 026–035 ¶ 51–90. As Petitioners are eligible to utilize these alternative means of release, habeas relief is not appropriate here.
That conclusion is consistent with long-standing principles of finality. Once a criminal judgment (including a custodial sentence) becomes final, for instance, a court has no inherent authority to reconsider or alter that judgment. Dillon v. United States, 560 U.S. 817, 825 (2010) (“A judgment of conviction that includes a sentence of imprisonment constitutes a final judgment and may not be modified by a district court except in limited circumstances.” (alterations and quotations omitted)); cf. Teague v. Lane, 489 U.S. 288, 309 (1989) (plurality opinion) (recognizing that finality is an important attribute of criminal judgments and “essential to the operation of our criminal justice system”). Rather, a court may only modify a sentence pursuant to statutory authorization. See United States v. Addonizio, 442 U.S. 178, 189 n.16 (1979) (except by rule or statute, “[t]he beginning of the service of the sentence in a criminal case ends the power of the court even in the same term to change it”); United States v. Goodwyn, 596 F.3d 233, 235 (4th Cir. 2010). Given the Court’s limited authority to alter or amend final judgments, Petitioners should be required to plead appropriate causes of action and cite to correct legal authority. Petitioners have not done so here – despite being represented by no fewer than 13 lawyers – and their petition fails as pled.
However, “even where a habeas court has the power to issue the writ,” the
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question remains “whether . . . that power ought to be exercised.” Munaf v. Geren, 553 U.S. 674, 693 (2008) (quotation and alteration omitted). As explained, neither the Supreme Court nor the Fourth Circuit has ever recognized a condition-ofconfinement claim that might qualify for habeas relief. See Muhammad v. Close, 540 U.S. 749, 751 n.1 (2004) (observing that the Court has never followed the speculative dicta in Presier); Wilborn, 795 F. App’x at 163–64. Nor does this case present extraordinary circumstances that would warrant deviation from that line of binding precedent.
Both the BOP and FCC Butner have already, and proactively, implemented numerous measures to mitigate the spread of COVID-19. FCC Butner modified operations to ensure social distancing between inmates and staff, including altering inmate movement, so that smaller groups went to dining hall, education, recreation, chapel, and other activities at any given time. See Strassel Decl., R.A. 135 ¶ 14. Each institution across the Complex had modified movement schedules to increase social distancing and limit contact between inmates. See Strassel Decl., R.A. 135 ¶ 14.
FCC Butner also began quarantining all incoming inmates and established quarantine and isolation units at each institution. See Strassel Decl., R.A. 135–36 ¶¶ 14, 18. FCC Butner has continually educated both staff and inmates on the procedures set up as well as the prevention, contraction, and transmission of the virus. See Strassel Decl., R.A. 136–37 ¶¶ 19, 20. All staff have been provided with Personal Protection Equipment (“PPE”) which includes surgical masks and N-95
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masks, and all inmates have been provided with cloth masks which are to be worn at
all times. See Strassel Decl., R.A. 148 ¶ 56. FCC Butner is also conducting COVID-
19 testing in accordance with CDC guidelines. See Harden Decl., R.A. 353 ¶ 5. FCC
Butner is also isolating inmates who present with COVID-19-like symptoms; and
quarantining asymptomatic inmates who have contracted the virus. See Stock Decl.,
R.A. 104–05 ¶¶ 61–66. FCC Butner also implemented enhanced sanitation plans
including daily cleaning and sanitizing all common areas; and providing inmates with
disinfectant cleaners, and continuous access to soap, water, and sanitizers. See
Martinez Decl., R.A. 358, 360 ¶ 8–9, 14.
In addition, BOP is considering (and granting) home confinement requests on
an increasingly frequent basis to inmates that are suitable for such relief based on
fact-specific and individualized determinations required by the regulations.12
Inmates are also at liberty at any time to file a compassionate release request under
18 U.S.C. § 3582(c)(1)(A) after they satisfy that provision’s exhaustion requirement.13
Thus, this Court lacks jurisdiction.
12 Congress has decreed that BOP’s decisions concerning an inmate’s “designation of a place of imprisonment” are “not reviewable by any court.” 18 U.S.C. § 3621(b); Moore v. United States Att’y Gen., 473 F.2d 1375 (5th Cir. 1973). Furthermore, the Supreme Court has consistently held that a prisoner has no constitutional right to confinement in any particular place—including home confinement. See McKune v. Lile, 536 U.S. 24, 39 (2002).
13 According to 18 U.S.C. § 3582(c)(1)(A), a motion for compassionate release must be filed in the sentencing court. Thus, unless Petitioners were criminally sentenced by the United States District Court for the Eastern District of North Carolina, this Court does not have jurisdiction to consider Petitioners’ request for compassionate release from custody.
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Finally, because the Court lacks jurisdiction over the petition, there is no basis to grant bail pending habeas. A grant of bail pending review of a habeas petition is “an exceptional form of relief in a habeas corpus proceeding[.]” Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992). Federal Rule of Appellate Procedure 23(c) provides that, when the State appeals a decision granting habeas corpus, the habeas petitioner “must” be released from custody “unless the court or judge rendering the decision ... orders otherwise.” Fed. R. App. P. 23(c). A bail decision is a highly particularized one which involves detailed consideration of a number of factors, such as the nature and circumstances of the offense of conviction, the history and characteristics of the petitioner, and the nature or seriousness of any danger to the community from the release of the prisoner. 18 U.S.C. § 3142(g). Petitioners have made no effort to conduct such an individualized assessment. Nor can they, for individualized assessments are antithetical to the class-action lawsuit Petitioners have chosen to pursue.
In this case, as noted above, there is no legal basis for the Court to exercise jurisdiction over the petition, and Petitioners have other avenues of possible relief available to them. Additionally, the Petitioners do not address any of the considerations that might guide this Court as laid out in 18 U.S.C. § 3142(g), instead basing their request for bail on the circumstances of their confinement alone, rather than the particularized factors as applied to each petitioner. Thus, Petitioners are not appropriate for bail pending a final determination of their habeas petition.
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B. The Petition should be dismissed because Petitioners failed to exhaust their available administrative remedies prior to filing the instant petition.
Additionally, Petitioners’ petition should be dismissed for failure to exhaust their administrative remedies under the PLRA. The PLRA states that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997(e)(a) (emphasis added). The language is mandatory, and the Supreme Court has made clear that the exhaustion requirement applies to all suits regarding prisoner life, Porter v. Nussle, 534 U.S. 516, 532 (2002), and that “unexhausted claims cannot be brought in court,” Jones v. Bock, 549 U.S. 199, 211 (2007). Indeed, the well-established doctrine of exhaustion of administrative remedies requires that in order for an individual to assert claims for judicial relief, he must first exhaust the prescribed administrative remedy made available to him. See Woodford v. Ngo, 548 U.S. 81, 88–89 (2006) (citing McKart v. United States, 395 U.S. 185, 193 (1969)).
The principle of exhaustion of administrative remedies in section 2241 cases is “so well established that the Fourth Circuit consistently summarily affirms dismissals of section 2241 petitions for failure to exhaust administrative remedies.” See Van Buren v. Atkinson, No. 5:14-HC-2251-D, D.E. 14 n.2 (E.D.N.C. Aug. 31, 2015); see, e.g., Wallace v. Federal Bureau of Prisons, 604 F. App’x 329, 329 (4th Cir.
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2015) (per curium) (unpublished); Hairston v. Wilson, 532 F. App’x 359, 359 (4th Cir. 2013) (per curium) (unpublished); Arce v. FCI-Williamsburg, 411 F. App’x 651, 651 (4th Cir. 2011). The exhaustion requirement also applies when an inmate seeks injunctive relief. Farmer v. Brennan, 511 U.S. 825, 847 (1994) (holding that in cases seeking injunctive relief to address “current” prison conditions, inmates are not “free to bypass adequate internal procedures and bring their health and safety concerns directly to court.”). The Fourth Circuit has treated exhaustion of administrative remedies in a section 2241 action as jurisdictional. See, e.g., Timms v. Johns, 627 F.3d 525, 533 (4th Cir. 2010).
Proper exhaustion of administrative remedies demands compliance with an agency’s deadlines and other critical procedural rules. Woodford, 548 U.S. at 90. An inmate must complete all stages of the administrative remedy process before the process is considered properly exhausted. Woodford, 548 U.S. at 88–89; Wright v. Morris, 111 F.3d 414, 417 n.3 (6th Cir. 1997).
The only exception to exhaustion is when the administrative remedy process is unavailable, Ross v. Blake, 136 S. Ct. 1850, 1858 (2016), but it is a high burden for an inmate to make such a showing. See Tuckel v. Grover, 660 F.2d 1249, 1254 (10th Cir. 2011) (indicating that although defendants bear the initial burden to show that a plaintiff has failed to exhaust, upon making the showing, “the onus falls on the plaintiff to show that remedies were unavailable to him”). The Supreme Court, in Ross, identified only three circumstances in which a prisoner can show that the
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administrative remedy process is “unavailable”: (1) “when (despite what regulations or guidance materials may promise) it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) when “some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it’ and (3) “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1859–60.
An administrative process has been implemented within the BOP. Title 28 C.F.R. § 542.10, et seq., sets forth the BOP’s Administrative Remedy Program, which provides formal review of any complaint that relates to any aspect of the inmate’s confinement. Under this process, inmates are encouraged to first attempt resolution of their complaints informally by discussing the matter with a member of the Unit Team. See 28 C.F.R. § 542.13. If informal resolution is unsuccessful, the inmate may then file an administrative remedy request with the Warden within 20 calendar days following the date on which the basis for the request occurred. 28 C.F.R. § 542.14(a). If the inmate is dissatisfied with the Warden’s response, he may submit an appeal on the appropriate form to the appropriate Regional Director within 20 calendar days of the date the Warden signed his or her response. 28 C.F.R. § 542.15. If the inmate is dissatisfied with the regional response, he may file an appeal with the National Appeals Administrator at the Bureau of Prisons’ Central Office, in Washington, D.C. 28 C.F.R. § 542.15(a). The Central Office appeal is the final level of administrative
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review in the Bureau of Prisons’ administrative remedy process. Id. Here, Petitioners contend the administrative remedy process is “unavailable
as a mechanism for seeking to address the risks faced by the men at Butner.” Petition, D.E. 1 at 55 ¶ 202. The Court should take this for what it truly is: Petitioners’ self-serving opinion made without any factual support in an effort to avoid dismissal of their petition for failing to exhaust their administrative remedies. As discussed fully in the Declaration of Christina Kelley, while several of the Petitioners have utilized the administrative remedies process in other contexts, to include appealing the denial of their compassionate release requests, not a single one of the Petitioners has filed any administrative remedy request related to COVID-19, allegedly unconstitutional conditions of confinement, or the purported deliberate indifference of FCC Butner in reference to COVID-19. See Kelley Decl., R.A. 401–02 ¶¶ 9–16. Therefore, the BOP had no opportunity to administratively review these claims prior to being hauled into federal court.
Here, Petitioners present no evidence – and there is none – that the administrative remedy process is truly unavailable. Rather, Petitioners opine that the process takes too long and the system is overloaded. However, Petitioners’ argument that the process takes time in order to be effective fails, as it does not meet any of the exceptions outlined in Ross. And Petitioners’ argument that the system is somehow overloaded, excusing their requirement to exhaust, is similarly meritless, as Petitioner Dailey has been able to utilize the administrative remedy process all
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the way to a Central Office appeal on the issue of his compassionate release. See Kelley Decl., R.A. 401 ¶ 12. So it appears that it is not “unavailable” at all, but rather merely inconvenient for Petitioners, who want this Court to rule on their motion without following proper procedure. But as the Supreme Court has made clear, the Court lacks jurisdiction to do so, and should instead dismiss Petitioners’ petition for failure to exhaust under the PLRA.
C. Alternatively, Respondents are entitled to summary judgment as Petitioners cannot demonstrate that Respondents acted with deliberate indifference.
Even if the Court had jurisdiction to consider Petitioners’ habeas petition, it would fail on its merits. To demonstrate an Eighth Amendment violation, Petitioners must establish that Respondents acted with “deliberate indifference” towards Petitioners’ well-being by consciously disregarding an excessive risk of harm to their safety. Whitley v. Albers, 475 U.S. 312, 319 (1986) (“[O]nly the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment” (internal quotations omitted)). This entails proving two elements: first, Petitioners must show objectively that Respondents’ actions “constitute an unnecessary and wanton infliction of pain or [are] repugnant to the conscience of mankind.” Estelle v. Gamble, 429 U.S. 97, 105–06 (1976). In the context of exposing prisoners to risk of disease, a claim must be dismissed if it does not pose a threat that is so severe that it would be “contrary to current standards of decency for anyone to be so exposed.” Helling v. McKinney, 509 U.S. 25, 35 (1993) (emphasis
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added); Farmer v. Brennan, 511 U.S. 825, 844–45 (1994) (“A prison official’s duty under the Eighth Amendment is to ensure ‘reasonable safety,’ a standard that incorporates due regard for prison officials’ unenviable task of keeping dangerous men in safe custody under humane conditions.”). Second, Petitioners must show the Respondents “know[] of and disregard[] an excessive risk to inmate health or safety.” Id. at 837; see also Miltier v. Beorn, 896 F.2d 848, 851 (4th Cir. 1985) (holding that conduct must be “so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness” to constitute deliberate indifference to a serious medical need). “The official must be both aware of facts from which the inference could be drawn that a substantial risk of harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837. “[G]eneral knowledge of facts creating a substantial risk of harm is not enough,” rather, the “official must also draw the inference between those general facts and the specific risk of harm.” Johnson v. Quinones, 145 F.3d 164, 168 (4th Cir. 1998); see also Rich v. Bruce, 129 F.3d 336, 340 (4th Cir. 1997).
It is undisputed that COVID-19 poses significant health risks to both the world community at large, as well as to prison populations. However, while those general health risks may be relevant, they are not “repugnant to the conscience of mankind,” Estelle, 429 U.S. at 105–06, or “contrary to current standards of decency,” Helling, 509 U.S. at 35. This is particularly so in the context of a worldwide pandemic that led health officials to advise issuing stay-at-home orders and to issue guidance to
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correctional facilities to, among other things, not transfer prison inmates. See Centers for Disease Control and Prevention Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities [hereinafter “CDC Interim Guidance”], 9.14
COVID-19 poses risks confronting not only prisoners but law abiding citizens nationwide, including front-line workers and vulnerable nursing home patients. The CDC has issued guidance for appropriately mitigating the risks in correctional facilities, which includes detailed recommendations about proper hygiene and cleaning practices, social distancing, evaluating symptoms, and the use of medical isolation and quarantine. CDC Interim Guidance, 3. The CDC guidance explains that inmates may continue to be detained in “housing units” in which bunks “ideally” are separated by at least six feet, but that such separation and other “social distancing strategies” involving recreation, meals, and other activities “need to be tailored to the individual space in the facility.” CDC Interim Guidance, 11 (emphasis omitted). That expert guidance directly contradicts Petitioners’ self-serving rendition, as well as their contention that the perceived risks at FCC Butner are such that contemporary societal standards wholly forbid them.15
14 CDC Interim Guidance is available at https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html. 15 CDC guidance provides a useful benchmark in determining whether the facility’s policies and procedures are appropriate. Although Respondents have followed the guidelines recommended by the CDC, any alleged hypothetical failure to follow such guidelines simply does not, without more, state a constitutional violation. See e.g. Hickox v. Christie, 205 F.Supp.3d 579 (D.N.J. Sept. 2, 2016).
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Moreover, since January 2020 and in order to combat the spread of COVID-19 at its institutions, BOP has been coordinating with subject-matter experts at multiple organizations and agencies, including the CDC – a fact that, alone, undercuts Petitioner’s unfounded claims of deliberate indifference.16 As a result of these ongoing efforts, BOP implemented a multi-phased operational Action Plan seeking to “mitigate the spread of COVID-19” among inmates and staff, continue effective operations of the federal prison system, and ensure that staff remain healthy and available for duty. Id. Regarding implementation of the Action Plan, personnel at FCC Butner are using an entire team of medical professionals to diagnose, treat, and mitigate the spread of COVID-19. See Stock Decl., R.A. 094–95 ¶ 24. BOP has also established several quarantine units at FCC Butner, engaged in comprehensive testing and symptom checks, purchased specialized cleaning products, distributed personal protective equipment, and disseminated information on how to protect both inmates and staff from infection. See Stock Decl., R.A. 104–05 ¶¶ 61–66; Harden Decl., R.A. 353 ¶ 5; Martinez Decl., R.A. 358, 360 ¶¶ 8–9, 14. Under these circumstances, there is no legal basis to conclude BOP is violating “current standards of decency” or that BOP is taking actions that “constitute an unnecessary and wanton infliction of pain or [are] repugnant to the conscience of mankind.” Helling, 509 U.S. at 35; Estelle, 429 U.S. at 35.
16 See Federal Bureau of Prisons COVID-19 Action Plan, https://www.bop.gov/resources/news/20200313_covid-19.jsp (last visited June 2, 2020).
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Additionally, Petitioners fail to show that Respondents (the Director of the BOP, the Medical Director of the BOP, and the Warden of FCC Butner) had the subjective “intent” to turn the living conditions at FCC Butner, specifically, into “punishment” that violates the Eighth Amendment. Where challenged conditions are “not formally meted out as punishment by the statute or the sentencing judge,” officials will impose “punishment” only if they “act with a sufficiently culpable state of mind,” Wilson v. Seiter, 501 U.S. 294, 298, 300 (1991), which is demonstrated “only [by] the unnecessary and wanton infliction of pain,” Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 297); see, e.g., Estelle, 429 U.S. at 104.
Whether an official’s conduct can be deemed “‘wanton’ depends upon the constraints facing the official.” Wilson, 501 U.S. at 303 (emphasis omitted); see Whitley, 475 U.S. at 320. “[D]eliberate indifference” can constitute “wanton” intent in prison-condition contexts because “as a general matter” the Government’s responsibility to rectify dangerous conditions “‘does not ordinarily clash with other equally important governmental responsibilities’” or implicate unusual “constraints” on its action. Wilson, 501 U.S. at 302–03 (quoting Whitley, 475 U.S. at 320). Like the criminal-law “mens rea requirement” for “subjective recklessness,” that standard requires proof that officials “know[] of and disregard[] an excessive risk of inmate health or safety,” Farmer, 511 U.S. at 836–837, 839–40, i.e., they must “‘consciously disregard’” that risk by subjectively recognizing it while failing to “respond[] reasonably.” Id. at 839, 844 (brackets and citation omitted). That subjective inquiry
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“incorporates due regard for [officials’] ‘unenviable task of keeping dangerous men in safe custody under humane conditions,’” Farmer, 511 U.S. at 845 (citation omitted), by “leav[ing] ample room for professional judgment, constraints presented by the institutional setting, and the need to give latitude to administrators who have to make difficult trade-offs as to risks and resources,” Battista v. Clarke, 645 F.3d 449, 453 (1st Cir. 2011). Recognizing that the judiciary is “ill equipped to deal with the difficult and delicate problems of prison management,” Thornburgh, 490 U.S. at 407– 08 (1989) (internal quotations omitted), the Supreme Court has emphasized that courts must use “caution” in exercising their equitable power and warned that they may not “‘enmesh[]’” themselves “‘in the minutiae of prison operations,’” Farmer, 511 U.S. at 846–47 (citation omitted). Notably, a “lack of due care” or other “error in good faith” is insufficient to show wantonness. Wilson, 501 U.S. at 299 (citation and emphasis omitted).
Here, Petitioners have not shown wantonness. Aside from generally alleging “knowledge” of the health risks presented by COVID-19, Petitioners have altogether failed to allege any specific facts that even remotely suggest that Respondents—three very high-level BOP officials—have decided to ignore conditions at FCC Butner, specifically, such that they have a subjective intent to punish the inmates housed there. Nor can Petitioners make that showing. To the contrary, the three high-level BOP and FCC Butner officials (and others) have affirmatively sought to mitigate COVID-19’s risks by adhering to, and going beyond, BOP and CDC guidelines and
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recommendations. Their concerted efforts to mitigate the spread of COVID-19 are neither wanton nor punitive.
To the contrary, FCC Butner officials have consciously confronted the risks posed by this public health crisis by modifying its operations to implement CDC Guidelines, the BOP action plans, and the Attorney General’s direction for the BOP to immediately review all inmates who have COVID-19 risk factors, as established by the CDC. FCC Butner officials have fully implemented these plans and directives, and have even taken additional preventative steps in an attempt to mitigate the risks of the COVID-19 virus.
Specifically, in January 2020, BOP implemented an action plan consistent with WHO and CDC recommendations, to combat the spread of COVID-19 in individual facilities. See Strassel Decl., R.A. 132–33 ¶ 7. Over the course of the crisis, BOP has updated that plan on several occasions. Currently, BOP has implemented seven phases of the plan. See Strassel Decl., R.A. 155 ¶ 73. As a result of this plan, FCC Butner has initiated screening tools for inmates and staff. See Strassel Decl., R.A. 133, 134–35 ¶¶ 8, 13. FCC Butner also modified operations to ensure social distancing between inmates and staff, including altering inmate movement, so that smaller groups went to dining hall, education, recreation, chapel, and other activities at any given time. See Strassel Decl., R.A. 135 ¶ 14. Each institution across the Complex had modified movement schedules to increase social distancing and limit contact between inmates. See Strassel Decl., R.A. 135 ¶ 14. Subsequently, FCC
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Butner began satellite feeding all inmates in their assigned units or cells, and small group gatherings were halted for education, chapel, recreation, and all other instances where inmates were previously permitted to meet. FCC Butner began providing those services in a modified manner in the individual cells and housing units. See Strassel Decl., R.A. 137 ¶ 22.
FCC Butner also began quarantining all incoming inmates and established quarantine and isolation units at each institution. See Strassel Decl., R.A. 135–36 ¶¶ 14, 18. FCC Butner has continually educated both staff and inmates on the procedures set up as well as the prevention, contraction, and transmission of the virus. See Strassel Decl., R.A. 136–37 ¶¶ 19, 20. All staff have been provided with Personal Protection Equipment (“PPE”) which includes surgical masks and N-95 masks. See Strassel Decl., R.A. 140 ¶ 32. All inmates have been provided with cloth masks which are to be worn at all times. See Strassel Decl., R.A. 148 ¶ 56. FCC Butner is also conducting COVID-19 testing in accordance with CDC guidelines. See Harden Decl. R.A. 353 ¶ 5. FCC Butner is also isolating inmates who present with COVID-19-like symptoms; and quarantining asymptomatic inmates who have contracted the virus. See Stock Decl., R.A. 104–05 ¶¶ 61–67.
During the course of the crisis, FCC Butner also implemented enhanced sanitation plans including daily cleaning and sanitizing all common areas; and providing inmates with disinfectant cleaners, and continuous access to soap, water, and sanitizers. See Martinez Decl., R.A. 358, 360 ¶ 8–9, 14.
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Additionally, in accordance with the Attorney General’s direction to maximize its authority to place inmates on home confinement for service of their sentence of imprisonment, FCC Butner staff have evaluated at least 932 inmates under the CARES Act. See Clark Decl., R.A. 021 ¶ 32. At least 87 inmates have been referred for placement on home confinement, 42 inmates have been transferred to home confinement and 9 inmates have been transferred to Residential Re-entry Centers (“RRC”). See Clark Decl., R.A. 021 ¶ 32. An additional 24 inmates are pending transfer to home confinement of an RRC. See Clark Decl., R.A. 021 ¶ 32. Twentyfour inmates are currently awaiting final decision from the BOP’s Residential Reentry Management Office, regarding their referral for home confinement. See Clark Decl., R.A. 022 ¶ 33. Since late March 2020, an additional 56 inmates have been released from FCC Butner via compassionate release granted by the individual’s sentencing court based upon various issues, including COVID-19. See Clark Decl., R.A. 022 ¶ 34.
The limited availability of habeas jurisdiction reflects Congress’s deference to BOP in the administration of correctional institutions, as well as the reality that courts are “ill equipped to deal with the difficult and delicate problems of prison management.” Thornburgh, 490 U.S. at 407–08 (internal quotations omitted). The operation of a correctional complex such as FCC Butner involves a wide range of social and economic considerations, which is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are
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peculiarly within the province of the legislative and executive branches of government.” Turner v. Safley, 482 U.S. 78, 84–85 (1987). Simply put, the federal courts are “out of the business of running jails.” Benjamin v. Jacobson, 172 F.3d 144, 182 (2d Cir. 1999) (discussing the PLRA) (en banc) (Calabresi, J., concurring); see also Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 655 (1st Cir. 1997) (noting that Congress enacted the PLRA “to oust the federal judiciary from day-to-day prison management”).
In many respects, Petitioners’ claims hinge on Wilson v. Williams, No. 20-794, 2020 1940882 (N.D. Ohio Apr. 22, 2020). But that case bears no factual resemblance to this case. And the district court’s exercise of habeas jurisdiction in that case has been criticized and cannot be reconciled with Fourth Circuit decisions.17 Moreover, in asserting jurisdiction over the matter, the Wilson court found that the BOP, and specifically FCI Elkton, was deliberately indifferent to the inmate population’s needs in light of the COVID-19 pandemic. These facts are in stark contrast to the situation here, where there is absolutely no evidence that Respondents were deliberately indifferent to the global health crisis. Rather, as set forth above, FCC Butner effectively implemented the BOP’s Action Plan, using an entire team of medical professionals to diagnose, treat, and mitigate the spread of COVID-19. Thus, the
17 See Livas, 2020 U.S. Dist. LEXIS 71323, *22 n.10. The Wilson court also conceded that it was having difficulty applying the “bright line rules” of habeas jurisdiction given the expedited nature and facts of the case. See Wilson, 2020 U.S. Dist. LEXIS 70674, at *13.
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Wilson case is not instructive. Similarly, in Martinez-Brooks v. Easter, No. 20-569, 2020 2405350 (D. Conn.
May 12, 2020), the district court was confronted with a much different factual scenario than this case. There, the extent to which the warden had “implemented adequate measures to control the COVID-19 outbreak at FCI Danbury and protect inmates [wa]s hotly disputed.” Id. at *12. Contrasting those facts, it is abundantly clear that FCC Butner has implemented the BOP’s Action Plan and is using an entire team of medical professionals to diagnose, treat, and mitigate the spread of COVID19. See Stock Decl., R.A. 088–93 ¶ 10–22. BOP has also established several quarantine units throughout the FCC Butner complex, engaged in comprehensive testing and symptom checks, purchased specialized cleaning products, distributed personal protective equipment, and disseminated information on how to protect both inmates and staff from infection. See Stock Decl., R.A. 104–05 ¶¶ 61–66; Harden Decl., R.A. 353 ¶ 5; Martinez Decl., R.A. 358, 360 ¶¶ 8–9, 14. Thus, Martinez-Brooks does not help Petitioners either.
It is indisputable that BOP is taking significant measures to address the spread of coronavirus among the inmate population at FCC Butner. While Petitioners believe more or different actions should be taken, a disagreement about the measures being taken does not rise to the level of deliberate indifference. Indeed, numerous other courts have already rejected similar claims. See Wragg, 2020 WL 2745247; Nellson, 2020 WL 1890670, at *6; see also, Order, Lucero-Gonzalez, et al, v.
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Kline, et al., No. 2:20-cv-901 (D. Ariz., June 2, 2020) (finding very fact that defendant correctional complex has enacted policies to address the risks posed by COVID-19, supports that they have not been subjectively indifferent to Plaintiffs); Swain v. Junior, 2020 WL 216137, at *4 (11th Cir. May 12, 2020); Valentine v. Collier, 956 F.3d 797, 802 (5th Cir. April 22, 2020); see also Wright v. Collins, 766 F.2d 841, 849 (4th Cir. 1985) (noting that an inmate does not establish an Eighth Amendment violation (or, in other words, the existence of deliberate indifference) merely because he disagrees with prison officials’ decisions on how to treat a medical condition, or finds such treatment “insufficient”).
At its core, Petitioners’ Eighth Amendment claim is that FCC Butner has failed to ensure social distancing among the inmate population. Indeed, according to Petitioners, “reducing the Butner population is the only way to halt the serious ongoing and irreparable harm of COVID-19.” Pet. Mem. 11; D.E. 25 at 19. However, as the Supreme Court has cautioned, the inability of a defendant to take an action that a plaintiff seeks will likely not constitute a reckless state of mind. Wragg, 2020 WL 2745247, *22, citing Farmer, 511 U.S. at 835. In other words, “[t]hat physical distancing is not possible in a prison setting, as Petitioners urge, does not an Eighth Amendment claim make.” Id.; cf. CDC Interim Guidance, 11.
Simply put, Petitioners fail to make out a deliberate indifference claim. Instead, the overwhelming evidence clearly shows that officials within the BOP and at FCC Butner are taking the coronavirus very seriously and have taken critical steps
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in an effort to mitigate or prevent the impact of COVID-19 at FCC Butner. Those efforts have been successful. Although the FCC Butner infection rate may be higher than the general population, the FCC Butner mortality rate of approximately 2.1%, is lower than the rates for the general population nationally and in North Carolina, which suggests that FCC Butner’s efforts have been effective in managing infections and treating inmates. Accordingly, the Court should grant summary judgment for the United States and dismiss Petitioners’ habeas petition.
D. It is facially apparent that there is no ascertainable class, and the Court should therefore dismiss Petitioners’ class allegation.
Notwithstanding Petitioners’ failure to move to certify their putative class, it is evident that it fails to satisfy Rule 23(a)’s requirements of ascertainability, numerosity, commonality, typicality, and adequacy of representation. See EQT Prod. Co. v. Adair, 764 F.3d 347, 359–60 (4th Cir. 2014) (citing Fed. R. Civ. P. 23).
A class action allows representative parties to prosecute not only their own claims, but also the claims of other individuals that present similar issues. Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 318 (4th Cir. 2006). The use of a class action is based upon judicial efficiency because the action can potentially resolve common issues that impact all class members in a single lawsuit. Id. Courts, however, must ensure that “the rights of absent plaintiffs to assert different claims and of defendants to assert facts and defenses specific to individual class members” are protected, which requires courts to “conduct a ‘rigorous analysis’ of whether a proposed class action meets the requirements of Rule 23 before certifying a class.”
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Robinson v. Nationstar Mortg. LLC, No. CV TDC-14-3667, 2019 WL 4261696, at *15 (D. Md. Sept. 9, 2019) (quoting Thorn, 445 F.3d at 318). Courts need not wait until a plaintiff has formally moved to certify its class to dismiss a class allegation. If it is apparent from the pleadings that there is no ascertainable class, courts may dismiss the class allegation on the pleadings. See John v. Nat’l Sec. Fire and Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007); cf. Gunnells v. Healthplan Serv., Inc., 348 F.3d 417, 458 (4th Cir. 2003) (it is the plaintiff’s burden to show that all of the necessary prerequisites for a class action have been met).
Here, Petitioners’ class allegation should be dismissed. Even if Petitioners eventually move to certify their proposed class, they will not be able to meet the requirements for certification. First, Petitioners’ proposed class will not meet the threshold requirement that its members are “readily identifiable” or “ascertainable” by the Court through “objective criteria.” See EQT, 764 F.3d at 359–60. Petitioners “seek to represent a class consisting of all current and future incarcerated persons at Butner . . . during the outbreak of COVID-19,” which currently stands at 4,386 individuals.18 See Petition, D.E. 1 at 60 ¶ 223. Petitioners identify this as “the Class,” and also identify a subclass they call the “Medically Vulnerable Subclass.” Id. at 60– 61 ¶ 224. Their subclass includes: all inmates over age 50; or inmates of any age who have conditions that fall into any one of 11 amorphous categories and/or
18 See BOP.gov, https://www.bop.gov/about/statistics/population_statistics.jsp (last viewed June 3, 2020) (the current total of inmates at Butner facilities FMC, LSCI, FCI I, and FCI II is 4,386).
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subcategories of medical conditions.19 Id. Although it is not necessary for Petitioners to identify every class member for
their class to be “ascertainable,” their class cannot be certified if its membership will have to be determined through “individualized fact-finding.” See EQT, 764 F.3d at 358 (internal quotation marks omitted). In this case, it is impossible to ascertain who the putative class is, with or without fact finding. This Court cannot foresee who the “future incarcerated persons” will be at the end of the “outbreak of COVID-19,” nor is it clear what the vague term “outbreak” even means.20 See Petition, D.E. 1 at 60 ¶ 223. But even if Petitioners only sought to include in the class those inmates who are imprisoned on the date of an order granting their petition, it would still require an exhaustive review of the medical records of every single one of the 4,386 Butner inmates to determine their eligibility for the subclass—and that is true even if the review were as basic as inquiring into the age and health status of the prisoner. That is—at the risk of stating the obvious—a review of individual inmates’ medical records will require individualized fact finding with respect to those inmates to determine whether they have one of potentially innumerable underlying conditions that could be categorized as “lung disease” or “heart disease” or “a developmental disability.”
19 The most meaningful difference between the class and subclass appears to be that the subclass will be at the front of the line when the process of mass release begins. See generally Petition, D.E. 1 at 66–70 ¶ 258. 20 When, for example, does an “outbreak” end and the resumption of a “new normal” life (notwithstanding the presence of COVID-19) begin? Petitioners offer no answer to this metaphysical question, and therefore provide no guidance to the Court on how, exactly, to determine the outer bounds of the proposed class.
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See Petition, D.E. 1 at 60–61 ¶ 224. Because Petitioners cannot satisfy the threshold
question of ascertainability, the Court should dismiss the class allegation.21
Even if Petitioners could establish that they have an ascertainable class, they
must satisfy all four elements of Rule 23(a): numerosity, commonality, typicality, and
adequacy. For the purposes of the analysis in this case, commonality and typicality
are the only two relevant factors.22
To show commonality, “[w]hat matters . . . is not the raising of common
questions—even in droves—but, rather, the capacity of a classwide proceeding to
generate common answers apt to drive the resolution of the litigation.” Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (internal quotation marks omitted).
That is, to satisfy Rule 23(a)(2), each class member’s claim must depend upon a
common contention “of such a nature that it is capable of classwide resolution—which
means that the determination of its truth or falsity will resolve an issue that is central
to the validity of each one of the claims in one stroke.” Id.; See, e.g., Flint v. Ally Fin.
Inc., No. 319-CV-00189, 2020 WL 1492701, at *4 (W.D.N.C. Mar. 27, 2020) (“A
21 See, e.g., Wragg, 2020 WL 2745247, at *28 (rejecting class certification, in part, because “the Court would be required to engage in an intensive, multi-step, individualized inquiry as to whether each prisoner met [the] criteria for conditional release”); see also Money, 2020 WL 1820660, at *14 (refusing to certify class of inmates seeking COVID-19 furlough, noting the problem of “individualized consideration of any inmate’s suitability for release and on what conditions”); SacalMicha v. Longoria, No. 1:20-cv-37, 2020 WL 1518861, at *5 (S.D. Tex. Mar. 27, 2020) (noting the “fact-specific nature of the analysis” required to release an individual from federal custody based on the presence of COVID-19).
22 Petitioners appear to satisfy the requirement of numerosity (a proposed class of over 4,386 inmates) and are adequately represented by counsel.
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common question is one that can be resolved for each class member in a single hearing, such as the question of whether an employer engaged in a pattern and practice of unlawful discrimination against a class of its employees.”).
The question of commonality in this instance boils down to the following inquiry: If Butner officials unquestionably failed to provide adequate opportunities for social distancing during the coronavirus pandemic, would it settle the question of whether every inmate’s Eighth Amendment rights were violated by the BOP? The answer is no. As explained above, supra Argument, Part C, the alleged lack of adequate social distancing at Butner cannot per se establish “deliberate indifference” on the part of prison officials. See Farmer, 511 U.S. at 828. For inadequate social distancing to be actionable it would have to be complemented by the prison officials’ abject failure to make any effort to protect the prison population from the coronavirus.23 That is certainly not the case here. See generally Stock Decl., R.A. 104–05 ¶¶ 61–66; Strassel Decl. 134 –37; Martinez Decl., R.A. 358, 360 ¶¶ 8–9, 14.
The alleged lack of social distancing might provide supportive evidence of indifference, but it is by no means the answer to the Eighth Amendment inquiry. Consequently, Petitioners have failed to establish commonality.
23 Petitioners’ claim rests, in part, on the idea that there is a static standard for adequate social distancing; but social distancing is a constantly moving target to which governments, private businesses, and individuals are regularly adjusting as this unpredictable pandemic runs its course. The standards necessarily must leave room for flexibility. See, e.g., CDC Interim Guidance, 11 (stating that prisoner bunks are “ideally” separated by at least six feet and “social distancing strategies . . . need to be tailored to the individual space in the facility”).
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As for typicality, the named Petitioners must be “typical” of the class, such that that the class representative’s claims and defenses are “typical of the claims or defenses of the class” in that prosecution of the claims will “simultaneously tend to advance the interests of the absent class members.” Fed. R. Civ. P. 23(a)(3); Deiter v. Microsoft Corp., 436 F.3d 461, 466–67 (4th Cir. 2006). Petitioners’ claims “cannot be so different from the claims of absent class members that their claims will not be advanced by” proof of the Petitioners’ own individual claims. Id. That is, in the instant case, the goals of the named Petitioners must align closely enough with those of all class members that it is fair to say that the Petitioners are “typical” of all Butner inmates.
Petitioners’ whole premise of class certification is that, under the circumstances, the ideal solution for inadequate social distancing at Butner is releasing prisoners. This view is short-sighted and fails to appreciate the diversity of needs within the prison population. There are inmates—especially the most infirm—who may fare horribly if they are released from prison or transferred to other facilities that lack the medical attention that is customarily available to them at Butner. See Stock Decl., R.A. 114–15 ¶ 116. There are other inmates who may be released into public settings and suffer the devastating impact of being thrust into society overnight in the name of keeping them safe. Many (if not most) of these inmates do not have adequate support systems, job prospects, or the income to face life outside of prison. Without the thoughtful release of prisoners that is provided by
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Butner’s reentry program, inmates will be forced out of prison without an opportunity to prepare for the challenges that come with reentering life outside the walls. See Stock Decl., R.A. 114–15 ¶ 116. Further, shifting inmates to other facilities may result in the loss of programming that may only be available to prisoners at Butner. It may also be in the best interest of the prisoner (and the public) for him to remain incarcerated. Butner inmates have been incarcerated for all manner of crimes and remaining in custody for the full term of their sentences can provide a valuable opportunity for them—not only to face the consequences of their actions and reconsider living a life of crime upon their release—but to get the substance-abuse treatment, sex-offender treatment, vocational training, and other programming they may need (which may not be available at other BOP facilities and may not be affordable in the private sector). Simply put, social distancing by way of immediate release or transfer may actually be the worst thing that could happen to some of the putative class members.
The characteristics and needs of Butner inmates are diverse, and blunt force social distancing demanded by the few is not the answer for the many. Each putative class member comes with a unique situation—different criminal histories, crimes, sentences, release dates, ages, medical histories, disciplinary actions, places of incarceration, nearness to infected inmates, availability of supportive services and shelter outside of the prison, likelihood of transmitting COVID-19 to someone outside
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of the prison, likelihood of recidivism, and danger to the public.24 The one purported concern for the public expressed by Petitioners is that staff
members might contract COVID-19, exit the prison after their workday, and potentially expose their communities to the coronavirus. See Petition, D.E. 1 at 7, 58–59. Petitioners are otherwise silent about the impact on community members who will suddenly have to live, work, and socialize in close proximity to prematurely freed convicts. Indeed, Petitioners’ entire remedial scheme assumes that release of some kind will provide a blanket solution that resolves the burden that COVID-19 has placed on society. It does not, however, consider the fact that many of the prisoners they seek to release may be asymptomatic, thereby running the risk of infecting community members they come into contact with once they are released. Essentially, Petitioners’ proposed remedy reveals a total lack of concern for the public (and even for their fellow proposed class members), and as a matter of public policy, it is inadvisable to certify the action in order to resolve common issues that impact all class members without considering the impact their certification may have on the
24 Two of the eleven Petitioners have been convicted of murder; and as Petitioners anecdotally note, one of the murderers actually had his parole rescinded after the family of his victim objected to Petitioner’s release. See Petition, D.E. 1 at 7, 9 ¶¶ 25, 29. Petitioners’ reference to this episode appears to infer that an injustice was wrought by the victim’s family—an injustice that can only be corrected by the murderer’s immediate discharge from incarceration. Moreover, Petitioners’ highly abbreviated biographies alone demonstrate that they do not even adequately represent one another, considering the fact that these 11 inmates have different release dates, criminal histories, and medical conditions (if any), and their ages span over 45 years (ages 34 to 79). See Petition, D.E. 1 at 7–10 ¶¶23–36.
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public. As one court recently observed in a nearly identical case:
Conspicuously absent in Petitioners’ analysis is any meaningful discussion of the risks associated with a large scale release of inmates. What would be the plan that addresses the safety and security of the communities to where they are released? Is the proper supervision even available given that the current COVID-19 crisis is just as real to the law enforcement officers in charge of safety and supervision? In the end, the Court finds that the balance of equities and the public interest favor the Respondents who have been charged with maintaining the administration of FCI Fort Dix to include the safety of its inmates. “Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.” Turner v. Safley, 482 U.S. 78, 84–85 (1987). “Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint” by this Court. Id.
Wragg, 2020 WL 2745247, at *23.
If the named plaintiff satisfies the requirements of numerosity, commonality,
typicality, and adequacy of representation under Rule 23(a)—which Petitioners here
do not—the Court must still find that the proposed class action fits into one of the
categories of class action under Rule 23(b) in order to certify the class. A class action
may be maintained under Rule 23(b)(3) if common questions of law or fact
“predominate over any questions affecting only individual members” and a “class
action is superior to other available methods for fairly and efficiently adjudicating
the controversy.” Fed. R. Civ. P. 23(b)(3). Factors “pertinent” to the predominance
and superiority requirements include the “class members’ interests in individually
controlling” the litigation, whether litigation on the matter has already been begun
by other class members, whether concentrating the litigation in one forum is
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desirable or undesirable, and the potential difficulties managing the class action presents. Id.
Although similar to Rule 23(a)’s commonality requirement, the test for predominance under Rule 23(b)(3) is “far more demanding” and “tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Prods. v. Windsor, 521 U.S. 591, 623–24 (1997). Rule 23(b)(3) also requires that the proposed class action be superior to other methods of adjudication so that the class action will “‘achieve economies of time, effort, and expense, and promote . . . uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.’” Id. at 615. Only if the named plaintiff satisfies all of the Rule 23(a) requirements and the Rule 23(b)(3) requirements, is class certification appropriate.
With respect to the requirement of predominance, in the instant case, although the implementation of allegedly harmful prison procedures by Respondents is common to all class members, Respondents’ treatment of individual class members is not. Some prisoners have been evaluated on an individual basis, and in other cases prisoners have been already recommended for home confinement. See Clark Decl., R.A. 021–22 ¶ 30–34. These inconsistencies in the implementation of prison procedures demonstrates that the requirement of predominance has not been satisfied.
With respect to superiority, Petitioners seek the remedy of home confinement
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or early release, but absorption of these claims into a class action is an ineffective means of evaluating the suitability of individual prisoners for release. Further, “class members arguably have an interest in being able to submit individual petitions for compassionate release immediately, highlighting their particular conditions and suitability, rather than being required to wait for class-wide resolution.” Wragg, 2020 WL 2745247, at *23. Therefore, to the extent that any of Petitioners’ claims are viable, they could not be brought on a class-wide basis.
In short, Petitioners fail to meet the requirements for class certification. Therefore, although Petitioners have not moved to certify their class, in the interest of judicial efficiency, this Court should dismiss the class allegation on the pleadings.
CONCLUSION As set forth above, the Court should dismiss Petitioners’ petition for a writ of habeas corpus, in its entirety, for lack of jurisdiction. Alternatively, the Court should dismiss Petitioners’ claims for failure to exhaust under the PLRA, or should grant summary judgment for Respondents on the merits. Finally, the Court should dismiss Petitioners’ class allegation, as the purported class does not meet the requirements.
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Respectfully submitted this 3rd day of June, 2020.
ROBERT J. HIGDON, JR. United States Attorney
By: /s/ Genna D. Petre GENNA D. PETRE Special Assistant United States Attorney Email: genna.petre@usdoj.gov N.C. Bar # 49466
By: /s/ Michael Bredenberg MICHAEL BREDENBERG Special Assistant United States Attorney Email: michael.bredenberg@usdoj.gov N.C. Bar # 26068
By: /s/ Joshua L. Rogers JOSHUA L. ROGERS Assistant United States Attorney Email: Joshua.Rogers4@usdoj.gov Mississippi Bar # 101468 U.S. Attorney’s Office, Civil Division 150 Fayetteville Street, Suite 2100 Raleigh, NC 27601 Telephone: (919) 856-4530
(919) 575-3900 Facsimile: (919) 856-4821 Attorneys for the Respondents
Of Counsel: Mallory Brooks Storus Special Assistant U.S. Attorney
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CERTIFICATE OF SERVICE I hereby certify that I have this 3rd day of June, 2020, served a copy of the foregoing upon Petitioners’ counsel of record by filing the same via the District Court’s CM/ECF Document Filing System.
/s/ Genna D. Petre GENNA D. PETRE Special Assistant U.S. Attorney U.S. Attorney’s Office Civil Division 150 Fayetteville Street, Suite 2100 Raleigh, NC 27601 Telephone: (919) 856-4530
(919) 575-3900 x 6076 Facsimile: (919) 856-4821 Email: genna.petre@usdoj.gov N.C. Bar # 49466 Attorney for the Respondents
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 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:20-HC-2088-FL

