United States District Court Eastern District of Pennsylvania (Philadelphia) CIVIL DOCKET FOR CASE #: 2:20-cv-01914-AB

BROWN et al v. PISTRO Assigned to: HONORABLE ANITA B. BRODY Cause: 28:2241 Petition for Writ of Habeas Corpus (federal)

Date Filed: 04/15/2020 Jury Demand: None Nature of Suit: 555 Prisoner Petitions: Prison Condition Jurisdiction: U.S. Government Defendant

Petitioner TIMOTHY BROWN

represented by BENJAMIN D. GEFFEN PUBLIC INTEREST LAW CENTER OF PHILA 2 PENN CENTER 1500 JOHN F KENNEDY BLVD SUITE 802 PHILADELPHIA, PA 19102 267-546-1308 Email: bgeffen@PubIntLaw.org ATTORNEY TO BE NOTICED

DAVID RODKEY DILWORTH PAXSON LLP 1500 MARKET ST SUITE 3500 E PHILADELPHIA, PA 19102 Email: drodkey@dilworthlaw.com ATTORNEY TO BE NOTICED

JAMES P. DAVY All Rise Trial & Appellate P.O. Box 15216 PHILADELPHIA, PA 19125 609-273-5008 Email: jimdavy@allriselaw.org ATTORNEY TO BE NOTICED

MARY M. MCKENZIE PUBLIC INTEREST LAW CENTER 1709 BENJAMIN FRANKLIN PKWY 2ND FL

Petitioner MYLES HANNIGAN TERMINATED: 11/19/2020
Petitioner ANTHONY HALL INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED

PHILADELPHIA, PA 19103 267-546-1319 Email: mmckenzie@pubintlaw.org ATTORNEY TO BE NOTICED
LINDA DALE HOFFA DILWORTH PAXSON LLP 1500 MARKET ST SUITE 3500E PHILADELPHIA, PA 19102 215-575-7288 Email: lhoffa@dilworthlaw.com ATTORNEY TO BE NOTICED
represented by BENJAMIN D. GEFFEN (See above for address) ATTORNEY TO BE NOTICED
DAVID RODKEY (See above for address) ATTORNEY TO BE NOTICED
JAMES P. DAVY (See above for address) ATTORNEY TO BE NOTICED
MARY M. MCKENZIE (See above for address) ATTORNEY TO BE NOTICED
LINDA DALE HOFFA (See above for address) ATTORNEY TO BE NOTICED
represented by BENJAMIN D. GEFFEN (See above for address) ATTORNEY TO BE NOTICED
DAVID RODKEY (See above for address) ATTORNEY TO BE NOTICED
JAMES P. DAVY (See above for address)

V.
Respondent
SEAN MARLER IN HIS CAPACITY AS WARDEN OF THE FEDERAL DETENTION CENTER OF PHILADELPHIA TERMINATED: 11/19/2020

ATTORNEY TO BE NOTICED
MARY M. MCKENZIE (See above for address) ATTORNEY TO BE NOTICED
LINDA DALE HOFFA (See above for address) ATTORNEY TO BE NOTICED
represented by GREGORY B. DAVID U.S. ATTORNEY'S OFFICE 615 CHESTNUT ST STE 1250 PHILADELPHIA, PA 19106 215-861-8521 Email: gregory.david@usdoj.gov ATTORNEY TO BE NOTICED
LANDON Y. JONES U.S. Attorney's Office for the E.D. Pa. 615 Chestnut Street Suite 1250 PHILADELPHIA, PA 19106 215-831-8323 Fax: 215-861-8618 Email: landon.jones@usdoj.gov ATTORNEY TO BE NOTICED
REBECCA SANTORO MELLEY U.S. ATTORNEY'S OFFICE 615 CHESTNUT ST SUITE 1250 PHILADELPHIA, PA 19106 215-816-8200 Fax: 215-861-8618 Email: rebecca.melley@usdoj.gov ATTORNEY TO BE NOTICED
ROBERT A. ZAUZMER UNITED STATES ATTORNEY'S OFFICE 615 CHESTNUT STREET

Respondent KEVIN PISTRO IN HIS CAPACITY AS WARDEN OF THE FEDERAL DETENTION CENTER OF PHILADELPHIA
V. Movant JAMES SPATLEY

SUITE 1250 PHILADELPHIA, PA 19106 215-861-8568 Fax: 215-861-8498 Email: bob.zauzmer@usdoj.gov ATTORNEY TO BE NOTICED
SUSAN R. BECKER U.S. ATTORNEY'S OFFICE 615 CHESTNUT ST. SUITE 1250 PHILADELPHIA, PA 19106 215-861-8310 Email: susan.becker@usdoj.gov ATTORNEY TO BE NOTICED
represented by GREGORY B. DAVID (See above for address) ATTORNEY TO BE NOTICED
LANDON Y. JONES (See above for address) ATTORNEY TO BE NOTICED
REBECCA SANTORO MELLEY (See above for address) ATTORNEY TO BE NOTICED
ROBERT A. ZAUZMER (See above for address) ATTORNEY TO BE NOTICED
SUSAN R. BECKER (See above for address) ATTORNEY TO BE NOTICED
represented by JAMES SPATLEY #76115067 FDC PHILADELPHIA FEDERAL DETENTION CENTER PO BOX 562

PHILADELPHIA, PA 19105 PRO SE

Date Filed 04/15/2020 04/16/2020 04/16/2020 04/17/2020 04/19/2020
04/20/2020 04/20/2020

# Docket Text
1 PETITION for Writ of Habeas Corpus ( Filing fee $ 5 receipt number 0313-14238940.), filed by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (Attachments: # 1 Case Management Track Form, # 2 Designation Form)(HOFFA, LINDA) (Entered: 04/15/2020)
2 NOTICE of Appearance by REBECCA SANTORO MELLEY on behalf of SEAN MARLER with Certificate of Service(MELLEY, REBECCA) (Entered: 04/16/2020)
3 NOTICE of Appearance by LANDON Y. JONES on behalf of SEAN MARLER with Certificate of Service(JONES, LANDON) (Entered: 04/16/2020)
4 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY Telephone Conference held on 4/17/20 Court Reporter: ESR. (jpd, ) (Entered: 04/17/2020)
5 ORDER THAT : 1.ON OR BEFORE APRIL 20, 2020, NO LATER THAN 5:00 PM EST, RESPONDENT MUST FILE A RESPONSE TO PETITIONERS PETITION FOR WRIT OF HABEAS CORPUS 1 . THIS RESPONSE MUST INCLUDE ANY LEGAL OBJECTIONS. 2.ON OR BEFORE APRIL 21, 2020, NO LATER THAN 5:00 PM EST, PETITIONERS MUST FILE A REPLY TO RESPONDENTS RESPONSE. THIS REPLY MUST INCLUDE PROPOSALS FOR POTENTIAL DISCOVERY. . SIGNED BY HONORABLE ANITA B. BRODY ON 4/19/20. 4/19/20 ENTERED AND COPIES E-MAILED.(jwl, ) (Entered: 04/19/2020)
6 NOTICE of Hearing: TELEPHONE CONFERENCE SET FOR 4/20/2020 10:30 AM BEFORE HONORABLE ANITA B. BRODY.(jwl, ) (Entered: 04/20/2020)
7 NOTICE of Hearing: THE TELEPHONE CONFERENCE SCHEDULED FOR 4/20/2020 AT 10:30 AM IS CANCELLED. A TELEPHONE CONFERENCE IS NOW SCHEDULED FOR 4/20/2020 AT 01:00 PM BEFORE HONORABLE ANITA B. BRODY.(jwl, ) (Entered: 04/20/2020)

04/20/2020 04/20/2020 04/20/2020 04/20/2020 04/20/2020
04/20/2020
04/20/2020 04/21/2020 04/21/2020 04/21/2020

8 NOTICE of Appearance by ROBERT A. ZAUZMER on behalf of SEAN MARLER with Certificate of Service(ZAUZMER, ROBERT) (Entered: 04/20/2020)
9 NOTICE of Appearance by JAMES P. DAVY on behalf of TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN with Certificate of Service(DAVY, JAMES) (Entered: 04/20/2020)
10 NOTICE of Appearance by BENJAMIN D. GEFFEN on behalf of TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN with Certificate of Service(GEFFEN, BENJAMIN) (Entered: 04/20/2020)
11 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY Telephone Conference held on 4/20/20. Re: Petition for Habeas Corpus. Court Reporter: ESR. (fdc) (Entered: 04/20/2020)
12 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim filed by SEAN MARLER.Brief, Declarations, Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Brief, # 3 Exhibit A - Memorandum (April 6, 2020), # 4 Exhibit B - Hall, Memorandum & Order, # 5 Declaration of Warden Sean Marler (with exhibits), # 6 Declaration of Dawn Nechupas (with exhibits), # 7 Certificate of Service)(JONES, LANDON) (Entered: 04/20/2020)
13 ORDER THAT ON OR BEFORE APRIL 21, 2020, NO LATER THAN 3:00PM EST, BOTH PARTIES MUST IDENTIFY AN INSPECTOROR INSPECTORSTO GO INTO THE PHILADELPHIA FEDERAL DETENTION CENTER. SIGNED BY HONORABLE ANITA B. BRODY ON 4/20/20. 4/20/20 ENTERED AND COPIES EMAILED.(jwl, ) (Entered: 04/20/2020)
14 Supplement re 12 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim filed by SEAN MARLER. Certificate of Service. (lisad, ) (lisad, ). (Entered: 04/21/2020)
15 Response re 13 Order, --- Letter identifying Inspector pursuant to April 20th Order by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (HOFFA, LINDA) (Entered: 04/21/2020)
16 Response re 13 Order, regarding inspection by SEAN MARLER. (JONES, LANDON) (Entered: 04/21/2020)
17 RESPONSE in Opposition re 12 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim filed by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Text of Proposed Order)(HOFFA, LINDA) (Entered: 04/21/2020)

04/22/2020 04/23/2020
04/24/2020 04/24/2020 04/24/2020 04/27/2020
04/27/2020 04/27/2020 04/27/2020 04/29/2020

18 Response by Petitioners to the April 21st letter filed by Respondent --re 16 Response by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (HOFFA, LINDA) (Entered: 04/22/2020)
19 REPLY to Response to Motion re 12 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim and Response to April 22, 2020 Letter filed by SEAN MARLER. (Attachments: # 1 Exhibit Livas v. Myers (W.D. La.), # 2 Exhibit Wilson v. Williams (N.D. Oh.))(JONES, LANDON) (Entered: 04/23/2020)
20 MEMORANDUM re: Jurisdictional Discovery. SIGNED BY HONORABLE ANITA B. BRODY ON 4/24/20. 4/24/20 ENTERED AND COPIES E-MAILED.(jwl, ) (Entered: 04/24/2020)
21 ORDER re: JURISDICTIONAL DISCOVERY. SIGNED BY HONORABLE ANITA B. BRODY ON 4/24/20. 4/24/20 ENTERED AND COPIES E-MAILED.(jwl, ) (Entered: 04/24/2020)
22 NOTICE of Hearing: TELEPHONE CONFERENCE SET FOR 4/27/2020 AT 03:00 PM BEFORE HONORABLE ANITA B. BRODY.(jwl, ) (Entered: 04/24/2020)
23 ORDER THAT THE COURTS APRIL 21, 2020 ORDER 21 IS AMENDED AS FOLLOWS: THE DEADLINE IS EXTENDED TO APRIL 29, 2020, NO LATER THAN 10:30 AM EST THE TELEPHONE CONFERENCE SCHEDULED FOR 04/27/2020 AT 3:00 PM IS CANCELLED. . SIGNED BY HONORABLE ANITA B. BRODY ON 4/27/20. 4/27/20 ENTERED AND COPIES E-MAILED.(jwl, ) (Entered: 04/27/2020)
24 NOTICE re: Cancellation of Hearing(jwl, ) (Entered: 04/27/2020)
25 Response to Court Order re discovery re 21 Order (Memorandum and/or Opinion) by SEAN MARLER. (JONES, LANDON) (Entered: 04/27/2020)
26 Response re 25 Response to Court Order re discovery re 21 Order by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (HOFFA, LINDA) (Entered: 04/27/2020)
27 Response re 23 Order, Response To Court's Order re: proposed discovery plan by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (HOFFA, LINDA) (Entered: 04/29/2020)

04/29/2020 04/29/2020
04/29/2020 04/29/2020
04/30/2020 04/30/2020 04/30/2020 04/30/2020 05/01/2020 05/01/2020 05/02/2020

28 Response re: Jurisdictional Discovery re 23 Order, 21 Order (Memorandum and/or Opinion) by SEAN MARLER. (JONES, LANDON) (Entered: 04/29/2020)
29 ORDER THAT ON OR BEFORE APRIL 29 2020, NO LATER THAN 3:00 PM EST, PETITIONERS MUST FILE ON THE DOCKET ALL OF THE JURISDICTIONAL DISCOVERY REQUESTS REFERENCED IN THEIR APRIL 29, 2020 PROPOSED DISCOVERY PLAN 27 . SIGNED BY HONORABLE ANITA B. BRODY ON 04/29/20. 04/29/20 ENTERED AND COPIES EMAILED.(jwl, ) (Entered: 04/29/2020)
30 Response re 29 Order, Discovery Requests in Response to Order by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (Attachments: # 1 Request) (HOFFA, LINDA) (Entered: 04/29/2020)
31 Response re 29 Order, 30 Response to Order with Requests for Admission and Declarations by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (Attachments: # 1 Requests for Admission, # 2 Declaration of Tim Brown, # 3 Declaration of Myles Hannigan, # 4 Declaration of Anthony Hall) (HOFFA, LINDA) (Entered: 04/29/2020)
32 NOTICE by SEAN MARLER Letter re: FDC Staff Update (JONES, LANDON) (Entered: 04/30/2020)
33 ORDER re: Government Objections to Discovery Requests. SIGNED BY HONORABLE ANITA B. BRODY ON 4/30/20. 4/30/20 ENTERED AND COPIES E-MAILED.(jwl, ) (Entered: 04/30/2020)
34 NOTICE of Hearing: TELEPHONE CONFERENCE SET FOR 5/6/2020 03:00 PM BEFORE HONORABLE ANITA B. BRODY.(jwl, ) (Entered: 04/30/2020)
35 NOTICE of Appearance by MARY M. MCKENZIE on behalf of TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN (MCKENZIE, MARY) (Entered: 04/30/2020)
36 NOTICE by SEAN MARLER Letter re: FDC Staff Update (JONES, LANDON) (Entered: 05/01/2020)
37 Response re 26 Response attaching inspection report of MDC Brooklyn by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (HOFFA, LINDA) (Entered: 05/01/2020)
38 ORDER IN LIGHT OF RESPONDENTS APRIL 30, 2020 32 AND MAY 1, 2020 36 LETTERS STATING THAT FDC STAFF

05/04/2020 05/05/2020 05/05/2020 05/06/2020 05/11/2020 05/11/2020
05/11/2020 05/11/2020

MEMBERS HAVE TESTED POSITIVE FOR COVID-19, IT IS ORDERED THAT ANY SIMILAR UPDATES MUST BE IMMEDIATELY DOCKETED.. SIGNED BY HONORABLE ANITA B. BRODY ON 5/2/20. 5/2/20 ENTERED AND COPIES EMAILED.(jwl, ) (Entered: 05/02/2020)
39 Response to Court Order re: filing specific objections to discovery re 33 Order (Objections to Interrogatories) by SEAN MARLER. (Attachments: # 1 Objections to Requests for Production) (JONES, LANDON) (Entered: 05/04/2020)
40 Response re 33 Order --- Response to Respondents Objections to Limited Interrogatories and Requests for Production of Documents by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (HOFFA, LINDA) (Entered: 05/05/2020)
41 NOTICE by SEAN MARLER re 38 Order, Letter Update re: FDC Staff and Other Matters (JONES, LANDON) (Entered: 05/05/2020)
42 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY Telephone Conference held on 5/6/20 Court Reporter: ESR. (jl, ) (Entered: 05/06/2020)
43 Response --- Letter by Petitioners requesting intervention of the Court on a discovery matter re 42 Telephone Conference by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (HOFFA, LINDA) (Entered: 05/11/2020)
44 ORDER THAT ON OR BEFORE MAY 12, 2020, NO LATER THAN 10:00 A.M. EST, RESPONDENT MUST SHOW CAUSE WHY SEAN MARLER SHOULD NOT APPEAR FOR A TELEPHONE DEPOSITION ON WEDNESDAY, MAY 13, 2020.. SIGNED BY HONORABLE ANITA B. BRODY ON 5/11/20. 5/11/20 ENTERED AND COPIES E-MAILED.(jwl, ) (Entered: 05/11/2020)
45 Response to Petitioners' Letter of May 11, 2020 re 43 Response by SEAN MARLER. (JONES, LANDON) (Entered: 05/11/2020)
46 ORDER that the Court will hold a telephone conference on Wednesday, May 13, 2020, at 2:00 p.m. EST, to address whether Sean Marler should appear in a telephone deposition on Thursday, May 14, 2020. Phone: 1-571-353-2300 then enter 712575170# ( TELEPHONE CONFERENCE SET FOR 5/13/2020 02:00 PM BEFORE HONORABLE ANITA B. BRODY.). SIGNED BY HONORABLE ANITA B. BRODY ON 5/11/20. 5/11/20 ENTERED AND COPIES E-MAILED.(jwl, ) Modified on 5/11/2020 (jwl, ). (Entered: 05/11/2020)

05/13/2020 05/13/2020 05/14/2020
05/15/2020 05/15/2020 05/15/2020 05/20/2020 05/20/2020
05/22/2020 05/26/2020

47 NOTICE by SEAN MARLER re 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 05/13/2020)

48 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY Telephone Conference held on 5/13/20 Court Reporter: ESR. (jl, ) (Entered: 05/13/2020)

49 ORDER THAT IF RESPONDENT LEARNS THAT ANY INMATE OR STAFF MEMBER HAS TESTED POSITIVE FOR COVID-19, RESPONDENT MUST IMMEDIATELY REPORT THAT FACT TO THE COURT IN A FILING ON THE DOCKET.. SIGNED BY HONORABLE ANITA B. BRODY ON 5/14/20. 5/14/20 ENTERED AND COPIES E-MAILED.(jwl, ) (Entered: 05/14/2020)

50 NOTICE by SEAN MARLER re 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 05/15/2020)

51 ORDER THAT BOTH PARTIES MUST SUBMIT SUPPLEMENTAL BRIEFS, ( Petitioner Brief due by 5/20/2020., Respondant Brief due by 5/26/2020.). SIGNED BY HONORABLE ANITA B. BRODY ON 5/15/20. 5/15/20 ENTERED AND COPIES E-MAILED.(jwl, ) (Entered: 05/15/2020)

52

Audio File 5/13/2020 2:06 P.M., regarding Telephone Conference

held on 5/13/2020, before HONORABLE ANITA B. BRODY (jwl, )

(Entered: 05/15/2020)

53 NOTICE by SEAN MARLER Letter re: FDC Update (JONES, LANDON) (Entered: 05/20/2020)

54 RESPONSE in Opposition re 12 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim --- Supplemental Brief in Opposition to Respondent's Motion to Dismiss the Petition and Class Action Complaint filed by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17)(HOFFA, LINDA) (Entered: 05/20/2020)

55 Transcript of Telephone Conference held on 5/13/20, before Judge ANITA B. BRODY. Court Reporter/Transcriber ESR. (jaa, ) (Entered: 05/22/2020)

56 Supplemental Brief in Support re 12 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim (Supplemental Brief) filed by

05/27/2020
05/27/2020 05/28/2020 05/31/2020
06/02/2020 06/04/2020 06/05/2020 06/08/2020

SEAN MARLER. (Attachments: # 1 Exhibit A (Sean Marler Deposition Transcript), # 2 Exhibit B (Alisha Gallagher Deposition Transcript), # 3 Exhibit C (Kevin Cassano Deposition Transcript), # 4 Exhibit D (Supplemental Declaration of Warden Sean Marler), # 5 Exhibit E (Declaration of Alisha Gallagher with Exhibits), # 6 Exhibit F (Email from L. Hoffa to Federal Criminal Law Committee), # 7 Exhibit G (Email from R. Zauzmer to L. Hoffa), # 8 Exhibit H (Table of Bail Motions), # 9 Exhibit I (Email from Judge DuBois to J. Feinberg), # 10 Exhibit J (CDC Interim Guidance))(JONES, LANDON) Modified on 5/27/2020 (lisad, ). (Entered: 05/26/2020)
57 NOTICE by SEAN MARLER re 12 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim Supplemental Authority re: Wragg v. Ortiz (D.N.J. May 27, 2020) (JONES, LANDON) (Entered: 05/27/2020)
58 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY Telephone Conference held on 5/27/20 (JL ) (Entered: 05/27/2020)
59 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY Telephone Conference held on 5/28/20 (JL ) (Entered: 05/28/2020)
60 Response Letter containing supplemental authority relating to its Response in Opposition re 54 Response in Opposition to Motion,, by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (HOFFA, LINDA) (Entered: 05/31/2020)
61 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 06/02/2020)
62 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 06/04/2020)
63 NOTICE by SEAN MARLER re 12 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim (Letter re: Legal Developments) (JONES, LANDON) (Entered: 06/05/2020)
64 Response Letter to Respondent's letter on Supplemental Authority re 63 Notice (Other) by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (Attachments: # 1 Exhibit 1) (HOFFA, LINDA) (Entered: 06/08/2020)

06/10/2020
06/11/2020 06/11/2020
06/18/2020 06/25/2020 06/26/2020 06/29/2020 07/06/2020
07/06/2020 07/07/2020 07/09/2020 07/10/2020

65 NOTICE by SEAN MARLER re 12 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim (Notice of Supplemental Authority) (Attachments: # 1 Wilson v. Williams (6th Cir.), # 2 Wilson v. Ponce (C.D. Cal.), # 3 Alvarez v. Larose (S.D. Cal.), # 4 Chunn v. Edge (E.D.N.Y.))(JONES, LANDON) (Entered: 06/10/2020)
66 Response Letter to Respondent's June 10th Letter re 65 Notice (Other), by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (HOFFA, LINDA) (Entered: 06/11/2020)
67 NOTICE by SEAN MARLER re 12 MOTION to Dismiss for Lack of Jurisdiction and Failure to State a Claim (Notice of Supplemental Authority) (Attachments: # 1 Hallinan v. Scarantino (E.D.N.C.), # 2 Grinis v. Spaulding (D. Mass))(JONES, LANDON) (Entered: 06/11/2020)
68 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 06/18/2020)
69 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 06/25/2020)
70 Response Letter from Petitioners Requesting Referral to Mediation by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (HOFFA, LINDA) (Entered: 06/26/2020)
71 NOTICE by SEAN MARLER re 70 Response Letter re: Petitioners' Request for Mediation (JONES, LANDON) (Entered: 06/29/2020)
72 Letter to Judge Brody dated 7/6/2020 to Court's Request for follow up letter at July 1st teleconference re 70 Response by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (HOFFA, LINDA) Modified on 7/7/2020 (tjd). (Entered: 07/06/2020)
73 NOTICE by SEAN MARLER Letter re: FDC Update (MELLEY, REBECCA) (Entered: 07/06/2020)
74 NOTICE by SEAN MARLER re 72 Response Letter re: Petitioners' Request for Mediation (JONES, LANDON) (Entered: 07/07/2020)
75 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 07/09/2020)
76 NOTICE THAT THE COURT DECLINES TO REFER THIS CASE TO MEDIATION IN LIGHT OF THE GOVERNMENT'S CONTINUED OPPOSITION TO THE REQUEST. (jwl, ) (Entered: 07/10/2020)

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08/14/2020 08/25/2020 08/26/2020 08/26/2020 08/27/2020 08/27/2020 08/27/2020 08/27/2020 08/28/2020

77 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 08/11/2020)

78 Response Letter regarding the ongoing circumstances at FDC Philadelphia and Renewed Request for Mediation re 77 Notice (Other) by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F) (HOFFA, LINDA) (Entered: 08/12/2020)

79 Response re 78 Response, by Respondent to Petitioners' Letter of August 12, 2020, by SEAN MARLER. (MELLEY, REBECCA) (Entered: 08/14/2020)

80 NOTICE by SEAN MARLER re 49 Order, (JONES, LANDON) (Entered: 08/25/2020)

81 NOTICE of Hearing: TELEPHONE CONFERENCE SET FOR 8/27/2020 AT 03:00 PM BEFORE HONORABLE ANITA B. BRODY.(jwl, ) (Entered: 08/26/2020)

82 NOTICE by SEAN MARLER of supplemental authority (Attachments: # 1 Hope v. Warden York County Prison)(MELLEY, REBECCA) (Entered: 08/26/2020)

83 Response Letter re 82 Notice (Other) Petitioners Response letter regarding supplemental authority by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (HOFFA, LINDA) (Entered: 08/27/2020)

84 NOTICE of Hearing: A TELEPHONE CONFERENCE IS SET FOR 8/28/2020 AT 03:00 PM BEFORE HONORABLE ANITA B. BRODY.(jwl, ) (Entered: 08/27/2020)

85

Audio File 08/27/2020 3:01 PM, regarding TELEPHONE

CONFERENCE held on 08/27/2020, before HONORABLE ANITA B.

BRODY (jwl, ) (Entered: 08/27/2020)

86 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY Telephone Conference held on 8/27/20 Court Reporter: ESR. (JL ) (Entered: 08/27/2020)

87 NOTICE of Hearing: TELEPHONE CONFERENCE SET FOR 9/1/2020 AT 03:00 PM BEFORE HONORABLE ANITA B. BRODY.(jwl, ) (Entered: 08/28/2020)

08/28/2020

88 Minute Entry, re: Telephone Conference for proceedings held before HONORABLE ANITA B. BRODY on 8/28/20. Court Reporter: ESR. (kw, ) (Entered: 08/28/2020)

09/01/2020

89 NOTICE of Hearing:The telephone conference scheduled for September 1 2020 at 3:00 PM is rescheduled for September 11, 2020 at 3:00 PM BEFORE HONORABLE ANITA B. BRODY.(jwl, ) (Entered: 09/01/2020)

09/03/2020

90 Transcript of Proceedings held on 8/27/2020, before Judge ANITA B. BRODY. Court Reporter/Transcriber Veritext National Court Reporting Company.. (sg, ) (Entered: 09/03/2020)

09/09/2020 91 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 09/09/2020)

09/11/2020 92 Response Letter re: Habeas Discovery Requirements by SEAN MARLER. (JONES, LANDON) (Entered: 09/11/2020)

09/11/2020

93 Response Letter by Petitioners re: discovery re 92 Response by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (HOFFA, LINDA) (Entered: 09/11/2020)

09/11/2020

94 NOTICE of Hearing: TELEPHONE CONFERENCE SET FOR 9/15/2020 02:00 PM BEFORE HONORABLE ANITA B. BRODY.(jwl, ) (Entered: 09/11/2020)

09/11/2020

95 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY Telephone Conference held on 9/11/2020 Court Reporter: ESR. (sg, ) (Entered: 09/11/2020)

09/14/2020 96 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 09/14/2020)

09/14/2020 97 NOTICE by SEAN MARLER Letter Regarding Testing (ZAUZMER, ROBERT) (Entered: 09/14/2020)

09/14/2020

98 Response Letter by petitioners re: Covid-19 testing at facility by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (HOFFA, LINDA) (Entered: 09/14/2020)

09/15/2020

99 NOTICE of Hearing: A TELEPHONE CONFERENCE SET FOR 9/21/2020 AT 12:00 PM BEFORE HONORABLE ANITA B. BRODY.(jwl, ) (Entered: 09/15/2020)

09/15/2020

100 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY Telephone Conference held on 9/15/20 Court Reporter: ESR. (JL ) (Entered: 09/15/2020)

09/15/2020

101 ORDER denying 12 MOTION TO DISMISS FOR LACK OF JURISDICTION Petitioners must submit the name and resume of the expert to Respondent on or before Friday, September 18, 2020 at 12:00 pm. The expert must test negative for COVID-19 before the on-site inspection. SIGNED BY HONORABLE ANITA B. BRODY ON 9/15/20.9/15/20 ENTERED AND COPIES E-MAILED.(jwl, ) (Entered: 09/15/2020)

09/16/2020 102 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 09/16/2020)

09/21/2020 103 NOTICE of Hearing: TELEPHONE CONFERENCE SET FOR 9/23/2020 11:00 AM BEFORE HONORABLE ANITA B. BRODY.(jwl, ) (Entered: 09/21/2020)

09/21/2020

104 Minute Entry for proceedings held before HONORABLE ANITA B. BRODYin Courtroom 7-B Telephone Conference held on 9/21/20 Court Reporter: ESR. (amas, ) (Entered: 09/21/2020)

09/23/2020 105 NOTICE of Hearing:A TELEPHONE CONFERENCE IS SET FOR 9/30/2020 AT 12:00 PM BEFORE HONORABLE ANITA B. BRODY.(jwl, ) (Entered: 09/23/2020)

09/23/2020 106 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY Telephone Conference held on 9/23/20 Court Reporter: ESR. (rf, ) (Entered: 09/23/2020)

09/30/2020 107 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY Telephone Conference held on 9/30/20 Court Reporter: C. HAUGER. (JL) (Entered: 09/30/2020)

10/01/2020 108 NOTICE of Appearance by SUSAN R. BECKER on behalf of SEAN MARLER with Certificate of Service(BECKER, SUSAN) (Entered: 10/01/2020)

10/06/2020

109 NOTICE by SEAN MARLER - proposed Joint Inspection Protocol submitted on behalf of all parties (MELLEY, REBECCA) (Entered: 10/06/2020)

10/06/2020 110 ORDER APPROVING 109 JOINT INSPECTION PROTOCOL. SIGNED BY HONORABLE ANITA B. BRODY ON 10/6/20. 10/6/20 ENTERED AND COPIES E-MAILED.(jwl, ) (Entered: 10/06/2020)

10/07/2020

111 NOTICE by SEAN MARLER of negative COVID-19 tests of Respondent's inspection attendees (MELLEY, REBECCA) (Entered: 10/07/2020)

10/07/2020 112 NOTICE of Appearance by DAVID RODKEY on behalf of TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN with Certificate of Service(RODKEY, DAVID) (Entered: 10/07/2020)

10/07/2020

113 NOTICE by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN re 110 Order Letter informing Court of negative COVID19 tests of Petitioners' inspection attendees (RODKEY, DAVID) (Entered: 10/07/2020)

10/21/2020 114 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 10/21/2020)

10/23/2020

115 Joint MOTION for Extension of Time to Complete Discovery filed by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN, SEAN MARLER.Certificate of Service. (Attachments: # 1 Text of Proposed Order)(HOFFA, LINDA) (Entered: 10/23/2020)

10/26/2020

116 ORDER granting 115 MOTION FOR EXTENSION OF TIME TO COMPLETE DISCOVERY. SIGNED BY HONORABLE ANITA B. BRODY ON 10/26/20.10/26/20 ENTERED AND COPIES EMAILED.(jwl, ) (Entered: 10/26/2020)

10/27/2020 117 NOTICE by SEAN MARLER re 49 Order, 38 Order, re: FDC Update (JONES, LANDON) (Entered: 10/27/2020)

10/30/2020 118 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 10/30/2020)

11/02/2020 119 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 11/02/2020)

11/03/2020 120 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (ZAUZMER, ROBERT) (Entered: 11/03/2020)

11/03/2020 121 NOTICE by SEAN MARLER re 49 Order, 38 Order, Corrected Date Letter re: FDC Update (ZAUZMER, ROBERT) (Entered: 11/03/2020)

11/04/2020 122 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 11/04/2020)

11/05/2020 123 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 11/05/2020)

11/06/2020 124 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 11/06/2020)

11/10/2020 125 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 11/10/2020)

11/10/2020

126 Response Letter requesting status conference re 124 Notice (Other), 125 Notice (Other) by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (HOFFA, LINDA) (Entered: 11/10/2020)

11/11/2020

127 NOTICE by SEAN MARLER re 126 Response, 49 Order, 38 Order, Letter re: FDC Update and Petitioners' 11-10-2020 Letter Requesting Status Conference (ZAUZMER, ROBERT) (Entered: 11/11/2020)

11/12/2020 128 NOTICE of Hearing: TELEPHONE CONFERENCE SET FOR 11/12/2020 03:00 PM BEFORE HONORABLE ANITA B. BRODY.(jwl, ) (Entered: 11/12/2020)

11/12/2020

129 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY Telephone Conference held on 11/12/20 Court Reporter: ESR. (jaa, ) (Entered: 11/13/2020)

11/13/2020 130 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 11/13/2020)

11/16/2020 131 NOTICE by SEAN MARLER re 49 Order, 38 Order, (JONES, LANDON) (Entered: 11/16/2020)

11/17/2020 132 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 11/17/2020)

11/18/2020 133 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 11/18/2020)

11/19/2020

134 ORDER THAT THE GOVERNMENT IS TO DISTRIBUTE THE ATTACHED NOTICE TO EVERY FDC DETAINEE AND TO TAKE REASONABLE STEPS TO DISTRIBUTE THE NOTICE.... SIGNED BY HONORABLE ANITA B. BRODY ON 11/19/20. 11/19/20 ENTERED AND COPIES E-MAILED.(jwl, ) (Entered: 11/19/2020)

11/19/2020

135 STIPULATION AND ORDER re: 116 MOTION FOR EXTENSION OF TIME. SIGNED BY HONORABLE ANITA B. BRODY ON 11/19/20. 11/19/20 ENTERED AND COPIES E-MAILED.(jwl, ) (Entered: 11/19/2020)

11/19/2020 136 NOTICE by SEAN MARLER re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 11/19/2020)

11/19/2020

137 STIPULATION AND ORDER TO SUBSTITUTE RESPONDENT, DISMISS PETITIONER HANNIGAN, AND AMEND THE CAPTION. SIGNED BY HONORABLE ANITA B. BRODY ON

11/19/20. 11/19/20 ENTERED AND COPIES E-MAILED.(jwl, ) (Entered: 11/19/2020)

11/20/2020

138 ORDER THAT THE GOVERNMENT IS TO DISTRIBUTE THE ATTACHED NOTICE TO EVERY FDC DETAINEE AND TO TAKE REASONABLE STEPS TO DISTRIBUTE THE NOTICE TO ATTORNEYS REPRESENTING FDC DETAINEES.. SIGNED BY HONORABLE ANITA B. BRODY ON 11/20/20. 11/20/20 ENTERED AND COPIES E-MAILED.(jwl, ) (Entered: 11/20/2020)

11/20/2020 139 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 11/20/2020)

11/23/2020 140 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 11/23/2020)

11/24/2020 141 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 11/24/2020)

11/30/2020 142 NOTICE of Hearing: TELEPHONE CONFERENCE SET FOR 12/4/2020 10:30 AM BEFORE HONORABLE ANITA B. BRODY.(jwl, ) (Entered: 11/30/2020)

11/30/2020 143 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 11/30/2020)

12/01/2020 144 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 12/01/2020)

12/02/2020 145 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 12/02/2020)

12/03/2020 146 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 12/03/2020)

12/04/2020 147 Minute Entry for proceedings held before HONORABLE ANITA B. BRODY Telephone Conference held on 12/4/20 Court Reporter: ESR. (JL ) (Entered: 12/04/2020)

12/04/2020

148

Audio File regarding TELEPHONE CONFERENCE held on

12/4/2020, before HONORABLE ANITA B. BRODY (jwl, ) (Entered:

12/04/2020)

12/04/2020

149 Report Of Dr. Rebecca Lubelczyk, for Respondent, re: Inspection of FDC by KEVIN PISTRO. (Attachments: # 1 Exhibit 1 (C.V.), # 2 Exhibit 2 (documents relied on))(MELLEY, REBECCA) (Entered: 12/04/2020)

12/04/2020

150 Report Of Dr. Rebecca Lubelczyk, for Respondent, re: Rebuttal/Supplemental Report by KEVIN PISTRO. (Attachments: # 1 Exhibit A (documents relied on), # 2 Exhibit B (Declaration of Warden Pistro), # 3 Exhibit C (Declaration of Health Services Administrator Cassano))(MELLEY, REBECCA) (Entered: 12/04/2020)

12/04/2020

151 Report Of -- Initial Expert Report and Addendum of D. Homer Venters by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (Attachments: # 1 Exhibit A - Expert Report, # 2 Exhibit B - CV, # 3 Exhibit C - Addendum to Expert Report)(HOFFA, LINDA) (Entered: 12/04/2020)

12/04/2020 152 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 12/04/2020)

12/04/2020

153 MOTION TO AMEND JAMES SPATLEY TO THE ABOVE CLASS ACTION, ENVELOPE ATTACHED filed by JAMES SPATLEY..(rf, ) (Entered: 12/07/2020)

12/04/2020 154 Letter dated 11/30/20 by STEPHAN BYRD (fdc) (Entered: 12/07/2020)

12/07/2020 155 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 12/07/2020)

12/08/2020 156 NOTICE to Counsel on Sentenced Prisoners (jwl, ) (Entered: 12/08/2020)

12/08/2020 157 Response Letter providing update on motion seeking additional discovery by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (HOFFA, LINDA) (Entered: 12/08/2020)

12/08/2020 158 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 12/08/2020)

12/10/2020 159 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 12/10/2020)

12/14/2020 160 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 12/14/2020)

12/15/2020

161 MOTION for Notice to Sentenced Prisoners Held at the FDC filed by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN.. (Attachments: # 1 Attachment A, # 2 Attachment B, # 3 Proposed Order and Notice)(HOFFA, LINDA) (Entered: 12/15/2020)

12/15/2020 162 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 12/15/2020)

12/16/2020

163 RESPONSE to Motion re 161 MOTION for Notice to Sentenced Prisoners Held at the FDC filed by KEVIN PISTRO. (Attachments: # 1 Text of Proposed Order)(MELLEY, REBECCA) (Entered: 12/16/2020)

12/16/2020 164 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 12/16/2020)

12/17/2020

166 NOTICE RE: UPON CONSIDERATION OF PETITIONERS MOTION FOR NOTICE TO SENTENCED PRISONERS HELD AT THE FDC 161 ), THE COURT HAS PREPARED A PROPOSED NOTICE TO BE DISTRIBUTED TO SENTENCED PRISONERS AT THE FEDERAL DETENTION CENTER. SEE ATTACHED. ANY ADDITIONS OR CORRECTIONS MUST BE SUBMITTED TO THE COURT ON OR BEFORE MONDAY, DECEMBER 21, 2020. (jwl, ) (Entered: 12/17/2020)

12/17/2020 167 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 12/17/2020)

12/18/2020

168 Response Letter re: proposed notice to sentenced prisoners re 166 Notice (Other), by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (HOFFA, LINDA) (Entered: 12/18/2020)

12/21/2020 169 Response Letter re: Notice to Sentenced Inmates re 166 Notice (Other), by KEVIN PISTRO. (JONES, LANDON) (Entered: 12/21/2020)

12/21/2020 170 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 12/21/2020)

12/22/2020

171 ORDER resolving 161 Motion for Notice to Sentenced Prisoners Held at the FDC. SIGNED BY HONORABLE ANITA B. BRODY ON 12/21/20.12/22/20 ENTERED AND COPIES E-MAILED.(jwl, ) (Entered: 12/22/2020)

12/22/2020 172 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 12/22/2020)

12/28/2020 173 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 12/28/2020)

12/30/2020

174 Response Letter providing update on Petitioners' discovery motion by TIMOTHY BROWN, ANTHONY HALL, MYLES HANNIGAN. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (HOFFA, LINDA) (Entered: 12/30/2020)

01/05/2021 175 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 01/05/2021)

01/06/2021 176 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 01/06/2021)

01/11/2021

177 MOTION for Leave to File ---- Petitioners' Motion for Leave to Take Discovery filed by TIMOTHY BROWN, ANTHONY HALL.Memorandum of Law, Declarations, Certificate of Service. (Attachments: # 1 Memorandum in Support of Motion, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Text of Proposed Order, # 6 Declaration of Kenneth Blakeney, # 7 Declaration of Tim Brown, # 8 Declaration of William Davis, # 9 Declaration of Mark Green, # 10 Declaration of Anthony Hall, # 11 Declaration of Ryan Menkins, # 12 Declaration of Khalil Pinkney, # 13 Declaration of Kareem Russell, # 14 Declaration of Gerald Spruell, # 15 Declaration of Anthony Vega, # 16 Declaration of Michele Wood)(HOFFA, LINDA) Modified on 1/26/2021 (jwl, ). (Entered: 01/11/2021)

01/11/2021

178 ORDER THAT RESPONDENT MUST FILE A RESPONSE TO PETITIONERS MOTION FOR LEAVE TO TAKE DISCOVERY 177 ON OR BEFORE JANUARY 25, 2021.. SIGNED BY HONORABLE ANITA B. BRODY ON 1/11/21. 1/11/21 ENTERED AND COPIES E-MAILED.(jwl, ) (Entered: 01/11/2021)

01/11/2021

Set/Reset Deadlines as to 177 MOTION for Leave to File ---Petitioners' Motion for Leave to Take Discovery. RESPONSES DUE BY 1/25/2021. (jwl, ) (Entered: 01/11/2021)

01/11/2021 179 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 01/11/2021)

01/12/2021 180 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 01/12/2021)

01/13/2021 181 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 01/13/2021)

01/14/2021 182 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 01/14/2021)

01/15/2021 183 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 01/15/2021)

01/19/2021 184 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 01/19/2021)

01/21/2021 185 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 01/21/2021)

01/22/2021 186 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 01/22/2021)

01/26/2021 187 ORDER FILED IN ERROR (Entered: 01/26/2021)

01/26/2021

188 ORDER THAT RESPONDENT MUST RESPOND TO PETITIONERS MOTION ON OR BEFORE FEBRUARY 8, 2021. FURTHER, IT IS ORDERED THAT RESPONDENT MUST PROVIDE PETITIONERS WITH ANSWERS TO THE DISCOVER REQUESTS, INCLUDING INFORMATION ON THE FDCS VACCINATION PROGRAM, AS SOON AS POSSIBLE. SIGNED BY HONORABLE ANITA B. BRODY ON 1/25/21. 1/26/21 ENTERED AND COPIES E-MAILED.(jwl, ) (Entered: 01/26/2021)

01/26/2021

Set/Reset Deadlines as to 177 MOTION for Leave to File ---Petitioners' Motion for Leave to Take Discovery. RESPONSES DUE BY 2/8/2021. (jwl, ) (Entered: 01/26/2021)

01/27/2021 189 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (MELLEY, REBECCA) (Entered: 01/27/2021)

02/01/2021

190 RESPONSE in Opposition re 177 MOTION for Leave to File ---Petitioners' Motion for Leave to Take Discovery filed by KEVIN PISTRO. (Attachments: # 1 Exhibit 1 - Responses to Interrogatories, # 2 Exhibit 2 - Objections to Document Requests, # 3 Exhibit 3 Declaration of K. Pistro, # 4 Exhibit 4 - Townhall Handout (Dec. 14, 2020), # 5 Exhibit 5 - Declaration of K. Cassano, # 6 Exhibit 6 - Letter from K. Cassano, # 7 Exhibit 7 - Letter from S. Santos)(JONES, LANDON) (Entered: 02/01/2021)

02/01/2021 191 MOTION to Seal Document filed by KEVIN PISTRO.Brief, Certificate of Service. (Attachments: # 1 Text of Proposed Order, # 2 Brief)(JONES, LANDON) (Entered: 02/01/2021)

02/01/2021 192 Appendix to Response re 177 MOTION for Leave to File ---Petitioners' Motion for Leave to Take Discovery by KEVIN PISTRO. *FILED UNDER SEAL* (lisad, ) (lisad, ). (Entered: 02/02/2021)

02/02/2021

193 Response Letter advising the Court that Petitioners received Government's discovery responses re 190 Response in Opposition to Motion,, by TIMOTHY BROWN, ANTHONY HALL. (HOFFA, LINDA) (Entered: 02/02/2021)

02/03/2021 194 ORDER granting 191 MOTION TO SEAL DOCUMENT. SIGNED BY HONORABLE ANITA B. BRODY ON 2/3/21.2/3/21 ENTERED AND COPIES E-MAILED.(jwl, ) (Entered: 02/03/2021)

02/03/2021 195 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 02/03/2021)

02/11/2021 196 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 02/11/2021)

02/12/2021

197 RESPONSE in Support re 177 MOTION for Leave to File ---Petitioners' Motion for Leave to Take Discovery filed by TIMOTHY BROWN, ANTHONY HALL. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(HOFFA, LINDA) (Entered: 02/12/2021)

02/18/2021 198 NOTICE by KEVIN PISTRO re 49 Order, 38 Order, Letter re: FDC Update (JONES, LANDON) (Entered: 02/18/2021)

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1.40

 
 JS 44 (Rev. 0)

Case 2:20-cv-01914C-AIVBILDoCcOumVeEnRt 1SHFEileEdT04/15/20 Page 1 of 42

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

Timothy Brown, Anthony Hall, Myles Hannigan

Sean Marler, Warden, FDC Philadelphia

(b) County of Residence of First Listed Plaintiff Philadelphia
(EXCEPT IN U.S. PLAINTIFF CASES)
(c) Attorneys (Firm Name, Address, and Telephone Number) See attachment

County of Residence of First Listed Defendant Philadelphia
(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
Attorneys (If Known)
E.D. Pa. U.S. Attorney's Office

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

u 1 U.S. Government Plaintiff

u 3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

u 1 u 1 Incorporated or Principal Place

u 4 u4

of Business In This State

u 2 U.S. Government Defendant

u 4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

u 2 u 2 Incorporated and Principal Place of Business In Another State

u 5 u5

Citizen or Subject of a Foreign Country

u 3 u 3 Foreign Nation

u 6 u6

IV. NATURE OF SUIT (Place an “X” in One Box Only)

Click here for: Nature of Suit Code Descriptions.

CONTRACT

TORTS

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

u 110 Insurance

PERSONAL INJURY

PERSONAL INJURY u 625 Drug Related Seizure

u 422 Appeal 28 USC 158

u 120 Marine

u 310 Airplane

u 130 Miller Act

u 315 Airplane Product

u 140 Negotiable Instrument

Liability

u 150 Recovery of Overpayment u 320 Assault, Libel &

& Enforcement of Judgment

Slander

u 151 Medicare Act

u 330 Federal Employers’

u 152 Recovery of Defaulted

Liability

Student Loans

u 340 Marine

(Excludes Veterans)

u 345 Marine Product

u 153 Recovery of Overpayment

Liability

of Veteran’s Benefits

u 350 Motor Vehicle

u 160 Stockholders’ Suits

u 355 Motor Vehicle

u 190 Other Contract

Product Liability

u 195 Contract Product Liability u 360 Other Personal

u 196 Franchise

Injury

u 362 Personal Injury -

u 365 Personal Injury -

of Property 21 USC 881

Product Liability

u 690 Other

u 367 Health Care/

Pharmaceutical

Personal Injury

Product Liability

u 368 Asbestos Personal

Injury Product

Liability

PERSONAL PROPERTY

LABOR

u 370 Other Fraud

u 710 Fair Labor Standards

u 371 Truth in Lending

Act

u 380 Other Personal

u 720 Labor/Management

Property Damage

Relations

u 385 Property Damage

u 740 Railway Labor Act

Product Liability

u 751 Family and Medical

u 423 Withdrawal 28 USC 157
PROPERTY RIGHTS u 820 Copyrights u 830 Patent u 835 Patent - Abbreviated
New Drug Application u 840 Trademark
SOCIAL SECURITY u 861 HIA (1395ff) u 862 Black Lung (923) u 863 DIWC/DIWW (405(g)) u 864 SSID Title XVI u 865 RSI (405(g))

Medical Malpractice

Leave Act

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS u 790 Other Labor Litigation

FEDERAL TAX SUITS

u 210 Land Condemnation

u 440 Other Civil Rights

Habeas Corpus:

u 791 Employee Retirement

u 870 Taxes (U.S. Plaintiff

u 220 Foreclosure

u 441 Voting

u 463 Alien Detainee

Income Security Act

or Defendant)

u 230 Rent Lease & Ejectment u 240 Torts to Land u 245 Tort Product Liability u 290 All Other Real Property

u 442 Employment

u 510 Motions to Vacate

u 443 Housing/

Sentence

Accommodations

u 530 General

u 445 Amer. w/Disabilities - u 535 Death Penalty

IMMIGRATION

u 871 IRS—Third Party 26 USC 7609

Employment

Other:

u 446 Amer. w/Disabilities - u 540 Mandamus & Other

Other

u 550 Civil Rights

u 448 Education

u 555 Prison Condition

u 560 Civil Detainee -

u 462 Naturalization Application u 465 Other Immigration
Actions

Conditions of

Confinement

u 375 False Claims Act u 376 Qui Tam (31 USC
3729(a)) u 400 State Reapportionment u 410 Antitrust u 430 Banks and Banking u 450 Commerce u 460 Deportation u 470 Racketeer Influenced and
Corrupt Organizations u 480 Consumer Credit u 485 Telephone Consumer
Protection Act u 490 Cable/Sat TV u 850 Securities/Commodities/
Exchange u 890 Other Statutory Actions u 891 Agricultural Acts u 893 Environmental Matters
u 895 Freedom of Information
Act u 896 Arbitration u 899 Administrative Procedure
Act/Review or Appeal of
Agency Decision u 950 Constitutionality of
State Statutes

V. ORIGIN (Place an “X” in One Box Only)

u 1 Original

u 2 Removed from

Proceeding

State Court

u 3 Remanded from Appellate Court

u 4 Reinstated or u 5 Transferred from

Reopened

Another District

(specify)

u 6 Multidistrict Litigation Transfer

u 8 Multidistrict Litigation Direct File

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
28 U.S.C. 2241 VI. CAUSE OF ACTION Brief description of cause:
Unconstitutional exposure to deadly virus at FDC Philadelphia

VII. REQUESTED IN COMPLAINT:

u CHECK IF THIS IS A CLASS ACTION
UNDER RULE 23, F.R.Cv.P.

