Case: 1:20-cv-10738 As of: 08/01/2020 07:47 PM EDT 1 of 7
CLOSED,HABEAS
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:20−cv−10738−GAO

Grinis et al v. Spaulding et al Assigned to: Judge George A. OToole, Jr related Case: 1:20−cv−10786−GAO Cause: 28:2241 Petition for Writ of Habeas Corpus (federa
Petitioner

Date Filed: 04/15/2020 Date Terminated: 07/06/2020 Jury Demand: None Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: Federal Question

Alexander Grinis on behalf of themselves and those similarly situated

represented by William W. Fick Fick & Marx LLP 24 Federal Street, 4th Flr. Boston, MA 02110 857−321−8360 Email: wfick@fickmarx.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Barsky Fick & Marx LLP 24 Federal Street, 4th Flr. Boston, MA 02110 857−321−8360 Email: abarsky@fickmarx.com PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel N. Marx Fick & Marx LLP 24 Federal Street, 4th Flr. Boston, MA 02110 857−321−8360 Email: dmarx@fickmarx.com ATTORNEY TO BE NOTICED

Jessie J. Rossman ACLU of Massachusetts 211 Congress Street 3rd Flr. Boston, MA 02110 617−482−3170 Email: jrossman@aclum.org ATTORNEY TO BE NOTICED

Matthew Segal American Civil Liberties Union 211 Congress Street Boston, MA 02110 617−482−3170 Fax: 617−451−0009 Email: msegal@aclum.org ATTORNEY TO BE NOTICED

Petitioner
Michael Gordon on behalf of themselves and those similarly situated

represented by William W. Fick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Amy Barsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel N. Marx (See above for address) ATTORNEY TO BE NOTICED

Jessie J. Rossman (See above for address) ATTORNEY TO BE NOTICED

Matthew Segal (See above for address) ATTORNEY TO BE NOTICED

Petitioner
Angel Soliz on behalf of themselves and those similarly situated

represented by William W. Fick (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amy Barsky (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel N. Marx (See above for address) ATTORNEY TO BE NOTICED

Jessie J. Rossman (See above for address) ATTORNEY TO BE NOTICED

Matthew Segal (See above for address) ATTORNEY TO BE NOTICED

V. Respondent Stephen Spaulding Warden, Federal Medical Center Devens
Respondent Michael Carvajal Director of Federal Medical Center Devens

represented by Eve A. Piemonte U.S. Attorney's Office 1 Courthouse Way Suite 9200 Boston, MA 02210 617−748−3100 Fax: 617−748−3969 Email: eve.piemonte@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eve A. Piemonte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # Docket Text

Case: 1:20-cv-10738 As of: 08/01/2020 07:47 PM EDT 3 of 7

04/15/2020 04/15/2020 04/15/2020 04/15/2020
04/15/2020 04/15/2020 04/15/2020 04/15/2020

1 PETITION for Writ of Habeas Corpus (2241) Filing fee: $ 5, receipt number 0101−8197974 Fee status: Filing Fee paid., filed by Michael Gordon, Alexander Grinis, Angel Soliz. (Attachments: # 1 Civil Cover Sheet, # 2 Civil Category Sheet)(Fick, William) (Entered: 04/15/2020)
2 ELECTRONIC NOTICE of Case Assignment. Judge George A. OToole, Jr assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Judith G. Dein. (Finn, Mary) (Entered: 04/15/2020)
3 MOTION for Temporary Restraining Order , Immediate Bail Consideration, and Preliminary Injunctive Relief by Michael Gordon, Alexander Grinis, Angel Soliz.(Fick, William) (Entered: 04/15/2020)
4 MEMORANDUM in Support re 3 MOTION for Temporary Restraining Order , Immediate Bail Consideration, and Preliminary Injunctive Relief filed by Michael Gordon, Alexander Grinis, Angel Soliz. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Fick, William) (Entered: 04/15/2020)
5 MOTION to Certify Class or Representative Habeas Action by Michael Gordon, Alexander Grinis, Angel Soliz.(Fick, William) Modified on 6/11/2020 (Lyness, Paul). (Entered: 04/15/2020)
6 MEMORANDUM in Support re 5 MOTION to Certify Class or Representative Habeas Action filed by Michael Gordon, Alexander Grinis, Angel Soliz. (Fick, William) (Entered: 04/15/2020)
7 NOTICE of Appearance by Daniel N. Marx on behalf of Michael Gordon, Alexander Grinis, Angel Soliz (Marx, Daniel) (Entered: 04/15/2020)
8 Judge George A. OToole, Jr: ORDER entered.

The Clerk shall serve the petition for writ of habeas corpus under 28 U.S.C. § 2241 and complaint for injunctive and declaratory relief, together with the pending motions, on the Respondents and the United States Attorney for the District of Massachusetts.

The Respondents shall file a response to the petition and the motion for immediate bail consideration, temporary restraining order, and preliminary injunctive relief within seven (7) days of the entry of this Order.

04/16/2020 04/16/2020 04/16/2020
04/17/2020 04/17/2020 04/20/2020 04/21/2020
04/21/2020

(PSSA, 4) (Entered: 04/15/2020)
9 NOTICE of Appearance by Eve A. Piemonte on behalf of Michael Carvajal, Stephen Spaulding (Piemonte, Eve) (Entered: 04/16/2020)
10 NOTICE of Appearance by Amy Barsky on behalf of Michael Gordon, Alexander Grinis, Angel Soliz (Barsky, Amy) (Entered: 04/16/2020)
11 Emergency MOTION for Status Conference and Immediate Disclosure of Initial Information and Periodic Reports by Michael Gordon, Alexander Grinis, Angel Soliz.(Fick, William) (Entered: 04/16/2020)
12 NOTICE of Appearance by Matthew Segal on behalf of Michael Gordon, Alexander Grinis, Angel Soliz (Segal, Matthew) (Entered: 04/17/2020)
13 NOTICE of Appearance by Jessie J. Rossman on behalf of Michael Gordon, Alexander Grinis, Angel Soliz (Rossman, Jessie) (Entered: 04/17/2020)
14 Judge George A. OToole, Jr: ELECTRONIC ORDER entered denying 11 Motion (Lyness, Paul) (Entered: 04/20/2020)
15 MOTION REQUESTING THAT THE DISTRICT COURT ADDS CHARLES NEWTON AS A CLASS MEMBER IN THE ABOVE CAPTIONED MATTER Modified on 4/24/2020 (Lyness, Paul). (Entered: 04/21/2020)
16 MOTION REQUESTING THAT THE DISTRICT COURT ADD'S DAVID A. WHEELER AS A CLASS MEMBER IN THE ABOVE CAPTIONED MATTER.(Halley, Taylor) Modified on 4/24/2020 (Lyness, Paul). (Entered:

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04/21/2020 04/21/2020 04/21/2020 04/21/2020 04/21/2020 04/21/2020 04/21/2020 04/21/2020 04/21/2020 04/21/2020 04/22/2020
04/22/2020 04/22/2020 04/22/2020

04/21/2020)
17 MOTION REQUESTING THAT THE DISTRICT COURT ADDS EDWARD MACKENZIE AS A CLASS MEMBER IN THE ABOVE CAPTIONED MATTER.(Halley, Taylor) Modified on 4/24/2020 (Lyness, Paul). (Entered: 04/21/2020)
18 MOTION REQUESTING THAT THE DISTRICT COURT ADDS FIDEL PEREYRA AS A CLASS MEMBER IN THE ABOVE CAPTIONED MATTER.(Halley, Taylor) Modified on 4/24/2020 (Lyness, Paul). (Entered: 04/21/2020)
19 MOTION REQUESTING THAT THE DISTRICT COURT ADDS ISRAEL CRUZ AS A CLASS MEMBER IN THE ABOVE CAPTIONED MATTER.(Halley, Taylor) Modified on 4/24/2020 (Lyness, Paul). (Entered: 04/21/2020)
20 MOTION REQUESTING THAT THE DISTRICT COURT ADDS MARK L. TASKER AS A CLASS MEMBER IN THE ABOVE CAPTIONED MATTER.(Halley, Taylor) Modified on 4/24/2020 (Lyness, Paul). (Entered: 04/21/2020)
21 MOTION REQUESTING THAT THE DISTRICT COURT ADDS SHARIF HOLMES AS A CLASS MEMBER IN THE ABOVE CAPTIONED MATTER.(Halley, Taylor) Modified on 4/24/2020 (Lyness, Paul). (Entered: 04/21/2020)
22 MOTION REQUESTING THAT THE DISTRICT COURT ADDS YANEL GREENE AS A CLASS MEMBER IN THE ABOVE CAPTIONED MATTER.(Halley, Taylor) Modified on 4/24/2020 (Lyness, Paul). (Entered: 04/21/2020)
23 MOTION REQUESTING THAT THE DISTRICT COURT ADDS YEFFRY REYNOSO AS A CLASS MEMBER IN THE ABOVE CAPTIONED MATTER.(Halley, Taylor) Modified on 4/24/2020 (Lyness, Paul). (Entered: 04/21/2020)
24 MOTION for Leave to File Excess Pages (Unopposed) by Michael Carvajal, Stephen Spaulding.(Piemonte, Eve) (Entered: 04/21/2020)
25 MOTION REQUESTING THAT THE DISTRICT COURT ADDS MICHAEL D. SCOTT AS A CLASS MEMBER IN THE ABOVE CAPTIONED MATTER. (Attachments: # 1 Cover Letter, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3)(Halley, Taylor) Modified on 4/24/2020 (Lyness, Paul). (Entered: 04/21/2020)
26 MOTION REQUESTING THAT THE DISTRICT COURT ADDS PABLO M. RIVERA AS A CLASS MEMBER IN THE ABOVE CAPTIONED MATTER. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Halley, Taylor) Modified on 4/24/2020 (Lyness, Paul). (Entered: 04/21/2020)
27 Judge George A. O'Toole, Jr: ELECTRONIC ORDER entered granting 24 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Halley, Taylor) (Entered: 04/22/2020)
28 MOTION REQUESTING THAT THE DISTRICT COURT ADDS JERMANE M. SAMUEL AS A CLASS MEMBER IN THE ABOVE CAPTIONED MATTER..(Halley, Taylor) Modified on 4/24/2020 (Lyness, Paul). (Entered: 04/22/2020)
29 MOTION REQUESTING THAT THE DISTRICT COURT ADDS KAREEM H. WOOD AS A CLASS MEMBER IN THE ABOVE CAPTIONED MATTER..(Halley, Taylor) Modified on 4/24/2020 (Lyness, Paul). (Entered: 04/22/2020)
30 MOTION REQUESTING THAT THE DISTRICT COURT ADDS MODESTO OZUNA AS A CLASS MEMBER IN THE ABOVE CAPTIONED MATTER..(Halley, Taylor) Modified on 4/24/2020 (Lyness, Paul). (Entered: 04/22/2020)

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04/22/2020 04/22/2020 04/23/2020
04/24/2020 04/24/2020 04/24/2020 04/24/2020 04/27/2020 04/27/2020
04/30/2020 05/04/2020 05/04/2020

31 MOTION REQUESTING THAT THE DISTRICT COURT ADDS YEFFRY REYNOSO AS A CLASS MEMBER IN THE ABOVE CAPTIONED MATTER..(Halley, Taylor) Modified on 4/24/2020 (Lyness, Paul). (Entered: 04/22/2020)
32 RESPONSE/ANSWER to 1 Petition for Writ of Habeas Corpus (2241), and Omnibus Response to Motion for Class Certification, Motion for Temporary and Injunctive Relief by Michael Carvajal, Stephen Spaulding. (Attachments: # 1 Declaration, # 2 Declaration, # 3 AG Memo Mar. 2020, # 4 AG Memo Apr. 2020)(Piemonte, Eve) (Main Document 32 replaced on 4/23/2020) (Halley, Taylor). (Entered: 04/22/2020)
33 ELECTRONIC NOTICE Setting Hearing on Motion 3 MOTION for Temporary Restraining Order , Immediate Bail Consideration, and Preliminary Injunctive Relief : This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the sessions courtroom deputy as soon as possible.Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: www.public.mad.uscourts.gov/seating−signup.For questions regarding access to hearings, you may refer to the Courts general orders and public notices available on www.mad.uscourts.gov or contact media@mad.uscourts.gov. Motion Hearing set for 4/27/2020 03:00 PM in Courtroom 22 before Judge George A. OToole Jr.. Please mark your calendars accordingly.(Lyness, Paul) (Entered: 04/23/2020)
34 Judge George A. OToole, Jr: ELECTRONIC ORDER entered. The several motions requesting that the movant be "added as a 'class member'" (dkt. nos. 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 28, 29, 30, and 31) are all DENIED WITHOUT PREJUDICE as premature. Whether a class will be certified has yet to be determined.(Lyness, Paul) Modified on 4/24/2020 (Lyness, Paul). (Entered: 04/24/2020)
35 Assented to MOTION for Leave to File Excess Pages by Michael Gordon, Alexander Grinis, Angel Soliz.(Fick, William) (Entered: 04/24/2020)
36 DECLARATION re 32 Response to Petition for Writ of Habeas Corpus − 2241, (Supplemental) by Michael Carvajal, Stephen Spaulding. (Attachments: # 1 Declaration)(Piemonte, Eve) (Entered: 04/24/2020)
37 Judge George A. O'Toole, Jr: Electronic Order entered GRANTING 35 Motion for Leave to File Excess Pages. See L.R. 7.1(b)(3) (requiring leave to file a reply brief); id. 7.1(b)(4) (requiring leave to file in excess of 20 pages). Any reply by the petitioners is due by Monday, April 27, 2020, at 9:00 a.m. and is limited to no more than 25 pages. (Halley, Taylor) (Entered: 04/24/2020)
38 REPLY to Response to 3 MOTION for Temporary Restraining Order , Immediate Bail Consideration, and Preliminary Injunctive Relief, 5 MOTION to Certify Class or Representative Habeas Action filed by Michael Gordon, Alexander Grinis, Angel Soliz. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Fick, William) (Entered: 04/27/2020)
39 Electronic Clerk's Notes for proceedings held before Judge George A. OToole, Jr: Motion Hearing held on 4/27/2020 re 3 MOTION for Temporary Restraining Order , Immediate Bail Consideration, and Preliminary Injunctive Relief filed by Alexander Grinis, Angel Soliz, Michael Gordon. The court takes the matter under advisement. (Court Reporter: Kathleen Silva at kathysilva@verizon.net.)(Attorneys present: For Petitioner's: William Fick, Daniel Marx, Jessie Rossman, Matthew Segal; For Respondents: Eve Piemonte) (Lyness, Paul) (Entered: 04/27/2020)
40 Notice of Supplemental Authorities re 3 MOTION for Temporary Restraining Order , Immediate Bail Consideration, and Preliminary Injunctive Relief (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Fick, William) (Entered: 04/30/2020)
41 Second Notice of Supplemental Authorities re 3 MOTION for Temporary Restraining Order , Immediate Bail Consideration, and Preliminary Injunctive Relief (Fick, William) (Entered: 05/04/2020)
42 EXHIBIT re 41 Notice of Supplemental Authorities (6th Cir. Wilson Decision) by Michael Gordon, Alexander Grinis, Angel Soliz. (Fick, William) (Entered:

Case: 1:20-cv-10738 As of: 08/01/2020 07:47 PM EDT 6 of 7

05/07/2020 05/08/2020 05/08/2020 05/08/2020
05/11/2020 05/12/2020 05/12/2020 05/12/2020
05/14/2020 05/26/2020 05/27/2020 05/27/2020

05/04/2020)
43 Supplemental Opposition re 3 MOTION for Temporary Restraining Order , Immediate Bail Consideration, and Preliminary Injunctive Relief [Notice of Supplemental Authorities] filed by Michael Carvajal, Stephen Spaulding. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Piemonte, Eve) (Entered: 05/07/2020)
44 MOTION to Consolidate Cases by Michael Carvajal, Stephen Spaulding.(Piemonte, Eve) Modified on 6/11/2020 (Lyness, Paul). (Entered: 05/08/2020)
45 Judge George A. O'Toole, Jr: OPINION AND ORDER entered denying 3 Motion for Immediate Bail Consideration, Temporary Restraining Order, and Preliminary Injunctive Relief. (Halley, Taylor) (Entered: 05/08/2020)
46 ELECTRONIC NOTICE Setting Hearing on Motion 5 MOTION to Certify Class or Representative Habeas Action :
This hearing will be conducted by video conference. Counsel of record will receive a video conference invite at the email registered in CM/ECF. If you have technical or compatibility issues with the technology, please notify the session's courtroom deputy as soon as possible.
Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: www.public.mad.uscourts.gov/seating−signup.
For questions regarding access to hearings, you may refer to the Court's general orders and public notices available on www.mad.uscourts.gov or contact media@mad.uscourts.gov.
Motion Hearing set for 5/12/2020 02:00 PM before Judge George A. O'Toole Jr. (Halley, Taylor) (Entered: 05/08/2020)
47 RESPONSE to Motion re 44 MOTION to Consolidate Cases filed by Michael Gordon, Alexander Grinis, Angel Soliz. (Fick, William) (Entered: 05/11/2020)
48 NOTICE by Michael Carvajal, Stephen Spaulding Regarding Petitioner Alexander Grinis (Attachments: # 1 Exhibit Memorandum and Order)(Piemonte, Eve) (Entered: 05/12/2020)
49 MOTION to Substitute Party by Michael Gordon, Angel Soliz. (Attachments: # 1 Declaration of Pablo Rivera)(Fick, William) Modified on 6/11/2020 (Lyness, Paul). (Entered: 05/12/2020)
50 Electronic Clerk's Notes for proceedings held before Judge George A. OToole, Jr: Motion Hearing held by Zoom on 5/12/2020 re 5 MOTION to Certify Class or Representative Habeas Action filed by Alexander Grinis, Angel Soliz, Michael Gordon. The Court takes the matter under advisement. (Court Reporter: Kathleen Silva at kathysilva@verizon.net.)(Attorneys present: For Petitioners: William Fick, Amy Barsky, Daniel Marx,Jessie Rossman,Matthew Segal; For Respondents: Eve Piemonte) (Lyness, Paul) (Entered: 05/12/2020)
51 Third Notice of Supplemental Authorities re 5 MOTION to Certify Class or Representative Habeas Action (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Rossman, Jessie) (Entered: 05/14/2020)
52 MOTION for Reconsideration re 45 Order on Motion for TRO by Michael Gordon, Angel Soliz. (Attachments: # 1 Memorandum in Support)(Rossman, Jessie) Modified on 6/11/2020 (Lyness, Paul). (Entered: 05/26/2020)
53 MEMORANDUM in Support re 52 MOTION for Reconsideration re 45 Order on Motion for TRO filed by Michael Gordon, Angel Soliz. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Rossman, Jessie) (Entered: 05/27/2020)
54 Supplemental Opposition re 5 MOTION to Certify Class or Representative Habeas Action (Notice of Supplemental Authority) filed by Michael Carvajal, Stephen Spaulding. (Attachments: # 1 Opinion − Wragg v. Ortiz)(Piemonte, Eve) (Entered: 05/27/2020)