CHARLES HALLINAN, JOSEAN

)

KINARD, ARNOLD J. HILL,

)

BENJAMIN D. McRAE, JOHN DAILEY, )

LEE M. AYERS, GEORGE B. RIDDICK, )

JORGE LUIS MALDONADO, ANTWAN )

HARRIS, ANTHONY BUTLER, and

)

TROY A. TITUS, on behalf of themselves )

and similarly situated individuals,

)

)

Petitioners/Plaintiffs,

)

)

v.

)

)

WARDEN THOMAS SCARANTINO,

)

MICHAEL CARVAJAL, and JEFFERY )

ALLEN,

)

)

Respondents/Defendants. )

ORDER

This matter is before the court on motion for temporary restraining order, preliminary injunction, and writ of habeas corpus, filed May 28, 2020, by petitioners/plaintiffs (“petitioners”). (DE 24). Issues raised are ripe for ruling. For the following reasons, petitioners’ motion is denied.
STATEMENT OF THE CASE Petitioners Charles Hallinan (“Hallinan”), Josean Kinard (“Kinard”), Arnold J. Hill (“Hill”), Benjamin D. McRae (“McRae”), John Dailey (“Dailey”), Lee M. Ayers (“Ayers”), George B. Riddick (“Riddick”), Jorge Luis Maldonado (“Maldonado”), Antwan Harris (“Harris”), Anthony Butler (“Butler”), and Troy A. Titus (“Titus”), federal inmates represented by counsel, filed May 26, 2020, petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and class

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action complaint for injunctive and declaratory relief. Petitioners allege respondents Thomas Scarantino (“Scarantino”), the warden of the Federal Correctional Complex in Butner, North Carolina (“FCC-Butner”), Michael Carvajal (“Carvajal”), the Federal Bureau of Prisons (“FBOP”) director, and Jeffrey Allen (“Allen”), the FBOP medical director, are violating their rights under the Eighth Amendment to the United States Constitution. Specifically, petitioners assert respondents have failed to control the spread of the virus that causes COVID-19 within FCCButner, thus exposing them to a substantial risk of contracting the disease.
Petitioners seek to represent a class of similarly situated federal inmates at FCC-Butner and a “medically vulnerable subclass” of inmates over age 50 or who have certain preexisting health conditions that expose them to greater risk of complications if they contract COVID-19. The petition seeks immediate injunctive and declaratory relief pursuant to 28 U.S.C. §§ 1331, 2201-02, and 2243.
On May 29, 2020, the court completed its initial review of the petition and ordered respondents to file expedited responsive pleading on or before June 3, 2020. On May 30, 2020, petitioners filed the instant motion for temporary restraining order, preliminary injunction, and writ of habeas corpus pursuant to Federal Rule of Civil Procedure 65 and 28 U.S.C. § 2241. Petitioners request that the court immediately order the following relief: 1) order respondents to identify, within one day, all people incarcerated at FCC-Butner who fit within the medically vulnerable subclass; 2) appoint an expert to determine appropriate categories of release for each subclass member within 48 hours of entering the order or injunction; 3) require release, without quarantining at FCC-Butner, of all persons identified as appropriate for release within 24 hours of creation of the expert list; and 4) order respondents to prepare a COVID-19 mitigation plan to be
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submitted to the court within 48 hours and overseen by a qualified public health expert pursuant to Federal Rule of Evidence 706.
Petitioners define “release” as the discharge of subclass members from FCC-Butner, which may include enlargement of custody to home confinement or community corrections placements (halfway houses), release to community supervision, or furloughs to another medical facility, hospital, or halfway house. Petitioners’ proposed mitigation plan contains numerous public health directives designed to prevent the spread of COVID-19 at FCC-Butner, and proposals for providing medical care to those inmates who have developed the disease.
In support of the instant motion, petitioners rely upon 1) their personal declarations, with exhibits thereto; 2) declarations of current and former inmates Roger Duane Goodwin (“Goodwin”), Michael Harrington (“Harrington”), Lewis Donnell Huntley (“Huntley”), John Krokos (“Krokos”), Randy Flores Ortiz (“Ortiz”), and William Robert Whyte (“Whyte”); 3) declarations of proposed experts Chris Breyer, M.D., M.P.H., Joe Goldenson, M.D., and Dan Pacholke, with exhibits thereto; 4) FBOP press releases; 5) memoranda from Attorney General William Barr to respondent Carvajal; 6) memorandum from Andre Matevousian and L. Cristina Griffith to FBOP executive officers; 7) Centers for Disease Control and Prevention’s (“CDC”) guidelines, information sheets, and reports regarding COVID-19; 8) court filings and orders in United States v. El-Hanafi, No. 1:10-CR-162-KMW (S.D.N.Y.), United States v. Thompson, No. 1:15-CR-448 (E.D. Ill.), and United States v. Krokos, No. 12-CR-527 (C.D. Cal.); and 9) screenshots of the FBOP’s coronavirus website as of March 31 and April 27, 2020.
On May 29, 2020, the court directed respondents to file response to the instant motion by June 3, 2020. On May 29, June 1, June 2, and June 4, 2020, petitioners filed notices of subsequent
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facts and supplemental declarations of counsel reporting six inmate deaths and one staff death at FCC-Butner related to COVID-19.
On June 3, 2020, respondents timely filed their opposition to the instant motion for temporary restraining order or preliminary injunction. That same day, respondents filed motion to dismiss or in the alternative for summary judgment. In support of both filings, respondents rely upon statement of material facts and appendix comprising the following: 1) declaration of Phillip Clark (“Clark”), FCC-Butner’s case management coordinator, with exhibits thereto; 2) declaration of Andrew Stock (“Stock”), clinical director of the Federal Medical Center at Butner; 3) declaration of Mary Strassel (“Strassel”), assistant supervisor of education and team leader of the FCC-Butner planning section team, with exhibits thereto; 4) declaration of Kellie Harden (“Harden”), director of quality management and supervisory health systems specialist for FCCButner; 5) declaration of Luis Martinez (“Martinez”), acting environmental and safety compliance administrator at FCC-Butner, with exhibits thereto; and 6) declaration and supporting exhibits from Christina Kelley (“Kelley”), senior attorney at FCC-Butner.
Petitioners filed reply on June 8, 2020, relying upon declaration of Jeffery Wilkerson (“Wilkerson”), counsel for petitioners, with exhibits thereto.
STATEMENT OF THE FACTS The factual background, drawn from the parties’ extensive filings, is summarized below. A. Petitioners Petitioner are 11 federal inmates incarcerated at FCC-Butner. FCC-Butner is a federal prison complex comprising five institutions: a federal medical center (“FMC-Butner”); two medium custody facilities (“FCI Butner-medium I” and “FCI Butner-medium II”); a low-security
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institution (“FCI Butner-low”); and a federal prison camp (“FPC Butner”). (Clark Decl. (DE 371) ¶ 6). As of June 3, 2020, FCC-Butner housed approximately 4,360 inmates. (Id. ¶ 5). The complex generally is over capacity by approximately 300 inmates, and FCI Butner-low is over capacity by 172 inmates. (Id. ¶¶, 5, 8).
Petitioner Hallinan is 79 years old and he is incarcerated at FCI Butner-low. He suffers from bladder and prostate cancer, both of which are in remission. He also suffers from hypertension, cardiovascular disease, and celiac disease. He was sentenced to 14 years’ imprisonment following convictions for violating the Racketeer Influenced and Corrupt Organizations Act, money laundering, and wire fraud, and his projected release date is July 3, 2030. (See Hallinan Decl. (DE 26-5) ¶¶ 1-7).
Petitioner Kinard is 34 years old and he is incarcerated at FCI Butner-low. He is in good health. He was sentenced to 70 months’ imprisonment following convictions for possession with intent to distribute controlled substances and possession of a firearm by a convicted felon, and his projected release date is May 9, 2022. (Kinard Decl. (DE 26-10) ¶¶ 1-4).
Petitioner Hill is 68 years old and he is incarcerated at FCI Butner-low. He suffers from hypertension, cardiovascular disease, and diabetes. He underwent a triple-bypass cardiac surgery in 2019. He also uses a wheelchair due to a spinal cord injury. He was sentenced to 20 years to life imprisonment following conviction for first-degree murder while armed in violation of the D.C. Code. He was granted parole in 2012, but parole was rescinded when the victim’s family objected to his release. (Hill Decl. (DE 26-8) ¶¶ 1-8).
Petitioner McRae is 43 years old and he is incarcerated at FCI Butner-low. He suffers from hypertension, blood clots, and morbid obesity. An inferior vena cava filter has been placed
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in his chest to trap large blood clots. He was sentenced to 60 months’ imprisonment following his conviction for distributing a controlled substance in violation of the D.C. Code, and his projected release date is January 26, 2022. (McRae Decl. (DE 26-13) ¶¶ 1-7).
Petitioner Dailey is 62 years old and he is incarcerated at FCI Butner-low. He suffers from mycosis fungoides, a rare, terminal form of non-Hodgkin’s lymphoma that causes painful lesions. As the lesions develop, they are expected to metastasize to his brain and bones. He also has a congenital heart defect that causes frequent fainting, which has worsened while on chemotherapy. Petitioner Dailey was sentenced to 27 months’ imprisonment for Medicare fraud, and his projected release date is August 20, 2021. (Dailey Decl. (DE 26-3) ¶¶ 1-11).
Petitioner Ayers is 37 years old and he is incarcerated at FCI Butner-medium II. He suffers from pernicious anemia, which has caused an abnormal spinal cord, severe stomach pain, and muscle weakness. He also suffers from atrophic gastritis, a chronic autoimmune condition. He was sentenced to 108 months’ imprisonment following conviction for assault with a dangerous weapon in violation of the D.C. Code. He is also serving a concurrent term of 72 months’ imprisonment for distribution of 50 grams or more of cocaine base. His projected release date is March 5, 2022. (Ayers Decl. (DE 26-2) ¶¶ 1-8).
Petitioner Riddick is 51 years old and he is incarcerated at FCI Butner-medium II. He suffers from lymphoma (in remission), diabetes, asthma, and sleep apnea, and he currently takes an immunosuppressant medication following surgery. He was sentenced to 15 years to life imprisonment following convictions for second-degree murder while armed, possession of a firearm during the commission of a crime, and carrying a pistol without a license. (Riddick Decl. (DE 26-15) ¶¶ 1-9).
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Petitioner Maldonado is 52 years old and he is incarcerated at FCI Butner-medium I. As a result of kidney disease, he has received two kidney transplants, which require immunosuppressant medications. He recently noticed blood in his urine, and he is concerned that medical tests suggest his kidneys are failing. However, due to the COVID-19 outbreak, he has not been able to see a nephrologist. He also suffers from malignant hypertension. He was sentenced to 84 months’ imprisonment following convictions for conspiracy, wire fraud, theft of government property, aggravated identity theft, and aiding and abetting, and his projected release date is November 20, 2022. (Maldonado Decl. (DE 26-12) ¶¶ 1-25).
Petitioner Harris is 38 years old and he is incarcerated at FCI Butner-low. He suffers from hypertension, pre-diabetes, and he is overweight. He was sentenced 173 months’ imprisonment following convictions for possession of a firearm in furtherance of a drug trafficking crime and possession with intent to distribute marijuana, and his projected release date is October 4, 2022. (Harris Decl. (DE 26-7) ¶¶ 1-7).
Petitioner Butler is 35 years old and he is incarcerated at FCI Butner-low. He suffers from diabetes, Hepatitis B, and a heart murmur that causes shortness of breath. He was sentenced to 60 months’ imprisonment following convictions for possession of a firearm by a convicted felon and possession of a firearm in furtherance of a drug trafficking crime, and his projected release date is November 1, 2025. (Pet. (DE 1) ¶ 32).
Petitioner Titus is 54 years old and he is incarcerated at FCI Butner-low. He is in good health. He was sentenced to 360 months’ imprisonment following conviction for wire fraud, and his projected release date is January 8, 2035. (Titus Decl. (DE 26-16) ¶¶ 1-4).
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B. The COVID-19 Pandemic The novel coronavirus known as SARS-nCoV-2 causes COVID-19, a deadly respiratory
infection for which no known cure or vaccine is available. (Beyer Decl. (DE 26-18) ¶¶ 1, 5). The virus has produced a global pandemic, with infections in the United States reaching over 1.4 million people as of May 16, 2020. (Id. ¶¶ 3-4). Approximately 20 percent of people who contract COVID-19 will have more severe disease requiring medical intervention and support. (Id. ¶ 5). In those cases, COVID-19 may cause severe lung damage, including permanent loss of respiratory capacity, as well as damage to the heart, central nervous system, and liver (Id. ¶ 5). Approximately 30 percent of the persons who develop severe COVID-19 progress to Acute Respiratory Distress Syndrome, which is potentially fatal and requires immediate medical intervention. (Id. ¶ 8; Goldenson Decl. (DE 26-19) ¶ 8).
Petitioners’ expert estimates the COVID-19 case fatality rate in the United States may be as high as six percent. (Beyer Decl. (DE 26-18) ¶ 5). The rate is higher for persons with certain pre-existing medical conditions, including cardiovascular disease (13.2 percent), diabetes (9.2 percent), hypertension (8.4 percent), chronic respiratory disease (8.0 percent), and cancer (7.4 percent). (Id. ¶¶ 7, 99). The risk of severe complication and death also is higher if the patient has asthma, chronic liver or kidney disease, epilepsy, a compromised immune system, blood disorders, inherited metabolic disorders, stroke, and developmental delay. (Id. ¶ 99). Men and persons over age 50 are particularly vulnerable to developing severe COVID-19 disease. (Id. ¶¶ 7, 98).
The virus is highly infectious. The virus spreads primarily through close contact with an infected person (who may be asymptomatic), including through respiratory droplets produced
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when the infected person coughs, sneezes, or talks. (CDC, How COVID-19 Spreads (DE 26-27)). Although less common, the virus can spread through contact with a contaminated surface. (Id.). Each person infected with the virus infects on average three additional persons. (Beyer Decl. (DE 26-18) ¶ 12). The “attack rate,” which measures the proportion of people exposed to the virus who develop COVID-19, is estimated at 20 to 30 percent. (Id.). The attack rate may be as high as 80 percent in some settings and populations, such as correctional facilities and nursing homes. (Id.).
The CDC recommends “social distancing” to slow the spread of the virus. (Id. ¶ 13; CDC Social Distancing Guidelines (DE 26-25)). Social distancing involves staying at least six feet apart from other people and avoiding groups, crowded places, and mass gatherings. (CDC Social Distancing Guidelines (DE 26-25)). The CDC also recommends wearing face coverings over the nose and mouth and vigilant hygiene practices including hand washing and disinfecting frequently touched surfaces. (CDC, COVID-19: How to Protect Yourself and Others (DE 26-26)). C. FBOP and FCC-Butner’s Response to the Virus
As early as January 2020, FBOP officials began coordinating with subject matter experts, including the Centers for Disease Control and Prevention and the World Health Organization, to develop a response to the pandemic. (Resp’ts’ Stmt. (DE 36) ¶ 10). As a result, the FBOP developed a multi-phased action plan designed to “mitigate the spread of COVID-19” among inmates and staff. (Id.). The FBOP currently is in phase seven of the plan, which requires all inmates to remain in their housing units or cells for a period of 14 days to prevent further spread of the virus. (Id. ¶ 11). Limited group gatherings within housing units are allowed for essential functions including laundry, showers, visiting the commissary, and telephone and computer
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access. (Id.). All staff and inmates have been issued appropriate face coverings and are “encouraged” to wear them when social distancing is impossible. (Id.). The FBOP also has developed isolation procedures for inmates who are symptomatic of COVID-19, and quarantine procedures for inmates who are asymptomatic with risk of exposure. (Id. ¶ 12). Social and legal visits also have been suspended. (Id. ¶ 13).
The foregoing procedures have been implemented at FCC-Butner. (Id. ¶ 15). FCCButner staff are providing education about the virus to inmates and staff, conducting COVID-19 screenings of staff and inmates, implementing isolation and quarantine procedures, and have ordered enhanced cleaning and medical supplies. (Id.; Stock Decl. (DE 37-10); Strassel Decl. (DE 37-11)). All newly admitted inmates are screened for symptoms and placed in quarantine for 14 days, where they must test negatively for COVID-19 at least twice before their release into the general inmate population. (Stock Decl. (DE 37-10) ¶ 33). Inmates with ongoing work details that require interaction with staff or other inmates undergo screening, including temperature checks, before and after each work shift. (Id. ¶ 40). Staff and visitors also are screened before entering any FCC-Butner institution, with individuals who display a body temperature above 100.4 degrees Fahrenheit or other symptoms consistent with COVID-19 denied entry into the building. (Id. ¶¶ 46, 48). All staff and inmates have been provided with and instructed to wear face coverings when social distancing is impossible. (Id. ¶¶ 45, 51, 52). Staff must follow CDC guidance for mitigating the spread of the virus, including staying home when sick, frequent and thorough hand washing, cleaning commonly touched areas, and social distancing. (Id. ¶¶ 51, 52).
Medical staff “immediately” evaluate all inmates who present with symptoms of COVID19, and make a clinical determination about whether isolation or testing is appropriate. (Id. ¶ 25).
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Inmates exposed to virus also are placed in quarantine and monitored for a period of 14 days. (Id. ¶ 43).
FCC-Butner has obtained two FDA-authorized testing machines for onsite testing of inmates, which return test results within 15 minutes or less. (Harden Decl. (DE 39-25) ¶ 3). Offsite testing also is available. (Id.). Current testing practice is that only inmates who present with symptoms are tested. (Id. ¶ 5). However, due to the recent surge in positive cases at FCI Butner-low, staff have tested all inmates housed in that institution. (Id.). As of June 3, 2020, 1,277 inmates have been tested for COVID-19, out of the 4,360 inmates incarcerated at FCCButner. (Id. ¶ 6; Clark Decl. (DE 37-1) ¶ 5).
Finally, respondents have implemented enhanced sanitation practices at FCC-Butner. On March 17, 2020, respondent Scarantino issued a heightened sanitation plan developed in anticipation of COVID-19 reaching FCC-Butner. (Martinez Decl. (DE 40-1) ¶ 9). The plan reminded staff of the required daily cleaning steps that all staff should take at FCC-Butner, and instructed staff and inmates to clean all housing areas, showers, and other common areas. (Id.). The FCC-Butner safety department subsequently issued a sanitation plan that delineated the cleaning/disinfecting schedule, identified the specific products to use during such cleanings, and identified whether inmates or staff are required to clean and disinfect specified areas. (Id. ¶ 11).
The safety department also utilizes “backpack” sprayers to disinfect certain areas of the institution, including corridors, housing units, doors, inmate computers, phones, carts, trash bins, light switches, hand rails, stairs, elevators, housing unit ice machines, housing unit hot water dispensers, inmate and staff bathrooms, housing unit tables, washing machines and dryers, all institutional entrances, and other frequently-touched surfaces. (Id. ¶ 12). A “log” system is in
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place to document the frequency with which staff sanitize each area in the institutions. (Id. ¶ 13). Hand sanitizer and soap dispensers are maintained at full capacity on each housing unit. (Id. ¶ 14). D. COVID-19 at FCC-Butner
Despite the foregoing efforts, the novel coronavirus has spread to FCC-Butner, which is now facing one of the largest outbreaks within the federal prison system. (Beyer Decl. (DE 2618) ¶ 17). As of June 8, 2020, the FBOP reported 19 inmate deaths and 664 active inmate and staff infections at FCC-Butner. (Wilkerson Decl. Ex. 2 (DE 48-2) at 4).1 One staff member death also has been reported. (Id.). The majority of the inmates who died suffered from longterm preexisting health conditions that the CDC lists as risk factors for developing more severe COVID-19 disease. (FBOP Press Releases (DE 26-21)). From April 22 to June 8, 2020, the number of inmate infections at FCI Butner-low has increased from 7 to 617 inmates (out of approximately 1,162 total inmates at the institution), indicating a significant outbreak is unfolding. (Wilkerson Decl. Ex. 2 (DE 48-2) at 2-4; see also Harden Decl. (DE-39-25) ¶ 5 (confirming recent “surge” in infections at FCI-Butner-low); Clark Decl. (DE 37-1) ¶ 13).
Petitioners and their experts testify that respondents have failed to adequately protect FCCButner inmates from risk of COVID-19 infection. Their testimony focuses on four principal issues: 1) social distancing and hygiene/sanitation; 2) isolation procedures; 3) quarantine procedures; and 4) testing.