DEMAND $
0.00

CHECK YES only if demanded in complaint: JURY DEMAND: u Yes u No

VIII. RELATED CASE(S)

IF ANY

(See instructions):
JUDGE

DOCKET NUMBER

DATE
04/15/2020
FOR OFFICE USE ONLY

SIGNATURE OF ATTORNEY OF RECORD
/s/ Linda Dale Hoffa

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

Case 2:20-cv-01914-AB Document 1 Filed 04/15/20 Page 2 of 42

Mary M. McKenzie, Pa. Bar No. 47434 Benjamin D. Geffen, Pa. Bar No. 310134 PUBLIC INTEREST LAW CENTER 1500 JFK Blvd., Suite 802 Philadelphia, PA 19102 Tel: 215-627-7100 mmckenzie@pubintlaw.org bgeffen@pubintlaw.org
Jim Davy, Pa. Bar No. 321631 2362 E. Harold Street Philadelphia, PA 19125 Tel: 609-273-5008 jimdavy@gmail.com

Linda Dale Hoffa, Pa. Bar No. 34063 Margaret Spitzer Persico, Pa. Bar No. 320178 DILWORTH PAXSON LLP 1500 Market St. Suite 3500E Philadelphia, PA 19102-2101 Tel: 215-275-7000 Fax: 215-575-7200 lhoffa@dilworthlaw.com
Counsel for Petitioners and Proposed Class Members

Case 2:20-cv-01914-AB Document 1 Filed 04/15/20 Page 3 of 42

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TIMOTHY BROWN, MYLES HANNIGAN,

:

and ANTHONY HALL, individually and on

:

behalf of all others similarly situated,

:

:

Petitioners,

:

:

v.

:

:

SEAN MARLER, in his capacity as Warden

:

of the Federal Detention Center of Philadelphia, :

:

Respondent.

:

Case No. _______ cv ________
COMPLAINT—CLASS ACTION FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRITS OF HABEAS CORPUS

This class action raises an urgent challenge to the confinement of more than one thousand pretrial detainees and sentenced inmates (collectively “detainees”) at the Federal Detention Center of Philadelphia (FDC). FDC detainees Timothy Brown, Myles Hannigan, and Anthony Hall (Petitioners), on behalf of themselves and others similarly situated, and by and through their undersigned attorneys, allege as follows:
PRELIMINARY STATEMENT 1. The entire human race faces a pandemic without modern precedent. Life has changed
nearly overnight across the planet, as citizens, institutions, and governments have dramatically altered everyday activities in order to slow the spread of COVID-19. 2. But change has been halting in the FDC. The facility has been slow—dangerously slow— to adopt the basic life-saving precautions that have become familiar parts of life beyond its walls. As of this filing, conditions in the FDC remain appallingly hospitable to the spread of COVID-19.

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3. Detainees are crowded two per cell. Staff members come and go with scant screening for symptoms or personal protective equipment (PPE). Conditions are unsanitary. Detainees have no meaningful ability to take the most fundamental precautions recommended by federal, state, and local officials and public-health experts: social distancing, minimizing the number of people with whom one physically interacts, frequent and thorough handwashing, and regular disinfecting of commonly touched surfaces.
4. Testing of FDC detainees for COVID-19 is nonexistent. And medical treatment options for detainees with serious COVID-19 cases are unavailable in the FDC.
5. Even as glimmers of hope are emerging in Pennsylvania and Greater Philadelphia that precautionary measures have begun to slow the spread of the virus, the environment remains dangerous for everyone in the FDC, and especially so for detainees like Petitioners, whose preexisting medical conditions leave them highly vulnerable to serious or deadly cases of COVID-19.
6. Danger to detainees also poses a danger to the community in Greater Philadelphia. A severe COVID-19 outbreak inside the FDC could quickly grow to dozens or hundreds of cases. Staff heading home after their shifts would risk spreading the disease to everyone they encounter on the outside. And a sudden surge in inmates needing hospital care would strain Philadelphia’s healthcare system.
7. Petitioners have thus filed this class action petition for writs of habeas corpus and class complaint for declaratory and injunctive relief. Petitioners seek temporary release to home confinement for themselves and other detainees at elevated risk from COVID-19. They also seek measures to mitigate the serious risks of illness, death, and harm from COVID-19 for those who will remain confined at the FDC during this pandemic, and the
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appointment of a Special Master with a focus on public health and safety to chair a committee that will make recommendations about those measures.
PARTIES 8. Petitioner Timothy Brown is a 46-year old man who currently resides in Philadelphia,
Pennsylvania. At all times relevant to this Complaint, Mr. Brown was in the custody of the Federal Bureau of Prisons (BOP) at the FDC. His inmate number is 60758-066. Mr. Brown has underlying health conditions that put him at greater risk for life-threatening complications from COVID-19. 9. Petitioner Myles Hannigan is a 47-year old man who currently resides in Philadelphia, Pennsylvania. At all times relevant to this Complaint, Mr. Hannigan was in the custody of BOP at the FDC. His inmate number is 77357-066. Mr. Hannigan has underlying health conditions that put him at greater risk for life-threatening complications from COVID-19. 10. Petitioner Anthony Hall is a 46-year old man who currently resides in Philadelphia, Pennsylvania. At all times relevant to this Complaint, Mr. Hall was in the custody of BOP at the FDC. His inmate number is 75509-066. Mr. Hall has underlying health conditions that put him at greater risk for life-threatening complications from COVID-19. 11. Sean Marler (Respondent) is the Warden at the FDC. As Warden of the FDC, Respondent Marler is responsible for and oversees all day-to-day activity at the FDC. He is in charge of all aspects of the operations and functions of the FDC. His responsibilities include ensuring the safety of all in the institution and ensuring the orderly running of the institution. Respondent Marler is aware of and has adopted and enforced policies that leave Petitioners and all those similarly situated exposed to infection, severe illness, and
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death due to COVID-19. Respondent is the immediate and physical custodian responsible for the detention of the Petitioners. He is sued in his official capacity only.
JURISDICTION AND VENUE 12. The Petitioners bring this action pursuant to 28 U.S.C. § 2241 for release from custody
that violates the Fifth and Eighth Amendments to the U.S. Constitution, and pursuant to 28 U.S.C. § 1331 for relief from conditions of confinement that are in violation of the Fifth and Eighth Amendments to the U.S. Constitution. 13. The Court has subject-matter jurisdiction over this Petition pursuant to Article I, § 9, cl. 2 of the U.S. Constitution (Suspension Clause); the Fifth and the Eighth Amendments to the U.S. Constitution; 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 1651 (All Writs Act); and 28 U.S.C. § 2241 (habeas corpus). In addition, the Court has jurisdiction to grant declaratory and injunctive relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201. 14. Venue is proper in the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events and omissions giving rise to these claims occurred and continue to occur in this district. 15. This Court has personal jurisdiction over Respondent because at all times relevant to this action Respondent has been employed in Philadelphia, Pennsylvania, and all the actions and omissions complained of herein have occurred in Philadelphia, Pennsylvania.
EXHAUSTION OF ADMINISTRATIVE REMEDIES 16. Petitioners are all excused from 28 U.S.C. § 2241’s exhaustion requirement. While a
petitioner is generally required to exhaust all administrative remedies before bringing a habeas petition, the exhaustion requirement does not apply where the petitioner is likely
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to suffer an irreparable injury without immediate judicial relief or where the administrative remedy would be futile. Here, both exceptions are met. See Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 239 n.2 (3d Cir. 2005) (noting that a petitioner’s failure to exhaust will be excused where exhaustion would be futile); Cerverizzo v. Yost, 380 F. App’x 115, 116 (3d Cir. 2010) (acknowledging that Section 2241’s administrative exhaustion requirement may be excused if an attempt to obtain relief would be futile or where the purposes of exhaustion would not be served); Carling v. Peters, No. 00-CV2958, 2000 WL 1022959, at *2 (E.D. Pa. July 10, 2000) (finding that petitioner would suffer an irreparable injury if forced to wait for the resolution of the administrative process); Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988) (noting that “[e]xhaustion is not required if administrative remedies would be futile, if the actions of the agency clearly and unambiguously violate statutory or constitutional rights, or if the administrative procedure is clearly shown to be inadequate to prevent irreparable injury”); United States v. Colvin, No. 3:19-CR-179, 2020 WL 1613943, at *2 (D. Conn. Apr. 2, 2020) (finding that petitioner exhausted administrative remedies where exhaustion would be futile, the administrative process would be incapable of granting adequate relief, and pursuing agency review would subject petitioner to undue prejudice). 17. First, the densely populated conditions at the FDC render any effective social-distancing measures impracticable. Given the absence of effective social-distancing measures, and the other deficient conditions as described herein, there is an alarming and imminent risk that COVID-19 will overrun the FDC before Petitioners can meaningfully engage in any administrative-remedy process. The exponential spread of COVID-19 poses especially significant risks for individuals with certain medical conditions that make them more
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Case 2:20-cv-01914-AB Document 1 Filed 04/15/20 Page 8 of 42
susceptible to severe illness and/or death from COVID-19. Accordingly, forcing Petitioners to engage in a protracted administrative process during the throes of a rapidly spreading pandemic is likely to result in the very catastrophic health consequences that Petitioners now seek to avoid. Petitioners thus will remain exposed to irreparable injury if they do not receive immediate judicial relief. 18. Second, the only process ostensibly available to Petitioners here is BOP’s Administrative Remedy Program (ARP). However, ARP is a lengthy process that does not purport to provide the requested relief of release to home confinement. In other words, it would be futile for Petitioners to engage in ARP in this case. 19. In sum, the rapidly spreading COVID-19 pandemic presents extraordinary circumstances—especially for high-risk individuals housed in a detention facility. Petitioners are likely to suffer irreparable injury if they are required to wait for the ARP process to unfold. Also, it would be futile for Petitioners to engage in ARP, because it cannot provide the requested and necessary relief. For each of these independent reasons, Petitioners are excused from the requirement of exhausting administrative remedies.
STATEMENT OF FACTS I. The COVID-19 Crisis 20. The novel coronavirus that causes COVID-19 has led to a global pandemic. As of April
13, 2020, worldwide there were more than 1.8 million reported COVID-19 cases and over 100,000 confirmed deaths.1 In the United States, as of April 13 the case count stands
1 World Health Org., Coronavirus disease (COVID-19) Pandemic, https://www.who.int/emergencies/diseases/novel-coronavirus-2019.
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Case 2:20-cv-01914-AB Document 1 Filed 04/15/20 Page 9 of 42
at 554,849 and the death count at 21,942.2 In Pennsylvania, the case count as of April 14 is 25,345, including 7,121 in Philadelphia.3
21. To date, the virus is known to spread from person to person through respiratory droplets,
close personal contact, and from contact with contaminated surfaces and objects.
22. People who are at least fifty years old face greater chances of serious illness or death
from COVID-19. Preliminary analyses report that individuals age 60-69 had an overall
3.99% case fatality ratio. For individuals age 40-49, the case fatality ratio was 0.295%, and for individuals 29 years and younger, it was under 0.1%.4
23. According to the Centers for Disease Control and Prevention (CDC), people of any age
who suffer from certain underlying medical conditions, including chronic lung disease,
moderate to severe asthma, serious heart conditions, chronic kidney disease, liver disease,
diabetes, compromised immune systems (such as from cancer treatment, HIV, or autoimmune disease), and severe obesity are at elevated risk as well.5 One analysis has
found mortality rates of 13.2% for patients with cardiovascular disease, 9.2% for
diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer.6
2 Ctrs. for Disease Control & Prevention, Coronavirus Disease 2019 (COVID-19), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html. 3 Pa. Dep’t of Health, COVID-19 Cases in Pennsylvania, https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx. 4 Robert Verity et al., Estimates of the Severity of Coronavirus Disease 2019, The Lancet Infectious Diseases Online (Mar. 30, 2020) at 5, https://doi.org/10.1016/S1473-3099(20)302437. 5 CDC, Groups at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019ncov/need-extra-precautions/groups-at-higher-risk.html. 6 World Health Org., Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19) at 12 (Feb. 28, 2020), https://www.who.int/docs/default-source/coronaviruse/whochina-joint-mission-on-covid-19-final-report.pdf.
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24. In many people, COVID-19 causes fever, cough, and shortness of breath. But for people over the age of fifty or with medical conditions that increase the risk of serious COVID19 infection, shortness of breath can be severe. Most people in higher-risk categories who develop serious illness will need advanced support. This level of supportive care requires highly specialized equipment that is in limited supply, and an entire team of care providers, including 1:1 or 1:2 nurse-to-patient ratios, respiratory therapists, and intensive-care physicians.
25. In patients who do not die, COVID-19 can severely damage lung tissue, requiring an extensive period of rehabilitation, and in some cases, can cause a permanent loss of respiratory capacity. COVID-19 may also target the heart muscle, causing a medical condition called myocarditis, or inflammation of the heart muscle. Myocarditis can affect the heart muscle and electrical system, reducing the heart’s ability to pump. This reduction can lead to rapid or abnormal heart rhythms in the short term, and long-term heart failure that limits exercise tolerance and the ability to work.
26. Emerging evidence also suggests that COVID-19 can trigger an over-response of the immune system, further damaging tissues in a cytokine release syndrome that can result in widespread damage to other organs, including permanent injury to the kidneys and neurologic injury. These complications can manifest at an alarming pace. Patients can show the first symptoms of infection in as little as two days after exposure, and their condition can seriously deteriorate in as little as five days.
27. Even some younger and healthier people who contract COVID-19 may require supportive care, which includes supplemental oxygen, positive pressure ventilation, and in extreme cases, extracorporeal mechanical oxygenation.
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28. The need for care, including intensive care, and the likelihood of death, is much higher
from COVID-19 infection than from seasonal influenza. According to recent estimates,
the fatality rate of people infected with COVID-19 is about ten times higher than a severe seasonal influenza, even in advanced countries with highly effective healthcare systems.7
29. There is no vaccine against COVID-19 and there is no known medication to prevent or
treat infection from COVID-19. Social distancing, or remaining physically separated
from known or potentially infected individuals, and vigilant hygiene, including frequently
and thoroughly washing hands with soap and water and cleaning and disinfecting high-
touch surfaces, are the only known effective measures for protecting people from
COVID-19.
II. Incarcerated People and Staff Are Particularly Vulnerable
30. The COVID-19 pandemic has spread rapidly through Philadelphia. As of April 14, 2020,
Philadelphia County reported 7,121 confirmed cases of COVID-19, about three times the number of cases than any other county in the state.8 Approximately twenty-eight percent of 25,345 confirmed COVID-19 cases in Pennsylvania are in Philadelphia.9 To date,
there have been 584 deaths from COVID-19 in Pennsylvania, with 190 of those deaths in Philadelphia.10
7 E.g., Noah Higgins-Dunn & Berkeley Lovelace Jr., Top US Health Official Says the Coronavirus Is 10 Times ‘More Lethal’ Than the Seasonal Flu, CNBC (Mar. 11, 2020) (citing testimony of Anthony S. Fauci, M.D., Director of the National Institute of Allergy and Infectious Diseases), https://www.cnbc.com/2020/03/11/top-federal-health-official-says-coronavirusoutbreak-is-going-to-get-worse-in-the-us.html. 8 Pa. Dep’t of Health, COVID-19 Data for Pennsylvania (last updated Apr. 14, 2020), https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx. 9 Id. 10 Id.; see also City Provides Update on COVID-19 for Monday, April 13, 2020, City of Phila. (Apr. 13, 2020), https://www.phila.gov/2020-04-13-city-provides-update-on-covid-19-formonday-april-13-2020/.
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31. People in congregate environments, which are places where people live, eat, and sleep in close proximity, face increased danger of contracting COVID-19, as already evidenced by the rapid spread of the virus in cruise ships11 and nursing homes.12 People who are
confined in prisons, jails, and detention centers will find it virtually impossible to engage in the necessary social distancing and hygiene required to mitigate the risk of
transmission, even with the best laid plans. The CDC also warns of “community spread” where the virus spreads easily and sustainably within a community where the source of
the infection is unknown.
32. State and local officials have been taking aggressive action in Pennsylvania and Greater Philadelphia. On March 22, 2020, Governor Wolf imposed strict measures to fight the
virus’s spread, issuing a “stay at home” executive order for all residents in seven hard-hit counties, including Philadelphia. On April 1, Governor Wolf expanded that order to all
67 counties, stating the move is the “most prudent option to stop the spread of COVID19.”13 In a statement to the public, Governor Wolf explained that the order prohibits nonessential gatherings of any size, requires all non-life-sustaining businesses to close, and
11 E.g., Jason Hanna & Melissa Alonso, Coral Princess Docks in Miami With 2 Dead and Several Ill of Coronavirus, After Ports Shunned it For Days, CNN (Apr. 4, 2020), https://www.cnn.com/2020/04/04/us/coral-princess-cruise-ship-docks-miamicoronavirus/index.html. 12 E.g., Stacey Burling, Assume Coronavirus is Already There, Says a Philly Nursing Home Doctor Who Learned the Hard Way, Phila. Inquirer (Apr. 3, 2020), available at https://www.inquirer.com/health/coronavirus/coronavirus-renaissance-nursing-homephiladelphia-20200403.html; see also Suzy Khimm & Laura Strickler, Nursing Homes Overwhelmed By Coronavirus, NBC News (Apr. 1, 2020), https://www.nbcnews.com/news/usnews/nursing-homes-overwhelmed-coronavirus-it-impossible-us-stop-spread-n1174171. 13 Pennsylvania on Statewide Stay-at-Home Order, Governor Tom Wolf (Apr. 1, 2020), https://www.governor.pa.gov/newsroom/gov-wolf-sec-of-health-pennsylvania-on-statewidestay-at-home-order-beginning-at-8-pm-tonight-most-prudent-option-to-stop-the-spread/.
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Case 2:20-cv-01914-AB Document 1 Filed 04/15/20 Page 13 of 42
recommends that people stay at least six feet away from others.14 He said: “This
statewide stay at home order is not just to protect ourselves from exposure to COVID-19,
but it protects those on the front lines. Our doctors, nurses, police, fire, EMTs need us to do this.”15
33. On April 9, Governor Wolf continued taking strict measures when he extended school
closures to the end of the academic year throughout the Commonwealth because of the COVID-19 pandemic.16
34. Correctional facilities increase the risk of rapid spread of an infectious disease, like
COVID-19, because of the high numbers of people with chronic, often untreated,
illnesses housed in a setting with minimal levels of sanitation, limited access to personal
hygiene, limited access to medical care, and no possibility of staying at a distance from others.17
35. A recent COVID-19 outbreak in an Arkansas state prison quickly spread to 43 out of 46 inmates in a single housing unit.18
36. Correctional facilities frequently have insufficient medical care for the population, and, in
times of crisis, even medical staff often cease coming to the facility. Hot water, soap, and
paper towels are frequently in limited supply. Incarcerated people, rather than
14 Id. 15 Id. 16 Governor Wolf Extends School Closure for Remainder of Academic Year, Governor Tom Wolf (Apr. 9, 2020), https://www.governor.pa.gov/newsroom/governor-wolf-extends-school-closurefor-remainder-of-academic-year/. 17 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 people incarcerated in U.S. jails and prisons had a higher burden of most chronic medical conditions than the general population, even when adjusting for sociodemographic differences and alcohol consumption). 18 43 Arkansas state inmates test positive for COVID-19, ABC 20/49 (Apr. 13, 2020), https://www.4029tv.com/article/43-arkansas-state-inmates-test-positive-for-covid-19/32131327.
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professional cleaners, are responsible for cleaning the facilities and often are not given appropriate supplies. This means there are more people who are susceptible to infection all congregated together in a location where fighting the spread of an infection is nearly impossible. 37. For these reasons, correctional public health experts have recommended the release from custody of people most vulnerable to COVID-19. Release protects the people with the greatest vulnerability to COVID-19 from transmission of the virus, and also allows for greater risk-mitigation for all people held or working in a prison, jail, or detention center. Release of the most vulnerable people from custody also reduces the burden on the region’s health care infrastructure by reducing the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time. 38. Internationally, governments and jail and prison staff have recognized the threat posed by COVID-19 and released detainees. In Iran, for example, more than 70,000 people were temporarily released from jails to curb the spread of coronavirus.19 39. Some jurisdictions, including Philadelphia and Allegheny Counties in Pennsylvania, New York City, Los Angeles, and Chicago, have already taken steps to protect people in custody from the impending spread of COVID-19 by releasing people in an effort to reduce populations.20
19 Iran Temporarily Releases 70,000 Prisoners as Coronavirus Cases Surge, Reuters (Mar. 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases70000-prisoners-as-coronavirus-cases-surge-idUSKBN20W1E5. 20 See, e.g., Jeremy Roebuck & Chris Palmer, Racing Against a Coronavirus Clock, Philly Courts Release 200+ Jail Inmates in the First Week of Fast-Track Emergency Hearings, Phila. Inquirer (April 11, 2020), available at https://www.inquirer.com/news/coronavirus-philadelphia-jailinmate-release-bail-infection-larry-krasner-court-20200411.html; 701 Inmates Released From Allegheny County Jail Due to Coronavirus Concerns, WTAE Pittsburgh (Apr. 2, 2020), available at https://www.wtae.com/article/inmates-released-from-allegheny-county-jail-due-to-
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40. Recent experience in the Rikers Island facility in New York City bears out the
devastating impact of COVID-19 infection in a jail setting.21 On April 6, a state court in
New York granted eighteen pretrial detainees’ petitions for release from Rikers Island on
due-process grounds because their medical conditions made them particularly susceptible
to COVID-19.22
41. Officials in Pennsylvania have echoed the calls to release vulnerable people. On April 10,
2020, Governor Wolf ordered Pennsylvania Department of Corrections officials to
establish a Temporary Program to Reprieve Sentences of Incarceration to help aid the
Department in the transfer of qualifying individuals to community corrections facilities or
home confinement amid the pandemic.23
coronavirus-concerns/31953103; Brendan J. Lyons, NY to Release 1,100 Parole Violators as Coronavirus Spreads, Albany Times Union (Mar. 27, 2020), available at https://www.timesunion.com/news/article/Deaths-surge-again-in-New-York-from-coronavirus15160973.php. Thirty-one district attorneys from around the country put out a joint statement calling for a reduction in jail populations. Jurisdictions in California, Illinois, and Ohio have already released people from jail, and officials in Louisiana, Oregon, and Virginia have made announcements that they will begin releasing people soon. Other cities are putting plans in place to do the same. See, e.g. Allen Kim, Cities in the US Move to Lower Inmate Populations as Coronavirus Fears Grow, CNN (Mar. 16, 2020), https://www.cnn.com/2020/03/16/us/inmatesreleased-jail-coronavirus-trnd/index.html; Megan Cassidy, Coronavirus: San Francisco, Contra Costa Prosecutors Join National Call for Jail Releases, S.F. Chron. (Mar. 17, 2020), available at https://www.sfchronicle.com/crime/article/Coronavirus-San-Francisco-Contra-Costa15137291.php. 21 See, e.g., Rebecca Rosenberg, Second Rikers Island Inmate Dead From Coronavirus After Failed Release, N.Y. Post (Apr. 14, 2020), available at https://nypost.com/2020/04/14/secondrikers-island-inmate-dead-from-coronavirus/. 22 People of State of N.Y. ex rel. Stoughton v. Brann, No. 451078/2020, ___ N.Y.S.3d ___, 2020 NY Slip Op 20081 (N.Y. Sup. Ct. Apr. 6, 2020). 23 Press Release, Office of Governor Tom Wolf, Gov. Wolf: Dep’t of Corrections to Establish Temp. Program to Reprieve Sentences of Incarceration (Apr. 10, 2020), https://www.governor.pa.gov/newsroom/gov-wolf-department-of-corrections-to-establishtemporary-program-to-reprieve-sentences-of-incarceration/.
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42. Lancaster County officials have released about ten percent of the county’s inmates in an effort to stop the virus’s spread.24 Lancaster County Court of Common Pleas President
Judge David Ashworth said that steps would include “supervision with parole and
probation, house arrest and electronic and alcohol monitoring” with the goal of limiting
“exposure to those who remain incarcerated and minimize risk to those who are
vulnerable as much as possible while still maintaining the highest level of protection to the community.”25
43. The CDC has also issued guidance encouraging local law enforcement and court officials
to explore strategies to prevent overcrowding of correctional and detention facilities during a community outbreak.26 The CDC guidance acknowledges that effective social
distancing may be challenging to implement in prisons, jails, and detention centers, but
nevertheless refers to it as “a cornerstone of reducing transmission of respiratory disease
such as COVID-19.” Id. It recommends not only social distancing, but also measures for
separating detainees and staff who have (or presumably have) COVID-19 from those who
do not have (or presumably do not have) the virus.
24 Dan Nephin & Carter Walker, Releasing Inmates Early from Lancaster Prison Amid Coronavirus a ‘Moral Decision’; Not a Get-out-of-Jail-Free Card: Judge, LNP Lancaster Online (Apr. 7, 2020), https://lancasteronline.com/news/local/releasing-inmates-early-fromlancaster-prison-amid-coronavirus-a-moral-decision-not-a-get-out/article_8cdccbf0-7834-11eaa7d9-c7a06ef1cf8a.html. 25 Dan Nephin & Carter Walker, Lancaster County Officials Considering Releasing Some Inmates Because of Coronavirus, LNP Lancaster Online (Mar. 20, 2020), https://lancasteronline.com/news/local/lancaster-county-officials-considering-releasing-someinmates-because-of-coronavirus/article_38a31fb0-6af3-11ea-9ab6-53a5887726d7.html. 26 U.S. Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities (CDC Guidance) (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html.
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44. As COVID-19 spreads in Pennsylvania, the same phenomenon seen at Rikers Island is likely to repeat itself in correctional facilities across the Commonwealth.
45. On April 6, 2020, the Philadelphia Department of Public Health again noted clusters of positive cases in congregate settings, including in the Philadelphia Department of Prisons (DOP) where, among the 4,134 people incarcerated,27 66 people in custody have tested positive for COVID-19.28 This is a higher rate of infection than seen outside of detention facilities.
46. In an effort to slow the virus’ spread by reducing DOP’s population, the Defender Association of Philadelphia and the Philadelphia District Attorney’s Office are working quickly to get people released from custody.29 Over three days, Philadelphia judges released approximately 240 nonviolent offenders who had completed their minimum sentences and those held on cash bail or with certain “low-level” charges.30 Operating under the same goal, Pennsylvania jails in Bucks and Delaware Counties have reduced their populations by more than 20%. As of March 30, 2020 Bucks County judges had
27 Phila. Dep’t of Prisons, Daily Headcount and Census (Apr. 12, 2020), https://www.phila.gov/media/20200413144245/Prisons-daily-census-20200412.pdf. 28 See Press Release, City of Phila., City Provides Update on COVID-19 for Monday, April 13, 2020 (Apr. 13, 2020), https://www.phila.gov/2020-04-13-city-provides-update-on-covid-19-formonday-april-13-2020/; see also Sarah Reyes, Phila. Dep’t of Prisons, How Philadelphia Dep’t of Prisons is Responding to COVID-19 (Apr. 14, 2020), https://www.phila.gov/2020-03-30-howphiladelphia-department-of-prisons-is-responding-to-covid-19/. 29 Jeremy Roebuck & Chris Palmer, Racing Against a Coronavirus Clock, Philly Courts Release 200+ Jail Inmates in the First Week of Fast-Track Emergency Hearings, Phila. Inquirer (Apr. 11. 2020), https://www.inquirer.com/news/coronavirus-philadelphia-jail-inmate-release-bailinfection-larry-krasner-court-20200411.html. 30 Id.
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released 141 people from custody to create space for a medical isolation unit for inmates
testing positive for the virus.31
47. Transmission in prisons and jails will endanger not only the incarcerated, but also the
broader community. As correctional staff enter and leave the facility, they will carry the
virus with them. Like the incarcerated people in the facilities where they work,
correctional officers face an increased risk of COVID-19 exposure because they are less
able to engage in social distancing and because of the shortage of PPE. Indeed, as of
April 13, the BOP has reported 201 confirmed infections among its prison staff
nationwide.32
48. On an accelerating basis since mid-March of this year, courts in this Circuit and across
the country have ordered the release of inmates and detainees in response to the COVID-
19 crisis.33
31 Jo Ciavaglia, Bucks, Montgomery County Jails Taking Steps to Reduce Inmate Populations, Bucks County Courier Times (Mar. 29, 2020), https://www.buckscountycouriertimes.com/news/20200329/coronavirus-bucks-montgomerycounty-jails-taking-steps-to-reduce-inmate-populations. 32 See Fed. Bureau of Prisons, COVID- 19 (last accessed Apr. 14, 2020), https://www.bop.gov/coronavirus/. 33 See, e.g., United States v. Xue, No. 18-CR-122, ECF 42 (E.D. Pa. Apr. 10, 2020) (ordering pretrial release in light of compelling reason of COVID-19, subject to requirements); United States v. Giordano, No. 14-CR-206, ECF 72 (E.D. Pa. Apr. 10, 2020) (granting release of petitioner with medical conditions rendering him particularly vulnerable to the effects of COVID-19 and that petitioner’s fear of infection while incarcerated far outweighs any likelihood of fleeing); United States v. Rodriguez, No. 03-CR-271, ECF 135 (E.D. Pa. Apr. 1, 2020) (granting motion for compassionate release where the presence of COVID-19, the inmate’s health conditions, the proximity to his release date, and his demonstration of rehabilitation created extraordinary and compelling reasons justifying release); Thakker v. Doll, No. 1:20-CV480, ECF 47 (M.D. Pa. Mar. 31, 2020) (granting release of 14 ICE detainees with chronic medical conditions where plaintiffs established they faced a risk of serious, listing illness or death if COVID-19 spreads within Pennsylvania’s prisons); United States v. Colvin, No. 3:19CR-179, 2020 U.S. Dist. LEXIS 57962 (D. Conn. 2020) (waiving exhaustion requirement and granting motion or compassionate release for vulnerable inmate at FDC Philadelphia where “the
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III. The Efforts of the Bureau of Prisons to Curb the Spread and Lethality of COVID-19 in Federal Jails and Prisons Are Inadequate
49. The Bureau of Prisons (BOP) has failed in every respect to respond appropriately to the ongoing COVID-19 pandemic. The BOP failed to anticipate and prepare for the magnitude of the threat that COVID-19 poses to its own staff and the people it holds; it then failed to respond in any meaningful way to initial signs of uncontrolled outbreaks at several of its facilities across the country; and it has continued to fail to implement even the baseline measures that would assure the safety of its own staff, of Petitioners and their fellow class members and others incarcerated by the BOP, and of the communities into which staff and others travel on a daily basis.
50. The BOP’s preparations were inadequate from the start. Initial guidance from the BOP was not issued until March 9, 2020, and it addressed only the possibility of telework for some employees at an agency where the vast majority of workers must physically appear at facilities to do their jobs, and it mentioned restrictions only for people who had traveled to already-impacted countries.34
51. Moreover, the BOP did not make any changes to protocols that call for inmates to purchase their own cleaning supplies from commissary—shutting out many without the
risks faced by the Defendant will be minimized by her immediate release to home, where she will quarantine herself”); Coronel v. Decker, No. 20 Civ. 2472, ECF 26 (S.D.N.Y. Mar. 27, 2020) (granting release of four detainees with medical conditions that render them particularly vulnerable to severe illness or death if infected by COVID-19); People of State of N.Y. ex rel. Stoughton v. Brann, No. 451078/2020, 2020 NY Slip Op 20081 (N.Y. Sup. Ct. Apr. 6, 2020) (“[C]ommunicable diseases could not ask for a better breeding ground than a crowded prison. . . . Certainly no American prison is equipped to deal with a health crisis of the severity of this one.”). 34 See BOP Memorandum (Mar. 9, 2020), https://cdn.govexec.com/media/gbc/docs/pdfs_edit/031020cb.pdf.
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money on their books to buy those supplies—and for them to maintain responsibility for
cleaning and sanitizing their spaces (whether they have supplies or not).35
52. In fact, as late as March 26—weeks after many cities and states had closed restaurants
and non-essential businesses, restricted travel, and ordered people to shelter in place—the
BOP Director announced that the Bureau had merely taken an inventory of soap, rather
than taken steps to distribute it at no cost or even at a reduced cost.36
53. Because of the BOP’s failure to take the threat seriously or to take meaningful steps to
prepare, stakeholders from every part of the system highlighted preparations that it had
not undertaken, possible dangers faced by employees, and open questions that required
urgent attention and answers.37
54. Similarly, before the BOP began losing control of COVID-19 in its facilities, press
accounts had already highlighted the impending storm.38
55. The manifest failure to prepare by the BOP ensured that when COVID-19 hit facilities, it
hit hard. By the end of March, press accounts described COVID-19 as having
“cripple[d]” FCI Oakdale in Louisiana, where dozens of prisoners tested positive before
35 See, e.g., Inmate Information Handbook, Federal Bureau of Prisons FCI Elkton, Ohio at 9, Bureau of Prisons (2012), https://www.bop.gov/locations/institutions/elk/ELK_aohandbook.pdf. 36 That day the BOP Director issued a statement that “all cleaning, sanitation, and medical supplies have been inventoried. Ample supplies are on hand and ready to be distributed or moved to any facility as deemed necessary.” Federal Bureau of Prisons, Statement from BOP Director (Mar. 26, 2020), available at https://www.bop.gov/resources/news/20200326_statement_from_director.jsp. 37 See Letter from U.S. Senators (Mar. 9, 2020), available at https://www.warren.senate.gov/imo/media/doc/2020-0309%20Senator%20Warren%20Letter%20to%20BOP%20re%20Coronavirus.pdf; see also AFGE Testimony to House Oversight Committee (Mar. 11, 2020), available at https://www.afge.org/globalassets/documents/congressional-testimony/2020/afge-sfr-housecommittee-on-oversight-and-reform-coronavirus-preparedness-and-response.pdf. 38 See, e.g., Michael Balsamo & Michael R. Sisak, Federal Prisons Struggle to Combat Growing COVID-19 Fears, AP (Mar. 27, 2020), https://apnews.com/724ee94ac5ba37b4df33c417f2bf78a2.
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the BOP ceased testing entirely and just presumed that people had COVID-19.39 Even at
best, officials at Oakdale were testing only prisoners who were so sick that they had to be transported to an outside hospital.40 A pending lawsuit seeks immediate relief for at-risk inmates in FCI Oakdale.41
56. Among other failures that contributed to that explosion at Oakdale, officers reported that
even as of late March, they were given only gloves—not masks, face shields, or other PPE—when interacting with prisoners sick enough to be transported to the hospital.42
Those same officers were ordered back to the job in defiance of CDC guidance that
called for self-isolation by correctional staff who had been exposed. Id. And as a result of
that, as of this writing, six prisoners at FCI Oakdale have already died from COVID-19.
57. By the time the BOP stopped testing for COVID-19 at FCI Oakdale, dozens of inmates
had deteriorated to the point of needing to go to local hospitals, straining the local
hospital system, as well. One attorney called contracting COVID-19 at Oakdale “a death sentence.”43
39 Kimberly Kindy, An Explosion of Coronavirus Cases Cripples a Federal Prison in Louisiana, Wash. Post (Mar. 29 2020), available at https://www.washingtonpost.com/national/anexplosion-of-coronavirus-cases-cripples-a-federal-prison-in-louisiana/2020/03/29/75a465c071d5-11ea-85cb-8670579b863d_story.html. 40 Kimberly Kindy, Inside the Deadliest Federal Prison, the Seeping Coronavirus Creates Fear and Danger, Wash. Post (Apr. 10, 2020), available at https://www.washingtonpost.com/national/inside-the-deadliest-federal-prison-the-seepingcoronavirus-creates-fear-and-danger/2020/04/09/deeceb6e-75b4-11ea-a9bd9f8b593300d0_story.html. 41 See Livas v. Myers, No. 1:20-cv-422, ECF 10 (W.D. La. Apr. 13, 2020). 42 Joseph Neff & Keri Blakinger, Federal Prisons Agency “Put Staff in Harm’s Way” of Coronavirus: Orders at Oakdale in Louisiana Help Explain COVID-19 Spread, The Marshall Project (Apr. 3, 2020), https://www.themarshallproject.org/2020/04/03/federal-prisons-agencyput-staff-in-harm-s-way-of-coronavirus. 43 Keegan Hamilton, Vice News, Third Inmate Dies from COVID-19 at Louisiana Prison as Entire Federal System Goes on Lockdown (Apr. 1, 2020),
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58. FCI Oakdale is hardly unique. Federal facilities all over the country—including in the
Mid-Atlantic region—have been similarly overrun with the virus. Facilities with
uncontrolled outbreaks include FCI Danbury, in Connecticut (83 combined positive tests
as of April 14), FCI Butner, in North Carolina (87 combined positives as of April 14 and four inmate deaths), and USP Lompoc, in California (86 combined as of April 14).44
59. Even those numbers do not tell the full story. The BOP has repeatedly understated the
scope of the problem and refused to take steps to assess the situation honestly and openly.
For example, as of April 9, the BOP reported 10 inmates and 9 staff had tested positive at
FCI Elkton, in Ohio. Id. Press accounts, however, reported that medical staffing had
fallen to fifty percent of capacity, and that three inmates had already died as of April 6.
(As of April 14, the BOP now reports 24 inmates and 15 staff and four inmate deaths.)
60. Conditions had deteriorated so thoroughly that the Ohio Governor called in the state’s National Guard to FCI Elkton, a federal prison.45 At the press conference announcing that
decision, Governor DeWine called on the BOP to stop sending new prisoners to FCI
Elkton—a practice that the BOP had purportedly stopped nearly a week earlier, but nevertheless continued.46 And the accuracy of the BOP’s reporting of COVID-19 cases in FCI Elkton is in doubt.47
https://www.vice.com/en_us/article/5dmend/second-inmate-dies-from-covid-19-at-louisianaprison-as-entire-federal-system-goes-on-lockdown. 44 Id. 45 Ohio Gov. Mike DeWine Authorized Ohio National Guard to Assist Elkton Prison, WKYC (Apr. 6, 2020), https://www.wkyc.com/article/news/health/coronavirus/ohio-gov-mike-dewineauthorizes-ohio-national-guard-to-assist-elkton-prison/95-d620f3c6-c560-486f-9eacebce7c09d4e7. 46 Cory Shaffer, Ohio National Guard Will Assist With Response at Elkton Federal Prison, Cleveland.com (Apr. 6, 2020), https://www.cleveland.com/coronavirus/2020/04/ohio-nationalguard-will-assist-with-coronavirus-response-at-elkton-federal-prison.html; see also Brandon Brown, Sen. Portman Urges Prisoners Not to be Transferred to FCI Elkton, WFMJ (Apr. 6,
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61. Unicor, an entity that runs prisoner work programs for the BOP, continued operating
throughout the pandemic and only last week began distributing masks to prisoner workers and correctional officers.48
62. Across facilities, the BOP has been “scrambling” to address staffing and resource needs.
Despite this, the BOP has continued to limit the number of contractors who can supply
PPE, does not have enough tests, and has been sued by its own staff for requiring them to work in hazardous working conditions.49
63. The BOP’s own employees have not only sued across all its facilities—staff at FDC
Philadelphia joined staff from several other facilities in filing an OSHA complaint about the conditions at their facilities.50
64. Among other things, the OSHA complaint points to the BOP having “directed staff
through the Bureau of Prisons who have come in contact with, or been in close proximity
to, inmates who show or have shown symptoms of COVID-19, to report to work and not
be self-quarantined for 14 days per the CDC guidelines.” It also complains of the BOP
having failed to undertake any workplace or administrative controls to address
2020), https://www.wfmj.com/story/41979544/sen-portman-urges-prisoners-not-be-transferredto-fci-elkton. 47 Elkton Union President Reports Different COVID-19 Stats Than Federal Bureau of Prisons, WKVB (Apr. 9, 2020), https://www.wkbn.com/news/coronavirus/elkton-union-presidentreports-different-covid-19-stats-than-federal-bureau-of-prisons/. 48 Cary Aspinwall, Keri Blakinger, & Joseph Neff, Federal Prison Factories Kept Running as Coronavirus Spread, The Marshall Project (Apr. 10, 2020), https://www.themarshallproject.org/2020/04/10/federal-prison-factories-kept-running-ascoronavirus-spread. 49 Luke Barr, Federal Prisons Facing Shortages of Resources Amid Coronavirus Outbreak, ABC News (Apr. 1, 2020), https://abcnews.go.com/Health/federal-prisons-facing-shortages-resourcesamid-coronavirus-outbreak/story?id=69920966. 50 OSHA Complaint (Mar. 31, 2020), available at https://www.afge.org/globalassets/documents/generalreports/coronavirus/4/osha-7-formnational-complaint.pdf.
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transmission, to require social distancing or other measures in the CDC guidance, or to
provide sufficient PPE.
65. Ostensibly responding to that, the BOP released a short document titled “Correcting Myths and Misinformation about BOP and COVID-19.”51 In purporting to rebut the
assertion that staff who had been in contact with inmates who showed symptoms of
COVID-19 still had to come to work, the BOP simply confirmed that such employees would have to come to work, but would have masks.52
66. The Coronavirus Aid, Relief, and Economic Security (CARES) Act, signed into law on
March 27, makes funding available for federal prisons to purchase PPE and test kits for
COVID-19 and authorizes the Justice Department to lengthen the maximum amount of time that a prisoner can be placed in home confinement during the pandemic.53 Acting
under that authority, Attorney General William Barr made a finding that emergency
conditions are materially affecting the functioning of the BOP, and on April 3 he directed
BOP Director Michael Carvajal to review inmates with COVID-19 risk factors to
determine their eligibility for home confinement, stating that the BOP’s efforts to prevent
COVID-19 from entering BOP facilities and infecting inmates have “not been perfectly successful at all institutions.”54
51 See BOP, Correcting Myths and Misinformation About BOP And COVID-19 (Apr. 11, 2020), https://www.bop.gov/coronavirus/docs/correcting_myths_and_misinformation_bop_covid19.pdf. 52 Id. at 3 (“In keeping with CDC ‘Guidance for Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19,’ the BOP performs pre-screening of all employees reporting to work and requires exposed workers to wear a mask for 14 days after last exposure. They are also expected to perform regular self-monitoring for symptoms, practice social distancing and to disinfect and clean their work spaces. Anyone who develops signs or symptoms of illness are sent home.”). 53 CARES Act, Pub. L. No. 116-136, § 12003(b), 134 Stat. 281 (2020). 54 Memorandum from Attorney General Barr to Director Carvajal (Apr. 3, 2020), available at https://www.justice.gov/file/1266661/download.
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67. Attorney General Barr also released a series of belated letters suggesting that some BOP
prisoners should be released.55 Those letters, however, have failed to achieve the desired
effect because they do not make very many people eligible, only encourage the BOP to
exercise discretion that it has declined to use, and do not actually direct release (much
less on a scale that would allow for safe social distancing in the facilities or with the
speed that the health crisis requires). And for those few released, the BOP has not
counted in its numbers those who were released and then subsequently died.
68. The appalling conditions of BOP facilities across the country have forced federal courts
to address BOP failures in a large number of individual cases seeking compassionate
release;56 bail pending appeal, trial, or sentencing;57 delayed self-surrender;58 writs of
habeas corpus;59 class-wide relief for groups of inmates;60 and furloughs.61
55 See Mar. 26, 2020 and Apr. 3, 2020 Memoranda For Director of Bureau Prisons from Attorney General Barr, available at https://www.justice.gov/coronavirus. 56 E.g., United States v. Rodriguez, No. 03-cr-271, ECF 135 (E.D. Pa. Apr. 1, 2020) (granting release after finding risk factors for COVID-19 constitute extraordinary and compelling reason and noting that prisons are “tinderboxes for infectious disease”); United States v. Foster, No. 14cr-324-02, ECF 191 (M.D. Pa. Apr. 3, 2020) (noting the “unprecedented” circumstances facing “our prison system” and finding that COVID-19 is an extraordinary and compelling basis for release; indeed, “[n]o rationale is more compelling or extraordinary”); United States v. Smith, No. 12-cr-133, ECF 197 (S.D.N.Y. Apr. 13, 2020) (granting release; finding exhaustion waivable and waived); United States v. Zukerman, No. 16-cr-194, ECF 116 (S.D.N.Y. Apr. 3, 2020) (waiving exhaustion and granting immediate compassionate release in light of COVID-19 to defendant convicted in multi-million dollar fraud scheme); United States v. Sawicz, No. 08-cr287, ECF 66 (E.D.N.Y. Apr. 10, 2020) (releasing child-pornography offender); United States v. Clagett, No. 97-cr-265, ECF 238 (W.D. Wash. Apr. 9, 2020); United States v. Oreste, No. 14-cr20349, ECF No. 200 (S.D. Fla. Apr. 6, 2020); United States v. Hakim, No. 05-cr-40025, ECF 158 (D.S.D. Apr. 6, 2020); United States v. Hernandez, No. 18-cr-20474, ECF 41 (S.D. Fla. Apr. 2, 2020). 57 E.g., United States v. Chavol, No. 20-50075 (9th Cir. Apr. 2, 2020) (stipulation in a FRAP(9) appeal to release on conditions); United States v. Nkanga, No. 18-cr-713, ECF 120 (S.D.N.Y. Apr. 7, 2020); United States v. Hector, No. 2:18-cr-3-2, ECF 748 (W.D. Va. Mar. 27, 2020); United States v. Kennedy, No. 18-cr-20315, ECF 77 (E.D. Mich. Mar. 27, 2020); United States v. Meekins, No. 18-cr-222, ECF 75 (D.D.C. Mar. 31, 2020).
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69. Rather than address any of this, the BOP has focused instead on spending money on
unproven remedies that medical authorities do not believe work to treat COVID-19.62
70. For all of these reasons, the threat posed to people incarcerated by the BOP remains
ongoing and acute. As of April 14, 2020, at least 388 inmates have tested positive, along
with 201 BOP staff.63 As noted, that understates the scope of the spread because of the
number of facilities that have ceased testing entirely because of a presumption of
transmission. For example, as of April 14 the BOP’s website still listed Oakdale as
58 United States v. Roeder, No. 20-1682, ___ F. App’x ___ (3d Cir. Apr. 1, 2020) (reversing district court’s denial of defendant’s motion to delay execution of his sentence because of the COVID-19 pandemic); United States v. Garlock, No. 18-CR-418, 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (observing that “[b]y now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided”); United States v. Claudio-Montes, No. 10-cr-212, ECF 3374 (D.P.R. Apr. 1, 2020); United States v. Matthaei, No. 19-CV-243, 2020 WL 1443227, at *1 (D. Idaho Mar. 16, 2020) (extending self-surrender date by 90 days in light of pandemic). 59 E.g., Xochihua-James v. Barr, No. 18-71460, ___ F. App’x ___ (9th Cir. Mar. 23, 2020) (sua sponte releasing detainee from immigration detention “in light of the rapidly escalating public health crisis”); Thakker v. Doll, No. 1:20-cv-480, ECF 47 (M.D. Pa. Mar. 31, 2020); United States v. Davis, No. 20-cr-9, ECF 21 (D. Md. Mar. 30, 2020) (releasing defendant because of the “urgent priority” of decarcerating, to protect both the defendant and the community); Fraihat v. Wolf, No. 5:20-CV-590, ECF 18 (C.D. Cal. Mar. 30, 2020). 60 E.g., In re Request to Commute or Suspend County Jail Sentences, Docket No. 084230 (N.J. Mar. 22, 2020) (releasing large class of defendants serving time in county jail “in light of the Public Health Emergency” caused by COVID-19); Basank v. Decker, No. 20-cv-2518, ECF 11 (S.D.N.Y. Mar. 26, 2020) (granting TRO and releasing high-risk plaintiffs because “[t]he nature of detention facilities makes exposure and spread of the [coronavirus] particularly harmful”); Thakker v. Doll, No. 1:20-cv-480, ECF 47 (M.D. Pa. Mar. 31, 2020). 61 E.g., United States v. Stahl, No. 18-cr-694, ECF 53 (S.D.N.Y. Apr. 10, 2020); United States v. Underwood, No. 18-cr-201, ECF 179 (D. Md. Mar. 31, 2020) (noting that although there has not yet been a positive COVID-19 test in elderly petitioner’s facility, “there is significant potential for it to enter the prison in the near future”). 62 Lachlan Markay, The Bureau of Prisons Just Bought a Ton of Hydroxychloroquine, Trump’s COVID-19 Miracle Drug, The Daily Beast (Apr. 7, 2020), https://www.thedailybeast.com/thebureau-of-prisons-just-bought-a-ton-of-hydroxychloroquine-trumps-covid-19-miracle-drug. 63 BOP, COVID-19 Coronavirus, https://www.bop.gov/coronavirus/ (last accessed Apr. 14, 2020).
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having 38 confirmed cases among inmates, a number suspiciously unchanged since March. 71. Notably, the BOP’s own rosy data show that among closed cases, the fatality rates for prisoners in its care may dwarf rates among any other populations. Of cases the BOP has marked as closed as of April 14, 19 inmates have recovered while 13 have died. 72. Even in the midst of the virus’s rapid spread across the country, the BOP persists in transferring detainees between prisons. In their recently filed OSHA complaint, BOP employees report that BOP “continuously mov[es] inmates by bus and/or airlift to various prison sites across the nation. They have authorized movement of infected inmates, inmates suspected of being infected, inmates who have been in close contact or proximity to infected inmates, to areas of the Country that do not have any rate of infections, or to Institutions that otherwise have not shown signs of any introduction of the virus, thus introducing the virus into an uninfected area.”64 In response to ongoing concerns about BOP’s continued transfers, U.S. Representative Fred Keller (PA-12) has introduced the Pausing All New Detention and Ending Movement of Inmates for Coronavirus (PANDEMIC) Act, H.R. 6427. The PANDEMIC Act would require BOP to stop all transfers for the time being. IV. The FDC is Failing to Take Proper Precautions, Placing People at an Increased
Risk 73. The conditions at the FDC pose a heightened public health risk for the spread of COVID-
19 that is even greater than in non-carceral institutions.
64 OSHA Complaint (Mar. 31, 2020), available at https://www.afge.org/globalassets/documents/generalreports/coronavirus/4/osha-7-formnational-complaint.pdf.
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74. The FDC lacks adequate medical infrastructure to address the spread of infectious disease and treat the people most vulnerable to COVID-19.
75. Approximately 1,027 people are held at the FDC. The majority of these people are pretrial detainees, who in non-pandemic times may remain at the FDC for periods ranging from weeks to years. The FDC also holds a substantial number of sentenced inmates, including inmates generally assigned to other facilities who have been brought to Philadelphia on writs, as well as female inmates who have been assigned to the FDC to serve their sentences.
76. Correctional officers, who live all over the Greater Philadelphia area, come in and out of the FDC each day without sufficient medical screening.
77. The FDC’s actions to limit the introduction of sick people into the building have been slow and inadequate.
78. The FDC temporarily halted social visitation and most attorney visitation on or about March 13.
79. Before approximately March 26, the only precautionary measures the FDC took with new detainees were to measure the temperature of new detainees entering the facility and to ask them questions about recent travel. Such steps were woefully inadequate given the public-health advisories already well known by early March cautioning that the virus is commonly spread by asymptomatic people and the particular risks of spread of the virus within jails and prisons.65
65 See, e.g., Roni Caryn Rabin, They Were Infected With the Coronavirus. They Never Showed Signs., N.Y. Times (Feb. 26, 2020) (“‘I don’t think there’s any question that someone who is without symptoms and carrying the virus can transmit the virus to somebody else,’ said Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases.”), available at https://www.nytimes.com/2020/02/26/health/coronavirus-asymptomatic.html.
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80. On or about March 26, the FDC implemented new procedures for new detainees coming into the facility. Under these new procedures, the FDC kept new detainees housed separately from existing detainees for 14 days. However, under these procedures the FDC took no steps to house new detainees separately from one another.
81. On or about April 1, the FDC began a two-week lockdown, during which all detainees are confined to their cells, except for up to one hour per day for use of the shower, email, and telephone.
82. In spite of this lockdown, the FDC continues to accept new arrestees, and corrections officers and other staff continue to come and go to work each day without the ability to quarantine, which continues to present significant risk to FDC detainees. Wearing of masks by staff and inmates did not begin at all until approximately April 1 and has never been more than sporadic. Moreover, the FDC’s delayed and flawed implementation of quarantine protocols before April makes it highly likely the virus has already entered the FDC, in light of the timing of community spread in the Philadelphia area.
83. The structure of the FDC increases the risk of contagion. For example, most detainees are held two per cell, with a shared toilet and sink in each cell. A standard FDC cell is smaller than 100 square feet, which is too small for effective social distancing or selfquarantine precautions as recommended by the CDC.
84. Last week detainees for the first time were given masks, but they still have no gloves. There is no enforcement by staff to require detainees to wear their masks. Staff members have masks and gloves but fail to wear them consistently.
85. Detainees continue to use shared resources outside their cells, including telephones, computers, and showers. These shared resources are ripe for transmission of COVID-19.
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86. Even under the new lockdown, a typical inmate will come into close contact with some 15-20 people per day. In addition, inmates frequently come into contact with surfaces that have been touched by many other people without being sanitized. The FDC has insufficient supplies of disinfectant products for sanitizing surfaces.
87. As such, it is not possible for detained individuals to engage in social distancing or selfquarantine precautions as recommended by the CDC.
88. FDC detainees have limited access to personal-hygiene items such as tissues, soap, alcohol-based disinfectant, sanitary options for drying hands, and gloves. All of these conditions prevent individuals from being able to take CDC-recommended precautions to minimize the spread of the virus.
89. The FDC is not testing inmates for COVID-19. 90. The FDC is not even routinely measuring inmates’ temperatures. 91. People who contract COVID-19 can deteriorate rapidly, even before a test result can be
received. Detainees who do contract COVID-19 are at higher risk for developing acute symptoms than if they were in the community, because the FDC lacks the medical resources to care for symptomatic inmates. V. Petitioners Are Particularly Vulnerable 92. Petitioner Timothy Brown is 46 years old. He has been incarcerated at the FDC since approximately March 28, 2019. Mr. Brown suffers from serious coronary artery disease. He has a 100% blockage in his anterior artery. He has latent tuberculosis and a lifelong history of asthma, which has caused him to have numerous cases of pneumonia. He is obese (5’9” height and 250 pounds). He has a compromised immune system from approximately 20 years of drug addiction. He has twice overdosed, causing his heart to
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stop and requiring him to be brought back to life. His most recent overdose occurred as recently as January 2019. Mr. Brown is critically vulnerable to COVID-19 because of his significant health problems. 93. Petitioner Myles Hannigan is 47 years old. He has been incarcerated at the FDC since approximately February 14, 2020. He has advanced heart disease and coronary artery disease. He has diabetes. He suffers from high blood pressure, high cholesterol, and sleep apnea, all of which the FDC has failed or refused to properly monitor and treat since Mr. Hannigan’s incarceration there began. He has latent TB. Mr. Hannigan is critically vulnerable to COVID-19 because of his significant health problems. 94. Petitioner Anthony Hall is 46 years old and has been incarcerated at the FDC since approximately September 12, 2016. Mr. Hall suffers from renal failure and hypertension. Mr. Brown is critically vulnerable to COVID-19 because of his significant health problems.
LEGAL ALLEGATIONS
I. Section 2241 is an Appropriate Vehicle to Address Unconstitutional Conditions of Confinement
95. Section 2241(c)(3) authorizes courts to grant habeas corpus relief when a person is “in custody in violation of the . . . laws or treaties of the United States.” The Third Circuit has long allowed § 2241 to challenges regarding “‘conditions’ of [] confinement.” Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005) (granting habeas petition alleging that the BOP must consider in good faith whether the petitioner could complete the last six months of his sentence in a Community Corrections Center rather a Federal Correctional Institution). Courts have allowed challenges solely on the basis of
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detention conditions that pose a threat to petitioners’ medical wellbeing. See e.g., Roba v. United States, 604 F.2d 215, 218–19 (2d Cir. 1979) (approving the use of Section 2241 to challenge a prisoner’s transfer where that transfer created a risk of fatal heart failure). Given the plain language of § 2241, courts are authorized to grant relief both to pretrial detainees and convicted inmates because both are “in custody” within the meaning of the statute. See Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003) (explaining that “the Fourteenth Amendment affords pretrial detainees protections ‘at least as great as the Eighth Amendment protections available to a convicted prisoner’”) (quoting City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)); see also Kingsley v. Hendrickson, 135 S. Ct. 2466, 2475 (2015) (explaining that “pretrial detainees (unlike convicted prisoners) cannot be punished at all. . . .”). 96. In response to COVID-19, courts have delayed or canceled individuals’ entry into criminal custody. See, e.g., United States v. Garlock, No. 18-CR-418-VC-1, 2020 WL 1439980 (N.D. Cal. Mar. 25, 2020) (sua sponte extending criminal defendant’s surrender date because “[b]y now it almost goes without saying that we should not be adding to the prison population during the COVID-19 pandemic if it can be avoided” given “the health risks—to inmates, guards, and the community at large—created by large prison populations”); Waterkeeper All. Inc. v. Spirit of Utah Wilderness, Inc., No. 10-CV-1136, 2020 WL 1332001, at *1 (S.D.N.Y. Mar. 23, 2020) (extending criminal defendant’s surrender date “[i]n light of recent COVID-19 pandemic affecting New York” and related directives from court’s chief judge); United States v. Barkman, Case No. 3:19-cr-52, 2020 U.S. Dist. LEXIS 45628, at *1, *3 (D. Nev. Mar. 17, 2020) (suspending confinement order because “[c]onditions of pretrial confinement create the ideal
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environment for the transmission of contagious disease”); United States v. Raihan, No. 20-cr-68, Dkt. No. 20 at 10:12–19 (E.D.N.Y. Mar. 12, 2020) (ordering that criminal defendant continue on pretrial release rather than be remanded to detention center due, in part, to court’s recognition of the fact that “[t]he more people we crowd into that facility, the more we’re increasing the risk to the community”). 97. In this case, the unconstitutional threat to Petitioners’ health and life posed by being held in Respondent’s custody is ongoing, not simply imminent. Every hour that Petitioners are held in the FDC, they are at a significantly elevated risk of contracting coronavirus, and because of their medical conditions, their risk of dying from coronavirus is significant. II. Respondent’s Failure to Take Steps to Mitigate Transmission of Coronavirus
Constitutes Deliberate Indifference to the Serious Medical Needs of Plaintiffs 98. Respondent is violating Petitioners’ Fifth and Eighth Amendment rights by continuing to
incarcerate them in conditions where it is virtually impossible to take steps to prevent transmission of an infectious disease that may prove deadly because of Petitioners’ vulnerable conditions. 99. All people held in the FDC, whether convicted or not, are entitled to be protected from conditions of confinement that create a serious risk to health or safety, including through release from custody when necessary. Brown v. Plata, 563 U.S. 493, 531-32 (2011) (upholding lower court’s order releasing people from state prison even though release was based on prospect of future harm caused by prison overcrowding); see also Farmer v. Brennan, 511 U.S. 825, 834 (correctional official violates Eighth Amendment by consciously failing to prevent “a substantial risk of serious harm”); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (“deliberate indifference” to serious medical needs violate the Eighth Amendment).
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100. Petitioner Myles Hannigan has been sentenced and therefore his treatment is governed by the Eighth Amendment; Petitioner Timothy Brown is awaiting trial and Petitioner Anthony Hall is awaiting sentencing, and they are therefore protected from deliberate indifference by the Fifth Amendment. Although pretrial (including presentenced) class members are entitled to at least as much protection from unsafe conditions as sentenced class members, see Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979) (“Due process requires that a pretrial detainee not be punished.”), for present purposes the distinction is immaterial because Respondent’s continued detention of the class plainly violates both the Eighth and Fifth Amendments.
101. The threat of exposure to a deadly infectious disease such as COVID-19 constitutes a serious risk to health, particularly for the Petitioners and the vulnerable class members described herein. Helling v. McKinney, 509 U.S. 25, 34 (1993) (noting with approval Eighth Amendment claims based on exposure to serious contagious diseases). Under the FDC’s current conditions, Respondent has not and cannot protect Petitioners and the class from this risk of serious harm. In these circumstances, increased release to home confinement is required to protect Petitioners and other inmates with high-risk health conditions from unconstitutional treatment.
102. Government officials act with deliberate indifference when they “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” even when “the complaining inmate shows no serious current symptoms.” Helling, 509 U.S. at 33. This Court need not “await a tragic event” to find that Respondent is maintaining unconstitutional conditions of confinement. Id.
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Instead, showing that the conditions of confinement “pose an unreasonable risk of serious damage to [Petitioners’] future health” is sufficient. Id. at 35. 103. The reach of the Fifth and Eighth Amendments includes “exposure of inmates to a serious, communicable disease.” Helling, 509 U.S. at 33; see also Karolis v. N.J. Dep’t of Corr., 935 F. Supp. 523, 527 (D.N.J. 1996) (“[P]rison officials have an affirmative duty to protect inmates from infectious disease.”) (citations omitted). The Third Circuit Court of Appeals has even allowed prisoners to maintain a cause of action for mental anguish suffered as a result of exposure to tuberculosis, even when the risk had subsided. Plummer v. United States, 580 F.2d 72 (3rd Cir. 1978). 104. In this case, as established by the facts above, Petitioners face a significant risk of exposure to coronavirus, with the attendant risk of death that follows given their vulnerable conditions. Respondent is well aware of this risk, having been alerted to it by the CDC, the Attorney General, (belated) Agency guidance, and widespread news reporting. Indeed, the Second Circuit Court of Appeals, unprompted, acknowledged the “grave and enduring” risk posed by COVID-19 in the correctional context. Fed. Defs. of New York, Inc. v. Fed. Bureau of Prisons, No. 19-1778, __ F.3d __, 2020 WL 1320886, at *12 (2d Cir. Mar. 20, 2020); see also Jovel v. Decker, No. 20 Civ. 308, 2020 WL 1467397, at *1 (S.D.N.Y. Mar. 26, 2020) (finding “extraordinary circumstances” of COVID-19 pandemic justified release of immigration detainee from federal detention). 105. Finally, as established above, Respondent has not taken steps sufficient to protect Petitioners from the grave risks that are present every moment they are in detention in the FDC. Respondent simply is not capable of managing the risk to Petitioners in the FDC’s current environment. Whether judged under the Fifth or Eighth Amendment, Respondent
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is holding Petitioners in violation of the Constitution by detaining them in the face of significant threats to their health and safety without taking sufficient steps to prevent that harm. III. The Number of People Currently in the Facility Ensures that Respondents
Cannot Implement Recommended Measures Required to Protect Petitioners’ Health, and Violates the Fifth and Eighth Amendments 106. As alleged above, the BOP has thus far failed to implement effective social distancing across its facilities, including the FDC, often with disastrous effects. Part of this failure reflects the nature of correctional confinement, but in Philadelphia, part owes to the particular circumstances of FDC Philadelphia’s capacity and population. 107. While a facility like FDC Philadelphia might not be overcrowded under normal circumstances, emergency situations sometimes render an otherwise constitutionallyacceptably-populated facility overcrowded relative to its maximum safe capacity. 108. The current FDC population of approximately 1,000 detainees might not present a constitutional problem in ordinary circumstances, but that population in the context of the ongoing pandemic ensures that effective social distancing is impossible, and it stymies Respondent’s ability to follow and implement the CDC Interim Guidance and other viraltransmission prevention measures. 109. Courts have long found that facilities’ populations may exacerbate existing harms entirely unrelated to the fact of crowding itself, including cases where populations may inhibit a facility’s ability to mitigate detainees’ risk of contracting dangerous diseases. The Supreme Court itself has recognized that correctional defendants can violate the Eighth Amendment when they crowd prisoners into cells with others who have “infectious maladies.” Helling v. McKinney, 509 U.S. 25, 33 (1993); see also Hutto v.
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Finney, 437 U.S. 678, 682-85 (1978) (recognizing the need for a remedy where prisoners were crowded into cells and some had infectious diseases). 110. Subsequent decisions have recognized that such crowding need not occur solely at the cell level, and indeed can happen across facilities. See Lareau v. Manson, 651 F.2d 96 (2d Cir. 1981) (medical services strained by overcrowding could amount to a constitutional violation); see also Plata v. Brown, 2013 WL 3200587, *8-10 (N.D. Cal. June 24, 2013). That Plata Court ordered removal of prisoners at elevated risk of Valley Fever from prisons where Valley Fever was prevalent and where those prisoners faced an elevated risk of contracting it. Other prisons facing outbreaks of diseases that pose a higher risk to detained populations than to non-incarcerated people generally, and to incarcerated people with certain underlying medical conditions in particular, have forestalled court orders by taking proactive steps to move certain people out of the riskiest facilities. See Hines v. Youseff, 914 F.3d 1218, 1224-25 (9th Cir. 2019). 111. Such decisions make particular sense in light of substantial corroborating evidence that transmission becomes more likely in light of, among other factors, relative crowding of people together. See, e.g., Joseph A. Bick, Infection Control in Jails and Prisons, 45 Clinical Infectious Diseases 1047, 1047 (Oct. 2007) (“The probability of transmission of potentially pathogenic organisms is increased [in jails and prisons] by crowding, delays in medical evaluation and treatment, rationed access to soap, water, and clean laundry, [and] insufficient infection-control expertise.”), available at https://bit.ly/2QZA494. 112. In this case, Petitioners face an elevated risk of disease both because of particular failures on the part of Respondents as alleged above, and because of the number of people in the facility. The current population of FDC Philadelphia, both of detained and sentenced
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inmates and the staff who come through on a daily basis and work in the same confined space, ensures that any effective measures that would mitigate Petitioners’ exposure to COVID-19 are impossible. 113. As noted, Respondents are well aware of the risk faced by Petitioners. Respondents’ failure to take any steps to address the crowding-related exacerbation of the underlying risk of transmission to Petitioners provides another basis for relief in this case.
CLASS ACTION ALLEGATIONS 114. Petitioners bring this representative habeas action pursuant to 28 U.S.C. § 2241 and as a
class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure and Local Civil Rule 23.1 on their own behalf and on behalf of all persons similarly situated. 115. Petitioners seek to represent a class consisting of all current and future pretrial detainees, presentenced detainees, and sentenced inmates in custody at the FDC during the course of the COVID-19 pandemic (the “Class”). 116. The members of the Class are too numerous to be joined in one action, and their joinder is impracticable. Upon information and belief, the class exceeds 1,000 individuals. 117. Common questions of law and fact exist as to all Class members and predominate over questions that affect only the individual members. These common questions of fact and law include but are not limited to: (1) whether the conditions of confinement described in this Petition amount to constitutional violations; (2) what measures Respondent has taken and is taking in response to the COVID-19 crisis; (3) whether Respondent has implemented and is implementing an adequate emergency plan during the COVID-19 crisis; (4) whether Respondent’s practices during the COVID-19 crisis have exposed and are exposing detainees at the FDC to a substantial risk of serious harm; (5) whether the
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Respondent has known of and disregarded a substantial risk of serious harm to the safety and health of the Class; and (6) what relief should be awarded to redress the harms threatened to members of the Class as a result of the conditions. 118. Absent class certification, individuals detained at the FDC during the COVID-19 pandemic would face a series of barriers in accessing the relief sought. The FDC has suspended visitation and FDC detainees have limited access to communication with the outside world, impeding their ability to obtain legal representation and pursue litigation. And a large portion of the Class has limited educational backgrounds and financial means. 119. Respondent’s practices and the claims alleged in this Petition are common to all members of the Class. 120. The claims of Petitioners are typical of those of the Class. Petitioners are threatened with imminent inhumane conditions of confinement at the FDC. 121. The legal theories on which Petitioners rely are the same or similar to those on which all Class members would rely, and the harms suffered by them are typical of those suffered by all the other Class members. 122. Petitioners will fairly and adequately protect the interests of the Class. The interests of the Class representatives are consistent with those of the Class members. In addition, counsel for Petitioners are experienced in class action and civil rights litigation and in criminal law. 123. Counsel for Petitioners know of no conflicts of interest among Class members or between the attorneys and Class members that would affect this litigation.
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FIRST CAUSE OF ACTION (Fifth and Eighth Amendments) 124. Petitioners incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 125. Petitioners bring this claim on their own behalf and on behalf of the Class. 126. The Due Process Clause of the Fifth Amendment guarantees pretrial detainees the right to be detained in a safe situation, free from punitive conditions of confinement. See U.S. Const. Amend V. The government violates that guarantee where a widespread outbreak of a contagious disease subjects detainees to inhumane conditions without adequate protection. The government also violates that guarantee when it acts in ways that do not rationally relate to a legitimate governmental objective. 127. The Eighth Amendment guarantees sentenced inmates the right to necessary and adequate medical care. See U.S. Const. Amend VIII. The Government’s failure to provide adequate medical care in response to a widespread outbreak of a contagious disease constitutes deliberate indifference to the serious medical needs of detainees, thereby establishing a violation of the Eighth Amendment to the United States Constitution. 128. Because of the conditions at the FDC, Petitioners are not able to take steps to protect themselves—such as social distancing, using hand sanitizer, or washing their hands regularly—and the government has not provided adequate protections. As COVID-19 rapidly spreads at the FDC, the already deplorable conditions at the FDC will be exacerbated, and detainees will have no ability to protect themselves from this disease. 129. Respondent’s failure to adequately protect Petitioners from these punitive conditions, or release them from the conditions altogether, constitutes an egregious violation of
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Petitioners’ due process rights and deliberate indifference to the serious medical needs of Petitioners, and all members of the Class, thereby establishing violations of the Fifth and Eighth Amendments to the United States Constitution. 130. Respondent was aware or should have been aware of these conditions, which were and are open and obvious throughout the entire FDC. 131. Respondent knew of and disregarded an excessive risk to health and safety. 132. Respondent failed to act with reasonable care to mitigate these risks, subjecting Petitioners to a grave and serious risk of harm of serious illness, permanent injury, or death. 133. Because Respondent failed to act to remedy Petitioners’ and the Class’s degrading and inhumane conditions of confinement in violation of their Fifth and Eighth Amendment rights, Petitioners seek relief under this Writ of Habeas Corpus Petition and Class Action Complaint. 134. Because of the unlawful conduct of Respondent, Petitioners and the Class are threatened with imminent physical injury, pain and suffering, emotional distress, humiliation, and death.
RELIEF REQUESTED WHEREFORE, Petitioners and the Class members respectfully request that the Court enter a class-wide judgment:
A. Ordering immediate release of vulnerable persons to home confinement, with appropriate precautionary public health and safety measures, including Petitioners Brown, Hannigan, and Hall, and all others confined at the FDC whom Respondent has identified as medically vulnerable by virtue of their underlying health conditions
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or age (Vulnerable Persons)—and therefore at higher risk of developing serious COVID-19 illness; B. Ordering Respondent to mitigate the serious risk of illness, death, and harm from COVID-19 to those who remain confined at the FDC; C. Certifying this Petition as a Class Action; D. Appointing a Special Master on an emergency basis to Chair a Coronavirus Release Committee to evaluate Vulnerable Persons and make recommendations for ameliorative action for other persons at the FDC; and E. Ordering such other and further relief as this Court deems just, proper and equitable.