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05/29/2020
05/29/2020
05/29/2020 06/09/2020 06/10/2020 06/11/2020 06/18/2020 07/02/2020
07/02/2020

55 Transcript of Video Conference Motion Hearing held on April 27, 2020, before Judge George A. OToole. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kathleen Silva at kathysilva@verizon.net Redaction Request due 6/19/2020. Redacted Transcript Deadline set for 6/29/2020. Release of Transcript Restriction set for 8/27/2020. (Scalfani, Deborah) (Entered: 05/29/2020)
56 Transcript of Video Conference Motion Hearing held on May 12, 2020, before Judge George A. OToole. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Kathleen Silva at kathysilva@verizon.net Redaction Request due 6/19/2020. Redacted Transcript Deadline set for 6/29/2020. Release of Transcript Restriction set for 8/27/2020. (Scalfani, Deborah) (Entered: 05/29/2020)
57 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/29/2020)
58 Opposition re 52 MOTION for Reconsideration re 45 Order on Motion for TRO filed by Michael Carvajal, Stephen Spaulding. (Attachments: # 1 Exhibit Declaration, # 2 Exhibit Declaration, # 3 Exhibit Supreme Court Order of Stay)(Piemonte, Eve) (Entered: 06/09/2020)
59 Supplemental Opposition re 52 MOTION for Reconsideration re 45 Order on Motion for TRO (Notice of Supplemental Authority) filed by Michael Carvajal, Stephen Spaulding. (Attachments: # 1 Exhibit Wilson v. Williams, # 2 Exhibit Chunn v. Edge)(Piemonte, Eve) (Entered: 06/10/2020)
60 Judge George A. OToole, Jr: OPINION AND ORDER entered. (Lyness, Paul) (Entered: 06/11/2020)
61 MOTION RESPONSE TO COURTS JUNE 11, 2020 ORDER AND MOTION TO CLARIFY OR, ALTERNATIVELY, TO VACATE COURTS MAY 8, 2020 ORDER re 60 Order, 45 Order on Motion for TRO by Michael Gordon, Angel Soliz.(Fick, William) (Entered: 06/18/2020)
62 Judge George A. OToole, Jr: Electronic Order entered: The petitioners have declined to proceed in this case under the Prison Litigation Reform Act, 18 U.S.C. § 3626 (See Pet'rs' Resp. to Court's June 11, 2020 Order and Mot. to Clarify or, Alternatively, to Vacate Ct.'s May 8, 2020 Order (dkt. no. 61).) Therefore, in accordance with the Court's prior Opinion and Order, this action is DISMISSED. (See Opinion and Order dated June 11, 2020 (dkt. no 60).) The assertion in the motion that the Court determined it lacked subject matter jurisdiction over the action is not correct. A district court plainly has jurisdiction over a cause of action purported to be brought under the authority of 28 U.S.C. § 2241. The action is dismissed not for lack of subject matter jurisdiction but because the complaint did not properly state a claim under § 2241. The previous orders in this action remain unchanged.(Lyness, Paul) Modified on 7/6/2020 (Lyness, Paul). (Entered: 07/02/2020)
63 Judge George A. OToole, Jr: ORDER entered. ORDER DISMISSING CASE(Lyness, Paul) (Entered: 07/02/2020)

 
 Case 1:20-cv-10738-GAO Document 1 Filed 04/15/20 Page 1 of 31

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,
Petitioners, v.
STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,
Respondents.

No. 20-cv-__________________
Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 and Complaint for Injunctive and Declaratory Relief
Class Action
IMMEDIATE RELIEF SOUGHT

INTRODUCTION 1. Camp Devens, a U.S. military installation established during World War I, was not the first place to see an influenza outbreak in 1918, but it was one of the hardest hit; more than 15,000 people were infected, and more than 800 died.1

1 Jack Lepiarz, “How Boston Reacted to the 1918 Flu Pandemic,” WBUR (Mar. 11, 2020), available at https://www.wbur.org/commonhealth/2020/03/11/boston-1918flu-pandemic-coronavirus.
1

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2. A century later, Devens faces a similar catastrophe. It now hosts a Federal Bureau of Prisons (“BOP”) medical center and satellite camp that hold over 1,000 men, including some of America’s most elderly, sick, and medically vulnerable prisoners. Those prisoners are acutely at risk of illness and death due to the COVID-19 pandemic, and any outbreak at the prison will imperil not only them, but also BOP staff and the surrounding community. This lawsuit seeks to vindicate the constitutional rights of those imprisoned at Devens and, in so doing, to protect their safety and improve public health.
3. Respondent Michael Carvajal, who only became BOP Director in February 2020, candidly admitted on April 11: “I don’t think anybody was ready for this Covid. . . . It was quite overwhelming, a week or two into this job, knowing that we were going to have to deal with something like this.”2
4. Available statistics reveal a public health disaster now erupting across BOP facilities that worsens with each passing day. From March 20 to April 14, confirmed COVID-19 cases among BOP prisoners and staff rose from 2 to 692 across 42 facilities nationwide. Severe outbreaks at FCI Oakdale in Louisiana, FCI Elkton in Ohio, FCI Butner in North Carolina, and FCI Danbury in Connecticut already have resulted in dozens of confirmed COVID-19 infections among prisoners and staff, many more suspected but unconfirmed cases, and multiple prisoner deaths.
2 David Shortell, Kara Scannell, and Manu Raju, “‘I don’t think anybody was ready for this Covid,’ says head of federal prisons,” CNN (Apr. 11, 2020), available at https://www.cnn.com/2020/04/10/politics/exclusive-interview-bopcarjaval/index.html.
2

Case 1:20-cv-10738-GAO Document 1 Filed 04/15/20 Page 3 of 31 5. That surge of COVID-19 cases inside the federal prison system has dwarfed the national percentage increase in confirmed cases over the same time period:3
6. FMC Devens—one of only 7 federal prison medical centers—is a powder keg of potential infection and death from COVID-19, to an even greater degree than nursing homes, cruise ships, and other prisons, sites of some of the 3 These statistics and associated charts are based on published CDC and BOP data, compiled and updated daily at https://federaldefendersny.org/.
3

Case 1:20-cv-10738-GAO Document 1 Filed 04/15/20 Page 4 of 31
most intense clusters of mortality in Massachusetts, the United States, and elsewhere in the world.
7. FMC Devens prisoners—many of whom are elderly, medically vulnerable, or both—are at uniquely high risk of infection, serious illness, and death.
8. FMC Devens is the only federal prison to operate a Memory Disorder Unit (“MDU”), a nursing home for prisoners who suffer from dementia, cannot care for themselves, and require regular nursing care. In the MDU, healthier prisoners serve as “companions,” who assist disabled prisoners with activities of daily living, including bathing, shaving, dressing, and toileting.4
9. Although there have been no confirmed COVID-19 cases at FMC Devens as of April 14, Respondent Warden Spaulding recently acknowledged to prisoners and staff that it is not question of “if” confirmed cases will appear among prisoners and staff, but “when.”
10. FMC Devens prisoners, therefore, face maximum danger from COVID19, require the most urgent judicial intervention, and are the most appropriate candidates for compassionate release and/or immediate transfer to home confinement. This is true of both the elderly and medically vulnerable prisoners in the medical center and the mostly low-level, non-violent offenders, serving short sentences or otherwise nearing their release dates, in the satellite camp.
4 See https://www.nccdp.org/resources/caring-for-inmates-in-a-specialized-dementiaunit-in-a-correctional-setting.pdf; https://alanellis.com/bop-health-care-what-youand-your-clients-need-to-know/.
4

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11. At current facility population levels, prisoners at FMC Devens cannot comply with the Centers for Disease Control and Prevention (“CDC”) guidelines for physical distancing, a “cornerstone” of risk reduction in prisons.5
12. Respondents, Director Carvajal and Warden Spaulding, have demonstrated deliberate indifference to the severe and obvious risk of rampant infection and death that COVID-19 poses to FMC Devens prisoners, in violation of the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment.
13. Respondents have failed to provide prisoners the ability to physically distance by ordering compassionate release and/or implementing immediate transfers to home confinement with sufficient speed or in sufficient numbers; indeed, they have prevented, and continue to prevent, prisoners from protecting themselves from infection by requiring prisoners to live, sleep, eat, congregate, recreate, and engage in other activities in crowded conditions that make effective social distancing impossible.
5 See CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities (Mar. 23, 2020), at 4 (“Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases such as COVID19”); id. (“Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic.”), available at https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html.
5

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14. So long as prisoners are unable to practice physical distancing, any
other mitigating steps will fail to decrease meaningfully the risk of COVID-19
infections at FMC Devens.
15. As in 1918, Devens in 2020 is not among the first locations to
experience confirmed infections, but it could again quickly become one of the
hardest hit. Without urgent intervention by this Court, another outbreak of illness
and death threatens to engulf the facility, with devastating consequences not only
for Petitioners and other vulnerable prisoners, but also for correctional staff, local
health care workers, their families, and the broader community.
16. Calling for immediate and extensive “efforts to decarcerate” to protect
both prisoners and the general public, the New England Journal of Medicine
explained:
The boundaries between communities and correctional institutions are porous, as are the borders between countries in the age of mass human travel. Despite security at nearly every nation’s border, Covid-19 has appeared in practically all countries. We can’t expect to find sturdier barriers between correctional institutions and their surrounding communities in any affected country. . . .
To promote public health, we believe that efforts to decarcerate, which are already under way in some jurisdictions, need to be scaled up; and associated reductions of incarcerated populations should be sustained. The interrelation of correctional-system health and public health is a reality not only in the United States but around the world.6
17. FMC Devens urgently requires these efforts.
6 Matthew J. Akiyama, M.D., Anne C. Spaulding, M.D., and Josiah D. Rich, M.D., “Flattening the Curve for Incarcerated Populations — Covid-19 in Jails and Prisons,” New England Journal of Medicine (Apr. 9, 2020), available at https://www.nejm.org/doi/pdf/10.1056/NEJMp2005687?articleTools=true.
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JURISDICTION AND VENUE 18. Petitioners bring this putative class action pursuant to 28 U.S.C. § 2241 for relief from their detention, which violates the Eighth Amendment to the U.S. Constitution. 19. This Court has subject matter jurisdiction over these constitutional claims pursuant to 28 U.S.C. § 2241 (habeas corpus); 28 U.S.C. § 1651 (All Writs Act); Article I, § 1, clause 2 of the U.S. Constitution (Suspension Clause); and 28 U.S.C. § 1331 (federal question). 20. This Court also jurisdiction over claims for declaratory and injunctive relief pursuant to 28 U.S.C. § 2201-02 and based on its inherent equitable powers. 21. Venue is proper in this judicial district pursuant to 28 U.S.C. § 2241(d), because Petitioners and Class Members are in custody in this district, and pursuant to 28 U.S.C. § 1391(e)(1), because a substantial part of the events or omissions giving rise to Petitioners’ claims occurred in this district.
PARTIES 22. Petitioner Alexander Grinis, BOP Register No. 01014-138, is imprisoned in the minimum-security satellite camp at FMC Devens. Grinis, who is 49-years old and has a medical history of hypertension and atypical chest pain, is at high risk not only of contracting COVID-19, but of having a severe case that leads to serious illness or death. Grinis is an appropriate candidate for compassionate release and/or immediate transfer to home confinement. He is serving a 9-month sentence based on a conviction for making a false statement on a loan application, and the BOP has calculated his release date to be June 16, 2020. The BOP has
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advised Grinis that he will be released to a halfway house on or about May 21, 2020 and that he will be required to spend 14 days in solitary confinement in the Special Housing Unit (“SHU”) of the prison, more commonly a severe punitive sanction, as a form of quarantine prior to his release to the halfway house. On April 10, Grinis sent a request by U.S. Mail to Warden Spaulding for compassionate release or, in the alternative, immediate transfer to home confinement. As of this filing, Grinis has received no response.
23. Petitioner Michael Gordon, BOP Register No. 96426-038, is imprisoned in the “H-B” unit of the administrative security medical center at FMC Devens. Gordon, who 51-years old, underwent a liver transplant, and is on immunosuppressant medications to keep his body from rejecting the liver. In addition, he suffers from hypertension and has experienced a pulmonary embolism and deep vein thrombosis. Because of these conditions, he is at high risk not only of contracting COVID-19, but of having a severe case that leads to serious illness or death. Gordon is an appropriate candidate for compassionate release and/or immediate transfer to home confinement. He is serving a 180-month sentence based on convictions for conspiracy to distribute marijuana, conspiracy to launder money, and money laundering. The BOP has calculated his release date to be August 18, 2027. On April 10, Gordon submitted a request to Warden Spaulding for compassionate release or, in the alternative, transfer to home confinement. As of this filing, Gordon has received no response.
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24. Petitioner Angel Soliz, BOP Register No. 70926-079, is imprisoned in the “J-B” unit of the Medical Center. Soliz, who is 59-years old, requires dialysis, has had a triple bypass, and is diabetic. Because of those conditions, Soliz is at high risk not only of contracting COVID-19, but of having a severe case that leads to serious illness or death. Soliz is an appropriate candidate for compassionate release and/or immediate transfer to home confinement. He is serving a 240-month sentence for conspiracy and possession with intent to distribute methamphetamine. The BOP has calculated his release date to be September 13, 2033. Soliz submitted a request Warden Spaulding for compassionate release, which was denied. He pursued administrative remedies, which were also denied.
25. Respondent Stephen Spaulding is the Warden of FMC Devens and, in that official capacity, has immediate custody of Petitioners and all proposed Class Members.
26. Respondent Michael Carvajal is the Director of the Federal Bureau of Prisons and, in that official capacity, is responsible for the safety and security of all persons, including Petitioners and all proposed Class Members, serving federal sentences at BOP facilities, including FMC Devens.
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FACTUAL ALLEGATIONS The COVID-19 pandemic endangers everyone, especially prisoners who cannot physically distance or maintain personal hygiene.
27. COVID-19 is the potentially deadly disease caused by a novel coronavirus that has sparked a global pandemic.
28. The CDC has reported that, as of April 14, 2020, there were 579,005 confirmed cases of COVID-19 in the U.S. and 22,252 people have already died.7
29. The Massachusetts Department of Public Health (“DPH”) has reported that, as of April 14, 2020, in Massachusetts, there were 28,163 confirmed cases and 957 deaths attributed to COVID-19.8
30. The novel coronavirus that causes COVID-19 is highly contagious. It spreads from person to person through respiratory droplets, close personal contact, and contact with contaminated surfaces and objects, where the virus can survive for up to three days. Critically, people who are asymptomatic or pre-symptomatic can unknowingly transmit the virus, making it particularly difficult to slow its spread.
31. COVID-19 is potentially fatal. According to estimates from the CDC and the World Health Organization, the mortality rate among confirmed cases of COVID-19 is significantly higher—possibly, 10 to 30 times higher—than from severe seasonal influenza.
7 See https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html. 8 See https://www.mass.gov/info-details/covid-19-cases-quarantine-and-monitoring.
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32. Although all people, regardless of their age or health, are at risk of serious illness and death from COVID-19, the CDC has identified certain categories of people who face especially high risks.
33. According to the CDC, people who are 65-years old or older face higher risks. If infected, these older adults are more likely to require hospitalization, to be admitted to intensive care units, and to die.9
34. According to the CDC, people of all ages similarly face higher risks if they have underlying medical conditions, including chronic lung disease, moderate to severe asthma, serious heart conditions, severe obesity, diabetes, chronic kidney disease undergoing dialysis, liver disease, or compromised immune systems as a result of cancer treatment, organ or bone marrow transplants, prolonged use of corticosteroids, HIV, a history of smoking, or other immune deficiencies.10
35. In addition, the CDC has identified prisons, along with nursing homes, long-term care facilities, group homes, and cruise ships, as environments that are especially susceptible to rapid outbreaks of infection due to close person-to-person contact among large, confined populations.11
9 See https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/olderadults.html. 10 See https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-athigher-risk.html. 11 See https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/guidance-correctional-detention.html.
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36. Even people who survive COVID-19 often suffer excruciating pain from infection; severe damage to lung tissue, including a permanent loss of respiratory capacity; and damage to other vital organs, such as the heart and liver.
37. Serious complications from COVID-19 can develop rapidly. Some patients show the first symptoms of infection within two days of exposure, and their conditions can seriously deteriorate in less than five days.
38. Most people in high-risk categories who develop serious illness require advanced medical support, including specialized equipment, such as ventilators, and large teams of highly trained care providers, such as ICU doctors, nurses, and respiratory therapists. The artificial ventilation process is itself invasive and dangerous, and some patients must be placed in medically induced comas for such treatment.
39. Given the need for advanced and urgent intervention, often in an ICU environment, people with severe cases of COVID-19 cannot be shackled or otherwise restrained, nor can they be subjected to constant, close supervision by correctional staff, as they would be in a typical correctional setting. FMC Devens cannot provide advanced support in an ICU setting with ventilators, certainly not for a substantial group of seriously ill prisoners who may require such specialized care.
40. There is no vaccine or cure for COVID-19, and there is no widely available therapeutic treatment that has proven safe and effective.
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41. According to CDC guidelines, only two measures are known to be effective in reducing the spread of this disease: (1) diligent “social or physical distancing,” which involves keeping at least six feet of space between people to avoid transmission of the virus, and (2) vigilant hygiene practices, including frequently washing hands and regularly disinfecting surfaces. Physical distancing is a necessary predicate for hygiene practices to have any meaningful impact.
42. Because asymptomatic or pre-symptomatic people can transmit the virus to others, it is critical to follow CDC guidelines, including social distancing, even among people who show no signs of COVID-19 and appear to be healthy.
43. These measures are not possible in prisons, like FMC Devens, without substantial reductions in the prisoner population. Even “modified lockdowns” cannot establish effective social distancing, given the way in which prisoners sleep, eat, congregate, recreate, and receive medical treatment; nor do such correctional measures ensure the implementation of necessary hygiene practices, particularly when adequate supplies of free soap, sanitizers, disinfectants, and paper towels are not available.
44. At all times, prisoners and staff interact in close proximity under cramped conditions that are designed to confine people rather than distance them; as a result, correctional facilities are highly susceptible to rapid transmission of the virus through contact with other persons, including asymptomatic carriers who show no signs of illness, and common surfaces.
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45. Moreover, prisoners, correctional staff, and contractors regularly move in and out of correctional facilities, and such movement creates an ever-present risk that persons, including asymptomatic carriers, will carry the virus into and out of those facilities, spreading infection and triggering outbreaks.
46. The recent deadly outbreaks in the Cook County Jail in Chicago, and at the Rikers Island Jail in New York, where the transmission rate for COVID-19 is estimated to be the highest in the world, demonstrate the terrible dangers that prisons pose to public health, inside and outside the walls, during this pandemic.12
47. The only effective way to minimize the potential devastation from COVID-19 at FMC Devens is to downsize immediately the incarcerated population and, for the prisoners who remain at the institution, to undertake aggressively the detection, prevention, and treatment measures that public health and medical experts have recommended, including effective social distancing.
48. In a March 26, 2020, memorandum to Respondent Carvajal, Attorney General William Barr identified home confinement as “[o]ne of the BOP’s tools to manage the prison population and keep inmates safe” from COVID-19.13
12 See Cheryl Corley, “The COVID-19 Struggle in Chicago’s Cook County Jail,” NPR (Apr. 13, 2020), available at https://www.npr.org/2020/04/13/833440047/the-covid19-struggle-in-chicagos-cook-county-jail; Asher Stockler, “More than 700 People Have Tested Positive for Coronavirus on Rikers Island, Including Over 440 Staff,” Newsweek (Apr. 8, 2020), available at https://www.newsweek.com/rikers-islandcovid-19-new-york-city-1496872. 13 Available at https://www.justice.gov/file/1262731/download.
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49. Attorney General Barr directed Respondent Carvajal “to prioritize the use of [the BOP’s] various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic,” because “for some eligible inmates, home confinement might be more effective in protecting their health.”
50. Attorney General Barr further identified “[t]he age and vulnerability of the inmate to COVID-19, in accordance with the Centers for Disease Control and Prevention (CDC) guidelines,” and “the security level of the facility,” with “priority given” to prisoners incarcerated “in low and medium security facilities,” as two of the critical, discretionary factors for consideration.
51. In an April 3, 2020, memorandum to Respondent Carvajal, following the dramatic increases in confirmed COVID-19 cases at three BOP facilities (FCI Oakdale in Louisiana, FCI Danbury in Connecticut, and FCI Elkton in Ohio), Attorney General Barr affirmed the BOP’s “profound obligation to protect the health and safety of all inmates.”14
52. Attorney General Barr further recognized that, despite “extensive precautions to prevent COVID-19 from entering [BOP] facilities and infecting our inmates,” those measures “have not been perfectly effective.” Accordingly, he ordered the BOP to take more aggressive steps, immediately, to transfer prisoners to home confinement, even if electronic monitoring will be not be available.
14 Available at https://www.justice.gov/file/1266661/download. 15