1

Unless otherwise specified, page numbers specified in citations to the record in this order refer to the page

number of the document designated in the court’s electronic case filing (ECF) system, and not to page numbering, if

any, specified on the face of the underlying document.

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1. Social Distancing and Hygiene/Sanitation At best, social distancing and proper hygiene practices are challenging at FCC-Butner. At FCI Butner-low, inmates live in large open rooms (“dormitories”) holding as many as 150 inmates. (Kinard Decl. (DE 26-10) ¶ 5; McRae Decl. (DE 26-13) ¶¶ 8-9; Hill Decl. (DE 26-8) ¶¶ 9-10; Hallinan Decl. (DE 26-5) ¶¶ 8-9; Maldonado Decl. (DE 26-12) ¶¶ 26-27). These dormitories are divided into separate “cubicles” by partial walls approximately six feet high, with each cubicle holding up to three inmates. (Krokos Decl. (DE 26-11) ¶ 17; Kinard Decl. (DE 26-10) ¶ 5; McRae Decl. (DE 26-13) ¶¶ 8-9; Hill Decl. (DE 26-8) ¶¶ 9-10; Hallinan Decl. (DE 26-5) ¶¶ 8-9). Inmates housed in these cubicles sleep within six feet of each other. (Hill Decl. (DE 26-8) ¶¶ 11; Hallinan Decl. (DE 26-5) ¶ 11; Krokos Decl. (DE 26-11) ¶ 18; Dailey Decl. (DE 26-3) ¶ 11). Some inmates in the dormitories sleep in hallways or along walls where other inmates frequently pass within six feet of their beds. (Goodwin Decl. (DE 26-4) ¶ 20; Huntley Decl. (DE 26-9) ¶ 8). The inmates also share bathrooms/showers, computers, and telephones, often standing shoulder-toshoulder while they wait their turns on the computer or telephone. (Hill Decl. (DE 26-8) ¶¶ 12, 15-16; Hallinan Decl. (DE 26-5) ¶ 12, 18-19; Krokos Decl. (DE 26-11) ¶¶ 33-38; Dailey Decl. (DE 26-3) ¶ 17, 23-25). The common areas and electronic equipment are cleaned once daily in most units, and the phones and computers are not disinfected after each use. (Dailey Decl. (DE 26-3) ¶ 19; Hallinan Decl. (DE 26-5) ¶ 14; Hill Decl. (DE 26-8) ¶¶ 15-16; Krokos Decl. (DE 2611) ¶¶ 34, 36). Inmates housed in the dormitory units also must line up close together to pick up
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meals and medications several times each day. (Hallinan Decl. (DE 26-5) ¶ 16; Hill Decl. (DE 26-8) ¶¶ 13-14).
At the medium-custody facilities, inmates are housed in cells approximately eight feet long and six feet wide, which hold two to four people. (Ayers Decl. (DE 26-2) ¶ 10; Riddick Decl. (DE 26-15) ¶ 14). Inmates in these units share toilets and sinks with their cellmates and showers with everyone on their 120-person units. (Ayers Decl. (DE 26-2) ¶ 15; Riddick Decl. (DE 26-15) ¶ 15). As in the dormitories, inmates in the medium-custody facilities do not socially distance when they are in lines for computers or phones, and the equipment is cleaned approximately once daily. (Ayers Decl. (DE 26-2) ¶¶ 21-22). Meals and medications are delivered to the cells by staff or inmate orderlies, who also have access to other areas of the prison. (Ortiz Decl. (DE 2614) ¶ 9; Ayers Decl. (DE 26-2) ¶ 20). FBOP staff provide medium-custody inmates with disinfectant spray in order to clean the cells, but these products are not always available. (Ayers Decl. (DE 26-2) ¶ 16).
Inmates and staff also move frequently between units and interact with inmates housed on other units, including isolation areas where inmates presumed to have the virus are housed. (Ayers Decl. (DE 26-2) ¶¶ 29-30; Dailey Decl. (DE 26-3) ¶¶ 33-34). Inmates who work in UNICOR (an FBOP employment program) or kitchen positions frequently come into contact with inmates from other housing units. (Ayers Decl. (DE 26-2) ¶ 29; Hill Decl. (DE 26-8) ¶ 23; Krokos Decl. (DE 26-11) ¶ 63). On or about May 13, 2020, two inmates developed symptoms of COVID-19 while working in the kitchen and had to be placed in isolation. (Hallinan Decl. (DE 26-5) ¶ 23).
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2. Isolation of Inmates Displaying COVID-19 Symptoms FBOP staff place inmates suspected or confirmed of having COVID-19 in isolation in the special housing unit (“SHU”). (Ayers Decl. (DE 26-2) ¶ 26; Hill Decl. (DE 26-8) ¶ 20; Hallinan Decl. (DE 26-5) ¶ 25). According to petitioners’ expert, this procedure does not provide appropriate “medical” isolation where the SHU does not permit full isolation between corrections officers and inmates and isolated inmates use common recreational spaces. (Beyer Decl. (DE 2618) ¶ 82). Furthermore, FBOP staff allegedly only place inmates in SHU isolation if they develop a fever, which is inconsistent with CDC guidance that medical isolation should be activated as soon as a person develops “symptoms” of COVID-19. (Id. ¶ 83). Finally, the SHU procedures allegedly do “not allow for timely notification and management of clinical symptoms should they arise, including some symptoms that can “rapidly deteriorate . . . to severe illness requiring hospitalization and invasive treatment.” (Id.). Inmate Roger Goodwin, for example, was placed in SHU isolation after testing positive for COVID-19. (Goodwin Decl. (DE 26-4) ¶ 26). Goodwin suffers from diabetes and an immunodeficiency disorder, and takes daily medications for those conditions, some of which require emergency use to prevent life-threatening complications. (Id. ¶¶ 5-9). However, when he was placed in the SHU, he was not provided these “self-carry” medications for approximately two days. (Id. ¶¶ 30-34). FBOP medical staff checked Goodwin’s temperature, blood pressure, and pulse approximately twice a day, but did not provide treatment for COVID-19. (Id. ¶ 36). After approximately 17 days, Goodwin was transported back to an FCI Butner-low dormitory on a bus with approximately 20 or 30 other inmates. (Id. ¶ 38). He was not retested for COVID-19 prior to his release from the SHU. (Id.).
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Additionally, petitioner Maldonado reports he tested negative for the virus, but FCCButner staff failed to “segregate” him until five days after receiving the test results. (Maldonado Decl. (DE 26-12) ¶ 44). Another inmate in petitioner Maldonado’s housing unit, who initially tested negative, developed a severe cough and remained on the unit for five or six days before FCC-Butner staff removed him. (Id. ¶ 45). While not stated directly, this testimony suggests respondents allowed inmates who tested positive or showed symptoms of the virus to remain in their housing unit for approximately five days after testing positive. (See id.; see also Pet’rs’ Mem. (DE 25) at 18 (asserting that “[r]espondents did not move some residents who tested positive until five days after receiving the results” and citing petitioner Maldonado’s declaration)).
3. Quarantine Procedures Respondents also have developed quarantine policies for inmates who are “close contacts of a confirmed or suspected case,” new inmate admissions, certain transfer inmates, and inmates releasing to residential reentry centers, home confinement, or full release. (Matevousian Mem. (DE 26-24) at 4). According to petitioners, the designated quarantine areas do not sufficiently protect against spread of the virus, based upon the following: 1) Quarantined inmates in one housing unit share a bathroom with non-quarantined
inmates with only a “make-shift wall” separating the groups within the bathroom. (Maldonado Decl. (DE 26-12) ¶ 33). 2) An inmate orderly who is not under quarantine cleans the bathroom used by quarantined inmates, then returns to his housing unit. (Id.). 3) Inmates transferred into FCC-Butner whose COVID-19 status are unknown are quarantined in cells on a floor where cancer patients are housed. (See Ortiz Decl. (DE 26-14) ¶ 7). Inmate orderlies deliver food and medicine to both the cancer patients and the newly transferred patients. (Id. ¶ 9). 4) Of the 15 petitioners and third-party inmates who submitted declarations, most were in close contact with someone who tested positive or was showing symptoms
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of having the virus, but they were not placed in quarantine by FBOP officials. (See Ayers Decl. (DE 26-2) ¶¶ 25-26; Dailey Decl. (DE 26-3) ¶ 30; Hallinan Decl. (DE 26-5) ¶ 22; Harrington Decl. (DE 26-6) ¶ 24; Harris Decl. (DE 26-7) ¶ 29; Hill Decl. (DE 26-8) ¶ 20; Huntley Decl. (DE 26-9) ¶¶ 21, 23; Kinard Decl. (DE 26-10) ¶ 19; Maldonado Decl. (DE 26-12) ¶¶ 44-45; Ortiz Decl. (DE 26-14) ¶ 11; Titus Decl. (DE 26-16) ¶ 36; Whyte Decl. (DE 26-17) ¶¶ 52-53). 4. Testing for COVID-19 Petitioners also allege respondents failed to implement adequate testing at FCC-Butner. As of May 8, 2020, FBOP staff had administered 459 tests to FCC-Butner inmates, representing approximately 10 percent of the entire population of inmates. (Wilkerson Decl. Ex. 31 (DE 2632) at 17). Petitioners attest that respondents only “sporadically” conduct temperature checks and require persons showing symptoms of COVID-19 to request a sick call and pay a co-pay. (See, e.g., Dailey Decl. (DE 26-3) ¶¶ 29-30; Hallinan Decl. (26-5) ¶¶ 24-25; Krokos Dec. (DE 26-11) ¶¶ 53, 55-56, 61). Respondents report that as of June 3, 2020, 1,277 total inmates have been tested, with 702 inmates having tested positive. (Resp’ts’ Stmt. (DE 36) ¶ 38; Harden Decl. (DE 39-25) ¶ 6). Respondents also note that CDC guidance does not currently recommend testing of all asymptomatic inmates. (Harden Decl. (DE 39-25) ¶ 5). E. Home Confinement and Compassionate Release Petitioners also allege respondents have failed to appropriately exercise their statutory authority to grant home confinement to medically vulnerable inmates. Under 18 U.S.C. § 3624(c)(2), the FBOP may “place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months.” Under 34 U.S.C. § 60541, the FBOP has authority to release eligible elderly or terminally ill offenders to home detention. On March 26, 2020, Attorney General William Barr issued a memorandum to respondent Carvajal, directing him to prioritize the use of home confinement for certain inmates at risk of
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complications from COVID-19. (DE 26-22). In addition to considering the statutory
requirements for granting home confinement, the memorandum directs FBOP staff to consider the
following non-exclusive factors before granting home confinement:
1) The age and vulnerability of the inmate to COVID-19;
2) The security level of the facility currently holding the inmate, with priority given to inmates residing in low and minimum security facilities;
3) The inmate’s conduct in prison, with inmates who have engaged in violent or gang-related activity in prison or who have incurred a [FBOP] violation within the last year not receiving priority treatment . . .;
4) The inmate’s score under PATTERN, with inmates who have anything above a minimum score not receiving priority treatment . . .;
5) Whether the inmate has a demonstrated and verifiable re-entry plan that will prevent recidivism and maximize public safety, including verification that the conditions under which the inmate would be confined upon release would present a lower risk of contracting COVID-19 than the inmate would face in his or her [FBOP] facility; and
6) The inmate’s crime of conviction, and assessment of the danger posed by the inmate to the community. Some offenses, such as sex offenses, will render an inmate ineligible for home detention. Other serious offenses should weigh more heavily against consideration for home detention.
(Id. at 2-3). The memorandum also directs that any inmate transferred to home confinement must
first complete a 14-day quarantine. (Id. at 3).
On March 27, 2020, Congress enacted the Coronavirus Aid, Relief, and Economic Security
Act (“CARES Act”), Pub. L. No. 116-136, 134 Stat. 281. The CARES Act provides in relevant
part that “if the Attorney General finds that emergency conditions will materially affect the
functioning of the [FBOP], the Director of the [FBOP] may lengthen the maximum amount of time
for which the Director is authorized to place a prisoner in home confinement under the first
sentence of [18 U.S.C. § 3624(c)] as the Director determines appropriate.” CARES Act of 2020,
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Pub. L. No. 116-136, § 12003(b)(2), 134 Stat. 281, 516. On April 3, 2020, the Attorney General issued second memorandum to respondent Carvajal, which made the requisite emergency finding under the CARES Act. (DE 26-23 at 2). The April 3 memorandum thus had the effect of expanding the FBOP’s authority to grant home confinement to any inmate regardless of whether they are nearing the end of their sentence. (See id.). The Attorney General further noted that “we are experiencing significant levels of [coronavirus] infections at several [FBOP] facilities . . . I am therefore directing you to immediately review all inmates who have COVID-19 risk factors, as established by the CDC, starting with inmates incarcerated at [FBOP facilities experiencing significant levels of infections].” (Id. at 2-3).
The Attorney General’s April 3 memorandum, however, cautioned against “simply releas[ing] prison populations en masse onto the streets,” which may compromise public safety. (Id. at 3). Instead, respondent Carvajal was directed to “continue making the careful, individualized determinations [the FBOP] makes in the typical case.” (Id. at 4). Under the April 3 memorandum, inmates selected for home confinement should be placed in 14-day quarantine prior to transfer, or in appropriate cases, allowed to self-quarantine at home. (Id. at 3).
In response to these directives, FCC-Butner officials have reviewed 932 inmates for possible placement on home confinement. (Clark Decl. (DE 37-1) ¶ 32). Eighty-seven inmates have been referred for placement in home confinement, 42 have been transferred to home confinement, and nine inmates have been placed in residential reentry centers. (Id.). Twentyfour inmates are pending transfer to home confinement, and an additional 24 inmates are awaiting a final decision from the FBOP’s residential reentry management office. (Id. ¶¶ 32-33).
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The FBOP also can file motion for compassionate release on behalf of an inmate pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), in the inmate’s sentencing court. Alternatively, the inmate may file motion for compassionate release on his own behalf “after [the inmate] has fully exhausted all administrative rights to appeal a failure of the [FBOP] to bring a motion on [his] behalf or the lapse of 30 days from the receipt of such a request by the warden of [his] facility, whichever is earlier. 18 U.S.C. § 3582(c)(1)(A).
Fifty-six FCC-Butner inmates have been granted compassionate release by their sentencing courts since March 2020. (Clark Decl. (DE 37-1) ¶ 34). The FBOP has refused to seek compassionate release on behalf of petitioners Ayers, Hill and Maldonado, and declarants Goodwin, Harrington, and Krokos, despite their significant medical issues. (Ayers Decl. (DE 262) ¶¶ 6-7, 32; Goodwin Decl. (DE 26-4) ¶¶ 5-11, 16-18; Harrington Decl. (DE 26-6) ¶¶ 4-7, 29; Hill Decl. (DE 26-8) ¶¶ 6-8, 25; Maldonado Decl. (DE 26-12) ¶¶ 6-25, 46-47; Krokos Decl. (DE 26-11) ¶¶ 5-10, 68). Declarants Huntley and Krokos’s filed motions for compassionate release in their sentencing courts, and the courts granted release over the government’s opposition. (Huntley Decl. (DE 26-9) ¶¶ 22, 24; Krokos Decl. (DE 26-11) ¶ 68).
DISCUSSION A. Standard of Review
The court construes the instant motion as a motion for preliminary injunction where respondents received notice of the motion, and the parties fully briefed the issues raised. See Fed. R. Civ. P. 65(a); U.S. Dep’t of Labor v. Wolf Run Mining Co., 452 F.3d 275, 283 (4th Cir. 2006). To obtain a preliminary injunction, petitioners must make a “clear showing” “[1] that [they are] likely to succeed on the merits, [2] that [they are] likely to suffer irreparable harm in the absence
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of preliminary relief, [3] that the balance of equities tips in [their] favor, and [4] that an injunction is in the public interest.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 20, 22 (2008). Injunctive relief is an “extraordinary remedy” and to obtain it, plaintiff must satisfy each of the four factors. Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346 (2009), vacated 559 U.S. 1089, reinstated in pertinent part 607 F.3d 355 (2010). In addition, “[m]andatory preliminary injunctive relief in any circumstance is disfavored, and warranted only in the most extraordinary circumstances.” Taylor v. Freeman, 34 F.3d 266, 270 n.2 (4th Cir. 1994); see also Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980). B. Analysis
1. Petitioners’ Claims Are Not Cognizable in a Habeas Proceeding Petitioners’ substantive legal claim is that respondents violated the Eighth Amendment to the United States Constitution by failing to adequately protect against the spread of coronavirus at FCC-Butner. “The Eighth Amendment, which prohibits the infliction of ‘cruel and unusual punishments,’ applies to claims by prisoners against corrections officials challenging conditions of confinement.” Porter v. Clarke, 923 F.3d 348, 355 (4th Cir. 2019) (citation omitted). As a threshold matter, respondents contend that petitioners’ Eighth Amendment claim is not cognizable in a § 2241 proceeding where petitioners are challenging their conditions of confinement. The “essence of habeas corpus” is “an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). In other words, the function of a habeas petition is to challenge “the very fact or duration of [the petitioner’s] physical imprisonment, and the relief that [the petitioner] seeks is a determination that he is entitled to
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immediate release or a speedier release from that imprisonment . . . .” Id. at 500. With respect to conditions of confinement claims, the Supreme Court in Preiser noted that “when a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making custody illegal.” Id. at 499. The Court, however, expressly declined to decide whether conditions of confinement claims can be brought in a habeas corpus proceeding. Id. The question left open in Preiser is squarely presented by the instant petition.
While the United States Court of Appeals for the Fourth Circuit has not addressed the issue in a published opinion, “[s]even of the ten circuits that have addressed the issue in a published decision have concluded that claims challenging conditions of confinement cannot be brought in a habeas petition.” Wilborn v. Mansukhani, 795 F. App’x 157, 163 (4th Cir. 2019) (citing Nettles v. Grounds, 830 F.3d 922, 933–34 (9th Cir. 2016); Spencer v. Haynes, 774 F.3d 467, 469– 70 (8th Cir. 2014); Cardona v. Bledsoe, 681 F.3d 533, 537 (3d Cir. 2012); Davis v. Fechtel, 150 F.3d 486, 490 (5th Cir. 1998); McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811–12 (10th Cir. 1997); Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991); Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004)); see also Rodriguez v. Ratledge, 715 F. App’x 261, 265-66 (4th Cir. 2017) (holding claim challenging transfer to a maximum security prison was not cognizable in a habeas corpus proceeding); Braddy v. Wilson, 580 F. App’x 172, 173 (4th Cir. 2014) (holding challenge to conditions of confinement was not cognizable in habeas corpus proceeding); but see Aamer v. Obama, 742 F.3d 1023, 1036 (D.C. Cir. 2014); Jiminian v. Nash, 245 F.3d 144, 146–47 (2d Cir. 2001); Miller v. United States, 564 F.2d 103, 105 (1st Cir. 1977).2 In Wilborn, the Fourth Circuit

2

The court also observes that even in those circuits where conditions of confinement claims are generally

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ultimately concluded that “[t]his case presents no basis to deviate from our previous holdings” that conditions of confinement claims are not cognizable in a habeas action. 795 F. App’x at 164. Thus, the weight of authority both within and outside this circuit suggests that, as a general matter, petitioners cannot challenge their conditions of confinement in a habeas corpus proceeding.
Petitioners argue the court has jurisdiction over the § 2241 claims because they are seeking release from confinement at FCC-Butner, which lies within the “essence” of habeas corpus. But the fact that petitioners seek release from custody cannot transform their claims into a cognizable habeas corpus action. Petitioners do not challenge the validity of their sentences or convictions, or the FBOP’s administrative calculation of their release dates, which is the traditional “essence” of habeas corpus. See Preiser, 411 U.S. at 484, 498-500. It is the nature of the substantive legal claim itself and the pertinent factual allegations – in addition to the relief sought – that determines whether the claim challenges “the validity of confinement” and thus sounds in habeas corpus. Hill v. McDonough, 547 U.S. 573, 579-81 (2006); see also Muhammad v. Close, 549 U.S. 749, 754-55 (2004) (per curiam) (explaining the plaintiff’s substantive legal claims and factual allegations “could not therefore be construed as seeking a judgment at odds with his conviction or with the State’s calculation of time to be served” and therefore the plaintiff was not bringing a claim “on which habeas relief could [be] granted on any recognized theory”); Nelson v. Campbell, 541 U.S. 637, 644-46 (2004) (analyzing factual theory of the claim to determine whether it sounded
foreclosed, some exceptions apply. See, e.g., Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011) (permitting challenge to conditions of confinement in habeas where petitioners’ challenge to method of execution could render death sentence effectively invalid).
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in habeas or § 1983). Petitioners’ claims challenging unconstitutional conditions of confinement do not sound in traditional habeas corpus, even though they seek release from confinement.
Petitioners also assert their claims are cognizable in a § 2241 petition because they are challenging the “fact” of their confinement, and no set of conditions can remedy the alleged constitutional violations. As noted, Preiser holds that “when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.” 411 U.S. at 500. But read in context and in light of subsequent precedent, the phrase “fact of physical imprisonment” refers to a challenge to the legality vel non of the petitioner’s conviction or sentence. See id. at 498-500 (distinguishing between inmate “who is making a constitutional challenge to the conditions of prison life, but not to the fact or length of his custody”); see also Nelson, 541 U.S. at 643 (explaining habeas is proper vehicle for challenging “the fact of [the inmate’s] conviction or the duration of his sentence”); Muhammad, 549 U.S. at 754.
Thus, although there “may ultimately be an area of limited substantive overlap between . . . habeas corpus and § 1983,” Lee v. Winston, 717 F.2d 888, 892 (4th Cir. 1983), petitioners have failed to establish that their paradigmatic conditions of confinement claims qualify for such special treatment and therefore are cognizable habeas claims.3 See Nettles, 830 F.3d at 931-32 (discussing importance of distinguishing between core habeas petitions and suits

3

The court recognizes, as discussed above, that the issue of whether conditions of confinement claims are

cognizable in a habeas corpus proceeding is unsettled, and the Fourth Circuit has not definitively resolved the question.