Respectfully submitted,
Mary M. McKenzie, Pa. Bar No. 47434 Benjamin D. Geffen, Pa. Bar No. 310134 PUBLIC INTEREST LAW CENTER 1500 JFK Blvd., Suite 802 Philadelphia, PA 19102 Tel: 215-627-7100 mmckenzie@pubintlaw.org bgeffen@pubintlaw.org
Jim Davy, Pa. Bar No. 321631 2362 E. Harold Street Philadelphia, PA 19125 Tel: 609-273-5008 jimdavy@gmail.com

/s/ Linda Dale Hoffa Linda Dale Hoffa, Pa. Bar No. 34063 Margaret Spitzer Persico, Pa. Bar No. 320178 DILWORTH PAXSON LLP 1500 Market St. Suite 3500E Philadelphia, PA 19102-2101 Tel: 215-275-7000 Fax: 215-575-7200 lhoffa@dilworthlaw.com
Counsel for Petitioners and Proposed Class Members

Dated: April 15, 2020

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 Case 2:20-cv-01914-AB Document 20 Filed 04/24/20 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TIMOTHY BROWN, et al., Petitioners,
v. SEAN MARLER,
Respondent.

:

:

CIVIL ACTION

:

No. 20-1914

:

:

:

April 24, 2020

MEMORANDUM

Anita B. Brody, J.

On April 15, 2020, three detainees in the Philadelphia Federal Detention Center

(“FDC”)—Timothy Brown, Myles Hannigan, and Anthony Hall (“Petitioners”)—filed a petition

for writ of habeas corpus under 28 U.S.C. § 2241, challenging conditions of confinement at the

FDC in light of the current COVID-19 outbreak. They seek to represent a class of all current and

future FDC detainees, including pretrial detainees, convicted detainees awaiting sentence, and

sentenced detainees. They argue that their confinement in the FDC violates the Fifth and Eighth

Amendments. They ask the Court to (1) release all medically vulnerable detainees to home

confinement; (2) order the FDC to take steps that will mitigate the COVID-related risks for those

detainees who remain confined; and (3) appoint a Special Master to chair a Coronavirus Release

Committee, which would make recommendations on release decisions and mitigation of prison

conditions. Respondent Sean Marler—the FDC warden—has filed a motion to dismiss the

petition under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). He argues that the Court

lacks subject-matter jurisdiction under § 2241 and that the petition is meritless. Petitioners

disagree.

Before the Court can reach the parties’ merit-based arguments, it must determine the

threshold question of whether it has subject-matter jurisdiction. District courts have the authority

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to order limited jurisdictional discovery when facts related to subject matter jurisdiction are in dispute. Petitioners seek discovery as to the conditions of the FDC, including an on-site inspection from a neutral investigator. Respondent objects to this inspection request, arguing that the Court lacks jurisdiction under § 2241, and thus lacks the power to order an inspection or any other discovery. More importantly, Respondent also argues that any on-site inspection could have dangerous consequences by disrupting the careful measures the BOP has put in place to prevent a COVID-19 outbreak from occurring at the FDC.
Because the Court has not yet determined whether it has jurisdiction, it certainly is premature to consider an on-site inspection.1 Limited jurisdictional discovery as to the FDC’s conditions is appropriate at this stage, however, to evaluate whether “extraordinary circumstances” justify exercising § 2241 jurisdiction over the pretrial detainees at the FDC. See Reese v. Warden Philadelphia FDC, 904 F.3d 244, 246 n.2 (3d Cir. 2018) (recognizing that “exceptional circumstances” may—in rare situations—justify consideration of a federal detainee’s pretrial § 2241 petition). I. Discussion
A large portion of the detainees at the Federal Detention Center are awaiting trial. Resp’t. Mot. to Dismiss, at 24 n.12 (ECF No. 12-2). As a general rule, a “federal detainee’s request for release pending trial can only be considered under the Bail Reform Act and not under a § 2241 petition for habeas relief.” Reese, 904 F.3d at 245 (3d Cir. 2018). Respondent cites
1 The Court appreciates the Respondent’s willingness to provide prompt information as to the conditions of the FDC, and his recognition that “both this Court and the public deserve to know . . . that federal prison officials are taking all steps in their power to fulfill their duty both to protect the public and to preserve the health and safety of the inmates in their charge.” Resp’t. Mot. to Dismiss, at 1 (ECF No. 12-2). It also takes seriously Respondent’s concern that making exceptions to the FDC’s no-visitor policy could affect the prison’s ability to execute its strategy for containing the virus.

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Reese to argue that this Court lacks § 2241 jurisdiction over the FDC’s pretrial detainees.2
However, “[t]he Supreme Court has suggested that pretrial habeas relief might be available to a
federal defendant in ‘exceptional circumstances.’” Id. at 246 n.2 (citations omitted)). As the
Third Circuit has explained:
Neither the Supreme Court nor this Court has delineated the circumstances that might qualify as “exceptional” in this context. . . . We have ruled that a state prisoner may pursue a pretrial § 2241 petition without exhausting state remedies in “extraordinary circumstances,” which might exist when there is a showing of “delay, harassment, bad faith, or other intentional activity” on the part of the state. Moore v. DeYoung, 515 F.2d 437, 447 n.12 (3d Cir. 1975). We need not delimit the precise bounds of any exception here . . . .
Reese, 904 F.3d at 246 n.2.3
2 Respondent assumes that under Reese’s rule, courts lack jurisdiction over pretrial § 2241 habeas petitions. That is likely mistaken. The same general rule—that absent exceptional circumstances, courts should not entertain pretrial § 2241 habeas petitions—exists in the state-prisoner context. Third Circuit and Supreme Court cases discussing the rule in that context make clear that courts do possess pretrial habeas jurisdiction. They also make clear that the rule stems not from a lack of jurisdiction but rather from equitable considerations that counsel against exercising that jurisdiction. See, e.g., Ex parte Royall, 117 U.S. 241, 247, 251 (1886) (recognizing that a federal court “ha[d], by the express words of the [habeas corpus statute,] jurisdiction” over a state prisoner’s pretrial habeas petition, but concluding that the court “is not bound in every case to exercise such a power”); Fay v. Noia, 372 U.S. 391, 418(1963) (noting that the Royall decision “plainly stemmed from considerations of comity rather than power” and led to a line of cases “fashion[ing] a doctrine of abstention,” that do not “defin[e] power but [instead] . . . relate[] to the appropriate exercise of power” (citations and internal quotation marks omitted)); Moore v. DeYoung, 515 F.2d 437, 442-43 (3d Cir. 1975) (discussing Royall and Noia and concluding that “federal courts have ‘pre-trial’ habeas corpus jurisdiction,” but also that this jurisdiction “should not be exercised at the pre-trial stage unless extraordinary circumstances are present.” (emphasis added)). Section 2241(c)(3)’s words—and Congress’s textual grant of jurisdiction—are the same when a federal prisoner uses them as they are when a state prisoner uses them. Cf. Medina v. Choate, 875 F.3d 1025, 1027 (10th Cir. 2017) (“[I]t is not surprising that a respect for federal-court procedure—similar to the respect for state-court procedures expressed in Ex parte Royall—has led to decisions rejecting the use of habeas corpus by federal prisoners awaiting federal trial.” (citations omitted)). But the Court need not fully resolve this question here. If Reese’s rule is not based on a lack of jurisdiction, the Court may order limited discovery to inform the exercise of power that it possesses. If the rule is jurisdictional, the Court may order limited discovery to determine whether jurisdiction exists in the first place.
3 For the relevant language of the Supreme Court cases Reese references, see Jones v. Perkins, 245 U.S. 390, 391 (1918) (“It is well settled that in the absence of exceptional circumstances in criminal cases the regular judicial procedure should be followed and habeas corpus should not be granted in advance of at trial.” (emphasis added)); Johnson v. Hoy, 227 U.S. 245, 247 (1913) (“The writ of habeas corpus is . . . not available to a defendant before trial, except in rare and exceptional cases . . . .” (emphasis added)); see also Riggins v. United States, 199 U.S. 547, 551 (1905) (vacating order granting pretrial habeas relief to federal detainees because there was “nothing in this record to disclose that there were any special circumstances which justified a departure from the regular course of judicial procedure” (emphasis added)).

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To be sure, this exception is extremely rare. See id. (“If a federal prisoner is ever entitled to relief under § 2241 based on something that happened before trial, the circumstances are so rare that they have apparently not yet arisen.” (quoting Medina v. Choate, 875 F.3d 1025, 1026 (10th Cir. 2017))). “But the unfolding global pandemic and health crisis . . . are anything but typical.” Hope v. Warden York Cty. Prison, --- F.3d ----, 2020 WL 1922372, at *2 (3d Cir. Apr. 21, 2020). “These . . . are not ordinary times. . . . [T]he COVID-19 pandemic has given rise to exceptional and exigent circumstances that require the prompt attention of the courts . . . .” United States v. Roeder, --- F. App’x. ----, 2020 WL 1545872, at *3 (3d Cir. Apr. 1, 2020).
COVID-19 has forced courts across the country to grapple with elusive legal standards that ask whether “extraordinary and compelling” or “exceptional” circumstances exist. In two recent opinions, the Third Circuit has provided thoughtful and important guidance on how to carry out that task. In United States v. Raia, the Third Circuit stated that “the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release” under 18 U.S.C. § 3852(c)(1)(A), which allows for such release if “extraordinary and compelling” circumstances exist. --- F.3d ----, 2020 WL 1647922, at *2 (3d Cir. Apr. 2, 2020) (emphasis added). Similarly, in United States v. Roeder, the Court stated that “[t]he existence of some health risk to every federal prisoner as a result of this global pandemic does not, without more, provide the sole basis for granting release to each and every prisoner within our Circuit.” --- F. App’x. ----, 2020 WL 1545872, at *3 n.16 (3d Cir. Apr. 1, 2020) (emphasis added).
Applied to this case, the lessons of Raia and Roeder are clear: the abstract specter of COVID-19 alone is not enough—this Court must engage in a careful and fact-specific assessment of whether “exceptional circumstances” at the FDC justify the exercise of § 2241

Case 2:20-cv-01914-AB Document 20 Filed 04/24/20 Page 5 of 8
jurisdiction over the FDC’s pretrial detainees. But both sides must have a chance to present facts
to inform the Court’s decision on this question.
It is well-established that “[d]istrict courts have the authority to allow discovery in order
to determine whether subject-matter jurisdiction exists.” Lincoln Ben. Life Co. v. AEI Life, LLC,
800 F.3d 99, 108 (3d Cir. 2015). “[P]arties should be granted a fair opportunity to engage in
jurisdictional discovery so as to adequately define and submit to the court facts necessary for a
thorough consideration” of preliminary issues relating to subject matter jurisdiction. Federal Ins.
Co. v. Richard I. Rubin & Co., Inc., 12 F.3d 1270, 1284 n.11 (3d Cir. 1993); see also Maqaleh v.
Hagel, 738 F.3d 312, 325-26 (D.C. Cir. 2013), vacated in part on unrelated grounds sub nom.
al-Najar v. Carter, 575 U.S. 908 (2015) (noting—in the context of a § 2241 habeas petitioner’s
request for jurisdictional discovery—that the “district court has discretion to allow discovery if it
could produce [facts] that would affect [its] jurisdictional analysis” alterations in original)
(internal quotation marks omitted)); Rules Governing Section 2254 Cases, Rule 6(a) (amended
Dec. 1, 2019) (“A judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of discovery.”).4 As Respondent
himself recognizes, “the Court is not restricted to the face of the pleadings, but may review any
4 Rule 6 applies to § 2241 proceedings. See Rules Governing Section 2254 Cases, Rule 1(b) (amended Dec. 1, 2019) (“The district court may apply any or all of these rules to a habeas corpus petition not covered by Rule 1(a) [which covers § 2254].”); Levi v. Holt, 192 F. App’x 158, 162 (3d Cir. 2006) (“Rule 6 . . . appl[ies] . . . to 2241 cases.” (citing Rule 1(b)); see also Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir. 1987) (“Under Rule 6(a) . . . the district court has discretion to decide the extent to which discovery is appropriate.”); Maqaleh, 738 F.3d at 325-26 (D.C. Cir. 2013) (stating the same in support of proposition that district courts have discretion to allow jurisdictional discovery (citations omitted)). Petitioners have shown “good cause” to justify limited jurisdictional discovery for the reasons expressed in the body of this opinion. They have also complied with Rule 6(b)’s procedural requirements. See Rule 6(b) (requiring requesting party to provide reasons for discovery request that includes proposed interrogatories, requests for admission, and requests for specific documents); see also Pet’rs’ Resp. Br., at 28-30 (ECF No. 17) (setting forth reasons why “good cause” exists for discovery); id., Ex. A (ECF No. 17-1) (specific interrogatory requests); id., Ex. B, at 5-7 (ECF No. 17-2) (specific document requests). The Court has not yet ruled on the specifics of these discovery requests. In light of this opinion, the parties will have the chance to present a new, tailored jurisdictional discovery plan. Of course, the Court will also review any specific objections, and is holding a telephone conference on Monday, April 27, 2020, at 3:00pm.

Case 2:20-cv-01914-AB Document 20 Filed 04/24/20 Page 6 of 8
evidence to resolve factual disputes concerning the existence of jurisdiction.” Resp’t. Mot. to
Dismiss, at 5 (ECF No. 12-2) (internal quotation marks omitted).5
For the pretrial detainees in Petitioners’ proposed class, a key jurisdictional question
under Reese is whether “exceptional circumstances” exist at the FDC that justify the exercise of
§ 2241 jurisdiction. The parties paint drastically different pictures of the FDC, and depending on
which is credited, the case for exercising jurisdiction strengthens or weakens. Respondent says
that the FDC currently has no positive COVID-19 cases and that no inmates are exhibiting
symptoms; Petitioners say that since the FDC is not testing inmates for COVID-19, there is no
way to know if this claim is true.6 Respondent says that, despite a full lockdown that bars
attorneys from entering the FDC, all pretrial detainees have adequate access to counsel and are
able to effectively file individual motions for relief under the Bail Reform Act; Petitioners say
that detainees cannot access counsel or the court so as to effectively utilize Bail Reform Act
motions.7
5 Only “factual” challenges, not “facial” challenges, permit consideration of evidence beyond the face of the pleadings on a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. See Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial challenge does not dispute the facts in the complaint, whereas a factual challenge “attacks the factual allegations underlying the complaint’s assertion of jurisdiction, either through the filing of an answer or otherwise present[ing] competing facts.” Id. (alteration in original) (internal quotation marks omitted)). Respondent makes clear that he is raising a factual challenge to the Court’s jurisdiction. See Resp’t. Mot. to Dismiss, at 14 (arguing that no “exceptional circumstances” exist to justify exercising pretrial § 2241 habeas jurisdiction); id. at 1-2, 6-13 (providing a detailed factual rebuttal to Petitioner’s version of the facts); id. at 5 (arguing that the Court may consider facts beyond Petitioner’s complaint to resolve Respondent’s jurisdictional challenge). 6 Additionally, although Respondent states that “[n]o in inmate has required testing, and no inmate appears to be exhibiting symptoms,” he never states whether the FDC has tests available to it, and if so, how many. Marler Decl., ¶ 4 (ECF No. 12-5). 7 This consideration may be paramount. Respondent argues that habeas is inappropriate because another avenue of relief exists: individual review under the Bail Reform Act. If COVID-19 is preventing detainees from properly and promptly accessing counsel or the court, that fact would weigh in favor of finding that “extraordinary circumstances” may justify exercising pretrial § 2241 jurisdiction. On the other hand, if Respondent is correct that detainees are adequately able to access counsel and the court under the current circumstances, that would cut the other way.

Case 2:20-cv-01914-AB Document 20 Filed 04/24/20 Page 7 of 8
The FDC is on lockdown and is not allowing lawyers in or out of the facility. Without limited jurisdictional discovery, there is no way for Petitioners to respond to Respondent’s factual assertions that no “extraordinary circumstances” exist at the FDC. In our adversarial system, basic considerations of procedural fairness require that both sides “be granted a fair opportunity to engage in jurisdictional discovery so as to adequately define and submit to the court facts necessary for a thorough consideration” of “critical preliminary determination[s]” related to jurisdictional disputes. Federal Ins. Co., 12 F.3d at 1284 n.11. The existence of a public health emergency cannot lead the Court to abandon this principle.
The Court appreciates Respondent’s prompt effort to provide information on the FDC’s efforts to respond to COVID-19 and recognizes the monumental challenge that the disease has presented to the BOP, as well as the around-the-clock effort that the BOP appears to have engaged in so far throughout this crisis. But the Court cannot rely on one party’s word without giving the other party a fair chance to rebut it. That is especially important here, where “[d]ue to continuously changing circumstances surrounding the COVID-19 pandemic, it is unclear to what extent [the BOP’s] measures have been or will be effective . . . .” Roeder, 2020 WL 1545872, at *2. Just as the FDC deserves a chance to argue that no “extraordinary circumstances” justify pretrial exercise of § 2241 jurisdiction, Petitioners should have the chance to make an opposing argument. Without limited jurisdictional discovery, they cannot do so. II. Conclusion
The Court will allow Petitioners to engage in limited discovery—on an expedited basis— to gain more information relevant to the jurisdictional question of whether “extraordinary circumstances” exist at the FDC. Given the concerns Respondent has raised over allowing an in-

Case 2:20-cv-01914-AB Document 20 Filed 04/24/20 Page 8 of 8
person, on-site inspection, the Court will not order such an inspection. The Court reserves decision on Respondent’s motion to dismiss.

Copies VIA ECF 04/24/2020

_s/ANITA B. BRODY, J.____ ANITA B. BRODY, J.

 
 Case 2:20-cv-01914-AB Document 12 Filed 04/20/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TIMOTHY BROWN, MYLES HANNIGAN, and ANTHONY HALL,
Petitioners, v.
SEAN MARLER, Respondent.

No. 2:20-cv-01914

Respondent’s Motion to Dismiss the Petition and Class Action Complaint The Court should dismiss petitioners’ “Complaint—Class Action for Declaratory
and Injunctive Relief and Petition for Writs of Habeas Corpus” (Doc. 1) for lack of subject matter jurisdiction. As to detainees Anthony Hall and Timothy Brown, Third Circuit precedent precludes the use of a petition for writ of habeas corpus under 28 U.S.C. § 2241. Instead, they must follow the procedures of the Bail Reform Act. Hall has filed such a motion and it was denied today by Judge Beetlestone, who presides over his criminal proceedings (in an opinion that bars Hall’s personal claim here). As to petitioner Myles Hannigan, who is serving his sentence, he may not challenge the conditions of his confinement through a § 2241 petition. Instead, he is free to file a request with the Bureau of Prisons for compassionate release or home confinement, as he has done, and seek any appropriate review of the BOP’s decision.
In any event, Petitioners cannot establish any violation of their Fifth Amendment or Eighth Amendment rights arising out of current conditions at the Federal Detention Center (“FDC”). As set forth in detail in the attached declaration of respondent Sean Marler, the FDC’s warden, Bureau of Prisons (“BOP”) staff nationwide and at the FDC

Case 2:20-cv-01914-AB Document 12 Filed 04/20/20 Page 2 of 3
have taken an escalating series of steps to avoid the transmission of COVID-19 into or within the facility. Moreover, BOP case management staff are urgently reviewing all inmates to determine which ones meet the criteria established by the Attorney General for possible home confinement.
Even if petitioners could show that the conditions of their confinement are in any way unconstitutional, the Prison Litigation Reform Act, 18 U.S.C. § 3626 (“PLRA”), expressly precludes any single United States district judge from ordering the release of a prisoner based on prison conditions. The PLRA also narrowly circumscribes the permissible scope of any injunctive relief or ongoing supervision relating to prison conditions, and the relief requested by petitioners is well outside those bounds. Further, the petitioners’ allegations of Fifth and Eighth Amendment violations fail to state a claim, nor have petitioners exhausted administrative remedies as required by the PLRA. Accordingly, the complaint must be dismissed, and certainly no discovery should proceed at this time.
Additionally, the Court should strike petitioners’ class allegations. The determination of whether to release a pretrial detainee, presentenced detainee, or sentenced inmate to home confinement is uniquely unsuited to class determination, as it requires individualized consideration based on the characteristics of the inmate, his sentence, and the risk to public safety if he is released. Such a class action would be entirely antithetical to criminal law. Petitioners’ unique characteristics show that they are not typical or representative of “all current and future pretrial detainees,
2

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presentenced detainees, and sentenced inmates in custody at FDC during the course of

the COVID-19 pandemic.” Pet. ¶ 115.

The Court should dismiss the petition and leave petitioners free to pursue their

administrative remedies, or raise appropriate individualized challenges with the judicial

officer overseeing their criminal proceedings.

Respectfully submitted,

Dated: April 20, 2020

/s William M. McSwain WILLIAM M. McSWAIN United States Attorney

/s Susan R. Becker for GBD GREGORY B. DAVID Assistant United States Attorney Chief, Civil Division

/s Robert A. Zauzmer ROBERT A. ZAUZMER Assistant United States Attorney Chief of Appeals

/s Landon Y. Jones III LANDON Y. JONES III REBECCA MELLEY Assistant United States Attorneys 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106-4476 landon.jones@usdoj.gov Tel.: (215) 861-8323/8328 Fax: (215) 861-8618

3

Case 2:20-cv-01914-AB Document 12-1 Filed 04/20/20 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TIMOTHY BROWN, MYLES HANNIGAN, and ANTHONY HALL,
Petitioners, v.
SEAN MARLER, Respondent.

No. 2:20-cv-01914

[Proposed] Order AND NOW this _____ day of ___________________, 2020, upon consideration of petitioners’ “Complaint—Class Action for Declaratory and Injunctive Relief and Petition for Writs of Habeas Corpus” (Doc. 1) and respondent’s motion to dismiss, it is ORDERED that the motion to dismiss is GRANTED. It is FURTHER ORDERED that the petition and class-action complaint is dismissed in its entirety for lack of subject matter jurisdiction.

BY THE COURT:
________________________________ HONORABLE ANITA B. BRODY Judge, United States District Court

Case 2:20-cv-01914-AB Document 12-2 Filed 04/20/20 Page 1 of 50

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TIMOTHY BROWN, MYLES HANNIGAN, and ANTHONY HALL,
Petitioners, v.
SEAN MARLER, Respondent.