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53. Echoing the warnings of public health experts, Attorney General Barr stated: “Given the speed with which this disease has spread through the general public, it is clear that time is of the essence.”
54. In spite of Attorney General Barr’s statements, Respondents have failed to use the BOP’s available statutory authority to reduce the population of FMC Devens with sufficient speed or in sufficient volume to mitigate the severe risk posed by COVID-19.
55. From March 26 (the date of Attorney General Barr’s first memo) through April 13, the BOP states that it has placed 1,019 prisoners nationwide into home confinement (an average of approximately 56 per day), which is just 0.5 percent of the approximately 180,000 prisoners in BOP custody.
56. The significance of this statistic is further diminished because the BOP has not disclosed the number of prisoners it typically released per day prior to Attorney General Barr’s memos, nor has it disclosed how many new prisoners have entered BOP custody during the same time period. In short, data from the BOP demonstrate that it is not releasing enough prisoners to protect federal prisons from COVID-19. Individuals detained at FMC Devens, a federal prison hospital and camp facility, face unique dangers of serious disease and death.
57. FMC Devens is an administrative security federal medical center (“Medical Center”) with an adjacent minimum-security satellite camp (“Camp”).
58. The Medical Center houses nearly 1,000 federal prisoners, many of whom require specialized or long-term medical or mental health treatment. These
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prisoners are designated to the Medical Center for many of the same reasons that make them highly vulnerable to serious illness and death from COVID-19. As of April 9, 2020, the BOP reports that 914 prisoners are incarcerated at the Medical Center, which represents 86 percent the Medical Center’s maximum capacity of 1066 prisoners.15
59. Prisoners often leave the Medical Center, under the supervision of correctional staff, to see outside healthcare specialists and for tests and medical procedures at facilities in the community, after which they return to the Medical Center.
60. Prisoners who require dialysis travel from their individual units to the dialysis facility on the Medical Center compound, after which they return to their individual units.
61. The Camp houses more than 100 federal prisoners, most of whom are non-violent offenders serving relatively short sentences or nearing their release dates. They are designated to the Camp for many of the same reasons that make them appropriate for immediate transfer to home confinement. As of April 9, 2020, the BOP reports that 108 prisoners are incarcerated at the Camp, which represents 89 percent of the Camp’s maximum capacity of 122 prisoners.16
15 See BOP, “Population Statistics” (last updated Apr. 9, 2020), https://www.bop.gov/mobile/about/population_statistics.jsp. 16 Id.
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62. As of April 7, 2020, FMC Devens had tested only 17 prisoners for COVID-19—less than two percent of the total population.
63. As of April 14, 2020, FMC Devens had not publicly reported any confirmed COVID-19 cases among the prisoners or staff.
64. Because of frequent asymptomatic transmission, as documented by the CDC and DPH, and the lack of effective, widespread testing by the BOP, it is likely that there already are, or soon will be, numerous undetected but highly contagious COVID-19 infections among the prisoners and staff at FMC Devens.
65. In other pending federal litigation, FMC Devens has reported, through the DOJ, that numerous prisoners have developed symptoms of cough, shortness of breath and/or fever, all common signs of infection with COVID-19.17 Conditions at FMC Devens significantly increase the risk of COVID-19 infection, because they do not permit prisoners to engage in effective social distancing.
66. In an “Imminent Danger Report” filed with the Occupational Safety and Health Administration (“OSHA”) on March 31, 2020, the President of the union that represents many BOP staff reported health and safety hazards across many BOP facilities—including FMC Devens—related to COVID-19, including:
a. Contrary to CDC guidelines, officials have directed staff throughout the BOP who have come into contact with, or been in close proximity to, individuals who show or have shown
17 See United States v. Turner, No. 17-cr-132 (E.D. Pa.) (letter from U.S. Attorney’s Office to Judge Baylson) [DE #44 at 1].
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symptoms of COVID-19, to report to work and not selfquarantine for 14 days; b. The BOP has violated CDC guidelines by continuously moving prisoners by bus and/or airlift to various prison sites across the nation, including infected prisoners, prisoners suspected of being infected, and prisoners who have been in close contact with, or proximity to, infected prisoners; c. The BOP has failed to introduce workplace controls to mitigate exposure or further exposure to the virus, such as high efficiency air filters to minimize the airborne nature of the virus or otherwise improve ventilation; d. The BOP has failed to minimize contact within recreation areas, education areas, counseling/treatment rooms, resulting in prisoners and staff coming in dangerously close contact with each other; and e. The BOP has failed to comply with OSHA Personal Protective Equipment Standards.18
18 Available at https://www.afge.org/globalassets/documents/generalreports/coronavirus/4/osha-7form-national-complaint.pdf.
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The Camp 67. The Camp houses mostly non-violent prisoners serving relatively short
sentences and/or prisoners who are nearing their release dates. 68. In the Camp at FMC Devens, it is impossible for prisoners, like Grinis,
to stay at least six feet away from other prisoners and, therefore, to engage in effective social distancing, as the CDC has recommended. The conditions described below have persisted even after FMC Devens reportedly went into a “modified lockdown.”
69. Camp prisoners occupy a common, dormitory-style space that is divided into open cubicles that measure approximately 7 by 9 feet. The cubicles have no doors, and their dividing walls do not extend to the ceiling.
70. Camp prisoners sleep in two-person bunk beds: most cubicles contain two bunk beds (sleeping 4 prisoners); some contain one bunk bed (sleeping 2 prisoners).
71. Camp prisoners are responsible for cleaning their own cubicles. These shared living spaces are not regularly and properly disinfected to prevent the spread of COVID-19.
72. Camp prisoners share 12 common toilets, sinks, and showers. 73. Camp prisoners are assigned to clean these facilities twice per day, and they are often unsanitary. The common toilets, sinks, and showers are not regularly and properly disinfected to prevent the spread of COVID-19. 74. At mealtimes, Camp prisoners stand close together while waiting in line to be served, and they eat together in a common area at communal tables.
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Neither the serving area nor the communal tables in the Camp are regularly and properly disinfected.
75. Camp prisoners share 4 common telephones and 5 common computers, all of which are clustered closed together. These devices are not cleaned or disinfected after each prisoner uses them.
76. Camp prisoners work in various buildings and areas throughout FMC Devens, where they have contact with other prisoners and staff. No accommodation is made for social distancing while cleaning facilities, operating laundry, serving food, or doing other assigned tasks.
77. Camp prisoners have received no education regarding COVID-19 or guidance about reducing the risk of infection.
78. Since early April, staff have encouraged Camp prisoners to wear masks, but the institution provides only 3 masks per month and has given no instructions about using or maintaining those masks. Prisoners have also been encouraged to wash their hands frequently.
79. In the Camp, many but not all staff have recently started to wear masks, but they rarely wear gloves or other personal protective equipment.
80. New prisoners continue to enter the Camp. Petitioners do not know if new arrivals are being tested or quarantined upon intake. The Medical Center
81. The Medical Center houses prisoners who require specialized or longterm medical treatment.
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82. In the Medical Center at FMC Devens, it is impossible for prisoners, like Gordon and Soliz, to stay six feet away from other prisoners and, therefore, to engage in effective social distancing. The conditions described below have persisted even after FMC Devens reportedly went into a “modified lockdown.”
83. The Medical Center is divided into separate units, such as the “H-B” unit where Gordon is assigned, and the “J-B” unit where Soliz is assigned. The H-B and J-B units are representative of the various housing units in the Medical Center.
84. The H-B unit houses approximately 120 prisoners and occupies a large, dormitory-style common space that is divided into 65 open cubicles.
85. Within the cubicles, H-B unit prisoners sleep in two-person bunk beds. 86. H-B unit prisoners share 4 common toilets, 6 common urinals, and 6 common showers. The toilets, sinks, and showers in the unit are not regularly and properly disinfected. 87. At mealtimes, prisoners in the H-B unit stand close together while waiting in line to be served, and typically, 4 or 5 prisoners eat together at communal tables. Neither the serving area nor the communal tables in the Medical Center are regularly and properly disinfected. 88. Prisoners in the H-B unit routinely prepare and eat food in their shared cubicles or common areas. Within the housing unit, they share a single sink to clean cooking and eating utensils, and they also share 2 microwaves, an ice maker, and an ice dispenser. These appliances are not regularly and properly disinfected.
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89. Prisoners in the H-B unit share 4 common phones and 5 common computers, which are clustered closely together. These devices are not regularly cleaned after prisoners use them.
90. Approximately 120 prisoners in the J-B unit occupy cells housing 2 prisoners each. The cells contain a shared sink and toilet and have doors that are closed and locked at night and during “count” times.
91. Prisoners are responsible for cleaning their own cells, and the cells are not regularly and properly disinfected to prevent the spread of COVID-19.
92. Prisoners in the J-B unit share 12 common showers, which are often unsanitary and contain used soap, used band-aids, used razors, and other potentially infected debris.
93. Prisoners are responsible for cleaning the common showers, which are not regularly and properly disinfected to prevent the spread of COVID-19.
94. Previously, prisoners in the J-B unit would leave the unit to eat meals in the dining hall, but recently, they have started bringing their meals back to their cells to eat. Prisoners continue to congregate close together while waiting in line to be served meals and while moving to and from the dining hall.
95. In addition, dialysis patients from the J-B unit continue to eat in the dining hall in the mornings. Twelve prisoners sit close together at a single table.
96. When medications are brought to the J-B unit, prisoners must stand in line next to each other to receive them.
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97. The J-B unit contains 4 telephones and 5 computers that are clustered close together. These devices are not cleaned or disinfected between users.
98. When moving around FMC Devens, Medical Center prisoners are required to wait and to move in line, often only inches from each other.
99. Medical Center prisoners participate in recreation activities in common areas of FMC Devens, where they have access to common equipment and interact with prisoners from other housing units. No effort is made to disinfect recreation equipment or to maintain separation between prisoners from different units of the Medical Center.
100. Since early April, staff have encouraged Medical Center prisoners to wear masks, but the institution provides only 3 masks per month and has given no instructions about using or maintaining those masks.
101. In the Medical Center, many but not all staff have recently started to wear masks, but they rarely wear gloves or other personal protective equipment.
102. New prisoners continue to enter the Medical Center. Petitioners do not know if new arrivals are being tested or quarantined upon intake.
CLASS ACTION ALLEGATIONS 103. Petitioners incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 104. Petitioners bring this class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of themselves and a class of similarly situated persons.
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105. Petitioners Grinis, Gordon, and Soliz each seek to represent a class of all persons in custody at FMC Devens (“Class”), including (1) a subclass of all persons who, according to applicable CDC guidelines, are at high risk of injury or death from COVID-19, due to their advanced age or medical condition(s) (“Medically Vulnerable Subclass”), and (2) a subclass of all persons who are appropriate candidates for early transfer to home confinement (“Home Confinement Appropriate Subclass”) (collectively “Subclasses”).
106. Each Petitioner can represent the Class because each Petitioner is currently in custody at FMC Devens.
107. The Subclasses substantially overlap. Each Petitioner can represent the Medically Vulnerable Subclass because each Petitioner is of such age and/or has such medical conditions that place him at a high risk of severe injury or death due to COVID-19. Each Petitioner can also represent the Home Confinement Appropriate Subclass, because each could be immediately transferred to home confinement.
108. The action has been brought and may properly be maintained as a class action, because it satisfies the numerosity, commonality, typicality, and adequacy requirements of Rule 23(a) of the Federal Rules of Civil Procedure.
109. Joinder of all proposed Class Members is impracticable, because (1) members of the Classes (including Subclasses) are numerous; (2) the Classes include future members; and (3) the Classes comprise incarcerated members who have limited ability to pursue individual relief, particularly in light of lockdowns,
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restrictions on attorney and other visits, and other measures at FMC Devens as well as reduced access to this Court.
110. More than 1,000 persons are members of the proposed Class and a substantial percentage of those persons are members of the Medically Vulnerable Subclass, the Home Confinement Appropriate Subclass, or both Subclasses.
111. Common questions of law and fact exist as to all members of the proposed Class and Subclasses: all prisoners at FMC Devens have constitutional rights to safe and secure conditions of confinement, including the right to engage in effective social or physical distancing to prevent the spread of COVID-19.
112. Each Petitioner has a personal interest in the outcome of this putative class action and will fairly and adequately protect the interests of all Class Members. Petitioners have no interests that are adverse to the interests of the proposed Class or Subclasses.
113. Petitioners are represented by pro bono counsel with experience and success in the prosecution of civil rights litigation, habeas corpus petitions, and class actions. Counsel for Petitioners are not aware of any conflicts among members of the proposed Class or between counsel and members of the proposed Class.
114. Respondents have acted, and continue to act, on grounds generally applicable to all proposed Class Members, and this action seeks declaratory and injunctive relief. Petitioners therefore seek class certification under Rule 23(b)(2) of the Federal Rules of Civil Procedure.
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115. In the alternative, this putative class action satisfies the requirements of Rule 23(b)(1), because prosecuting hundreds of separate actions would create a risk of inconsistent or varying adjudications with respect to individual Class Members that would establish incompatible standards of conduct for Respondents.
LEGAL CLAIM Unconstitutional Conditions of Confinement in Violation of the Eighth Amendment to the U.S. Constitution
(Declaratory and Injunctive Relief) 116. Petitioners incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 117. The Eighth Amendment to the U.S. Constitution guarantees Petitioners and all proposed Class Members the right to be free from cruel and unusual punishment. 118. Prison conditions that pose an unreasonable risk of serious harm to a prisoner’s health constitute cruel and unusual punishment where a prison official has acted with deliberate indifference to that risk. 119. Petitioners and all proposed Class Members face an unreasonable risk of serious harm to their health from potential infection with COVID-19, which can result in serious illness, permanent injury, and death. 120. Although the serious risks from COVID-19 are obvious to Respondents, they have nevertheless acted with deliberate indifference to the unreasonable risks posed to Petitioners and all proposed Class Members.
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121. On a daily basis at FMC Devens, Respondents deny Petitioners and all proposed Class Members the ability to engage in effective social distancing—which the CDC has identified as critical to decreasing the risk of deadly infection—and in many cases, Respondents affirmatively require Petitioners and all proposed Class Members to engage in behaviors and activities that run directly contrary to recommended social distancing.
122. Respondents have failed to use their authority to order compassionate release, 18 U.S.C. §§ 3582(c) and 4205(g), and/or transfer to home confinement, 18 U.S.C. § 3652(c)(2) and P.L. 116-136, 134 Stat. 281 (Mar. 27, 2020) (“CARES Act”), § 12003(b)(2), of prisoners with sufficient speed or in sufficient numbers to reduce the population of FMC Devens and, thereby, the imminent risk of serious illness and death from COVID-19.
REQUEST FOR RELIEF 123. Petitioners and Class Members respectfully request that the Court provide the following relief:
a. Release sufficient Class Members on bail pursuant to this Court’s inherent habeas corpus authority to ensure effective social distancing in compliance with CDC guidelines;
b. Certify this Petition as a Class Action; c. Certify a Class of federal prisoners who are, or will be, in custody at FMC Devens; a Subclass of federal prisoners at FMC Devens who are medically vulnerable to severe infection and death from COVID-19 due to their age and/or medical condition(s)
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(“Medically Vulnerable Subclass”); and a Subclass of federal prisoners at FMC Devens who are appropriate candidates for immediate transfer to home confinement (“Home Confinement Appropriate Subclass”);
d. Declare that Respondents’ policies, practices, actions, and inactions at FMC Devens violate the Eighth Amendment’s prohibition against cruel and unusual punishment and that overcrowding is a cause of the violation;
e. Enter a temporary restraining order or preliminary injunction ordering Respondents to comply with CDC guidance and best practices to prevent the spread of COVID-19, including, without limitation, by reducing the prisoner population at FMC Devens sufficiently to permit effective social distancing through either:
i. Compassionate release of Class Members pursuant to 18 U.S.C. §§ 3582(c) and 4205(g); or
ii. Transfers of Class Members to home confinement pursuant to P.L. 116-136, 134 Stat. 281 (Mar. 27, 2020) (“CARES Act”), § 12003(b)(2);
f. Appoint a special master or expert under Fed. R. Evid. 706 to investigate conditions at FMC Devens, monitor compliance with this Court’s orders, and make recommendations to the Court;
g. Provide any further relief this Court deems appropriate.
29

Case 1:20-cv-10738-GAO Document 1 Filed 04/15/20 Page 30 of 31

Respectfully submitted,

ALEXANDER GRINIS, MICHAEL GORDON, ANGEL SOLIZ, and others similarly situated,

By their attorneys,

/s/ William W. Fick William W. Fick, BBO# 650562 Daniel N. Marx, BBO# 674523 Amy Barsky, BBO# pending FICK & MARX LLP 24 Federal Street, 4th Floor Boston, MA 02210 857-321-8360 wfick@fickmarx.com dmarx@fickmarx.com abarsky@fickmarx.com

Matthew R. Segal, BBO# 654489 Jessie J. Rossman, BBO #670685 ACLU FOUNDATION OF MASSACHUSETTS, INC. 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org jrossman@aclum.org

30

Case 1:20-cv-10738-GAO Document 1 Filed 04/15/20 Page 31 of 31

CERTIFICATE OF SERVICE I, William Fick, certify that I have caused the foregoing document to be served by e-mail PDF upon AUSA Ray Farquhar, Civil Chief (D. Mass.), by email PDF on April 15, 2020. Because the government declined to waive formal service under Fed. R. Civ. P. 4, on that same day, I traveled in person to a U.S. Post Office to send the document to the following recipients by certified U.S. Mail:

U.S. Attorney’s Office Attn: Civil Process Clerk One Courthouse Way Boston, MA 02210
Michael Carvajal, Director Federal Bureau of Prisons 320 First St., NW Washington, DC 20534

Attorney General of the United States 950 Pennsylvania Ave NW Washington, DC 20530
Stephen Spaulding, Warden FMC Devens 42 Patton Road Devens, MA 01434

/s/ William Fick

31

 
 Case 1:20-cv-10738-GAO Document 3 Filed 04/15/20 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,
Petitioners, v.
STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,
Respondents.