See, e.g., Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014). Although the court concludes that core conditions of

confinement claims of the type presented here are not cognizable in a habeas corpus action, the court also addresses

below the merits of petitioners’ claims.

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challenging conditions of confinement); Wilborn, 795 F. App’x at 163 (explaining “this case” presents no basis for deviating from the Fourth Circuit’s prior holdings that conditions of confinement claims are not cognizable in habeas corpus proceedings).
Finally, petitioners argue the court has authority to grant injunctive relief based on the court’s purported “inherent authority to order the release of prisoners when necessary to cure an ongoing constitutional violation.” (Pet’rs’ Mem. (DE 34) at 34-35). Petitioners, however, cite no authority supporting their implied position that they can file a civil action for Eighth Amendment violations on behalf of current federal inmates and invoke the court’s “equitable authority” to grant injunctive relief without complying with the Prison Litigation Reform Act (“PLRA”). The PLRA applies to all prisoner civil actions challenging conditions of confinement, and imposes strict requirements regarding filing fees, administrative exhaustion, and carefully crafted restrictions on injunctive relief. See 18 U.S.C. § 3626(a) (providing limits on the court’s authority to order injunctive relief in a prisoner civil action); 28 U.S.C. § 1915(b)(1), (h); 42 U.S.C. § 1997e(a). Thus, petitioners’ freestanding (non-habeas) claims for Eighth Amendment violations must be filed in a prisoner civil rights action governed by the PLRA. See Porter v. Nussle, 534 U.S. 516, 523-28 (2002). And in the absence of a properly filed civil action that complies with the PLRA, the court lacks jurisdiction to order injunctive relief. Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 327-28 (2015) (“The power of federal courts of equity to enjoin unlawful executive action is subject to express and implied statutory limitations. Courts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law.” (internal quotation and citations omitted)); Brown v. Plata, 563 U.S. 493, 538-39, 541 (2011) (noting the district court’s inherent equitable authority is subject to limitations
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imposed by the PLRA). Notably, petitioners have expressly resisted converting this action into a prisoner civil rights action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). (Pet’rs’ Reply (DE 47) at 4 n.4).4
In sum, the court holds petitioners’ conditions of confinement claims are not cognizable habeas claims under § 2241.5 The court also lacks authority to order petitioners’ release under its inherent equitable authority.
2. Likelihood of Success on the Merits Even assuming an Eighth Amendment conditions of confinement claim is cognizable in a § 2241 proceeding, petitioners have not made a “clear showing” that they are likely to succeed on the merits. Under the Eighth Amendment, prison officials must “provide humane conditions of confinement [by] ensur[ing] that inmates receive adequate food, clothing, shelter, and medical care.” Farmer v. Brennan, 511 U.S. 825, 832 (1994); Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016). To determine whether an inmate’s “conditions of confinement amount to ‘cruel and unusual punishment,’” the court evaluates the alleged unconstitutional conditions “against ‘the

4

To the extent petitioners alternatively suggest that the court should treat this action as a civil action subject

to the PLRA, the court declines to do so. Petitioners do not consent to conversion of this action into a traditional

Bivens action, did not pay the appropriate filing fees (or file motions to proceed without prepayment of fees), and

admittedly have not exhausted their administrative remedies. 28 U.S.C. § 1915(b); 42 U.S.C. § 1997e; (see also Kelly

Decl. (DE 40-6) ¶¶ 9-16 (showing most of the petitioners have not even filed an administrative grievance related to

COVID-19 concerns)). Furthermore, even if the court did construe this action as a non-Bivens freestanding Eighth

Amendment case subject to the PLRA, the court would not grant the requested relief. Under the PLRA, the court

must give “substantial weight to any adverse impact on public safety or operation of the criminal justice system”

before granting the requested relief. See 18 U.S.C. § 3626(a)(1); see also Armstrong, 575 U.S. at 327-28 (explaining

court’s equitable authority to grant injunctive is subject to statutory restrictions). For the reasons set forth in the

following section, petitioners have not satisfied this standard.

5

The court’s determination that petitioners’ claims are not cognizable in this habeas corpus action is a

preliminary determination made in the context of petitioners’ emergency motion, on the basis of limited briefing.

Accordingly, this conclusion of law is not binding on the parties for purposes the pending motion to dismiss, or in the

alternative, for summary judgment. See University of Texas v. Camenisch, 451 U.S. 390, 395 (1981).

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evolving standards of decency that mark the progress of a maturing society.’” Id. (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)). “A prison official’s duty under the Eighth Amendment is to ensure ‘reasonable safety,’ a standard that incorporates due regard for prison officials’ unenviable task of keeping dangerous men in safe custody under humane conditions.” Farmer, 511 U.S. at 844-45.
As with any Eighth Amendment claim, a conditions of confinement claim has objective and subjective components. Porter, 923 F.3d at 355. “To satisfy the ‘objective’ prong, an inmate must ‘demonstrate that the deprivation alleged was, objectively, sufficiently serious.’” Id. (quoting Scinto, 841 F.3d at 225). And “[t]o be ‘sufficiently serious,’ the deprivation must be ‘extreme’ – meaning that it poses a ‘serious or significant physical or emotional injury resulting from the challenged conditions,’ or ‘a substantial risk of serious harm resulting from . . . exposure to the challenged conditions.’” Id. (quoting Scinto, 841 F.3d at 225); see also De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003).
The subjective prong requires a petitioner challenging his conditions of confinement to “demonstrate that prison officials acted with deliberate indifference.” Id. at 361; Scinto, 841 F.3d at 225. “To prove deliberate indifference, [petitioners] must show that ‘the official kn[ew] of and disregard[ed] an excessive risk to inmate health or safety.” Id. (quoting Farmer, 511 U.S. at 837). However, “prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844; Odom v. South Carolina Dep’t of Corr., 349 F.3d 765, 770 (4th Cir. 2003).
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Here, petitioners have submitted sufficient evidence to preliminarily establish the objective prong of their claim. As respondents acknowledge, COVID-19 “poses significant health risks to both the world and community at large.” (Resp’ts’ Opp. (DE 42) at 12; see also Beyer Decl. (DE 26-18) ¶¶ 1-12). The disease’s uncontrolled spread within FCC-Butner therefore presents a “substantial risk of serious or substantial” physical injury resulting from the challenged conditions. See Porter, 923 F.3d at 355.
Turning to the subjective prong, respondents do not dispute that they were aware of the risk posed by COVID-19 as early as January 2020. (See Resp’ts’ Stmt. (DE 36) ¶ 10). Accordingly, as to the deliberate indifference analysis, the only issue is whether respondents knew of and disregarded the risk of harm, or, framed differently, whether they responded reasonably to the risk. Farmer, 511 U.S. at 844.
Petitioners have not demonstrated they are likely to succeed on the merits as to the deliberate indifference component of their claim. In response to the COVID-19 outbreak, respondents immediately implemented extensive efforts to limit the spread of the virus and protect inmate health and safety. These efforts included screening inmates, staff and visitors for symptoms; isolating and quarantining inmates exposed to the virus (depending on whether they displayed symptoms); imposing limitations on movements within the facilities and visitation; and conducting inmate and staff testing in accordance with guidelines from the CDC. Respondents also have mandated extensive cleaning efforts, provided access to cleaning supplies and soap/hand sanitizer, educated inmates and staff about the virus, and provided face coverings for staff and inmates.
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This evidence shows that respondents have responded reasonably to the risk of harm caused by a rapidly evolving global pandemic. See Farmer, 511 U.S. at 844. In a case remarkably similar to the instant matter, the United States Court of Appeals for the Sixth Circuit held that the precise preventative measures undertaken by respondents here constituted a reasonable response to COVID-19. Wilson v. Williams, __ F. 3d __, 2020 WL 3056217, at *8-11 (6th Cir. June 9, 2020).6 Accordingly, petitioners have not made a “clear showing” that they are likely to succeed on their Eighth Amendment claim. See id. see also Swain v. Junior, 958 F.3d 1081, 1089-90 (11th Cir. 2020) (per curiam) (staying preliminary injunction where similar preventative measures “likely do not amount to deliberate indifference”); Valentine v. Collier, 956 F.3d 797, 801-03 (5th Cir. 2020) (per curiam) (same).
As thoroughly described above, petitioners submitted numerous declarations, expert witness testimony, and documentary evidence in support of their allegations that petitioners have been deliberately indifferent to the risk of COVID-19. This evidence, however, does not undermine the court’s finding that respondents carefully and proactively responded to the pandemic.
For example, petitioners note that FCC-Butner is overcrowded and thus social distancing is impossible, particularly in housing units at FCI Butner-low, where up to 150 inmates may reside in one unit. Petitioners also emphasize the inmates and staff travel between units for work assignments, including some units where inmates are in quarantine or isolation due to exposure to COVID-19. Respondents, however, have reasonably responded to these risks by limiting

6

Notably, petitioners heavily rely on the district court opinion in Wilson in support of their argument that they

are likely to succeed on the merits of their claims. The Sixth Circuit, however, held the opposite, and reversed the

district court’s grant of preliminary injunctive relief.

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movement within FCC-Butner to essential activities, increasing cleaning practices, requiring use of masks, and educating inmates and staff about how the virus spreads. Even assuming social distancing is impossible in many situations at FCC-Butner, there is no evidence that respondents deliberately disregarded this risk. The fact that respondents’ response may prove inadequate to prevent the spread of COVID-19 does not establish they were deliberately indifferent. See Farmer, 511 U.S. at 844; see also Wilson, 2020 WL 3056217, at *10 (“The [FBOP’s] ongoing and dynamic response to a novel threat can hardly [constitute deliberate indifference].”).
Petitioners also criticize FCC-Butner’s testing, quarantine, and isolation practices. As to the quarantine procedures, petitioners argue that many of them were not quarantined after potential exposure to the virus. The submitted evidence, however, does not indicate respondents were aware of petitioners’ alleged exposure to the virus and failed to quarantine. (See Ayers Decl. (DE 26-2) ¶¶ 25-26; Dailey Decl. (DE 26-3) ¶ 30; Hallinan Decl. (DE 26-5) ¶ 22; Harrington Decl. (DE 26-6) ¶ 24; Harris Decl. (DE 26-7) ¶ 20; Hill Decl. (DE 26-8) ¶ 29; Huntley Decl. (DE 26-9) ¶¶ 21, 23; Kinard Decl. (DE 26-10) ¶ 19; Maldonado Decl. (DE 26-12) ¶¶ 44-45; Ortiz Decl. (DE 26-14) ¶ 11; Titus Decl. (DE 26-16); ¶ 36; Whyte Decl. (DE 26-17) ¶¶ 52-53). To the extent petitioner Maldonado arguably alleges that FBOP officials failed to “segregate” him from other inmates who tested positive, this single instance of failure to follow the quarantine policy is hardly sufficient to establish deliberate indifference on the part of high-ranking BOP officials, particularly in the face of an emergent public health crisis. See Swain, 958 F.3d at 1090; Walker v. Peters, 233 F.3d 494, 501 (7th Cir. 2000); cf. Wilson v. Seiter, 501 U.S. 294, 303 (1991) (noting the “constraints facing
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official[s]” are relevant to the Eighth Amendment analysis).7 Additionally, the fact that inmate orderlies are required to move between quarantine and non-quarantine units does not establish deliberate indifference, particularly where respondents have implemented twice daily screenings for all inmate workers. (Stock Decl. (DE 37-10) ¶ 40).
Regarding the isolation practices, petitioners testified that inmates must present with a fever to be placed in isolation. (Ayers Decl. (DE 26-2) ¶ 26; Hill Decl. (DE 26-8) ¶ 20; Hallinan Decl. (DE 26-5) ¶ 25). Petitioners’ expert criticizes this procedure as inconsistent with CDC guidance that any person who develops “symptoms” of COVID-19 should be isolated, regardless of whether they have a fever. (Beyer Decl. (DE 26-18) ¶ 83). But this is precisely the type of medical disagreement between experts that does not state a claim for deliberate indifference. Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). The important point, for purposes of the deliberate indifference analysis, is that medical staff are evaluating inmates who develop symptoms and making medical judgment calls about which inmates require isolation.8

7

Petitioner Maldonado also expresses concerns that certain inmates who tested positive for COVID-19

returned to his unit after 14 days in isolation. Although they were housed in a different section of the unit, the infected

inmates shared the same bathroom with non-quarantined inmates. (Maldonado Decl. (DE 26-12) ¶¶ 32-33).

Petitioner Maldonado acknowledges, however, that FCC-Butner staff temporarily moved non-quarantined inmates

when the infected inmates showered, installed a “make-shift wall” to separate the infected inmates from the other

inmates in the bathroom, and cleaned and disinfected the bathrooms after the showers. (Id. ¶ 33). In any event, these

ambiguous assertions suggesting limited intermingling between quarantined and non-quarantined inmates do not rise

to the level of deliberate indifference for the reasons described above. Isolated incidents of failure to follow

quarantine policy are not sufficient, in this context, to establish an Eighth Amendment violation. See Swain, 958

F.3d at 1090; Walker, 233 F.3d at 501.

8

Petitioners also allege that isolation is the SHU is not medically sound where the SHU does not provide for

full isolation between inmates and staff. But that is a function of prison life itself, as the staff and inmate orderlies

must have some limited interaction with inmates. There is no indication, for example, that staff are not provided with

personal protective equipment during the required interactions. As to the allegation that the SHU does not provide a

system for “timely notification and management of symptoms,” the court has not been presented with evidence that

prisoners cannot request emergency medical care if they develop symptoms. Inmate Goodwin also testified that he

was evaluated twice per day when he was isolated in the SHU. (Goodwin Decl. (DE 26-4) ¶ 36). The court similarly

finds no evidence of deliberate indifference in Goodwin’s testimony that he was not provided treatment for COVID-

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Petitioners also take issue with the FBOP’s alleged policy that inmates must pay a $2.00 co-pay before they can obtain an evaluation from a medical provider for potential COVID-19 symptoms. Petitioners, however, present no evidence that any inmates who requested a screening were denied one on the basis of inability to pay the co-pay. As with the isolation practices, the court defers to the FBOP’s decision regarding how to implement its screening procedures. The constitution requires the FBOP to provide reasonable screening, leaving the precise implementation to the FBOP’s experts. See Farmer, 511 U.S. at 844.
As to the alleged lack of testing, respondents’ undisputed evidence is that CDC guidelines do not currently advise testing of all inmates. (See Harden Decl. (DE 39-25) ¶ 5). Nevertheless, due to a recent outbreak at FCI Butner-low, FBOP staff now have tested all inmates at that facility. (Id.). This effort at expanded testing in the wake of an outbreak (and without court intervention) does not suggest respondents are acting with deliberate indifference to the risk posed by COVID19. Wilson, 2020 WL 3056217, at *8.
Respondents argue that the recent increase in infections and deaths at FCC-Butner demonstrate that either respondents are not appropriately implementing the preventative measures discussed above, or that such measures are insufficient. While this evidence is tragic, continued spread of a novel, highly contagious virus cannot standing alone establish respondents failed to reasonably respond to the virus. See Scinto, 841 F.3d at 225–26 (distinguishing subjective and objective components of Eighth Amendment claim); see also Swain, 958 F.3d at 1089-90 (noting district court erred by “collaps[ing] the subjective and objective components” of the Eighth
19 while in isolation where there is no indication that he developed symptoms that required treatment. (See Goodwin Decl. (DE 26-4) ¶¶ 30-38).
32
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Amendment analysis and “treat[ing] the increase in COVID-19 infections as proof that defendants deliberately disregarded an intolerable risk”). In other words, that the harm was not ultimately averted does not establish respondents failed to respond reasonably to the risk or otherwise acted with deliberate indifference. See Farmer, 511 U.S. at 844.
Finally, petitioners allege respondents were deliberately indifferent because they failed to transfer enough inmates out of FCC-Butner, either through their home confinement or transfer authority, or by moving for compassionate release in the sentencing court. Petitioners allege, for example, that only one percent of FCC-Butner’s population has been approved for home confinement, and thus respondents allegedly have ignored the Attorney General’s directive to “maximize” use of home confinement. (See Reply (DE 47) at 7).
The Eighth Amendment does not require FBOP officials to take all conceivable steps to prevent the spread of COVID-19, provided their response to the virus remains reasonable. See Farmer, 511 U.S. at 844. As respondents note, public safety and similar considerations limit their ability to conduct widespread transfers to home confinement or other correctional institutions. Wilson, 501 U.S. at 303 (explaining “constraints facing the official” are relevant consideration in the Eighth Amendment analysis). Accordingly, the fact that respondents have not “maximized” use of home confinement and other release provisions to reduce the FCC-Butner population does not establish an Eighth Amendment violation. See Parrish ex rel. Lee v. Cleveland, 372 F.3d 294, 309 (4th Cir. 2004) (“As we have often made clear, the question in deliberate indifference cases is not whether the officials could have taken additional precautions . . . but whether they disregarded an excessive risk to health or safety” (internal quotation omitted)); Brown v. Harris, 240 F.3d 383, 390 (4th Cir. 2001); see also Wilson, 2020 WL 3056217, at *11 (“In light of the [FBOP’s] other
33
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measures to prevent the spread of COVID-19, and given the limitations on the [FBOP’s] authority to release inmates, its failure to make robust use of transfer, home confinement, or furlough to remove inmates in the medically-vulnerable subclass from [FCI-Elkton] does not constitute deliberate indifference.”).
In sum, petitioners have not made a “clear showing” that they are likely to succeed on the merits of their Eighth Amendment claim. The extensive evidence presented, while raising isolated concerns about the FBOP’s failure to enforce its plan to mitigate the spread of COVID19, does not rise to the level of deliberate indifference to a known risk of harm.
The court’s determination that petitioners have not demonstrated likelihood of success on the merits is dispositive, and the instant motion must be denied on that basis alone. See Real Truth About Obama, 575 F.3d at 346. The court, however, proceeds to analyze the remaining factors in the event such analysis is necessary for purposes of appellate review.
3. Irreparable Harm Turning to irreparable harm, petitioners must establish they are “likely to suffer irreparable harm in the absence of preliminary relief.” Winter, 555 U.S. at 20. To satisfy this factor, petitioners “must make a clear showing of irreparable harm and the required irreparable harm must be neither remote nor speculative, but actual and imminent.” Scotts Co. v. United Indus. Corp., 315 F.3d 264, 283 (4th Cir. 2002). The court finds petitioners have sufficiently established likelihood of irreparable harm. The medically vulnerable subclass members are likely to suffer imminent serious medical complications (including death) if they contract COVID-19. (See, e.g., Beyer Decl. (DE 26-18)). An order directing respondents to “release” the subclass members to home confinement, halfway
34
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house, another FBOP facility where COVID-19 is not spreading, or to medical furlough would reduce their chances of contracting COVID-19. (Id.). The risk of irreparable injury also is “likely” where the outbreak at FCC-Butner is worsening by the day. (See, e.g., Wilkerson Decl. (DE 48)). Accordingly, petitioners have made a clear showing they are likely to suffer irreparable harm in the absence of injunctive relief. See Wilson, 2020 WL 3056217, at *11 (“The district court correctly noted that inmates at [FCI-Elkton] face a risk of irreparable injury if they are infected by COVID-19.”).9
4. Balance of Equities and the Public Interest The final factors, the balance of the equities and the public interest, “merge” when the government is the party opposing the preliminary injunction. Roe v. Dep’t of Def., 947 F.3d 207, 230 (4th Cir. 2020) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). Petitioners have not made a clear showing that these factors weigh in favor of granting preliminary relief. As respondents note, “the sweeping relief requested here would undermine [the FBOP’s] systemic response to the COVID-19 pandemic; inappropriately insert the judicial branch into policy decisions that have been assigned to expert prison administrators, and require [the FBOP] to defy the CDC’s guidance to restrict prisoner movements during the pandemic to avoid the unnecessary risk of spreading the virus.” (Resp’ts’ Opp. (DE 42) at 24). The public interest also is not served by immediate release of inmates without proper and thorough vetting of their release plans, housing situation, individual medical needs, and likelihood of recidivism. See Wilson,

9

As respondents argue, petitioners and other members of the medically vulnerable subclass individually can

apply for home confinement, halfway house placement, compassionate release, or medical furloughs. But the

evidence here shows that respondents only rarely approve such requests. (Clark Decl. (DE 37-1) ¶¶ 14-49). The

relief sought by petitioners would dramatically expedite and expand these release avenues for the medically vulnerable

subclass.

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2020 WL 3056217, at *11. Although petitioners’ requested relief purports to provide review of release plans before release, the expedited review period (only 48 hours) cannot reasonably permit FBOP or an independent expert to fully evaluate all subclass members’ release planning needs or threat to public safety.
The court agrees with petitioners that the public interest is served by preventing unnecessary illness and death and slowing the spread of the virus. Respondents, however, have made reasonable efforts to achieve those goals. Particularly in the absence of substantial evidence showing respondents were deliberately indifferent to the spread of COVID-19, the record at this stage does not present “extraordinary circumstances” justifying judicial intervention in the management of FCC-Butner’s response to the virus. See Taylor, 34 F.3d at 268 (“It is well established that absent the most extraordinary circumstances, federal courts are not to immerse themselves in the management of state prisons or substitute their judgment for that of the trained penological authorities charged with the administration of such facilities.”); see also S. Bay United Pentecostal Church, __ S. Ct. __, 2020 WL 2813056, at *1 (Roberts, C.J., concurring) (“Our constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’ When those officials ‘undertake[] to act in areas fraught with medical and scientific uncertainties, there latitude ‘must be especially broad.’”) (quoting Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905) and Marshall v. United States, 414 U.S. 417, 427 (1974)). In light of the countervailing public interest concerns set forth above and considering the scope of relief sought, petitioners have not made a “clear showing” that injunctive relief serves the public interest or that the balance of equities tips in their favor.
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CONCLUSION Based on the foregoing, petitioners’ motion for temporary restraining order, preliminary injunction, and writ of habeas corpus (DE 24) is DENIED. SO ORDERED, this the 11th day of June, 2020.
_____________________________ LOUISE W. FLANAGAN United States District Judge
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 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION No. __:___-CV-___-__

CHARLES HALLINAN, JOSEAN KINARD, ARNOLD J. HILL, BENJAMIN D. MCRAE, JOHN DAILEY, LEE M. AYERS, GEORGE B. RIDDICK, JORGE LUIS MALDONADO, ANTWAN HARRIS, ANTHONY BUTLER, and TROY A. TITUS, on behalf of themselves and similarly situated individuals,
Petitioners/Plaintiffs,
v.
THOMAS SCARANTINO, Complex Warden, Federal Correctional Complex Butner; MICHAEL CARVAJAL, Federal Bureau of Prisons Director; and JEFFERY ALLEN, Federal Bureau of Prisons Medical Director, in their official capacities,
Respondents/Defendants.