No. 2:20-cv-01914

Respondent’s Brief in Support of Motion to Dismiss the Petition and Class Action Complaint

Case 2:20-cv-01914-AB Document 12-2 Filed 04/20/20 Page 2 of 50
TABLE OF CONTENTS I. Introduction ............................................................................................................. 1 II. Standard of Review .................................................................................................. 5 III. Background: The BOP’s Response to the COVID-19 Pandemic.............................. 6
1. Action Plan for COVID-19 – Phase One ............................................ 7 2. Action Plan for COVID-19 – Phase Two ............................................ 8 3. Action Plan for COVID-19 – Phase Three ....................................... 10 4. Action Plan for COVID-19 – Phase Four ......................................... 10 5. Action Plan for COVID-19 – Phase Five ........................................... 11 6. Action Plan for COVID-19 – Phase Six ............................................ 12 IV. Petitioners may not challenge their custody through a § 2241 action challenging prison conditions.................................................................................................... 13 A. Detainees Brown and Hall may only seek release under the Bail Reform Act................................................................................................................ 13 B. Hannigan may not challenge the conditions of his confinement under § 2241........................................................................................................... 18 C. No “outside the box” process can avoid the individualized review mechanisms described above. .................................................................... 23 V. Petitioners’ challenge to prison conditions may not proceed absent presentation of an appropriate claim and exhaustion of administrative remedies. .................. 26 A. Courts are ill-equipped to administer prisons and Congress has substantially limited their authority in this arena...................................... 26 B. Petitioners have not exhausted the available administrative remedies.....28 VI. Petitioners cannot establish any violation of their Fifth or Eighth Amendment rights....................................................................................................................... 32 A. The constitutional violations alleged require deliberate indifference. ...... 32 B. Petitioners are not subject to an unreasonable risk of harm at the FDC. .. 34

Case 2:20-cv-01914-AB Document 12-2 Filed 04/20/20 Page 3 of 50 C. The BOP has not shown deliberate indifference and has taken appropriate
measures to protect the health of inmates at the FDC and the public. ...... 35 VII. Even if Petitioners could establish constitutional violations, the PLRA bars the
broad relief that Petitioners seek. ..........................................................................38 A. The PLRA precludes a single district court judge from ordering release of a
prisoner based on prison conditions. ......................................................... 39 B. More broadly, the PLRA precludes district courts from ordering broad
injunctive relief or supervision. .................................................................. 41 VIII. The Court should strike petitioners’ class allegations. .......................................... 43 IX. No institution-wide or agency-wide discovery is appropriate here. ..................... 45 X. Conclusion .............................................................................................................. 47
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I. Introduction This effort by criminal defendants to seek release from prison through a civil
action, and to direct the management of a prison, is inappropriate and impermissible for numerous legal reasons, which will be explored in depth. But first, at this moment of great national peril, both this Court and the public deserve to know and can be reassured that federal prison officials are taking all steps in their power to fulfill their duty both to protect the public and to preserve the health and safety of the inmates in their charge. So we begin with an overview of the extraordinary actions the Bureau of Prisons has taken in recent months. They bear no relation to the uninformed allegations of the petitioners’ complaint.
The complaint begins with the assertion that the Federal Detention Center in Philadelphia “has been slow—dangerously slow—to adopt the basic life-saving precautions that have become familiar parts of life beyond its walls. As of this filing, conditions in the FDC remain appallingly hospitable to the spread of COVID-19.” Complaint at 1. This is a wholly inaccurate statement. BOP has in fact taken exhaustive measures at the FDC to protect inmates and staff against COVID-19, with marked success to date. We appreciate that COVID-19 is an insidious infectious disease, and that it may enter the prison and indeed any facility at any time. But it is fair at this point, six weeks into the crisis, to pause to recognize and commend the work that BOP has done. As of this writing, there are 9,214 documented cases of COVID-19 in the City of Philadelphia, with, sadly, 365 deaths. As there are approximately 1.6 million residents of the city; that is an incidence rate of approximately 1 of every 173 residents. At the same time, the FDC has 1,017 inmates and 229 staff members, and not one of them has been diagnosed with COVID-19 as of this time. See Declaration of Sean Marler (“Marler

Case 2:20-cv-01914-AB Document 12-2 Filed 04/20/20 Page 5 of 50
Decl.”) ¶ 4. That cannot and did not happen by accident. It happened because of the rigorous and unprecedented steps that will be described in this brief.
BOP, through strenuous efforts, has achieved similar success elsewhere, in the face of enormous challenges. As of April 19, there were 495 known infections (and tragically, 22 inmate deaths), in a national inmate population of 154,000. Close to twothirds of the 144 BOP institutions and residential reentry centers, like FDC Philadelphia, have yet to report a single case. All of this is the product of a sustained, all-hands-ondeck campaign to prevent disease in the most challenging time prison officials have faced in our lifetime.
Fortunately, the concerns expressed by this Court at the outset of the pandemic— that BOP might soon lose control of its institutions in relation to the disease, see United States v. Rodriguez, 2020 WL 1627331, at *8-10 (E.D. Pa. Apr. 1, 2020)—have not come to fruition. While there have been outbreaks at a number of BOP institutions, it is now apparent, additional weeks into the crisis, that BOP is succeeding at the moment in protecting most of its facilities; in rapidly responding to and suppressing outbreaks where they occur (as in Oakdale, Louisiana, where the first outbreak emerged but the situation has been stabilized for weeks); and in general maintaining both an incidence rate and growth rate well below that observed in the nation at large and particularly in hard-hit areas. It may be that well-run prisons, with the ability to take extraordinary measures and isolate from the outside world, provide a firmer barrier against this horrible disease.1
1 In New York City, addressing the situation at MDC Brooklyn, Judge Loretta A. Preska made similar observations last week, stating:
2

Case 2:20-cv-01914-AB Document 12-2 Filed 04/20/20 Page 6 of 50
To repeat, we are not Pollyannas; we know the situation can change. But if that
happens, it will be despite the dedication of the tens of thousands of BOP employees
who are fighting this battle. Based on the efforts BOP has made, and the clear results so
far over a sustained time period, there is no basis whatsoever for the allegations in the
petition, for the wholesale release of criminal offenders, or for relieving federal prison
officials of their necessary liberty to make real-time decisions regarding prison
management. Not surprisingly, these remedies are barred in this action as a matter of
law, such that the petition should be dismissed.
The Defendant has offered no evidence to suggest the MDC and the BOP more broadly are not taking seriously the pandemic or his own personal medical history. To the contrary, as set out in the Government’s papers, the BOP has made significant efforts to respond, and these measures have provided quite successful so far. As of April 7, the MDC – where Rodriguez is housed – reported a total two inmates who tested positive for COVID-19. The MDC houses 1,734 total inmates. . . . That means that approximately 0.12% of MDC inmates have been confirmed to have COVID-19. By way of contrast, New York City had an estimated population of 8,398,748 as of July 2018. . . . As of today 76,876 cases of COVID-19 had been diagnosed in New York City. . . . That means that 0.91% of the New York City population has been diagnosed with COVID-19.
All of these steps belie any suggestion that the BOP is failing meaningfully to address the risks posed by COVID-19 or take seriously the threat the pandemic poses to current inmates. To the contrary, it shows that the BOP has taken the threat very seriously, and has mitigated it to an extraordinary degree.
United States v. Rodriguez, 2020 WL 1866040, at *3 (S.D.N.Y. Apr. 14, 2020).
Judge Preska’s statement, and the information presented below in this brief, make clear the complete inaccuracy of the assertions that appear throughout the petition. See, e.g., Pet. ¶ 49 (“The Bureau of Prisons (BOP) has failed in every respect to respond appropriately to the ongoing COVID-19 pandemic. The BOP failed to anticipate and prepare for the magnitude of the threat that COVID-19 poses to its own staff and the people it holds; it then failed to respond in any meaningful way to initial signs of uncontrolled outbreaks at several of its facilities across the country; and it has continued to fail to implement even the baseline measures that would assure the safety of its own staff, of Petitioners and their fellow class members and others incarcerated by the BOP, and of the communities into which staff and others travel on a daily basis.”).
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Chief Judge Smith’s words in the compassionate release context apply with equal force here: “We do not mean to minimize the risks that COVID-19 poses in the federal prison system, particularly for inmates like Raia. But the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release, especially considering BOP’s statutory role, and its extensive and professional efforts to curtail the virus’s spread.” United States v. Raia, -- F.3d --, 2020 WL 1647922, at *2 (3d Cir. Apr. 2, 2020). The same is true of the petitioners’ bid for release, and their assertion that this Court, and even a Special Master, should intervene in prison operations. No such measures are justified or allowed.
With respect to release, that matter is governed exclusively by criminal law. No inmate may obtain release from custody on the basis of a challenge brought under 28 U.S.C. § 2241 to prison conditions. Rather, petitioners Brown and Hall may challenge the pretrial detention orders under which they are held, under the Bail Reform Act. Hall, indeed, has done so, and in an order earlier today, Judge Beetlestone denied relief. As will be discussed, she rejected precisely the same Eighth Amendment argument on which his petition here is based. See Ex. B. Indeed, Hall is a convicted murderer with numerous felony drug convictions and at least two violations of parole, who has been convicted in this Court and faces a guideline range sentence of 360 to 960 months. Brown likely also will not succeed if he petitions the trial court. He faces a mandatory minimum sentence of 10 years’ imprisonment if convicted, and he was a fugitive in a county case at the time of his arrest. There are obvious reasons these men are detained under the Bail Reform Act, notwithstanding the current health crisis. As for petitioner Hannigan, who is a sentenced prisoner, he may seek an administrative remedy of
4

Case 2:20-cv-01914-AB Document 12-2 Filed 04/20/20 Page 8 of 50
transfer to home confinement, an action committed by statute exclusively to the authority of BOP; or he may ask first BOP and then his sentencing judge (Judge Kenney) for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). His prospects are not good, either. Hannigan is only two months into a 52-month sentence, and there are strong reasons, provided to this Court under seal, for his continued custody. The U.S. Attorney’s Office stands prepared to promptly address the status of any FDC inmate, but it must be done under the requirements of criminal law.
As for the request for review of prison management, that may be sought only in a civil rights action, which would be subject to the Prison Litigation Reform Act, and demands exhaustion of administrative remedies that the plaintiffs have entirely bypassed.
For all of these reasons and the further reasons explained below, the petition should be dismissed. II. Standard of Review
This motion to dismiss is made pursuant to rule 12(b)(1) of the Federal Rules of Civil Procedure. At issue in a Rule 12(b)(1) motion to dismiss is the trial court’s jurisdiction, its very power to hear the case. See Norman v. United States, 1996 WL 377136, at *1 (E.D. Pa. July 3, 1996) (quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884 (3d Cir. 1977)). Because the Court’s jurisdiction is itself in dispute, “the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Morris v. Gonzales, 2007 WL 2740438, *2 (E.D. Pa. Sept. 19, 2007). Thus, the Court “‘is not restricted to the face of the pleadings, but may review any evidence to resolve factual disputes concerning the existence of jurisdiction.’” Id. (citing Cestonaro v. United States, 211 F.3d 749, 752 (3d Cir. 2000)). The petitioner bears the
5

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burden of proving that jurisdiction does in fact exist. See id. (citing Mortensen, 549 F.2d at 891); Kehr Packages Inc. v. Fidelcor Inc., 926 F.2d 1406, 1409 (3d Cir. 1991).
In the alternative, this motion is made pursuant to Rule 12(b)(6). Under Rule 12(b)(6), the Court must accept all factual allegations as true, construe the petition in the light most favorable to the petitioner, and determine whether, under any reasonable reading of the petition, the petitioner may be entitled to relief. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted). A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). “[L]abels and conclusions” are not enough, and a court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555 (citation omitted). III. Background: The BOP’s Response to the COVID-19 Pandemic.
The Federal Bureau of Prisons (“BOP”) has been monitoring and tracking the spread of COVID-19 since January 2020 when the first cases of the illness caused by the novel coronavirus appeared in the United States. Marler Decl. ¶ 16. Recognizing the threat that this virus could pose to its inmate population, the BOP organized its national pandemic response into a multiphase “Action Plan,” implementing a variety of protocols in response to the rapidly shifting landscape of this pandemic across the United States. Id. ¶¶ 14-31. Among other things, the BOP has, on a nationwide basis: implemented screening requirements for inmates and staff; temporarily suspended social visits, legal visits, inmate transfers, official travel, and contractor access; updated its quarantine and
6

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isolation procedures; and instituted a “modified operations” plan, which directs BOP facilities to adjust their daily operations in a manner that permits inmates to engage in physical distancing while in common areas, such as during mealtimes and recreation. Id.; see also id. ¶¶ 5-13.
The BOP’s response, detailed below, has occurred over six distinct “phases” to date, which are set out in the attached declaration of FDC Warden Sean Marler. See generally id. ¶ 15-31. The BOP will continue to modify and adjust its response as circumstances change, and at the guidance and direction of health authorities.
1. Action Plan for COVID-19 – Phase One In January 2020, the BOP began Phase One of its Action Plan for COVID-19.2 Phase One activities included, among other things, seeking guidance from the BOP’s Health Services Division regarding COVID-19 and its symptoms, where in the United States infections were occurring, and the best practices to mitigate its transmission. In addition, an agency task force was established to begin strategic planning for COVID-19 BOP-wide. This strategic planning included building on the BOP’s existing procedures for pandemics, such as implementing its pre-approved Pandemic Influenza Plan. From
2 See https://www.bop.gov/resources/news/20200313_covid-19.jsp. The BOP has explained that “[m]aintaining safety and security of BOP institutions is [the BOP’s] highest priority.” BOP, Updates to BOP COVID-19 Action Plan: Inmate Movement (Mar. 19, 2020), available at https://www.bop.gov/resources/news/20200319_ covid19_update.jsp. Indeed, BOP has had a Pandemic Influenza Plan in place since 2012. Id.; BOP Health Services Division, Pandemic Influenza Plan-Module 1: Surveillance and Infection Control (Oct. 2012), available at https://www.bop.gov/resources/pdfs/pan_flu_module_1.pdf. That protocol is lengthy and detailed, establishing a framework requiring BOP facilities to begin preparations when there is first a “suspected human outbreak overseas.” Id. at i. The plan addresses social distancing, hygienic and cleaning protocols, and the quarantining and treatment of symptomatic inmates. It guided BOP’s initial response.
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January 2020 through the present, the BOP has been coordinating its COVID-19 efforts with subject-matter experts both inside and outside of the agency, including implementing guidance and directives from the World Health Organization (“WHO”), the Centers for Disease Control and Prevention (“CDC”), the Office of Personnel Management (“OPM”), the Department of Justice (“DOJ”), and the Office of the Vice President.
2. Action Plan for COVID-19 – Phase Two On March 13, 2020, the BOP implemented “Phase Two” of its Action Plan.3 Phase Two put into place a number of restrictions across all BOP facilities over a 30-day period, to be reevaluated upon the conclusion of that time period. Specifically, the BOP suspended the following activities for a period of 30 days, with certain limited exceptions: social visits; legal visits; inmate facility transfers; official staff travel; staff training; contractor access; volunteer visits; and tours. To help ensure inmates maintained social ties, the BOP increased the telephone allotment to 500 minutes per month. At that time, the FDC implemented procedures to allow necessary legal visitation and increased legal calls so that inmates could maintain contact with their counsel. The Legal Department is the point of contact for legal visitation. An attorney may contact Staff Attorney Alisha Gallagher, who will review the request to determine urgency and the need for an in-person visit. Warden Marler has the final authority to approve visits. The Unit Managers continue to review requests for legal calls and their staff provide the
3 See https://www.bop.gov/resources/news/20200313_covid-19.jsp. 8

Case 2:20-cv-01914-AB Document 12-2 Filed 04/20/20 Page 12 of 50
calls. There has been no change to the mail procedures and inmates continue to receive mail and can contact their attorneys via email and monitored phone line.
In addition, during Phase Two, inmates were subjected to new screening requirements. Specifically, all newly arriving BOP inmates were screened for COVID-19 symptoms and “exposure risk factors,” including, for example, if the inmate had traveled from or through any high-risk COVID-19 locations (as determined by the CDC), or had close contact with anyone testing positive for COVID-19. Asymptomatic inmates with exposure risk factors were quarantined, and symptomatic inmates with exposure risk factors were isolated and evaluated for possible COVID-19 testing by local BOP medical providers.
Staff were also subjected to enhanced health screening in areas of “sustained community transmission,” as determined by the CDC. Pennsylvania was designated a “sustained community transmission” state on March 19, 2020, and the FDC implemented this enhanced screening for staff and contractors at that time. The enhanced screening measures required all staff to self-report any symptoms consistent with COVID-19, as well as any known or suspected COVID-19 exposure, and further required all staff to have their temperature taken upon entry into any BOP facility.
Finally, in addition to the measures listed above, the BOP implemented national “modified operations” in order to maximize social distancing within BOP facilities. These modifications included staggered meal times and staggered recreation times, for example, in order to limit congregate gatherings. Additionally, the BOP established a set of quarantine and isolation procedures for known or potential cases of COVID-19.
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3. Action Plan for COVID-19 – Phase Three On March 18, 2020, the BOP implemented Phase Three of the COVID-19 Action Plan for BOP locations that perform administrative services (i.e., non-prison locations), which followed DOJ, Office of Management and Budget, and OPM guidance for maximizing telework.4 In this phase, individuals who had the ability to telework and whose job functions did not require them to be physically present were directed to begin teleworking. Because of the mission of the FDC, teleworking is not an option for its staff. Additionally, as part of this phase, and in accordance with the Pandemic Influenza contingency plan, BOP inventoried all cleaning, sanitation, and medical supplies.5
4. Action Plan for COVID-19 – Phase Four On March 26, 2020, the BOP implemented Phase Four of its Action Plan.6 In Phase Four, the BOP revised its preventative measures for all institutions. Specifically, the agency updated its quarantine and isolation procedures to require all newly admitted inmates to the BOP, whether in areas of sustained community transmission or not, to be assessed using a screening tool and temperature check. This screening tool and temperature check applied to all new intakes, detainees, commitments, prisoners returned on writ from judicial proceedings, and parole violators, regardless of their method of arrival. Thus, all new arrivals to any BOP institution—even those who were
4 https://www.bop.gov/resources/news/pdfs/20200324 _bop_press_release_covid19_update.pdf. 5 https://www.bop.gov/resources/news/pdfs/20200324 _bop_press_release_covid19_update.pdf. 6 https://www.bop.gov/resources/news/20200331_covid19_action_plan_5.jsp.
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asymptomatic—were placed in quarantine for a minimum of 14 days or until cleared by medical staff. Symptomatic inmates were placed in isolation until they tested negative for COVID-19 or were cleared by medical staff as meeting CDC criteria for release from isolation.
At the FDC, an empty housing unit (“7 North”) was opened as a quarantine unit. Guidance was provided to staff on the proper personal protective equipment to be utilized while on this housing unit and interacting with inmates. The unit is restricted to those staff necessary to provide the mission of the unit. Inmates on this unit are restricted to their cell except when escorted by a staff member for showers, phone calls, or video court proceedings. Inmates are monitored twice a day by health services staff for symptoms of COVID-19. After 14 days, if the inmate has not developed symptoms, he/she is then placed into the general population.
5. Action Plan for COVID-19 – Phase Five On March 31, 2020, the BOP Director ordered the implementation of Phase 5 of its COVID-19 Action Plan, which took effect on April 1, 2020.7 Specifically, the Director ordered the following steps to be taken: 1. For a 14-day period, inmates in every institution will be secured in their
assigned cells/quarters to decrease the spread of the virus. 2. During this time, to the extent practicable, inmates should still have access to
programs and services that are offered under normal operating procedures, such as mental health treatment and education. 3. In addition, the BOP is coordinating with the United States Marshals Service (“USMS”) to significantly decrease incoming movement during this time. 4. After 14 days, this decision will be reevaluated and a decision made as to whether or not to return to modified operations.
7 https://www.bop.gov/resources/news/20200331_covid19_action_plan_5.jsp 11

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5. Limited group gathering will be afforded to the extent practical to facilitate commissary, laundry, showers, telephone, and Trust Fund Limited Computer System (“TRULINCS”8) access.
Phase Five was implemented at the FDC on April 1, 2020, and remains in effect. Thus, all inmates at the FDC are confined to their cells for the majority of each day. Inmates are permitted to leave their cells in small groups on a rotating basis at designated times in order to engage in activities such as showers, phones, and TRULINCS. For meals, inmates are released in small groups to retrieve their meals and then return to their cells.
This modification to the BOP’s action plan is based on health concerns, not disruptive inmate behavior. Inmates may be outside their cells in these small groups for approximately an hour per day. During these time periods, inmates have been directed to maintain appropriate physical distancing.
On April 6, 2020, additional social distancing measures were implemented in all facilities. All staff members and inmates were issued surgical masks to be used in interaction with persons when social distancing was not possible. Masks were issued to staff members and inmates on April 6, 2020, and are reissued weekly.
6. Action Plan for COVID-19 – Phase Six On April 13, 2020, the BOP Director ordered implementation of Phase 6 of its COVID-19 Action Plan.9 Specifically, the Bureau continued its nationwide action as
8 TRULINCS is the internal Bureau computer and electronic message platform that inmates use to communicate with staff in the institutions and individuals in the community. Through this platform, inmates receive updates and notices, and can read inmate bulletins posted on the system by Bureau staff. 9 https://www.bop.gov/resources/news/pdfs/20200414_ press_release_action_plan_6.pdf.
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described in the Phase 5 Action Plan until May 18, 2020. Additionally, the suspension of visitation was extended until May 18, 2020. All staff training and official travel was suspended until May 31, 2020. All staff and inmates will continue to be issued face masks and strongly encouraged to wear an appropriate face covering when in public areas when social distancing cannot be achieved.
In addition to all of these measures, the independent Inspector General of the Department of Justice has been and will continue to engage in inspections of BOP facilities to assure compliance with necessary steps. IV. Petitioners may not challenge their custody through a § 2241 action challenging prison conditions.
In their pleading, which is presented as a habeas claim under 28 U.S.C. § 2241, the petitioners seek two remedies: (1) the immediate release to home confinement of all persons vulnerable to adverse outcomes from COVID-19; and (2) intervention in prison management to compel the respondent “to mitigate the serious risk of illness, death, and harm from COVID-19 to those who remain confined at the FDC.” Pet. at 39-40. Neither remedy may be achieved in this action as a matter of law. We begin with the first.
A. Detainees Brown and Hall may only seek release under the Bail Reform Act.
The absence of jurisdiction under § 2241 to achieve release of a detainee is indisputable: Under binding Third Circuit precedent, “a federal detainee’s request for release pending trial can only be considered under the Bail Reform Act and not under a § 2241 petition for habeas relief.” Reese v. Warden Philadelphia FDC, 904 F.3d 244, 245 (3d Cir. 2018) (affirming dismissal of § 2241 petition). Section 2241 confers authority on district courts to entertain applications for a writ of habeas corpus filed by prisoners claiming to be in custody in violation of the Constitution or laws or treaties of
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the United States. Id. at 246. But, “even in cases where the habeas court has the authority to grant relief, it must consider whether this be a case in which that power ought to be exercised.” Id. (quotations omitted).
“Courts have consistently refused to exercise their habeas authority in cases where federal prisoners have sought relief before standing trial.” Id. Instead, “Courts have long stressed that defendants should pursue the remedies available within the criminal action.” Id.
Here, the Bail Reform Act applies equally to Brown, a pretrial detainee, and Hall, a post-trial detainee awaiting sentencing. See 18 U.S.C. § 3141(a) and (b). Although the Third Circuit has never found such circumstances to be present, a showing of “delay, harassment, bad faith or other intentional activity” on the part of the state can potentially constitute an “exceptional circumstance” rendering habeas relief available to a pretrial detainee. Id. at 246 n.2. There is no such allegation here. And while the current COVID-19 pandemic is certainly extraordinary in its impact on society, it has not precluded the ability of detainees to invoke the procedures of the Bail Reform Act. Indeed, Hall has filed such a motion under the Bail Reform Act with Judge Beetlestone. See Doc. 982, No. 15-CR-00496-WB-9. Judge Beetlestone, who presided over Hall’s two criminal trials, has great familiarity with Hall and his conduct and was best positioned to consider his request for release. The motion was filed, responded to, and denied in a thoughtful opinion, all within a matter of days. Indeed, the filing of this duplicative, procedurally improper habeas petition by all petitioners amounts to little more than improper judge-shopping.
The Bail Reform Act permits detention before trial if “the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of
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the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e)(1). The issue is laser-focused on the facts of the individual case, which is why the class action proposed here is so inconceivable under the law. The court must consider, among other factors, the nature and circumstances of the offense charged, the weight of the evidence against the person, and the history and characteristics of the person (including her “character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings”). 18 U.S.C. § 3142(f).
The standard is more stringent after conviction, and before sentencing, at which time the court may only release a person upon “clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community,” § 3143(a)(1), and the release of some offenders is barred entirely unless the court also finds that “there is a substantial likelihood that a motion for acquittal or new trial will be granted; or . . . an attorney for the Government has recommended that no sentence of imprisonment be imposed on the person,” § 3142(a)(2), which are rare circumstances indeed.
The latter provision applies to petitioner Hall. On November 5, 2019, after a jury trial, he was convicted of conspiracy to distribute a mixture and substance containing phencyclidine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A), and two counts of possession with intent to distribute phencyclidine, in violation of 21 U.S.C. § 841(a)(1). As the government explained to Judge Beetlestone, these crimes – controlled substance offenses for which a maximum term of imprisonment of ten years
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or more is prescribed – carry a presumption of detention under § 3142(f)(1)(C) and (D) and therefore essentially require detention after conviction under § 3143(a)(2).
For good measure, Hall is a convicted murderer with numerous felony drug convictions and at least two violations of parole. He appears to have shot someone in his house during the course of the wiretap used in the investigation underlying his current criminal proceedings. (This conduct has not been charged, but the United States intends to present such testimony and evidence at Hall’s sentencing hearing.) Moreover, the advisory guideline range in Hall’s case is 360 to 960 months. He obviously presents both a risk of flight and a danger to the community. Hall sought release to home confinement on the ground that he is vulnerable to COVID-19 due to alleged renal failure and hypertension. The government opposed his motion for release for the reasons stated here, see Doc. 982, No. 15-CR-00496-WB-9, and earlier today, Judge Beetlestone denied it, see Ex. B. As she has presided over his case for four years, including two jury trials, she was uniquely well-suited to consider his request for relief.
As for petitioner Brown, he is awaiting trial before Judge Jones. Brown was indicted in March 2019 and charged with distribution of methamphetamine (two counts) and possession with intent to distribute methamphetamine, all in violation of 21 U.S.C. § 841(a)(1); and aiding and abetting, in violation of 18 U.S.C. § 2. At the time of his arrest, he had two prior federal convictions and was a fugitive from Lehigh County on charges of possession with intent to distribute a controlled substance. See Doc. 7, No. 19-cr-155. The United States therefore moved to detain him pending trial because he is both a danger to the community and a flight risk; Brown stipulated to pretrial detention and Judge Strawbridge ordered it. If convicted of all charges, he faces a mandatory minimum of 10 years’ imprisonment and a maximum of life in prison. Without regard to
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whether he presents a danger to the community or presents a flight risk, he now seeks release to home confinement based on alleged coronary artery disease, latent tuberculosis, asthma, obesity, and a history of drug addiction. He has not filed a motion under the Bail Reform Act for release with Judge Jones, who presides over Brown’s criminal proceeding and is the judicial officer with the greatest familiarity with his case.
If Brown or any other detainee moves for release in light of COVID-19, the government will respond, taking all circumstances into account, and each assigned judge will rule. Judge DuBois’ recent, thorough opinion denying one such motion, in United States v. Stevens, 2020 WL 1888968 (E.D. Pa. Apr. 16, 2020), is another illustration, like Hall’s case, of the required approach and assessment. (There, the court denied release pending sentencing of an FDC inmate who was convicted of violent offenses, notwithstanding his possible vulnerability to COVID-19 as a result of his age and diabetic condition.)
The Attorney General has recently issued guidance to federal prosecutors concerning “Litigating Pre-Trial Detention Issues During the COVID-19 Pandemic.” See Memorandum, at 1 (Apr. 6, 2020), attached as Exhibit A. That guidance makes clear that “the current COVID-19 pandemic requires that [prosecutors] ensure [they] are giving appropriate weight to the potential risks facing certain individuals from being remanded to . . . custody.” Id. Thus, although the Department’s “paramount obligation” is to “[p]rotect[ ] the public,” prosecutors must also “consider the medical risks associated with individuals being remanded into . . . custody during the COVID-19 pandemic.” Id. at 1-2. Prosecutors “should consider not seeking detention to the same degree [they] would under normal circumstances,” and must weigh “the risk of flight and seriousness of the offense . . . against the defendant’s vulnerability to COVID-19.”
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Id. at 2. Likewise, “these same considerations should govern [prosecutors’] litigation of motions filed by detained defendants seeking release in light of the pandemic.” Id. Such a defendant’s “risk from COVID-19 should be a significant factor in [each prosecutor’s] analysis[.]” Id.
Heeding this guidance, this office has already responded, each time in a matter of days, to dozens of motions for release filed by FDC detainees on the basis of the threat of COVID-19, and will continue to do so. There is a plain available remedy for all such claims. This § 2241 action provides this Court with no jurisdiction to supplant it.
B. Hannigan may not challenge the conditions of his confinement under § 2241.
Petitioner Hannigan is differently situated from Hall and Brown in that he has been sentenced. In his situation, Third Circuit caselaw is equally clear that he may not challenge the conditions of confinement through a § 2241 action.
Hannigan wishes to change the terms of his sentence to home confinement in light of the pandemic, and the fact that he purportedly suffers from heart disease, diabetes, high blood pressure, high cholesterol, and sleep apnea.
However, “‘a judgment of conviction that includes [a sentence of imprisonment] constitutes a final judgment’ and may not be modified by a district court except in limited circumstances.” Dillon v. United States, 560 U.S. 817, 825 (2010). As the Supreme Court has recognized, finality is an important attribute of criminal judgments, and one “essential to the operation of our criminal justice system.” Teague v. Lane, 489 U.S. 288, 309 (1989) (plurality opinion). Accordingly, it is well established that once a district court has pronounced sentence and the sentence becomes final, the court has no inherent authority to reconsider or alter that sentence. Rather, it may do so only
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pursuant to statutory authorization. See, e.g., United States v. Addonizio, 442 U.S. 178, 189 & n.16 (1979). The Third Circuit has made emphatically clear that a court has jurisdiction to alter a sentence only as specifically permitted by statute. United States v. Washington, 549 F.3d 905, 917 (3d Cir. 2008).
Consistent with that principle of finality, 18 U.S.C. § 3582(c) provides that a court generally “may not modify a term of imprisonment once it has been imposed,” except in three circumstances: (1) upon a motion for reduction in sentence under 18 U.S.C. § 3582(c)(1)(A); (2) “to the extent otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure,” 18 U.S.C. § 3582(c)(1)(B); and (3) where the defendant was sentenced “based on” a retroactively lowered sentencing range, 18 U.S.C. § 3582(c)(2).
Hannigan’s challenge to his conditions of confinement does not fall into any of these categories, nor may it be presented via a § 2241 petition. Such a petition is available only to challenge the execution of a sentence, for instance, whether BOP is faithfully applying the time period of incarceration decreed by the sentencing court. Thus, in Cardona v. Bledsoe, 681 F.3d 533, 537 (3d Cir. 2012), the Third Circuit affirmed the dismissal of a § 2241 petition challenging conditions of confinement for lack of subject matter jurisdiction.
As an initial matter, Hannigan’s request to be released to home confinement is not a request for release from custody, for even while serving home confinement he would remain in BOP custody. See, e.g., 18 U.S.C. § 3624(c) (defining “home confinement” as a form of prerelease custody). Instead, it is a request for a modification to the conditions of his confinement akin to placement in the Special Housing Unit or transfer to a different institution. Cf. Bronson v. Demming, 56 F. App’x 551, 553―54 (3d
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Cir. 2002) (holding habeas relief unavailable to inmate seeking release from disciplinary segregation); Schmura v. Unites States Bureau of Prisons, 2018 WL 3873238 (D.N.J. August 15, 2018) (because challenge to custody classification does not affect fact or length of sentence, court lacks jurisdiction over § 2241 petition).
The petitioners erroneously rely on Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005), to contend that they may challenge under § 2241 detention conditions allegedly threatening their medical wellbeing. But Cardona clarifies that Woodall’s holding turned on the fact that, in that case, the challenged BOP conduct “conflicted with express statements in the applicable sentencing judgments.” Cardona, 681 F.3d at 536. The Third Circuit declared: “In order to challenge the execution of his sentence under § 2241, Cardona would need to allege that BOP’s conduct was somehow inconsistent with a command or recommendation in the sentencing judgment.” Cardona, 681 F.3d at 537.
Here, no “command or recommendation in the sentencing judgment” requires that Hannigan be released to home confinement. Id.; see also Share v. Krueger, 553 F. App’x 207, 209 (3d Cir. 2014) (following Cardona and holding that challenge to denial of request for release to home confinement was not cognizable under § 2241 because it did not conflict with sentencing judgment). To the contrary, as recently as February 14, 2020, over objection from his experienced defense counsel, Judge Kenney ordered Hannigan immediately remanded to BOP custody. See Doc. 26, No. 19-cr-373.
Hannigan may only seek a different designation as explicitly permitted by law. First, as noted above, a court may revise a sentence under 18 U.S.C. § 3582(c)(1)(A)(i), known as the compassionate release statute. Under that statute, the sentencing judge may reduce a sentence on the basis of “extraordinary and compelling circumstances,”
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most often severe medical conditions. As in the case of the bail decisions discussed above, these determinations are necessarily made on an individual basis. The court is required to assess, in part, all 18 U.S.C. § 3553(a) sentencing factors, and assure that “the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).” U.S.S.G. § 1B1.13.10 The request for compassionate release must be presented first to the warden, and then may be presented in court, either after exhaustion of administrative remedies, or the passage of 30 days, whichever occurs first. As of the date of this filing, the FDC’s warden has received approximately 52 requests based on COVID-19, including one from petitioner Hannigan.
Separately, Hannigan may also ask the Bureau of Prisons to transfer him to home confinement. That is an administrative decision, and again, this Court has no jurisdiction to address it. Section 3621(b) makes clear that BOP will designate the place of imprisonment, and “[n]otwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.” For this
10 The need for an individual assessment is reflected in this Court’s recent opinion in Rodriguez, 2020 WL 1627331, where the Court determined that compassionate release was warranted based on these considerations: “First, he suffers from underlying health conditions that render him especially vulnerable to COVID-19. Second, prison is a particularly dangerous place for Mr. Rodriguez at this moment. Third, he has served almost all of his sentence and has shown commendable rehabilitation while in prison. None of these reasons alone is extraordinary and compelling. Taken together, however, they constitute reasons for reducing his sentence . . . .” Id. at *7 (emphasis in original). That statement defeats the petitioners’ proposition that anyone who is vulnerable to the disease must be released to his home. So does the Third Circuit’s decision in Raia, 2020 WL 1647922, at *2 (“the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release”).
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reason as well, the petitioners’ civil action seeking release to home confinement must be dismissed.11
For the information of the Court, BOP is actively considering transfers to home confinement as part of its remedial efforts to combat COVID-19. See generally Marler Decl. ¶¶ 32-48. Ordinarily, such an action is limited to the last six months or 10% of a sentence, whichever is less. 18 U.S.C. § 3624(c). (There is also authority under 34 U.S.C. § 60541(g) to transfer specified elderly and terminally ill offenders to home confinement for longer periods.) In response to the COVID-19 pandemic, however, the Attorney General, under the authority of the coronavirus relief bill (the “CARES Act”) waived the limitations of § 3624(c). See Memorandum (Mar. 26, 2020, Marler Decl. Ex. 3 (“March 26 Memo”); Memorandum (Apr. 3, 2020), Marler Decl. Ex. 4 (“April 3 Memo”). BOP is now actively considering inmates for transfer, focusing on nonviolent offenders who present low risk for recidivism. The particular factors are described in the Marler Declaration. See id. ¶¶ 34-35. As of April 19, under the guidance of these memoranda, BOP has transferred 1,252 inmates to home confinement. Id. ¶ 44.
Hannigan has made a request to BOP for consideration, but it will likely be denied. He was just sentenced in February by Judge Kenney to serve a 52-month
11 Recent cases confirming this rule include: United States v. Read-Forbes, 2020 WL 1888856 (D. Kan. Apr. 16, 2020); United States v. McCann, 2020 WL 1901089 (E.D. Ky. Apr. 17, 2020); Miller v. United States, 2020 U.S. Dist. LEXIS 62421, at *4-5 (E.D. Mich. Apr. 9, 2020); United States v. Carden, 2020 WL 1873951 (D. Md. Apr. 15, 2020); United States v. Mabe, 2020 U.S. Dist. LEXIS 66269, at *1 (E.D. Tenn. Apr. 15, 2020) (“the CARES Act [provision expanding home confinement authority] places decision making authority solely within the discretion of the Attorney General and the Director of the Bureau of Prisons. . . . This Court therefore does not have power to grant relief under Section 12003 of the CARES Act.”); United States v. Skaff, 2020 WL 1666469 (S.D.W. Va. Apr. 3, 2020).
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sentence for tax-related offenses that resulted in a multi-million dollar tax loss to more than 35 different victims. See Doc. 24, No. 19-cr-373. After serving approximately two months of his 52-month sentence (and before being designated to a particular facility to serve his sentence), he filed a request for compassionate release and home confinement with the BOP. Hannigan has a history of convictions for driving under the influence, and has not lived at his family residence for some time, and for various reasons should not be confined there. Further details—which were provided under seal to Judge Kenney in connection with Hannigan’s sentencing—will be provided in a separate under-seal filing in this case. The matter is committed to BOP’s discretion at this time, and ultimately to Judge Kenney, if a compassionate release motion is filed. Hannigan, like every sentenced prisoner, may not obtain this relief under § 2241 on the basis of possible exposure to COVID-19.
C. No “outside the box” process can avoid the individualized review mechanisms described above.
During a telephone conference on April 17, 2020, the Court directed AUSA Zauzmer to confer with petitioners’ counsel on any “outside the box” means of addressing the concerns of all FDC detainees. During the conference with petitioners’ counsel that followed that afternoon, Zauzmer stated the government’s position, consistent with the analysis above, as follows:
Every inmate has a right at any time to seek judicial review of detention status. That review must take place consistent with the Bail Reform Act, which sets forth the clear standards that have to be evaluated in each case when deciding detention issues, focusing on the particular facts of each case and the risk of danger and/or flight. The law does not simply allow us or the court to say, “everyone with a heart condition gets
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released,” nor would that make any sense as a matter of public policy anyway, given the nature of the crimes that many of these offenders have allegedly committed.
If every FDC detainee seeks judicial review at this time—not just those who have proactively sought relief on their own behalf already—our office will never pose an impediment, and we can act as quickly as necessary. We have 100 AUSAs at our disposal, and we can instantly set up a system for AUSA assessment and supervisory review in which we can state our position in each case in 48 hours. We imagine that the court as well has sufficient resources, as there are 32 judges in the district among whom the work would be spread.12
The defense bar may face problems of coordination. First, with the exception of a handful of detainees who may have chosen to proceed pro se, by definition every detainee is already represented by counsel. So either all of those counsel have to be prepared to make their pitches to us and to the court; or the petitioners have to come up with a way to replace those attorneys with a single group for present purposes, with the consent of all of those lawyers and defendants.
The U.S. Attorney’s Office stands by to process every case without delay, within days, though we question whether a systematic effort to review every detainee would be productive, in contrast to the current situation in which each counsel evaluates whether a challenge to detention is warranted. The FDC is different from an ordinary federal institution, in that the vast majority of inmates are pretrial or presentencing detainees. This means that, in virtually every instance regarding those offenders, a judicial officer
12 Of the 1,017 inmates at the FDC, approximately 600 are pretrial/presentencing detainees, with approximately ¾ of those from this district (others are from the Districts of New Jersey and Delaware). The remaining inmates include sentenced inmates and designees to other institutions.
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has made a finding that the defendant presents a risk of danger to the community and/or presents a risk of flight. Accordingly, the number of nonviolent, white-collar offenders is the FDC is much less than the ordinary proportion seen in a federal prison. Rather, the inmates at the FDC are by and large particularly dangerous offenders who present a significant risk of harm to the community. And that is unquestionably why, as dozens of these detainees have sought release in light of the COVID-19 pandemic, almost none has obtained judicial relief. With the exception of Judge Strawbridge’s decision in the case of Gongda Xue (which is an unusual case, currently under appeal to the district court, that focused on the risk of flight of an otherwise non-violent foreign national), no judge has approved release in one of these cases.
Notably, FDC legal staff participate in weekly telephone calls with the United States District Court for the Eastern District of Pennsylvania and other stakeholders, including the federal public defender’s office. Unlike the petitioners here, the public defender has not advocated for release of large numbers of inmates. Instead, we understand that the office has individually reviewed its clients’ circumstances and is filing the necessary individualized motions. We were not surprised to be informed that the federal defender currently estimates seeking release in fewer than 40 cases. See Marler Decl. ¶ 53.
The petitioners’ suggestion during recent conferences, that this Court appoint a Special Master to essentially mediate the detention status of all FDC detainees, is baseless. That kind of review of over 500 cases would drastically stall, not expedite, the process, and it would also distract government officials from what at present is an overwhelming amount of work related to the current crisis. Further, a Special Master has no ability to replace the judicial judgment that is required by law. There is one
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expeditious way to obtain further review of detention decisions, if defendants seek that, and that is through the set procedure of the Bail Reform Act. And in any event, that is all the law permits; this Court does not have jurisdiction through a civil matter to intervene. V. Petitioners’ challenge to prison conditions may not proceed absent presentation of an appropriate claim and exhaustion of administrative remedies.
Turning to the petitioners’ request for a remedy pertinent to management of the prison, as explained above, this action, premised only on § 2241, is impermissible, as that statute, under Cardona, does not permit a challenge to conditions of confinement, only to the execution of a sentence. Such a claim must be brought in a civil rights action, and there, the Prison Litigation Reform Act, 42 U.S.C. § 1997e, comes into play. The petitioners have made no effort either to present a civil rights claim or comply with the PLRA, and the petition must be dismissed.
A. Courts are ill-equipped to administer prisons and Congress has substantially limited their authority in this arena.
A first principle of prison litigation is, of course, that “federal courts must take cognizance of the valid constitutional claims of prison inmates.” Turner v. Safley, 482 U.S. 78, 84 (1987). But the second principle is that federal courts must recognize that they are “ill equipped” to deal with problems of prison administration. Id. (quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989)). “Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been
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committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint.” Id. at 84-85.
Consistent with the recognition that prison administration is not the federal judiciary’s job, Congress enacted the PLRA “to oust the federal judiciary from day-today prison management.” Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 655 (1st Cir. 1997); see also Benjamin v. Jacobson, 172 F.3d 144, 182 (2d Cir. 1999) (en banc) (Calabresi, J., concurring) (“The in banc majority argues at length that Congress meant to get the federal courts out of the business of running jails, and it cites any number of congressional statements to that effect. I agree.”); accord Imprisoned Citizens Union v. Shapp, 11 F. Supp. 2d 586, 603 (E.D. Pa. 1998) (“The legislative history thus more than adequately demonstrates at least one legitimate goal: the desire to limit federal court oversight of state prisons.”), aff’d sub nom Imprisoned Citizens Union v. Ridge, 169 F.3d 178 (3d Cir. 1999). “Congress intended the PLRA to revive the hands-off doctrine,” which was “a rule of judicial quiescence derived from federalism and separation of powers concerns.” Gilmore v. California, 220 F.3d 987, 991, 997 (9th Cir. 2000). Among other things, the PLRA thus “restrict[s] the equity jurisdiction of federal courts,” id. at 999, and, “[b]y its terms . . . restricts the circumstances in which a court may enter an order ‘that has the purpose or effect of reducing or limiting the prison population,’” Brown v. Plata, 563 U.S. 493, 511 (2011) (quoting 18 U.S.C. § 3626(g)(4)). Moreover, the PLRA requires any injunctive relief relating to prison conditions to be “narrowly drawn, extend no further than necessary to correct the harm
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the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.” Id. § 3626(a)(2).13
B. Petitioners have not exhausted the available administrative remedies.
Even if petitioners’ challenge to their conditions of confinement could be
considered by this Court, the petitioners have not exhausted the available administrative
remedies, and for that independent reason, their petition must be dismissed. Nellson v.
Barnhart, 2020 WL 1890670, at *5 (D. Colo. Apr. 16, 2020) (“The Court finds that
plaintiff has failed to exhaust his administrative remedies before seeking judicial relief.
In reaching this conclusion, the Court does not overlook the risks of COVID-19 at [the
BOP facility at issue] or in the prison system generally. But the Court may not alter the
mandatory requirements of the PLRA for COVID-19 or any other special circumstance.”)
(citing Ross v. Blake, 136 S. Ct. 1850, 1856-57 (2016)).
The PLRA requires an inmate filing a prison-conditions lawsuit to have
exhausted all available administrative remedies. 42 U.S.C. § 1997e(a) (“No 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
13 This limitation on the scope of injunctive relief is consistent with the judiciary’s limited scope of review of prison regulations. As described in Turner, courts evaluating prison regulations that allegedly burden fundamental rights ask only if the regulation is “reasonably related to legitimate penological interests.” 482 U.S. at 89. “Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. The rule would also distort the decisionmaking process, for every administrative judgment would be subject to the possibility that some court somewhere would conclude that it had a less restrictive way of solving the problem at hand.” See Ridge, 169 F.3d at 188 (“[T]he PLRA amounts to little more than a codification of already-existing rules governing judicial interference with prisons.”).
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until such administrative remedies as are available are exhausted.”). The Supreme Court has made clear that the exhaustion requirement applies to all suits regarding prison life, Porter v. Nussle, 534 U.S. 516, 532 (2002), including when a prisoner seeks injunctive relief, Farmer v. Brennan, 511 U.S. 825, 847 (1994) (in cases seeking injunctive relief to address “current” prison conditions, inmates are not “free to bypass adequate internal prison procedures and bring their health and safety concerns directly to court”). And, it is explicitly mandatory. See Ross v. Blake, 136 S. Ct. 1850, 1856 (2016); see also Bock, 549 U.S. at 211 (2007) (“There is no question that exhaustion is mandatory under the PLRA.”).14
The statute provides no exception for special circumstances. See Ross, 136 S. Ct. at 1856-57 (2016) (holding that the exhaustion requirement “suggests no limits on an inmate’s obligation to exhaust—irrespective of any ‘special circumstances’” and the “mandatory language means a court may not excuse a failure to exhaust, even to take such circumstances into account”). In fact, the only exception to the exhaustion requirement is when the administrative remedy process is “unavailable.” Id. at 1858. In Ross, the Supreme Court outlined just three situations in which a prisoner can show that the administrative remedy process is “unavailable”: (1) “when (despite what regulations
14 As described above, the history of the PLRA demonstrates that it intended to allow the BOP wide latitude to manage and supervise prisons. The Supreme Court has noted that “the history of the PLRA underscores the mandatory nature of its exhaustion regime.” Ross, 136 S. Ct. at 1857. “In enacting the PLRA, Congress thus substituted an ‘invigorated’ exhaustion provision. . . . [T]he new § 1997e(a) removed the conditions that administrative remedies be ‘plain, speedy, and effective’ and that they satisfy minimum standards. Still more, the PLRA prevented a court from deciding that exhaustion would be unjust or inappropriate in a given case. As described earlier, all inmates must now exhaust all available remedies: Exhaustion is no longer left to the discretion of the district court.” Id. at 1858 (internal citations and quotations omitted).
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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,” such as in the hypothetical situation in which “a prison handbook directs inmates to submit their grievances to a particular administrative office—but in practice that office disclaims the capacity to consider those petitions”; (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.” Id. at 1859-60.
Petitioners have not alleged that an administrative process is not available. Instead, they assert only the sort of “special circumstances” that Ross foreclosed. In doing so, they ignore entirely that the BOP regulations provide for an expedited response to administrative requests “determined to be of an emergency nature which threatens the inmate’s immediate health or welfare.” 28 C.F.R. § 542.18. In these circumstances, the warden “shall respond not later than the third calendar day after filing.” Id. Petitioners do not allege that they attempted to use the procedure, and in fact they did not. Nor do they allege that, in the words of Ross, the administrative procedure is a dead end.
Additionally, the petitioners ignore that the Supreme Court defines “available” relief through the administrative process as some—not all—relief that the inmate seeks. Total and immediate relief is not the standard for exhaustion; “the possibility of some relief” is. Ross, 136 S. Ct. at 1859. Petitioners assert that they cannot obtain home confinement through the administrative grievance process. Pet. ¶ 18.15 But they do not
15 In fact, Petitioners could seek a change in their placement through the procedures
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assert that the process could not potentially provide any relevant relief whatsoever. See generally id. ¶¶ 16-19. Their claims are thus barred because of their failure to administratively exhaust them. See generally Declaration of Dawn Nechupas (confirming that none of the petitioners has filed any administrative remedy request or appeal).
The three Third Circuit cases on which the petitioners rely all predate the Supreme Court’s analysis of the mandatory nature of the exhaustion requirement in Ross, in 2016. See Cerverizzo v. Yost, 380 F. App’x 115 (3d Cir. 2010) (not precedential) (petitioner had administratively challenged BOP policy and its application to him, but appealed only to the warden); Woodall v. Fed. Bureau of Prisons, 432 F.3d 235 (3d Cir. 2005) (petitioner challenged the validity of BOP guidelines, not their application); Lyons v. U.S. Marshals, 840 F.2d 202 (3d Cir. 1988) (finding genuine issue of material fact as to whether administrative process was actually available).
The two district court cases on which the petitioners rely are not even PLRA cases. Carling v. Peters, 2000 WL 1022959 (E.D. Pa. July 10, 2000), addresses exhaustion in the context of determining the validity of a military enlistment contract. And United States v. Colvin, 2020 WL 1613943, at *2 (D. Conn. Apr. 2, 2020), analyzes exhaustion under the compassionate release statute, 18 U.S.C. § 3582(c)(1)(A), not the PLRA. The Connecticut district court’s waiver of the exhaustion requirement is directly contrary to the Third Circuit’s recent holding in Raia that, even during the COVID-19
outlined earlier. See United States v. Morales-Morales, 985 F. Supp. 229, 231 (D.P.R. 1997) (rejecting request for home confinement on basis that the place of confinement is within the BOP’s discretion, and the petitioner had not administratively requested it).
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pandemic, prisoners must permit the BOP 30 days to evaluate compassionate-release requests.
In short, this Court “may not engraft an unwritten ‘special circumstances’ exception onto the PLRA’s exhaustion requirement.” Ross, 136 S. Ct. at 1862. Thus, even if the petitioners had presented a civil rights claim, it must be dismissed for failure to exhaust administrative remedies. And for the same reason, discovery may not proceed. VI. Petitioners cannot establish any violation of their Fifth or Eighth Amendment rights.
For purposes of completeness, we explain that the petitioners fail to state a claim even absent the failure to exhaust administrative remedies.
A. The constitutional violations alleged require deliberate indifference.
Petitioners allege that their continued incarceration at the FDC violates their Fifth and Eighth Amendment rights because of “conditions where it is virtually impossible to take steps to prevent transmission of an infectious disease that may prove deadly because of Petitioners’ vulnerable conditions.” Pet. ¶ 98.
The Eighth Amendment protects inmates convicted of crimes from the infliction of “cruel and unusual punishments.” U.S. Const. Amend. VIII. The Supreme Court’s cases “have held that a prison official violates the Eighth Amendment only when two requirements are met.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). “First, the deprivation alleged must be, objectively, ‘sufficiently serious.’” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). Accordingly, “a prison official’s act or omission must result in the denial of ‘the minimal civilized measure of life’s necessities.” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). A petitioner alleging a failure to prevent
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harm “must show that he is incarcerated under conditions posing a substantial risk of serious harm.” Id.
Second, “‘only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.’” Id. (quoting Wilson, 501 U.S. at 297). Accordingly, for there to be an Eighth Amendment violation, “a prison official must have a ‘sufficiently culpable state of mind.’” Id. (quoting Wilson, 501 U.S. at 297). As the Supreme Court explained: “In prison-conditions cases that state of mind is one of ‘deliberate indifference’ to inmate health or safety.” Id. (quoting Wilson, 501 U.S. at 302-03). That is, the inmate must show that the prison official “knows of and disregards an excessive risk to inmate health or safety.” Id. at 837 (emphasis added).
Similarly, for pretrial detainees, the Fifth Amendment prohibits deliberate indifference to health or safety. Harvey v. Chertoff, 263 F. App’x 188, 191 (3d Cir. 2008) (not precedential). The Third Circuit “previously . . . found it constitutionally adequate to analyze pretrial detainees’ claims of inadequate medical care under the familiar deliberate indifference standard.” Id. (citing Natale v. Camden County Correctional Facility, 318 F.3d 575, 581-82 (3d Cir. 2003)). Under the Fifth Amendment, as under the Eighth Amendment, “prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Id. (quoting Farmer, 511 U.S. at 844).16
Petitioners here cannot establish a constitutional violation.
16 Petitioners themselves view any distinction between the Fifth and Eighth Amendment standards as “immaterial.” Pet. ¶ 100.
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B. Petitioners are not subject to an unreasonable risk of harm at the FDC.
Petitioners cannot establish that they have suffered a “sufficiently serious” deprivation. See Wilson, 501 U.S. at 297. To be sure, the spread of COVID-19 within the United States puts everyone at some degree of risk of getting sick, but the BOP has taken exhaustive steps to mitigate those risks throughout its inmate population, including with respect to the inmate population at the FDC. Those measures, which are outlined in detail in the Marler Declaration, include strict limitations on inmate movement within the FDC, suspension of most visits to the FDC, enhanced screening of staff and inmates, and the implementation of the BOP’s “modified operations” plan. See Marler Decl. ¶¶ 514. And these measures have, thus far, been highly successful at preventing the transmission of COVID-19 into the FDC. To date, there are no confirmed positive cases, inmate or staff, of COVID-19. No inmate has required testing and no inmate appears to be exhibiting symptoms. Id. ¶ 4.
One of the petitioners’ primary arguments is that inmates cannot effectively “socially distance” within the FDC. E.g. Pet. ¶¶ 106-08, 128. What they fail to appreciate is that this situation is also true of many unincarcerated members of the community who live with roommates or family members or who work in public-facing essential occupations. See Hines v. Youssef, 2015 WL 164215, at *4 (E.D. Cal. Jan. 13, 2015) (“Unless there is something about a prisoner’s conditions of confinement that raises the risk of exposure substantially above the risk experienced by the surrounding communities, it cannot be reasoned that the prisoner is involuntarily exposed to a risk the society would not tolerate.”). As described in the Marler Declaration, movement in and out of the FDC, and movement within the facility, has been minimized as much as
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possible. Marler Decl. ¶¶ 5-7, 11-13. Each cell has been provided with cleaning supplies
sufficient to kill the virus. Id. ¶ 14. And all inmates and staff have been provided masks
to wear when social distancing is not possible.” Id. Accordingly, the petitioners are not
subject to an unreasonable risk of harm.17
C. The BOP has not shown deliberate indifference and has taken appropriate measures to protect the health of inmates at the FDC and the public.
The petitioners likewise cannot satisfy the subjective element of the
constitutional analysis, which requires them to prove that the official “knows of and
disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. The
test is subjective, meaning “the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he [or she]
must also draw the inference.” Id. In order to support a claim for deliberate indifference
to future health problems, the condition of confinement complained about must be
“sure or very likely to cause serious illness.” Helling v. McKinney, 509 U.S. 25, 33 (1993)
(regarding exposure to environmental tobacco smoke).18
17 Petitioners assert that the Second Circuit “acknowledged the ‘grave and enduring’ risk posed by COVID-19 in the correctional context in Fed. Defenders of New York, Inc. v. Federal Bureau of Prisons, 954 F.3d 118, 135 (2d Cir. 2020). Pet. ¶ 104. They fail to explain, however, that in that case, the Federal Defenders sued the BOP and Metropolitan Detention Center-Brooklyn warden not because of prison conditions allegedly affecting the inmates’ health or safety, but because of the BOP’s cancellation of inmate-attorney visits in 2019, long before the COVID-19 pandemic. Id. at 122-23. In dicta encouraging the parties to engage in “cooperative institutional discussions,” the Second Circuit focused not on the risk of COVID-19 to inmates’ health and safety, but on the “impact” of the situation on all stakeholders, including inmates, defense counsel, prosecutors, and the BOP. Id. at 135.
18 In Helling, 509 U.S. at 33, the plaintiff inmate was in fact exposed to tobacco smoke from another inmate. And, in Plummer v. United States, 580 F.2d 72 (3rd Cir. 1978), also cited by the petitioners, Pet. ¶ 103, the inmate was in fact exposed to the
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What BOP has done in recent months is the very opposite of deliberate indifference—from profoundly changing prison operations to transferring over a thousand inmates to home confinement.
Accordingly, the petitioners cannot establish that the conditions at the FDC, in light of the precautions being taken, are “sure or very likely” to lead to serious or fatal COVID-19 cases or that the facility has been deliberately indifferent to the risk of exposure. The district court for the Northern District of Illinois reached the same conclusion, even though in that case, the virus had already spread among inmates and staff at the facilities at issue. Money v. Pritzker, -- F. Supp. 3d --, 2020 WL 1820660, at *3, 18 (N.D. Ill. Apr. 10, 2020). The court found that prison officials came forward “with a lengthy list of the actions they have taken to protect [the facility’s] inmates,” and recognized that prison officials there (like BOP staff here) “are trying, very hard, to protect inmates against the virus and to treat those who have contracted it.” Id. at 18. There was no evidence to “support any suggestion that [prison officials] have turned a kind of blind eye and deaf ear to a known problem that would indicate ‘total unconcern’ for the inmates’ welfare.” Id. (quoting Rosario v. Brown, 670 F.3d 816, 821 (7th Cir. 2012)). Accordingly, the actions of prison officials were not deliberately indifferent but, instead, “easily pass constitutional muster.” Id. This Court should find likewise, and should dismiss the petition.19
active tuberculosis of a fellow inmate. At the FDC, to the contrary, the BOP is unaware of any inmate or staff with COVID-19, and no inmate is exhibiting symptoms. Marler Decl. ¶ 4.
19 While the petitioners may ultimately disagree whether the measures taken by the BOP are sufficient to protect and treat inmate health and safety (while also carrying out its mission to effectuate detention and criminal sentences), a difference of medical
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Earlier today, Judge Beetlestone, acting on a motion filed by petitioner Hall in his
criminal case for release to home confinement, rejected precisely the same
constitutional claim he attempts to advance here. She wrote, in part:
As of the filing of Hall’s motion, there have been no reported cases of COVID-19 in the FDC, see https://www.bop.gov/ coronavirus/, and the Bureau of Prisons (“BOP”) has instituted strict containment measures, such as mandatory quarantine, regular health checks, limits on inmate movement, and limitations on entry by outside individuals, see https://www.bop.gov/resources/news/20200313_covid19.jsp. In light of these measures, and in light of the fact that the City of Philadelphia to which Hall requests he be released has over 9,214 confirmed cases of COVID-19 and 365 deaths of COVID patients and rising as of the writing of this opinion, see https://www.phila.gov/programs/coronavirusdisease-2019-covid-19/, Hall has not shown that the BOP’s efforts have been deliberately indifferent, or even that he “has a higher risk of contracting COVID-19 in custody than when released,” United States v. McDonald, 2020 WL 1659937, at *3 (D. Nev. Apr. 3, 2020). Hall has also not shown that “the [FDC] would be unable to render treatment to [him] if he were to become infected,” United States v. Michael Calvert, 2020 WL 1847754, at *5 (D. Kan. Apr. 13, 2020), or that he has been otherwise “denied the minimal civilized measures of life’s necessities,” [Fuentes v. Wagner, 206 F.3d 335, 344 (3d Cir. 2000)]. Consequently, Hall has not demonstrated that his continued detention at the FDC constitutes cruel and unusual punishment in violation of the Eighth Amendment. See [United States v.] Price, 2020 WL
judgment cannot support deliberate indifference. See Scott v. Benson, 742 F.3d 335, 340 (8th Cir. 2014) (holding that a “mere difference of opinion over matters of expert medical judgment or a course of medical treatment fail[s] to rise to the level of a constitutional violation”). Further, public health officials are entitled to heightened deference when exercising science-based public health judgment during a public health emergency. See, e.g., United States ex rel. Siegel v. Shinnick, 219 F. Supp. 789, 791 (E.D.N.Y. 1963) (explaining in a habeas matter that “the judgment required is that of a public health officer and not of a lawyer used to insisting on positive evidence to support action; their task is to measure risk to the public . . . .”); Hickox v. Christie, 205 F. Supp. 3d 579, 594 (D.N.J. 2016) (“To permit these constitutional claims to go forward . . . would be a judicial second-guessing of the discretionary judgments of public health officials acting within the scope of their (and not my) expertise.”).
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1694347, at *2 n.3 [(D. Md. Apr. 7, 2020)] (denying sentence reduction pursuant to the Eighth Amendment where there was “no reason . . . to believe that the facility where [defendant was] incarcerated [was] not taking reasonable precautions to prevent spread within the facility . . . nor . . . that [defendant] would not be provided with appropriate medical care if she were unfortunate enough to join the hundreds of thousands of people who have been inflicted with this virus”); United States v. Gray, 2020 WL 1554392 (D. Md. Apr. 1, 2020) (same); Calvert, 2020 WL 1847754, at *5 (rejecting Eighth Amendment for temporary pretrial release where there were “no known cases of COVID-19 at [defendant’s facility]; and there was no evidence that the facility would be unable to render treatment to [defendant] if he were to become infected”); McDonald, 2020 WL 1659937, at *3 (rejecting Eighth Amendment for temporary pretrial release where there was “no evidence that [prison was] unable to provide sufficient medical treatment to Defendant in light of him contracting COVID-19 in custody . . . [or] that Defendant has a higher risk of contracting COVID-19 in custody than when released”).
Ex. B. The petitioners’ complaint fails for exactly the same reasons. (Further, Judge
Beetlestone’s ruling at least stands as res judicata barring a claim here of Hall.)
VII. Even if Petitioners could establish constitutional violations, the PLRA bars the broad relief that Petitioners seek.
As described in more detail above, see supra Part V.A, Congress enacted the
PLRA “to oust the federal judiciary from day-to-day prison management.” Inmates of
Suffolk Cty. Jail, 129 F.3d at 655. Consistent with its goal of taking the federal judiciary
out of the business of managing prisons, the PLRA: (a) precludes any single district
court judge from ordering the release of prisoners because of prison conditions (and
sharply limits the ability of three-judge panels to do so); and (b) narrowly circumscribes
the permissible scope of other injunctive relief aimed at addressing unconstitutional
prison conditions. These limitations also bar Petitioners’ requested relief, as explained
below.
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A. The PLRA precludes a single district court judge from ordering release of a prisoner based on prison conditions.
As explained earlier, this action may not proceed under § 2241 to gain release of an inmate. And that remedy is not available in a civil rights action, either, in most circumstances. As also explained above, petitioners have made no effort to present a civil rights action. But even if they had, the Court could not grant the relief that petitioners seek.
The PLRA places strict limits on courts’ ability to order the release of inmates “in any civil action in Federal court with respect to prison conditions” and precludes a single district judge from doing so. 18 U.S.C. § 3626(a)(3)(B).
Under the PLRA, a “prisoner release order”—which “includes any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison,” id. § 3626(g)(4)—may “be entered only by a three-judge court,” id. § 3626(a)(3)(B), and then only if certain conditions have been met. See also Bowers v. City of Philadelphia, 2006 WL 2601604, at *7 (E.D. Pa. Sept. 8, 2006) (construing “prisoner release order” broadly to encompass an order addressing prison overcrowding). Among other requirements, “no court shall enter a prisoner release order unless—(i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and (ii) the defendant has had a reasonable amount of time to comply with the previous court orders.” Id. § 3626(a)(3)(A).
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Section 3626 thus “restrict[s] the equity jurisdiction of federal courts,” Gilmore, 220 F.3d at 999, and, “[b]y its terms . . . restricts the circumstances in which a court may enter an order ‘that has the purpose or effect of reducing or limiting the prison population.’” Plata, 563 U.S. at 511 (quoting 18 U.S.C. § 3626(g)(4)). The PLRA’s “requirements ensure that the ‘last remedy’ of a population limit is not imposed ‘as a first step.’” Id. at 514 (quoting Inmates of Occoquan v. Barry, 844 F.2d 828, 843 (D.C. Cir. 1988)). “The release of prisoners in large numbers . . . is a matter of undoubted, grave concern.” Id. at 501.
The primary relief sought by the petitioners here is precisely the mass release of individuals held at the FDC as a remedy for allegedly unconstitutional conditions at the FDC. See Pet. at 1 (“This class action raises an urgent challenge to the confinement of more than one thousand pretrial detainees and sentenced inmates . . . at the Federal Detention Center of Philadelphia . . . .”); id. ¶¶ 124-34 (claim alleging violations of Fifth and Eighth Amendments based on alleged conditions at the FDC); id. at 39-40 (requesting “immediate release of vulnerable persons to home confinement”). Petitioners’ lawsuit is thus undisputedly a “civil action with respect to prison conditions” governed by the PLRA. 18 U.S.C. § 3626(g)(2). Accordingly, the PLRA precludes the Court from releasing inmates as requested by the petitioners. 18 U.S.C. § 3626(a)(3)(B).
The district court for the Northern District of Illinois recently reached this conclusion in a similar case seeking mass release of state inmates. In Money, 2020 WL 1820660, at *2, “[p]laintiffs argue[d] that the prison setting makes them (and other purported class members) especially vulnerable to COVID-19, that the state government’s responses to the danger are insufficient or not fast enough or both, and that the only way to solve the problem is moving prisoners out of prisons.” The court
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concluded that the relief sought—even if reframed as a “process” for an “expedited, individualized review and relocation” of inmates, rather than as the ordering of mass release—was indeed a “prisoner release order” subject to the PLRA. Id. at *13-14. The court therefore held that the PLRA prevented it from entering the relief requested by the petitioners for the release of inmates. Id. at *13-14. The same is true here, and the PLRA prohibits this Court from ordering the release of FDC detainees, whether by ordering directly, through a process of its own, or through a Special Master’s process.
B. More broadly, the PLRA precludes district courts from ordering broad injunctive relief or supervision.
In addition to sharply limiting judges’ ability to order the release of prisoners, the PLRA established a comprehensive set of standards to govern prospective relief in prison conditions cases. Section 3626(a)(1) provides that prospective relief “shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” 18 U.S.C. § 3626(a)(1). Thus, a district court faced with a prison conditions suit may not grant or approve prospective relief “unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” Id.
Petitioners’ broad request that the Court order the FDC “to mitigate the serious risk of illness, death, and harm from COVID-19 to those who remain confined at the FDC”—with or without the aid of a Special Master—is neither narrowly drawn nor “the least intrusive means” to ensuring that the BOP is making every effort to protect detainees from the COVID-19 risk. As courts in this district have already concluded, BOP’s precautionary measures to mitigate the spread of COVID-19 at the FDC justify the
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continued detention of individuals there, including those with medical conditions that might make them more susceptible to the dangers posed by COVID-19.
As part of their requested prospective relief, petitioners specifically ask the Court to appoint a Special Master to”[c]hair a Coronavirus Release Committee to evaluate Vulnerable Persons and make recommendations for ameliorative action for other persons at the FDC,” Pet. at 40. This is not permitted under the PLRA.
The PLRA limits appointments of special masters to two specific contexts: to “conduct hearings on the record and prepare proposed findings of fact,” and, “during the remedial phase of the action,” to assist if the “remedial phase will be sufficiently complex to warrant the appointment.” 18 U.S.C. § 3626(f)(1)(A)-(B); see also Webb v. Goord, 340 F.3d 105, 111 (2d Cir. 2003) (affirming rejection of request to appoint a special master in prisoner litigation alleging violations of Eighth Amendment as inappropriate under 18 U.S.C. § 3626(a)(1)(A)). Appointing a Special Master to chair petitioners’ requested “release committee” is outside what the PLRA allows.
Moreover, appointing a Special Master to chair a “release committee” would usurp the role of each detainee’s detention or sentencing judge, and completely offend the criminal law provisions described earlier, such as the Bail Reform Act. If the processes provided for release from detention and reductions of sentences had been followed, that judge (and not this Court) would have received a motion under the Bail Reform Act or a motion for compassionate release from an FDC inmate. See Prudential Ins. Co. of Am. v. U.S. Gypsum Co., 991 F.2d 1080, 1086 (3d Cir. 1993) (analyzing high standard for appointment of special master under “exceptional condition” prong of Fed. R. Civ. P. 53 and noting that “[a] district court has no discretion to delegate its
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adjudicatory responsibility in favor of a decision maker who has not been appointed by the President and confirmed by the Senate.”).
Petitioners’ broad requests for injunctive relief and a Special Master are inconsistent with the PLRA and must be dismissed. VIII. The Court should strike petitioners’ class allegations.
In addition to seeking their own release, and some vague review of prison operations, petitioners seek to represent a class “consisting of all current and future pretrial detainees, presentenced detainees, and sentenced inmates in custody at the FDC during the course of the COVID-19 pandemic.” Pet. ¶ 115. They request immediate release to home confinement for themselves and an amorphous subset of the putative class: “all others confined at the FDC whom Respondent has identified as medically vulnerable by virtue of their underlying health conditions or age.” Id. at 39 ¶ A.
When it is clear from the pleading itself that the requirements for maintaining a class action cannot be met, a defendant may move to strike class allegations before a motion for class certification is filed. See, e.g., Zarichny v. Complete Payment Recovery Servs., Inc., 80 F. Supp. 3d 610, 624 (E.D. Pa. 2015). For a class to be certified under Federal Rule of Civil Procedure 23, a plaintiff must show that the proposed class satisfies all four requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. Here, there is no commonality or typicality because petitioners’ proposed class would combine pretrial, post-conviction, and postsentencing inmates with different charges, convicted crimes, imposed sentences, remaining sentences, disciplinary histories, ages, medical histories, availabilities of homes outside of prison, likelihoods of violation or recidivism, and dangers to the
43