No. 20-cv-10738-GAO

MOTION FOR IMMEDIATE BAIL CONSIDERATION, TEMPORARY RESTRAINING ORDER, AND PRELIMINARY INJUNCTIVE RELIEF Pursuant to Fed. R. Civ. P. 65 and this Court’s inherent authority to provide effective habeas relief under 28 U.S.C. § 2241, Petitioners move for immediate bail consideration, a temporary restraining order, and preliminary injunctive relief for themselves and all other similarly situated federal prisoners who are, or will be, in custody while serving federal sentences at FMC Devens in Devens, Massachusetts (“Class Members”). Specifically, Petitioners request that, as soon as the parties may be heard, this Court:
a. Pending a decision in these habeas proceedings and pursuant to this Court’s inherent habeas corpus authority, release sufficient Class Members on bail to ensure effective social distancing at FMC Devens in compliance with CDC guidelines;
1

Case 1:20-cv-10738-GAO Document 3 Filed 04/15/20 Page 2 of 4
b. Enter a temporary restraining order or preliminary injunction ordering Respondents to comply with CDC guidelines and best practices to prevent the spread of COVID-19, including, without limitation, by reducing the prisoner population at FMC Devens sufficiently to permit effective social distancing through either;
i. Compassionate release of Class Members pursuant to 18 U.S.C. §§ 3582(c) and 4205(g); or
ii. Transfers of Class Members to home confinement pursuant to P.L. 116-136, 134 Stat. 281 (Mar. 27, 2020) (“CARES Act”), § 12003(b)(2);
c. Appoint a special master or expert under Fed. R. Evid. 706 to investigate conditions at FMC Devens, monitor compliance with this Court’s orders, and make recommendations to this Court. In support of this Motion, Petitioners rely on the accompanying Memorandum and declarations as well as their Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief.
2

Case 1:20-cv-10738-GAO Document 3 Filed 04/15/20 Page 3 of 4

Respectfully submitted,

ALEXANDER GRINIS, MICHAEL GORDON, ANGEL SOLIZ, and others similarly situated,

By their attorneys,

/s/ William W. Fick William W. Fick, BBO# 650562 Daniel N. Marx, BBO# 674523 Amy Barsky, BBO# pending FICK & MARX LLP 24 Federal Street, 4th Floor Boston, MA 02210 857-321-8360 wfick@fickmarx.com dmarx@fickmarx.com abarsky@fickmarx.com

Matthew R. Segal, BBO# 654489 Jessie J. Rossman, BBO #670685 ACLU FOUNDATION OF MASSACHUSETTS, INC. 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org jrossman@aclum.org

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(a)(2)
I, William W. Fick, certify that on April 14, 2020, I conferred in good faith with AUSA Rayford Farquhar to discuss whether it would be possible to resolve or narrow the issues that this Motion presents.
/s/ William W. Fick

3

Case 1:20-cv-10738-GAO Document 3 Filed 04/15/20 Page 4 of 4

CERTIFICATE OF SERVICE I, William Fick, certify that I have caused the foregoing document to be served by e-mail PDF upon AUSA Ray Farquhar, Civil Chief (D. Mass.), on April 15, 2020. Because the government declined to waive formal service under Fed. R. Civ. P. 4, on that same day, I traveled in person to a U.S. Post Office to send the document to the following recipients by certified U.S. Mail:

U.S. Attorney’s Office Attn: Civil Process Clerk One Courthouse Way Boston, MA 02210
Michael Carvajal, Director Federal Bureau of Prisons 320 First St., NW Washington, DC 20534

Attorney General of the United States 950 Pennsylvania Ave NW Washington, DC 20530
Stephen Spaulding, Warden FMC Devens 42 Patton Road Devens, MA 01434

/s/ William Fick

4

 
 Case 1:20-cv-10738-GAO Document 5 Filed 04/15/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,
Petitioners, v.
STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,
Respondents.

No. 20-cv-10738-GAO

PETITIONERS’ MOTION FOR CLASS CERTIFICATION OR REPRESENTATIVE HABEAS ACTION
Petitioners and the proposed Class Members, by and through their undersigned counsel, hereby respectfully move this Court for an order certifying a class pursuant to Fed. R. Civ. P. 23, or in the alternative, to certify a representative habeas class of Petitioners pursuant to United States ex rel. Sero v. Preiser, 506 F.2d 1115 (2d Cir. 1974). Petitioners ask this Court to certify a class consisting of all prisoners who are now or will be held by Respondents at Federal Medical Center Devens in Devens, Massachusetts. The grounds for this Motion are set forth in the accompanying Memorandum and Exhibits incorporated therein.

1

Case 1:20-cv-10738-GAO Document 5 Filed 04/15/20 Page 2 of 3

Respectfully submitted,

ALEXANDER GRINIS, MICHAEL GORDON, ANGEL SOLIZ, and others similarly situated,

By their attorneys,

/s/ William W. Fick William W. Fick, BBO# 650562 Daniel N. Marx, BBO# 674523 Amy Barsky, BBO# pending FICK & MARX LLP 24 Federal Street, 4th Floor Boston, MA 02210 857-321-8360 wfick@fickmarx.com dmarx@fickmarx.com abarsky@fickmarx.com

Matthew R. Segal, BBO# 654489 Jessie J. Rossman, BBO #670685 ACLU FOUNDATION OF MASSACHUSETTS, INC. 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org jrossman@aclum.org

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(a)(2)
I, William W. Fick, certify that on April 14, 2020, I conferred in good faith with AUSA Rayford Farquhar to discuss whether it would be possible to resolve or narrow the issues that this Motion presents.
/s/ William W. Fick

2

Case 1:20-cv-10738-GAO Document 5 Filed 04/15/20 Page 3 of 3

CERTIFICATE OF SERVICE I, William Fick, certify that I have caused the foregoing document to be served by e-mail PDF upon AUSA Ray Farquhar, Civil Chief (D. Mass.), on April 15, 2020. Because the government declined to waive formal service under Fed. R. Civ. P. 4, on that same day, I traveled in person to a U.S. Post Office to send the document to the following recipients by certified U.S. Mail:

U.S. Attorney’s Office Attn: Civil Process Clerk One Courthouse Way Boston, MA 02210
Michael Carvajal, Director Federal Bureau of Prisons 320 First St., NW Washington, DC 20534

Attorney General of the United States 950 Pennsylvania Ave NW Washington, DC 20530
Stephen Spaulding, Warden FMC Devens 42 Patton Road Devens, MA 01434

/s/ William Fick

3

 
 Case 1:20-cv-10738-GAO Document 32 Filed 04/22/20 Page 1 of 58

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,

Petitioners,
v.
STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,

Civil Action No. 20-cv-10738-GAO
Leave to File Granted April 22, 2020 (ECF No. 27)

Respondents.

RESPONDENTS’ OMNIBUS RESPONSE TO PETITION FOR WRIT OF HABEAS CORPUS AND OPPOSITION TO PETITIONERS’ MOTION FOR IMMEDIATE BAIL
AND INJUNCTIVE AND DECLARATORY RELIEF

Case 1:20-cv-10738-GAO Document 32 Filed 04/22/20 Page 2 of 58
TABLE OF CONTENTS TABLE OF AUTHORITIES……………………………………………………………………..iv INTRODUCTION .......................................................................................................................... 1 STATEMENT OF FACTS ............................................................................................................. 3
I. THE COVID-19 PANDEMIC AND BOP’S RESPONSE...................................................... 3 II. STEPS BEING TAKEN AT FMC DEVENS TO PREVENT COVID-19............................ 4
A. Inmate Screening and Social Distancing ........................................................................... 5 B. Modification of Health Services ........................................................................................ 8 C. Isolation and Quarantine Procedures................................................................................ 10 D. Testing.............................................................................................................................. 11 E. Screening Staff and Visitors ............................................................................................. 11 F. Cleaning ............................................................................................................................ 11 G. Supplies ............................................................................................................................ 12 H. Inmate and Staff Education.............................................................................................. 13 III. HOME CONFINEMENT AND COMPASSIONATE RELEASE .................................... 13 A. Compassionate Release/Reduction In Sentence .............................................................. 13
1. Petitioners’ Requests for Reduction in Sentence .......................................................... 15 B. Home Confinement .......................................................................................................... 15
1. Petitioners’ Eligibility for Home Confinement............................................................. 19

Case 1:20-cv-10738-GAO Document 32 Filed 04/22/20 Page 3 of 58
ARGUMENT ................................................................................................................................ 21 I. PETITIONERS ARE NOT ENTITLED TO HABEAS RELIEF ......................................... 21 A. Habeas Relief Is Unavailable To Challenge Conditions Of Confinement....................... 21 B. The PLRA Precludes The Relief That Petitioners Seek................................................... 22 C. Respondents Are Not Deliberately Indifferent To Petitioners’ Medical Needs............... 26 1. Standard ........................................................................................................................ 26 2. Petitioners Cannot Establish Substantial Risk of Harm................................................ 28 3. The BOP Has Taken Appropriate Measures To Protect The Health Of Inmates At FMC Devens............................................................................................................................... 30 II. PETITIONERS ARE NOT ENTITLED TO A TEMPORARY RESTRAINING ORDER OR ANY INJUNCTIVE RELIEF ............................................................................................ 34 A. Standard ........................................................................................................................... 34 B. Petitioners Are Unlikely To Succeed On The Merits Of Their Claims ........................... 35 1. Petitioners’ Allegations Regarding The Conditions At FMC Devens Are Inaccurate . 35 2. Release Is Unlikely To Redress The Alleged Harm ..................................................... 36 3. Petitioners Are Not Entitled To Divest BOP Of Its Discretion To Place Inmates In Home Confinement In Appropriate Circumstances Or To Have The Court Amend Inmates’ Criminal Sentences ............................................................................................ 38 C. Petitioners Fail To Establish Imminent Irreparable Harm ............................................... 40 D. Granting Petitioners’ Requested Relief Would Cause Substantial Harm To Others ....... 41 E. Public Health And Safety Would Not Be Served By Granting The Requested Relief .... 42
ii

Case 1:20-cv-10738-GAO Document 32 Filed 04/22/20 Page 4 of 58 III. PETITIONERS HAVE NOT PROVIDED A SUFFICIENT BASIS FOR CLASS CERTIFICATION, AND CLASS-WIDE RELIEF WOULD LIKELY HARM MANY INMATES................................................................................................................................. 43 CONCLUSION............................................................................................................................. 46
iii

Case 1:20-cv-10738-GAO Document 32 Filed 04/22/20 Page 5 of 58
TABLE OF AUTHORITIES
CASES
Abla v. Brinker Rest. Corp., 279 F.R.D. 51 (D. Mass. 2011)......................................................................................... 43
Andrews v. Bechtel Power Corp., 780 F.2d 124 (1st Cir. 1985) ....................................................................................... 45, 46
Battista v. Clarke, 645 F.3d 449 (1st Cir. 2011) ....................................................................................... 27, 28
Bedford v. Wall, No. C.A. 04-527L, 2005 WL 775904 (D. R.I. Mar. 31, 2005) ......................................... 22
Benjamin v. Jacobson, 172 F.3d 144 (2d Cir. 1999).............................................................................................. 24
Bragdon v. Abbot, 524 U.S. 624 (1998).......................................................................................................... 33
Brookens v. Am. Fed’n of Gov’t Emps., 315 F. Supp. 3d 561 (D.D.C. 2018) .................................................................................. 37
Brown v. Plata, 563 U.S. 493 (2011)................................................................................................... 23, 24
Califano v. Yamasaki, 442 U.S. 682 (1979).......................................................................................................... 43
Cameron v. Tomes, 990 F.2d 14 (1st Cir. 1993) ............................................................................................... 28
Chambers v. NH Prison, 562 F. Supp. 2d 197 (D. N.H. 2007)................................................................................. 34
Comcast Corp. v. Behrend, 569 U.S. 27 (2013)............................................................................................................ 43
Corporate Technologies, Inc. v. Harnett, 943 F.Supp.2d 233 (D. Mass. 2013) ................................................................................. 40
Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556 (1st Cir. 1988) ............................................................................................. 27
iv

Case 1:20-cv-10738-GAO Document 32 Filed 04/22/20 Page 6 of 58
Crooker v. Grondolsky, No. 12-12106-GAO, 2013 WL 101588 (D. Mass. Jan. 4, 2013).................................. 1, 21
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006).......................................................................................................... 36
Dawson v. Asher, No. C20-0409 JRL-MAT, 2020 WL 1304557 (W.D. Wash March 19, 2020)................. 31
Denike v. Fauver, 3 F.Supp.2d 540 (D. New Jersey May 4, 1998)................................................................ 24
Esso Standard Oil Co. v. Monroig-Zayas, 445 F.3d 13 (1st Cir. 2006) ............................................................................................... 34
Farmer v. Brennan, 511 U.S. 825 (1994)........................................................................................ 26, 27, 28, 30
Ferranti v. Moran, 618 F.2d 888 (1st Cir. 1980) ....................................................................................... 27, 32
Gaudreault v. Mun. of Salem, 923 F.2d 203 (1st Cir.1990) .............................................................................................. 26
Gilmore v. People of the State of Cal., 220 F.3d 987 (9th Cir. 2000) ............................................................................................ 24
Graham v. Sabol, 734 F.Supp.2d 194 (D. Mass. 2010) ................................................................................. 21
Helling v. McKinney, 509 U.S. 25 (1993)............................................................................................................ 26
Hickox v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016) ................................................................................... 33
Hines v. Youssef, No. 1:13-cv-00357-AWI-JL, 2015 WL 164215 (E.D. Cal. Jan. 13, 2015) ...................... 29
In re Relafen Antitrust Litig., 218 F.R.D. 337 (D. Mass. 2003)....................................................................................... 43
Inmates of Occoquan v. Barry, 844 F.2d 828 (D.C. Cir. 1988) .......................................................................................... 24
v

Case 1:20-cv-10738-GAO Document 32 Filed 04/22/20 Page 7 of 58
Inmates of Suffolk Cty. Jail v. Rouse, 129 F.3d 649 (1st Cir. 1997) ............................................................................................. 24
Jacobson v. Comm. of Massachusetts, 197 U.S. 11 (1905)............................................................................................................ 32
Johnson v. Moran, 812 F.2d 23 (1st Cir. 1987) ............................................................................................... 21
Kamara v. Farquharson, 2 F.Supp.2d 81 (D. Mass. 1998) ................................................................................. 21, 22
Kane v. Winn, 319 F.Supp.2d 162 (D. Mass. 2004) ................................................................................. 21
Kosilek v. Spencer, 774 F.3d 63 (1st Cir. 2014) ................................................................................... 26, 27, 32
Leavitt v. Corr. Med. Servs., 645 F.3d 484 (1st Cir.2011) .............................................................................................. 26
Lopes v. Riendeau, 177 F.Supp.3d 634 (D. Mass. 2016) ................................................................................. 27
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992).......................................................................................................... 36
Mays v. Dart, ___ F.Supp.3d ___, 2010 WL 1812381 (N.D. Ill. Apr. 9, 2020)...................................... 30
Mazurek v. Armstrong, 520 U.S. 968 (1997).......................................................................................................... 34
McLaughlin v. MacDonald, Civil Action No. 11-11587-JLT, 2012 WL 4058063 (D. Mass. Aug. 22, 2012).............. 22
Mell v. United States, No. 3:20-cv-2277 (BRM), 2020 WL 1852384 (D. New Jersey Apr. 13, 2020) ............... 29
Money v. Pritzker, ___ F. Supp. 3d ___, Nos. 20-cv-2093 & 20-cv-2094, 2020 WL 1820660 (N.D. Ill. Apr. 10, 2020) ........................................................ 25, 31, 44
Muhammad v. Close, 540 U.S. 749 (2004).......................................................................................................... 22
vi

Case 1:20-cv-10738-GAO Document 32 Filed 04/22/20 Page 8 of 58
Nadeau v. Helgemoe, 561 F.2d 411 (1st Cir. 1977) ............................................................................................. 28
Nelson v. Campbell, 541 U.S. 637 (2004)...................................................................................................... 1, 22
Payne v. Goodyear Tire & Rubber Co., 216 F.R.D. 21 (D. Mass. 2003)......................................................................................... 45
Perkins v. Kan. Dep’t of Corr., 165 F.3d 803 (10th Cir. 1999) .......................................................................................... 32
Perry v. Roy, 782 F.3d 73 (1st Cir. 2015) ................................................................................... 26, 27, 30
Planned Parenthood League of Mass. v. Bellotti, 641 F.2d 1006 (1st Cir. 1981) ........................................................................................... 34
Preiser v. Rodriguez, 411 U.S. 475 (1973).......................................................................................................... 21
Rosario v. Brown, 670 F.3d 816 (7th Cir. 2012) ............................................................................................ 31
Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12 (1st Cir. 1996) ......................................................................................... 34, 35
Ruiz-Rosa v. Rullan, 485 F.3d 150 (1st Cir. 2007) ............................................................................................. 27
Sanchez v. Sabol, 539 F.Supp.2d 455 (D. Mass. 2008) ................................................................................. 21
Sch. Bd. of Nassau Cty., Fla. v. Arline, 480 U.S. 273 (1987).......................................................................................................... 33
Scott v. Benson, 742 F.3d 335 (8th Cir. 2014) ............................................................................................ 32
Sires v. Berman, 834 F.2d 9 (1st Cir. 1987) ................................................................................................. 26
Spectrum Five LLC v. FCC, 758 F.3d 254 (D.C. Cir. 2014) .......................................................................................... 36
vii