)

)

)

)

)

)

) ) ) ) )

Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 and Class Action Complaint for Injunctive and Declaratory
Relief

)

Class Action

)

)

IMMEDIATE RELIEF SOUGHT

)

)

)

)

)

INTRODUCTION An urgent crisis at Federal Correction Complex Butner (“Butner”) unreasonably threatens the life, health, and safety of incarcerated people and staff because of inadequate measures within the facility to control the spread of the virus that causes COVID-19. Even as North Carolina takes tentative steps to reopen, the dangers posed to the medically vulnerable and elderly, particularly in institutional settings, show no sign of abating. Hundreds of incarcerated people and staff have been infected and eight people housed at Butner have already died from COVID-19. SARS-nCoV-2 (“coronavirus” or “virus”)

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continues to spread actively through Butner’s population, endangering the lives of incarcerated people and staff who work with them.1 People housed at Butner—a complex that is well over capacity—are packed into crowded dormitories, small cells, and narrow hallways. They cannot physically distance themselves from others or self-quarantine. They cannot ensure that others are effectively quarantined if they are infected. Instead, they must sleep within a few feet of one another—often in small cubicles—use communal bath facilities, and line up close to one another several times a day for food and medicine. Butner’s health care system is grossly inadequate to treat the growing number of sick men. The Federal Bureau of Prisons (“BOP”) has inadequate infection surveillance, testing, quarantine, and isolation practices, further exacerbating the crisis. What is more, people with pre-existing medical conditions often do not receive the treatment needed for their underlying conditions, presumably because the prison’s medical resources are over-taxed. BOP knows of these conditions, the extreme threat they pose, and the necessary measures that must be implemented to protect prisoners, and yet has, with deliberate indifference, failed to take critical steps to address the crisis. COVID-19 is a highly contagious and deadly pandemic that has raced across the globe, fundamentally altering life for everyone in just weeks. There is no cure and no vaccine. With more than five million known infections worldwide and more than 345,000 people dead, no one is unaffected.2 In the United States, more than 1.5 million people have tested positive
1 SARS-nCoV-2 causes the disease COVID-19. 2 COVID-19 Dashboard by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins,
Johns Hopkins Univ. & Med. Coronavirus Resource Center, https://coronavirus.jhu.edu/map.html (last visited May 25, 2020).
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for the virus, and almost 100,000 have died. Our country’s prisons have been especially hardhit: more than 25,000 incarcerated people and nearly 7,000 prison staff have tested positive for the virus, with at least 370 deaths among incarcerated people and 28 deaths among staff.3 Under even the best of circumstances, with people following rigorous physical distancing and good hygiene practices, the most our society can hope for is to limit the spread of coronavirus and “flatten the curve” to keep from overwhelming hospital resources and allow a better chance of survival for those who develop serious symptoms. But in Butner, where physical distancing and good hygiene practices are impossible, the circumstances are much worse. Testing for COVID-19 in BOP and at Butner, specifically, is limited. Despite the active outbreak at Butner, BOP has not tested all the men incarcerated there. The true number of infected people at Butner is unknown. Overcrowding worsens these dangerous conditions. At Butner, where 4,438 men are crammed into a space meant for no more than 3,998, whatever chance these men have to limit their exposure is even lower than it would be if the prison were even at maximum planned capacity. Moreover, Butner houses many of the most medically vulnerable people in BOP custody. It includes a large Federal Medical Center (“FMC”), which houses those needing the most intensive medical care the BOP provides. It also includes a large, low-security prison that houses hundreds of men with serious chronic medical conditions. And others throughout the complex also have serious chronic medical conditions.
3 The Marshall Project, https://www.themarshallproject.org/2020/05/01/a-state-by-state-look-atcoronavirus-in-prisons (last visited May 22, 2020).
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According to BOP, each of the deceased Butner residents had one or more preexisting medical conditions that the Centers for Disease Control and Prevention (“CDC”) identified as putting them at much higher risk of serious illness and death from the virus. These conditions include chronic lung disease, heart conditions, severe obesity, and immune deficiencies. People over 50 years old are at similarly heightened risk.4 Respondents/Defendants (hereinafter, “Respondents”) Director Carvajal, Warden Scarantino, and Medical Director Allen have shown deliberate indifference to the severe and obvious risk of rampant infection and death that COVID-19 poses to people incarcerated at Butner. They have done so in violation of the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment. Respondents have not taken the necessary steps to address the risk faced by the people in their custody. They have opposed motions for compassionate release, and they have failed to order furloughs or transfers to home confinement with sufficient speed and in sufficient numbers. They have failed to make other arrangements within the facility to allow for adequate physical distancing.5 And they have failed to implement effective isolation, quarantine, testing, screening, hygiene, and disinfecting policies or meaningfully modify movement protocols for staff and incarcerated people.6 Respondents have made no meaningful attempt to physically distance the men housed at Butner. People with COVID-19 symptoms are housed alongside those with no symptoms. Men sleep in crowded cubicles, and in some instances, even in busy hallways. Staff move
4 See Declaration of Joe Goldenson, M.D. (“Goldenson Decl.”) (attached as Ex. 18) at 2; Declaration of Dr. Chris Beyrer (“Beyrer Decl.”) (attached as Ex. 17) at 2–3, 28.
5 Beyrer Decl. at 7–14. 6 See, e.g., Beyrer Decl. 14–23.
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between the complex’s facilities, coming into contact with incarcerated people known to be infected, incarcerated people who may be infected, and those ostensibly in quarantine before release. Incarcerated people go to prison jobs where they interact with and prepare food trays for people in different housing units. Respondents’ failures not only endanger people incarcerated at Butner, they put Butner’s staff, local health care workers, family members, and the broader community at serious risk.7 Without the ability to physically distance from one another, people incarcerated at Butner remain at extraordinary risk of infection, serious illness, and death from COVID-19.8 It is extremely difficult for Respondents to effectively distance people in the Butner complex without reducing the overall number of people housed there. In other words, at current population levels, people incarcerated at Butner cannot practice meaningful physical distancing and are at continuing, increased risk of serious illness and death. The situation is urgent. These conditions are well-known to Respondents and, to avoid further extreme harm, they must take act immediately to prevent the further spread of COVID-19 at Butner. The only effective option is to begin immediately releasing Butner residents based on defined categories—including but not limited to those who are medically vulnerable—and to develop and implement a plan to (1) provide for adequate social distancing; (2) effectively test, quarantine, and isolate people at Butner and (3) effectively clean and disinfect the areas used by the population housed at Butner.9 Without immediate action by this Court, more people will become infected and more people will die.
7 See, e.g., Goldenson Decl. at 3–4; Beyrer Decl. at 14–15, 33. 8 See, e.g., Beyrer Decl. at 12, 32. 9 See, e.g., Goldenson Decl. at 5, 7–8; Beyrer Decl. at 32–33. The term “release,” as used throughout this
Petition, refers to discharge of incarcerated persons from the physical confines of FCC Butner, not necessarily release from custody. Release options may include, but are not limited to: enlargement of
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JURISDICTION AND VENUE Petitioners/Plaintiffs (hereinafter, “Petitioners”) bring this class action pursuant to 28 U.S.C.
§ 2241 (habeas corpus) and 28 U.S.C. § 1331 (federal question jurisdiction) for relief from
detention that violates their Eighth Amendment rights under the U.S. Constitution.
This Court has subject matter jurisdiction over these claims pursuant to 28 U.S.C. § 2241
(habeas corpus), 28 U.S.C. § 1651 (All Writs Act), Article I, § 9, cl. 2 of the U.S. Constitution
(Suspension Clause), 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. §§ 2201–02
(authority to provide declaratory and other necessary and proper relief), and based on the
Court’s inherent equitable powers.
This Court has jurisdiction over this Class-wide Writ of Habeas Corpus because Petitioners
are detained within its jurisdiction in the custody of Thomas Scarantino, Complex Warden of
Butner. Petitioners are therefore in custody for the purposes of the federal habeas corpus
statute, 28 U.S.C. § 2241.
Venue is proper in this judicial district and division pursuant to 28 U.S.C. § 2241(d) because
the Petitioners and all other class members are in custody in this judicial district.
Venue is proper pursuant to 28 U.S.C. § 1391(e)(1)(B) because a substantial part of the events or omissions giving rise to Petitioners’ claims occurred in this district.10
custody, release to parole or community supervision; transfer furlough (as to another medical facility, hospital, or halfway house); or non-transfer furlough, which could entail a released person’s eventual return to FCC Butner once the pandemic is over and the viral health threat is abated. Any releases would include requirements for testing, care, and social distancing, as informed by a public health expert. Incarcerated people should not be sent to another dangerous and crowded BOP facility to address the concerns at FCC Butner. 10 “A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority . . . may, except as otherwise provided by law, be brought in any judicial district in which . . . a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated.” 28 U.S.C. § 1391(e)(1)(B).
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PARTIES PETITIONER Charles Hallinan—BOP Register No. 75107-066—is 79 years old. He suffers from bladder cancer and prostate cancer. Both are in remission but require additional checks or treatment that Mr. Hallinan is not currently receiving due to COVID-related lockdowns at Butner. Mr. Hallinan also suffers from hypertension, cardiovascular disease (including a bypass surgery), and celiac disease (an autoimmune disorder), resulting in anemia. Mr. Hallinan is serving a 14-year sentence for RICO, money laundering, and wire fraud charges. He is housed in FCI Butner Low (“Butner Low”), and his projected release date is July 3, 2030.11 PETITIONER Josean Kinard—BOP Register No. 33603-058—is 34 years old and is in good health. He has served about 25 months of a 70-month sentence for two counts of drug possession with intent to distribute and possession of a firearm by a person convicted of a felony. He is housed in Butner Low, and his projected release date is May 9, 2022.12 PETITIONER Arnold Hill—BOP Register No. 09077-007—is 67 years old and in BOP custody from a sentence under the D.C. Code. He suffers from hypertension and cardiovascular disease (which required triple bypass surgery in 2019). Mr. Hill also has diabetes. He uses a wheelchair due to a spinal cord injury which required spinal fusion surgery in 2005 and 2016. Mr. Hill has served almost 33 years of a 20-years-to-life sentence for first-degree murder while armed under the D.C. Code. Mr. Hill was granted parole in 2012, but, before his release, his grant of parole was rescinded after the victim’s family objected to his release. Mr. Hill is housed in Butner Low.13
11 See generally, Declaration of Charles Hallinan (“Hallinan Decl.”) (attached as Ex. 4). 12 See generally, Declaration of Josean Kinard (“Kinard Decl.”) (attached as Ex. 9). 13 See generally, Declaration of Arnold Hill (“Hill Decl.”) (attached as Ex. 7).
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PETITIONER Benjamin McRae—BOP Register No. 87682-007—is 43 years old and in BOP custody from a sentence under the D.C. Code. He suffers from hypertension and has a blood clot in his left leg. He has previously had clots in his right leg and lungs, and currently has an inferior vena cava filter in his chest to trap large clots. He uses a wheelchair due to a history of falls and his blood clot. In addition, he is approximately 5’ 10” and 380 pounds, with a Body Mass Index (“BMI”) of approximately 54. Mr. McRae is serving a five-year sentence for possession with intent to distribute a controlled substance under the D.C. Code. He is housed in Butner Low, and his projected release date is January 26, 2022.14 PETITIONER John Dailey—BOP Register No. 39637-004—is 62 years old and suffers from mycosis fungoides (a very rare, terminal form of non-Hodgkins lymphoma), which causes lesions all over the body. He also has a congenital heart defect—which causes fainting—and is immunocompromised due to chemotherapy. Mr. Dailey is housed in Butner Low and is serving a 27-month sentence for Medicare fraud. Mr. Dailey’s projected release date is August 20, 2021.15 PETITIONER Lee Ayers—BOP Register No. 03882-007—is 37 years old and in BOP custody from a sentence under the D.C. Code. He suffers from pernicious anemia (a severe vitamin B deficiency), which has caused an abnormal spinal cord, severe stomach pain, and muscle weakness. He also suffers from atrophic gastritis, a chronic autoimmune disorder that compromises his immune system. Mr. Ayers is serving a reduced 72-month sentence for unlawful distribution of 50 grams or more of cocaine base consecutive with a 108-month
14 See generally, Declaration of Benjamin McRae (“McRae Decl.”) (attached as Ex. 12). 15 See generally, Declaration of John Dailey (“Dailey Decl.”) (attached as Ex. 2).
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sentence for assault with a dangerous weapon, under an aider and abettor theory. Mr. Ayers is housed in FCI Butner Medium II, and his projected release date is March 5, 2022.16 PETITIONER George Riddick—BOP Register No. 72403-053—is 51 years old and in BOP custody from a sentence under the D.C. Code. Mr. Riddick has lymphoma, which is in remission. He is diabetic and suffers from asthma, sleep apnea, and childhood arthritis. Mr. Riddick had a corneal transplant in February 2019 and takes an immunosuppressant to prevent rejection of the graft. Mr. Riddick has served 15 years of a 15-years-to-life sentence for second-degree murder while armed, possession of a firearm during the commission of a crime, and carrying a pistol without a license. Mr. Riddick is housed in FCI Butner Medium II.17 PETITIONER Jorge L. Maldonado—BOP Register No. 63756-018—is 52 years old. He has kidney disease and has had two kidney transplants, which require that he remain on immunosuppressant medication for the rest of his life. Mr. Maldonado is experiencing blood in his urine, and based on recent tests, his kidney may be failing; however, due to the current situation at Butner, he is unable to see a nephrologist. Mr. Maldonado also has malignant hypertension due to his kidney disease, and he has tachycardia that may be a side effect of his medication. Mr. Maldonado has served about 41 months of an 84-month sentence for conspiracy, wire fraud, theft of government property, aggravated identity theft, and aiding and abetting. Mr. Maldonado is housed at the minimum security camp adjacent to FCI Butner Medium I.18
16 See generally, Declaration of Lee Ayers (“Ayers Decl.”) (attached as Ex. 1). 17 See generally, Declaration of George Riddick (“Riddick Decl.”) (attached as Ex. 14). 18 See generally, Declaration of Jorge Maldonado (“Maldonado Decl.”) (attached as Ex. 11).
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PETITIONER Antwan Harris—BOP Register No. 55584-056—is 38 years old. He suffers from hypertension and has been diagnosed with pre-diabetes. Additionally, he is approximately 5’8” tall and 233 pounds, with a BMI of approximately 35. Mr. Harris is currently serving a 53-month reduced sentence for possession with intent to distribute marijuana consecutive with a 120-month sentence for possession of a firearm in furtherance of a drug trafficking crime. Mr. Harris is housed in Butner Low, and his projected release date is October 4, 2022.19 PETITIONER Anthony Butler—BOP Register No. 65583-056—is 35 years old. He suffers from diabetes, Hepatitis B, and a heart murmur that causes him shortness of breath. Mr. Butler is currently serving a five-year sentence for one count of felon in possession of a firearm and one count of possession of a firearm in furtherance of a drug trafficking crime. Mr. Butler is housed in Butner Low, and his projected release date is November 1, 2025. PETITIONER Troy A. Titus—BOP Register No. 58299-083—is 54 years old and in good health. Mr. Titus has served about 10 years of a 30-year sentence for wire fraud. He is housed in Butner Low, and his projected release date is January 8, 2035.20 RESPONDENT Thomas Scarantino is the Warden of Butner and, in his official capacity, has immediate custody of Petitioners and all proposed Class Members. RESPONDENT Michael Carvajal is the Director of BOP and, in his official capacity, is responsible for the safety and security of all persons—including Petitioners and all proposed Class Members—serving federal and D.C. Code sentences at BOP facilities, including Butner.
19 See generally, Declaration of Antwan Harris (“Harris Decl.”) (attached as Ex. 6). 20 See generally, Declaration of Troy Titus (“Titus Decl.”) (attached as Ex. 15).
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RESPONDENT Jeffery Allen, M.D. is the Medical Director of the BOP and, in his official capacity, is the final BOP health care authority responsible for all health care delivered to incarcerated people, including making an assessment of each individual’s risk factors for severe COVID-19 illness, risks of COVID-19 at the individual’s prison facility, and risks of COVID-19 at the location in which an incarcerated person seeks home confinement before the BOP may grant discretionary release.21 Respondent Allen also evaluates the suitability for and reviews requests for compassionate release.22
NOTICE OF RELATED CASE Per Rule 40.3(b) of the local civil rules of the U.S. District Court for the Eastern District of North Carolina, Petitioners provide notice that this case arises from a common nucleus of operative facts with, and therefore is a “related case” to the following: a. United States v. Anthony Butler, No. 5:18-CR-00475-BO, Dkt. 56, Apr. 23, 2020. Mr.
Butler, a named Petitioner in this case, filed a Motion for Compassionate Release Due to COVID-19 Outbreak with this Court on April 23, 2020. This Motion was denied on May 19. The bases for Mr. Butler’s motion and for the instant case arise from a common nucleus of operative facts—in particular the conditions at Butner and BOP’s inadequate response to the COVID-19 outbreak there—and the cases call for a determination of similar questions of law and fact.
21 Attorney General William Barr, Memorandum for Director of Bureau Prisons, Office of the Attorney General, 2 (Mar. 26, 2020), https://www.justice.gov/file/1262731/download [hereinafter Barr March 26 Memo]; Program Statement 6010.05, Federal Bureau of Prisons, Health Services Administration, 3 (June 26, 2014), https://www.bop.gov/policy/progstat/6010_005.pdf.
22 Program Statement 5050.50, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g), Federal Bureau of Prisons, Health Services Administration 6, 13–14 (Jan. 17, 2019), https://www.bop.gov/policy/progstat/5050_050_EN.pdf.
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FACTUAL ALLEGATIONS
I. COVID-19 Is a Dangerous, Contagious Illness that Poses a Significant Risk of Serious Illness and Death COVID-19 is a deadly and highly contagious disease caused by a novel coronavirus.23
As of May 25, 2020, there have been more than 5.4 million confirmed cases of COVID-19,
and more than 345,000 related deaths.24 More than 1.6 million of these cases and almost
100,000 deaths were in the United States.25
The worldwide mortality rate for COVID-19 is 3.4 percent.26 By comparison, seasonal
influenza “generally kills far fewer than 1 percent of those infected.”27
The case fatality rate can be significantly higher depending on the presence of certain
demographic and health factors. The rate is higher in men, and varies significantly with
advancing age, rising after age 50, and is above 10 percent (1 in 10 cases) for those with pre-
existing medical conditions including cardio-vascular disease.28
23 On March 11, 2020, the World Health Organization (“WHO”) classified COVID-19 as a pandemic. WHO Characterizes COVID-19 as a Pandemic, World Health Organization (Mar. 11, 2020), https://bit.ly/2W8dwpS.
24 COVID-19 Dashboard by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHHU), Johns Hopkins Univ. & Med. Coronavirus Resource Center, https://coronavirus.jhu.edu/map.html (last visited May 25, 2020).
25 Id. 26 WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19 - 3 March 2020, World
Health Organization (Mar. 3, 2020), https://www.who.int/dg/speeches/detail/who-director-general-sopening-remarks-at-the-media-briefing-on-covid-19---3-march-2020; cf. Beyrer Decl. at 2 (“The overall case fatality rate [from COVID-19] has been estimated to range from 0.3 to 3.5% in most countries, but over 7.0% in Italy. In the U.S., the case fatality rate is estimated to be 6.0%.”) (citing Mortality Analysis, Johns Hopkins University of Medicine, https://coronavirus.jhu.edu/data/mortality (last updated May 24, 2020)). 27 WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19 - 3 March 2020. 28 See, e.g., Beyrer Decl. at 2–3, 28.
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Coronavirus spreads through respiratory droplets, close personal contact, and contact with
contaminated surfaces and objects, where the virus can survive for up to three days.29
People who are asymptomatic can unknowingly transmit the virus, making it particularly
difficult to slow its spread.30
All people, regardless of their age or health, are at some risk of serious illness and death from
COVID-19.31
Certain categories of people face especially high risks of serious illness or death from
COVID-19, including people aged 50 years or older.32 If infected, people in this group are
more likely to require hospitalization, more likely to be admitted to intensive care units
(“ICUs”), and more likely to die.33
People of all ages face higher risk of hospitalization and death if they have underlying
medical conditions, including diabetes, chronic lung disease, moderate to severe asthma,
serious heart conditions, severe obesity, chronic kidney disease undergoing dialysis, liver
disease, epilepsy, or compromised immune systems (such as from cancer, HIV, or
autoimmune disease), blood disorders (including sickle cell disease), inherited metabolic
29 How COVID-19 Spreads, Centers for Disease Control and Prevention (Apr. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html (attached as Ex. 26); see also Beyrer Decl. at 4, 9–10, 14.
30 How COVID-19 Spreads; see also Beyrer Decl. at 15, 18–19, 24. 31 Assessing Risk Factors, Centers for Disease Control and Prevention (Apr. 23, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/assessing-riskfactors.html (attached as Ex. 27). 32 See, e.g., Goldenson Decl. at 2; Xianxian Zhao, et al., Incidence, clinical characteristics and prognostic factor of patients with COVID-19: a systematic review and meta-analysis (March 20, 2020), https://cutt.ly/etRAkmt; Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://cutt.ly/ytEimUQ (data analysis based on WHO China Joint Mission Report); Older Adults, Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/older-adults.html (attached as Ex. 28). 33 Xianxian Zhao, et al.; see also Beyrer Decl. at 2–3, 27.
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disorders, stroke, developmental delay, a history of smoking, or other immune deficiencies.34
According to the WHO-China Joint Mission Report, the COVID-19 mortality rate increases
to 13.2 percent for those with cardiovascular disease, 9.2 percent for diabetes, 8.4 percent for hypertension, 8.0 percent for chronic respiratory disease, and 7.6 percent for cancer.35 The
WHO also reports that people with high blood pressure are more likely to develop serious COVID-19 illness than others.36
Among people who have more serious forms of the disease, some 30 percent will progress to
Acute Respiratory Distress Syndrome, which has a 30 percent mortality rate overall and is
higher for those with other health conditions. Some 13 percent of these patients will require mechanical ventilation.37
People who survive COVID-19 can suffer severe damage to lung tissue, including permanent
loss of respiratory capacity, and damage to other vital organs, such as the heart, central nervous system, and liver.38 COVID-19 may also target the heart, causing a medical condition called myocarditis, or inflammation of the heart muscle.39
34 Xianxian Zhao, et al.; see also Beyrer Decl. at 27. 35 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health
Organization 12 (Feb. 28, 2020), https://www.who.int/docs/default-source/coronaviruse/who-chinajoint-mission-on-covid-19-final-report.pdf.; see also Beyrer Decl. at 29. 36 Q&A on Coronaviruses (COVID-19), World Health Organization, https://www.who.int/news-room/qa-detail/q-a-coronaviruses (last visited May 19, 2020). 37 See, e.g., Goldenson Decl. at 2; Beyrer Decl. at 3. 38 Panagis Galiatsatos, What Coronavirus Does to the Lungs, Johns Hopkins Medicine (Apr. 13, 2020), https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/what-coronavirus-doesto-the-lungs. COVID-19 can trigger an over-response of the immune system, further damaging tissues in a cytokine release syndrome that can result in widespread damage to other organs, including permanent injury to the kidneys and neurologic injury. Id.; see also Beyrer Decl. at 3. 39 Beyrer Decl. at 3. Myocarditis can reduce the heart’s ability to pump. Id.
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Even young, healthy people who contract COVID-19 may require supportive care, which includes supplemental oxygen, positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation.40 Serious complications from COVID-19 can develop rapidly.41 Some individuals show the first symptoms of infection within two days of exposure, and their conditions can seriously deteriorate in less than five days.42 People who develop serious illness often require advanced medical support, including specialized equipment, such as ventilators, and large teams of highly trained care providers, such as ICU doctors, nurses, and respiratory therapists. The artificial ventilation process is itself invasive and dangerous, and some patients must be placed in medically induced comas for such treatment.43 II. The Risk from COVID-19 Is Particularly High in Prisons According to CDC guidelines, only three measures are known to effectively reduce the spread of this fatal disease: (i) diligent “social or physical distancing” to avoid transmission of the
40 Kerry Kennedy Meltzer, I’m Treating Too Many Young People for the Coronavirus, The Atlantic (March 26, 2020), https://www.theatlantic.com/ideas/archive/2020/03/young-people-are-not-immunecoronavirus/608794/; see also What is ECMO, 193 Am. J. Respir. Care Med 9–10 (2016), https://www.thoracic.org/patients/patient-resources/resources/what-is-ecmo.pdf (describing function of extracorporeal membrane oxygenation machine to replace function of heart and lungs).
41 See Sarah Jarvis, Coronavirus: How Quickly do COVID-19 Symptoms Develop and How Long do They last?, Patient (Apr. 20, 2020), https://patient.info/news-and-features/coronavirus-how-quickly-docovid-19-symptoms-develop-and-how-long-do-they-last.
42 Id.; see also Beyrer Decl. at 4. 43 Kathryn Dreger, What You Should Know Before You Need a Ventilator, NY Times (Apr. 4, 2020),
https://www.nytimes.com/2020/04/04/opinion/coronavirus-ventilators.html.
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virus;44 (ii) covering the mouth and nose with a mask or cloth;45 and (iii) vigilant hygiene practices, including frequently washing hands and disinfecting surfaces.46 Physical distancing is a necessary predicate for hygiene practices, such as handwashing, to have a meaningful impact.47 Because asymptomatic people can transmit the virus, it is critical to maintain physical distance, even among people who show no signs of illness.48 But in prisons, incarcerated persons and staff interact at all times in close proximity and cramped quarters designed to confine people rather than distance them. Incarcerated people, by the fact of their incarceration, have little autonomy or control of their movements. As a result, incarcerated people are highly susceptible to rapid transmission of the virus through contact with other people, including asymptomatic carriers, and touching common surfaces.49 Incarcerated people, correctional staff, and contractors regularly move in and out of correctional facilities and across different housing units within prisons. Such movement creates an ever-present risk that persons, including asymptomatic carriers, will carry the virus in and out of those facilities, spreading infection and triggering outbreaks.

44 See, e.g., Social Distancing, Quarantine, and Isolation, Centers for Disease Control and Prevention,

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html (attached as

Ex. 24); Beyrer Decl. at 4; Goldenson Decl. at 2–3.

45 See, e.g., How to Protect Yourself & Others, Centers for Disease Control and Prevention,

https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html (attached as Ex. 25);

Goldenson Decl. at 2–3.

46 See id.; see also COVID-19 in Correctional and Detention Facilities – United States, February-April

2020,

Centers

for

Disease

Control

and

Prevention,

https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e1.htm (last visited May 22, 2020) [hereinafter

COVID-19 in Correctional and Detention Facilities] (attached as Ex. 29); Interim Guidance on

Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities,

Centers for Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019-

ncov/community/correction-detention/guidance-correctional-detention.html (last visited May 22, 2020)

[hereinafter Interim Guidance] (attached as Ex. 30); Goldenson Decl. at 2–3; Beyrer Decl. at 20.