Case 2:20-cv-01914-AB Document 12-2 Filed 04/20/20 Page 47 of 50
community. Moreover, class members likely have different means to provide for themselves upon release and different access to medical care upon release.
In short, petitioners’ putative class does not account for any of the myriad factors that are left to the discretion of both judicial officers and the BOP in making determinations that are central to a reasoned decision of whether a particular detainee or inmate should or should not be released to home confinement. See Walmart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (to satisfy Rule 23(a)(2) each class member’s claim must depend upon a common contention “of such a nature that it is capable of classwide resolution—which means that the determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke”).
The petitioners’ unique circumstances illustrate this point. Hall is a convicted murderer with multiple felony convictions, facing a Sentencing Guidelines range of 30 years to life in prison. He is a clear danger to the community and a flight risk. Answering whether it violates the Constitution to continue to detain him, in light of risks from COVID-19, does not answer the same question for differently situated detainees. Indeed, absent class members might well be prejudiced if their claims were to succeed or fail based on Hall’s circumstances. Likewise, Brown’s detention raises special considerations. Among other things, Brown was a fugitive at the time of his arrest on federal charges and therefore has a demonstrated history of flight from justice. And, finally, Hannigan raises unique concerns because he was sentenced to 52 months in prison only two months ago, has not yet been designated to an institution, and there are other grave reasons, discussed separately under seal, why he should not be placed in home confinement.
44

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Petitioners cannot show adequacy of representation because they demand a dramatic remedy that would have a profound effect on members of the class without considering the impact on the class members. Petitioners purport to request an immediate order of home confinement for a significant number of detainees. Some detainees, if released, would be homeless and without access to food, shelter, or medical care in the midst of a grave pandemic that is having a substantial impact on the nation. Petitioners’ failure to consider or account for such concerns in the immediate and sweeping relief that they seek demonstrates that they are not fit to represent the members of their proposed class. IX. No institution-wide or agency-wide discovery is appropriate here.
The government has already provided to petitioners’ counsel the BOP medical records of all three petitioners, Hannigan’s presentence investigation report, and other documents relating to Hannigan’s circumstances.20 In addition, the BOP’s website, which petitioners evidently disregarded in crafting their petition, is remarkably detailed and transparent regarding its efforts to respond to the COVID-19 pandemic. See https://www.bop.gov/coronavirus/. The website addresses many of petitioners’ questions and concerns, without further burdening agency staff in the midst of their full-time efforts to protect the health of BOP inmates and staff.
With respect to other discovery, the government awaits petitioners’ submission in order to evaluate their requests. However, in light of the numerous and profound inadequacies in the petitioners’ substantive and class allegations, described at length
20 We also have advised petitioners that BOP does not possess a list of FDC inmates with special vulnerability to COVID-19, as petitioners had requested. Further, any disclosure of medical information regarding other inmates raises significant privacy issues.
45

Case 2:20-cv-01914-AB Document 12-2 Filed 04/20/20 Page 49 of 50 above, the government is highly skeptical that any further discovery would be appropriate and will take appropriate action if presented with improper discovery requests. See Bracy v. Gramley, 520 U.S. 899, 904 (1997) (“A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.”). The BOP is currently consumed with its response to the COVID-19 pandemic. Making arrangements for a judicial visit to or inspection of the FDC, the deposition of the FDC warden or any other BOP official, or other burdensome discovery, would not benefit the FDC inmates and staff, and may unnecessarily put them (or others) at risk, all in pursuit of claims that are clearly barred by law.
46

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X. Conclusion

The Court should dismiss petitioners’ complaint in its entirety for lack of subject

matter jurisdiction under 28 U.S.C. § 2241. Petitioners, on behalf of themselves only,

can raise their requests for release to the BOP or the appropriate trial or sentencing

judge for individualized determinations. Further, a petitioner may if he chooses present

a civil rights action, but only after exhausting administrative remedies and complying in

all other respects with the PLRA and any other applicable law.

Respectfully submitted,

Dated: April 20, 2020

/s William M. McSwain WILLIAM M. McSWAIN United States Attorney

/s Susan R. Becker for GBD GREGORY B. DAVID Assistant United States Attorney Chief, Civil Division

/s Robert A. Zauzmer ROBERT A. ZAUZMER Assistant United States Attorney Chief of Appeals

/s Landon Y. Jones III LANDON Y. JONES III REBECCA MELLEY Assistant United States Attorneys 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106-4476 landon.jones@usdoj.gov Tel.: (215) 861-8323/8328 Fax: (215) 861-8618

47

Case 2:20-cv-01914-AB Document 12-3 Filed 04/20/20 Page 1 of 3
EXHIBIT A

Case 2:20-cv-01914-AB Document 12-3 Filed 04/20/20 Page 2 of 3
®fffrt llf f~t 1\tt~rttf{! ~tntral
Jla:g4iu9tntt. it QI. 20,5$0
April 6, 2020

MEMORANDUM FOR ALL HEADS OF DEPARTMENT COMPONENTS AND ALL UNITED STATES ATTORNEYS

FROM: SUBJECT:

THE ATTORNEY G E N E R A L W ~
Litigating Pre-Trial Detention Issues During the COVID-19 Pandemic

The mission of the Department of Justice is to enforce our nation's laws and to ensure the safe and fair administration of justice. We have an obligation to maintain public safety and to protect victims and witnesses from threats and retaliation, and we must also safeguard the health and safety of those remanded to our custody. As always, controlling weight should be given to public safety, and under no circumstance should those who present a risk to any person or the community be released. But the current COVID-19 pandemic requires that we also ensure we are giving appropriate weight to the potential risks facing certain individuals from being remanded to federal custody. Each case must be evaluated on its own and, where appropriate, the risks the pandemic presents should be part of your analysis, as elaborated further below.
First, the Bail Reform Act ("BRA") remains the governing statute for pretrial detention issues and you are to continue enforcing that provision according to its terms. As you know, the BRA provides that a defendant must be detained pending trial where "no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e)(l).
For certain crimes, it is presumed that "no condition or combination of conditions ofrelease will reasonably assure the appearance of the person as required and the safety of the community." 18 U.S.C. § 3142(e)(3). We should continue applying the BRA's factors and that presumption according to their terms. We simply cannot agree to anything that will put the public at risk. COVID-19 presents real risks, but so does allowing violent gang members and child predators to roam free. When you believe a defendant poses a risk to the safety of any person or the community at large, you should continue to seek remand as zealously today as you would have before the pandemic began, in accordance with the BRA's plain terms. Protecting the public from criminals is our paramount obligation.

Case 2:20-cv-01914-AB Document 12-3 Filed 04/20/20 Page 3 of 3

Memorandum from the Attorney General Subject: Litigating Pre-Trial Detention Issues During the COVID-19 Pandemic

Page 2

Second, in applying the familiar BRA analysis, which already includes some consideration of the defendant’s “physical and mental condition,” id., you should now consider the medical risks associated with individuals being remanded into federal custody during the COVID-19 pandemic. Even with the extensive precautions we are currently taking, each time a new person is added to a jail, it presents at least some risk to the personnel who operate that facility and to the people incarcerated therein. It also presents risk to the individual being remanded into custody—risk that is particularly acute for individuals who are vulnerable to a serious infection under the Centers for Disease Control and Prevention (“CDC”) Guidelines.
We have an obligation to minimize these risks to the extent possible while remaining faithful to the BRA’s text and discharging our overriding obligation to protect the public. That means you should consider not seeking detention to the same degree we would under normal circumstances—specifically, for those defendants who have not committed serious crimes and who present little risk of flight (but no threat to the public) and who are clearly vulnerable to COVID-19 under CDC Guidelines. In this analysis, the risk of flight and seriousness of the offense must be weighed against the defendant’s vulnerability to COVID-19. Accordingly, we should continue to seek detention for defendants who are charged with serious crimes and who pose a substantial risk of flight, or for defendants who would normally warrant detention under the BRA and who are not vulnerable to COVID-19 under CDC Guidelines.
Third, these same considerations should govern your litigation of motions filed by detained defendants seeking release in light of the pandemic. In these cases, the Court has already made a finding based on the evidence presented that a defendant posed a risk of flight or a danger to the community and should therefore be remanded pending trial. In assessing whether it is appropriate to revisit that determination, you should also consider the potential risk that the defendant will spread COVID-19 in his or her community upon release. At the same time that the defendant’s risk from COVID-19 should be a significant factor in your analysis, you should also consider any risk that releasing the defendant would pose to the public. This consideration will depend on the facts and circumstances of each defendant and the facility where he or she is being held, and you should factor this consideration into your analysis as appropriate. Our duty to protect the public extends to protecting it from contagion spread by someone released from our custody.
* * *
The factors and considerations discussed herein should guide your analysis of pretrial detention issues while the pandemic is ongoing, but what position to take in each particular case is ultimately your decision. We must adapt to the current difficult circumstances, while also ensuring that we never deviate from our duty to keep the public safe from dangerous criminals. Please exercise your discretion appropriately.

Case 2:20-cv-01914-AB Document 12-4 Filed 04/20/20 Page 1 of 6
EXHIBIT B

Case 2:20-cv-01914-AB Document 12-4 Filed 04/20/20 Page 2 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA v.

CRIMINAL ACTION NO. 15-496-9

ANTHONY HALL

MEMORANDUM OPINION Defendant Anthony Hall was convicted by a jury of one count of conspiracy to distribute 100 grams or more phencyclidine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A), and of two counts of possession with intent to distribute phencyclidine, in violation of 21 U.S.C. § 841(a)(1). He is currently detained at the Federal Detention Center (“FDC”) in Philadelphia pending sentencing. Hall, who states that he was diagnosed with renal failure in 2010, “is obese[,] and suffers from hypertension,” moves for release from detention and placement in home confinement pending sentencing. He makes his request pursuant to the Eighth Amendment of the United States Constitution,1 in consideration of the COVID-19 pandemic and the risk posed by COVID-19 to persons with underlying health condition. Hall argues that his current conditions of confinement violate the Constitution by cruelly exposing him to the possibility of contracting COVID-19. The Eighth Amendment prohibits the infliction of “cruel and unusual punishment.” U.S. Const. amend. IV. But “the Amendment proscribes more than physically barbarous punishments;” it also establishes an affirmative obligation on the government “to provide medical care for those whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97,
1 Though the government argues Hall is not entitled to release pursuant to 18 U.S.C. § 3143(a)(2), Hall has not raised a statutory argument.

Case 2:20-cv-01914-AB Document 12-4 Filed 04/20/20 Page 3 of 6
102-03 (1976). “[N]ot every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny[, however]. After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment. . . .” Fuentes v. Wagner, 206 F.3d 335, 344 (3d Cir. 2000) (internal quotations and citations omitted). Specifically, “[w]hen an Eighth Amendment claim arises in the context of a challenge to conditions of confinement, [a reviewing court] must determine if prison officials acted with deliberate indifference to the inmate’s health. The objective inquiry is whether the inmate was denied the minimal civilized measure of life’s necessities.” Id. at 345.
As of the filing of Hall’s motion, there have been no reported cases of COVID-19 in the FDC, see https://www.bop.gov/coronavirus/, and the Bureau of Prisons (“BOP”) has instituted strict containment measures, such as mandatory quarantine, regular health checks, limits on inmate movement, and limitations on entry by outside individuals, see https://www.bop.gov/resources/news/20200313_covid-19.jsp.2 In light of these measures, and in light of the fact that the City of Philadelphia to which Hall requests he be released has over 9,214 confirmed cases of COVID-19 and 365 deaths of COVID patients and rising as of the writing of this opinion, see https://www.phila.gov/programs/coronavirus-disease-2019-covid-19/, Hall has not shown that the BOP’s efforts have been deliberately indifferent, or even that he “has a higher risk of contracting COVID-19 in custody than when released,” United States v. McDonald, 2020 WL 1659937, at *3 (D. Nev. Apr. 3, 2020). Hall has also not shown that “the [FDC] would be unable to render treatment to [him] if he were to become infected,” United States v. Michael Calvert, 2020 WL 1847754, at *5 (D. Kan. Apr. 13, 2020), or that he has been otherwise “denied
2 Further, though Hall “contends that [the FDC’s] practices do not [adequately] protect against the spread of COVID-19 . . . ,[e]ven if true, this argument fails to recognize the unfortunate reality that public health officials are struggling to contain the spread of the virus in the general public as well.” United States v. Gray, 2020 WL 1554392, at *2 n.3 (D. Md. Apr. 1, 2020).
2

Case 2:20-cv-01914-AB Document 12-4 Filed 04/20/20 Page 4 of 6
the minimal civilized measures of life’s necessities,” Wagner, 206 F.3d at 345. Consequently,
Hall has not demonstrated that his continued detention at the FDC constitutes cruel and unusual
punishment in violation of the Eighth Amendment. See Price, 2020 WL 1694347, at *2 n.3
(denying sentence reduction pursuant to the Eighth Amendment where there was “no reason . . .
to believe that the facility where [defendant was] incarcerated [was] not taking reasonable
precautions to prevent spread within the facility . . . nor . . . that [defendant] would not be
provided with appropriate medical care if she were unfortunate enough to join the hundreds of
thousands of people who have been inflicted with this virus”); United States v. Gray, 2020 WL
1554392 (D. Md. Apr. 1, 2020) (same); Calvert, 2020 WL 1847754, at *5 (rejecting Eighth
Amendment for temporary pretrial release where there were “no known cases of COVID-19 at
[defendant’s facility]; and there was no evidence that the facility would be unable to render
treatment to [defendant] if he were to become infected”); McDonald, 2020 WL 1659937, at *3
(rejecting Eighth Amendment for temporary pretrial release where there was “no evidence that
[prison was] unable to provide sufficient medical treatment to Defendant in light of him
contracting COVID-19 in custody . . . [or] that Defendant has a higher risk of contracting COVID-19 in custody than when released”).3
Defendant’s request to be released to home confinement will be denied.4
An appropriate order follows.
3 Though not Eighth Amendment cases, the Third Circuit’s decisions in Raia and Roeder further support this conclusion. See United States v. Raia, 2020 WL 1647922, at *2 (3d Cir. Apr. 2, 2020) (explaining that while COVID-19 presents “risks” to inmates, “the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify” release, “especially considering [Bureau of Prison’s (“BOP”)] statutory role, and its extensive and professional efforts to curtail the virus’s spread”); United States v. Roeder, 2020 WL 1545872, at *3 (3d Cir. Apr. 1, 2020) (“[T]he existence of some health risk to every federal prisoner as the result of this global pandemic does not, without more, provide the sole basis for granting release to each and every prisoner within our Circuit.”). 4 In the alternative, Hall requests a hearing. Hall has not identified any authority for the proposition that he entitled to a hearing, “and the Court is able to resolve the motion without a hearing or oral argument.” United States v. Loveings, 2020 WL 1501859, at *3 (W.D. Pa. Mar. 30, 2020) (deciding request for temporary release under 18 U.S.C. § 3142(i) on the briefs).
3

Case 2:20-cv-01914-AB Document 12-4 Filed 04/20/20 Page 5 of 6

April 20, 2020

BY THE COURT:
/s/ Wendy Beetlestone _______________________________ WENDY BEETLESTONE, J.

4

Case 2:20-cv-01914-AB Document 12-4 Filed 04/20/20 Page 6 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA v.

CRIMINAL ACTION NO. 15-496-9

ANTHONY HALL

O R D E R AND NOW, this 20th day of April, upon consideration of Defendant’s Motion for Bail (ECF 982) and the Government’s Response thereto (ECF 983), IT IS ORDERED that this motion is DENIED.

BY THE COURT:

/s/ Wendy Beetlestone _______________________________ WENDY BEETLESTONE, J.

Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 1 of 70

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TIMOTHY BROWN, MYLES HANNIGAN, and ANTHONY HALL,
Petitioners, v.
SEAN MARLER, Respondent.

No. 2:20-cv-01914

DECLARATION OF WARDEN SEAN MARLER I, SEAN MARLER, hereby declare and state as follows: 1. I am the warden employed by the United States Department of Justice, Federal Bureau of Prisons (“BOP”), Federal Detention Center (“FDC”) in Philadelphia, Pennsylvania. 2. I submit this declaration in connection with Respondents’ response to Petitioners’ habeas corpus petition. 3. FDC Philadelphia is a detention center that houses male and female offenders being held in pretrial detention from the Eastern District of Pennsylvania, District of New Jersey and the District of Delaware. Additionally, the FDC houses inmates who have been sentenced and are in-transit to their designated institution, as well as detainees awaiting hearings from the United States Parole Commission. There is a female work cadre that houses a small number of designated female inmates. 4. The BOP’s response at FDC Philadelphia to the COVID-19 pandemic has been swift and appears to be effective. To date, there are no confirmed positive cases, inmate or staff,
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Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 2 of 70
of COVID-19. No inmate has required testing, and no inmate appears to be exhibiting symptoms.
I. Steps taken by the BOP and FDC to address COVID-19 5. INMATE MOVEMENT: Inmate internal movement is suspended with limited
exceptions. These movement exceptions may include, but are not limited to, transfers related to forensic studies, writs, Interstate Agreements on Detainers (“IAD”), medical or mental health reasons (including local medical trips), and residential placements. The BOP may need to move inmates to better manage the detention bed space as well as to assure that administrative facilities do not become overcrowded beyond available resources. Any inmate authorized for movement from all facilities must have been in BOP custody for greater than 14 days; will be subject to a medical exit screening; and must be free of symptoms.
6. SOCIAL VISITS: Social visits have been suspended since March 13, 2020 and will continue to be suspended until May 18, 2020. BOP has increased inmate telephone system minutes to 500 minutes per calendar month Bureau-wide; inmates are not charged for those calls.
7. LEGAL VISITS: Legal visits have been suspended until May 18, 2020. Case-bycase approval at the local level for in-person visits and confidential legal calls will be allowed in order to ensure access to counsel. At the FDC, the Legal Department handles all requests for legal visits, while the Unit Team will handle requests for legal calls. If approved for an in-person visit, the attorney will need to undergo advanced health screening, including a temperature check.
8. SCREENING OF STAFF: FDC implemented enhanced health screening of staff on March 20, 2020, after the CDC designated the local area as an area of “sustained community transmission.” Such screening includes self-reporting and temperature checks.
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Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 3 of 70
9. SCREENING OF INMATES: The BOP will continue to screen inmates for COVID-19. All newly-arriving BOP inmates are screened for COVID-19 exposure risk factors and symptoms. If the inmate is a new commit, who has not been in BOP custody for the previous 14 days, he or she will be placed in quarantine. Asymptomatic inmates with exposure risk factors are quarantined. Symptomatic inmates with exposure risk factors will be isolated and tested for COVID-19 per local health authority protocols. At the FDC, there is a housing unit that has been designated for quarantine and, if needed, isolation. Procedures for this housing unit are consistent with BOP guidelines to protect inmates and staff and to monitor these inmates for any symptoms.
10. OFFICIAL STAFF TRAVEL: Official staff travel, with the exception of relocation travel or staff deployed to assist other facilities, is suspended until May 31, 2020.
11. TRAINING: All staff training is suspended (including conferences and meetings), with the exception of basic training for new staff, until May 31, 2020.
12. CONTRACTORS: Contractors performing essential services or necessary maintenance on essential systems will undergo advanced health screening, including a temperature check. All other contractor access is suspended. Contractors who require access will be screened using the same procedures as staff prior to entry. Essential services include, for example, medical services, mental health services, religious services and critical infrastructure repairs. All contractors (and any other visitors) must complete the Visitor/Volunteer/Contractor COVID-19 Screening Tool, a form asking about symptoms and requiring a temperature check.
13. VOLUNTEERS: Volunteer visits are suspended until May 18, 2020, unless approved by the Deputy Director of the BOP. Alternate means of communication will be considered for inmates who request to speak with a religious advisor. Volunteers who are
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Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 4 of 70
approved for access will be screened using the same procedures as staff prior to entry and, as noted above, must complete the Visitor/Volunteer/Contractor COVID-19 Screening Tool.
14. MODIFIED OPERATIONS: BOP is implementing modified operations to maximize social distancing in our facilities. On April 1, 2020, the BOP moved to a stay-in-place phase. Inmates are confined to their cell, except that limited group gatherings will be allowed to the extent practical to access the commissary, laundry, showers, telephone and the Trust Fund Limited Computer System (“TRULINCS”), which provides email.1 At the FDC, inmates are allowed out of their cells, in small groups, one hour a day, to allow them to take a shower and use the phone or email. Commissary and laundry exchange are done once a week during the lunch meal. Housing Unit orderlies will work periodically throughout the day to sanitize high touch areas. Each cell was provided with cleaning supplies, including a chemical rated to kill the coronavirus. All inmates and staff have been provided masks to wear when social distancing is not possible.
II. The FDC’s Implementation of the BOP’s Action Plan 15. The above-described modified operations result from implementation of the
BOP’s Action Plan for COVID-19 response. The Action Plan has been implemented nationally in six phases to date, which are described in detail on the BOP’s website: https://www.bop.gov/coronavirus/index.jsp.
1 TRULINCS is the internal Bureau computer and electronic message platform that inmates use to communicate with staff in the institutions and individuals in the community. Through this platform, inmates receive updates, notices, and can read inmate bulletins posted on the system by Bureau staff.
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Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 5 of 70
Phase One 16. In January 2020, the BOP began Phase One of its Action Plan for COVID-19. Phase One activities included, among other things, seeking guidance from the BOP’s Health Services Division regarding COVID-19 and its symptoms, where in the United States infections were occurring, and the best practices to mitigate its transmission. In addition, an agency task force was established to begin strategic planning for COVID-19 BOP-wide. This strategic planning included building on the BOP’s existing procedures for pandemics, such as implementing its pre-approved Pandemic Influenza Plan. From January 2020 through the present, the BOP has been coordinating its COVID-19 efforts with subject-matter experts both inside and outside of the agency. BOP has implemented guidance and directives from the World Health Organization (“WHO”), the Centers for Disease Control and Prevention (“CDC”), the Office of Personnel Management (“OPM”), the Department of Justice (“DOJ”), and the Office of the Vice President. Phase Two 17. On March 13, 2020, the BOP implemented “Phase Two” of its Action Plan.2 Phase Two put into place a number of restrictions across all Bureau facilities over a 30-day period, to be reevaluated upon the conclusion of that time period. Specifically, the BOP suspended the following activities for a period of 30 days, with certain limited exceptions: social visits; legal visits; inmate facility transfers; official staff travel; staff training; contractor access; volunteer visits; and tours. To help ensure inmates maintained social ties, the BOP increased the telephone allotment to 500 minutes per month.
2 See https://www.bop.gov/resources/news/20200313_covid-19.jsp.
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Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 6 of 70
18. At the FDC, a procedure was put into place to allow necessary legal visitation and increased legal calls so that inmates could maintain contact with their counsel. The Legal Department was selected as the point of contact for legal visitation. An attorney may contact Staff Attorney Alisha Gallagher, who reviews the request to determine urgency and the need for an in-person visit. I have the final authority to approve visits. The Unit Managers continue to review requests for legal calls and their staff provide the calls. There has been no change to the mail procedures; inmates continue to receive mail and can contact their attorneys via email and monitored phone lines.
19. In addition, during Phase Two, inmates were subjected to new screening requirements. Specifically, all newly arriving BOP inmates were screened for COVID-19 symptoms and “exposure risk factors,” including, for example, if the inmate had traveled from or through any high-risk COVID-19 locations (as determined by the CDC), or had had close contact with anyone testing positive for COVID-19. Asymptomatic inmates with exposure risk factors were quarantined, and symptomatic inmates with exposure risk factors were isolated and evaluated for possible COVID-19 testing by local BOP medical providers.
20. Staff were also subjected to enhanced health screening in areas of “sustained community transmission,” as determined by the CDC, and at medical referral centers. Pennsylvania was designated a “sustained community transmission” state on March 19, 2020, and the FDC implemented this enhanced screening for staff and contractors at that time. The enhanced screening measures required all staff to self-report any symptoms consistent with COVID-19, as well as any known or suspected COVID-19 exposure, and further required all staff to have their temperature taken upon entry into any BOP facility.
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Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 7 of 70
21. Finally, in addition to the measures listed above, the BOP implemented national “modified operations” in order to maximize social distancing within BOP facilities. These modifications included staggered meal times and staggered recreation times, for example, in order to limit congregated gatherings. Additionally, the BOP established a set of quarantine and isolation procedures for known or potential cases of COVID-19.
Phase Three 22. On March 18, 2020, the BOP implemented Phase Three of the COVID-19 Action Plan for BOP locations that perform administrative services (i.e., non-prison locations), which followed DOJ, Office of Management and Budget, and OPM guidance for maximizing telework.3 In this phase, individuals who had the ability to telework and whose job functions did not require them to be physically present were directed to begin teleworking. Because of FDC’s mission, no FDC staff are teleworking. 23. Additionally, as part of this phase, and in accordance with the Pandemic Influenza contingency plan, all cleaning, sanitation, and medical supplies were inventoried. Phase Four 24. On March 26, 2020, the BOP implemented Phase Four of its Action Plan. In Phase Four, the BOP revised its preventative measures for all institutions. Specifically, the agency updated its quarantine and isolation procedures to require all newly admitted inmates to the BOP, whether in areas of sustained community transmission or not, to be assessed using a screening tool and temperature check. This screening tool and temperature check applied to all new intakes, detainees, commitments, prisoners returned on writ from judicial proceedings, and parole violators, regardless of their method of arrival. Thus, all new arrivals to any BOP
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Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 8 of 70
institution—even those who were asymptomatic—were placed in quarantine for a minimum of 14 days or until cleared by medical staff. Symptomatic inmates were placed in isolation until they tested negative for COVID-19 or were cleared by medical staff as meeting CDC criteria for release from isolation.
25. Under current procedures, at the FDC, if an inmate begins to develop COVID-19 symptoms, staff will conduct a COVID-19 test and send it to a lab for results. The inmate will be placed in isolation until the results of the test are received, and FDC staff will provide medical treatment. If the inmate’s health declines to the point that FDC staff believe the inmate can no longer be treated at the FDC, FDC staff will contact the local public health authorities to determine which hospital can treat the inmate.
26. At the FDC, an empty housing unit (“7 North”) was opened as a quarantine unit. Guidance was provided to staff on the proper personal protective equipment to be utilized while on this housing unit and interacting with inmates. The unit is restricted to those staff necessary to provide the mission of the unit. Inmates on this unit are restricted to their cell except when escorted by a staff member for showers, phone calls, or video court proceedings. Inmates are monitored twice a day by health services staff for symptoms of COVID-19. After 14 days, if the inmate has not developed symptoms, they are then placed into general population.
Phase Five 27. On March 31, 2020, the BOP Director ordered the implementation of Phase 5 of its COVID-19 Action Plan, which took effect on April 1, 2020.4 Specifically, the Director ordered the following steps to be taken:
3 https://www.bop.gov/resources/news/pdfs/20200324_bop_press_release_covid19_update.pdf 4 https://www.bop.gov/resources/news/20200331_covid19_action_plan_5.jsp
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a. For a 14-day period, inmates in every institution will be secured in their assigned cells/quarters to decrease the spread of the virus.
b. During this time, to the extent practicable, inmates should still have access to programs and services that are offered under normal operating procedures, such as mental health treatment and education.
c. In addition, the BOP is coordinating with the United States Marshals Service (“USMS”) to significantly decrease incoming movement during this time.
d. After 14 days, this decision will be reevaluated and a decision made as to whether or not to return to modified operations.
e. Limited group gathering will be afforded to the extent practical to facilitate commissary, laundry, showers, telephone, and TRULINCS access.
Phase Five 28. Phase Five was implemented at the FDC on April 1, 2020. Thus, all inmates at the FDC are confined to their cells for the majority of each day. Inmates are permitted to leave their cells in small groups on a rotating basis at designated times in order to engage in activities such as showers, phones, and TRULINCS. For meals, inmates are released in small groups to retrieve their meals and then return to their cells. 29. This modification to the BOP’s action plan is based on health concerns, not disruptive inmate behavior. Inmates may be outside their cells in these small groups for approximately an hour per day. During these time periods, inmates have been directed to maintain appropriate physical distancing. 30. On April 6, 2020, additional social distancing measures were implemented in all facilities. All staff members and inmates were issued surgical masks to be used in interaction
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Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 10 of 70
with persons when social distancing was not possible. Masks were issued to staff members and inmates on April 6, 2020 and are reissued weekly.
Phase Six 31. On April 13, 2020, the BOP Director ordered implementation of Phase 6 of its COVID-19 Action Plan.5 Specifically, the Bureau continued its nationwide action as described in Phase 5 Action Plan until May 18, 2020. Additionally, the suspension of visitation was extended until May 18, 2020. All staff training and official travel was suspended until May 31, 2020. All staff and inmates will continue to be issued face masks and strongly encouraged to wear an appropriate face covering when in public areas when social distancing cannot be achieved. III. The BOP’s Authority to Place Inmates on Home Confinement 32. The BOP’s statutory authority to transfer prisoners to home confinement rests in 18 U.S.C. § 3624(c)(2) and 34 U.S.C. § 60541. The BOP’s policy and procedures regarding home confinement are outlined in BOP Program Statement 7320.01, Home Confinement, attached as Exhibit 1, and BOP Operations Memorandum, Home Confinement under the First Step Act, attached as Exhibit 2. Both statutes set forth certain limitations with respect to the BOP’s transfer authority. See 18 U.S.C. § 3624(c)(2) and 34 U.S.C. § 60541. However, pursuant to the Attorney General’s directives in light of the COVID-19 pandemic, dated March 26, 2020 and April 3, 2020, described below, and given the surge in positive cases at select sites, the BOP began immediately reviewing all inmates who have COVID-19 risk factors, as described by the CDC, to determine which inmates are suitable for home confinement. Since the release of the Attorney General’s March 26, 2020 memorandum, the BOP is prioritizing transfers
5 https://www.bop.gov/resources/news/pdfs/20200414_press_release_action_plan_6.pdf
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Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 11 of 70
to home confinement of all suitable inmates as an appropriate response to the COVID-19 pandemic.
IV. The Attorney General’s March 26, 2020 Memorandum for the Director of the BOP 33. On March 26, 2020, the Attorney General issued a Memorandum for the Director
of the Bureau of Prisons (the March 26 Memorandum) to ensure that, in light of the COVID-19 pandemic, BOP utilizes home confinement, where appropriate, to protect the health and safety of BOP personnel and people in BOP’s custody. A copy of the March 26 Memorandum is attached as Exhibit 3. Pursuant to the Memorandum, BOP is prioritizing the use of its statutory authorities to grant home confinement for inmates seeing transfer in connection with the ongoing COVID-19 pandemic. The March 26 Memorandum noted that many inmates will be safer in BOP facilities where the population is controlled and there is ready access to doctors and medical care. But for some eligible inmates, home confinement might be more effective in protecting their health.
34. In assessing whether home confinement should be granted pursuant to the March 26 Memorandum, BOP considers the totality of circumstances for each individual inmate, the statutory requirements for home confinement, and the following non-exhaustive list of discretionary factors:
a. The age and vulnerability of the inmate to COVID-19, in accordance with the CDC guidelines;
b. The security level of the facility currently holding the inmate, with priority given to inmates residing in low and minimum security facilities;
c. The inmate’s conduct in prison, with inmates who have engaged in violent or gang-related activity in prison or who have incurred a BOP violation within the last year not receiving priority treatment;
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Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 12 of 70
d. The inmate’s score under PATTERN (the Prisoner Assessment Tool Targeting Estimated Risk and Need),6 with inmates who have anything above a minimum score not receiving priority treatment;
e. 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 BOP facility;
f. 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 confinement. Other serious offenses weigh heavily against consideration for home confinement. 35. In addition to considering these factors, the March 26 Memorandum stated that before granting any inmate discretionary release, the BOP Medical Director, or someone he designates, will, based on CDC guidance, make an assessment of the inmate’s risk factors for severe COVID-19 illness, risks of COVID-19 at the inmate’s prison facility, as well as the risk of COVID-19 at the location in which the inmate seeks home confinement. The BOP will not grant home confinement to inmates when doing so is likely to increase their risk of contracting COVID-19. The BOP will grant home confinement only when it has determined -- based on the totality of circumstances for each individual inmate -- that transfer to home confinement is likely not to increase the inmate’s risk of contracting COVID-19. 36. Moreover, the March 26 Memorandum noted that for the protection of the public, any inmate to whom BOP grants home confinement is to be placed in a mandatory 14-day quarantine period before that inmate is discharged from a BOP facility to home confinement. Inmates transferred to home confinement under this prioritized process are also subject to location monitoring devices and, where a court orders, subject to supervised release.
6 For more information on PATTERN, please visit www.bop.gov via Inmates/ First Step Act tab.
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Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 13 of 70
V. The CARES Act and the Attorney General’s April 3, 2020 Memorandum for the Director of the BOP 37. The Coronavirus Aid, Relief, and Economic Security (CARES) Act, Public Law
No. 116-236 (enacted March 27, 2020), authorizes the Attorney General to expand the cohort of inmates who can be considered for home confinement upon his finding of emergency conditions that are materially affecting the function of the BOP. On April 3, 2020, the Attorney General made that finding, and in a Memorandum for the Director of the Bureau of Prisons (the April 3 Memorandum), authorized the Director to immediately maximize appropriate transfers to home confinement of all appropriate inmates held at BOP facilities where the Director determines that COVID-19 is materially affecting operations. A copy of the April 3 Memorandum is attached as Exhibit 4.
38. The April 3, 2020 Memorandum directed that the BOP give priority in implementing the new standards to the most vulnerable inmates at the most affected facilities and was explicit that the BOP should begin implementing this directive immediately at the identified facilities and any other facilities facing similarly serious problems. The April 3 Memorandum stated that the review should include all at-risk inmates—not only those who were previously eligible for transfer.
39. For inmates deemed suitable candidates for home confinement, the April 3 Memorandum directed the BOP to immediately process these inmates for transfer and then transfer them following a 14-day quarantine at an appropriate BOP facility, or in appropriate cases, in the residence to which the inmate is being transferred. The assessment of these inmates is guided by the factors in the March 26, 2020 Memorandum.
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Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 14 of 70
40. The April 3 Memorandum also recognized that the BOP has limited resources to monitor inmates on home confinement and that the U.S. Probation Office is unable to monitor large number of inmates in the community. The April 3 Memorandum therefore authorized the BOP to transfer inmates to home confinement even if electronic monitoring is not available, so long as it determines in every instance that doing so is appropriate and consistent with the obligation to protect public safety.
41. Lastly, the April 3 Memorandum stated that it is essential for the BOP to continue making determinations for home confinement in a careful and individualized way that remains faithful to the duty of protecting the public and law enforcement officers.
VI. The BOP’s Implementation of the March 26 and the April 3 Memoranda 42. The BOP is devoting all available resources to executing the Attorney General’s
directives, with such resources tailored and prioritized according to the needs of individual institutions across the country. The BOP is assessing the inmate population to determine which inmates would be appropriate for transfer under this priority program. The BOP is then processing those inmates for transfer as expeditiously as possible.
43. The BOP is also frequently updating its public website to provide information and responses to frequently asked questions regarding its response to the COVID-19 pandemic, including providing information regarding its implementation of the Attorney General’s directives.
44. Since the March 26 Memorandum instructing the BOP to prioritize home confinement as an appropriate response to the COVID-19 pandemic, as of April 19, the BOP placed an additional 1,252 inmates on home confinement. See www.bop.gov.
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Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 15 of 70

45. Inmates do not need to apply to be considered for home confinement. BOP Case

Management staff are urgently reviewing all inmates to determine which ones meet the criteria

established by the Attorney General. While all inmates are being reviewed for suitability for

home confinement, any inmate who believes he or she is eligible may request to be referred to

home confinement and provide a release plan to his or her Case Manager. Inmates have been

made aware that the Unit Team is the point of contact for such requests.