Case 1:20-cv-10738-GAO Document 32 Filed 04/22/20 Page 9 of 58
Sperling v. Grondolsky, No. 17-12075-PBS, 2018 WL 1904177 (D. Mass. Apr. 20, 2018) .................................. 21
United States ex rel. Siegel v. Shinnick, 219 F. Supp. 789 (E.D.N.Y. 1963) ................................................................................... 33
United States v. Desage, No. 2:13-cr-00039-JAD-VCF, 2020 WL 1904584 (D. Nev. Apr. 17, 2020) ..................................................................... 31
United States v. Gileno, No. 3:19-cr-161, 2020 WL 1307108 (D. Conn. Mar. 19, 2020)....................................... 28
United States v. Hamilton, No. 19-CR-54-01, 2020 WL 1323036 (E.D.N.Y. Mar. 20, 2020).................................... 28
United States v. Jefferson, No. CCB 19-487, 2020 WL 1332011 (D. Md. Mar. 23, 2020) ........................................ 28
United States v. Martin, No. PWG-19-140-13, 2020 WL 1274857 (D. Md. Mar. 17, 2020).................................. 28
United States v. Passley, 2020 WL 1815834 (E.D.N.Y. Apr. 9, 2020) .................................................................... 29
United States v. Steward, No. S1:20-cr-0052 (DCL), 2020 WL 1468005................................................................. 41
United States v. Taylor, No. 5:19-CR-192-KKC-MAS, 2020 WL 1501997 (E.D. Ky. Mar. 26, 2020) ................. 41
United States v. Villegas, 2020 WL 1649520 (C.D. Cal. Apr. 3, 2020) .................................................................... 30
United States, v. Rollins, Nos. 19-CR-34S, 11-CR-251S, 2020 WL 1482323 (W.D.N.Y. Mar. 27, 2020).............. 28
Vaqueria Tres Monjitas, Inc. v. Comas, 980 F.Supp.2d 65 (D. Puerto Rico Sept. 23, 2013) .......................................................... 23
Verhoeven v. Brunswick School Committee, 207 F.3d 1 (1st Cir. 1999) ................................................................................................. 34
Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000).......................................................................................................... 36
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).......................................................................................................... 43
viii

Case 1:20-cv-10738-GAO Document 32 Filed 04/22/20 Page 10 of 58
Warner v. Spaulding, Civil Action No. 18-cv-10850-DLC, 2018 WL 9838349 (D. Mass. Sept. 24, 2018)....... 22
Wilson v. Seiter, 501 U.S. 294 (1991).................................................................................................... 27, 28
Winter v. NRDC, 555 U.S. 7 (2008)........................................................................................................ 34, 40
Youngberg v. Romeo, 457 U.S. 307 (1st Cir. 2011) ............................................................................................. 28
STATUTES AND RULES 18 U.S.C. § 3582(c)(1)(A) ...................................................................................................... 14, 39 18 U.S.C. § 3621(b) ...................................................................................................................... 38 18 U.S.C. § 3624(c) ...................................................................................................................... 41 18 U.S.C. § 3624(c)(2)...................................................................................................... 16, 18, 38 18 U.S.C. § 3626....................................................................................................................... 1, 22 18 U.S.C. § 3626(a)(2).................................................................................................................. 23 18 U.S.C. § 3626(a)(3)(B) .................................................................................................. 1, 23, 25 18 U.S.C. § 3626(g)(2) ........................................................................................................... 23, 25 18 U.S.C. § 3626(g)(4) ................................................................................................................. 24 18 U.S.C. § 4205(g) ................................................................................................................ 14, 39 18 U.S.C. § 3582............................................................................................................... 14, 39, 41 28 U.S.C. § 2241....................................................................................................................... 1, 21 34 U.S.C. § 60541................................................................................................................... 16, 17 Fed. R. Civ. P. 23 .......................................................................................................................... 43 Fed. R. Civ. P. 23(a) ................................................................................................................. 3, 44
ix

Case 1:20-cv-10738-GAO Document 32 Filed 04/22/20 Page 11 of 58 Fed. R. Civ. P. 23(a)(2)................................................................................................................. 44 Fed. R. Civ. P. 23(b) ..................................................................................................................... 43 Pub. L. No. 116-136………………………………………………………………………….18, 38
x

Case 1:20-cv-10738-GAO Document 32 Filed 04/22/20 Page 12 of 58
INTRODUCTION The Bureau of Prisons (“BOP”) and the Federal Medical Center in Devens, Massachusetts (“FMC Devens”) have taken extensive measures to prevent and treat COVID-19 among inmates. Despite these substantial efforts, Petitioners Alexander Grinis, Michael Gordon, and Angel Soliz (collectively, “Petitioners”), have filed a Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2241 and Complaint for Injunctive and Declaratory Relief (the “Petition”) seeking, inter alia, release from incarceration for themselves, and for all putative class members, certification of the Petition as a class action, and a declaratory judgment that official-capacity Respondents’ FMC Devens Warden Steven Spaulding, and BOP Director Michael Carvajal (collectively, “Respondents”) policies and practices in the wake of the COVID-19 pandemic violate the Eighth Amendment’s prohibition against cruel and unusual punishment. ECF No. 1. By their Motion for Immediate Bail Consideration, Temporary Restraining Order, and Preliminary Injunctive Relief (the “Motion”), Petitioners seek release of class members to “ensure effective social distancing at FMC Devens in compliance with CDC guidelines,” and ask this Court to order injunctive relief compelling Respondents to comply with CDC guidelines. ECF No. 3. Petitioners claims are without merit and fail on several grounds. First, it is well-settled that a challenge to conditions of confinement by a habeas petition under 28 U.S.C. § 2241 is improper. Crooker v. Grondolsky, No. 12-12106-GAO, 2013 WL 101588, at *2 (D. Mass. Jan. 4, 2013); see also Nelson v. Campbell, 541 U.S. 637, 643 (2004). Second, the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626, places strict limitations on a court’s 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, as Petitioners request. 18 U.S.C. § 3626(a)(3)(B). Third, Petitioners cannot establish that Respondents have been deliberately indifferent to their medical