47 See COVID-19 in Correctional and Detention Facilities.

48 See Beyrer Decl. at 8, 15, 24.

49 See id. at 8, 15, 23.

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In addition, prisons are at increased risk from the rapid spread of an infectious disease—like COVID-19—because of the high number of people with chronic, often untreated, illnesses housed in a setting with minimal levels of sanitation, limited access to personal hygiene, limited access to medical care, and limitations on physical distancing.50 As the chart below illustrates, health conditions that make COVID-19 particularly dangerous are more prevalent in the incarcerated population than in the general public.51
In addition to Drs. Joe Goldenson and Chris Beyrer (whose declarations are attached at Exhibits 18 and 17, respectively) multiple public health experts, including Dr. Gregg
50 See generally I.A. Binswanger et al., Prevalence of Chronic Medical Conditions Among Jail and Prison Inmates in the USA Compared With the General Population, 63 J. Epidemiology & Community Health 912 (2009) (concluding that incarcerated people in the U.S. had a higher burden of most chronic medical conditions than the general population, even adjusting for sociodemographic differences and alcohol consumption); see also Letter from Faculty at Johns Hopkins School of Medicine, School of Nursing, and Bloomberg School of Public Health to Hon. Larry Hogan, Gov. of Maryland (Mar. 25, 2020), https://cutt.ly/stERiXk; Beyrer Decl. at 29, 31.
51 Peter Wagner & Emily Widra, No Need to Wait for Pandemics: The Public Health Case for Criminal Justice Reform, Prison Policy Initiative (Mar. 6, 2020), https://cutt.ly/7tJXmlC (color in chart adjusted); see also Beyrer Decl. at 29 (“More than 38% of people in correctional custody nationally have a chronic illness.”).
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Gonsalves,52 Dr. Ross MacDonald,53 Dr. Marc Stern,54 Dr. Oluwadamilola T. Oladeru and
Dr. Adam Beckman,55 Dr. Anne Spaulding,56 Dr. Homer Venters,57 the faculty at Johns
Hopkins schools of nursing, medicine, and public health,58 and Dr. Josiah Rich59 have
strongly cautioned that incarcerated people are likely to face serious, even grave, harm due
to the COVID-19 outbreak.
The CDC and WHO have also identified prisons as especially susceptible to rapid outbreaks
of infection due to close person-to-person contact among large, confined populations.60
According to the CDC:
a. Environments like prisons “heighten[] the potential for COVID-19 to spread once
introduced”;
b. There are “many opportunities for COVID-19 to be introduced into a correctional or
detention facility, including daily staff ingress and egress”;
52 Kelan Lyons, Elderly Prison Population Vulnerable to Potential Coronavirus Outbreak, Connecticut Mirror (Mar. 11, 2020), https://cutt.ly/BtRSxCF.
53 Craig McCarthy & Natalie Musumeci, Top Rikers Doctor: Coronavirus ‘Storm is Coming,’ New York Post (Mar. 19, 2020), https://cutt.ly/ptRSnVo.
54 Marc F. Stern, MD, MPH, Washington State Jails Coronavirus Management Suggestions in 3 “Buckets,” Washington Assoc. of Sheriffs & Police Chiefs (Mar. 5, 2020), https://cutt.ly/EtRSm4R.
55 Oluwadamilola T. Oladeru, et al., What COVID-19 Means for America’s Incarcerated Population – and How to Ensure It’s Not Left Behind (Mar. 10, 2020), https://cutt.ly/QtRSYNA.
56 Anne C. Spaulding, MD MPDH, Coronavirus COVID-19 and the Correctional Facility, Emory Center for the Health of Incarcerated Persons (Feb. 26, 2020), https://ccao.org/wp-content/uploads/COVIDfor-Corrections-vers.-2.26.20.pdf.
57 Madison Pauly, To Arrest the Spread of Coronavirus, Arrest Fewer People, Mother Jones (Mar. 12, 2020), https://cutt.ly/jtRSPnk.
58 Letter from Faculty at Johns Hopkins School of Medicine, School of Nursing, and Bloomberg School of Public Health to Hon. Larry Hogan, Gov. of Maryland (Mar. 25, 2020), https://cutt.ly/stERiXk.
59 Amanda Holpuch, Calls Mount to Free Low-risk US Inmates to Curb Coronavirus Impact on Prisons, The Guardian (March 13, 2020 3:00 p.m.), https://cutt.ly/itRSDNH.
60 See COVID-19 in Correctional and Detention Facilities; Interim Guidance; Preparedness, Prevention and Control of COVID-19 in Prisons and Other Places of Detention: Interim Guidance (Mar. 15, 2020), http://www.euro.who.int/__data/assets/pdf_file/0019/434026/Preparedness-prevention-and-control-ofCOVID-19-in-prisons.pdf?ua=1.
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c. “Options for medical isolation of COVID-19 cases are limited”; d. Incarcerated persons and staff may have medical conditions that increase their risk of
severe disease from COVID-19; and e. Incarcerated persons have limited ability to exercise disease prevention measures—such
as frequent handwashing—due to restrictions put in place by prison officials.61 Among the specific recommendations from the CDC for mitigating the risk of COVID-19— tailored to the realities of prison—is implementing physical distancing strategies— “regardless of the presence of symptoms.”62 This includes reassigning and/or rearranging bunks to provide more space, enforcing distance requirements in common areas, staggering recreation times, and staggering meals.63 The CDC also recommends, among other things: (i) individually quarantining and medically monitoring close contacts of confirmed COVID-19 cases—including testing for COVID19;64 (ii) implementing daily temperature checks in housing units where COVID-19 cases have been identified;65 (iii) requiring face masks for all individuals showing symptoms of COVID-19 and immediately placing them under individual medical isolation in single cells
61 COVID-19 in Correctional and Detention Facilities – United States, February-April 2020, Centers for Disease Control and Prevention, https://www.cdc.gov/mmwr/volumes/69/wr/mm6919e1.htm.
62 Interim Guidance, at 11 (emphasis added). 63 Id. at 11; Beyrer Decl. at 24–25. 64 COVID-19 in Correctional and Detention Facilities – United States, February-April 2020 at 19. 65 Id. at 22.
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with solid doors and walls;66 (iv) actively encouraging staff to stay home when sick;67 and
(v) frequent and thorough cleaning and disinfection of surfaces, objects, and areas.68
III. COVID-19 Is Spreading Rapidly at Butner Butner is a complex of BOP facilities—FMC Butner, Butner Low, FCI Butner Medium I
(“Medium I”), and FCI Butner Medium II (“Medium II”)—collectively housing
approximately 4,438 men.69
The complex was designed to hold no more than 3,998 people, meaning it is currently at
approximately 111 percent of its maximum designed capacity.70 Thus, Butner is
overcrowded, making it impossible to adequately physically distance people and contain the
spread of COVID-19 without reducing the population of men incarcerated there.71 Even if it
were at its maximum designed capacity, Butner could not enable the incarcerated people in
its custody to adequately physically distance.
Butner is experiencing of one of the worst COVID-19 outbreaks of any BOP facility.
Eight people held at Butner have already died from COVID-19.72
66 Id. at 15–16 (emphasis added). CDC defines “medical isolation” as “confining a confirmed or suspected COVID-19 case (ideally to a single cell with solid walls and a solid door that closes), to prevent contact with others and to reduce the risk of transmission.” Id. at 4.
67 Id. 68 Id. at 9. 69 See Population Statistics: Inmate Population Breakdown, Federal Bureau of Prisons,
https://www.bop.gov/mobile/about/population_statistics.jsp (last updated May 21, 2020) (showing populations for Butner Low FCI (1,201), Butner Medium I FCI (656), Butner Medium II FCI (1,461), and Butner FMC (909). FCI Butner Medium I also houses another 211 men in an adjacent, minimum security satellite camp. Id. 70 See PREA Audit Report, National PREA Resource Center, Bureau of Justice Assistance 1 (Apr. 2, 2017), https://www.bop.gov/locations/institutions/buh/PREA_butner.pdf. 71 Beyrer Decl. at 7–8, 32–33. 72 COVID-19 Coronavirus: COVID-19 Cases, Federal Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited May 25, 2020) [hereinafter COVID-19 Cases].
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Despite limited testing, at least 369 incarcerated people and 44 staff members at Butner have tested positive for the virus.73
Given the frequent asymptomatic transmission documented by the CDC and various
departments of public health, the lack of widespread testing by BOP, and the already large
number of people known by the BOP to be infected at Butner, it is likely that there are many
other infected and highly contagious—but untested—people among the incarcerated people and staff at Butner.74
IV. Respondents Are Aware that the Conditions at Butner Put People Incarcerated There at a Very High Risk Respondents are aware of the conditions at Butner including, as described above, the
overcrowding.
The increased risks due to overcrowding are exacerbated by the presence of a large number of medically vulnerable people housed at the prison.75
Despite the known high risk, Respondents have not conducted widespread testing of people incarcerated at Butner.76
Whether a person already at Butner will be quarantined appears to be determined solely by whether the person has a high temperature.77 Butner has occasionally checked the
73 Id. 74 In fact, recent testing of all 700 incarcerated people in a North Carolina state prison found that 444 were
infected—an 11-fold increase from the previously known 39 cases. Kevin Johnson, Mass Virus Testing in State Prisons Reveals Hidden Asymptomatic Infections; Feds Join Effort, USA Today (Apr. 25, 2020), https://www.usatoday.com/story/news/politics/2020/04/25/coronavirus-testing-prisons-revealshidden-asymptomatic-infections/3003307001/. Critically, 90 percent of the newly diagnosed cases were asymptomatic. Id. 75 See, e.g., McRae Decl. at 3 (“At least half of the people in my housing unit are elderly and/or have serious medical conditions.”). 76 See, e.g., Ayers Decl. at 5; Dailey Decl. at 4; Hill Decl. at 4; McRae Decl. at 3; Riddick Decl. at 5. 77 See, e.g., Ayers Decl. at 5; Hill Decl. at 4; See McRae Decl. at 3; Riddick Decl. at 5.
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temperatures of all people in a housing unit, but people usually get their temperatures checked only if they put in for sick call, which requires a $2.00 co-pay, or in some—but not all— cases, if they are required to leave their unit for work assignments or outside-hospital visits.78 Rather than take well-known measures to stop the spread of the virus, around April 1, Butner purported to “lock down” in response to the outbreak of the disease.79 This had a number of adverse effects—described in more detail in the sections that follow—such as: a. People housed in facilities other than the FMC with serious known medical conditions
and who ordinarily receive treatment at the FMC could no longer go there and did not receive their needed treatments as a result.80 b. People housed in celled units were limited in the times they could come out of their cells.81 This means that large groups of people try to use the showers, phones, and computers in a short period of time, concentrating the use of these facilities and ensuring that people congregate in these confined areas.82 c. At the Camp and the low security facilities, BOP started placing people believed to have COVID-19 in solitary confinement cells called the Special Management Unit or Special Housing Unit (“SHU”).83 This is not medical isolation; rather, it is essentially punitive solitary confinement, with some reporting that they were denied access to necessary
78 See, e.g., Titus Decl. at 3. 79 See e.g., Ayers Decl.at 3; Hallinan Decl. at 2; Riddick Decl. at 2. 80 See, e.g., Hill Decl. at 4; Riddick Decl. at 5. 81 See, e.g., Ayers Decl.at 3; Riddick Decl. at 2. 82 Id. 83 See, e.g., Riddick Decl. at 5; Ayers Decl. at 5; Hill Decl. at 4; McRae Decl. at 19.
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medications, phone usage, and hot water.84 In Medium II, BOP is also placing people in
the SHU for isolation.
d. Meals are now delivered to housing units.85 As a result, people in dormitory-style
housing units have to line up in a confined space three times a day to receive their meals.86
In many facilities within the complex, pill call has not changed.87 People in dormitories have
to line up to receive their medications.88
All these conditions further increase the risk of infection, serious illness, and death for people
incarcerated in the complex.89 These conditions and risks are known to Respondents.
A. FMC Butner
FMC Butner is an administrative security federal medical center housing men designated as
Care Level 4.90 This is the highest level of healthcare need in the BOP.91
84 Id.; Declaration of Roger Duane Goodwin (“Goodwin Decl.”) (attached as Ex. 3) at 5–6; Beyrer Decl. at 22.
85 See, e.g., Hill Decl. at 3; Kinard Decl. at 2; McRae Decl. at 2. 86 See, e.g., Hill Decl. at 3; Kinard Decl. at 2; McRae Decl. at 2. 87 See, e.g., Declaration of Lewis Donnell Huntley (“Huntley Decl.”) (attached as Exhibit 8) at 2;
Government’s Response to Motion for Compassionate Release, United States v. El-Hanafi, S7 10-cr162 (KMW), Dkt. No. 247 (filed May 13, 2020) (reporting that, as of May 8, 2020, approximately 459 coronavirus tests have been administered to inmates at the Butner complex, out of a total of approximately 4,550 total inmates, and that 318 tested positive and 141 tested negative). 88 See, e.g., Huntley Decl. at 2; Hill Decl. at 3; McRae Decl. at 2. 89 See e.g., Hallinan Decl. (describing lack of physical distancing, limited hygiene and sanitation efforts, lack of access to necessary medical care, and limited or ineffectual efforts to mitigate the spread of COVID-19); see generally Beyrer Decl. 90 See Bureau of Prisons: Better Planning and Evaluation Needed to Understand and Control Rising Inmate Health Care Costs, United States Government Accountability Office, 64 (June 2017), https://www.gao.gov/assets/690/685686.pdf; PREA Audit Report at 2. The FMC houses people at Care Level 4 for medical and mental health reasons. 91 Care Level Classification for Medical and Mental Health Conditions or Disabilities, Federal Bureau of Prisons, 2–3 (May 2019), https://www.bop.gov/resources/pdfs/care_level_classification_guide.pdf.
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Patients at Care Level 4 “require services available only at a BOP Medical Referral Center, which provides significantly enhanced medical services and limited inpatient care.”92
Examples of conditions that result in a Care Level 4 are: “Cancer on active treatment,
dialysis, quadriplegia, stroke or head injury patients, major surgical treatment, and high-risk pregnancy.”93
FMC Butner provides specialized services in all areas of medicine and is BOP’s primary referral center for oncology, providing chemotherapy and radiation therapy.94 FMC Butner also manages a broad range of subacute and chronically ill incarcerated men.95
FMC Butner is not, however, equipped to provide advanced support in an ICU setting with ventilators, as serious COVID-19 cases often require.96
Instead, based on BOP press releases about the eight people who have already died at Butner,
BOP leaves people in their Butner facility—without ICU-level care—until they are already experiencing respiratory failure.97 It is only at that point that they may be transferred to a local hospital.98
92 Id. at 3. 93 Id. 94 Id. 95 Bureau of Prisons: Better Planning and Evaluation Needed to Understand and Control Rising Inmate
Health Care Costs, United States Government Accountability Office, 64 (June 2017) https://www.gao.gov/assets/690/685544.pdf. 96 See id. 97 See, e.g., Press Release, Inmate Death at FCI Butner I, U.S. Dep’t of Justice Federal Bureau of Prisons (Apr. 13, 2020), https://www.bop.gov/resources/news/pdfs/20200413_3_press_release_butner.pdf (“John Doe, went into respiratory failure at the Federal Correctional Institution (FCI) Butner I . . . . He was evaluated by institutional medical staff and transported to a local hospital for further treatment and evaluation.”) (attached at Ex. 20). 98 See id.
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Even if FMC Butner were equipped to provide the requisite level of care to treat serious coronavirus infections, it is already well over its maximum capacity.99 The facility was
designed to hold 513 people for inpatient treatment and another 250 people to work in the facility.100 BOP reports that 909 men are currently housed there,101 exceeding the facility’s maximum capacity of 743 people by approximately 22 percent.102
The fifth floor of FMC Butner houses patients who are extremely ill, including those on hospice care.103 The fourth floor houses patients undergoing treatment for cancer.104 The third floor houses patients who are having ambulatory surgeries.105 Each of these floors house about 240 people, mostly in two-person cells.106
The fourth floor, which houses patients receiving treatment for cancer, is divided into four units of roughly 60 people each.107 While each cell has its own sink, shower, and toilet, the residents of each unit must all share two phones.108
At least some cells on the fourth floor of the FMC share ventilation systems such that individuals in one cell can hear those in the cell next to them when they speak or cough.109
99 See Population Statistics: Inmate Population Breakdown, https://www.bop.gov/mobile/about/population_statistics.jsp.
100 PREA Audit Report, at 2. 101 See Population Statistics: Inmate Population Breakdown,
https://www.bop.gov/mobile/about/population_statistics.jsp. 102 See PREA Audit Report, at 1. 103 See, e.g., Declaration of Randy Flores Ortiz (“Ortiz Decl.”) (attached as Ex. 13) at 2. 104 Id.; see also Declaration of Michael Harrington (“Harrington Decl.”) (attached as Ex. 5) at 2. 105 See, e.g., Ortiz Decl. at 2. 106 See, e.g., id. at 1–2. 107 See, e.g., Harrington Decl. at 2. 108 Id. 109 See, e.g., id. at 3.
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Since the lockdown began at the beginning of April, Respondents have been quarantining some people who transfer into Butner on the fourth floor of the FMC—the floor where the residents are immunocompromised due to cancer treatment.110 According to Randy Ortiz, a cancer patient housed on the fourth floor, as of May 21, there were two individuals quarantined in his 32-cell section of the fourth floor.111 People who work on the fourth floor of FMC bring food and medicine to the patients and those in quarantine.112 Movement of patients within the FMC has continued during the lockdown, despite the presence of coronavirus within the facility.113 Further, testing of the patients within the FMC has been sporadic and inconsistent. According to Michael Harrington, a terminal cancer patient also housed on the fourth floor, he tested negative for the virus on or about April 29 after reporting shortness of breath and pain in his chest – weeks after being moved into a new cell with a new cell mate, who was not tested for COVID-19 at any point.114 Importantly, the serious risks from COVID-19 to Petitioners and others in Butner with existing chronic illnesses does not come solely from the infection itself. As part of Butner’s response to COVID-19, medical visits and treatments at FMC Butner for existing serious chronic illnesses have been severely curbed or halted for people residing in other parts of
110 See, e.g., Ortiz Decl. at 1. 111 Id. 112 Id. 113 See, e.g., Harrington Decl. at 3−4 (noting that Harrington was moved to a new cell with a new cellmate
in mid-April, despite the presence of coronavirus within his unit). 114 Id.
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Butner.115 People in other Butner facilities who need treatment at the FMC Butner can no longer go there until the lockdown is lifted.116 This policy creates an additional, substantial medical risk for those medically vulnerable people housed at all facilities in the complex. In addition to patients, there are also people incarcerated at FMC Butner who work jobs maintaining the facility. Upon information and belief, there are approximately 120 such people housed in the Cadre Unit, a dormitory-style unit with cubicles roughly 6’ x 9’. The cubicles are separated by walls about six feet high and house two or three people each. Upon information and belief, the Cadre Unit has communal phones and computers, which people are required to wait in lines to use, and a shared TV room and restroom facilities in which it is not possible for people to maintain distance from each other. Upon information and belief, some men in the Cadre Unit work jobs that require them to travel to other units within the FMC, such as those who work in the Inmate Companion Program (through which they assist FMC nurses with incarcerated or committed patients who cannot care for themselves). Upon information and belief, people who leave the unit for work have their temperatures taken regularly, but others only have their temperatures taken during sick calls. Upon information and belief, no one within the Cadre Unit has been tested for the coronavirus.
115 See Hallinan Decl. at 1 (“I am supposed to continue to receive periodic [cancer] treatments . . . because my cancer was a type of cancer that frequently recurs . . . . I was supposed to have another treatment at the end of April 2020, but I was not taken for treatment because of the lockdown due to COVID-19.”); Riddick Decl. at 5 (“People who need treatment at the FMC Butner can no longer go there until the lockdown is lifted.”); Hill Decl. at 4 (“Since the lockdown . . . the men in facilities other than the FMC who would ordinarily receive treatment for their medical conditions in the FMC can no longer go there and cannot receive their treatments as a result at the FMC.”).
116 See Hallinan Decl. at 1; Riddick Decl. at 5; Hill Decl. at 4
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As of May 24, 2020, at least five people incarcerated at FMC Butner and nine staff members have tested positive for coronavirus.117
B. Butner Low Butner Low118 is a low security federal correctional institution. A primary function of Butner Low is to house individuals designated as Care Level 3.119
These are men “who have complex, and usually chronic, medical or mental health conditions
and who require frequent clinical contacts to maintain control or stability of their condition,
or to prevent hospitalization or complications, . . . [such as] [c]ancer in partial remission,
advanced HIV disease, severe mental illness in remission on medication, severe congestive heart failure, and end-stage liver disease.”120 In other words, Butner Low houses a large number of medically vulnerable people, including several Petitioners.121
Butner Low contains eight dormitory-style housing units, each holding about 140–160 men.122 The housing units are large, open rooms divided into cubicles.123 Estimates of cubicle sizes range from about 9’ x 7’ to about 11’ x 7’, with walls about 5’ to 6’ high.124 The photo below,
published by the Associated Press, purports to show a dorm at Butner.
117 COVID-19 Cases. BOP reports that one incarcerated person and seven staff members have recovered. Id.
118 Butner Low is sometimes referred to as LSCI Butner. 119 PREA Audit Report, at 2. 120 Care Level Classification for Medical and Mental Health Conditions or Disabilities,
https://www.bop.gov/resources/pdfs/care_level_classification_guide.pdf., at 5. 121 See, e.g., Dailey Decl. at 1–2; Hill Decl. at 1–2; McRae Decl. at 1. 122 See, e.g., Dailey Decl. at 2 (“I am housed in a dormitory-style housing unit of 162 men. We live in
cubicles that are about 11’ x 7’. There are 3 people in my cubicle.”). 123 Id. 124 See, e.g., id. at 2 (housed in 11’ x 7’ cubicle); Hallinan Decl. at 2 (housed in 9’ x 7’ cubicle); Kinard
Decl. at 1 (housed in 8’ x 10’ cubicle).
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Most cubicles house two or three people, though a small number house only one, often due to that person using a wheelchair.125 All or nearly all cubicles are occupied.126 There is only about a 4’ x 5’ space to move around in those cubicles, if that.127 Because of the cubicle arrangement, most people housed in Butner Low sleep within six feet of several other people.128 In other words, the hundreds of men in Butner Low—many of them elderly or medically vulnerable—spend several hours every night within the CDC’s suggested minimum physical distancing zone. Like all facilities in the complex, Butner Low is currently on “lockdown” due to the COVID19 outbreak, meaning certain normal activities are curtailed.
125 See, e.g., Hill Decl. at 2 (“Because I use a wheelchair, I am housed in my own cubicle.”); McRae Decl. at 1–2.
126 See, e.g., McRae Decl. at 1–2 (describing about 150 men housed in about 50 cubicles, most with three people per cubicle).
127 See, e.g., id.; Titus Decl. at 4. 128 See, e.g., Dailey Decl. at 3 (sleeps within six feet of seven or eight people); Hallinan Decl. at 2 (sleeps
within six feet of five people); Kinard Decl. at 1 (sleeps within three feet of nearest person).
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People requiring medication must line-up at one or more of three daily “pill calls.”129 William Whyte, for instance, must wait in the pill line for refills of his blood thinner.130 He reports that people are not physically distanced in the pill line.131 Sometimes these lines have 60 people in them.132 Thus, every day—and sometimes more than once per day—medically vulnerable people are forced to stand in very close proximity to each other for extended periods of time to get their medications. The same medical staff conduct multiple pill calls per shift across multiple housing units, and they do not change protective gear, disinfect equipment, or otherwise decontaminate themselves as they move amongst units.133 The situation is similarly grim at meal time. Petitioners housed in Butner Low uniformly report that, although they are no longer taken to the cafeteria for meals, they are instead forced to line up in their housing units to receive their meals.134 People in line are about one to two feet apart,135 and, upon information and belief, it takes at least ten minutes to get through the line. And, in at least one case, men from one unit were made to line up with men from another unit, substantially defeating any intended purpose behind the current meal-time process.136
129 See, e.g., Dailey Decl. at 3 (reporting that people “line up [during pill call] with little space between them”).
130 Declaration of William Robert Whyte (“Whyte Decl.”) (attached as Ex. 16) at 2. 131 Id.; see also Hill Decl. at 3; McRae Decl. at 2. 132 See, e.g., Declaration of John Krokos (“Krokos Decl.”) (attached as Ex. 10) at 3. 133 See, e.g., Titus Decl. at 4. 134 See, e.g., Kinard Decl. at 2 (“We are no longer allowed to go to the cafeteria for meals, and have been
getting our meals by lining up as a unit just outside of the unit door. It is not possible to maintain distance from others when lining up for meals.”). 135 See, e.g., Hallinan Decl. at 3 (“People in the lines are right on top of each other, with only 1’–2’ between them.”). 136 See Kinard Decl. at 2.
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Likewise, access to phones and computers is problematic, with people densely packed in lines for extended periods of time.137 Petitioners report that the six to eight phones shared in each
unit—which are in regular use—are about two feet apart, and they are not disinfected in between uses.138 People wait about 30 to 60 minutes in line to use the phone.139 Computers are also within a few feet of one another, in regular use, and rarely, if ever, cleaned.140
TV rooms are closed, but according to some Petitioners, the TVs are on and visible from an area just outside the computer room.141 These people “are all very close to each other in the area just outside the computer room.”142 Because the TV rooms are closed, people use the common area for other purposes, like as a makeshift seating area for playing games.143
Notably, because the lockdown allows for limited opportunities to exercise, people also exercise in the common area, leading to more close contact with others.144
137 See, e.g., Hallinan Decl. at 3 (“There is no social distancing in the phone lines . . . . People mill around, close to each other, outside the computer room while they wait to get on the computer.”); McRae Decl. at 2 (“There is no social distancing in the phone lines.”); Hill Decl. at 3 (“There is no social distancing in the phone lines.”).
138 See, e.g., Kinard Decl. at 1 (“The phones are cleaned once in the morning by an orderly, but I am not aware of them being cleaned at any other point by BOP staff.”); Hill Decl. at 3; McRae Decl. at 2.
139 See, e.g., Titus Decl,. at 2; Hill Decl. at 3. 140 See, e.g., Hallinan Decl. at 3 (“There are five computers in a computer room . . . Four of them are on
one side of the room, with one to two feet between them . . . . The[ ] computers are pretty much always in use . . . . I haven’t seen the computers get cleaned or disinfected.”); Hill Decl. at 3; McRae Decl. at 2. 141 See e.g., Dailey Decl. at 4 (“There are also chairs in the area outside the computer room where people sit so that they can watch the television in the TV room. The TV room itself is closed, so this is where people sit if they want to watch it.”). 142 Id. 143 See, e.g., Krokos Decl. at 3. 144 Id.
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People housed in Butner Low share a small number of toilets, showers, and sinks across the entire housing unit.145 The fixtures are all within three feet of each other, meaning, people “are in very close contact in the bathrooms.”146 There is little fresh air in the housing units.147 Windows are not opened, and “the only chance [one Butner Low resident] had for a breath of fresh air was if a [staff member] would distribute meals at the open entry door of the unit.”148 Some Petitioners report being given cloth masks.149 Some do not fit.150 Some are made of thin, translucent material.151 People housed at Butner Low are responsible for cleaning their own masks,152 but at points during the lockdown, laundry access has been limited.153 If masks are damaged or lost, there is no means to repair or replace them.154 Petitioners are not given gloves.155
145 See, e.g., Krokos Decl.at 4 (162 people in the unit share 16 toilets, 12–14 showers, and 10 sinks); Hallinan Decl. at 2 (“All 140 or 150 people in the housing unit share about 16 toilets, 12 showers, and 10 sinks.”); Hill Decl. at 2–3 ; McRae Decl. at 2.
146 See, e.g., Hallinan Decl. at 2; Hill Decl. at 2–3; McRae Decl. at 2. 147 See, e.g., Krokos Decl. at 3. 148 Id. 149 See, e.g., Dailey Decl. at 4 (“We were given cloth masks.”); Hill Decl. at 3; Kinard Decl. at 2 (“Everyone
in my unit was given 2 fabric masks that we were told were made at UNICOR.”); McRae Decl. at 3. 150 See, e.g., Dailey Decl. at 4. 151 See, e.g., Krokos Decl. at 5. 152 See, e.g., Dailey Decl. at 4. 153 See, e.g., Krokos Decl. at 4. 154 See, e.g., Titus Decl. at 3. 155 Id.
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Critically, BOP’s enforcement of the requirement to wear masks is also inconsistent.156 Not all staff wear their masks.157 Some incarcerated people also do not wear their masks. As explained by Petitioner Kinard, “[W]hether to wear a mask seems to be up to the discretion of the individual.”158 Many people have frequent contact with people from other housing units.159 For example, Butner Low has a UNICOR operation where many people from different housing units work.160 Petitioner Hallinan reports that at least two dozen people in his housing unit have jobs with UNICOR where they “work with people from other housing units.”161 Petitioners Hill and McRae report the same.162 Similarly, people work in the kitchen with incarcerated people from other housing units.163 Petitioner Dailey reports that one person in his housing unit is an orderly assigned to clean the SHU, where some people who have COVID-19 are housed.164
156 See Kinard Decl. at 3. 157 See, e.g., Hill Decl. at 4 (“Most staff wear their masks.”) (emphasis added); Dailey Decl. at 4 (“Most
but not all staff wear masks.”); McRae Decl. at 3 (“Most staff wear their masks.”); Krokos Decl. at 5 (estimating that 40 percent of guards wore masks only when higher ranking BOP staff entered the units). 158 Kinard Decl. at 3. 159 See, e.g., Hill Decl. at 4 (describing people in his unit who work with others at UNICOR); Krokos Decl. at 6 (describing guards working in different housing units and people in his unit going to various jobs in different units); McRae Decl. at 3 (describing people in his unit who leave his unit to go to work and come back). 160 See Hallinan Decl. at 5 (“About two dozen people in my housing unit have jobs with UNICOR.”). 161 Id. 162 Hill Decl. at 4; McRae Decl. at 3. 163 See, e.g., Hallinan Decl. at 4; Whyte Decl. at 8. 164 Dailey Decl. at 5.
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According to Declarant Whyte, a man in his housing unit “has a job cleaning personal protective equipment used by sick people in other housing units,” which means that person comes into frequent contact with items used by people with COVID-19.165 Similarly, correctional officers and other staff move between housing units. For example, during count, the officers in one housing unit help the officers in another, and vice versa.166 There is at least one staff member who works in the kitchen and in the SHU, where sick people are held for isolation.167 There is no widespread testing for coronavirus in Butner Low.168 Almost all Petitioners from Butner Low report that they do not know a single person tested in their respective housing units.169 Moreover, temperature checks are sporadic, ineffectual, and inconsistent across units. For example, Petitioner Hallinan states that “[s]hortly after the lockdown started on April 1, medical staff was taking the temperature of [everyone] in the housing unit every day,” but that practice lasted only a week.170 After that, a person had to request a sick call in order to get a temperature check.171 Notably, a sick call costs $2.00.172 On one day during the second week in May, everyone in his unit again had their temperature checked. Petitioner Harris reports that his unit had a single temperature check around May 7 but has not had any
165 Whyte Decl. at 8. 166 See, e.g., Dailey Decl. at 5. 167 See Krokos Decl. at 7. 168 See, e.g., Dailey Decl. at 4 (“There has been no widespread testing for coronavirus in my housing unit.”);
Hill Decl. at 4 (same); McRae Decl. at 3 (“I don’t know of a single person in my housing unit who has been tested for the coronavirus.”). 169 See, e.g., Dailey Decl. at 4; Hill Decl. at 4. 170 Hallinan Decl. at 4. 171 E.g., Hallinan Decl. at 4; Hill Decl. at 4; McRae Decl. at 3. 172 Hallinan Decl. at 4; Hill Decl. at 4; McRae Decl. at 3.
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since.173 Petitioner Titus reports that “men working limited work details were checked sporadically for a fever,” and daily checks for those going to work are not being enforced.174
Making all these issues worse, Butner Low is overcrowded. The facility was designed to hold 992 people, but as of May 22, 2020, BOP reports that 1,201 men are housed there,175 exceeding the facility’s maximum capacity of 992 people by approximately 21 percent.176
All these conditions—overcrowding of already tight quarters; shared use of limited facilities
with frequent close contact; lengthy, daily line-up requirements; inconsistent mask use
amongst staff and incarcerated people; and limited testing and screening—create the
extraordinarily dangerous conditions that sustain the ongoing COVID-19 outbreak at Butner.
As of May 24, 2020, at least 141 people incarcerated at Butner Low and nine staff members have tested positive for coronavirus.177
C. FCI Butner Medium I and Camp FCI Butner Medium I is made up of a medium security federal correctional institution and a
minimum security camp (“Camp”).
Like Butner Low, Medium I also houses men whose health care needs are classified as Care Level 3.178
173 Harris Decl. at 4. Mr. Harris believes that men in another housing unit received daily temperature checks, indicating that any BOP policy on temperature checks is inconsistently applied. See id.
174 Titus Decl. at 3. 175 See Population Statistics: Inmate Population Breakdown,
https://www.bop.gov/mobile/about/population_statistics.jsp. 176 PREA Audit Report, at 1. 177 COVID-19 Cases. BOP reports that 39 incarcerated people and 6 staff members have recovered. Id. 178 See FCC Butner Doctoral Psychology Internship 2019–2020 Brochure, Federal Bureau of Prisons, 11
(July 15, 2018), https://www.bop.gov/jobs/docs/BUX%20Brochure%202019-2020.pdf (“Additionally, Care Level Three inmates (chronically mentally ill persons) who can function adequately on an outpatient basis are housed throughout the complex.”).
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Many of the conditions at the Camp are substantially similar to those at Butner Low.179 For instance, the Camp has dormitory-style housing divided into shared cubicles that do not allow for physical distance from bunkmates.180 However, some units in the Camp are so overcrowded that they have an area known as the “beach,” where people new to the unit are forced to sleep in two rows of three bunk beds less than four feet apart.181 Residents must walk through the “beach” in order to go to the restroom, meaning the men in those bunks are subjected to a constant stream of close-proximity traffic.182 People in each Camp housing unit share a single bathroom with about five stalls, five showers, and five sinks.183 People line up within two feet of each other to use the phones, and they are responsible for cleaning them between uses.184 Petitioner Maldonado reports that several men are housed in the chapel behind his housing unit.185 These men have tested positive for the virus and were sent to the SHU for some time to be isolated before being sent to the chapel.186 Some of the men housed in the chapel use the same bathroom as the men in Petitioner Maldonado’s unit.187 The only safeguards against infection from these men are a “make-shift wall” installed by BOP staff in the bathroom to separate the people in the chapel from the others and an orderly from the same housing unit
179 See generally Huntley Decl.; Maldonado Decl.; Goodwin Decl. 180 See, e.g., Huntley Decl. at 1. 181 Id.; see also Goodwin Decl. at 3 (describing “beach” in Hatteras West unit). 182 See, e.g., Huntley Decl. at 1. 183 See, e.g., id. at 2. 184 See, e.g., id. Unlike in Butner Low, however, it appears that spray disinfectant is sometimes provided
for cleaning the phones in the Camp. See, e.g., id. 185 Maldonado Decl. at 5. 186 Id. 187 Id.
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as Petitioner Maldonado who cleans the bathroom after the men who have tested positive for coronavirus leave.188
People in the housing units at the Camp share three computers—all right next to each other on a shared desk—and the unit’s TVs are in the same room.189 The room is always crowded, making social distancing impossible.190 Meals are handled inconsistently.191 Some staff bring meals directly to cubicles, but others make entire housing units line up at the unit door for meals.192 Like in Butner Low, people lining up for meals are no more than two feet from one another.193 Much like at meal time, people line up three times per day for pill call.194 And, much like at meal time, people in line are no more than two feet apart the entire time.195
People housed in the Camp have been given cloth masks made at UNICOR, but there appears to be no mandatory use policy.196 According to Petitioner Maldonado, BOP staff in the Camp did not start wearing masks until his unit manager was out sick for two weeks.197
In March, the Camp Administrator held a town hall meeting with at least one housing unit,
Hatteras East, during which she told people housed in that unit that they should not worry
188 Id. The orderly does not change his clothes after cleaning the bathroom and before returning to Mr. Maldonado’s unit. See id.
189 See, e.g., Huntley Decl. at 2. 190 See, e.g., id. 191 See, e.g., id. 192 See, e.g., id. 193 See, e.g., id. 194 See, e.g., id. 195 See, e.g., id. 196 See, e.g., id. at 3. 197 Maldonado Decl. at 7. Mr. Maldonado reports that several BOP staff members, including those who
hand out meals, have been out sick. Id.
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about the virus or masks. 198 The Assistant Warden told men in that unit that wearing a mask would result in a disciplinary write-up commonly referred to as a “shot.”199 Some people housed at the Camp continue to go to work at the UNICOR operation at Medium I or elsewhere, alongside people from other housing units.200 Staff also move freely between units.201 Upon information and belief, when people housed in the Camp report symptoms to BOP staff, they are ignored, and people with COVID-19 symptoms but no fever receive no medical treatment. For example, Roger Goodwin, who suffers from a rare autoimmune disease, passed out in his unit and was taken to medical only to be told that he should drink more water before being returned to his unit in the Camp. It was only after he passed out in his unit for a second time the following day that medical staff tested Declarant Goodwin and discovered that he was COVID-19 positive.202 Given the conditions at the Camp and inconsistent adherence to whatever policies BOP purports to have put in place to address COVID-19, it is unsurprising that the disease spread rapidly through the Camp.203 As one person housed in the Camp explained:
198 Id. 199 See, e.g., Declaration of Roger Duane Goodwin (“Goodwin Decl.”) (attached as Ex. 3) at 2. 200 See, e.g., Huntley Decl. at 3. 201 See, e.g., id. 202 Goodwin Decl. at 4–5. 203 See, e.g., Huntley Decl. at 3–4 (describing rapid spread in Catawba West housing unit).
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“I first heard of someone in my unit becoming sick and having to be removed in early April, after which it felt like a chain reaction within the camp. . . . [S]uddenly it seemed as if everyone in my unit was ill. . . . At night, I would hear coughing all throughout the unit. . . . My entire unit was tested for coronavirus on or around April 23, 2020. We were not isolated or separated from one another in any way while we waited for results. On or around April 30, 2020, Dr. Beyer gathered our unit together and told us that the entire unit had tested positive for coronavirus. She also told us that as many as 80% of the entire camp population tested positive for coronavirus, and that a large number of people testing positive for the virus had only mild or no symptoms.204
And, like Butner Low, FCI Medium I also has a UNICOR operation where people from
within the facility work.205
BOP reports that 867 men are housed in FCI Butner Medium I.206
As of May 24, at least 259 people incarcerated at FCI Butner Medium I and 26 staff members
have tested positive for coronavirus.207 Eight people incarcerated in Medium I have died so
far from the disease.208
D. FCI Butner Medium II
Medium II is another medium security federal correctional institution.
Like the other facilities at Butner, many people in Medium II are at high risk of serious illness
or death from COVID-19.209
204 Id. 205 PREA Audit Report, at 2. 206 See Population Statistics: Inmate Population Breakdown,
https://www.bop.gov/mobile/about/population_statistics.jsp. 207 COVID-19 Cases. On May 24, BOP reported that, in Medium I, 178 incarcerated people and 22 staff
members had recovered, and 8 incarcerated people had died. Id. There is reason to be cautious of BOP’s reporting. For instance, on May 24, BOP reported a total of 45 incarcerated people were infected and 178 incarcerated people had recovered (a total of 223 people infected at some point), but on May 11, BOP reported that 207 incarcerated people were infected and 52 had recovered (a total of 259 people infected at some point). It is not clear why BOP now reports fewer total infections. 208 Id. 209 See, e.g., Ayers Decl. at 5 (“There are quite a few people on my unit that are elderly or have serious medical conditions.”); Riddick Decl. at 4 (“At least half of the people in my housing unit are elderly
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People incarcerated in Medium II are housed in celled units of about 120 people, with one to
four people per cell.210 Cells range from 8’ x 6’ to 8’ x 8’, depending on the number of people
housed in them.211 People housed in these cells sleep on bunk beds, and in four-person cells,
the beds are about two feet apart in an L shape.212
Medium II is also home to a SHU where some people with COVID-19 symptoms have been
placed.213 The SHU is not a medical isolation unit;214 it is typically used for administrative
detention (such as inmate transfers) or disciplinary segregation.215
Medium II has a UNICOR operation at which numerous people housed in Medium II work.216
Many people in general population in Medium II have jobs with either UNICOR or a private
contractor.217 And, like those men who work in the other UNICOR operations, they work
side-by-side with men from other housing units.218
Staff move between housing units.219 They also move into the community. One staff
member informed Petitioner Riddick that he had recently been responsible for watching three
incarcerated people with COVID-19 in their rooms at Duke University hospital.220
and/or have serious medical conditions. . . . I believe all 12 units at FCI Butner Medium II also house people who are elderly and/or have serious medical or mental health conditions.”); Beyrer Decl. at 31. 210 See, e.g., Ayers Decl. at 2; Riddick Decl. at 2. 211 See, e.g., Ayers Decl. at 2; Riddick Decl. at 2. 212 See, e.g., Riddick Decl. at 2–3. 213 See Ayers Decl. at 5; Riddick Decl. at 5. 214 Riddick Decl. at 5; Beyrer Decl. at 22–23. 215 Low Security Correctional Institution Butner, North Carolina, Inmate Handbook, Federal Bureau of Prisons, 60 (Jan. 22, 2009), https://www.bop.gov/locations/institutions/buf/BUF_aohandbook.pdf. 216 PREA Audit Report, at 2. 217 Ayers Decl. at 6. Those who work under private contract, including Mr. Ayers, are not currently going to work, but those who work at UNICOR are still working. See id. 218 See id. 219 Id. at 6. 220 Riddick Decl. at 6.
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Medium II is overcrowded. BOP reports that 1,461 men are housed there,221 exceeding the facility’s maximum capacity of 1,152 people by approximately 27 percent.222 Each cell has a shared toilet and sink, and people in each 120-person housing unit share about 12 showers spaced about three feet apart.223 As in other facilities, there are communal phones spaced a few feet apart; people stand in close proximity to each other in long lines waiting for the phones.224 There is no physical distancing in these lines.225 Incarcerated people can use rags or socks to wipe the phones between uses, but they do not have supplies readily available to disinfect the phones.226 The situation in the computer rooms is similar to that in other facilities: a common room where people work shoulder to shoulder at computers that are constantly in use and groups of people waiting in close proximity for their turn to use the computers.227 People housed in Medium II have been provided cloth masks that are very thin and illfitting.228 And, as in other facilities, they report that not all staff wear masks.229 As in Butner Low, Petitioners report no widespread testing for the virus.230
221 See Population Statistics: Inmate Population Breakdown, https://www.bop.gov/mobile/about/population_statistics.jsp.
222 See PREA Audit Report, at 1. 223 See, e.g., Ayers Decl. at 3; Riddick Decl. at 3. 224 See, e.g., Ayers Decl. at 4; Riddick Decl. at 4. 225 See, e.g., Ayers Decl. at 4; Riddick Decl. at 4. 226 See, e.g., Ayers Decl. at 4; Riddick Decl. at 4. 227 Ayers Decl. at 5; see also Riddick Decl. at 4. 228 See, e.g., Ayers Decl. at 5; Riddick Decl. at 4. 229 See, e.g., Ayers Decl. at 5; Riddick Decl. at 4 (“Most staff wear their masks.”) (emphasis added). 230 See, e.g., Ayers Decl. at 5.
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And, if a person in the unit is sick, they must request a $2.00 sick call to get a temperature check.231 Those with high enough temperatures are taken to the SHU.232 V. BOP’s Prevention and Mitigation Measures Are Inadequate to Address the Risk of Harm to Petitioners
A. BOP Is Aware of the Risks to Petitioners Respondents have a “profound obligation to protect the health and safety of all [incarcerated people].”233 Despite this obligation, BOP as a whole—and Butner in particular—have failed for nearly two months to adequately protect the incarcerated people under their charge. Based on confirmed cases, COVID-19 has entered approximately 72 of the 193 facilities run by BOP, including at least three out of the four facilities at Butner (FMC Butner, Medium I, and Butner Low).234 As of May 24, 2020, BOP houses 136,956 people and has a staff of approximately 36,000, for a total on-site population of approximately 173,000.235 As of the same date, at least 4,761 incarcerated people and 589 BOP staff had tested positive for coronavirus, for a total of 5,350 known positive individuals—an increase of 3,723 known positive cases since April 27, 2020.236
231 See, e.g., Riddick Decl. at 5; Ayers Decl. at 5. 232 See, e.g., Riddick Decl. at 5; Ayers Decl. at 5. 233 Attorney General William Barr, Memorandum for Director of Bureau Prisons, Office of the Attorney
General, (Apr. 3, 2020), https://www.justice.gov/file/1266661/download (“Barr April 3 Memo”) (attached as Ex. 22), at 1. 234 COVID-19 Cases. 235 Id. 236 Id. The significant week-to-week jump in positive cases may be a result of increased testing within BOP, but the point remains.
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Based on these numbers, the BOP infection rate as a percent of the total on-site population is
approximately 3.1 percent. That rate is more than six times the current infection rate in the rest of the United States.237 So far, 59 people held in BOP facilities have died from COVID-19.238 Eight of those people died while incarcerated at Butner.239
In a March 26, 2020 memorandum to Respondent Carvajal regarding the COVID-19 “crisis”
(the “March 26 Memo”), Attorney General William Barr identified home confinement as
“[o]ne of BOP’s tools to manage the prison population and keep [incarcerated people] safe” from COVID-19.240
The Attorney General directed Respondent Carvajal “to prioritize the use of [the BOP’s]
various statutory authorities to grant home confinement for [incarcerated people] seeking
transfer in connection with the ongoing COVID-19 pandemic,” because “for some eligible [people], home confinement might be more effective in protecting their health.”241
Attorney General Barr further identified “[t]he age and vulnerability of the [incarcerated
person] to COVID-19, in accordance with the Centers for Disease Control and Prevention (CDC) guidelines,” as one of the critical, discretionary factors for consideration.242
237 As of May 22, 2020, the total U.S. population was approximately 329,684,572. U.S. and World Population Clock, United States Census Bureau, https://www.census.gov/popclock/ (last visited May 22, 2020, 2:51 p.m.). As of May 22, 2020, there were approximately 1,588,322 confirmed COVID-19 infections in the United States. COVID-19 Dashboard by the Centers for Systems Science and Engineering (CSSE) at Johns Hopkins University (JHU), Johns Hopkins University: Coronavirus Resource Center, https://coronavirus.jhu.edu/map.html (last visited May 22, 2020, 2:52 p.m.). Total infections divided by total population yields approximately 0.0048 or approximately 0.48 percent.
238 COVID-19 Cases. 239 Id. 240 Barr March 26 Memo at 2. 241 Id. 242 Id.
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Eight days later, following dramatic increases in confirmed COVID-19 cases at BOP
facilities, Attorney General Barr issued a second memorandum underscoring the BOP’s
“profound obligation to protect the health and safety of all [incarcerated people]” and found that “emergency conditions are materially affecting the functioning” of the BOP.243
The Attorney General recognized that BOP efforts to prevent the spread of COVID-19 within BOP “have not been perfectly successful.”244 He ordered Respondent Carvajal to take more
aggressive steps—immediately—to transfer incarcerated people to home confinement where
possible, even if electronic monitoring will be not be available, explaining that “time is of the essence.”245
Additionally, in an acknowledgment of the risk posed by COVID-19, BOP issued a COVID19 Action Plan and implemented modified operations.246 The Action Plan requires
quarantine for all new admissions, all close contacts of confirmed or suspected cases, and all incarcerated people set for release.247
Finally, as noted above, on April 1, Respondents issued an order to lock down Butner because of COVID-19.248 This, too, is an acknowledgment of the risk posed by the virus.
Despite knowing full well the urgency of the situation and the need to reduce prison
populations, BOP is not releasing enough incarcerated people to have a meaningful impact
243 See Barr April 3 Memo at 1. 244 Id. at 2. 245 Id. 246 BOP Implementing Modified Operations, Federal Bureau of Prisons,
https://www.bop.gov/coronavirus/covid19_status.jsp (last visited May 22, 2020). 247 See Memorandum for All Chief Executive Officers: Coronavirus (COVID-19) Phase Six Action Plan,
Federal Bureau of Prisons (Apr. 13, 2020), https://prisonology.com/wpcontent/uploads/2020/04/COVID-19-Phase-6-Plan-2020-04-13.pdf (“Phase Six Action Plan”) (attached as Ex. 23). 248 See, e.g., Hallinan Decl. at 4.
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on both those most in need of release and those whose safety while in continued custody in a BOP facility depends on the ability to practice physical distancing.
B. Respondents Have Failed to Meaningfully Respond to the Grave Risk Facing Incarcerated People at Butner
Respondents know the risk to incarcerated people at Butner but have not taken well-known and essential measures to address the risk. Instead, Respondents have taken only minimal measures. The failure to adequately respond to the deadly virus ravaging Butner constitutes deliberate indifference to Petitioners’ health and safety in violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); see also Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016).
1. Respondents have failed to use the tools available to them to reduce the population at Butner
Because of the severity of the threat posed by COVID-19, and its proven ability to rapidly spread through a correctional setting, public health experts recommend the rapid release from custody of people most vulnerable to COVID-19.249 Release protects the people with the greatest vulnerability to COVID-19 from transmission of the virus, and also allows for greater risk mitigation for people held or working in a prison and the broader community.250 Release of the most vulnerable people from custody also reduces the burden on the region’s health care infrastructure by reducing the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time.251
249 See, e.g., Josiah Rich, Scott Allen, and Mavis Nimoh, We Must Release Prisoners to Lessen the Spread of Coronavirus, Washington Post (March 17, 2020), https://wapo.st/2JDVq7Y; Beyrer Decl. at 32–33.
250 Goldenson Decl. at 7–8; Beyrer Decl. at 32–33. 251 Goldenson Decl. at 7; see also Beyrer Decl. at 17, 32–33.
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Internationally, governments and jail staff have recognized the threat posed by COVID-19
and released large numbers of detained persons. For example, France released approximately
one-seventh of its total prison population.252 In Iran, more than 85,000 people were released
from jails to curb the spread of coronavirus.253
Domestically, jail administrators in Washington County, Oregon;254 Cuyahoga County,
Ohio;255 Los Angeles, California;256 San Francisco, California;257 Jefferson County,
Colorado;258 and the State of New Jersey,259 among others, have concluded that widespread
jail release is a necessary and appropriate public health intervention.
On March 26, Attorney General Barr instructed Respondent Carvajal to prioritize transferring
people from BOP facilities to home confinement because of the risk from COVID-19.260 On
March 27, President Trump signed the Coronavirus Aid, Relief, and Economic Security
(“CARES”) Act, giving the Attorney General expanded power to immediately release
252 Benjamin Dodman, As France Releases Thousands, Can Covid-19 End Chronic Prison Overcrowding?, FRANCE24.COM (April 27, 2020), https://www.france24.com/en/20200427-as-france-releasesthousands-can-covid-19-end-chronic-prison-overcrowding.
253 Morning Edition, Iran Releases 85,000 Prisoners But Not Siamak Namazi, NPR (March 18, 2020), https://www.npr.org/2020/03/18/817606513/iran-releases-85-000-political-prisoners-but-not-siamaknamazi.
254 KATU, Washington Co. Jail Releases Inmates to Meet Social Distancing Guidelines, KCBY (April 28, 2020), https://kcby.com/news/local/washington-co-jail-releases-inmates-to-meet-social-distancingguidelines.
255 Scott Noll, Cuyahoga County Jail Releases Hundreds of Low-Level Offenders to Prepare for Coronavirus Pandemic, (March 20, 2020 6:04 p.m.), https://cutt.ly/CtRSHkZ.
256 Alene Tchekmedyian, More L.A. County Jail Inmates Released Over Fears of Coronavirus Outbreak, L.A. Times, (March 19, 2020 6:55 p.m.), https://cutt.ly/ltRSCs6.
257 Megan Cassidy, Alameda County Releases 250 Jail Inmates Amid Coronavirus Concerns, SF to Release 26, San Francisco Chronicle (March 20, 2020), https://cutt.ly/0tRSVmG.
258 Jenna Carroll, Inmates Being Released Early from JeffCo Detention Facility Amid Coronavirus Concerns, KDVR Colorado (March 19, 2020 2:29 pm.), https://cutt.ly/UtRS8LE.
259 Erin Vogt, Here’s NJ’s Plan for Releasing Up to 1,000 Inmates as COVID-19 Spreads (March 23, 2020), https://cutt.ly/QtRS53w.
260 See Barr March 26 Memo.
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prisoners on account of COVID-19. On April 3, Attorney General Barr instructed Respondent Carvajal to take aggressive steps—immediately—to transfer people in BOP custody to home confinement where possible, explaining that “time is of the essence.”261 Nevertheless, since March 26 (the date of Attorney General Barr’s first memo), BOP has placed only two percent of the approximately 153,000 people then in BOP custody into home confinement (3,179 incarcerated people nationwide, which is a nationwide average of approximately 61 total per day across all BOP facilities; in other words, an average of only one person per BOP facility every other day).262 Many people at Butner should have been transferred to home confinement pursuant to these instructions from Attorney General Barr. As discussed above, Butner houses a large number of people who are very medically vulnerable. Further, nearly 1,500 people in the facility, including many of the medically vulnerable population, are considered either minimum or low security prisoners. However, Respondents have transferred very few of the people incarcerated at Butner to home confinement due to their vulnerability to COVID-19.263