46. It should be noted that for public safety reasons and in accordance with the March

26 Memorandum, the BOP is also assessing a number of factors to ensure that an inmate is

suitable for home confinement. These factors include, but are not limited to: (1) reviewing the

inmate’s institutional discipline history for the last twelve months; (2) ensuring that the inmate

has a verifiable release plan; (3) verifying that the inmate’s primary offense is not violent, a sex

offense, or terrorism related; and (4) confirming the inmate does not have a current detainer.

47. If the incarcerated individual does not qualify for home confinement under the

CARES Act, an inmate may be reviewed for placement in a Residential Reentry Center and

home confinement near the end of his or her sentence, in accordance with applicable laws and

BOP policies.

48. At the FDC, nine individuals were identified as possibly eligible for home

confinement under the guidance set forth in the March 26 and April 3 Memoranda. Four

individuals were found to be ineligible due to safety and security concerns or release planning

issues. One individual has been approved with four additional referrals pending approval.

VII.

Compassionate Release/ Reduction in Sentence Procedures

49. Because Congress, by statute, set out the procedures governing compassionate

release, the BOP lacks the authority to provide inmates with a reduction in sentence through

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Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 16 of 70
compassionate or “early release.” Rather, only an Article III judge—specifically, the inmate’s sentencing judge—may bring about such a reduction of an inmate’s federal sentence. However, on an inmate’s request, the Director of the BOP may make a motion to an inmate’s sentencing court to reduce a term of imprisonment under 18 U.S.C. § 4205(g) and 18 U.S.C. § 3582(c)(1)(A). The BOP uses these statutory authorities in “extraordinary or compelling circumstances” that could not have reasonably have been foreseen by the court at the time of sentencing. This process is outlined in BOP Program Statement 5050.50, Compassionate Release/Reduction in Sentence Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g). This BOP program statement is attached as Exhibit 5.
50. Additionally, the First Step Act specifies that an inmate may file a Motion for Reduction of Sentence directly to the sentencing court after exhaustion of administrative remedies, or 30 days from the date the warden receives such a request from the inmate, whichever is earlier. See 18 U.S.C. § 3582(c)(1)(a).
51. COVID-19 may affect whether an inmate can show an “extraordinary and compelling reason” warranting compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i)—but only to the extent that: (1) the inmate has a condition or characteristic that is a cognizable basis for compassionate release under the current criteria (e.g., a serious medical condition, debilitating condition, elderly offender with medical conditions, etc.) and that condition or characteristic also elevates the inmate’s risk of becoming seriously ill from COVID-19 under the CDC guidelines; and (2) the inmate is more likely to contract COVID-19 in his or her particular institution than if released.
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Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 18 of 70
EXHIBIT 1

Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 19 of 70

U.S. Department of Justice Federal Bureau of Prisons

CHANGE NOTICE

OPI:

RSD/RSB

NUMBER: 7320.01, CN-2

DATE:

December 15, 2017

Home Confinement

Approved: Mark S. Inch Director, Federal Bureau of Prisons
This Change Notice (CN) implements the following change to Program Statement 7320.01, Home Confinement, dated September 6, 1995. The single change is marked with a highlight and inserted into the policy.
6. ELIGIBILITY FOR HOME CONFINEMENT. All inmates referred to community corrections are eligible to be considered for home confinement placement.
While the Bureau also provides Community Corrections Center (CCC) services for persons as a condition of probation, parole, or supervised release, only in the most extraordinary circumstances will the Bureau assume responsibility for such persons on home confinement.
The Community Corrections Manager (CCM) shall ensure that each appropriate inmate is placed on home confinement as soon as otherwise eligible. The CCM shall can consult with the Community Corrections Regional Administrator (CCRA), or designee, prior to placing on home confinement any inmate for whom any of the following factors apply:

Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 20 of 70

U.S. Department of Justice Federal Bureau of Prisons

CHANGE NOTICE

OPI:

RSD/RSB

NUMBER: 7320.01, CN-1

DATE:

August 1, 2016

Home Confinement

/s/ Approved: Thomas R. Kane
Acting Director, Federal Bureau of Prisons
This Change Notice (CN) implements a change to Program Statement 7320.01, Home Confinement, dated September 6, 1995. This CN removes the requirement of subsistence collection for any resident while on Home Confinement. The new language is highlighted.
The following language is removed from Section 8.c.(2) of the Program Statement:
(2) Subsistence Contributions. Providers shall collect 25% of each employed resident's weekly gross income, rounded down to a whole dollar amount. Home confinement residents who are not employed, but have other means of financial support, shall contribute an appropriate amount as determined by the provider and approved by the CCM. Ordinarily, the amount should approximate 25% of the resident's weekly income. Subsistence contributions collected shall be used to defray program costs, and the provider shall deduct the amount collected from the amounts billed to the Bureau. In many cases, inmate subsistence contributions will cover the entire cost of home confinement; however, individual subsistence collections may not exceed the weekly cumulative contract per diem rate (i.e., the daily rate x 7). Providers shall provide receipts to program participants for all collections and shall maintain collection records for audit purposes.
Section 8.c.(2) now reads:
(2) Subsistence Contributions. Home confinement residents are not required to pay subsistence.

Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 21 of 70
U.S. Department of Justice Federal Bureau of Prisons
OPI: CCD NUMBER: 7320.01
DATE: September 6, 1995 SUBJECT: Home Confinement
1. PURPOSE AND SCOPE. To establish policy and procedures for referral and placement of pre-release inmates in Community Corrections home confinement programs.
Title 18, Section 3624(c) of the United States Code allows inmates sentenced under "old law" and "new law" statutes, to be placed on home confinement for pre-release purposes:
(c) Pre-release custody.--The Bureau of Prisons shall, to the extent practicable, assure that a prisoner serving a term of imprisonment spends a reasonable part, not to exceed six months, of the last 10 per centum of the term to be served under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for his reentry into the community. The authority provided by this subsection may be used to place a prisoner on home confinement. The United States Probation System shall, to the extent practicable, offer assistance to a prisoner during such pre-release custody.
Ordinarily, the length of placement ordinarily is limited to the last 10 percent of the inmate's term to be served, or six months, whichever is less. An exception is inmates with sentences of more than 12 months but not more than 30 months who have successfully completed the institutional phase of the Intensive Confinement Centers (ICCs) program. Bureau authority for ICCs is established by Title 18, U.S.C., Section 4046.
The Bureau does not have statutory authority to designate a home confinement program for an inmate at the beginning of his or her sentence. This is supported in Title 18, U.S.C., Section 3621, which requires that the Bureau designate any available penal or correctional facility as the place of a prisoner's imprisonment.
Home confinement is a time of testing and an opportunity for inmates to assume increasing levels of personal responsibility while providing sufficient restriction to promote community safety and continue the sanction of the sentence.

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P.S. 7320.01 September 6, 1995
Page 2

Compliance with the conditions of home confinement may be monitored by electronic monitoring equipment or by regular telephone or in person contacts by supervision staff. Supervision may be provided by staff from the U.S. Probation Service, contract halfway house services, or other governmental agencies.

2. PROGRAM OBJECTIVES. The expected results of this program are:

a. Inmates who are eligible and approved will be placed on home confinement programs.

b. Inmates on home confinement programs will receive appropriate supervision.

c. The public will be protected from any undue risk.

d. Any inmate who violates a condition of home confinement will be appropriately disciplined, depending on the nature of the violation.

3. DIRECTIVES REFERENCED

P.S. 5100.05
P.S. 7300.08 P.S. 7310.02

Security Designation and Custody Classification Manual (06/16/94) Community Corrections Manual (04/01/91) Community Corrections Center (CCC) Utilization and Transfer Procedure (10/19/93)

4. STANDARDS REFERENCED. None.

5. DEFINITIONS. For the purposes of this Operations Memorandum, the following definitions apply:

a. Home Confinement. Any circumstance in which the inmate is required to remain in the home during specified hours.

b. Electronic Monitoring Equipment. The telemetry technology used to ensure that a program participant remains in a specified location during the required hours:

(1) Continuously Signalling Devices. A "transmitter" worn by the inmate which emits a signal with a range of 100 to 200 feet.

The signal is received by a receiver dialer unit installed at the monitored location to notify the central computer when the inmate comes within or goes out of range of the unit. The central computer contains the inmate's schedule and, when notified of a change in the inmate's status, compares the time with the schedule to determine if the break in contact is authorized. If not authorized, the computer sends an alert.

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P.S. 7320.01 September 6, 1995
Page 3
(2) Programmed Contact Device. A computer which contacts the inmate periodically to ensure that he or she is at the monitored location and verifies that the person responding is the monitored inmate.
Verification may be accomplished in a variety of ways, including, but not limited to, a device the inmate wears and voice verification.
(3) "Hybrid" Equipment. Equipment which combines the two types of equipment described above but functions similarly to a continuously signalling device.
When the equipment notes the inmate has left the monitored range at an unauthorized time, it functions similarly to a programmed contact device by telephonically contacting the inmate and verifying that the person responding is the monitored inmate. If verification does not occur, notification of the violation is made.
c. "Old Law" and "New Law" Sentences
(1) "Old law" refers to the federal criminal code in effect prior to the implementation of the Sentencing Reform Act of 1984 (Title II of the Comprehensive Crime Control Act of 1984).
(2) "New law" is that Act (also known as the Sentencing Guidelines) which applies to federal criminal offenses committed on or after November 1, 1987.
6. ELIGIBILITY FOR HOME CONFINEMENT. All inmates referred to community corrections are eligible to be considered for home confinement placement.
While the Bureau also provides Community Corrections Center (CCC) services for persons as a condition of probation, parole, or supervised release, only in the most extraordinary circumstances will the Bureau assume responsibility for such persons on home confinement.
The Community Corrections Manager (CCM) shall ensure that each appropriate inmate is placed on home confinement as soon as otherwise eligible. The CCM shall can consult with the Community Corrections Regional Administrator (CCRA), or designee, prior to placing on home confinement any inmate for whom any of the following factors apply:
a. Public Safety Factors as defined in the Security Designation and Custody Classification Manual; or
b. Central Inmate Monitoring case (except "pure" separation cases); or

Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 24 of 70
P.S. 7320.01 September 6, 1995
Page 4
c. Sensitive, or high profile case or one who might generate undue public concern; or
d. History of escape or prior CCC failure; or
e. Unlikely to be employed. Historically, inmates who were not going to be employed were often excluded from community corrections placements. Examples are inmates who are elderly, retired, disabled, chronically ill, unable to work at paid employment, occupied in caring for their own young children or ill or disabled family members.
When such inmates are otherwise eligible, institutions are encouraged to refer them for direct placement on home confinement with special reporting requirements arranged by the CCM. Of primary concern is ensuring that the Bureau does not incur community medical costs.
7. REFERRAL TO COMMUNITY CORRECTIONS. Institution staff shall refer inmates for pre-release placement to the appropriate CCM, who, after reviewing the referral material, shall refer the case to the most appropriate program -- CCC, Comprehensive Sanctions Center (CSC), home confinement program, or other community program.
An inmate may not apply for a particular community program. Once approved for a program, the inmate must agree to all required conditions of that program.
a. Referral Packet. Referral packets shall include the Agreement, Home Confinement and Community Control (Attachment A), along with all materials required in the Program Statement on Community Corrections Center (CCC) Utilization and Transfer Procedure. An inmate who refuses to sign Attachment A may not be considered for participation in Community Corrections programs.
The referral should indicate the level of services anticipated, including:
(1) the appropriateness of placement in a home confinement program;
(2) the inmate's residence and job or good job prospects to expedite placement on home confinement;
(3) the inmate's need for placement in the more restrictive component of the CCC; and
(4) the inmate's need for placement in a specialized program such as substance abuse treatment.

Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 25 of 70
P.S. 7320.01 September 6, 1995
Page 5
b. CCM Review. Upon receiving each referral packet, the CCM is to review the referral in light of the programming options available in the inmate's release destination area.
Occasionally, a referral may indicate no obvious risk to the community and no need for CCC services (for example, a supportive family, a stable residence, confirmed employment (if employable), and a positive institutional adjustment). In such cases, the CCM may bypass a CCC and place the inmate directly on home confinement.
Conversely, higher risk inmates requiring extensive transition assistance may not be placed on home confinement at all, or placed only briefly following CCC placement.
c. Inmate Declination. An inmate who declines to participate in a recommended home confinement program may be transferred to a more secure facility.
8. PLACEMENT ON HOME CONFINEMENT. Only the CCM may approve home confinement. The CCM shall notify the U. S. Probation Officer (USPO) prior to final approval of placement on home confinement and document that notification is in the file. General considerations are:
a. Program Selection. In some jurisdictions, home confinement programs may be available through a U. S. Probation office, a contract CCC or under an Intergovernmental Agreement. The CCM shall select the program most likely to meet the inmate's needs, giving consideration to such factors as cost effectiveness, geography, and other management variables.
Home Confinement Program requirements, including accountability and other supervision needs, are specified in Attachment B. The CCM must approve any modification to these requirements in advance.
b. Release Plan Verification. To approve a home confinement placement, the CCM must have written verification of the release plan from either the USPO or the CCC, including:
(1) The planned residence, including assurance that it has telephone service without prohibited services listed in Attachment A;
(2) Adults sharing the residence with the inmate are aware of, and not opposed to, the inmate's plan to participate in the program; and,
(3) Employment (for employable inmates). Release employment is desirable but not required.

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P.S. 7320.01 September 6, 1995
Page 6
c. Inmate Requirements for Placement. To be placed on home confinement, the inmate must sign the "Conditions of Home Confinement" BP-460(73) prior to placement. The CCM may permit "call waiting" on the telephone of inmates whose placement on home confinement is not electronically monitored.
(1) Medical and Dental Expenses. Inmates on home confinement programs are responsible for their own medical and dental care expenses. If they are unable, or if they refuse, to be responsible for such costs, they may be returned to a federal institution for evaluation and possible treatment. In an emergency, the provider may obtain the necessary medical treatment required to preserve the inmate's health but must notify the CCM of such treatment within 24 hours.
(2) Subsistence Contributions. Home confinement residents are not required to pay subsistence.
d. Transfer Orders. When an inmate is being transferred from a CCC to a home confinement program operated by an agency other than that CCC, the CCM shall prepare the Transfer Order to document the official transfer to home confinement. Otherwise, a Transfer Order is not required.
e. Inmate Needs. Inmates identified as needing other community-based program activities such as mental health or drug treatment, shall normally be able to continue these programs when placed on home confinement. The CCM shall coordinate the continuation with the provider.
9. PROGRAM VIOLATIONS. The CCM shall ensure that each provider of home confinement services develops a system for handling violations of program rules which meets the "due process" criteria of Wolff v. McDonnell and includes provisions for

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P.S. 7320.01 September 6, 1995
Page 7
dealing with minor infractions of program rules and with major violations that could result in the inmate's termination from the program. The provider must report every violation to the CCM within 24 hours.
10. MODIFICATION OF PROGRAM REQUIREMENTS. Attachment B specifies the required frequency and nature of contacts required between the provider and the inmate.
After consultation with the provider and the USPO, the CCM, using sound correctional judgement, may permit modification to these requirements, based on the unique characteristics of each case. The CCM is encouraged to discuss potential modifications with the Management Center Administrator (MCA) and/or the CCRA.
Among the circumstances under which the CCM may typically consider modification are those where:
# distance or travel time make it impractical for staff and the inmate to travel; and/or
# the inmate has successfully demonstrated the ability and willingness to conform to all program requirements for a reasonable period (ordinarily two weeks minimum).
In any case, however, unless continuously signalling electronic monitors are used, the home confinement monitor must initiate telephone contact with the inmate no less than once each day at random times of the day.
11. PLACEMENT ON HOME CONFINEMENT FOLLOWING CCC PLACEMENT. CCCs provide transition services for inmates being released from institutions. When an inmate has employment and a place to live and has demonstrated that he/she no longer requires the level of accountability and services the CCC provides, the inmate may be placed on home confinement. For various reasons, some inmates may never progress to a level of responsibility which would warrant placement on home confinement.
12. PROCEDURES FOR DIRECT INMATE PLACEMENT ON HOME CONFINEMENT. If there is a electronically monitored program available, an inmate who does not require CCC transitional services may be placed directly on home confinement from an institution.
a. Eligibility. Generally, an inmate may be considered eligible for direct placement on home confinement if he or she:
# has no public safety factors, # had excellent institutional adjustment, # has a stable residence with a supportive family, # has confirmed employment (if employable), and # has little or no need for the services of a CCC.

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P.S. 7320.01 September 6, 1995
Page 8
b. Placement. If the inmate's plan is satisfactory, the home confinement provider and the CCM shall establish the inmate's placement date. The provider shall provide a written notification of the acceptance and the reporting date to the CCM, with a copy to the referring institution. The reporting date should be a weekday, and the inmate shall be required to report to the provider within 24 hours of reaching the release jurisdiction. The CCM shall notify the referring institution via SENTRY and provide instruction on when and where the inmate should report.
Institution staff shall prepare a Transfer Order to document the official transfer to home confinement. Institution staff shall also prepare the Authorized Unescorted Commitment and Transfer Card, BP-385, including the inmate's picture and fingerprints, and forward it to the CCM at least two weeks prior to the placement. The CCM shall forward it to the appropriate USPO.
If an inmate is eligible for direct placement on home confinement, but an electronically monitored home confinement program is not available, the CCM and the provider shall arrange for an initial short placement (approximately two weeks) in a CCC to allow the provider to become acquainted with the inmate, orient him or her to the expectations of the program, and assure that the job and living arrangements are appropriate. After successfully completing that process, the inmate may be placed on home confinement with the CCM's approval.
When problems arise during the orientation period which indicate direct placement on home confinement is inappropriate or should be delayed, the CCM shall delay such placement until the problems have been resolved.
13. SENTRY RECORDS. A waiting list has been established in SENTRY to allow CCMs to ensure that all inmates are considered for placement when eligible and reviewed regularly until placed.
A PP34 transaction will establish WLS category to indicate HC ELIG, and a TARGET FOR HOME CONFINEMENT will then be reflected on the PP42 and the PP44.
The CCM office uses a PP63 transaction to ensure all inmates in Bureau custody are tracked in SENTRY while on home confinement programs and have an ARS assignment reflecting that placement. Inmates assigned to Bureau provider programs shall have that provider's home confinement program location code with an LOCG EQ TH**. Inmates assigned to U. S. Probation Service (USPS) programs shall be shown with LOCG EQ TH*U and a location indicating the judicial district. (As examples, the Southern District of Florida would be FFLS, and the District of Colorado would be FCO.)

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P.S. 7320.01 September 6, 1995
Page 9
14. FORMS. Institution and Community Corrections staff are to duplicate forms locally.
15. DISTRIBUTION. In addition to normal distribution for Program Statements, copies of this Program Statement shall be available to inmates in inmate law libraries.
CCMs shall provide copies of this Program Statement to Chief USPOs and CCC contractors in their service areas.
\s\ Kathleen M. Hawk Director

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BP-S548.073 SEP 1995

AGREEMENT

P.S. 7320.01
September 6, 1995 Attachment A, Page 1

HOME CONFINEMENT AND COMMUNITY CONTROL

I, Name

,

,

Register Number

hereby agree to abide by the following Conditions related to my legal participation on home confinement.

I understand that my participation on home confinement will be an alternative to placement in a Community Corrections Center for no more than the last six (6) months or 10% of my sentence, whichever is less. I am aware that I will legally remain in the custody of the Bureau of Prisons and/or the U.S. Attorney General and that failure to remain at the required locations may result in disciplinary action and/or prosecution for escape.

I agree to report to my assigned probation officer or the contractor's facility immediately upon reaching my release destination.

I understand that if I decline to participate in the recommended home confinement program I may face administrative reassignment out of the community corrections program.

I agree that during the home confinement period, I will remain at my place of residence, except for employment, unless I am given permission to do otherwise. I also understand that I will be required to pay the costs of the program based on my ability to pay.

I also agree to maintain a telephone at my place of residence without "call forwarding", a modem, "Caller ID" or portable cordless telephones for this period.

I also agree that, if my confinement is to be electronically monitored, I will wear any electronic monitoring device required, follow procedures specified and will not have "call forwarding" on my telephone.

Name

, Date

Staff Witness (Printed Name, Signature, Facility) Original to Central File. Copy to CCM.

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P.S. 7320.01 September 6, 1995 Attachment B, Page 1
REQUIREMENT FOR HOME CONFINEMENT PROGRAMS
I. The following procedures apply to all inmates who are approved for placement on home confinement.
1. The provider is not required to provide meals, medical treatment, clothing or incidentals, laundry services or other subsistence items to inmates on home confinement.
2. The provider shall maintain documentation of all staff contacts with inmates on home confinement.
3. The provider shall notify the CCM immediately of any misconduct or failure of an inmate on home confinement to comply with Home Confinement Conditions.
4. The provider is not required to reserve a bed at the center for an inmate on home confinement.
5. The provider shall collect 25% of each employed resident's weekly gross income, rounded down to a whole dollar amount. Residents who are not employed, but who have other means of financial support shall contribute an amount determined appropriate by the provider and approved by the CCM. These fees shall be used to defray program costs. Individual subsistence collections shall not exceed the weekly cumulative contract per diem rate (i.e., the daily rate x 7). All funds collected from those in BOP programs shall be deducted from the monthly billings submitted to the BOP. In some cases, inmate subsistence contributions would cover the entire cost of home confinement. If the monitoring is provided by the USPO, subsistence collection shall not exceed the cost of the electronic monitoring equipment. The respective USPO shall instruct those in USPS-operated home confinement programs in the appropriate payment procedures.
6. An inmate serving a BOP sentence who fails to remain at the specified location may be considered an escapee. All escapes shall be immediately reported to the CCM.
7. Inmates on home confinement shall maintain a 9:00 P.M. to 6:00 A.M. curfew each day, unless an exception is recommended by the provider and approved by the CCM.
8. Drug and alcohol testing and counseling requirements shall apply to inmates on home confinement.

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P.S. 7320.01 September 6, 1995 Attachment B, Page 2
II. The following conditions shall apply to those programs that do not use electronic equipment to monitor compliance with the conditions of home confinement.
1. The provider's staff shall telephonically contact the inmate at random hours each day at home, at work, or both.
2. Staff shall visit inmates on home confinement at their homes and at their places of employment at least once each week.
3. Inmates on home confinement shall return to the facility at least twice each week for routine progress reviews, counseling, urine testing and other required program participation.
III. The conditions in Section II (above) also apply to those programs that do use programmed contact devices, and to those programs that use continuously signalling or hybrid devices that are not monitored 24 hours per day, 7 days per week.
Electronic equipment is a substitute only for the random telephone calls.
IV. The following conditions shall apply to those home confinement programs that: 1) voluntarily choose to come under these conditions, 2) use continuously signalling or hybrid devices (see definitions) and 3) monitor the output of the central computer and respond to violations 24 hours per day, 7 days per week.
1. The provider shall have an operations or procedures manual specifying the manner in which the program will operate. This manual shall be reviewed by the CCM, conform to the minimum standards specified below and serve as the basis for monitoring the operations of the home confinement program.
2. The provider's operations/procedures manual shall include their plan of action when a violation is noted.
3. Provider staff shall have at least one in-person contact with the offender per week.
a. At least one contact each month shall take place at the offender's residence, and one at the place of employment.
b. All contacts shall be documented.

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P.S. 7320.01 September 6, 1995 Attachment B, Page 3
II. The following conditions shall apply to those programs that do not use electronic equipment to monitor compliance with of continued employment and hours worked, verification of residence and of participation in any other required programs or treatment activities.
5. The provider shall review the inmate's monthly telephone bill to ensure that it has been paid and that the service does not include call forwarding or other unauthorized services.
6. The inmate is expected to remain at his/her residence at all times except when he is at work, when traveling to and from work or when engaging in other approved activities. The provider's plan may include some opportunity for the offender to earn a reduction in the hours during which activity is restricted.

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EXHIBIT 2

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U.S. Department of Justice Federal Bureau of Prisons

O P E R A T I O N S OPI: NUMBER: DATE: EXPIRATION DATE:

M E M O R A N D U M RSD/RRM 001-2019 April 4, 2019 April 4, 2020

Home Confinement under the First Step Act

/s/ Approved: Hugh J. Hurwitz Acting Director, Federal Bureau of Prisons
The First Step Act of 2018 (FSA) contained additional requirements for the Bureau of Prisons (Bureau) in placing inmates in home confinement generally, and re-established and expanded a pilot program under the Second Chance Act to place elderly and terminally ill inmates in home confinement.
The terms “home confinement” and “home detention” are used interchangeably in this Operations Memorandum.
Institution Supplement. None required. Should local facilities make any changes outside the required changes in the national policy or establish any additional local procedures to implement the national policy, the local Union may invoke to negotiate procedures or appropriate arrangements.
1. HOME CONFINEMENT FOR LOW RISK OFFENDERS
Section 602 of the FSA modified 18 U.S.C. § 3621 (c)(1), authorizes the Bureau to maximize the amount of time spent on home confinement when possible. The provision now states, with the new FSA language in bold,
“Home confinement authority. – The authority under this subsection may be used to place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months. The Bureau of Prisons shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under this paragraph.”

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The Bureau interprets the language to refer to inmates that have lower risks of reoffending in the community, and reentry needs that can be addressed without RRC placement. The Bureau currently utilizes home confinement for these inmates. Accordingly, staff should refer eligible inmates for the maximum amount of time permitted under the statutory requirements.
The statutory language will be added to the Program Statement Home Confinement.
2. PILOT PROGRAM FOR ELIGIBLE ELDERLY OFFENDERS AND TERMINALLY ILL OFFENDERS
Section 603 (a) of the FSA reauthorized and modified the pilot program conducted under the Second Chance Act, 34 U.S.C. § 60541, as follows:
(a) Scope of Pilot
The Bureau shall conduct a pilot program to determine the effectiveness of removing eligible elderly offenders and eligible terminally ill offenders from Bureau facilities and placing such offenders on home detention until the expiration of the prison term to which the offender was sentenced.
Under 34 U.S.C. § 60541 (h), the pilot will be conducted during Fiscal Years 2019 through 2023.
(b) Placement in home detention
The Bureau may release some or all eligible elderly offenders and eligible terminally ill offenders from Bureau facilities to home detention, upon written request from either the Bureau staff, or an eligible elderly offender or eligible terminally ill offender.
(c) Waiver
Under 34 U.S.C. § 60541 (g)(1)(C), the Bureau is authorized to waive the requirements of section 3624 of Title 18 [home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months] as necessary to provide for the release of some or all eligible elderly offenders and eligible terminally ill offenders from Bureau facilities to home detention for the purposes of the pilot program.
(d) Violation of terms of home detention
A violation by an eligible elderly offender or eligible terminally ill offender of the terms of home detention (including the commission of another Federal, State, or local crime) shall result in the removal of that offender from home detention and the return of that offender to the designated Bureau institution in which that offender was imprisoned immediately before placement on home detention as part of this pilot, or to another appropriate Bureau institution, as determined by the Bureau.

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The Bureau will remove an inmate from this pilot in accordance with the Program Statement Inmate Discipline Program, and the Program Statement Home Confinement.
(e) Definitions
The following statutory definitions set out criteria for the implementation of this pilot program only:

Eligible elderly offender means an offender in the custody of the Bureau-

(1) who is not less than 60 years of age;

(2) who is serving a term of imprisonment that is not life imprisonment based on

conviction for an offense or offenses that do not include any crime of violence (as

defined in section 16 of Title 18), sex offense (as defined in section 20911(5) of this

title), offense described in section 2332b(g)(5)(B) of Title 18, or offense under

chapter 37 of Title 18, and has served

the term of imprisonment to which the

offender was sentenced;

(3) who has not been convicted in the past of any Federal or State crime of violence, sex offense, or other offense described in paragraph (2), above.

(4) who has not been determined by the Bureau, on the basis of information the Bureau uses to make custody classifications, and in the sole discretion of the Bureau, to have a history of violence, or of engaging in conduct constituting a sex offense or other offense described in paragraph 2 above;

(5) who has not escaped, or attempted to escape, from a Bureau of Prisons institution (to include all security levels of Bureau facilities);

(6) with respect to whom the Bureau of Prisons has determined that release to home detention under this section will result in a substantial net reduction of costs to the Federal Government; and

(7) who has been determined by the Bureau to be at no substantial risk of engaging in criminal conduct or of endangering any person or the public if released to home detention.

Eligible terminally ill offender means an offender in the custody of the Bureau who—

(1) is serving a term of imprisonment based on conviction for an offense or offenses that do not include any crime of violence (as defined in section 16(a) of Title 18, United States Code), sex offense (as defined in section 111(5) of the Sex Offender Registration and Notification Act (34 U.S.C. § 20911(5))), offense described in section 2332b(g)(5)(B) of Title 18, United States Code, or offense under chapter 37

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of Title 18, United States Code;
(2) satisfies the criteria specified in paragraphs 3 through 7 included in the Eligible Elderly Offender definition, above; and
(3) has been determined by a medical doctor approved by the Bureau, i.e. Clinical Director of the local institution, to be:
• in need of care at a nursing home, intermediate care facility, or assisted living facility, as those terms are defined in section 232 of the National Housing Act (12 U.S.C. § 1715w); or
• diagnosed with a terminal illness.
Home detention has the same meaning given the term in the Federal Sentencing Guidelines as of April 9, 2008, and includes detention in a nursing home or other residential long-term care facility. As with all home confinement placements, the home must be found to be appropriate under the provisions of the Program Statement Home Confinement.
Term of imprisonment includes multiple terms of imprisonment ordered to run consecutively or concurrently, which shall be treated as a single, aggregate term of imprisonment for purposes of this section.
(f) Procedures
Offenders referred under this pilot shall be processed for home detention utilizing current RRC/Home Confinement procedures.
For Eligible Elderly Offenders, a BP-A0210, Institutional Referral for CCC Placement, will be completed. Staff should refer all inmates meeting criteria (1) through (5) in the definition of Eligible Elderly Offender, above. Reentry Services Division (RSD) staff will determine if the inmate meets criteria (6) and (7) under the definition. A clear annotation will be made on the referral packet that “This inmate is being referred for Home Confinement placement under the provisions contained in the First Step Act for placement of eligible elderly offenders and eligible terminally ill offenders.”
For Eligible Terminally Ill Offenders, to include debilitated offenders that may need placement in nursing home, intermediate care facility, or assisted living facility, institution staff will refer the inmate for a Reduction in Sentence (RIS) under Program Statement Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g). If not appropriate for a RIS, the Office of General Counsel will provide RSD the RIS packet for consideration under this pilot.

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(g) Reporting and Tracking
34 U.S.C. § 60541 (g) (4), as amended by the FSA, requires an evaluation of the pilot program, and a report to Congress after its conclusion in 2023. The following data points, at a minimum, will be tracked by RSD to assist with this evaluation and report:
• The number of Eligible Elderly Inmates referred to RSD; • The number of Eligible Terminally Ill Inmates referred to RSD; • The number of placements in home detention for each category; • The length of time of home confinement afforded under each category; • The estimated amount net reduction of costs to the Federal Government for each
case; and • The estimated amount net reduction of costs to the Federal Government for the
pilot period.

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ADDENDUM – REFERENCED AUTHORITIES
18 U.S.C. § 16 - Crime of violence defined
The term “crime of violence” means–
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
NOTE: 34 U.S.C. § 60541, as amended by the FSA, provides that section 16 (a) and (b) be applied when determining eligibility of an elderly offender; but only section 16 (a) should be applied when determining the eligibility of a terminally ill offender under this pilot.
Please contact the Office of General Counsel for any questions of whether an offense is a crime of violence under 18 U.S.C. § 16.
34 U.S.C. § 20911 (5) - Relevant definitions, including Amie Zyla expansion of sex offender definition and expanded inclusion of child predators
(A) Generally
Except as limited by subparagraph (B) or (C), the term “sex offense” means–
(i) a criminal offense that has an element involving a sexual act or sexual contact with another;
(ii) a criminal offense that is a specified offense against a minor;
(iii) a Federal offense (including an offense prosecuted under section 1152 or 1153 of Title 18) under section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258), or 117, of Title 18;
(iv) a military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. 951 note); or
(v) an attempt or conspiracy to commit an offense described in clauses (i) through (iv).
(B) Foreign convictions
A foreign conviction is not a sex offense for the purposes of this subchapter if it was not

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obtained with sufficient safeguards for fundamental fairness and due process for the accused under guidelines or regulations established under section 20912 of this title.
(C) Offenses involving consensual sexual conduct
An offense involving consensual sexual conduct is not a sex offense for the purposes of this subchapter if the victim was an adult, unless the adult was under the custodial authority of the offender at the time of the offense, or if the victim was at least 13 years old and the offender was not more than 4 years older than the victim.
18 U.S.C. § 2332b(g)(5)(B) - Acts of terrorism transcending national boundaries
A violation of the following sections of Title 18, United States Code:
32 (relating to destruction of aircraft or aircraft facilities), 37 (relating to violence at international airports), 81 (relating to arson within special maritime and territorial jurisdiction), 175 or 175b (relating to biological weapons), 175c (relating to variola virus), 229 (relating to chemical weapons), 351, Subsections (a), (b), (c), or (d) (relating to congressional, cabinet, and Supreme Court assassination and kidnaping), 831 (relating to nuclear materials), 832 (relating to participation in nuclear and weapons of mass destruction threats to the United States), 842(m) or (n) (relating to plastic explosives), 844(f)(2) or (3) (relating to arson and bombing of Government property risking or causing death), 844(i) (relating to arson and bombing of property used in interstate commerce), 930(c) (relating to killing or attempted killing during an attack on a Federal facility with a dangerous weapon), 956(a)(1) (relating to conspiracy to murder, kidnap, or maim persons abroad), 1030(a)(1) (relating to protection of computers), 1030(a)(5)(A) resulting in damage as defined in 1030(c)(4)(A)(i)(II) through (VI) (relating to protection of computers), 1114 (relating to killing or attempted killing of officers and employees of the United States), 1116 (relating to murder or manslaughter of foreign officials, official guests, or internationally protected persons), 1203 (relating to hostage taking), 1361 (relating to government property or contracts), 1362 (relating to destruction of communication lines, stations, or systems), 1363 (relating to injury to buildings or property within special maritime and territorial jurisdiction of the United States), 1366(a) (relating to destruction of an energy facility), 1751(a), (b), (c), or (d) (relating to Presidential and Presidential staff assassination and kidnaping),

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1992 (relating to terrorist attacks and other acts of violence against railroad carriers and against mass transportation systems on land, on water, or through the air), 2155 (relating to destruction of national defense materials, premises, or utilities), 2156 (relating to national defense material, premises, or utilities), 2280 (relating to violence against maritime navigation), 2280a (relating to maritime safety), 2281 through 2281a (relating to violence against maritime fixed platforms), 2332 (relating to certain homicides and other violence against United States nationals occurring outside of the United States), 2332a (relating to use of weapons of mass destruction), 2332b (relating to acts of terrorism transcending national boundaries), 2332f (relating to bombing of public places and facilities), 2332g (relating to missile systems designed to destroy aircraft), 2332h (relating to radiological dispersal devices), 2332i (relating to acts of nuclear terrorism), 2339 (relating to harboring terrorists), 2339A (relating to providing material support to terrorists), 2339B (relating to providing material support to terrorist organizations), 2339C (relating to financing of terrorism), 2339D (relating to military-type training from a foreign terrorist organization), or 2340A (relating to torture).
A violation of the following sections of Title 42, United States Code:
2122 (relating to prohibitions governing atomic weapons), or 2284 (relating to sabotage of nuclear facilities or fuel).
A violation of the following sections of Title 49, United States Code:
46502 (relating to aircraft piracy), 46504 - the second sentence of the section (relating to assault on a flight crew with a dangerous weapon), 46505(b)(3) or (c) (relating to explosive or incendiary devices, or endangerment of human life by means of weapons, on aircraft), 46506 if homicide or attempted homicide is involved (relating to application of certain criminal laws to acts on aircraft), or 60123(b) (relating to destruction of interstate gas or hazardous liquid pipeline facility).
A violation of the following section of Title 21:
960, which is section 1010A of the Controlled Substances Import and Export Act (relating to narco-terrorism).
18 U.S.C. Chapter 37 - Espionage and Censorship
792, Harboring or Concealing Persons

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793, Gathering, Transmitting or Losing Defense Information 794, Gathering or Delivering Defense Information to Aid Foreign Government 795, Photographing and Sketching Defense Installations 796, Use of Aircraft for Photographing Defense Installations 797, Publication and Sale of Photographs of Defense Installations 798, Disclosure of Classified Information 798a, Temporary Extension of Section 794 799, Violation of Regulations of National Aeronautics and Space Administration
12 U.S.C. § 1715w - Mortgage insurance for nursing homes, intermediate care facilities, and board and care homes
(a) Definitions - For the purposes of this section–
(1) the term “nursing home” means a public facility, proprietary facility or facility of a private nonprofit corporation or association, licensed or regulated by the State (or, if there is no State law providing for such licensing and regulation by the State, by the municipality or other political subdivision in which the facility is located), for the accommodation of convalescents or other persons who are not acutely ill and not in need of hospital care but who require skilled nursing care and related medical services, in which such nursing care and medical services are prescribed by, or are performed under the general direction of, persons licensed to provide such care or services in accordance with the laws of the State where the facility is located;
(2) the term “intermediate care facility” means a proprietary facility or facility of a private nonprofit corporation or association licensed or regulated by the State (or, if there is no State law providing for such licensing and regulation by the State, by the municipality or other political subdivision in which the facility is located) for the accommodation of persons who, because of incapacitating infirmities, require minimum but continuous care but are not in need of continuous medical or nursing services;
(3) the term a “nursing home” or “intermediate care facility” may include such additional facilities as may be authorized by the Secretary for the nonresident care of elderly individuals and others who are able to live independently but who require care during the day; . . .
(4) the term “assisted living facility” means a public facility, proprietary facility, or facility of a private nonprofit corporation that--
a. is licensed and regulated by the State (or if there is no State law providing for such licensing and regulation by the State, by the municipality or other political subdivision in which the facility is located);
b. makes available to residents supportive services to assist the residents in carrying out activities of daily living, such as bathing, dressing, eating, getting

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in and out of bed or chairs, walking, going outdoors, using the toilet, laundry, home management, preparing meals, shopping for personal items, obtaining and taking medication, managing money, using the telephone, or performing light or heavy housework, and which may make available to residents home health care services, such as nursing and therapy; and
c. provides separate dwelling units for residents, each of which may contain a full kitchen and bathroom, and which includes common rooms and other facilities appropriate for the provision of supportive services to the residents of the facility;

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EXHIBIT 3

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EXHIBIT 4

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EXHIBIT 5

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U.S. Department of Justice Federal Bureau of Prisons

PROGRAM STATEMENT

OPI

OGC/LCI

NUMBER 5050.50

DATE

January 17, 2019

Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g)

/s/ Approved: Hugh J. Hurwitz Acting Director, Federal Bureau of Prisons
1. PURPOSE AND SCOPE
§571.60 Purpose and scope.
Under 18 U.S.C. 4205(g), a sentencing court, on motion of the Bureau of Prisons, may make an inmate with a minimum term sentence immediately eligible for parole by reducing the minimum term of the sentence to time served. Under 18 U.S.C. 3582(c)(1)(A), a sentencing court, on motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment of an inmate sentenced under the Comprehensive Crime Control Act of 1984.
The Bureau uses 18 U.S.C. 4205(g) and 18 U.S.C. 3582(c)(1)(A) in particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing.
18 U.S.C. 3582 was amended by the First Step Act of 2018, revisions noted below in Summary of Changes.
For the purposes of this Program Statement, the terms “compassionate release” and “reduction in sentence” are used interchangeably.
Federal Regulations from 28 CFR are in this type. Implementing information is in this type.

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In deciding whether to file a motion under either 18 U.S.C. 4205(g) or 18 U.S.C. 3582, the Bureau of Prisons (BOP) should consider whether the inmate’s release would pose a danger to the safety of any other person or the community.
Under 18 USC 3582 (d)(2)(3), the Bureau ensures that all facilities regularly and visibly post, including in prisoner handbooks, staff training materials, and facility law libraries and medical and hospice facilities, and make available to prisoners upon demand, notice of—
(i) a defendant’s ability to request a sentence reduction pursuant to subsection (c)(1)(A);
(ii) the procedures and timelines for initiating and resolving requests described in clause (i); and
(iii) the right to appeal a denial of a request described in clause (i) after all administrative rights to appeal within the Bureau of Prisons have been exhausted.
§572.40 Compassionate release under 18 U.S.C. 4205(g). 18 U.S.C. 4205(g) was repealed effective November 1, 1987, but remains the controlling law for inmates whose offenses occurred prior to that date. For inmates whose offenses occurred on or after November 1, 1987, the applicable statute is 18 U.S.C. 3582(c)(1)(A). Procedures for compassionate release of an inmate under either provision are contained in 28 CFR part 571, subpart G. a. Program Objectives. The expected results of this program are: ■ A motion for a modification of a sentence will be made to the sentencing court only in
particularly extraordinary or compelling circumstances that could not reasonably have been foreseen by the court at the time of sentencing. ■ The public will be protected from undue risk by careful review of each compassionate release request. ■ Compassionate release motions will be filed with the sentencing judge in accordance with the statutory requirements of 18 U.S.C. 3582 or 4205(g). b. Summary of Changes Policy Rescinded P 5050.49 CN-1 Compassionate Release/Reduction in Sentence: Procedures for Implementation
of 18 U.S.C. §§ 3582(c)(1)(A) and 4205(g)
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The following have been added to this version of the Program Statement:
■ Requirements of section 603(b) of the First Step Act, codified at 18 USC § 3582: ¾ Requiring inmates be informed of reduction in sentence availability and process; ¾ Modifying definition of “terminally ill;” ¾ Requiring notice and assistance for terminally ill offenders; ¾ Requiring requests from terminally ill offenders to be processed within 14 days; ¾ Requiring notice and assistance for debilitated offenders; and ¾ Specifying inmates may file directly to court after exhaustion of administrative remedies, or 30 days from receipt of a request by the Warden’s Office.
2. INITIATION OF REQUEST – EXTRAORDINARY OR COMPELLING CIRCUMSTANCES
§ 571.61 Initiation of request – extraordinary or compelling circumstances.
a. A request for a motion under 18 U.S.C. 4205(g) or 3582(c)(1)(A) shall be submitted to the Warden. Ordinarily, the request shall be in writing, and submitted by the inmate. An inmate may initiate a request for consideration under 18 U.S.C. 4205(g) or 3582(c)(1)(A) only when there are particularly extraordinary or compelling circumstances which could not reasonably have been foreseen by the court at the time of sentencing. The inmate’s request shall at a minimum contain the following information:
(1) The extraordinary or compelling circumstances that the inmate believes warrant consideration.
(2) Proposed release plans, including where the inmate will reside, how the inmate will support himself/herself, and, if the basis for the request involves the inmate’s health, information on where the inmate will receive medical treatment, and how the inmate will pay for such treatment.
b. The Bureau of Prisons processes a request made by another person on behalf of an inmate in the same manner as an inmate’s request. Staff shall refer a request received at the Central Office to the Warden of the institution where the inmate is confined.
A request for a RIS is considered “submitted” for the purposes of 18 USC §3582 (c)(1), when received by the Warden in accordance with this section.
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3. REQUESTS BASED ON MEDICAL CIRCUMSTANCES
The criteria for a reduction in sentence (RIS) request may include the following:
a. Terminal Medical Condition. RIS consideration may be given to inmates who have been diagnosed with a terminal, incurable disease and whose life expectancy is eighteen (18) months or less, and/or has a disease or condition with an end-of-life trajectory under 18 USC § 3582(d)(1). The BOP’s consideration should include assessment of the primary (terminal) disease, prognosis, impact of other serious medical conditions of the inmate, and degree of functional impairment (if any). Functional impairment (e.g., limitations on activities of daily living such as feeding and dressing oneself) is not required for inmates diagnosed with terminal medical conditions; however, functional impairment may be a factor when considering the inmate’s ability or inability to reoffend.
Pursuant to 18 U.S.C. § 3582(d)(2)(A), in the case of a diagnosis of a terminal illness, the Bureau of Prisons shall, subject to confidentiality requirements:
(i) not later than 72 hours after the diagnosis notify the defendant’s attorney, partner, and family members of the defendant’s condition and inform the defendant’s attorney, partner, and family members that they may prepare and submit on the defendant’s behalf a request for a sentence reduction pursuant to subsection (c)(1)(A);
(ii) not later than 7 days after the date of the diagnosis, provide the defendant’s partner and family members (including extended family) with an opportunity to visit the defendant in person;
(iii) upon request from the defendant or his attorney, partner, or a family member, ensure that Bureau of Prisons employees assist the defendant in the preparation, drafting, and submission of a request for a sentence reduction pursuant to subsection (c)(1)(A); and
(iv) not later than 14 days of receipt of a request for a sentence reduction submitted on the defendant’s behalf by the defendant or the defendant’s attorney, partner, or family member, process the request.
The statutory time frames of section 3582(d)(2)(A), begin once the Clinical Director of an institution makes a terminal diagnosis. Once the diagnosis is made, the Clinical Director will inform the Warden and the appropriate Unit Manager as soon as possible so as to ensure requirements are met.
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If the inmate is physically/psychologically able, the inmate should consent to notifications above using Form BP-A0192, Release of Information Consent, or equivalent written authorization. If a visit is denied for security concerns, as reflected in 18 U.S.C. § 3582(d)(3)(J), the reasons should be documented. The Warden will forward the information indicated in Section 8 of this policy, below, to Central Office within 14 days. b. Debilitated Medical Condition. RIS consideration may also be given to inmates who have an incurable, progressive illness or who have suffered a debilitating injury from which they will not recover. The BOP should consider a RIS if the inmate is:
■ Completely disabled, meaning the inmate cannot carry on any self-care and is totally confined to a bed or chair; or
■ Capable of only limited self-care and is confined to a bed or chair more than 50% of waking hours.
The BOP’s review should also include any cognitive deficits of the inmate (e.g., Alzheimer’s disease or traumatic brain injury that has affected the inmate’s mental capacity or function). A cognitive deficit is not required in cases of severe physical impairment, but may be a factor when considering the inmate’s ability or inability to reoffend.
Pursuant to 18 U.S.C. § 3582(d)(2)(B), in the case of an inmate unable to submit a request for a RIS BOP institution staff shall:
(i) inform the defendant’s attorney, partner, and family members that they may prepare and submit on the defendant’s behalf a request for a sentence reduction pursuant to subsection (c)(1)(A) (ii) accept and process a request for sentence reduction that has been prepared and submitted on the defendant’s behalf by the defendant’s attorney, partner, or family member under clause (i); and (iii) upon request from the defendant or his attorney, partner, or family member, ensure that Bureau of Prisons employees assist the defendant in the preparation, drafting, and submission of a request for a sentence reduction pursuant to subsection (c)(1)(A).
All RIS requests should be assessed using the factors outlined in Section 7.
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4. REQUESTS BASED ON NON-MEDICAL CIRCUMSTANCES – ELDERLY INMATES
The criteria for a RIS request may include the following:
a. “New Law” Elderly Inmates. Inmates sentenced for an offense that occurred on or after November 1, 1987 (e.g., “new law”), who are age 70 years or older and have served 30 years or more of their term of imprisonment.1
b. Elderly Inmates with Medical Conditions. Inmates who fit the following criteria:
■ Age 65 and older. ■ Suffer from chronic or serious medical conditions related to the aging process. ■ Experiencing deteriorating mental or physical health that substantially diminishes their
ability to function in a correctional facility. ■ Conventional treatment promises no substantial improvement to their mental or physical
condition. ■ Have served at least 50% of their sentence.
Additionally, for inmates in this category, the BOP should consider the following factors when evaluating the risk that an elderly inmate may reoffend:
■ The age at which the inmate committed the current offense. ■ Whether the inmate suffered from these medical conditions at the time the inmate committed
the offense. ■ Whether the inmate suffered from these medical conditions at the time of sentencing and
whether the Presentence Investigation Report (PSR) mentions these conditions.
The BOP Medical Director will develop and issue medical criteria to help evaluate the inmate’s suitability for consideration under this RIS category.
c. Other Elderly Inmates. Inmates age 65 or older who have served the greater of 10 years or 75% of the term of imprisonment to which the inmate was sentenced.
1 These criteria are different from those provided in 18 U.S.C 3582(c)(1)(a)(ii), which states that a court, upon motion of the BOP Director, may reduce a sentence term if it finds that “the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g).” P5050.50 1/17/2019 Federal Regulations from 28 CFR: this type. Implementing information: this type. 6