Case 1:20-cv-10738-GAO Document 32 Filed 04/22/20 Page 13 of 58
needs. As explained further, supra, FMC Devens has taken appropriate steps to mitigate the risk of COVID-19 throughout its inmate population, including implementing the BOP’s national response to prevent the introduction and spread of COVID-19 into the BOP, and implementing a number of other measures at FMC Devens including providing inmate and staff education; conducting inmate and staff screening; putting into place testing, quarantine, and isolation procedures in accordance with BOP policy and CDC guidelines; ordering enhanced cleaning and medical supplies; and a number of other preventative measures.
Similarly, Petitioners’ request for emergency and injunctive relief must likewise fail. First, Petitioners are unlikely to succeed on the merits of their claims because the conditions at FMC Devens are markedly different than those portrayed in the Petition. Contrary to Petitioners’ claims, FMC Devens has taken numerous measures to comply with CDC and BOP guidelines in an effort to prevent the introduction and spread of COVID-19 in the institution. Second, this Court is without legal authority to order the release of prisoners. Third, Petitioners cannot show irreparable injury. The measures that FMC Devens has put in place reduces the risk that persons with COVID19 will enter FMC Devens at the outset, and will prevent the spread of coronavirus within FMC Devens. Moreover, Petitioners fail to address in any meaningful way how, if released, they will be safer from the risk of infection or have access to adequate care if they do become infected. Fourth, Petitioners’ demand for the immediate release and removal of a substantial portion of the population at FMC Devens would likely cause substantial harm to other class members, as well as to the general public. Finally, the public interest would not be served by granting the relief that Petitioners seek. The immediate release of hundreds of inmates would pose profound risks to the public from released prisoners who have been convicted of serious crimes, and potentially causing additional criminal activity in the communities where they have been released.
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Finally, Petitioners seek class certification of every current and future inmate at FMC Devens. This Court should deny Petitioners’ request for class certification as Petitioners cannot demonstrate that the proposed class satisfies all four requirements of Fed. R. Civ. P. 23(a): numerosity, commonality, typicality, and adequacy of representation. The proposed class members’ individual cases vary widely, and there is simply no commonality and typicality among the proposed class members, other than the fact of their incarceration at FMC Devens. Similarly, Petitioners’ demand for a dramatic remedy of release would have a profound effect on members of the class without considering the impact on the entirety of the class. Their failure to consider or account for such concerns in the immediate and sweeping relief that they seek demonstrates that Petitioners do not adequately represent the putative class.
For these reasons, as more fully set forth below, Respondents submit this Omnibus Response and Opposition to the Petition and Motion, and ask this Court to deny the Petition, deny class certification, and deny the injunctive and declaratory relief that Petitioners seek.
STATEMENT OF FACTS I. THE COVID-19 PANDEMIC AND BOP’S RESPONSE
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 virus appeared in the United States. See Declaration of Megan Shaw, M.D. (“Shaw Decl.”) at ¶ 6, attached hereto as Exhibit A. Recognizing the threat that this virus could pose to its inmate population, the BOP began quickly organizing 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
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States.1 Some of the measures that the BOP has, on a nationwide basis, taken include implementing screening requirements for inmates and staff; temporarily suspending social visits, legal visits, inmate transfers, official travel, and contractor access; updating its quarantine and isolation procedures; and instituting 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.
On March 31, 2020, the BOP ordered all inmates to remain secured in their assigned cells or quarters for a period of 14 days (to be re-evaluated at the conclusion of that time period) in order to decrease the spread of the virus. Shaw Decl. ¶ 16. On April 13, 2020, the BOP ordered an extension of the April 1, 2020 modified operations order through May 18, 2020. Shaw Decl. ¶ 17. II. STEPS BEING TAKEN AT FMC DEVENS TO PREVENT COVID-19
FMC Devens is an Administrative security level institution designed to house approximately 1,200 inmates at the main facility and approximately 128 inmates at the adjacent Federal Prison Camp (“FPC”). See Declaration of Amber Bourke (“Bourke Decl.”), attached hereto as Exhibit B, at ¶ 3. The main Federal Medical Center (“FMC”) facility and the FPC are separate facilities, and the inmate populations do not interact.2 Id. FMC Devens offers specialized services for sex offenders, specifically the Sex Offender Management Program. Bourke Decl. ¶ 4.
FMC Devens has implemented BOP’s national action plan, in compliance with BOP’s national directives, and has also taken numerous other measures to fight the introduction and spread of COVID-19 within its facilities including providing inmate and staff education;
1 These protocols are discussed at length in Dr. Shaw’s Declaration. See Ex. A. 2 “FMC Devens” refers to both the FMC and the FPC, unless otherwise stated.
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conducting inmate and staff screening; putting into place testing, quarantine, and isolation procedures in accordance with BOP policy and CDC guidelines; ordering enhanced cleaning and medical supplies; and taking a number of other preventative measures. Shaw Decl. ¶ 19. As a result, as of April 21, 2020, there were no confirmed cases of COVID-19 at FMC Devens3. Shaw Decl. ¶ 65.
From the outset of the COVID-19 pandemic, FMC Devens officials have provided regular updates to inmates and staff regarding the virus and BOP’s response, and have educated inmates and staff regarding measures that they should take to stay healthy. Shaw Decl. ¶ 20. The measures that FMC Devens has taken to insure the health and safety of its staff and inmates includes, but is not limited to, the following:4
A. Inmate Screening and Social Distancing FMC Devens has implemented extensive measures to screen inmates for COVID-19, for both newly arriving inmates and its resident inmate population. All new inmates are screened for any fever or symptoms. Shaw Decl. ¶ 26. They are then placed in an automatic 14-day quarantine before being released to their housing units. Id. If the inmate exhibits any symptoms of coronavirus, the inmate is tested, treated and placed in the Isolation Unit. Id. Resident inmates who are admitted to an outside hospital and/or emergency room are also placed on a 14-day quarantine upon their return to FMC Devens. Id. FMC Devens is also screening every inmate,
3 Upon information and belief, on April 22, 2020, FMC Devens had its first inmate test positive COVID-19. The inmate has only had one test thus far, and is awaiting a second test to confirm the results. The inmate has been in quarantine status since his return from surgery at an outside hospital. He is not currently at FMC Devens because he has been re-admitted to the hospital due to complications from surgery.
4 A detailed description of the efforts the FMC Devens has taken to prevent the introduction and spread of COVID-19 at FMC Devens is set forth in Exhibit A.
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every day, for fever and/or symptoms of COVID-19. Shaw Decl. ¶ 26. Any inmate with signs and/or symptoms of COVID-19 is removed from the housing unit and isolated away from all other inmates. Id. In addition, the inmate is immediately tested for COVID-19. Id.
All inmate activities have been separated by housing unit and floor in order to “shelter in place” with the fewest number of fellow inmates. Shaw Decl. ¶ 31. Every housing unit at FMC Devens has been sheltering in place, and any inmate needing to be reassigned to another housing unit has been quarantined off of that unit for 14 days prior to reassignment. Id. Each floor of each unit has designated times for meals, recreation, laundry, commissary, education, the law library, book cart distribution, and job assignments. Id. The staff dining hall has been closed during modified movement enforcement. Shaw Decl. ¶ 54. Inmate meals have been changed to “grab and go” meals, with Virucide cleaning in between the different unit/floor meal times. Shaw Decl. ¶ 55. In addition, sick call visits, pill lines, insulin administration and all inmate medical screening has been moved to the inmates’ specific units so they can shelter in place while still receiving their medications and daily visits from medical staff. Shaw Decl. ¶ 31. Soap and sanitizer have also been made available to everyone. Id.
All inmate companions have been moved to the units where they are assigned to work so that they are sheltering in place with their inmates. Shaw Decl. ¶ 50. All orderlies have been assigned to work areas by unit and floor so they are working with the same inmates that they have been sheltering in place with. Shaw Decl. ¶ 51.
The Memory Disorder Unit (“MDU”) at FMC Devens is a uniquely situated ‘locked’ unit which has been sheltering in place since March, 2020. Shaw Decl. ¶ 59. A locked unit is one where very few staff are allowed access and where MDU patients are not exposed to other FMC Devens inmates. Id. As a result, MDU patients have very limited contact with anyone outside of
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their unit, and if an inmate were to develop symptoms, he may be easily isolated from other patients via the doors to each individual cell. Id. In addition, all inmate companions within the MDU have been sheltering in place with the inmate to whom they are assigned to decrease the exposure of both inmates to any other inmates or staff. Id. These inmate companions have not returned to their initial housing units and have been reassigned to live on the units where they are designated as companions. Id.
As inmates are sheltering in place with their respective floor, additional physical barriers, currently under construction, are being erected in housing units in order to further decrease the number of inmates who are sheltering in place together. Shaw Decl. ¶¶ 31, 53. Each floor or each unit will be further subdivided and the separate groups will be quarantined from each other, just as inmates on separate floors and in different housing units are. Shaw Decl. ¶ 53.
The adjacent Federal Prison Camp (“FPC Devens” or the “Camp”) at FMC Devens houses only Care Level 1 and 2 inmates. Shaw Decl. ¶ 61. These Camp inmates have a much smaller incidence of the CDC risk factors for increased mortality with COVID than FMC Devens’ elderly and more medically complicated Care Level 3 and 4 inmates at the main institution. Id. The Camp as a whole is sheltering in place and Health Services is providing medical care and pill line at the Camp. Shaw Decl. ¶ 62. In addition, any Camp inmates needing to go to the FMC Health Services Division or Dental are being assigned a staggered scheduling time so that they are not exposed to any other inmates. Id.
At the Camp, inmates are also screened daily for symptoms of COVID and fever in the same manner as the inmates at FMC Devens. Shaw Decl. ¶ 60. If an inmate develops symptoms, he is brought inside FMC Devens for isolation. Id. An Isolation Examination Room has been established at the Camp in order to immediately isolate any inmate away from the rest of the Camp
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inmates if he were to develop symptoms, and which also provides a place behind a closed door for the inmate. Id. Work assignments have been changed so that none of the inmates are going into the community to work on furlough, and all jobs have been assigned to within the Camp itself. Id.
FPC staff are being screened prior to work at the Camp with the same enhanced screening procedures as the FMC. Shaw Decl. ¶ 63. Additionally, staff and inmates at the Camp are also required to wear face masks at all times. Id.
Camp inmates are being evaluated for the expanded Home Confinement program, as set forth by Central Office in the same program offered to our FMC Devens main institution inmates. Shaw Decl. ¶ 61.
B. Modification of Health Services FMC Devens Health Services has modified all medication administration in response to the COVID-19 pandemic. Inmates have been educated by health services staff on social distancing, risk factors for COVID-19, modification of schedules and changes to sick call procedures so that all inmates have continued to have access to medical staff on a daily basis. Shaw Decl. ¶ 49. All inmates entering the hospital building are screened prior to entrance on a daily basis. Shaw Decl. ¶ 35. The P-Unit building (originally designed as an Army hospital) has been placed in a modified lock down with no movement in between the floors, and all medication administration and meals are distributed on the floors separately. Shaw Decl. ¶ 36. At the onset of inmates sheltering in place on the units, inmates on dialysis and those who were currently taking immunosuppressive medication were moved to units that had cell doors so they could shelter in place with more physical barriers and a smaller number of inmates. Decl. ¶ 37. Dialysis inmates are screened prior to entering dialysis on a daily basis. Shaw Decl. ¶¶ 27, 34. They are then given
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“grab and go meals” to take back to their unit so they are not exposed to other inmates on the compound during scheduled moves. Shaw Decl. ¶ 27. Any inmate on Isolation or Quarantine is dialyzed in the negative pressure isolation room in dialysis. Shaw Decl. ¶ 34. Transplant teams were notified of modified lock down procedures by FMC Devens’ Transplant Coordinator. Shaw Decl. ¶ 38. FMC Devens’ telemedicine program for inmate appointments was increased for all of the transplant inmates who required visits and that could be accomplished by video or conference call. Id. Telemedicine expansion was also increased with FMC Devens’ local contractors for inmates who were not transplant inmates but who required visits that could be done by video or conference call. Id.
All scheduled medical trips were audited for urgency and any trips that could be rescheduled without adversely affecting the health of the inmate have been cancelled and rescheduled. Shaw Decl. ¶ 28. Inmates who must attend scheduled medical appointments are monitored for fever and symptoms for 14 days by nursing upon their return from the appointment. Shaw Decl. ¶ 28. Escort officers have been tested and given PPE to wear during scheduled medical trips out of the institution. Shaw Decl. ¶ 29.
Medications are administered to the inmates in the units where they are sheltering in place. Shaw Decl. ¶ 32. Insulin is now given out on the unit, rather than requiring inmates to report to an insulin line. Id. “Call-outs” to Medical for medical visits have been modified to allow only inmates from the same floor and unit, who are sheltering in place together, to be in the Medical Unit at the same time. Id. Medical Exam rooms have been established on each unit to enable medical providers to see inmates at their shelter in place location. Shaw Decl. ¶ 40. All Chronic Care and 14-day visits are taking place on the units or in the Quarantine area. Id. Medical providers were assigned to report to FMC Devens on each day of the weekend to evaluate any
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inmate in the Isolation area, and to test and/or isolate any inmate with symptoms of coronavirus. Shaw Decl. ¶ 41. Lab Techs are sent to units to draw blood, and radiology services have been coordinated so that only inmates on the same floor and unit are in the waiting room at the same time. Shaw Decl. ¶ 42.
New dental procedures have been initiated by the acting Chief Dentist. Shaw Decl. ¶ 43. Dental visits have also been moved to the units, and procedures are scheduled by individual inmate so that there is no exposure to other units/floors in the dental waiting room. Id.
FMC Devens staff are also enforcing social distancing guidelines. Shaw Decl. ¶ 23. Crisis Support Team staff have been deployed to discuss concerns and anxieties with both staff and inmates. Shaw Decl. ¶ 56.
C. Isolation and Quarantine Procedures FMC Devens has established Isolation and Quarantine areas for symptomatic and asymptomatic inmates. Two separate ranges were established for Isolation (symptoms) and Quarantine (asymptomatic) inmates. Shaw Decl. ¶ 22. These areas are physically separated from the other housing units and are identified with signs prior to entering the unit. Id. Staff have been educated on use of correct PPE for each range and PPE carts have been set up for easy donning and doffing of PPE. Id. Two examination rooms in the Health Services Unit at FMC Devens have been set aside for evaluation and testing of any symptomatic inmates. Shaw Decl. ¶ 23. Inmates with any symptoms of coronavirus, such as a cough or fever, are given a mask and escorted to these special exam rooms. Id. These rooms also have doors capable of closing and being locked, and all of the examination rooms are equipped with gowns, face shields, N95 masks and Virucide capable killing the coronavirus. Id. Inmates are tested for COVID-19, the placed in the separated Isolation Range,
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where they are isolated from all other inmates and staff. Id. D. Testing FMC Devens is conducting testing in accordance with CDC guidelines. The CDC has
explained that “[n]ot everyone needs to be tested for COVID-19,” and “decisions about testing are at the discretion of state and local health departments and/or individual clinicians.” See cdc.gov/coronavirus/2019-ncov/symptoms-testing/testing.html (last visited on Apr. 22, 2020).
As set forth above, FMC Devens has tested any symptomatic inmates. E. Screening Staff and Visitors All individuals entering FMC Devens must undergo a health screening prior to entry. Enhanced screening of staff is taking place. Shaw Decl. ¶ 24. All staff entering the institution are screened for any fever and symptoms of COVID-19. Id. Staff who are exhibiting any symptoms or fever are sent home and a medical officer is assigned to contact the staff person and determine when it will be safe and appropriate for the staff member to return to FMC Devens. Id. All Food Service Workers are screened on a daily basis. Shaw Decl. ¶ 33. Medical contractors have been notified that they will be screened prior to entry, and any clinics that could be cancelled and rescheduled have been changed to avoid further exposure to community physicians. Shaw Decl. ¶ 30 F. Cleaning Sanitation crews at FMC Devens are working days and evenings with chemicals that kill COVID-19. Shaw Decl. ¶ 33. Virucide has been given to all Health Services employees to clean their areas several times a day, and between any inmate visits, paying special attention to the visits from different units and or floors. Shaw Decl. ¶ 44. Inmates have been given access to Virucide to clean their cells and common areas several times a day. Shaw Decl. ¶ 46.
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Door holders have been established so that not all inmates are touching door handles as they are moving to and from their units. Shaw Decl. ¶ 45. Staff keys and radios are disinfected with Virucide before redistribution to staff each day. Shaw Decl. ¶ 47.
G. Supplies Since April 8, 2020, all inmates and staff are required to wear masks at all times in the institution to help decrease any exposure to respiratory droplets or secretions. Shaw Decl. ¶¶ 48, 63. Inmates are subject to discipline if they fail to wear a mask. Shaw Decl. ¶ 48. Correctional staff have been provided PPE to be used in appropriate locations throughout FMC Devens such as quarantined areas, isolation units, and screening sites. All PPE was inventoried and PPE carts were established in each of the units for staff and officers to use during visits to the units. Shaw Decl. ¶¶ 22, 39. Escort officers have been given PPE to wear during scheduled medical trips outside of FMC Devens. Shaw Decl. ¶ 29. In addition to the institution-supplied soap available to the inmate population, they can purchase Dove anti-bacterial and Irish Spring bar soap from the commissary. Shaw Decl. ¶ 31. Both inmates and staff have widespread access to alcohol-free sanitizers. Id. Finally, in accordance with March 15, 2020, guidance from the FDA allowing BOP to make its own sanitizer, FMC Devens pharmacy has manufactured 75% isopropyl alcohol antiseptic topical solution hand sanitizer, which is issued to staff only. Id. Pharmacy staff located and secured Hydroxychloroquine5 per the Emergency Use Authorization for oral formulations of this medication in for inmates hospitalized with COVID-19. Shaw Decl. ¶ 58.
5 Hydroxychloroquine is a drug used to prevent or treat malaria and is being used in clinical trials for treatment of patients with COVID-19. See https://www.cdc.gov/coronavirus/2019ncov/hcp/therapeutic-options.html (last visited Apr. 22, 2020).
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H. Inmate and Staff Education As set forth above, from the outset of the COVID-19 pandemic, FMC Devens staff and officials have provided regular education to inmates and staff regarding the virus, the BOP’s response, and the measures that they themselves should take to stay healthy, including washing their hands frequently with soap and water, avoiding touching their faces, and practicing physical distancing whenever possible. In addition to the measures previously set forth, inmates have been educated by health services staff on social distancing, risk factors for COVID-19, and modification of schedules and changes to sick call procedures so that all inmates continue to have access to medical staff on a daily basis. Shaw Decl. ¶ 49. The Warden continues to hold a “Town Hall” with inmates and provides weekly updates each Thursday to the inmate population through the BOP’s electronic messaging system. Shaw Decl. ¶ 64. Health Services staff developed a tool to identify the high-risk inmates per the CDC website definition (https://www.cdc.gov/coronavirus/2019-ncov/hcp/underlying-conditions.html) and are screening these inmates for referral to Expanded Home Confinement in conjunction with the Unit Team. Shaw Decl. ¶ 57. This analysis includes education and collaboration between the inmate and his medical provider on whether his risks for COVID-19 are greater at home or at the institution. Id. In addition, Health Services is diligently completing the medical summaries necessary to process the Reduction in Sentence/Compassionate Release requests that have been requested and are complying with all deadlines for this important process. Id. III. HOME CONFINEMENT AND COMPASSIONATE RELEASE A. Compassionate Release/Reduction In Sentence The BOP does not have the authority to provide inmates with “early release.” Bourke Decl. ¶ 5. A reduction of an inmate’s federal sentence can only be accomplished by an Article III judge,
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and specifically, the inmate’s sentencing judge. Id. However, upon an inmate’s request, the Director of 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). This process is outlined in the U.S. Dep’t of Justice Fed. Bureau of Prisons, Compassionate Release/Reduction In Sentence Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g), Program Statement 5050.50 (Jan. 17, 2019)6. Id. The BOP invokes these statutory authorities in “extraordinary or compelling circumstances,” which could not have reasonably have been foreseen by the court at the time of sentencing. Id. The First Step Act, codified at 18 U.S.C. § 3582, 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. Id. The determination of release is ultimately the decision of the sentencing court. Id.
Approximately 114 FMC Devens inmates have submitted a request for Compassionate Release/Reduction in Sentence (“RIS”) by FMC Devens inmates within the past two weeks. Bourke Decl. ¶ 6. Of these, FMC Devens has determined that 2 of these RIS requests meet the criteria, and have been forwarded to the BOP Central Office for further RIS consideration and approval. Id. It is important to note that, while the BOP is processing these requests as expeditiously as possible, the statute gives the BOP thirty (30) days to evaluate compassionate release requests before any motion may be presented in the sentencing court. 18 U.S.C. § 3582(c)(1)(A). Indeed, the ultimate decision regarding compassionate release lies with the sentencing judge. Id.
6 This BOP Program Statement and all other program statements and operations memoranda cited herein are available at www.bop.gov via the Resources link. Bourke Decl. ¶ 5.
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1. Petitioners’ Requests for Reduction in Sentence Each of the Petitioners was reviewed for a RIS by FMC Devens. Bourke Decl. ¶ 7. Petitioner Michael Gordon submitted a RIS request on April 13, 2020, and was denied on April 20, 2020. Bourke Decl. ¶ 8. He sought release based on the potential effects of a COVID-19 infection, which alone does not meet the necessary criteria for a RIS under BOP policy. Id. Petitioner Alexander Grinis (“Grinis”) submitted a RIS request on April 17, 2020, and was denied on April 21, 2020. Bourke Decl. ¶ 7. The sole basis upon which Grinis sought release was potential COVID-19 infection. Id. The request did not meet the criteria for RIS under BOP policy. Id. Petitioner Angel Soliz (“Soliz”) submitted a RIS request on August 19, 2019, and was denied on September 3, 2019. Bourke Decl. ¶ 9. At the time he was denied RIS, Soliz did not have an end-of-life trajectory that met the necessary criteria for a RIS under BOP policy. Id. B. Home Confinement At the Attorney General’s direction, the BOP has also significantly increased the number of inmates on home confinement by over 40% and continues to screen all inmates to determine whether they are appropriate for home confinement.7 By memoranda dated March 26, 2020, and April 3, 2020, the Attorney General directed the BOP to “prioritize the use of [its] various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic.” See Attorney General Memoranda dated March 26, 2020 (Exhibit C) and April 3, 2020 (Exhibit D), attached hereto. In assessing which inmates should be granted home
7 See https://www.bop.gov/resources/news/20200405_covid19_home_confinement.jsp (last visited Apr. 22, 2020).
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confinement, the Attorney General directed the BOP to consider the totality of the circumstances of each inmate, the statutory requirements for home confinement, and a series of factors including the age and vulnerability of the inmate, the security level of the facility holding the inmate, the inmate’s conduct while incarcerated, the inmate’s score under the Prisoner Assessment Tool Targeting Estimated Risk and Needs, whether the inmate has a demonstrated and verifiable reentry plan that will prevent recidivism and ensure 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 at their current facility), and the inmate’s crime of conviction. Exhibit C, at 1-2. In addition to these factors, before granting an inmate release on home confinement, the Attorney General directed the BOP Medical Director, or his designee, “to 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 risks of COVID-19 at the location in which the inmate seeks home confinement.” Id. at 2. FMC Devens is following this guidance. Shaw Decl. ¶ 57.