261 See Barr April 3 Memo at 2.

262 Director M.D. Carvajal Addresses All Staff: COVID-19 Video Update Number 5: April 22, 2020,

Federal

Bureau

of

Prisons

(April

22,

2020),

https://www.bop.gov/resources/news/20200422_dir_message.jsp; COVID-19 Cases. BOP has not

disclosed the number of incarcerated people it typically released per day prior to Attorney General

Barr’s memos, nor has it disclosed how many new incarcerated people have entered BOP custody during

the same time period, so there is some uncertainty as to whether any BOP efforts since the March 26

memo have had any real impact on the size of the population at BOP.

263 See, e.g., Ayers Decl. at 4; Hallinan Decl. at 5; Hill Decl. at 5; McRae Decl. at 4; Riddick Decl. at 6;

Titus Decl. at 5; Beyrer Decl. at 32. In fact, while Attorney General Barr directed BOP to release more

vulnerable incarcerated people, BOP paradoxically heightened the standard for eligibility, decreasing

the number of people eligible for home confinement. Ian MacDougall, Bill Barr Promised to Release

Prisoners Threatened by Coronavirus—Even as the Feds Secretly Made It Harder for Them to Get Out,

ProPublica (May 26, 2020), https://www.propublica.org/article/bill-barr-promised-to-release-prisoners-

threatened-by-coronavirus-even-as-the-feds-secretly-made-it-harder-for-them-to-get-out.