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Elderly inmates who were age 60 or older at the time they were sentenced ordinarily should not be considered for RIS if their current conviction is listed in the Categorization of Offenses Program Statement.
All RIS requests should be assessed using the factors outlined in Section 7.
5. REQUESTS BASED ON NON-MEDICAL CIRCUMSTANCES – DEATH OR INCAPACITATION OF THE FAMILY MEMBER CAREGIVER.
The criteria for a RIS request may include the death or incapacitation of the family member caregiver of an inmate’s child, e.g., RIS requests from inmates whose biological or legally adopted child or children (“child”) are suddenly without a family member caregiver due to that caregiver’s death or incapacitation.
For these requests, “child” means a person under the age of 18 and “incapacitation” means the family member caregiver suffered a severe injury (e.g., auto accident) or suffers from a severe illness (e.g., cancer) that renders the caregiver incapable of caring for the child.
In reviewing these requests, BOP should assess, based on the information provided, whether release of the inmate to care for the inmate’s child is in the best interest of the child.
a. First Stage of the Warden’s Review. The following information should be provided by the inmate to the Warden in writing for RIS requests based on the death or incapacitation of the family member caregiver:
■ A statement that explains that the inmate’s family member caregiver has died or become incapacitated and that person was the caregiver for the inmate’s biological or legally adopted child.
■ A statement that this person was the only family member capable of caring for the inmate’s child.
■ The name of the deceased or incapacitated family member caregiver and the relationship of that person to the inmate (e.g., spouse, common-law spouse, mother, sister) and statement that the caregiver is a family member of the child.
■ For requests based on a deceased family member caregiver, an official copy of the family member caregiver’s death certificate.
■ For requests based on an incapacitated family member caregiver, verifiable medical documentation of the incapacitation.
■ Verifiable documentation that the inmate is the parent of the child. Acceptable documentation includes birth certificates, adoption papers, or verification of the inmate’s paternity.
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■ Verifiable documentation providing the name and age of the child. ■ A clear statement and documentation that the inmate has a release plan, including housing,
and the financial means to care for the child immediately upon the inmate’s release. ■ Authorization from the inmate for the BOP to obtain any information or documents from any
individual, medical entity or doctor, or any government agency about the inmate, family members, and minor child.
The Warden may deny the inmate’s request at the institution level of review if the Warden finds that the inmate has not provided adequate information and documentation as set forth above.
b. Second Stage of the Warden’s Review. Even if the inmate provides adequate and sufficient information and documentation set forth above regarding the RIS request, further investigation is appropriate. At this stage, the Warden should convene a committee consisting of the inmate’s unit manager, correctional counselor, and any other relevant staff (social worker, physician, psychologist, etc.) to investigate the facts and circumstances provided by the inmate and to review supporting letters and documents before the Warden makes a recommendation to approve or deny the RIS request. The additional information and supporting documentation gathered by the committee for the Warden’s review should include:
■ A general description of the child’s physical and mental condition. ■ A description of the nature of the child’s care both during the inmate’s pre-arrest and pre-
sentence period, and during the inmate’s current incarceration. ■ Letters or documentation that the deceased/incapacitated family member was and still is the
only family member caregiver capable of caring for the inmate’s minor child. These letters or documentation should include:
¾ Information indicating whether this family member was, in fact, caring for the child during the inmate’s incarceration and immediately prior to the family member’s death or incapacitation.
¾ An explanation of who has been caring for the child since the family member’s death or incapacitation.
¾ If the child is in foster care, documentation verifying that the inmate will be able to immediately obtain custody of the child.
All RIS requests should be assessed using the factors outlined in Section 7 as well as the following factors.
■ Has the inmate committed violent acts before or during the period of incarceration as reflected in the PSR, institutional disciplinary records, or other appropriate documentation?
■ Did the inmate have drugs, drug paraphernalia, firearms, or other dangerous substances in the home while caring for the child prior to incarceration?
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■ To what degree has the inmate had contact with or cared for the child prior to arrest, pretrial or pre-sentence, and during incarceration? Staff should review institution records for evidence of contact (telephone, mail, email, visiting log, etc.).
■ Is there any evidence of child abuse, neglect, or exploitation in the PSR or other documents? ■ Are there any documents regarding the inmate’s parenting skills or obligations (e.g., child
support orders, restraining orders for physical or emotional abuse of spouse, registered partner or children, certificates for classes in anger management or other types of counseling, removal of child from the home for any reasons)? ■ Are there records regarding the termination of parental rights or loss of custody of the inmate’s (other) child? ■ Does the inmate have a detainer as a deportable alien to a country other than where the child resides? ■ Has the inmate received public funding or had a job with a living wage for any period of time prior to incarceration? ■ Has the inmate engaged in programming (e.g., parenting, anger management) during incarceration that would indicate efforts to improve parenting skills or that would indicate a commitment to caring for the child upon release?
Wardens should also consider any additional reliable documentation (e.g., letters of support from family members, neighbors, doctors, hospitals, and state or local agencies). Documentation may be obtained with the assistance of the Office of Probation and Pretrial Services. Wardens should also consider whether the inmate participated in the Inmate Financial Responsibility Program and any information relating to the inmate’s substance abuse treatment, physical/mental/ emotional health, and work evaluations during incarceration.
The care of a child may be requested to be a condition of the inmate’s release to a supervised release term. Thus, failure to care for the child may result in a finding of a supervised release violation and return to custody.
6. REQUESTS BASED ON NON-MEDICAL CIRCUMSTANCES – INCAPACITATION OF A SPOUSE OR REGISTERED PARTNER
The criteria for a RIS request may include the incapacitation of an inmate’s spouse or registered partner when the inmate would be the only available caregiver for the spouse or registered partner.
For these requests, “spouse” means an individual in a relationship with the inmate, where that relationship has been legally recognized as a marriage, including a legally-recognized commonlaw marriage. “Registered partner” means an individual in a relationship with the inmate, where that relationship has been legally recognized as a civil union or registered domestic partnership.
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The relationship should have been established before the inmate’s offense date of arrest, and should be verified by information in the PSR or other administratively acceptable documentation (e.g. marriage certificate).
For these requests, “incapacitation” means the inmate’s spouse or registered partner has:
■ Suffered a serious injury, or a debilitating physical illness and the result of the injury or illness is that the spouse or registered partner is completely disabled, meaning that the spouse or registered partner cannot carry on any self-care and is totally confined to a bed or chair; or
■ A severe cognitive deficit (e.g., Alzheimer’s disease or traumatic brain injury that has severely affected the spouse’s or registered partner’s mental capacity or function), but may not be confined to a bed or chair.
For these requests, the inmate should demonstrate that the inmate is the only available caregiver for the spouse or registered partner, meaning there is no other family member or adequate care option that is able to provide primary care for the spouse or registered partner.
a. First Stage of the Warden’s Review. The following information should be provided by the inmate to the Warden in writing for RIS requests based on the incapacitation of the spouse or registered partner:
■ Statement that explains that the inmate’s spouse or registered partner has become incapacitated.
■ Statement that the inmate is the only family member capable of caring for the spouse or registered partner.
■ Verifiable medical documentation of the incapacitation of the spouse or registered partner. ■ A clear statement and documentation of the inmate’s release plan, including housing, and the
financial means to care for the spouse or registered partner immediately upon release. ■ Written authorization from the inmate and others (as needed) for the BOP to obtain any
information or documents from any individual, medical entity or doctor, or any government agency about the inmate, the spouse or registered partner, or other family members.
The Warden may deny the inmate’s request at the institution level of review if the Warden finds that the inmate has not provided adequate information and documentation as set forth above.
b. Second Stage of the Warden’s Review. Even if the inmate provides adequate and sufficient information and documentation set forth above regarding the RIS request, further investigation is appropriate. At this stage, the Warden should convene a committee consisting of the inmate’s unit manager, correctional counselor and any other relevant staff (social worker, physician, psychologist, etc.) to investigate the facts and circumstances provided by the inmate and to
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review supporting letters and documents before the Warden makes a recommendation to approve or deny the RIS request. The information and supporting documentation gathered by the committee for the Warden’s review should include:
■ A general description of the spouse’s or registered partner’s physical and mental condition. ■ A description of the nature of the spouse’s or registered partner’s care, as relevant, during the
inmate’s pre-arrest and pre-sentence period, and during the inmate’s current incarceration. ■ Letters or documentation indicating whether the inmate is the only family member caregiver
capable of caring for the spouse or registered partner. This should include an explanation of who has been caring for the spouse or registered partner during the inmate’s period of incarceration, as relevant. ■ Letters or documentation indicating the spouse or registered partner is, or would be, supportive of the inmate’s release, and of the inmate assuming the role of the primary caregiver.
All RIS requests should be assessed using the factors outlined in Section 7 as well as the following factors.
■ Has the inmate committed violent acts before or during the period of incarceration, as reflected in the PSR, institution disciplinary records, or other appropriate documentation?
■ To what extent would the inmate and spouse or registered partner be relying on publicly available resources (e.g., financial or medical) to provide care to the spouse or registered partner?
■ Has the inmate ever been charged with, or convicted of, a crime of domestic violence? ■ Did the inmate share a residence with the spouse or registered partner prior to the period of
incarceration? ■ Did the inmate have drugs, drug paraphernalia, firearms, or other dangerous substances in the
home shared with the spouse or registered partner prior to incarceration? ■ To what degree has the inmate had contact with (or cared for) the spouse or registered partner
prior to arrest, pretrial or pre-sentence, and during incarceration? Staff should review institution records for evidence of contact (telephone, mail, email, visiting log, etc.). ■ Is there any evidence of abuse or neglect involving the spouse or registered partner in the PSR or other documents? ■ Are there any documents regarding the inmate’s custodial skills or obligations (e.g., child support orders, restraining orders for physical or emotional abuse of spouse or registered partner or children, certificates for classes in anger management or other types of counseling, removal of children from the home for any reasons)? ■ Does the inmate have a detainer as a deportable alien to a country other than where the spouse or registered partner resides? ■ Has the inmate received public funding or had a job with a living wage for any period of time prior to incarceration?
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■ Has the inmate engaged in programming (e.g., anger management, financial responsibility program) during incarceration that would indicate efforts to improve custodial skills and/or that would indicate a commitment to the inmate’s spouse or registered partner upon release?
Wardens should also consider any additional reliable documentation (e.g., letters of support from family members, neighbors, doctors, hospitals, and state or local agencies). Documentation may be obtained with the assistance of the Office of Probation and Pretrial Services.
The care of the spouse or registered partner may be requested to be a condition of the inmate’s release to a supervised release term. Thus, failure to care for the spouse or registered partner may result in a finding of a supervised release violation and return to custody.
7. FACTORS AND EVALUATION OF CIRCUMSTANCES IN RIS REQUESTS
For all RIS requests, the following factors should be considered:
■ Nature and circumstances of the inmate’s offense. ■ Criminal history. ■ Comments from victims. ■ Unresolved detainers. ■ Supervised release violations. ■ Institutional adjustment. ■ Disciplinary infractions. ■ Personal history derived from the PSR. ■ Length of sentence and amount of time served. This factor is considered with respect to
proximity to release date or Residential Reentry Center (RRC) or home confinement date. ■ Inmate’s current age. ■ Inmate’s age at the time of offense and sentencing. ■ Inmate’s release plans (employment, medical, financial). ■ Whether release would minimize the severity of the offense.
When reviewing RIS requests, these factors are neither exclusive nor weighted. These factors should be considered to assess whether the RIS request presents particularly extraordinary and compelling circumstances.
Overall, for each RIS request, the BOP should consider whether the inmate’s release would pose a danger to the safety of any other person or the community.
8. APPROVAL OF REQUEST
§571.62 Approval of request.
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a. The Bureau of Prisons makes a motion under 18 U.S.C. 4205(g) or 3582(c)(1)(A) only after review of the request by the Warden, the General Counsel, and either the Medical Director for medical referrals or the Assistant Director, Correctional Programs Division for non-medical referrals, and with the approval of the Director, Bureau of Prisons.
(1) The Warden shall promptly review a request for consideration under 18 U.S.C. 4205(g) or 3582(c)(1)(A). If the Warden, upon an investigation of the request determines that the request warrants approval, the Warden shall refer the matter in writing with recommendation to the Office of General Counsel.
The Warden’s referral at a minimum must include the following:
a. The Warden’s written recommendation as well as any other pertinent written recommendations or comments made by staff during the institution review of the request.
b. A complete copy of Judgment and Commitment Order or Judgment in a Criminal Case and sentence computation data.
c. A progress report that is not more than 30 days old. All detainers and holds should be resolved prior to the Warden’s submission of a case under 18 U.S.C. 3582 (c)(1)(A) or 4205(g). If a pending charge or detainer cannot be resolved, an explanation of the charge or conviction status is needed.
d. All pertinent medical records if the reason for the request involves the inmate’s health. Pertinent records include, at a minimum, a Comprehensive Medical Summary by the attending physician, which should also include an estimate of life expectancy, and all relevant test results, consultations, and referral reports/opinions.
e. The referral packet must include, when available, a copy of the Presentence Investigation and Form U.S.A. 792, Report on Convicted Offender by U.S. Attorney, Custody Classification form, Notice of Action forms, Probation form 7a, information on fines, CIM Case Information Summary (BP-A0339), and any other documented information that is pertinent to the request. In the absence of a Form U.S.A. 792, the views of the prosecuting Assistant U.S. Attorney may be solicited; those views should be made part of the Warden’s referral memo.
f. If the inmate is subject to the Victim and Witness Protection Act of 1982 (VWPA), confirmation of notification to the appropriate victim(s) or witness(es) must be incorporated into the Warden’s referral. A summary of any comments received must also be incorporated into the referral. If the inmate is not subject to the VWPA, a statement to that effect must be in the referral.
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g. For a request under 18 U.S.C. 3582(c)(1)(A), when a term of supervised release follows the term of imprisonment, confirmation that release plans have been approved by the appropriate U.S. Probation Office must be included in the referral. If the inmate will be released to an area outside the sentencing district, the U.S. Probation Office assuming supervision must be contacted. If no supervision follows the term of imprisonment, release plans must still be developed.
h. The development of release plans must include, at a minimum, a place of residence and the method of financial support, and may require coordination with various segments of the community, such as hospices, the Department of Veterans Affairs or veterans’ groups, Social Security Administration, welfare agencies, local medical organizations, or the inmate’s family.
i. Because there is no final agency decision until the Director has reviewed the request, staff at any level may not contact the sentencing judge or solicit the judge’s opinion through other officers of the court.
(2) If the General Counsel determines that the request warrants approval, the General Counsel shall solicit the opinion of either the Medical Director or the Assistant Director, Correctional Programs Division depending upon the nature of the basis for the request. With this opinion, the General Counsel shall forward the entire matter to the Director, Bureau of Prisons, for final decision.
(3) If the Director, Bureau of Prisons, grants a request under 18 U.S.C. 4205(g), the Director will contact the U.S. Attorney in the district in which the inmate was sentenced regarding moving the sentencing court on behalf of the Bureau of Prisons to reduce the minimum term of the inmate’s sentence to time served. If the Director, Bureau of Prisons, grants a request under 18 U.S.C. 3582(c)(1)(A), the Director will contact the U.S. Attorney in the district in which the inmate was sentenced regarding moving the sentencing court on behalf of the Director of the Bureau of Prisons to reduce the inmate’s term of imprisonment to time served.
b. Upon receipt of notice that the sentencing court has entered an order granting the motion under 18 U.S.C. 4205(g), the Warden of the institution where the inmate is confined shall schedule the inmate for hearing on the earliest Parole Commission docket.
Institution staff prepare an amended Sentence Data Summary for use at this hearing. Staff provide a copy of the most recent progress report to the Parole Commission.
Upon receipt of notice that the sentencing court has entered an order granting the motion under 18 U.S.C. 3582(c)(1)(A), the Warden of the institution where the inmate is confined shall release the inmate forthwith.
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c. In the event the basis of the request is the medical condition of the inmate, staff shall expedite the request at all levels.
A request for an expedited review permits the review process to be expedited, but does not lessen the requirement that documentation be provided.
9. DENIAL OF REQUEST
§571.63 Denial of request. a. When an inmate’s request is denied by the Warden, the inmate will receive written notice and a statement of reasons for the denial. The inmate may appeal the denial through the Administrative Remedy Procedure (28 CFR part 542, subpart B).
b. When an inmate’s request for consideration under 18 U.S.C. 4205(g) or 3582(c)(1)(A) is denied by the General Counsel, the General Counsel shall provide the inmate with a written notice and statement of reasons for the denial. This denial constitutes a final administrative decision.
c. When the Director, Bureau of Prisons, denies an inmate’s request, the Director shall provide the inmate with a written notice and statement of reasons for the denial within 20 workdays after receipt of the referral from the Office of General Counsel. A denial by the Director constitutes a final administrative decision.
d. Because a denial by the General Counsel or Director, Bureau of Prisons, constitutes a final administrative decision, an inmate may not appeal the denial through the Administrative Remedy Procedure.
Under 18 USC 3582 (c) (1), an inmate may file a request for a reduction in sentence with the sentencing court after receiving a BP-11 response under subparagraph (a), the denial from the General Counsel under subparagraph (d), or the lapse of 30 days from the receipt of such a request by the Warden of the inmate’s facility, whichever is earlier.
10. INELIGIBLE OFFENDERS
§571.64 Ineligible offenders.
The Bureau of Prisons has no authority to initiate a request under 18 U.S.C. 4205(g) or 3582(c)(1)(A) on behalf of state prisoners housed in Bureau of Prisons facilities or D.C. Code offenders confined in federal institutions. The Bureau of Prisons cannot initiate such a motion on behalf of federal offenders who committed their offenses prior to November 1, 1987, and received non- parolable
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sentences. 11. TRACKING REDUCTION IN SENTENCE REQUESTS
To ensure consistent handling and documentation of RIS requests, Wardens must identify a staff member to serve as an institution RIS Coordinator (IRC) and an alternate. The principal responsibility of the IRC is to receive and document RIS requests and other RIS-related information in the RIS electronic tracking database.
For each RIS request, the following information is entered into the RIS tracking database by the IRC:
■ Inmate’s full name. ■ Federal register number. ■ Date of birth and age. ■ Institution. ■ Date RIS request received by institution. ■ Reason for RIS request. ■ Whether staff assisted the inmate with submitting the RIS request. ■ Whether the request was submitted by a third party (attorney, partner, family member). ■ Disposition of request (e.g., approval or denial). ■ Reason for disposition. ■ Date of disposition of request.
At the Central Office (CO) level, information regarding RIS requests is entered into the database by RIS Coordinators in the Office of General Counsel, the Health Services Division, and the Correctional Programs Division. The following information is entered into the RIS tracking database by CO staff:
■ Date RIS request received by CO. ■ Director’s final decision.
12. ANNUAL REPORT
Under 18 U.S.C. § 3582 (d)(3), not later than December 21, 2019, and once every year thereafter, the Director of the Bureau of Prisons shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on requests for sentence reductions pursuant to subsection (c)(1)(A), which shall include a description of, for the previous year— (A) the number of prisoners granted and denied sentence reductions, categorized by the criteria
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relied on as the grounds for a reduction in sentence; (B) the number of requests initiated by or on behalf of prisoners, categorized by the criteria relied on as the grounds for a reduction in sentence; (C) the number of requests that Bureau of Prisons employees assisted prisoners in drafting, preparing, or submitting, categorized by the criteria relied on as the grounds for a reduction in sentence, and the final decision made in each request; (D) the number of requests that attorneys, partners, or family members submitted on a defendant’s behalf, categorized by the criteria relied on as the grounds for a reduction in sentence, and the final decision made in each request; (E) the number of requests approved by the Director of the Bureau of Prisons, categorized by the criteria relied on as the grounds for a reduction in sentence; (F) the number of requests denied by the Director of the Bureau of Prisons and the reasons given for each denial, categorized by the criteria relied on as the grounds for a reduction in sentence; (G) for each request, the time elapsed between the date the request was received by the warden and final decision, categorized by the criteria relied on as the grounds for a reduction in sentence; (H) for each request, the number of prisoners who died while their request was pending and, for each, the amount of time that had elapsed between the date the request was received by the Bureau of Prisons, categorized by the criteria relied on as the grounds for a reduction in sentence; (I) the number of Bureau of Prisons notifications to attorneys, partners, and family members of their right to visit a terminally ill defendant as required under paragraph (2)(A)(ii) and, for each, whether a visit occurred and how much time elapsed between the notification and the visit; (J) the number of visits to terminally ill prisoners that were denied by the Bureau of Prisons due to security or other concerns, and the reasons given for each denial; and (K) the number of motions filed by defendants with the court after all administrative rights to appeal a denial of a sentence reduction had been exhausted, the outcome of each motion, and the time that had elapsed between the date the request was first received by the Bureau of Prisons and the date the defendant filed the motion with the court.
13. ACA AGENCY ACCREDITATION PROVISIONS
None.
REFERENCES
Directives Referenced P5162.05 Categorization of Offenses (3/16/09)
Federal Regulations ■ Rules cited in this Program Statement are contained in 28 CFR 571.60 through 571.64.
P5050.50 1/17/2019 Federal Regulations from 28 CFR: this type. Implementing information: this type. 17

Case 2:20-cv-01914-AB Document 12-5 Filed 04/20/20 Page 70 of 70 ■ Rules referenced in this Program Statement are contained in 28 CFR 542.10 through 542.16
and 572.40. U.S. Code Referenced ■ Title 18, United States Code, Section 4205(g). ■ Title 18, United States Code, Section 3582. BOP Forms BP-A0339 CIM Case Information Summary BP-A0192 Release of Information Consent Records Retention Requirements Requirements and retention guidance for records and information applicable to this program are available in the Records and Information Disposition Schedule (RIDS) system on Sallyport.
P5050.50 1/17/2019 Federal Regulations from 28 CFR: this type. Implementing information: this type. 18

Case 2:20-cv-01914-AB Document 12-6 Filed 04/20/20 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TIMOTHY BROWN, MYLES HANNIGAN, and ANTHONY HALL,
Petitioners, v.
SEAN MARLER, Respondent.

No. 2:20-cv-01914

DECLARATION OF DAWN NECHUPAS, LEGAL ASSISTANT I, DAWN NECHUPAS, hereby declare and state as follows: 1. I am a Legal Assistant employed by the United States Department of Justice, Federal Bureau of Prisons (“BOP”), Federal Detention Center (“FDC”) in Philadelphia, Pennsylvania. I have held this position since November 2019. In my official capacity, I have access to most records maintained in the ordinary course of business at the BOP, including records maintained in the BOP computerized database known as SENTRY. I have access to numerous records regarding federal prisoners maintained in the ordinary course of business in the BOP. This information includes, but is not limited to, computerized records maintained on the Bureau of Prisons computerized data base, SENTRY. 2. I submit this declaration in connection with Respondents’ response to Petitioners’ habeas corpus petition. 3. In the ordinary course of business, the Bureau of Prisons maintains computerized indexes of all administrative remedy requests and appeals filed by inmates so that rapid

Page 1 of 2

Case 2:20-cv-01914-AB Document 12-6 Filed 04/20/20 Page 2 of 8

Case 2:20-cv-01914-AB Document 12-6 Filed 04/20/20 Page 3 of 8
EXHIBIT 1

PR15

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PHLIF

*ADMINISTRATIVE REMEDY GENERALIZED RETRIEVAL *

04-18-2020

PAGE 001 OF 001

11:01:34

FUNCTION: LST SCOPE: REG EQ 60758-066

OUTPUT FORMAT: FULL

-------LIMITED TO SUBMISSIONS WHICH MATCH ALL LIMITATIONS KEYED BELOW----------

DT RCV: FROM __________ THRU __________ DT STS: FROM __________ THRU __________

DT STS: FROM ___ TO ___ DAYS BEFORE "OR" FROM ___ TO ___ DAYS AFTER DT RDU

DT TDU: FROM ___ TO ___ DAYS BEFORE "OR" FROM ___ TO ___ DAYS AFTER DT TRT

STS/REAS: ______ ______ ______ ______ ______ ______ ______ ______ ______ ______

SUBJECTS: ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____

EXTENDED: _ REMEDY LEVEL: _ _

RECEIPT: _ _ _ "OR" EXTENSION: _ _ _

RCV OFC : EQ ____

____

____

____

____

____

TRACK: DEPT: __________ __________ __________ __________ __________ __________

PERSON: ___

___

___

___

___

___

TYPE: ___

___

___

___

___

___

EVNT FACL: EQ ____

____

____

____

____

____

RCV FACL.: EQ ____

____

____

____

____

____

RCV UN/LC: EQ __________ __________ __________ __________ __________ __________

RCV QTR..: EQ __________ __________ __________ __________ __________ __________

ORIG FACL: EQ ____

____

____

____

____

____

ORG UN/LC: EQ __________ __________ __________ __________ __________ __________

ORIG QTR.: EQ __________ __________ __________ __________ __________ __________

G5152

NO REMEDY DATA EXISTS FOR THIS INMATE

https://bop.tcp.doj.gov:9049/SENTRY/J1PRGR0.do

4/18/2020

Case 2:20-cv-01914-AB Document 12-6 Filed 04/20/20 Page 5 of 8
EXHIBIT 2

PR15

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PHLIF

*ADMINISTRATIVE REMEDY GENERALIZED RETRIEVAL *

04-18-2020

PAGE 001 OF 001

11:00:00

FUNCTION: LST SCOPE: REG EQ 75509-066

OUTPUT FORMAT: FULL

-------LIMITED TO SUBMISSIONS WHICH MATCH ALL LIMITATIONS KEYED BELOW----------

DT RCV: FROM __________ THRU __________ DT STS: FROM __________ THRU __________

DT STS: FROM ___ TO ___ DAYS BEFORE "OR" FROM ___ TO ___ DAYS AFTER DT RDU

DT TDU: FROM ___ TO ___ DAYS BEFORE "OR" FROM ___ TO ___ DAYS AFTER DT TRT

STS/REAS: ______ ______ ______ ______ ______ ______ ______ ______ ______ ______

SUBJECTS: ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____

EXTENDED: _ REMEDY LEVEL: _ _

RECEIPT: _ _ _ "OR" EXTENSION: _ _ _

RCV OFC : EQ ____

____

____

____

____

____

TRACK: DEPT: __________ __________ __________ __________ __________ __________

PERSON: ___

___

___

___

___

___

TYPE: ___

___

___

___

___

___

EVNT FACL: EQ ____

____

____

____

____

____

RCV FACL.: EQ ____

____

____

____

____

____

RCV UN/LC: EQ __________ __________ __________ __________ __________ __________

RCV QTR..: EQ __________ __________ __________ __________ __________ __________

ORIG FACL: EQ ____

____

____

____

____

____

ORG UN/LC: EQ __________ __________ __________ __________ __________ __________

ORIG QTR.: EQ __________ __________ __________ __________ __________ __________

G5152

NO REMEDY DATA EXISTS FOR THIS INMATE

https://bop.tcp.doj.gov:9049/SENTRY/J1PRGR0.do

4/18/2020

Case 2:20-cv-01914-AB Document 12-6 Filed 04/20/20 Page 7 of 8
EXHIBIT 3

PR15

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PHLIF

*ADMINISTRATIVE REMEDY GENERALIZED RETRIEVAL *

04-18-2020

PAGE 001 OF 001

11:00:52

FUNCTION: LST SCOPE: REG EQ 77357-066

OUTPUT FORMAT: FULL

-------LIMITED TO SUBMISSIONS WHICH MATCH ALL LIMITATIONS KEYED BELOW----------

DT RCV: FROM __________ THRU __________ DT STS: FROM __________ THRU __________

DT STS: FROM ___ TO ___ DAYS BEFORE "OR" FROM ___ TO ___ DAYS AFTER DT RDU

DT TDU: FROM ___ TO ___ DAYS BEFORE "OR" FROM ___ TO ___ DAYS AFTER DT TRT

STS/REAS: ______ ______ ______ ______ ______ ______ ______ ______ ______ ______

SUBJECTS: ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____

EXTENDED: _ REMEDY LEVEL: _ _

RECEIPT: _ _ _ "OR" EXTENSION: _ _ _

RCV OFC : EQ ____

____

____

____

____

____

TRACK: DEPT: __________ __________ __________ __________ __________ __________

PERSON: ___

___

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TYPE: ___

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EVNT FACL: EQ ____

____

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____

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RCV FACL.: EQ ____

____

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RCV UN/LC: EQ __________ __________ __________ __________ __________ __________

RCV QTR..: EQ __________ __________ __________ __________ __________ __________

ORIG FACL: EQ ____

____

____

____

____

____

ORG UN/LC: EQ __________ __________ __________ __________ __________ __________

ORIG QTR.: EQ __________ __________ __________ __________ __________ __________

G5152

NO REMEDY DATA EXISTS FOR THIS INMATE

https://bop.tcp.doj.gov:9049/SENTRY/J1PRGR0.do

4/18/2020

Case 2:20-cv-01914-AB Document 12-7 Filed 04/20/20 Page 1 of 1

CERTIFICATE OF SERVICE I hereby certify that on this date I caused a true and correct copy of the foregoing motion to dismiss the petition and class action complaint to be filed electronically with the Court and the document is available for viewing and downloading from the ECF System. Electronic service of the Notice of Electronic Case Filing generated by the ECF System constitutes service of the filed documents on all parties who have consented to electronic service.

Dated: April 20, 2020

/s Landon Y. Jones III Landon Y. Jones III Assistant United States Attorney

 
 Case 2:20-cv-01914-AB Document 17 Filed 04/21/20 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TIMOTHY BROWN, MYLES HANNIGAN,

:

and ANTHONY HALL, individually and on

:

behalf of all others similarly situated,

:

:

Petitioners,

:

:

v.

:

:

SEAN MARLER, in his capacity as Warden

:

of the Federal Detention Center of Philadelphia, :

:

Respondent.

:

CLASS ACTION Case No. 20-cv-1914-AB

PETITIONERS’ BRIEF IN OPPOSITION TO RESPONDENT’S MOTION TO DISMISS THE PETITION AND CLASS ACTION COMPLAINT

Mary M. McKenzie, Pa. Bar No. 47434 Benjamin D. Geffen, Pa. Bar No. 310134 PUBLIC INTEREST LAW CENTER 1500 JFK Blvd., Suite 802 Philadelphia, PA 19102 Tel: 215-627-7100 mmckenzie@pubintlaw.org bgeffen@pubintlaw.org
Jim Davy, Pa. Bar No. 321631 2362 E. Harold Street Philadelphia, PA 19125 Tel: 609-273-5008 jimdavy@gmail.com

Linda Dale Hoffa, Pa. Bar No. 34063 Margaret Spitzer Persico, Pa. Bar No. 320178 DILWORTH PAXSON LLP 1500 Market St. Suite 3500E Philadelphia, PA 19102-2101 Tel: 215-275-7000 Fax: 215-575-7200 lhoffa@dilworthlaw.com
Counsel for Petitioners and Proposed Class Members

Case 2:20-cv-01914-AB Document 17 Filed 04/21/20 Page 2 of 34
TABLE OF CONTENTS
I. Introduction.......................................................................................................................... 1 II. Standard of Review.............................................................................................................. 2 III. Background .......................................................................................................................... 3 IV. Prisoners may challenge conditions of confinement affecting the fact of their detention or
execution of sentence in habeas corpus ............................................................................... 8 A. Habeas corpus has long provided a remedy for prisoners to challenge conditions of
confinement................................................................................................................... 8 B. Habeas jurisdiction includes petitioners of all types, including pre-sentence and post-
sentence....................................................................................................................... 11 C. This jurisdiction includes petitioners who pursue relief as a class ............................. 13 V. Petitioners are excused from the administrative exhaustion requirements of Section 2241 and the Prison Litigation Reform Act ................................................................................ 15 A. Petitioners are excused from Section 2241’s exhaustion requirements because they
are likely to suffer catastrophic health consequences without immediate judicial relief and because pursuing the administrative remedies would be futile............................ 15 B. Petitioners are excused from the exhaustion requirement under the Prison Litigation Reform Act because administrative remedies are not available ................................. 18 VI. The FDC’s exposure of vulnerable detainees to a high risk of COVID-19 infection violates the Fifth and Eighth Amendments........................................................................ 20 A. The FDC is acting with deliberate indifference to vulnerable detainees’ health and safety ........................................................................................................................... 20 B. Petitioners’ health needs are serious ........................................................................... 21 VII. The PLRA does not apply to this action, and even if it did, it would not bar the requested relief ................................................................................................................................... 22 A. The PLRA does not preclude a single district judge from ordering a detainee transfer, nor does it apply to detainee claims that go beyond mere overcrowding. .................. 23 B. The PLRA does not prohibit the “broad” relief requested, as the novel coronavirus poses an unprecedented risk that cannot be abated by lesser means .......................... 25 VIII. There is no cause to strike Petitioners’ class allegations ................................................... 26 IX. Discovery is necessary, and will be fast and efficient ....................................................... 28 X. Conclusion ......................................................................................................................... 30
i

Case 2:20-cv-01914-AB Document 17 Filed 04/21/20 Page 3 of 34
I. Introduction Since the COVID-19 pandemic swept into the United States, 352 federal corrections staff
members have tested positive, 702 federal inmates have tested positive, and 22 people in federal custody have died from this virus.1 The numbers, which reflect results only from very limited testing, are stunning, and they are compounding daily. As this Court has noted, “[w]e are in the midst of an unprecedented pandemic,” which has paralyzed not just our country, but the world. United States v. Rodriguez, 2:03-cr-271-AB, 2020 WL 1627331, at *1 (E.D. Pa. Apr. 1, 2020). It is an extraordinary time that requires extraordinary measures to address the very real and present dangers posed by COVID-19 in prison environments—“tinderboxes for infectious disease.” Id. It is not a time for business as usual in our criminal justice system, as stridently advocated by the Government in conference calls with this Court and in their brief. The virus will not wait for detainees to file hundreds of individual motions, and for attorneys and courts to review and appeal them one by one over the coming months or year. Nor will justice be served by allowing the government to review unilaterally their earlier detention motions, since they have aggressively opposed all motions for release filed by detainees and their counsel to date in this district. What justice requires in these increasingly dangerous times is an expedited and individualized review—with participation by both the government and defense counsel—of those detainees at the Federal Detention Center (FDC) who face imminent harm from COVID-
1 BOP COVID-19 Information Page, located at https://www.bop.gov/coronavirus/ (last visited Apr. 20, 2020). It is worth noting that the BOP website numbers do not include the number of inmates and staff who have been infected and recovered from COVID-19. In addition, there is good reason to believe that the numbers reported by the BOP understate the actual number of tested-positive cases. Compare M. Licon-Vitale, MCC Warden, and D. Edge, MDC Warden, Response to EDNY Administrative Order 2020-14 (Apr. 7, 2020), available at https://www.nyed.uscourts.gov/pub/bop/MDC_20200407_042057.pdf (3 positive inmates at MDC Brooklyn), with COVID-19 Cases Federal Bureau of Prisons (Apr. 7, 2020) at www.bop.gov/coronavirus (2 positive inmates at MDC Brooklyn).

Case 2:20-cv-01914-AB Document 17 Filed 04/21/20 Page 4 of 34
19. And, if determined necessary after an inspection by a court-appointed infection prevention and control expert, action to mitigate the risks of severe illness and death for those who will remain confined at FDC during this pandemic. This Class Action Petition for Writ of Habeas Corpus is the proper legal vehicle to facilitate quick action to save lives of not just hundreds of detainees at the FDC, but also of the FDC staff and their family members and those they interact with in our shared communities. II. Standard of Review
Fed. R. Civ. P. 12(b)(1) permits a court to dismiss an action for “lack of subject matter jurisdiction.” A Rule 12(b)(1) motion can be treated as either a factual or facial challenge to the court’s jurisdiction. Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial challenge attacks subject matter jurisdiction without disputing the facts alleged in the Petition. Cartmell v. Credit Control, LLC, No. 5:19-CV-1626, 2020 WL 113829, at *2 (E.D. Pa. Jan. 10, 2020). In other words, a facial attack challenges the legal sufficiency of a claim whereas a factual attack challenges the sufficiency of jurisdictional fact. Here, Respondent raises a facial challenge. In considering Respondent’s facial attack, the trial court is restricted to a review of the allegations of the complaint and any documents referenced therein, in a light most favorable to the plaintiff. Liberty Fencing Club LLC v. Fernandez-Prada, No. 17-cv-0180, 2017 WL 3008758, at *3 (E.D. Pa. July 14, 2017). When considering a facial challenge, “the trial court must consider the allegations of the complaint as true.” Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).2
2 In contrast, a factual challenge “attacks the factual allegations underlying the complaint’s assertion of jurisdiction, either through the filing of an answer or ‘otherwise present[ing] competing facts.” Cartmell, 2020 WL 113829, at *2 (internal citations omitted). A court considering a factual challenge can “weigh evidence outside the pleadings and make factual
2

Case 2:20-cv-01914-AB Document 17 Filed 04/21/20 Page 5 of 34
Fed. R. Civ. P. 8(a)(2) requires only “‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the … claim is and the grounds on which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41 (1957)). Indeed, a plaintiff must only set forth “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. In deciding a motion to dismiss under Rule 12(b)(6), the court must assume that all the allegations in the complaint are true and construe the complaint in the light most favorable to the plaintiff. Bell Atlantic, 550 U.S. at 555-56; see also Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (“It remains an acceptable statement of the standard . . . that courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”). III. Background
Respondent presents a purportedly thorough list of the “extraordinary actions” the Bureau of Prisons (BOP) has taken to prevent the spread of COVID-19 throughout its facilities. Despite these “exhaustive measures,” Respondent acknowledges in his brief that as of April 19, 495 BOP detainees have COVID-19 and 22 have died from the disease. Respondent’s Brief in Support of MTD (“Respondent’s Brief”) at 2. The rate at which the cases have multiplied despite the BOP’s efforts to minimize spread is alarming. The BOP failed to anticipate and prepare for the magnitude of the threat that COVID-19 poses to its own staff and the detainees entrusted to its care; it then failed to respond properly to initial signs of uncontrolled outbreaks at a number of its facilities across the country; and it has continued to fail to implement even the baseline
findings related to the issue of jurisdiction.” Trupp v. Ally Fin., Inc., 17-cv-5404, 2018 WL 2462777, at *1 (E.D. Pa. May 31, 2018).
3

Case 2:20-cv-01914-AB Document 17 Filed 04/21/20 Page 6 of 34

measures that would assure the safety of its own staff, of Petitioners and their fellow class members and others incarcerated by the BOP, and of the communities into which staff and others travel on a daily basis.
A table and a chart, based on data from http://www.bop.gov/coronavirus, illustrate the surge in infections and deaths across the country:
BOP-Reported Positive Tests for COVID-19 Nationwide

Date
3/19/2020 3/20/2020 3/21/2020 3/22/2020 3/23/2020 3/24/2020 3/25/2020 3/26/2020 3/27/2020 3/28/2020 3/29/2020 3/30/2020 3/31/2020 4/1/2020 4/2/2020 4/3/2020 4/4/2020 4/5/2020 4/6/2020 4/7/2020 4/8/2020 4/9/2020 4/10/2020 4/11/2020 4/12/2020 4/13/2020 4/14/2020 4/15/2020

Number of Positive Inmates 0 0 1 1 3 6 6 10 14 19 19 28 29 57 75 91 120 138 195 241 272 283 318 335 352 388 446 451

Number of Positive Staff
0 2 2 2 3 3 3 8 13 19 19 24 30 37 39 50 54 59 63 72 105 125 163 185 189 201 248 280

Number of Inmate Deaths
0 0 0 0 0 0 0 0 0 1 1 1 1 3 6 7 8 8 8 8 8 8 9 9 10 13 14 16

4

Case 2:20-cv-01914-AB Document 17 Filed 04/21/20 Page 7 of 34

4/16/2020

473

279

18

4/17/2020

465

296

18

4/18/2020

479

305

21

4/19/2020

495

309

22

BOP-Reported Positive Tests for COVID-19 Nationwide
600

500

400

300

200

100

0

3/19/2020 3/20/2020 3/21/2020 3/22/2020 3/23/2020 3/24/2020 3/25/2020 3/26/2020 3/27/2020 3/28/2020 3/29/2020 3/30/2020 3/31/2020
4/1/2020 4/2/2020 4/3/2020 4/4/2020 4/5/2020 4/6/2020 4/7/2020 4/8/2020 4/9/2020 4/10/2020 4/11/2020 4/12/2020 4/13/2020 4/14/2020 4/15/2020 4/16/2020 4/17/2020 4/18/2020 4/19/2020

Number of Positive Inmates

Number of Positive Staff

Number of Inmate Deaths

BOP’s preparations were woefully inadequate from the start, as the facts alleged in the Petition show in detail. Even in Respondent’s own telling, “phase three” guidance by the BOP addressed only the possibility of telework, which has no bearing in a case where Respondent

5

Case 2:20-cv-01914-AB Document 17 Filed 04/21/20 Page 8 of 34
admits that FDC’s mission necessitates that its staff physically appear to do their jobs.3 By its
own admission, the only precautionary measures the FDC took with new detainees prior to
March 26 were to measure their temperatures and to ask them questions about recent travel. By March 26, Philadelphia already had 4754 confirmed cases of COVID-19 and Pennsylvania 1,687.5 Further, by March 26, reports of the virus’s spread by asymptomatic people and the particular risks of spread of the virus within jails and prisons were widely known.6 Pet. ¶ 79.
Even after implementing new quarantine requirements for new detainees entering the facility and
knowing about asymptomatic spread, FDC took no steps to house new detainees separately from
one another. Pet. ¶ 80.
Respondent further concedes that detainees are limited to their cells for the majority of
each day in an effort to enforce social distancing. Doc. 12-2 at 12. However, most detainees at
FDC are held two per cell, with a shared toilet and sink in each cell. Pet. ¶ 83. A standard FDC
cell is smaller than 100 square feet, which is too small for effective social distancing or self-
quarantine precautions as recommended by the CDC. Id. Even despite their inability to practice
social distancing, detainees weren’t given masks until April 6, 2020, and they still have no
gloves. Pet. ¶ 84. Moreover, FDC staff does not even enforce the use of the masks. Pet. ¶¶ 82,
3 See BOP Memorandum (Mar. 9, 2020), https://cdn.govexec.com/media/gbc/docs/pdfs_edit/031020cb.pdf; see also Doc. 12-2 at 13 (“Because of the mission of the FDC, teleworking is not an option for its staff.”). 4 City Provides Update on COVID-19 for Thursday, March 26, 2020 (March 26, 2020), https://www.phila.gov/2020-03-26-city-provides-update-on-covid-19-for-thursday-march-262020/ 5 Dep’t of Health Provides Update on COVID-19 (March 26, 2020), https://www.media.pa.gov/Pages/Health-Details.aspx?newsid=752 6 See, e.g., Roni Caryn Rabin, They Were Infected With the Coronavirus. They Never Showed Signs., N.Y. Times (Feb. 26, 2020) (“‘I don’t think there’s any question that someone who is without symptoms and carrying the virus can transmit the virus to somebody else,’ said Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases.”), available at https://www.nytimes.com/2020/02/26/health/coronavirus-asymptomatic.html.
6

Case 2:20-cv-01914-AB Document 17 Filed 04/21/20 Page 9 of 34
84. Unsurprisingly in light of their disregard for enforcement of recommended health protocols among detainees, staff members have masks and gloves but fail to wear them consistently. Pet. ¶ 84. And even with minimal use of masks and gloves within the facilities, detainees continue to use shared resources outside their cells, including computers and showers, and have increased use of telephones. Pet. ¶ 85. These shared resources are ripe for transmission of COVID-19.
Notwithstanding its claims to the contrary, BOP persists in transferring detainees between prisons. Pet. ¶ 72. In their recently filed OSHA complaint, BOP employees report that BOP “continuously mov[es] inmates by bus and/or airlift to various prison sites across the nation. They have authorized movement of infected inmates, inmates suspected of being infected, inmates who have been in close contact or proximity to infected inmates, to areas of the Country that do not have any rate of infections, or to Institutions that otherwise have not shown signs of any introduction of the virus, thus introducing the virus into an uninfected area.”7 In fact, BOP’s blatant disregard for the safety risks involved in continued transfers moved U.S. Representative Fred Keller (PA-12) to introduce the Pausing All New Detention and Ending Movement of Inmates for Coronavirus (PANDEMIC) Act, H.R. 6427 to force BOP to stop all transfers for the foreseeable future. Pet. ¶ 72.
Respondent’s self-congratulatory recitation of its inadequate response to this pandemic is unavailing at the motion-to-dismiss stage. But even Respondent’s version of the facts is concerning given the many pitfalls in its efforts and the rate of spread within BOP facilities. Most crucially, Respondent’s own briefing evinces why this Court must not take Respondent’s word about the purported effectiveness of that preparation: Respondent particularly emphasizes
7 OSHA Complaint (Mar. 31, 2020), available at https://www.afge.org/globalassets/documents/generalreports/coronavirus/4/osha-7-formnational-complaint.pdf.
7

Case 2:20-cv-01914-AB Document 17 Filed 04/21/20 Page 10 of 34
the lack of a positive test as a sign of success despite acknowledging that the FDC has not tested any detainees at all. Doc. 12-2, pg. 34.8 Respondent could have stated, based on the same facts, that nobody at the FDC has tested negative for COVID-19, which is scarcely cause for celebration. IV. Prisoners may challenge conditions of confinement affecting the fact of their
detention or execution of sentence in habeas corpus Petitioners and putative class members may challenge the conditions in the FDC at issue in this case through habeas corpus. Habeas corpus has long provided a remedy for prisoners and detainees to challenge conditions of detention affecting the fact or duration of their confinement, as the Third Circuit and courts across the country have recognized. The distinction between presentence detainees and post-sentence prisoners does not matter for that purpose. Moreover, beyond the propriety of doing this in an individual petition, circuit courts of appeal have authorized habeas class petitions of the sort at issue here for nearly fifty years. This Court may apply such procedural mechanisms and is not constrained by the Bail Reform Act, which does not provide the exclusive process for prisoners to pursue their claims here.
A. Habeas corpus has long provided a remedy for prisoners to challenge conditions of confinement
Petitioners properly seek redress under § 2241 because the fact of their confinement creates the constitutional violation at issue here. This Court has jurisdiction to hear petitions for habeas corpus alleging “custody in violation of the Constitution or laws or treaties of the United States,” such as the Fifth and Eighth Amendments. 28 U.S.C. § 2241(c)(3). Respondent’s entire responsive pleading attempts to reframe Petitioners’ initial Petition as merely a mis-styled civil rights action subject to the Prison Litigation Reform Act (PLRA) and other statutes. To the
8 “No inmate has required testing . . .” 8