Although BOP lacks the authority to release an inmate from his sentence, BOP has the authority to transfer a prisoner to home confinement for the remainder of his or her sentence pursuant to provisions and limitations set forth 18 U.S.C. § 3624(c)(2) and 34 U.S.C. § 60541. See also BOP Program Statement 7320.01, Home Confinement and BOP Operations Memorandum, Home Confinement under the First Step Act. Bourke Decl. ¶ 10. Generally, the BOP may place a prisoner in home confinement only for the shorter of 10 percent of the term of imprisonment or 6 months. 18 U.S.C. § 3624(c)(2). Bourke Decl. ¶ 11. In order to appropriately evaluate an individual for home confinement, FMC Devens staff assesses the risk of criminal activity in the community and determines whether there is an appropriate home where the inmate can be placed. Bourke Decl. ¶ 12. This is a time and resource intensive process. Id. Upon receipt of the staff
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assessment, the BOP reviews the assessment and makes the final determination regarding home confinement. Id. If approved, absent any disciplinary infractions, the inmate would serve the remainder of his or her sentence on home confinement. Id.
Under 34 U.S.C. § 60541, the BOP may release some or all eligible elderly offenders and eligible terminally ill offenders from BOP facilities to home detention, upon written request from either BOP staff, or an eligible elderly offender8 or eligible terminally ill offender9. Bourke Decl.
¶ 13. In order to appropriately evaluate an elderly or terminally ill individual for home confinement, the BOP assesses the risk of criminal activity in the community and determines whether there is an appropriate home where the individual can be placed. Bourke Decl. ¶ 15. If approved, absent any disciplinary infractions, the inmate would serve the remainder of his or her sentence on home confinement. Bourke Decl. ¶ 16. Inmates that do not meet the criteria for the
8 The statute defines “eligible elderly offender” to include an inmate who is not less than 60 years of age; who is serving a term of imprisonment that is not life imprisonment based on a conviction for an offense or offenses that do not include any crime of violence; has served twothirds of the term of imprisonment to which the offender was sentenced; who has not been convicted in the past of any Federal or State crime of violence, sex offense, or other offense referenced in the statute; who has not been determined by BOP to have a history of violence, or of engaging in conduct constituting a sex offense or other excluded offense; who has not escaped, or attempted to escape from a BOP institution; whose release to home detention will result in a substantial net reduction of costs to the Federal Government; and who has been determined by BOP to be at no substantial risk of engaging in criminal conduct or of endangering any person or the public if released to home detention. Bourke Decl. ¶ 13; see also 34 U.S.C. § 60541.
9 “Eligible terminally ill offender” is defined as an offender in the custody of BOP who meets all of the above-stated criteria except the age restriction, and has been determined by a medical doctor approved by BOP to be in need of care at a nursing home, intermediate care facility, or assisted living facility, or diagnosed with a terminal illness. Bourke Decl. ¶ 14; see also 34 U.S.C. § 60541.
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elderly home confinement can be placed on home confinement under BOP’s general authority to do so, 18 U.S.C. § 3624(c)(2). Bourke Decl. ¶ 18.
Under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), signed into law on March 27, 2020, however, “if the Attorney General finds that emergency conditions will materially affect the functioning of the BOP, the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement.” Pub. L. No. 116-136, 516 § 12003(b)(2), 134 Stat. 281 (2020). On April 3, 2020, the Attorney General made that finding and authorized the Director of BOP to immediately maximize appropriate transfers to home confinement of all appropriate inmates where COVID-19 is materially affecting operations. Exhibit D at 1; Bourke Decl. ¶ 20. In light of the COVID-19 pandemic, BOP is maximizing its authority to place inmates on home confinement and is expediting the process as much as possible in furtherance of the Attorney General’s memorandum dated March 26, 2020, and April 3, 2020. Bourke Decl. ¶ 19.
Pursuant to the Attorney’s General’s direction, FMC Devens receives rosters of inmates to be considered for home confinement. Bourke Decl. ¶ 21. The factors to be considered when reviewing and referring inmates for home confinement are: primary or prior offense is not violent; primary or prior offense is not a sex offense; primary or prior offense is not terrorism; no detainer for the inmate; the inmate’s Mental Health Care Level is less than CARE-MH 4; the inmate’s recidivism risk score is Minimum; the inmate has had no incident reports in the past 12 months (regardless of severity level); the inmate is a U.S. citizen; the inmate has a BRAVO score (custody classification) of Low or Minimum; the inmate has served 50% of their sentence; and the inmate has a viable release plan. Id. As a result of FMC Devens’ higher population of inmates convicted of sex offenses, many FMC Devens inmates are ineligible for home confinement. Id. As part of
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this review, not only does Unit Team review each inmate, a review is conducted by the Special Investigative Services Department (“SIS”) and the Medical Department (“Medical”). Id. SIS determines if the inmate has engaged in violent or gang-related activity in prison. Id. Medical conducts multiple reviews. Id. Initially, Medical must determine the age and vulnerability of the inmate related to COVID-19 risk factors in accordance with CDC and prevention guidelines. Id. Additionally, Medical reviews the conditions under which the inmate would be confined upon release to determine whether those conditions would present a lower risk of contracting COVID19 than the inmate would face at the BOP facility, and also determines whether frequent and ongoing medical care is required within the next 90 days. Id.
To date eight (8) inmates at FMC Devens have been approved for transfers to home confinement. Bourke Decl. ¶ 22. The inmates receiving transfers must quarantine for fourteen days prior to transfer. Id. Two of the eight approved transfers have dates for transfer into home confinement for the week of April 27, 2020. Id. Eight additional inmates were previously referred by FMC Devens Warden to the Regional Residential Reentry Manager and are being vetted for approval and placement dates. Id. An additional ten inmates are in the final stage of review at FMC Devens and are soon to be sent to the Regional Residential Reentry Manager for consideration as well. Id. To date, 118 inmates have been reviewed under the expanded criteria for home confinement placement and 91 have been denied home confinement because they fail to meet the required criteria. Id.
1. Petitioners’ Eligibility for Home Confinement Petitioner Gordon is currently serving a 15-year sentence with a Projected Release Date from BOP custody on August 18, 2027. Bourke Decl. ¶ 24. He has served approximately 5 years and 5 months, which equates to only 36.6% of his term of imprisonment. Id. Under the established
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criteria mentioned above, he is ineligible for consideration for home confinement under the expanded home confinement reviews. Id. His home detention eligibility date remains at February 18, 2027. Id.
Petitioner Grinis was previously reviewed and has a Residential Reentry Center Home Confinement date of May 21, 2020. Bourke Decl. ¶ 23. This is his first eligibility date for home detention based on his 9-month sentence, with his Projected Release Date from BOP custody on June 16, 2020. Id. Subsequent to the updated reviews for extended home confinement consideration, Grinis was reviewed again by Unit Team, SIS and Medical. Id. Medical determined that Grinis fit the criteria for being at high risk for COVID-19, and he cleared review by Unit Team and SIS. Id. Unit Team was notified to reach out to the Regional Residential Reentry Manager (“RRM”) to determine whether an earlier release date could be obtained, since he was already approved for a May 21, 2020 release. Id. At this time, Grinis’ revised home confinement date is May 5, 2020. Id.
Petitioner Soliz is currently serving a 20-year (240-month) sentence with a Projected Release Date from BOP custody on September 13, 2033. Bourke Decl. ¶ 25. He has served approximately 4 years and 10 days, which equates to only 20.1% of his term of imprisonment. Id. Additionally, Soliz is not a candidate for extended home confinement because his recidivism risk score is too high. Id. Soliz fails to meet the required “Minimum” risk score. Id. Furthermore, Soliz currently has a detainer filed by the State of Texas for a Parole Violation Warrant filed on February 2, 2017. Id. Under the established criteria mentioned above, he is ineligible for consideration under the expanded home confinement reviews. Id.
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ARGUMENT I. PETITIONERS ARE NOT ENTITLED TO HABEAS RELIEF
A. Habeas Relief Is Unavailable To Challenge Conditions Of Confinement The gravamen of the Petition is that Petitioners are entitled to habeas relief pursuant to 28 U.S.C. § 2241 based on Respondents’ alleged denial to Petitioners, and putative class members, of the “ability to engage in social distancing,” and their “failure to use their authority” to order compassionate release and/or transfer to home confinement. ECF No. 1 at ¶¶ 121-122. Petitioners allege that their prison conditions pose an unreasonable risk of serious harm to their health, and they accuse Respondents of acting with deliberate indifference to those needs. Id. at ¶¶ 116-122. Petitioners’ conditions of confinement claims are not properly brought by the Petition, and they should be denied. The traditional meaning and purpose of habeas relief is to effect release from illegal custody. Johnson v. Moran, 812 F.2d 23, 24 (1st Cir. 1987) (citing Preiser v. Rodriguez, 411 U.S. 475, 486 n.7 (1973)). “As a general matter, a petition for habeas corpus is the appropriate means to challenge the fact or duration of incarceration, while challenges to the conditions of confinement are generally brought as civil rights claims under Bivens.” Graham v. Sabol, 734 F.Supp.2d 194, 204 (D. Mass. 2010) (citing Sanchez v. Sabol, 539 F.Supp.2d 455, 459 (D. Mass. 2008); Kane v. Winn, 319 F.Supp.2d 162, 213 (D. Mass. 2004); Kamara v. Farquharson, 2 F.Supp.2d 81, 89 (D. Mass. 1998)); see also Sperling v. Grondolsky, No. 17-12075-PBS, 2018 WL 1904177, at *2 (D. Mass. Apr. 20, 2018) (typically a Bivens action is the appropriate means for a federal prisoner to challenge the adequacy of his medical treatment). Indeed, as this Court has found, “judges of this Court repeatedly have held that the failure to provide adequate medical treatment is not the proper subject of a petition for a writ of habeas corpus.” Crooker v. Grondolsky, No. 12-12106-GAO,
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2013 WL 101588, at *2 (D. Mass. Jan. 4, 2013); see also Nelson v. Campbell, 541 U.S. 637, 643 (2004) (constitutional claims challenging confinement conditions fall outside of the core of habeas relief).
Because a petition for writ of habeas corpus is not the proper means by which to bring Petitioners’ Eighth Amendment claims, this Court lacks jurisdiction to order habeas relief for Petitioners, and the Petition should be dismissed. Warner v. Spaulding, Civil Action No. 18-cv10850-DLC, 2018 WL 9838349, at *1 (D. Mass. Sept. 24, 2018) (dismissing petition, citing Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam) (request for relief turning on circumstances of confinement may be presented in a non-habeas action)); see also McLaughlin v. MacDonald, Civil Action No. 11-11587-JLT, 2012 WL 4058063, at *5 (D. Mass. Aug. 22, 2012) (dismissing claims alleging inadequate medical treatment brought as habeas action); Kamara, 2 F.Supp.2d at 89 (dismissing petition, finding that a challenge to conditions of confinement on grounds of inadequate medical treatment should have been brought as a civil rights action); Bedford v. Wall, No. C.A.04-527L, 2005 WL 775904, at *2 (D. R.I. Mar. 31, 2005) (court may consider only unlawful custody claims raised by petition).
Accordingly, Respondents request that this Court deny the Petition, and dismiss it in its entirety.
B. The PLRA Precludes The Relief That Petitioners Seek In addition to improperly bringing a Petition for redress of their Eighth Amendment claims, Petitioners also improperly seek release of hundreds of inmates from FMC Devens as a remedy. However, the Prison Litigation Reform Act of 1995 (“PLRA”), 18 U.S.C. § 3626, places strict limits on a court’s ability to order the release of inmates “in any civil action in Federal court with respect to prison conditions…” and, in fact, precludes a single district judge from doing so
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as Petitioners request. 18 U.S.C. § 3626(a)(3)(B); see also Vaqueria Tres Monjitas, Inc. v. Comas, 980 F.Supp.2d 65, 117 n.33 (D. Puerto Rico Sept. 23, 2013) (the PLRA’s authority to release prisoners to cure a “systemic violation of the Eighth Amendment” is reserved to a threejudge district court).
The PLRA applies to “any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but does not include habeas corpus proceedings challenging the fact or duration of confinement in prison[.]” 18 U.S.C. § 3626(g)(2). In such a suit, the court “may enter a temporary restraining order or an order for preliminary injunctive relief,” but such injunctive relief “must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). Under 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,” 18 U.S.C. § 3626(g)(4) – may “be entered only by a three-judge court,” 18 U.S.C. § 3626(a)(3)(B), and then only if certain conditions have been met. Among other requirements, “no court shall enter a prisoner release order unless – (i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and (ii) the defendant has had a reasonable amount of time to comply with the previous court orders.” 18 U.S.C. § 3626(a)(3)(A)(i)(ii). See, generally, Brown v. Plata, 563 U.S. 493 511-512 (2011) (setting forth the requirements of the PLRA, and holding that only a three-judge court may enter an order limiting prison population after finding by clear and convincing evidence that crowding
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is the primary cause of the constitutional violation, and only after a district court has first entered an order for less intrusive relief).
Congress enacted “the PLRA in an effort, in part, to oust the federal judiciary from dayto-day prison management.” Inmates of Suffolk Cty. Jail v. Rouse, 129 F.3d 649, 655 (1st Cir. 1997) (citations omitted); see also Benjamin v. Jacobson, 172 F.3d 144, 182 (2d Cir. 1999) (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.”); Denike v. Fauver, 3 F.Supp.2d 540, 542 (D. New Jersey May 4, 1998) (purpose of PLRA is to reduce federal judicial involvement in prison administration). “Congress intended the PLRA to revive the hands-off doctrine,” which was “a rule of judicial quiescence derived from federalism and separation of powers concerns.” Gilmore v. People of the State of Cal., 220 F.3d 987, 991, 997 (9th Cir. 2000). “Courts must be sensitive to the State’s interest in punishment, deterrence, and rehabilitation, as well as the need for deference to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of convicted criminals.” Brown, 563 U.S. at 511 (2011). Section 3626 thus “restrict[s] the equity jurisdiction of federal courts,” Gilmore, 220 F.3d at 999, and, “[b]y its terms . . . restricts the circumstances in which a court may enter an order ‘that has the purpose or effect of reducing or limiting the prison population.’” Plata, 563 U.S. at 511 (quoting 18 U.S.C. § 3626(g)(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.
Here, not only does the PLRA preclude the relief that Petitioners seek, but even if this
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Court were inclined to grant such relief, their request is premature. From the outset, Petitioners seek release from this Court, contrary to the requirements of the PLRA that any such relief must be granted by a three-judge panel. Next, they seek release without this Court haven’t entered any other less intrusive order. On these grounds alone, the Petition must be denied.
In Money v. Pritzker, ___ F. Supp. 3d ___, Nos. 20-cv-2093 & 20-cv-2094, 2020 WL 1820660 (N.D. Ill. Apr. 10, 2020), inmates from various Illinois Department of Correction facilities brought purported class action lawsuits seeking release of over 12,000 prisoners in light of the COVID-19 pandemic. The Court held that the PLRA prevented it from entering the relief requested by petitioners for the release of inmates. Id. at * 14. Similarly, in the very recent case of Plata v. Newson, No. 4:01-cv-01351-JST (N.D. Calif. Apr. 17, 2020), plaintiffs sought an order requiring inmate releases or transfer of inmates in light of the COVID-19 pandemic. There, the court found that the measures defendants had taken to prevent the spread of the coronavirus, did not constitute an Eighth Amendment violation. Id. at 15. The court further held that, pursuant to the PLRA, the court lacked authority to grant the release or transfer, finding that a “prisoner release order” could only be granted by a three-judge court. Id., citing 18 U.S.C. § 3626(a)(3)(B).
Here, there can be no dispute that Petitioners’ lawsuit is a “civil action with respect to prison conditions” governed by the PLRA. 18 U.S.C. § 3626(g)(2). The PLRA defines “civil action with respect to prison conditions” broadly to mean “any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison, but [that term] does not include habeas corpus proceedings challenging the fact or duration of confinement in prison[.]” Id. Petitioners seek release as a remedy for allegedly unconstitutional conditions at FMC Devens —for themselves and for the putative class members. As set forth above, the PLRA strictly limits the relief that
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this Court may grant and precludes the Court from releasing inmates from FMC Devens as Petitioners request. 18 U.S.C. § 3626(a)(3)(B). Accordingly, this Court must deny the Petition.
C. Respondents Are Not Deliberately Indifferent To Petitioners’ Medical Needs 1. Standard
Petitioners allege that the conditions of confinement at FMC Devens constitute a violation of the Eighth Amendment. The Eighth Amendment protects against the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. “[A] prison official violates the Eighth Amendment only when two requirements are met.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). “[T]o prove an Eighth Amendment violation, a prisoner must satisfy both of two prongs: (1) an objective prong that requires proof of a serious medical need, and (2) a subjective prong that mandates a showing of prison administrators’ deliberate indifference to that need.” Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014) (citing Estelle, 429 U.S. at 106; Sires v. Berman, 834 F.2d 9, 12 (1st Cir. 1987)).
The objective standard evaluates the seriousness of the risk of harm to health. There must be “a sufficiently substantial ‘risk of serious damage to [the inmate’s] future health.’” Farmer, 511 U.S. 825, 843(1994) (quoting Helling v. McKinney, 509 U.S. 25, 35 (1993)). A medical need is “serious” if it has been diagnosed by a physician as mandating treatment, or is so obvious that even a lay person would recognize a need for medical intervention. Leavitt v. Corr. Med. Servs., 645 F.3d 484, 497 (1st Cir.2011); Gaudreault v. Mun. of Salem, 923 F.2d 203, 208 (1st Cir.1990), cert. denied, 500 U.S. 956 (1991)).
To satisfy the subjective prong and show deliberate indifference, which has been described as a “culpable state of mind,” Perry v. Roy, 782 F.3d 73, 78 (1st Cir. 2015), and “a narrow band of conduct,” Kosilek, 774 F.3d at 83 (citation omitted), a prisoner must generally produce
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“evidence that the absence or inadequacy of treatment is intentional,” Perry, 782 F.3d at 79 (citing Estelle, 429 U.S. at 105; Watson v. Caton, 984 F.3d 537, 540 (1st Cir. 1993)). Or, “deliberate indifference may…be exhibited by a wanton disregard [of] a prisoner’s needs, [when] such disregard [is] akin to criminal recklessness, requiring consciousness of impending harm, easily preventable.” Kosilek, 774 F.3d at 83 (quoting Battista v. Clarke, 645 F.3d 449, 453 (1st Cir. 2011); Watson, 984 F.2d at 540) (internal quotation marks omitted). In any event, a plaintiff must prove more than “an inadvertent failure to provide adequate medical care,” Estelle, 429 U.S. at 105, or a mere “disagreement[ ] between [himself] and [his] doctors about the proper course of [his] medical treatment,” Kosilek, 774 F.3d at 83 (quoting Watson, 984 F.2d at 540). Regarding the latter, it is well-established that the Eighth Amendment “does not impose upon prison administrators a duty to provide care…of the prisoner’s choosing.” Id. at 82 (citing Ferranti v. Moran, 618 F.2d 888, 891 (1st Cir. 1980)). Deliberate indifference to serious medical needs means “a prison official subjectively must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Lopes v. Riendeau, 177 F.Supp.3d 634, 657 (D. Mass. 2016) (quoting Ruiz-Rosa v. Rullan, 485 F.3d 150, 156 (1st Cir. 2007); Farmer, 511 U.S. at 837) (internal quotations omitted)); Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556 (1st Cir. 1988).
This Court will assess FMC Devens’ actions in light of Petitioners’ constitutional claims, but it must not substitute its judgment for that of the BOP. “[I]t is not the district court’s own belief about medical necessity that controls, but what was known and understood by prison officials in crafting their policy.” Id. (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). As such, although this Court cannot abdicate its responsibility to ensure that the limits imposed by the Constitution are not ignored, the court does not “sit to substitute its own judgment for that of prison
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administrators.” Id. at 92. Not only does the Petition fail to identify that a substantial risk of serious harm to
Petitioners exists, Petitioners are unable to demonstrate that Respondents have acted with deliberate indifference to Petitioners’ medical needs. While prison administrators do not have unlimited authority over prisoners, and their actions are subject to judicial checks, such checks are limited: “their actions cannot be entirely arbitrary and capricious.” Nadeau v. Helgemoe, 561 F.2d 411, 419 (1st Cir. 1977). As long as the prison policy or actions are made in good faith, do not constitute “deliberate indifference,” or do not go beyond “reasonable professional limits,” such policies or actions do not violate the Eighth Amendment. Battista v. Clarke, 645 F.3d 449, 454 (1st Cir. 2011) (citing Farmer, 511 U.S. at 844-45; Youngberg v. Romeo, 457 U.S. 307, 321, 32425 (1st Cir. 2011) (internal quotations omitted)); but see Cameron v. Tomes, 990 F.2d 14, 20 (1st Cir. 1993) (professional judgment as to issues involving conditions of confinement creates only a “presumption” of correctness). Such is the case here.
2. Petitioners Cannot Establish Substantial Risk of Harm 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 appropriate steps to mitigate those risks throughout its inmate population,10 including with respect to the inmate population at
10 Courts around the country have recently received challenges to detention on the grounds of COVID-19 in the criminal bail context and have recognized the government’s public health efforts, particularly the efforts of the Bureau of Prisons, to address the COVID-19 crisis. See United States v. Martin, No. PWG-19-140-13, 2020 WL 1274857, at *4 (D. Md. Mar. 17, 2020); United States v. Gileno, No. 3:19-cr-161, 2020 WL 1307108, at *4 (D. Conn. Mar. 19, 2020); United States v. Hamilton, No. 19-CR-54-01, 2020 WL 1323036, at *2 (E.D.N.Y. Mar. 20, 2020); United States v. Jefferson, No. CCB 19-487, 2020 WL 1332011, at *1 (D. Md. Mar. 23, 2020); United States, v. Rollins, Nos. 19-CR-34S, 11-CR-251S, 2020 WL 1482323 (W.D.N.Y. Mar. 27, 2020) (denying motion for release from custody pending sentencing and explaining that “[a]s
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FMC Devens. As set forth above, those measures include providing inmate and staff education; conducting inmate and staff screening; putting into place testing, quarantine, and isolation procedures in accordance with BOP policy and CDC guidelines; ordering enhanced cleaning and medical supplies; and taking a number of other preventative measures. Additionally, FMC Devens implemented the “modified operations” directive in a number of ways to reduce the spread of COVID-19 among inmates, including: (1) “grab and go” meals for inmates, meaning that inmates are permitted to pick up pre-packaged meals at designated times, but return to their housing units in order to eat; (2) providing health services within units, and allowing only inmates from the same units, who are sheltering in place together, to be in the same area for medical visits; and (3) inmates are all provided masks and are required to wear them, or be subject to discipline, and extensive cleaning and sanitizing measures are taking place within FMC Devens.
Although Petitioners’ argue that they live in units in close proximity to other prisoners, they fail to recognize that this situation is also true of many unincarcerated members of the community who live with roommates or family members. See Hines v. Youssef, No. 1:13-cv00357-AWI-JL, 2015 WL 164215, at *4 (E.D. Cal. Jan. 13, 2015) (“Unless there is something about a prisoner’s conditions of confinement that raises the risk of exposure substantially above the risk experienced by the surrounding communities, it cannot be reasoned that the prisoner is involuntarily exposed to a risk the society would not tolerate.”). At FMC Devens, each unit is essentially a closed family unit and the BOP separates each unit from other units, visitors, and sick inmates. BOP staff also wear masks and/or PPE and give inmates masks to wear. During
serious as it is, the outbreak of COVID-19 simply does not override the statutory detention provisions above”); United States v. Passley, 2020 WL 1815834, at *4 (E.D.N.Y. Apr. 9, 2020) (balancing defendant’s risk of flight and health concerns and concluding COVID-19 is not a sufficiently compelling circumstance to justify release); Mell v. United States, No. 3:20-cv-2277 (BRM), 2020 WL 1852384, at *1 (D. New Jersey Apr. 13, 2020).
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movement, inmates are able to, and are encourage to, maintain social distancing while in line. And while Petitioners reiterate that they are unable to effectively maintain social distancing in contravention of CDC guidance, although six-foot distancing would “ideally” be followed, the guidance acknowledges that complete social distancing may not be feasible in jail. Mays v. Dart, ___ F.Supp.3d ___, 2010 WL 1812381, at *10 (N.D. Ill. Apr. 9, 2020).
For these reasons, Petitioners have failed to establish that they are subject to an unreasonable risk of harm, and their constitutional claims must fail.
3. The BOP Has Taken Appropriate Measures To Protect The Health Of Inmates At FMC Devens
Petitioners likewise cannot satisfy the subjective element of the constitutional analysis, which requires them to prove Respondents’ “culpable state of mind,” Perry, 782 F.3d at 78, and to produce “evidence that the absence or inadequacy of treatment is intentional,” Perry, 782 F.3d at 79 (citing Estelle, 429 U.SW. at 105; Watson v. Caton, 984 F.3d 537, 540 (1st Cir. 1993)); see also Farmer, 511 U.S at 837.