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Respondents could also support the people in their custody in their efforts to obtain
compassionate release. They have chosen not to. For example, Declarant Huntley filed a
motion for compassionate release based on, among other things, hypertension that made him
especially vulnerable to COVID-19.264 Respondents opposed Declarant Huntley’s motion.265
The court granted the motion on May 7.266 Similarly, Respondents opposed Declarant
Krokos’s motion for compassionate release over the course of nine months, before a court
granted the motion and he was released on May 12.267 On May 19, another court ordered the
release of a person whose motion for compassionate release Respondents had opposed.268
In spite of the spread of COVID-19 at Butner, infecting hundreds and killing eight men
already, Respondents have chosen not to use the tools available to them to move the most
vulnerable people out of Butner. This failure to release people is deliberate indifference
because the incarcerated people must expose themselves to a deadly infectious disease that
constitutes a certain risk to health, particularly for the Medically-Vulnerable Subclass as
defined herein.
264 Huntley Decl. at 4. 265 Id. 266 Id. 267 Krokos Decl. at 1, 7. 268 Opinion and Order Granting Defendant Wesam El-Hanafi’s Motion for Compassionate Release, United
States v. El-Hanafi, No. 1:10-cr-00162-KMW (S.D.N.Y. May 19, 2020), ECF No. 252 (attached as Ex. 33); see also Ayers Decl. at 1–2, 4 (noting BOP opposition to request for compassionate release of 37year-old pernicious anemic with atrophic gastritis); Goodwin Decl. at 1–3 (noting BOP opposition to request for compassionate release of 61-year-old with immunodeficiency disorder, diabetes, hypertension and heart disease); Harrington Decl. at 1, 4 (noting government opposition to motion for sentence reduction of terminal cancer patient with roughly 13-month life expectancy); Hill Decl. at 1– 2, 4–5 (noting opposition to request for compassionate because he is a Washington D.C. Code Offender and delay in responding to second request); Maldonado Decl. at 1, 3–4, 7–8 (noting BOP opposition of request for compassionate release of 51-year-old kidney transplant recipient with hypertension and tachycardia experiencing symptoms of kidney failure).
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Moreover, Respondents have opposed the incarcerated people’s efforts to avail themselves of the possibility of release from the facility. Releasing people from Butner is essential to control the spread of this deadly virus, but Respondents have chosen not to release people.
2. Respondents have not created conditions to allow for social distancing at Butner
To prevent the spread of the virus, the CDC recommends that people should maintain a distance of at least 6 feet between themselves and other people. CDC recommends rearranging bunks in prisons so that people have more space between them when they sleep.269 In Butner, because Respondents have failed to release people or transfer them to home confinement, no such rearrangement has occurred. People sleep within a few feet of multiple other people.270 Nearly every cubicle and cell is full.271 Further, the crowding in dormitories results in people being forced to wait in close-packed lines multiple times a day while meals and medicines are distributed.272 Respondents have chosen not to reduce the population to a level where meal and medication distribution can be accomplished in a manner that does not require scores of men to line up close to each other multiple times a day. Respondents have also chosen to distribute meals and medications by making the men line up, rather than staggering meals, or delivering meals and medications to the men in their living spaces. Similarly, Respondents have not taken steps to ensure social distancing with regard to the use of phones and computers.273 The people incarcerated at Butner are in close proximity to
269 Interim Guidance at 11–12 (emphasis added). 270 See, e.g., Ayers Decl. at 2; Hallinan Decl. at 2; McRae Decl. at 2; Hill Decl. at 2; Dailey Decl. at 3. 271 See, e.g., Dailey Decl. at 3; Hallinan Decl. at 2. 272 See, e.g., Krokos Decl. at 5; Hallinan Decl. at 3; Hill Decl. at 3. Dailey Decl. at 3; McCrae Decl. at 2. 273 See, e.g., Hallinan Decl. at 3; Dailey Decl. at 3; Hill Decl. at 3; Riddick Decl. at 4.
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each other when they use the phones and computers. Because there are so many people at Butner, the phones and computers are in constant use during the hours people are allowed to use them. Further, people wait for the phones and computers in areas that do not provide for social distancing. Respondents have failed to take any measures to enable people to use the equipment without being in close proximity to other people.
3. Respondents have chosen not to find out who in Butner has COVID-19, a crucial step for addressing the risk from the virus.
Despite the deaths of at least eight men from COVID-19 at Butner, Respondents have not conducted widespread testing. As of May 8, 2020, just 459 coronavirus tests had been administered to incarcerated people at the Butner complex, out of a total of approximately 4,550 people. Of these 459 tests, approximately 318 tested positive and 141 tested negative.274 Respondents do not test Butner’s staff.275 Instead, they rely on “self-reporting and temperature checks.”276 As of May 22, BOP reported that 44 staff members at Butner had reported to BOP that they had tested positive.277
274 Gov’t Opp. to Mtn. Compassionate Release, El-Hanafi S7 10-cr-162 (KMW) at 16. As noted above, there is some reason to be skeptical of BOP’s reported statistics. For instance, as of May 12, 2020, BOP’s data showed 358 people (including staff) at FCC Butner had tested positive at some point, including those who had tested positive and recovered. However, as of May 17, 2020, BOP’s reported data showed only 341 people having tested positive at some point at FCC Butner—17 people fewer than five days earlier. While there may be legitimate reasons for the disparity, it appears that BOP data on COVID-19 infections in its facilities do not present the full picture.
275 Gov’t Opp. to Mtn. Compassionate Release, El-Hanafi S7 10-cr-162 (KMW) at 16. 276 See BOP Implementing Modified Operations, Federal Bureau of Prisons
https://www.bop.gov/coronavirus/covid19_status.jsp (last visited May 22, 2020). 277 COVID-19 Cases.
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Even when they do conduct tests, Respondents fail to conduct them in a manner designed to help limit the spread of the virus.278 On information and belief, Respondents tested one entire housing unit of FCI Butner Medium I around April 18, and eventually moved those people who tested positive to a different unit, Catawba East. However, Respondents did not move some people who tested positive out of the unit until about five days after it learned they had tested positive.279 Thus, with full knowledge of the danger, Respondents kept known COVID-positive people in close quarters with uninfected people for five days. In all that time, the people who tested positive were not quarantined or isolated, and they shared the same common bathrooms and other resources with those who had tested negative.280 Instead of proactively testing for the virus, Respondents sporadically conduct temperature checks.281 Between the days that temperature checks are taken, an incarcerated person who is symptomatic has to request sick call even to get his temperature taken.282 And Respondents have not waived the requirement of paying for sick call.283 Respondents have chosen to remain willfully ignorant as to who at Butner has COVID-19 until they are forced to acknowledge that some individual or another has it. In so doing, they limit the numbers of people who are deemed to require quarantine or isolation, leaving an
278 Beyrer Decl. at 19 (“Without widespread testing and tracing of all prisoners and staff, it will be impossible to know how COVID-19 is moving through FCC Butner to help mitigate the continued spread and to properly isolate and care for those that have contracted the virus.”); id. at 18–19.
279 Maldonado Decl. at 7. 280 See id. 281 See, e.g., Dailey Decl. at 4; Hallinan Decl. at 4; Krokos Decl, at 6; Goodwin Decl. at 7; Beyrer Decl. at
18. 282 See, e.g., Dailey Decl. at 4; Krokos Decl, at 5; Hallinan Decl. at 4–5. 283 See, e.g., Dailey Decl. at 4; Krokos Decl, at 5; Hallinan Decl. at 4–5; Hill Decl. at 4; McRae Decl. at 3;
Riddick Decl. at 5.
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untold number of people infected with the virus in the general population where they can infect others.
4. Respondents have failed to establish safe and effective quarantine and isolation practices at Butner
BOP has issued a COVID-19 Action Plan that requires quarantine for all new admissions, all close contacts of confirmed or suspected cases, and all incarcerated people set for release.284 Those with symptoms are required to be placed in single-cell medical isolation until seven days after the onset of symptoms and 72 hours after symptoms have improved.285 Neither of these policies is being followed. 286 According to the Action Plan, quarantine is supposed to last for 14 days, but it automatically resets if the quarantined person or someone quarantined with him becomes symptomatic.287 Respondents reset the quarantine, but take few precautions to prevent people from becoming infected while in quarantine. The quarantine practices at Butner are ineffective and dangerous.288 For example, some people transferring into Butner are quarantined on a floor with cancer patients who are immunocompromised.289 The same people distribute food and medicine to the people in quarantine and to the rest of the people on the floor.290 The use of the cancer treatment floor for quarantine puts the cancer patients at extreme risk.291
284 See Phase Six Action Plan at 3–4. 285 Id. at 3–4. 286 See, e.g., Huntley Decl. at 3–4; Goodwin Decl. at 6–7. 287 Phase Six Action Plan at 4. 288 See Beyrer Decl. at 23; Goldenson Decl. at 7. 289 Ortiz Decl. at 1. 290 Id. 291 Goldenson Decl. at 7.
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The Hatteras East unit of the FCI Butner Medium I was emptied to serve as a quarantine area for about 43 people slated for release.292 But this arrangement meant that the people incarcerated in the housing unit were transferred to other units, which led to significant overcrowding, thereby reducing further the space between people.293 Declarant Goodwin, who was moved out of Hatteras East into the adjacent Camp unit Hatteras West, reported having to sleep in a makeshift sleeping area of bunk beds set up in the unit’s TV room for several days before being moved to a cubicle.294 Butner set up a quarantine area in the chapel in the Camp; however, men in the quarantine unit used the bathroom in the Catawba West unit and were separated from the men not in quarantine only by a “make-shift wall.”295 And an orderly from the Catawba West unit cleans the bathroom after men in the chapel quarantine use it.296 Even amongst those in “quarantine,” physical distancing is impossible. In some units, quarantined people are not kept in individual cells, but in close quarters with dozens of others. Like the rest of Butner, use of masks appears to be optional in the quarantine area. Even in the rare instance when a sick individual is placed in isolation following a positive test, isolation procedures are more akin to punishment than treatment. Declarant Goodwin, who was moved to the SHU after testing positive for coronavirus, reported being confined to a cell with dirty floors and no hot water, without toiletries, necessary medications, or even a cup to drink from for the first few days.297 He was not given
292 Goodwin Decl. at 3. 293 See id. at 3–4. 294 Id. at 4. 295 Maldonado Decl. at 5. 296 Id. 297 Goodwin Decl. at 5–6.
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any specific instructions or treatment for COVID-19.298 Despite feeling better after only a few days of isolation, he was confined in the SHU for 17 days.299 He was not re-tested, and states that he does not know how the officials at Butner determined when he should be released back to his housing unit.300
5. Respondents have failed to prevent people from having contact with people in other housing units, thereby facilitating the spread of the virus from housing unit to housing unit.
Respondents have not eliminated contact between people in different housing units. Staff move between housing units, often not wearing masks. Incarcerated people go to work in their jobs at UNICOR, where they interact with people from other housing units.301 Incarcerated people go to work in their jobs in the kitchen, where they interact with people from other housing units and prepare food for people in all the housing units. On or about May 13, two people working in the kitchen had a fever and were taken from the kitchen to the isolation units.302 Some incarcerated people have jobs requiring them to clean the areas used by people believed to have COVID-19.303 They then return to their own housing units. Respondents’ decision to require staff and incarcerated people to move between housing units or interact with people from other housing units increases the likelihood that the virus will spread from housing unit to housing unit.
298 Id. at 6. 299 Id. at 6–7. 300 Id. at 7. 301 See, e.g., Ayers Decl. at 4; Hill Decl. at 4; Krokos Decl. at 6; McRae Decl. at 3. 302 Hallinan Decl. at 4. 303 See, e.g., Dailey Decl. at 5; Maldonado Decl. at 5; Whyte Decl. at 8.
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6. Respondents have failed to take even the most basic measures to prevent the spread of the virus.
Respondents have not undertaken to adequately clean and disinfect living spaces and common-use equipment, such as bathroom facilities, phones, and computers.304 Bathrooms that are used by more than 100 people are cleaned only once a day. Phones and computers, if they are cleaned, are cleaned once a day. In the meantime, scores of men in a housing unit touch the surfaces in the bathrooms, and on the phones and computers—one after another. Further, Respondents are not enforcing mask use by staff, thereby increasing the likelihood that staff will spread the virus.305
7. Respondents have made it extremely difficult, if not impossible, for incarcerated people at Butner to access any assistance in mitigating the risk from COVID-19.
Respondents have created obstacles preventing people incarcerated at Butner from seeking assistance in mitigating their risk themselves. The Administrative Remedies Process (“ARP”) is unavailable as a mechanism for seeking to address the risks faced by the men at Butner. If the ARP were functioning, it would not be capable of use for the purpose of reducing the risk from COVID-19. COVID-19 has devastated Butner—and the world—over the course of the last two months. A person who contracts the virus usually begins to show symptoms within 14 days, and can seriously deteriorate within just five days of becoming infected. The ability to respond quickly to reduce the risk is necessary for relief to be available. But the ARP is not a quick process. The ARP is a five-step process that begins with presenting the issue informally to staff within 20 days of the date of the occurrence giving rise to the request,
304 See, e.g., Dailey Decl. at 3; Ayers Decl. at 3; Hill Decl. at 3; McRae Decl. at 2–3; Riddick Decl. at 4. 305 Goodwin Decl. at 7; Kinard Decl. at 2; Krokos Decl. at 5.
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though the staff have no deadline to respond.306 If the informal request is unsuccessful, the
prisoner must submit up to four more requests or appeals, a process that can take at least 110
days, assuming BOP does not grant itself up to 60 days’ worth of extensions.307 If a person
incarcerated at Butner had begun the ARP on the day the first case of COVID-19 appeared
at Butner, the process would only be only about half complete today. Eight people have died
in the meantime. The ARP, even if it were functioning, is not capable of use for the pertinent
purpose; it is thus unavailable as a manner of administrative exhaustion. Ross v. Blake, 136
S. Ct. 1850, 1859 (2016).
But the ARP is not functioning. Respondents have informed the people incarcerated at
Butner that the ARP was backlogged and requests were not being processed normally.308
Moreover, there are other obstacles to accessing even this time-consuming and delayed
process. Incarcerated people are supposed to request the packet of forms from their
counselors.309 But individuals housed within Butner have had periods recently without
knowledge of an assigned counselor.310 Additionally, they are often given packets missing
306 28 C.F.R. § 542.13(a)–(b). 307 After the informal request, prisoners must submit a Request for Administrative Remedy to the warden
on a BP-9 form within 20 calendar days from the date of the occurrence giving rise to the request. 28 C.F.R. § 542.14(a). The Warden then has 20 calendar days to respond. 28 C.F.R. § 542.18. When that fails, the prisoner must file an appeal on a BP-10 form with the appropriate BOP Regional Director within 20 calendar days from the date of the Warden’s signed response (or within 20 days after the Warden’s response deadline, if the Warden fails to respond). 28 C.F.R. § 542.15(a). The Regional Director then has 30 calendar days to respond. 28 C.F.R. § 542.18. And when that fails, the prisoner must then file an appeal on a BP-11 form to the BOP’s General Counsel within 30 calendar days from the date of the Regional Director signed the response (or within 30 days after the Regional Director’s response deadline, if the Regional Director fails to respond). Id. The General Counsel has 40 calendar days to respond. 28 C.F.R. § 542.18. In addition, the ARP includes extensions of at least 20 days at the institution, regional, and Central Office levels. Id. 308 See, e.g., Hallinan Decl. at 5; Dailey Decl. at 5; Krokos Decl. at 7; Titus Decl. at 5. 309 Krokos Decl. at 7. 310 See e.g. Kinard Decl. at 3–4.
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the requisite forms if they do manage to obtain a packet. Declarant Krokos explains that an ARP submission must include four copies, but the packets sometimes have only three copies.311 If a person submits the ARP form with just three copies, it is denied on that ground.312 Finally, the ARP process is simply a dead end. Petitioner John Dailey has submitted approximately 60 ARP requests at Butner.313 He has received written responses to just six of them.314 Nonetheless, several of the petitioners have attempted to use the ARP to seek assistance mitigating the risks of COVID-19.315 Another avenue for seeking assistance with mitigating the risk is through the assistance of legal counsel. However, upon information and belief, access to legal calls has been limited and sporadic. Calls from lawyers to schedule calls to communicate with people incarcerated at Butner about the situation there lead to dead ends in the form of lines that are never answered and transfers to voicemail boxes to leave messages that are never returned. Respondents have failed to mitigate the risk to the people in their custody at Butner from COVID-19. At the same time, they have cut off the already limited ability of the people in Butner to seek assistance with mitigating the risk.
8. Respondents are failing to follow the lead set by other courts Respondents are also failing to follow the precedent set by other courts for release. Just this week, in U.S. v. El-Hanafi, the Southern District of New York recognized that “the pace of
311 Krokos Decl. at 7. 312 Id. 313 Dailey Decl. at 5. 314 Id. 315 See, e.g., Ayers Decl. at 4; Hallinan Decl. at 5; Hill Decl. at 4–5.
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infection shows no sign of abating” at Butner. Pointing to housing conditions, the lack of disinfectants, and failure to provide personal protective equipment, the court went so far as to say that it was “difficult to conceive of an environment more conducive to the rapid spread of infection than the type of prison dormitory” at Butner. No. 1:10-cr-00162-KMW, Dkt. 252 (S.D.N.Y. May 19, 2020); see also Miller v. United States, No. CR 16-20222-1, 2020 WL 1814084 (E.D. Mich. Apr. 9, 2020) (compassionate release granted involving prisoner at Butner due to COVID-19 concerns); United States v. Dunlap, 2020 WL 2062311 (M.D.N.C. Apr. 29, 2020) (same); United States v. Krokos, No. 12-cr-00527, Dkt. 1016 (C.D. Cal. May 1, 2020) (same); United States v. Thompson, No. 15 CR 00448, Dkt. 80 (N.D. Ill. Apr. 17, 2020) (same); United States v. Scparta, 2020 WL 1910481 (S.D.N.Y. Apr. 20, 2020) (expressing particular concern about quarantine because “many inmates who are on the cusp of relief to home confinement to protect them from COVID-19, which is spreading rampantly at FCI Butner, are housed together in closed quarters for at least 14 days”). VI. BOP’s Lack of Adequate Prevention and Mitigation Measures at Butner also Poses a Serious Risk to Public Safety Conditions at Butner have an impact on the broader community as well as on those incarcerated. Prison staff interact routinely and frequently with the people incarcerated at Butner. As stated above, at least 44 staff at Butner have at some time reported to BOP that they tested positive for the virus. But because Respondents do not test staff, the real number of infected staff is unknown. Respondents’ failure to implement meaningful precautionary and mitigating efforts put the health and lives of Butner staff at just as grave a risk as the incarcerated people.
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More than 1,400 people work at Butner.316 Some of the employees may themselves be medically vulnerable. And every one of them presumably returns home to the Granville County area after their shift ends. Doubtless many of the Butner employees live with one or more family members or roommates, some of whom may be medically vulnerable. And, unless the Butner employees have managed to completely isolate themselves from contact with any person outside of the prison, they come into contact with other members of their communities.317 Moreover, every single person incarcerated at Butner who has died from COVID-19 did so at a nearby hospital.318 People at Butner will continue to need to go to outside hospitals for care as long as COVID-19 spreads through the prison. VII. Immediate Release of Eligible People Is Necessary to Save Lives Hundreds of people at Butner have already been infected with coronavirus. Eight people have already died. The population is medically vulnerable. The complex is overcrowded, exacerbating the already inherent difficulty in practicing effective physical distancing. BOP’s failures in screening, testing, quarantining, and isolating people—as well its failures in providing regular, adequate access to hygiene and disinfecting products, enabling effective physical distancing, and enforcing mask use policies—will certainly lead to even more
316 See PREA Audit Report (indicating 1,475 staff at FCC Butner). 317 See Beyrer Decl. at 14–17. 318 See, e.g., Press Release, Inmate Death at FCI Butner I, U.S. Dep’t of Justice Federal Bureau of Prisons
(Apr. 13, 2020), https://www.bop.gov/resources/news/pdfs/20200413_3_press_release_butner.pdf (“John Doe, went into respiratory failure at the Federal Correctional Institution (FCI) Butner I . . . . He was evaluated by institutional medical staff and transported to a local hospital for further treatment and evaluation.”).
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infections and deaths. This is especially true of those who are over 50 and/or medically vulnerable.319 The immediate release of medically vulnerable people incarcerated at Butner will undoubtedly save lives.320 It is the sole effective remedy for the ongoing Constitutional violations described herein. Reducing the population at Butner will give other mitigation strategies the greatest chance of success by allowing for more effective physical distancing and by allowing BOP to more closely focus its health and safety resources and planning on those remaining in custody.
CLASS ACTION ALLEGATIONS Petitioners bring this class action, pursuant to Rule 23 of the Federal Rules of Civil Procedure, on behalf of themselves and a class of similarly situated individuals. Petitioners seek to represent a class of all current and future incarcerated persons at Butner (the “Class”) during the outbreak of COVID-19. The class includes a subclass of all current and future persons who are: a. Over the age of 50, or b. Of any age who experience (a) lung disease, including asthma, chronic obstructive
pulmonary disease (e.g., bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure, and coronary artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from
319 Beyrer Decl. at 2–3, 6–7, 28. 320 See, e.g., Beyrer Decl. at 32–33.
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cancer or cancer treatment, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i) inherited metabolic disorders; (j) history of stroke; and/or (k) a developmental disability (the “Medically Vulnerable Subclass”). Petitioners Hallinan, Hill, McRae, Dailey, Ayers, Riddick, Maldonado, Harris, and Butler are also representatives of this Medically Vulnerable Subclass. This action has been brought and may properly be maintained as a class action under federal law. It satisfies the numerosity, commonality, typicality, and adequacy requirements for maintaining a class action under Fed. R. Civ. P. 23(a). Joinder is impracticable because (i) the Class and Medically Vulnerable Subclass are numerous; (ii) the Class and Medically Vulnerable Subclass include future members, and (iii) the Class and Medically Vulnerable Subclass members are incarcerated, limiting their ability to institute individual lawsuits. Based on available information, there are currently approximately 4,438 people in the proposed Class. Everyone in Butner is a proposed class member.321 There are significantly more than 50 people in the proposed Medically Vulnerable Subclass. On the fourth floor of FMC Butner alone, there are more than 200 people who are immunocompromised due to cancer treatment. Common questions of law and fact exist as to all members of the proposed Class, namely whether: a. All are at unreasonable risk of serious harm, including death, from contracting coronavirus due to the conditions in Butner;
321 See Population Statistics: Inmate Population Breakdown.
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b. All are at unreasonable risk of serious harm, including death, from Respondents’ failure to take reasonable and proactive measures to ensure their safety from the disease;
c. All have a right to adequate COVID-19 prevention, testing, and treatment; d. Respondents have been deliberately indifferent to the risk of harm to the Class from
COVID-19; and e. The conditions in Butner expose them to heightened risk of contracting COVID-19. Common questions for all members of the Medically Vulnerable Subclass include whether the conditions in Butner expose them to heightened risk of serious illness, injury, or death, whether Respondents have taken adequate steps to protect them from that risk, and whether Respondents have been deliberately indifferent to the risk of harm to the Subclass from COVID-19. Petitioners’ claims are typical of the Class and the Medically Vulnerable Subclass members’ claims. Respondents have placed Petitioners at significant risk of harm by failing to take appropriate steps to address the risk of contracting, and being rendered seriously ill or injured by, COVID-19 in Butner. Petitioners, like every person in Butner, face heightened risk of contracting the virus if they are not adequately protected by Respondents. Petitioners have the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the class. Petitioners have no interests adverse to the interests of the proposed class. Petitioners retained pro bono counsel with experience and success in the prosecution of civil rights litigation and specifically in the prosecution of prisoners’ civil rights litigation. Counsel for Petitioners know of no conflicts among proposed class members or between counsel and proposed class members.
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Respondents have acted on grounds generally applicable to all proposed class members, and this action seeks declaratory and injunctive relief. Petitioners therefore seek class certification under Rule 23(b)(2).
FIRST CAUSE OF ACTION Unconstitutional Confinement in Violation of
the Eighth Amendment to the U.S. Constitution Petitioners Hallinan, Kinard, Hill, McRae, Dailey, Ayers, Riddick, Maldonado,
Harris, Butler, and Titus versus Respondents Scarantino and Carvajal 28 U.S.C. § 2241 (Habeas Corpus)
Petitioners incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. Petitioners bring this claim on their own behalf and on behalf of the Class. The Eighth Amendment guarantees incarcerated persons who have been sentenced the right to necessary and adequate medical care, and to be free from cruel and unusual punishment. See U.S. Const., amend. VIII. As part of the right, the government cannot subject incarcerated persons to a substantial risk of serious harm to their health and safety. See, e.g., Farmer, 511 U.S. at 828; Estelle, 429 U.S. at 104. Petitioners at Butner are under the custody and control of Respondents and are not able to take steps to protect themselves—such as physical distancing and avoiding high-touch surfaces—and the government has not provided adequate protections from the risk of harm from COVID-19. As COVID-19 continues to rapidly spread at Butner, the incarcerated men have no ability to protect themselves from this disease. Respondents are aware that the Petitioners are confined at Butner and cannot avoid the spread of COVID-19 due to their confinement. Respondents know of and have disregarded excessive risks to Petitioners’ health and safety.
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Respondents have failed to take reasonable steps to mitigate these significant risks, which continuously subject Petitioners to a grave and serious risk of harm from serious illness, permanent injury, and death. Respondents’ failure to take reasonable steps to protect Petitioners from these conditions by releasing them from the conditions altogether constitutes deliberate indifference to the health, safety, and serious medical needs of Petitioners and all members of the Class, thereby establishing a violation of the Eighth Amendment to the United States Constitution.
SECOND CAUSE OF ACTION Unconstitutional Conditions of Confinement in Violation of
the Eighth Amendment to the U.S. Constitution Petitioners Hallinan, Kinard, Hill, McRae, Dailey, Ayers, Riddick,
Maldonado, Harris, Butler, and Titus versus All Respondents 28 U.S.C. § 1331
Petitioners incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. Petitioners bring this claim on their own behalf and on behalf of the Class. The Eighth Amendment guarantees incarcerated persons who have been sentenced the right to necessary and adequate medical care, and to be free from cruel and unusual punishment. See U.S. Const., amend. VIII. As part of the right, the government cannot subject incarcerated persons to a substantial risk of serious harm to their health and safety. See, e.g., Farmer, 511 U.S. at 828; Estelle, 429 U.S. at 104. Petitioners at Butner are under the custody and control of Respondents and are not able to take steps to protect themselves from the spread of the virus. The government has not provided adequate protections. As COVID-19 continues to spread at Butner, the already deplorable conditions at Butner are only exacerbated further.
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Respondents are aware of these conditions, which were and are obvious throughout Butner. Respondents know of and have disregarded an excessive risk to health and safety. Respondents have failed to take reasonable steps, including the release of medically vulnerable persons, to mitigate these significant risks, which continuously subject Petitioners to a grave and serious risk of harm from serious illness, permanent injury, or death. Respondents’ failure to protect Petitioners from these conditions by releasing prisoners and otherwise remedying the conditions of confinement constitutes deliberate indifference to the health, safety, and serious medical needs of Petitioners and all members of the Class, thereby establishing a violation of the Eighth Amendment to the United States Constitution. Federal courts have inherent equitable authority to order injunctive and declaratory relief to remedy violations of the Constitution by federal actors. Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015).
THIRD CAUSE OF ACTION Unconstitutional Conditions of Confinement in Violation of
the Eighth Amendment to the U.S. Constitution Petitioners Hallinan, Kinard, Hill, McRae, Dailey, Ayers, Riddick,
Maldonado, Harris, Butler, and Titus versus All Respondents Petitioners incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. Petitioners bring this claim on their own behalf and on behalf of the Class. The Eighth Amendment guarantees incarcerated persons the right to reasonable safety. Respondents’ failure to provide a safe environment during a widespread outbreak of a contagious disease constitutes deliberate indifference to the health and safety of persons at Butner, thereby establishing a violation of the Eighth Amendment.
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Respondents have failed to provide adequate protections at Butner, where Petitioners are not able to take steps to protect themselves through physical distancing and adequate hygiene, cleaning, and disinfection. As COVID-19 rapidly spreads throughout the facility, the already unsafe conditions at Butner will be intensified, and the risks to the people incarcerated there will grow. Respondents’ failure to protect Petitioners constitutes a violation of their Eighth Amendment rights. Federal courts have inherent equitable authority to order injunctive and declaratory relief to remedy violations of the Constitution by federal actors. Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327 (2015).
REQUEST FOR RELIEF Wherefore, Petitioners and the Class members respectfully request that the Court order the following relief:
A. Certify this action as a class action, for the reasons stated in this Petition and Complaint, and appoint the undersigned as class counsel pursuant to Fed. R. Civ. P. 23(g);
B. Pursuant to 28 U.S.C. §§ 2243, 1331, and 2201–02, immediately: a. Enter a temporary restraining order or preliminary injunction ordering respondents to identify, within one day, all people incarcerated at Butner who fit within the Medically Vulnerable Subclass;
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b. Enter a temporary restraining order or preliminary injunction appointing an expert to determine appropriate categories of release for each within 48 hours of entrance of the order or injunction (the “Expert List”);
c. Enter a temporary restraining order, preliminary injunction, and/or writ of habeas corpus requiring Respondents to release, within twenty-four (24) hours of the creation of the Expert List, and without quarantining at Butner, all persons identified by the court-appointed expert as appropriate for release;
C. Pursuant to 28 U.S.C. §§ 1331 and 2201–02 and the Court’s inherent authority to fashion injunctive relief for constitutional violations, immediately: a. Enter a temporary restraining order or preliminary injunction requiring Respondents to prepare and implement a COVID-19 mitigation plan to be submitted to the Court within 48 hours and overseen by a qualified public health expert pursuant to Fed. R. Evid. 706, which outlines: i. Immediate screening of all people incarcerated at Butner for COVID-19 symptoms. ii. Immediate testing for all people incarcerated at Butner showing any symptoms or known to have been in close proximity with anyone showing any symptoms or having tested positive for coronavirus, including the waiver of any sick call fees. iii. Regular retesting of people incarcerated at Butner who meet the criteria set forth in the preceding paragraph, including the waiver of any sick call fees.
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iv. Immediate implementation of daily screening of BOP staff for COVID-19 symptoms.
v. Immediate, effective quarantine in accordance with community standards of care—including keeping quarantined people individually isolated—for all people incarcerated at Butner known to have been in close contact with anyone showing any symptoms of COVID-19 or known or suspected to have COVID-19.
vi. Immediate medical isolation for all people incarcerated at Butner who show any symptoms—as soon as they develop symptoms of COVID-19—or who have tested positive for COVID-19, in compliance with CDC guidelines for medical isolation, including in a location that allows for timely notification and management of clinical symptoms, should they arise.
vii. Additional specific mitigation efforts, in line with CDC guidelines, to prevent exposure to COVID-19 by every Class Member not immediately released, including: (1) appropriate social distancing and hygiene practices across all units at Butner; (2) limitations on travel between units by Butner staff and Class Members; (3) limitations on the mixing of Class Members from different housing units in their work assignments; (4) mandatory mask usage by all staff at Butner; (5) appropriate medical treatment for incarcerated people exhibiting symptoms of COVID-19; and (6) appropriate medical treatment for incarcerated people not exhibiting symptoms of COVID-19 but who have other medical needs.
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viii. Additional specific efforts to ensure that there is no spread of COVID-19 from outside the quarantine or isolation areas to the quarantine or isolation areas, or vice versa, including: (1) requiring staff and Class Members who enter the quarantine area from the non-quarantine area to wear masks; (2) ensuring proper access to products/materials for proper hygiene; (3) ensuring individuals in the quarantine or isolation area are able to comply with physical distancing guidelines; and (4) frequently disinfecting and cleaning the quarantine or isolation area.
b. Require a change to the policy of “restarting” the clock during the quarantine area every time someone exhibits symptoms of COVID-19 while in quarantine; and
c. Require a housing or support plan for any released Class or Subclass Members for whom testing confirms exposure to or infection with COVID-19 and who do not readily have a place to self-isolate for the CDC-recommended period of time (currently 14 days).
d. Appoint an expert monitor to ensure BOP’s adequate compliance with the above requirements.
D. All further actions required to release Class Members outside the Medically Vulnerable Subclass to ensure that all remaining persons incarcerated at Butner are incarcerated under conditions consistent with CDC guidance to prevent the spread of COVID-19, including requiring that all persons be able to maintain six feet or more of space between them;
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E. If immediate release is not granted on the basis of this Petition alone, expedited review of this Petition, including oral argument, via telephonic or videoconference if necessary;
F. If immediate release is not granted on the basis of this Petition alone, use of enlargement to alter Petitioners’ place of custody to home confinement or other appropriate placement pending the outcome of this habeas action;
G. A declaration that Butner’s policies and practices violate the Eighth Amendment right against cruel and unusual punishment with respect to the Class and Subclass;
H. Award Petitioners costs, expenses, and reasonable attorneys’ fees pursuant to the Equal Access to Justice Act and any other applicable laws; and
I. Any further relief that this Court deems just, necessary, or appropriate.
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Respectfully submitted this 26th day of May, 2020.

/s/ Jeffrey S. Wilkerson Jeffrey S. Wilkerson [N.C. State Bar No. 51209] Gretchen Scavo [N.C. State Bar No. 48589]* Elizabeth Ireland [N.C. State Bar No. 47059]* Patrick Doerr [N.C. State Bar No. 50673]* Ashley R. Anderson [N.C. State Bar No. 51741]† WINSTON & STRAWN LLP 300 South Tryon Street, 16th Floor Charlotte, NC 28202 Tel: (704) 350-7700 Fax: (704) 350-7800 jwilkerson@winston.com gscavo@winston.com eireland@winston.com pdoerr@winston.com aanderson@winston.com

Maria V. Morris† [N.Y. State Bar No. 4091435] AMERICAN CIVIL LIBERTIES UNION 915 15th Street N.W., 7th Floor Washington, DC 20005 Tel.: (202) 548-6607 mmorris@aclu.org
Sarah Hinger† [N.Y. State Bar No. 4823878]† AMERICAN CIVIL LIBERTIES UNION 125 Broad St. New York, NY 10004 Tel.: (212) 519-7882 shinger@aclu.org

Jonathan M. Smith [D.C. Bar No. 396578]† Emily Gunston [D.C. Bar No. 1032056]† Lyndsay A. Niles [D.C. Bar No. 1003427]† WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS & URBAN AFFAIRS 700 14th Street NW, Suite 400 Washington, DC 20005 Tel: (202) 319-1000 Fax: (202) 319-1010 jonathan_smith@washlaw.org emily_gunston@washlaw.org lyndsay_niles@washlaw.org

Emily Seawell [N.C. Bar No. 50207] Jaclyn Maffetore [N.C. Bar No. 50849] Kristi Graunke [N.C. Bar No. 51216] AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION Post Office Box 28004 Raleigh, NC 27611 Tel.: (919) 834-3466 Fax: (866) 511-1344 eseawell@acluofnc.org jmaffetore@acluofnc.org kgraunke@acluofnc.org

* Admission Forthcoming † Special Appearance Forthcoming
Counsel for Petitioners/Plaintiffs

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