Case 2:20-cv-01914-AB Document 17 Filed 04/21/20 Page 11 of 34
contrary, Petitioners seek transfer to home confinement as a remedy for custody that violates the Fifth and Eighth Amendments. See Petition, Doc. 1 at 39.9 Such a challenge to the fact, rather than solely the conditions of their confinement, properly sounds in habeas corpus.
The claim here is precisely the sort contemplated by § 2241. Challenges to the fact of confinement, seeking release, fall within “the heart of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 499 (1973). The key distinction between actions properly brought in habeas corpus and those properly brought as a civil-rights action is that habeas actions “involve someone’s liberty, rather than mere civil liability.” Davis v. Fechtel, 150 F.3d 486, 490 (5th Cir. 1998) (citing Prieser, 411 U.S. at 489). Habeas corpus petitions under 28 U.S.C. § 2241 have long provided a remedy for prisoners to challenge conditions of confinement that affect “the execution of [a federal inmate’s] sentence.” Cardona v. Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012) (quoting Woodall v. Federal Bur. of Prisons, 432 F.3d 235, 241 (3d Cir. 2005)); see also Levine v. Apker, 455 F.3d 71, 78 (2d Cir. 2006) (defining challenges to execution of sentence as including challenges to prison conditions).10
Habeas corpus petitions may encompass claims to conditions of confinement where petitioners seek release because conditions of confinement may create the constitutional violations at issue. The Third Circuit’s line of decisions in Cardona, Woodall, and McGee v. Martinez, 627 F.3d 933 (3d Cir. 2010), illustrates the relevant distinctions. In Cardona, a prisoner made a claim that even if successful would not have changed the duration or fact of his confinement at all. Cardona, 681 F.3d at 537. He ultimately challenged his placement in a
9 “WHEREFORE, Petitioners and the Class members respectfully request that the Court enter a class-wide judgment: A. Ordering immediate release of vulnerable persons to home confinement . . .” 10 See also Cardona, 681 F.3d at 535 n.5 (collecting cases from 1st, 2d, 4th, 6th, 7th, 8th, 9th, and 11th Circuits holding that “§ 2241 permits challenges to the execution of an inmate’s sentence”).
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particular institution relative to other possible institutions, based on a theory of retaliatory transfer and because he speculated about possibly losing more good-time credits at one facility than the other. Id. The Court understandably contrasted that with Woodall, where the Court had held that a petition seeking transfer to a halfway house properly arose in habeas because it affected the execution of sentence and fact of confinement. Woodall, 432 F.3d at 238. In alleging, ultimately, a retaliatory transfer, the petitioner in Cardona had misstated a classic Bivens claim and did not address “conditions of confinement” at all, much less the type of conditions of confinement cognizable in a habeas petition.
An allegation that the threat of COVID-19 has affected the fact of confinement and execution of sentence, on the other hand, properly arises in habeas. Courts across the country have already held as a matter of law that they may hear petitions for habeas corpus based on medical vulnerability to COVID-19 infections in custody. E.g., Vazquez Barrera v. Wolf, No. 4:20-cv-1241, 2020 WL 1904497, at *4 (S.D. Tex. Apr. 17, 2020); Malam v. Adduci, No. 2010829, 2020 WL 1672662, at *3 (E.D. Mich. Apr. 5, 2020); Money v. Pritzker, Nos. 20-cv-2093 & 20-cv-2094, 2020 WL 1820660, at *8 (N.D. Ill. Apr. 10, 2020; Mays v. Dart, No. 20-cv-2134, 2020 WL 1812381, at *6 (N.D. Ill. Apr. 9, 2020); Newton v. La. Dep’t. of Corrs., No. 20-cv-447, 2020 WL 1869018, at *1 (W.D. La. Apr. 13, 2020); Bent v. Barr, No. 19-cv-6123, 2020 WL 1812850, at *2 (N.D. Cal. Apr. 9, 2020); Coreas v. Bounds, No. 20-cv-780, 2020 WL 1663133, at *7 (D. Md. Apr. 3, 2020).11 Regardless of how those Courts resolved the merits, they agreed about the suitability of habeas corpus as a matter of jurisdiction. Whether because “the sudden
11 See also Amaya-Cruz v. Adduci, No. 20-cv-789, 2020 WL 1903123, at *2-3 (N.D. Ohio Apr. 18, 2020); Fofana v. Albence, No. 20-10869, 2020 WL 1873307, at *6-12 (E.D. Mich. Apr. 15, 2020); Jefferson V.G. v. Decker, No. 20-cv-3644, 2020 WL 1873018, at *5 (D.N.J. Apr. 15, 2020).
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threat to mortality from the spread of the virus in a congregate setting may affect the fact or duration of confinement,” Money, 2020 WL 1820660 at *8, or because contentions that petitioners could not be held in conditions consistent with the constitution’s requirements “do bear on the duration of their confinement,” Mays, 2020 WL 1812381 at *6 (emphasis in original), “seek[ing] release relate[d] to their conditions of confinement . . . is the heart of habeas corpus.” Thakkar v. Doll, No. 20-cv-480, 2020 WL 1671563, at *2 (M.D. Pa. Mar. 31, 2020).
B. Habeas jurisdiction includes petitioners of all types, including pre-sentence and post-sentence
This Court has jurisdiction to release Petitioners and class members notwithstanding their ongoing criminal matters because of the nature of the claims they bring. As noted above, 28 U.S.C. § 2241 itself confers jurisdiction for claims, like those here, that challenge the fact or duration of confinement based on an underlying constitutional violation that renders custody invalid. The statutes and cases cited by Respondent do not bear the load he piles atop them, and even the cases he cites acknowledge that this Court has the authority to act in habeas corpus in exceptional circumstances such as those at issue in this case. This is as true for pre-trial and presentence detainees as it is for post-sentence prisoners.
This Court has jurisdiction to consider habeas corpus petitions under § 2241 filed by pretrial detainees. Respondent’s citation to and discussion of Reese v. Warden Philadelphia FDC, 904 F.3d 244 (3d Cir. 2018), illustrates the differences between valid habeas corpus petitions for release such as this one, and invalid petitions seeking to evade the Bail Reform Act. Although Respondent cites Reese for the proposition that the Bail Reform Act is the exclusive avenue for release pending trial, that mischaracterizes the case and misstates the holding. The pro se § 2241 petition at issue there purported to challenge, among other things, conduct by police during Reese’s arrest and the underlying criminal charge itself. Reese, 904 F.3d at 245.
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And in fact, he filed his pro se § 2241 petition while a counseled motion for pretrial release was pending on appeal. Id. at 246. The Court thought the case was not one in which its acknowledged habeas authority “ought to be exercised,” id. (emphasis added), because of “the absence of exceptional circumstances . . . which justified a departure from the regular course of judicial procedure.” Id. Respondent’s suggestion that the Bail Reform Act provides the exclusive remedy (or that Reese holds that it does) is simply wrong. Courts have that authority, and may exercise it in exceptional circumstances. Id. Moreover, Respondent’s insistence that those circumstances require “a showing of delay, harassment, bad faith, or other intentional activity on the part of the state,” Doc. 12-2 at 17 (citing Reese, 904 F.3d at 246 n.2), omits the directly preceding sentence of that footnote, which states: “Neither the Supreme Court nor this Court has delineated the circumstances that might qualify as ‘exceptional’ in this context.” Id.
Even if the Bail Reform Act provided the exclusive avenue for relief here, it would not tie this Court’s hands in the manner described.12 The Bail Reform Act allows one district court to reconsider detention decisions of another district court “where ‘changed circumstances’ support release.” United States v. Smith, 200 F. Supp. 3d 192, 194 (D.D.C. 2016); see also United States v. Logan, 613 F. Supp. 1227, 1228 (D. Mont. 1985) (declining to disturb determination of a different judge because of the “absence of . . . changed circumstances); United States v. Rouleau,
12 Nor does it so tie the Government’s. For pretrial detainees, Respondent cites a litany of factors it says a court must consider under 18 U.S.C. § 3142(f) and that prevent the Government from assenting to more—any—requests for pretrial release. Notably, it does not acknowledge the possibility of temporary release when necessary to prepare a defense or for other compelling reason under 18 U.S.C. § 3142(i). While the Court may of course consider conditions of release that would ensure reappearance and public safety, that part of the statute does not require consideration of the various section (g) factors at all. Similarly, for post-conviction but presentence detainees, even the presumption of detention for defendants convicted of drug crimes or crimes of violence has a carve-out for exceptional circumstances. 18 U.S.C. § 3145(c). As Petitioners have alleged repeatedly, this unprecedented global pandemic amounts to the most exceptional circumstance possible.
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673 F. Supp. 57, 59 (D. Mass. 1987) (noting that a detention order should not be amended “unless the underlying factual circumstances have changed in some significant way”); United States v. Thomas, 667 F. Supp. 727, 728 (D. Or. 1987) (noting that a district judge “should not disturb a release decision made by a magistrate, or by another district judge, in the absence of either clear error of law or changed factual circumstances”).
This Court similarly has jurisdiction to hear petitions for habeas corpus under § 2241 from sentenced prisoners. This is axiomatic; Respondent’s assertion, if accepted, would apparently bar habeas corpus petitions challenging the fact or duration of confinement in defiance of the statute. Respondent’s assertion to the contrary, Doc. 12-2 at 18, depends on the same misunderstanding of the Petition as a mere mis-styled conditions-of-confinement civil claim. That argument fails for the same reasons outlined above. However clear it is that a court may alter a sentence only as specifically permitted by statute, 18 U.S.C. § 2241 is just such a statute. Respondent cites “finality” and cases about retroactivity of watershed rules of criminal law, failing to acknowledge the key feature of Petitioners’ claims: that they are being held in custody that violates the Fifth and Eighth Amendments of the Constitution. See Doc. 1 at ¶¶ 12, 13, 98, 100, 101, 103-105, 124-134.
C. This jurisdiction includes petitioners who pursue relief as a class Petitioners who pursue habeas corpus relief asserting common facts have long seen such claims authorized on class bases. “Certainly the usual habeas corpus case relates only to the individual petitioner and to his unique problem. But there can be cases, and this is one of them, where the relief sought can be of immediate benefit to a large and amorphous group. In such cases, it has been held that a class action may be appropriate.” Mead v. Parker, 464 F.2d 1108, 1112-1113 (9th Cir. 1972). While actions seeking damages may not be suited for class habeas
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petitions, actions seeking solely declaratory and injunctive relief, including transfer to home confinement, fit the purposes of habeas class petitions. See Williams v. Richardson, 481 F.2d 358, 361 (8th Cir. 1973). Class habeas petitions especially suit circumstances where ruling on common questions of law would apply across the class and requiring individual petitions might shut some people out from efficient relief, and where petitioners seek certification of a habeas action under Fed. Rule Civ. P. 23(b)(2). Streicher v. Prescott, 103 F.3d 559, 561 (D.D.C. 1984).
Several courts of appeal have explicitly authorized class habeas petitions. See, e.g., United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125-26 (2d Cir. 1974); Mead, 464 F.2d at 1112-13; Rodriguez v. Hayes, 591 F.3d 1105, 1113 (9th Cir. 2010); Williams v. Richardson, 481 F.2d 358, 361 (8th Cir. 1973). Williams neatly illustrates why this claim should proceed as a habeas class. There, the Eighth Circuit reversed a decision that had granted BOP respondents’ motion to dismiss a putative classwide habeas petition on the grounds that such a device did not exist. While reversing, the Court pointed to the same considerations that demand class habeas here: “a class action provides an appropriate procedure to resolve the claims of a group of petitioners and avoid unnecessary duplication of judicial efforts in considering multiple petitions.” Williams, 481 F.2d at 361. The Supreme Court itself has noted that the question of classwide habeas petitions is reserved, while simultaneously noting in dicta that petitioners seeking conditional or unconditional release, who sued the custodian, outside of the immigration context, have habeas claims that may go classwide. See Jennings v. Rodriguez, 138 S. Ct. 830, 858 n.7 (2018) (citing Schall v. Martin, 467 U.S. 253, 261 n.3 & 10 (1984) (reserving the question and accepting district court’s certification of habeas class)). And the Supreme Court has repeatedly declined the opportunity to invalidate class habeas petitions as a procedural device across more than four decades. E.g. Jennings, 138 S. Ct. at 858 n.7; Schall, 467 U.S. at 261 n.10;
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Preiser, 506 F.3d at 1125-26, cert. denied, 421 U.S. 921 (1975); Middendorf v. Henry, 425 U.S. 25, 30 (1976) (declining to decide whether class habeas petitions are cognizable).
This case presents exactly the circumstances under which classwide habeas petitions may proceed. Petitioners and their fellow class members do not face unique problems—the risk of COVID-19 affects them all. Petitioners seek declaratory and injunctive relief that includes transfer to home confinement. Petitioners have appropriately sued the custodian, a BOP respondent. And Petitioners present a situation demanding a procedure appropriate to resolve claims affecting a large group of individuals without needlessly duplicating judicial efforts considering the same factual and legal issues. Requiring inmates at FDC Philadelphia to obtain a prison inspection, infectious disease expert, or other discovery into FDC Philadelphia’s COVID19 preparedness on individual bases would stand as exactly the sort of unnecessary duplication of judicial efforts warned against in Williams. This Court has the authority to certify a class of habeas corpus petitioners, and it should exercise that authority.
V. Petitioners are excused from the administrative exhaustion requirements of Section 2241 and the Prison Litigation Reform Act A. Petitioners are excused from Section 2241’s exhaustion requirements because they are likely to suffer catastrophic health consequences without immediate judicial relief and because pursuing the administrative remedies would be futile Under § 2241, a petitioner is generally required to exhaust all administrative remedies.
Gambino v. Morris, 134 F.3d 156, 171 (3d Cir. 1998). However, exhaustion is not required where the petitioner is likely to suffer an irreparable injury without immediate relief or where the administrative remedy would be futile. Id.; Cerverizzo v. Yost, 380 F. App’x 115, 116 (3d Cir. 2010) (acknowledging that Section 2241’s administrative exhaustion requirement may be excused if an attempt to obtain relief would be futile or where the purposes of exhaustion would
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not be served); Carling v. Peters, No. 00-CV-2958, 2000 WL 1022959, at *2 (E.D. Pa. July 10, 2000) (finding that petitioner would suffer an irreparable injury if forced to wait for the resolution of the administrative process); Lyons v. U.S. Marshals, 840 F.2d 202, 205 (3d Cir. 1988) (noting in a Bivens case that “[e]xhaustion is not required if administrative remedies would be futile, if the actions of the agency clearly and unambiguously violate statutory or constitutional rights, or if the administrative procedure is clearly shown to be inadequate to prevent irreparable injury”).13
The lethal and rapidly spreading COVID-19 virus will likely flourish in the densely populated conditions at FDC. As this Court recently noted, many of the recommended social distancing and preventative measures “are impossible or unfeasible in prison.” United States v. Rodriguez, 2:03-cr-271-AB, 2020 WL 1627331, at *8 (E.D. Pa. Apr. 1, 2020). As detailed more fully in the Petition, if they are forced to wait for the outcome of a protracted administrative process, there is a very real risk that Petitioners will suffer the catastrophic health consequences that they now seek to avoid. Here, even a delay of days carries the risk of dire health consequences for Petitioners. Given the deadly nature of COVID-19 and its exponential spread, compounded with the lack of effective preventive measures at the FDC, there is a significant risk that COVID-19 will overrun the FDC before Petitioners can meaningfully engage in—let alone complete—any administrative remedy process. More bluntly, detainees around the country are contracting COVID-19 and dying even as petitions like these are being litigated.
Second, it would be futile for Petitioners to engage in in the administrative process here. As Respondent concedes, the BOP’s administrative program does not provide for the relief
13 Respondent argues that Cerverizzo, Woodall, and Lyons are inapplicable because they predate the Supreme Court’s analysis in Ross. Notably, however, Ross opines on the mandatory exhaustion requirement as it applies to the PLRA. Ross offers no analysis regarding the exhaustion requirements under § 2241. Accordingly, FDC’s argument is of no moment here.
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requested by Petitioners. Here, the futility of exhaustion is underscored by FDC’s own position. Indeed, the government contends that the Petitioners are precluded—as a matter of law—from the remedies they seek. Yet the government simultaneously argues that Petitioners must first have pursued such unavailable remedies through the administrative process. Such a catch-22 is not only illogical, but dangerous. If the undue delay described above results in dire health consequences, it could also render exhaustion futile.14
Several courts have similarly addressed administrative exhaustion requirements in the context of this pandemic and have concluded that, even where statutorily mandated, exhaustion requirements are not always absolute. See, e.g. United States v. Haney, 19-CR-541, 2020 WL 1821988, at *1 (S.D.N.Y. Apr. 13, 2020) (waiving a statutory exhaustion requirement due to the extraordinary circumstances now faced by prisoners as a result of the COVID-19 crisis and its capacity to spread in swift and deadly fashion); United States v. Colvin, 3:19-CR-179, 2020 WL 1613943, at *2 (D. Conn. Apr. 2, 2020) (FDC case waiving statutory exhaustion requirement and noting that “[u]ndue delay, if it in fact results in catastrophic health consequences, could make exhaustion futile” (internal quotation marks and citation omitted)); United States v. Perez, 17CR-513-3, 2020 WL 1546422, at *1 (S.D.N.Y. Apr. 1, 2020) (concluding that exhaustion requirement waived due in light of “extraordinary threat” posed by the COVID-19 pandemic). Here, the COVID-19 pandemic presents extraordinary circumstances and poses especially disastrous risks for those with certain medical conditions. Given the rapidly spreading nature of this virus, and the availability of Petitioners’ requested remedy, exhaustion would be futile and
14 And it might expose the detainee to an argument from the government that “claimed deficiencies in disease prevention efforts cannot serve as a basis, in habeas, to release a detainee who has already contracted the disease.” See Lopez v. Lowe, No. 3:20-CV-563, 2020 U.S. Dist. LEXIS 60796, at *18 (M.D. Pa. Apr. 7, 2020).
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could cause Petitioners’ to suffer irreparable harm while they wait for the administrative process to unfold.
B. Petitioners are excused from the exhaustion requirement under the Prison Litigation Reform Act because administrative remedies are not available
Petitioners’ claim is properly brought under § 2241, see section IV, supra, and therefore not subject to Prison Litigation Reform Act (“PLRA”) exhaustion requirements that would apply to a civil-rights action. Respondent’s argument that Petitioners must meet the exhaustion requirements set forth in the PLRA relies on his incorrect characterization of the Petition here, and is wrong for the same reason. That said, however, even if Petitioners were limited to bringing a straightforward civil-rights action—which they are not—Petitioners would be excused from the administrative-exhaustion requirement under the PLRA.
The PLRA requires plaintiffs to exhaust administrative remedies when “such administrative remedies are available.” 42 U.S.C. § 1997e(a). However, the PLRA contains a “textual exception to mandatory exhaustion.” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016). Under the PLRA, a plaintiff need “not exhaust remedies if they are not ‘available.’” Id. at 1855; see also Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002). In other words, the PLRA “requires exhaustion of all available remedies, not all remedies.” Berry v. Klem, 283 F. App’x 1, 4-5 (3d Cir. 2008). In Ross, the Supreme Court defined “available” as “capable of use for the accomplishment of a purpose.” Ross, 136 S. Ct. at 1858.
Courts have found that administrative remedies are unavailable where the plaintiff’s attempts to exhaust are thwarted through “machination, misrepresentation, or intimidation,” where officers are unable or unwilling to provide relief to the aggrieved petitioner, or where the administrative scheme is “so opaque” that it becomes practically incapable of use. Ross, 136 S. Ct. at 1860. Similarly, courts have found administrative remedies unavailable where prison
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officials ignore their own procedural rules, See, e.g., Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 154 (3d Cir. 2016); Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003); Camp v. Brennan, 2019 F.3d 279, 280-81 (3d Cir. 2000). Notably, while Ross sets forth some paradigmatic types of circumstances in which administrative remedies are unavailable, “neither the Supreme Court nor this Circuit has held that those three circumstances are comprehensive, as opposed to exemplary.” West v. Emig, 787 F. App’x 812, 815 (3d Cir. 2019).
Here, administrative remedies are unavailable to Petitioners. Any available remedy would almost certainly require Petitioners to engage in an administrative process that could take weeks or months to resolve. However, a lethal pandemic is spreading swiftly and exponentially. Throughout the United States and around the world, organizations and governments have taken dramatic and economically devastating measures to help slow the spread of this deadly disease because of the particular rapidity with which it infects, debilitates, and sometimes kills. Accordingly, any administrative-remedy program that would require Petitioners to wait even a week to complete is not “capable of use for the accomplishment of [that] purpose. Ross, 136 S. Ct. 15 1858. Even the regulation cited by Respondent as allowing for “emergency” remedies on an expedited basis illustrates unavailability here. See Doc. 12-2 at 33 (citing 28 C.F.R. § 542.18). The BOP is the entity that “determine[s]” whether the request actually is “of an emergency nature” that would trigger an emergency response on an expedited timeline. Id. As Respondent has stated repeatedly, he does not regard this situation as rising to that level. Moreover, any such denial issued by Respondent is still not deemed exhausted for weeks until it has been appealed further, and the regulation makes no provision for expediting the appeal to the regional office or BOP central office. See id.
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Each day that Petitioners must wait for relief is significant. Both administrative remedies preceding habeas litigation and administrative remedies preceding civil rights litigation (which this is not) are practicably unavailable to petitioners. Accordingly, petitioners’ claims are not barred by the PLRA’s exhaustion requirement. VI. The FDC’s exposure of vulnerable detainees to a high risk of COVID-19 infection
violates the Fifth and Eighth Amendments In Helling v. McKinney, the Supreme Court stated “[i]t would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them.” 509 U.S. 25, 33 (1993). Here, a fire is crackling outside the FDC’s walls, and at any moment an ember could slip in and ignite an inferno. This risk to life, and the FDC’s deliberate indifference to it, are a classic Fifth and Eighth Amendment violation.15 A Fifth or Eighth Amendment claim requires the petitioner to “make (1) a subjective showing that the defendants were deliberately indifferent to his or her medical needs and (2) an objective showing that those needs were serious.” Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (internal quotation marks, brackets, and citations omitted). Both elements are present here.
A. The FDC is acting with deliberate indifference to vulnerable detainees’ health and safety
A prison official is deliberately indifferent when he “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the
15 The due-process rights of a pretrial detainee are “‘at least as great as the Eighth Amendment protections available to a convicted prisoner.’” Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003) (quoting Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)). This case does not implicate any potential differences between the Fifth and Eighth Amendment standards.
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inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Respondent knows well that facilities like the FDC are exceptionally susceptible to a deadly outbreak of COVID-19. Pet. ¶¶ 30-72; see also, e.g., United States v. Rodriguez, 2:03-cr271-AB, 2020 WL 1627331, at *8-10 (E.D. Pa. Apr. 1, 2020) (detailing the risks posed by the virus to prisons and jails). He further knows that inmates with medical conditions such as Petitioners’ are at heightened risk for severe, life-threatening cases of COVID-19. Pet. ¶¶ 22-26, 92-94; see also, e.g., Rodriguez, 2020 WL 1627331, at *7-8. Despite knowing all this, Respondent continues to hold Petitioners and all other FDC detainees in conditions in which they cannot maintain effective social distancing and recommended hygienic practices, and lack access to COVID-19 tests, among other shortcomings. Pet. ¶¶ 73-91; see also, e.g., United States v. Colvin, No. 3:19-CR-179, 2020 WL 1613943, at *4 (D. Conn. Apr. 2, 2020). This is deliberate indifference to the health and safety of Petitioners and their fellow detainees.
B. Petitioners’ health needs are serious Public-health hazards can present serious health threats that violate the Fifth and Eighth Amendments, even if the detainee has not yet been harmed. See, e.g., Helling v. McKinney, 509 U.S. 25, 28 (1993) (“[R]espondent was assigned to a cell with another inmate who smoked five packs of cigarettes a day.”); Hutto v. Finney, 437 U.S. 678, 682-83 (1978) (“Although some prisoners suffered from infectious diseases such as hepatitis and venereal disease, mattresses were removed and jumbled together each morning, then returned to the cells at random in the evening.”). Respondent’s chief defense on this point is that COVID-19 is also a risk outside of jail. See Br. at 34. This is true of virtually any contagious disease or other public-health hazards—true but trivial. The risk inside the FDC is much higher than the risk outside, where
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people can wash their hands with soap, minimize the number of people they encounter on a daily basis, get tested for COVID-19 (not one test has been administered in the FDC to detainees), and so on. “[A] remedy for unsafe conditions need not await a tragic event.” Helling, 509 U.S. at 33.
Furthermore, Petitioner Hall is not precluded from pursuing a § 2241 habeas claim in this civil case by Judge Beetlestone’s denial of a motion in his criminal case. In particular, the discovery process in this civil action will allow Mr. Hall to put into evidence information that was impossible for him to obtain in his criminal action, including information gleaned from an inspection of the FDC, as well as Respondent’s responses to Petitioners’ discovery requests. VII. The PLRA does not apply to this action, and even if it did, it would not bar the
requested relief As previously discussed more fully, the PLRA does not apply to or impose any limitations upon § 2241 actions seeking release. However, even if this Court finds that this is a conditions-of-confinement action to which the PLRA applies on the theory that Petitioners are not seeking “release,” the PLRA does not limit this Court’s power to grant the relief that is requested. First, even if the PLRA generally applies restrictions to civil actions that seek a “prisoner release order,” numerous courts have held that transferring a detainee does not trigger the definition of a “prisoner release order” within the meaning of the statute. See 18 U.S.C. § 3626(g)(4). Second, by the PLRA’s plain language, a party seeking a “prisoner release order” must demonstrate as a prerequisite that “crowding is the primary cause of the violation” in order to obtain relief. 18 U.S.C. §§ 3626(a)(3)(B) & (a)(3)(E)(i). Therefore, the PLRA’s narrow definition of a “prisoner release order” cannot apply in situations like this one, where the constitutional violation alleged stems primarily not from overcrowding, but instead from the rampant spread of a novel and deadly disease that the BOP is ill-equipped to control. Finally, the PLRA does not set an outright prohibition on appointing a special master where the special
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master will not exercise final authority but rather will propose findings to the Court to facilitate quick judicial decision-making.
A. The PLRA does not preclude a single district judge from ordering a detainee transfer, nor does it apply to detainee claims that go beyond mere overcrowding.
Under the PLRA, there is a difference between a prisoner transfer and a prisoner release. In Reaves v. Department of Correction, the court had previously ordered a prisoner to be transferred to an outside facility so that he could be treated by a physician with the training to care for his medical needs. 392 F. Supp. 3d 195, 210 (D. Mass. 2019). The government moved to stay the execution of that order, arguing, as it does here, that under the PLRA, a three-judge panel must approve the transfer of the prisoner. Id. at 522. The court rejected the government’s argument because the prisoner had not been released within the meaning of the statute. Id. Instead, the Court “did not release Mr. Reaves from incarceration, it transferred him. This is a distinction not without a difference.” Id. Here, as in Reaves, the remedy requested is not release from prison but instead a transfer to a different location of incarceration. The detainees in this action will still be under BOP control—they will merely be confined in a different location, which is permissible under the PLRA.
Second, and to the extent that the requested remedy is a “release,” the highly restrictive definition of “prisoner release order” that triggers the PLRA applies only in situations where the primary basis of the detainees’ claim is overcrowding. The Reaves Court explained that the definition of a “prisoner release order,” which, as cited by the government in the instant matter, would seem to limit any civil action that had the “purpose or effect of reducing or limiting the prison population,” is best read to limit only civil actions where the primary basis of the constitutional claim is overcrowding. As the court explained,
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Reading the statue as a whole entails harmonizing the definition of “prisoner release order” with the requirements for entering one. One of two necessary conditions for entering a release order . . . is that the three-judge panel find by clear and convincing evidence, that ‘crowding is the primary cause of the violation of a Federal right.’ 18 U.S.C. § 3626 (a)(3)(E)(i). Reaves v. Dep’t of Corr., 404 F. Supp. 3d 520, 523 (D. Mass. 2019) (quoting Plata v. Brown, No. C01-1351, 2013 WL 3200587, at *8 (N.D. Cal. June 24, 2013)) (emphasis added). In this instance, mere overcrowding is not the primary cause of the violation. Instead, the primary cause of the violation is the unprecedented threat of the highly infectious COVID-19 outbreak in the prison population, of which overcrowding is but one part of a much larger issue. Accordingly, the Reaves Court found, where, as here, accepting the government’s argument “would mean that the only way a district court can order the release of a prisoner is for a violation of his constitutional rights where overcrowding caused the violation, but not if any other reason caused the violation.” Id. The PLRA cannot impose such a strict limitation, which would essentially limit all prisoner claims to only those that stem from overcrowding. This plain-language interpretation of the PLRA is supported by the legislative history and legislative intent. As further noted in Reaves, the legislative history suggests that the sponsors of the PLRA were primarily “concerned with courts setting ‘population caps’ and ordering the release of inmates as a sanction for prison administers’ failure to comply with the terms of consent decrees designed to eliminate overcrowding.” Id. It naturally follows then that the legislative intent could not have been to limit the Court’s ability to grant relief during an unprecedented global pandemic but instead to curb overcrowding suits generally. Accordingly, because overcrowding is not the primary basis of the plaintiffs’ claim, the PLRA does not limit the requested remedy.
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B. The PLRA does not prohibit the “broad” relief requested, as the novel coronavirus poses an unprecedented risk that cannot be abated by lesser means
The government argues that the PLRA limits the Court’s authority to grant the requested relief because any remedy granted under the PLRA must be “narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A). As noted for multiple reasons above, the PLRA does not limit the Court’s authority. However, again, considering arguendo that it did, this language would hardly preclude the requested relief, especially in light of an unprecedented global pandemic.
Reaves is again instructive on this point. There, the Court found simply that the requested relief is appropriately narrow because, “if Mr. Reaves is not transferred, he will die.” Id. In the instant matter, if a substantial number of detainees are not transferred to home confinement, in all likelihood many will catch COVID-19, and some of them will die. The virus will rage inside the walls of the prison, spread to guards and other staff members, trickle back out into the community, and prolong this crisis for the population at large. It would be wholly inappropriate, especially on a motion to dismiss, to bar this claim on the basis that it is not sufficiently narrow when absolutely no precedent exists for the kind of danger the world is facing from COVID-19.
Finally, the PLRA does not limit the Court’s authority to appoint a special master to help facilitate this urgently needed relief. The government concedes that the PLRA allows special masters to “conduct hearings on the record and prepare proposed findings of fact.” Doc. 12-2 at 42 (emphasis added). This is exactly how the special master should function in this case. Specifically, given the exigency of the crisis and the broad review that must be undertaken, a special master could review the files of individual detainees and make recommendations to the
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court, i.e. “prepare proposed findings of fact.” The Court would be under no obligation to accept those recommendations. Rather, the Court could and would still exercise its discretion in choosing whether or not to follow the recommendation. Appointing a special master in this fashion cannot possibly run afoul of the PLRA, especially when the government implicitly concedes that this is a permissible practice. Given the urgent need of these detainees and the relative ease with which this Court could avoid an impermissible delegation, appointing a special master is not only permissible, it makes good sense. VIII. There is no cause to strike Petitioners’ class allegations
Respondent asks the Court to strike Petitioners’ class allegations before he has even filed his answer to the initial pleading. This request is premature and groundless.
There are “rare few” cases “where the complaint itself demonstrates that the requirements for maintaining a class action cannot be met.” Landsman & Funk PC v. Skinder-Strauss Assocs., 640 F.3d 72, 93 n.30 (3d Cir. 2011). “As such, district courts in the Third Circuit typically hold that motions to strike class allegations are premature and that the proper avenue is to oppose the plaintiff’s motion for class certification.” Whitaker v. Herr Foods, Inc., 198 F. Supp. 3d 476, 497 (E.D. Pa. 2016) (internal quotation marks and citations omitted). No special factors would warrant a departure from this practice here, even if the request to strike had merit.
And Respondent’s request to strike does not have merit. As described above, courts have long authorized class-based habeas petitions as a procedural device. See section IV.c. And as Petitioners will more fully show at the appropriate procedural stage, all four requirements of Federal Rule of Civil Procedure 23(a) are met. The first factor is numerosity: the FDC holds over 1,000 detainees. Respondent does not, and could not, dispute that the class satisfies the numerosity requirement.
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Second is commonality, which “does not require perfect identity of questions of law or fact among all class members. Rather, ‘even a single common question will do.’” Reyes v. Netdeposit, LLC, 802 F.3d 469, 486 (3d Cir. 2015) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 359 (2011)). “Because the requirement may be satisfied by a single common issue, it is easily met . . . .” Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 56 (3d Cir. 1994). “[C]ommonality is not defeated by a showing that ‘individual facts and circumstances’ will have to be resolved.” Thomas v. SmithKline Beecham Corp., 201 F.R.D. 386, 392 (E.D. Pa. 2001) (quoting Baby Neal, 43 F.3d at 57). Commonality is easily established in this case. The Proposed Class members are all currently incarcerated at the FDC. They are all facing elevated risk of exposure to the same deadly virus because of the same failures to undertake protective measures that would help guard against transmission. They are all unable to practice social distancing because of the conditions in which they are held, they all lack sufficient PPE, and they all regularly interact with shared surfaces and objects that have seen insufficient sanitization. See also Pet. ¶ 117 (listing six common questions of fact and law).
Third is typicality. The purpose of this requirement is to assure that the claims of the named plaintiffs and the class “are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 157-58 n.13 (1982). Petitioners, like all the Proposed Class members, are FDC detainees who each face elevated risk because of the facility’s common failures to undertake sufficient protective measures. They all face a virus that can infect any human. “If the claims of the named plaintiffs and putative class members involve the same conduct by the defendant, typicality is established regardless of factual differences.” Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 183-84 (3d Cir. 2001).
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Fourth is adequacy of representation. Respondent challenges Petitioners’ “fit[ness] to represent the members of their proposed class” on the grounds that they have “fail[ed] to consider or account for . . . concerns” about some detainees’ access to food, shelter, or medical care if released. Br. at 45. To the contrary, Petitioners have proposed the appointment of a special master to review all detainees’ situations. And Petitioners’ counsel bring to this case a combination of expertise that includes criminal law, prisoner litigation, and Rule 23(b)(2) class actions.
Finally, this case is appropriate for class certification under Rule 23(b)(2). Courts routinely use Rule 23(b)(2) to adjudicate claims involving treatment of inmates. E.g., Woods v. Marler, No. 17-4443, 2018 WL 1439591 (E.D. Pa. Mar. 22, 2018) (certifying class of FDC detainees challenging Warden Marler’s visitation policy); Williams v. City of Phila., 270 F.R.D. 208, 222 (E.D. Pa. 2010) (certifying Rule 23(b)(2) class of inmates); Colon v. Passaic Cty., No. 08-cv-4439, 2009 U.S. Dist. LEXIS 45151, at *16–18 (D.N.J. May 27, 2009) (certifying class of those who were currently, or would become, incarcerated in Passaic County Jail); Dittimus-Bey v. Taylor, 244 F.R.D. 284, 293 (D.N.J. 2007) (certifying Rule 23(b)(2) class of individuals incarcerated at Camden County Correctional Facility on overcrowding claim); Death Row Prisoners of Pa. v. Ridge, 169 F.R.D. 618, 623 (E.D. Pa. 1996) (certifying Rule 23(b)(2) class of death-row detainees). IX. Discovery is necessary, and will be fast and efficient
Respondent argues that discovery in this case is inappropriate and that in any event it has already fulfilled any discovery obligations it could possibly have by supplying Petitioners with their own records and directing them to the BOP website, which according to Respondent is
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“detailed and transparent regarding its efforts to respond to the COVID-19 pandemic.”16 Respondent’s Brief at 45. That argument is premature given that no discovery has yet been served, but it is also not supported by the facts or the law.
The BOP website may set forth high-level COVID-19 guidelines, but it hardly details the facts on the ground at the FDC. Petitioners are entitled to probe those facts, which will either support or contradict the FDC’s claims that it has “taken exhaustive measures . . . to protect inmates and staff against COVID-19.” Repsondent’s Brief at 1. The website does not provide the number of detainees and staff who have received tests for COVID-19; it does not provide information on how often commonly touched surfaces at the FDC are being disinfected and what cleaning products are available for use; it does not provide the number of masks given to staff and detainees; it does not provide information on detainees’ ability, if any, to self-quarantine. In short, the website is silent when it comes to providing the particulars at the FDC that all of us have come to understand are critical in preventing the spread of COVID-19.
The sole case Respondent cites about discovery, Bracy v. Gramley, 520 U.S. 899, 904 (1997), does not block Petitioners from obtaining discovery. In contrast to Bracy, the current lawsuit is not only a petition for writ of habeas corpus under § 2241, but is also a class-action complaint for declaratory and injunctive relief for which litigants are most certainly “entitled to discovery as a matter of ordinary course.” Moreover, even in Bracy, a habeas petition brought pursuant to 28 U.S.C. § 2254, the Court allowed discovery, pursuant to Rule 6(a) of the Rules Governing § 2254 Cases (providing that a judge may allow discovery in a habeas action “for
16 The FDC’s claim that Petitioners have ignored the BOP’s website is puzzling. Petitioners cited the BOP’s website three times in their Petition, most notably for the concerning fact that as of April 14, the BOP reported at least 388 inmates have tested positive, along with 201 BOP staff. Pet. ¶ 70, n. 63. Even more concerning, however, is that these numbers are drastically increasing and as of April 20, there are now 702 federal inmates who have tested positive, and 22 people in federal custody who have died from this virus. https://www.bop.gov/coronavirus/
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good cause”). See generally Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (“‘[W]here specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief, it is the duty of the courts to provide the necessary facilities and procedures for an adequate inquiry.’”) (quoting Harris v. Nelson, 394 U.S. 286, 299 (1969)). Here, in the midst of a pandemic, where Petitioners have already asserted disturbing facts about the lack of testing at the FDC, their inability to practice social distancing, the lack of what the rest of the country acknowledges to be standard sanitizing and disinfecting protocols, there is ample cause for the Court in its discretion to allow an independent inspection as well as Petitioners’ proposed discovery to fill in the remaining facts that are exclusively within the possession of the FDC.
Petitioners have therefore drafted the attached discovery requests with an eye toward minimizing burdensomeness. See Interrogatories, attached as Exhibit A; Requests for Production of Documents, attached as Exhibit B; Notice of Deposition, attached as Exhibit C.17
X. Conclusion Every one of us recognizes that we live in a very different world than we did just a few
months ago. Each of us now knows that we must take extreme measures—social distancing, wearing gloves and masks when we shop for food (if we dare go out and shop), and taking frequent hygienic measures, including handwashing and the use of hand sanitizer and wiping down surfaces with bleach cleansers—in order to protect ourselves and loved ones from contracting COVID-19. We can no longer go to work but must work from home. Many have lost employment. We cannot enjoy social engagements such as dining out, attending concerts or movies. There are no sporting events to be seen on television because all sports have been
17 Some of this discovery will likely become unnecessary should the Court appoint an inspector to visit the FDC.
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canceled. Many of us have restricted ourselves from seeing children and grandchildren because

of the deadly health risks from this virus that can be so infectious it spreads before those infected

are symptomatic. Given these extraordinary times, it is evident that extraordinary measures must

be undertaken to ensure that lives are protected where the insidious COVID-19 virus can most

easily spread like a wildfire—inside prison walls. Petitioners therefore have properly brought

this Class Action Petition for Writ of Habeas Corpus to accomplish what must be done to save

those lives. For all the reasons set forth in this Response, Petitioners respectfully submit that

Respondent’s Motion to Dismiss the Petition and Class Action Complaint is without merit and

should be denied.

Respectfully submitted,

Mary M. McKenzie, Pa. Bar No. 47434 Benjamin D. Geffen, Pa. Bar No. 310134 PUBLIC INTEREST LAW CENTER 1500 JFK Blvd., Suite 802 Philadelphia, PA 19102 Tel: 215-627-7100 mmckenzie@pubintlaw.org bgeffen@pubintlaw.org
Jim Davy, Pa. Bar No. 321631 2362 E. Harold Street Philadelphia, PA 19125 Tel: 609-273-5008 jimdavy@gmail.com

/s/ Linda Dale Hoffa Linda Dale Hoffa, Pa. Bar No. 34063 Margaret Spitzer Persico, Pa. Bar No. 320178 DILWORTH PAXSON LLP 1500 Market St. Suite 3500E Philadelphia, PA 19102-2101 Tel: 215-275-7000 Fax: 215-575-7200 lhoffa@dilworthlaw.com
Counsel for Petitioners and Proposed Class Members

Dated: April 21, 2020

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CERTIFICATE OF SERVICE I, Linda Dale Hoffa, counsel for Petitioners, hereby certify that on this date, a true and correct copy of Petitioners’ Brief in Opposition to Respondent’s Motion to Dismiss the Petition and Class Action Complaint was served on all counsel of record via ECF.

Dated: April 21, 2020

/s/ Linda Dale Hoffa Linda Dale Hoffa

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 Case 2:20-cv-01914-AB Document 101 Filed 09/15/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TIMOTHY BROWN, et al., Petitioners,
v. SEAN MARLER,
Respondent.

:

:

CIVIL ACTION

:

No. 20-1914

:

:

:

ORDER AND NOW, this 15th day of September, 2020, it is ORDERED that: • The Court DENIES Respondent’s Motion to Dismiss the Petition and Class Action
Complaint on the issue of jurisdiction (ECF No. 12)1. • Petitioners are entitled to discovery limited to an on-site inspection by an expert.

1 The Third Circuit’s recent precedential opinion in Hope v. Warden of York County, -- F.3d --, 2020 WL 5001785, at *21 (3d Cir. Aug. 25, 2020) plainly provides that this Court has jurisdiction to hear Petitioners’ §2241 petition for release. In Hope, the Third Circuit explained that §2241 is a proper avenue to challenge unconstitutional conditions of confinement and seek release. Id. In doing so, the Hope court maintained that habeas is an extraordinary remedy. Id. The Hope court followed by declaring that the COVID-19 pandemic satisfied the “extraordinary circumstances” necessary to seek release on the basis of unconstitutional conditions of confinement. Id. The Government relies on Reese v. Warden Philadelphia FDC, 904 F.3d 244 (3d. Cir. 2018) and Cardona v. Bledsoe, 681 F.3d 533 (3d Cir. 2012) to argue that §2241 is not a proper avenue for pre-trial detainees and post-sentence prisoners to challenge unconstitutional confinement conditions. Hope cannot, nor does it purport to, overrule Reese or Cardona. Indeed, Hope clarifies that COVID-19 meets the “exceptional circumstances” that the Reese court affirmed were necessary for a pre-trial detainee to seek release under habeas. Reese, 904 F.3d at 246 n.2 (citing Jones v. Perkins, 245 U.S. 390, 391 (1918)). And Cardona, notably written by Chief Judge D. Brooks Smith who joined the opinion in Hope, held that a post-sentence prisoner could not use §2241 to challenge confinement conditions where Petitioner sought a remedy short of release. 681 F.3d at 537-38. Hope, on the other hand, makes clear that when the remedy is release, and extraordinary circumstances like that of COVID-19 are present, habeas is appropriate.

Case 2:20-cv-01914-AB Document 101 Filed 09/15/20 Page 2 of 2

• Petitioners must submit the name and resume of the expert to Respondent on or before Friday, September 18, 2020 at 12:00 pm. The expert must test negative for COVID-19 before the on-site inspection.
• On Monday, September 21, 2020 at 12:00 pm the Court will hold a final conference with Petitioners and Respondent on this matter.

Copies VIA ECF on 09/15/2020

_s/ANITA B. BRODY, J._______ ANITA B. BRODY, J.

 
 Case 2:20-cv-01914-AB Document 110 Filed 10/06/20 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TIMOTHY BROWN, et al., Petitioners,
v.
SEAN MARLER, Respondent.

:

:

CIVIL ACTION

:

No. 20-1914

:

:

:

:

JOINT INSPECTION PROTOCOL

1. The parties submit the following joint protocol regarding an inspection

of the Federal Detention Center (FDC) in Philadelphia to be conducted by

Petitioners’ expert, Dr. Homer D. Venters, and Respondent’s expert, Dr. Rebecca A.

Lubelczyk (“the Inspectors”).

2. By consent of the parties, an inspection of the FDC is to be conducted by

the Inspectors on October 8, 2020, starting at 9:00 a.m., and continuing for no longer

than four hours from when the Inspectors have passed through security, with a

reasonable amount of additional time added for delays encountered during the

inspection not attributable to the Petitioners.

3. The Inspectors shall be allowed to enter the FDC and inspect the

following areas of the FDC:

a) The staff entryway;

b) The Receiving and Discharge area, provided that it is not

occupied by an inmate undergoing intake procedures;

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c) Unit 4 North, where Petitioners Timothy Brown and Anthony Hall currently reside;
d) Unit 3 North, the quarantine and isolation unit, where Petitioner Myles Hannigan currently resides;
e) Any other housing, quarantine, or isolation unit where any Petitioner is located at the time of the inspection;
f) Other housing unit(s) chosen by the Inspectors, recognizing that all two-tier housing units are substantially identical to one another; and
g) The health services unit. The Inspectors’ inspection of these areas will be subject to the following limitations and exceptions:
a) Any inspection of the Special Housing Unit will be limited to the female range on the South Tower, which can be used to house female inmates in quarantine or isolation;
b) Neither Inspector shall be allowed entry into any medical unit or area in which a detainee (other than a Petitioner) is in the process of receiving medical evaluation or treatment from medical staff, but Respondent will ensure that the Inspectors are allowed reasonable time otherwise to inspect medical units during their inspections; and
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c) The Inspectors shall immediately follow the directions of BOP staff to exit any area of the FDC upon the BOP’s determination (in its sole discretion) that remaining in an area of the FDC would be unsafe or impede prison management based on exigent circumstances occurring at the time.
4. The Inspectors will be allowed to bring writing pads and writing implements. Cell phones are not allowed in the FDC, and the Inspectors shall not bring cell phones or other electronics to the FDC.
5. Each Inspector shall be tested for COVID-19 within 72 hours prior to the inspection and shall attend the inspection only upon receipt of a negative result to that test. Counsel for the parties shall file with the Court ahead of the inspection a letter confirming that negative test results have been received.
6. One attorney of record for each party may also be present at the inspection, and the limitations specified above in paragraphs 3, 4, and 5 shall also be applied to these attorneys for the parties. At least 24 hours before the time of the inspection, counsel for Petitioners shall provide to counsel for Respondent the name of the attorney attending the inspection for Petitioners, which counsel for Respondent will provide to the FDC.
7. The FDC shall provide a digital camera and photographer during the inspection. The photographer designated by FDC shall take still photographs during the inspection as directed by the Inspectors. Counsel for the parties may review each
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photograph on the camera and direct reasonable retakes as needed. No photographs may be taken of staff or inmates. Following the inspection, Respondent shall review the photographs, determine whether any present a security concern, and release all acceptable photographs to counsel for the Petitioners within 24 hours of the inspection. If any photograph presents security concerns, the parties shall meet and confer and attempt to resolve those concerns; the parties will raise any issue they cannot resolve with the Court. Photographs taken during the inspection may be subject to a subsequent limited protective order entered into by the parties with the Court's approval.
7. The Health Services Administrator for the FDC shall be available to assist FDC personnel in guiding the Inspectors to medical areas and in answering reasonable factual questions posed by the Inspectors about FDC’s policies and procedures and the provision of medical care related to COV1D-19. The FDC Safety Administrator shall also be available to answer reasonable factual questions posed by the Inspectors about the FDC’s policies and procedures related to COVID-19. The inspectors shall jointly be allowed to have brief voluntary conversations with FDC staff encountered along the way during the inspection. “Voluntary conversations” are understood as conversations in which the staff member is advised that he or she is free to accept or refuse the opportunity to speak to the Inspectors. The FDC shall not retaliate against any staff member for speaking with, or declining to speak with, the Inspectors. Questions relating to FDC policy shall be directed only to the Health Services
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Administrator and Safety Administrator, and not to other staff encountered during the tour.
8. The Inspectors shall be allowed to interview the Petitioners, and the FDC will make the Petitioners available for that purpose. The Inspectors shall also be allowed to conduct voluntary conversations with other detainees if: (a) the detainee consents in advance to speak with the Inspectors, (b) the attorney for the detainee, if represented by an attorney, has consented in writing in advance to the detainee speaking to the Inspectors, and (c) the detainee’s name has been provided to the FDC by counsel for Petitioners before the inspection. At the request of the detainee being interviewed, these interviews may be conducted out of the earshot of FDC staff and other inmates, although the detainee being interviewed must remain within the line of sight of FDC staff at all times. All interviews shall be conducted in the presence of both Inspectors and counsel for all parties. All interviews shall be conducted in English. Other than as provided in this paragraph, the Inspectors shall not interview FDC inmates.
9. The Inspectors and attorneys for the parties will each provide his or her own appropriate Personal Protective Equipment (“PPE”), which must include a mask and which may also include a face shield and gown. Each Inspector may also bring with him or her a tape measure for use during the inspection, provided that, at least 24 hours before the time of the inspection, counsel for Petitioners must advise counsel for Respondent (who shall advise the FDC) if Petitioners’ Inspector plans to bring a tape measure to the inspection.
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10. The FDC will provide a separate set of PPE for each Inspector and attorney for him or her to wear while inside Unit 3 North. The FDC will also provide a suitable area for performing PPE swaps before and after the Inspectors visit Unit 3 North.
11. Prior to the inspection, counsel for Respondent will provide to counsel for Petitioners:
a) Any documents that have been added to the medical records of Petitioners since Petitioners’ medical records were produced, in the context of this litigation, on April 20, 2020;
b) Publicly available BOP action plans; c) Current versions of the forms used for inmate and staff COVID-
19 screening; d) Sick call slips submitted by detainees on October 2, 5, 6, and 8,
2020 (with slips submitted on October 2 and 5 to be produced on a rolling basis before the inspection, and slips submitted on October 6 and 8 to be produced after the inspection), all of which shall be redacted of detainees’ names and any other identifying information before being provided to counsel for Petitioners; and e) Any staff screening forms completed during the week from October 1 through October 8, 2020 (recognizing that staff screening forms are completed only in the case of an affirmative
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response to a screening question), all of which shall be redacted of staff names and any other identifying information before being provided to counsel for Petitioners. 12. Subsequent to the inspection, each Inspector shall prepare his/her written report for the benefit of the Court in accordance with the following schedule: a) Inspection report of each Inspector to be served on opposing counsel on October 23, 2020. b) Rebuttal reports of each Inspector to be served on opposing counsel on October 30, 2020. The reports shall not use any personally identifying information for detainees or staff who are not parties to the above-captioned litigation, and the reports may be subject to a subsequent limited protective order entered into by the parties with the Court's approval. All reports (opening and rebuttal) shall be filed provisionally under seal after being served on October 30, 2020, and the parties shall thereafter confer regarding any necessary redactions. The parties shall publicly file redacted versions of the reports, if necessary, or ask the Court to unseal the reports, if redactions are not necessary, on November 6, 2020. No report (whether opening or rebuttal) shall be publicly disclosed prior to its public filing or unsealing.
It is SO ORDERED
s/ANITA B. BRODY, J. ANITA B. BRODY, J. Dated: ___O_C__T_O__B_E_R__6_,_2_0_2_0____
7