“To the contrary, the Bureau of Prison is by all objective accounts responding to the COVID-19 pandemic as any reasonable observer could expect under the circumstances to prevent infectious outbreak, protect inmate health, and preserve internal order – all legitimate government aims.” United States v. Villegas, 2020 WL 1649520, at *2 (C.D. Cal. Apr. 3, 2020) (slip op). The condition complained of here is not the existence of COVID-19, which is not under the control of the BOP, or of FMC Devens. Rather, the condition complained of is the precautions FMC Devens has taken to reduce exposure to or the spread of COVID-19. FMC Devens is acutely aware of the risk that COVID-19 poses to its inmate population and to the public at large, and Respondents can hardly be said to be indifferent, as shown by their actions as set forth above. See Exhibits A, B.
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Earlier this month, when Seattle, Washington was the epicenter of the COVID-19 outbreak, the court noted that “Plaintiffs do not cite to authority, and the court is aware of none, under which the fact of detention itself becomes an ‘excessive’ condition solely due to the risk of a communicable disease outbreak — even one as serious as COVID-19.” Dawson v. Asher, No. C20-0409 JRL-MAT, 2020 WL 1304557, at *2 (W.D. Wash March 19, 2020). Similarly, Petitioners cannot establish that the precautions and care at FMC Devens are “sure or very likely” to lead to exposure or that that Respondents have been deliberately indifferent. The district court in Money, 2020 WL 1820660, reached the same conclusion on similar facts. After finding that prison officials came forward “with a lengthy list of the actions they have taken to protect…inmates,” id. at *18, the court recognized that prison officials in that case (like FMC Devens staff here) “are trying, very hard, to protect inmates against the virus and to treat those who have contracted it.” Id. There is 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)). This Court should also find that Respondents’ actions “easily pass constitutional muster.” Id.
Similarly, in United States v. Desage, No. 2:13-cr-00039-JAD-VCF, 2020 WL 1904584, at *3 (D. Nev. Apr. 17, 2020), defendant alleged that the BOP’s COVID-19 protections for inmates were insufficient, and that he was at risk of being exposed to the life-threatening virus. In denying his release, the court found such claims to be “hyperbole,” and found that the information the government provided about its plan, procedures and practices in general, and for the defendant in particular, demonstrated a lack of deliberate indifference, and denied defendant’s emergency motion for compassionate release. Id. In reviewing Petitioners claims, and considering the actions
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that Respondents have taken to combat COVID-19 and to keep inmates and staff alike from contracting coronavirus, this Court should also find that Petitioners have failed to demonstrate deliberate indifference, and that Respondents’ actions, in fact, demonstrate a lack of deliberate indifference.
More importantly, the BOP has not been deliberately indifferent to the COVID-19 outbreak, but is taking aggressive measures to combat its spread and care for inmate who contract the disease. While Petitioners may ultimately disagree with the measures taken by the BOP to protect and treat inmate health and safety while also carrying out its mission to effectuate criminal sentences imposed by federal courts, deliberate indifference is not shown simply by a difference of medical judgment. 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”). “[A] prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation.” Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999). Indeed, a prisoner must prove more than “an inadvertent failure to provide adequate medical care,” Estelle, 429 U.S. at 105, or a mere “disagreement[ ] between [himself] and [his] doctors about the proper course of [his] medical treatment,” Kosilek, 774 F.3d at 83 (quoting Watson, 984 F.2d at 540). Regarding the latter, it is well established that the Eighth Amendment “does not impose upon prison administrators a duty to provide care ... of the prisoner’s choosing.” Id. at 82 (citing Ferranti v. Moran, 618 F.2d 888, 891 (1st Cir. 1980)).
In the midst of this extraordinary emergency, “[i]t is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease.” Jacobson v. Comm. of Massachusetts, 197 U.S. 11, 30 (1905). Rather,
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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 insist on positive evidence to support action; their task is to measure risk to the public. They deal in a terrible context and the consequences of mistaken indulgence can be irretrievably tragic.”); 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 [the court’s]) expertise.”); see also Jacobson, 197 U.S. at 31 (upholding mandatory vaccination law and explaining that such a measure, enacted to protect public health, will not be struck down unless it “has no real or substantial relation to [that goal], or is, beyond all question, a plain, palpable invasion of rights…” secured by the Constitution); Bragdon v. Abbot, 524 U.S. 624, 650 (1998) (noting that “the views of public health authorities, such as the U.S. Public Health Service, CDC, and the National Institutes of Health, are of special weight and authority”); Sch. Bd. of Nassau Cty., Fla. v. Arline, 480 U.S. 273, 288 (1987) (recognizing that “courts normally should defer to the reasonable medical judgments of public health officials”).
For the reasons set forth above, it is beyond the purview of this Court to second-guess BOP officials’ judgment, and the medical judgments made within the BOP, or for this Court to delve within the daily operation of the BOP. In light of all of the measure taken by the BOP, and by FMC Devens, Petitioners’ claims fail to state an Eighth Amendment claim of deliberate indifference to Petitioners’ medical needs. Without an adequate constitutional violation supported by the pleadings, Petitioners’ claims cannot withstand judgment. Thus, this Court should deny the Petition, and dismiss Petitioners’ claims in their entirety.
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II. PETITIONERS ARE NOT ENTITLED TO A TEMPORARY RESTRAINING ORDER OR ANY INJUNCTIVE RELIEF A. Standard Preliminary injunctive relief, whether sought through a TRO or a request for preliminary
injunction, “is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). Preliminary injunctions are designed to preserve the relative positions of the parties until a determination of the merits can be reached. See Verhoeven v. Brunswick School Committee, 207 F.3d 1, 3 (1st Cir. 1999).
The burden of proof requires the moving party to demonstrate that: (1) he has a substantial likelihood of success on the merits of his claims; (2) that he will suffer irreparable harm unless the injunction issues; (3) that his harm outweighs any damage to the opposing party; and (4) that the injunction would not be adverse to the public’s interest. See Winter v. NRDC, 555 U.S. 7, 20 (2008); Planned Parenthood League of Mass. v. Bellotti, 641 F.2d 1006, 1009 (1st Cir. 1981). The Supreme Court requires the moving party to demonstrate that the irreparable harm is likely – not t just possible – before a preliminary injunction may issue. Winter, 555 U.S. at 22.
In order to receive a preliminary injunction, Petitioners must demonstrate likely success on the merits of their case. See Esso Standard Oil Co. v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006). If they cannot do so, “the remaining factors ‘become matters of idle curiosity,’…insufficient to carry the weight of this extraordinary relief on their own.” Chambers v. NH Prison, 562 F. Supp. 2d 197, 199 (D. N.H. 2007) (quoting Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 18-19 (1st Cir. 1996)). Importantly, even if this Court finds that Petitioners are likely to succeed on the merits of their claims, “unless [Petitioners] also demonstrate[] [they] will suffer irreparable harm without the requested relief,” a preliminary
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injunction will not issue. Id. (referencing Ross-Simons of Warwick, Inc., 102 F.3d at 19). The two – likelihood of success and irreparable harm – must “must be juxtaposed and weighed in tandem.” Ross-Simons of Warwick, Inc., 102 F.3d at 19.
B. Petitioners Are Unlikely To Succeed On The Merits Of Their Claims Initially, Respondents note that, as discussed above, Petitioners cannot establish a violation of the Eighth Amendment and are, therefore, unlikely to succeed on the merits. Moreover, Petitioners are further unlikely to succeed on the merits because: (1) the conditions in FMC Devens are not as they are portrayed in the Petition; (2) release is unlikely to redress the alleged harm; (3) Petitioners are not entitled to relief that would divest BOP of its discretion to release inmates in appropriate circumstances, and; (4) Petitioners are not entitled to unilaterally truncate judiciallyimposed sentences, which can only be modified by the sentencing court.
1. Petitioners’ Allegations Regarding The Conditions At FMC Devens Are Inaccurate
Petitioners portray the conditions at FMC Devens as particularly dire and that FMC Devens is incapable of preventing the spread of COVID-19. This is simply not an accurate description of the conditions at FMC Devens. As set forth above, in addition to the steps taken at the national level, FMC Devens has also taken a number of additional measures in response to the COVID-19 pandemic, including providing inmate and staff education; conducting inmate and staff screening; putting into place testing, quarantine, and isolation procedures in accordance with BOP policy and CDC guidelines; ordering enhanced cleaning and medical supplies; and taking a number of other preventative measures to include: (a) educating inmates and staff regarding the virus and the BOP’s response, and on measures that they should take to stay healthy; (b) establishing quarantine and isolation units that are physically separated from the housing units; (c) providing separate examination rooms and testing for symptomatic inmates; (d) enhancing screening of staff and
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visitors to FMC Devens; (e) reducing and/or prohibiting prisoner movement; (f) distributing personal protective equipment and sanitizer to staff and inmates, and requiring that masks be worn in FMC Devens; (f) separating inmates by housing unit and floor to shelter in place with the fewest number of inmates; (g) modifying activities and services to provide them in the housing unit, with the fewest number of inmates; and (h) developing extensive cleaning and disinfecting procedures at FMC Devens.
Clearly, BOP is doing its level best to protect inmates against COVID-19 and is prepared to treat those who have contracted it, contrary to the allegations set forth in the Petition. As such, Petitioners are unlikely to succeed on the merits of their claims.
2. Release Is Unlikely To Redress The Alleged Harm The primary relief that Petitioners seek from the BOP – release from custody of a hundreds of FMC Devens inmates (including themselves) – is unlikely to redress the alleged, potential harm that they or the members of the alleged class purportedly suffer: risk of contracting COVID-19. To bring a claim in federal court, a plaintiff must satisfy the requirements for Article III standing: injury, causation, and redressability. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). The redressability requirement limits Article III jurisdiction to those cases in which the relief sought will remedy the injury alleged. See Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000). Although certainty is not required, “the [plaintiff] must demonstrate ‘that it is likely as opposed to merely speculative that the injury will be redressed by a favorable decision of the court.’” Spectrum Five LLC v. FCC, 758 F.3d 254, 260 (D.C. Cir. 2014) (citation omitted). A plaintiff must demonstrate standing (including the redressability element) for each form of relief sought. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). “[I]f a favorable judicial
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decision is unlikely to correct the alleged wrong, there is no case or controversy within the meaning of Article III.” Brookens v. Am. Fed’n of Gov’t Emps., 315 F. Supp. 3d 561, 566 (D.D.C. 2018).
Here, Petitioners’ claims again fail, and they cannot demonstrate a likelihood of success on the merits. Even if this Court had jurisdiction to order the release of prisoners, which it does not, Petitioners cannot show that the immediate release of a substantial number of FMC Devens inmates will actually lessen their risk of contracting COVID-19. It cannot be denied that COVID19 is spreading throughout the nation generally, and specifically within the Commonwealth of Massachusetts. However, not one inmate at FMC Devens has contracted COVID-19. As noted, BOP has taken extensive measures to protect the staff and inmates at FMC Devens, including the ability to come and go from the facility, screening new arrivals for symptoms, taking measures to allow greater social distancing during meals and in groups, and isolating anyone showing symptoms of COVID-19. Unlike many in the community, inmates at FMC Devens do not need to leave the facility to purchase groceries, toiletries, or cleaning supplies. By contrast, Petitioners have not provided any assurances that the places where released inmates would reside, or the lifestyles they would have to maintain upon release, would offer similar protections. For example, while Petitioners complain that they are required to share a living space with a limited number of other inmates, it is not clear that they would not be subject to the same arrangement outside the facility. It is not even clear that all inmates that Petitioners request be released even have a home to go to or the financial resources to provide for themselves; it is likely many would be homeless and without means to support themselves if released as Petitioners request. In such a situation, the risk of contracting COVID-19 is certainly and dramatically increased, and not reduced, if inmates are released from FMC Devens in the middle of a pandemic with no viable means to obtain food, shelter and medical care.
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Under these considerations, Petitioners cannot demonstrate that redress of the alleged harm – contracting coronavirus – is viable; and as such, cannot demonstrate a likelihood of success on the merits of their claims.
3. Petitioners Are Not Entitled To Divest BOP Of Its Discretion To Place Inmates In Home Confinement In Appropriate Circumstances Or To Have The Court Amend Inmates’ Criminal Sentences
Petitioners improperly asks this Court to release inmates from FMC Devens in order to reduce the prison population and to allow for effective social distancing. Unlike the relief that Petitioners seek, there are specific legal avenues for the release or transfer of post-conviction inmates. Those avenues include home confinement and/or compassionate release. Petitioners are not likely to succeed on the merits of their argument that this Court can release inmates from their incarceration by allowing their Petition or request for injunctive relief.
Regarding home confinement, the BOP may place a prisoner in home confinement only for the shorter of 10 percent of the term of imprisonment or 6 months. 18 U.S.C. § 3624(c)(2). Under the CARES Act, signed into law on March 27, 2020, however, “if the Attorney General finds that emergency conditions will materially affect the functioning of the [BOP], the Director of the Bureau may lengthen the maximum amount of time for which the Director is authorized to place a prisoner in home confinement.” Pub. L. No. 116-136, 516 § 12003(b)(2), 134 Stat. 281 (2020). On April 3, 2020, the Attorney General made that finding and authorized the Director of BOP to immediately maximize appropriate transfers to home confinement of all appropriate inmates held at FMC Devens.
Notably, the determination of whether to place a prisoner in home confinement falls solely within the discretion of the BOP and is “not reviewable by any court.” 18 U.S.C. § 3621(b). In deciding whether to place a prisoner in home confinement, the BOP will consider: the inmate’s
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age and vulnerability to COVID-19 per CDC guidelines, the inmate’s conduct in prison including violence and gang activity, the inmate’s recidivism risk, the inmate’s reentry plan, the inmate’s danger to the community. Some offenses, such as sex offenses, will render an inmate ineligible for home confinement. Id. As a result of FMC Devens’ higher population of inmates convicted of sex offenses, many FMC Devens inmates are ineligible for home confinement. Id. Notably, of the three named Petitioners in this case, only Grinis is eligible for home confinement, and has a home confinement date of May 5, 2020. Bourke Decl. ¶ 23.
Regarding compassionate release, neither BOP nor this Court has the authority to provide inmates with “early release.” A reduction of an inmate’s federal sentence can only be accomplished by an Article III judge, and specifically, the inmate’s sentencing judge. However, upon an inmate’s request, the Director of 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). This process is outlined in the U.S. Dep’t of Justice Fed. Bureau of Prisons, Compassionate Release/Reduction In Sentence Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g), Program Statement 5050 (Jan. 17, 2019). Although the BOP is processing these requests as expeditiously as possible, the statute provides the BOP thirty (30) days to evaluate compassionate release requests before any motion may be presented in the sentencing court. 18 U.S.C. § 3582(c)(1)(A). And, the ultimate decision on compassionate release lies with the sentencing judge. Id.
In this case, each of the three named Petitioners was reviewed for a Reduction In Sentence. Bourke Decl. ¶ 7. All of their requests were denied because of failure to meet the established criteria. Id. ¶¶ 7-9. Instead, Petitioners essentially seek to divest the BOP of its statutory and regulatory discretion as to which inmates should be placed in home confinement, and to divest
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sentencing judges of their ability (within the requirements of law) to determine the sentence of individuals convicted in their courts. Petitioners should not be granted such sweeping and unprecedented relief when existing administrative and statutory proceedings are available to grant them the relief that they seek, if appropriate, or to circumvent the decisions made on the merits of their requests.
For these reasons, Petitioners have not shown that they are likely to succeed on the merits of their claim.
C. Petitioners Fail To Establish Imminent Irreparable Harm Petitioners cannot show irreparable harm such that an injunction or TRO should issue. To the contrary, as discussed above, the BOP has taken significant steps to ensure the health and safety of inmates, and the minimization of risk of exposure to all inmates and staff. The BOP also has instituted necessary precautions and procedures to ensure that any inmates who become ill will be well-cared for. Here, Petitioners allege merely the possibility of contracting COVID-19 as the basis for the injunctive relief they seek from this Court. “Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with [the Supreme Court’s] characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. “A showing of irreparable harm requires an actual, viable, presently existing threat of serious harm that cannot adequately be remedied through money damages alone.” Corporate Technologies, Inc. v. Harnett, 943 F.Supp.2d 233, 242 (D. Mass. 2013) (case citations omitted). Accordingly, Petitioners claims once again fail. As discussed above, Petitioners fail to take into account the myriad protections which have been put in place to prevent the introduction and
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spread of infection within FMC Devens, and to reduce the risk that persons with COVID-19 enter FMC Devens in the first place. Moreover, Petitioners fail to address in any meaningful way how, if released, they will be safer from the risk of infection or have access to adequate care if infected. Every person in the United States, whether in a prison or not, faces the risk of COVID-19 exposure. See United States v. Steward, No. S1:20-cr-0052 (DCL), 2020 WL 1468005, at * 1(S.D.N.Y. Mar. 25, 2020) (“there is also no reason to find that the defendant’s release would lessen the risk to his health presented by COVID-19); United States v. Taylor, No. 5:19-CR-192-KKC-MAS, 2020 WL 1501997, at *5 (E.D. Ky. Mar. 26, 2020) (“there is little reason to believe that [Petitioner] would be more at risk if detained versus being released”). Thus, Petitioners are far from showing irreparable harm in this case.
Further, Petitioners have alternative methods for relief available to them, other than seeking a temporary restraining order, to secure early release. See, e.g., 18 U.S.C. § 3582 (compassionate release); 18 U.S.C. § 3624(c) (prerelease custody/home confinement). As such, Petitioners have not shown irreparable harm and the inability to show irreparable harm presents an independent basis for denying their requested emergency relief.
D. Granting Petitioners’ Requested Relief Would Cause Substantial Harm To Others Petitioners demand a dramatic remedy that would have a profound effect on hundreds of inmates, as well as to the general public: the immediate release of a substantial portion of convicted inmates at FMC Devens. Petitioners do not allege that they have appropriate release plans, or that they would have a place to go, but even if they did, Petitioners provide no assurance that all of the released inmates have similar conditions, or that they will be able to provide for their own food and medical care needs, or to protect themselves any better against the spread of COVID19. More importantly, Petitioners do not (and cannot) provide any assurance regarding the
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hundreds of other inmates who would find themselves immediately released. Indeed, it is quite likely that the sudden removal of so many inmates would leave some of them 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. The public would be placed at risk by release of criminally convicted inmates, without a release plan or conditions of release. Thus, Petitioners requested relief would cause substantial harm to themselves and others and therefore should be denied.
E. Public Health And Safety Would Not Be Served By Granting The Requested Relief The public’s interest is not served by short-circuiting the existing administrative and judicial processes that are designed to carefully weigh freeing the incarcerated and convicted individuals at issue from custody against the risk to public safety in doing so. The risk of danger to the public in granting Petitioners relief and requiring the immediate release of hundreds of inmates who have been convicted and sentenced for a myriad of crimes, outweighs the alleged need for expediency here. The BOP will make a determination as to which inmates are entitled to home confinement (see, e.g., Attorney General’s Memoranda, Exhibits C and D), or the other judicial avenues available to convicted prisoners. Further, the government’s interest in public safety extends to protecting the public from the risk of the spread of COVID-19 and recidivism by released inmates. Indeed, the Attorney General makes clear that such release should be done in a manner that balances the safety considerations for all involved. See Exhibits C, D. The Attorney General recognizes that there is “an obligation to protect the public.” This means that BOP “cannot simply release prison populations en masse onto the streets.” Such a release “would pose profound risks to the public from released prisoners engaging in additional criminal activity, potentially including violence or heinous sex offenses.” Id. Our over-burdened police and safety services should not be forced to
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deal with the “indiscriminate release of thousands of prisoners onto the streets without any verification that those prisoners will follow the laws when they are released, that they will have a safe place to go where they will not be mingling with their former criminal associates, and that they will not return to their former ways as soon as they walk through the prison gates.” These weighty considerations cannot be adequately addressed by the Court granting Petitioners’ proposed relief of immediately releasing hundreds of inmates. Clearly, Petitioners have not shown that the balance of hardships and public interest tips in their favor.
III. PETITIONERS HAVE NOT PROVIDED A SUFFICIENT BASIS FOR CLASS CERTIFICATION, AND CLASS-WIDE RELIEF WOULD LIKELY HARM MANY INMATES Petitioners purport to bring the action as a class action on behalf of themselves and “all
current and future people in post-conviction custody at FMC Devens.” The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). To certify a class under Fed. R. Civ. P. 23, a plaintiff must show that the proposed class satisfies all four requirements of Fed R. Civ. P. 23(a) and one of the three Fed. R. Civ. P. 23(b) requirements. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). As discussed below, class certification is inappropriate in this case; see also Abla v. Brinker Rest. Corp., 279 F.R.D. 51, 55 (D. Mass. 2011) (quoting In re Relafen Antitrust Litig., 218 F.R.D. 337, 341 (D. Mass. 2003)).
Petitioners fall short. They claim to satisfy the numerosity requirement only by lumping together “all current and future people in post-conviction custody at FMC Devens...” For purposes of this filing only, the BOP does not challenge the numerosity requirement under Rule 23(a). So construed, however, the class cannot satisfy the remaining elements.
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A class action may not be certified unless “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). This means Petitioners are required “to demonstrate that the class members have suffered the same injury.” Dukes, 564 U.S. at 350. The Supreme Court has cautioned that the language of Rule 23(a)(2) “is easy to misread, since ‘[a]ny competently crafted class complaint literally raises common ‘questions.’” Id. at 349 (citations omitted). The “claims must depend upon a common contention … of such a nature that it is capable of classwide resolution.” Id. at 350. Determination of whether the contention is true or false must “resolve an issue that is central to the validity of each one of the claims in one stroke.” Id.; see also id. at 352 (requiring “some glue holding the alleged reasons for all those [challenged] decisions together”).
In Money, 2020 WL 1820660, the district court denied class action certification in identical circumstances to the case sub judice. The district court explained that public interest “mandates individualized consideration of any inmate’s suitability for release and on what conditions, for the safety of the inmate, the inmate’s family, and the public at large. Id. at *14. This is because “[e]ach putative class member comes with a unique situation – different crimes, sentences, outdates, disciplinary histories, age, medical history, places of incarceration, proximity to infected inmates, availability of a home landing spot, likelihood of transmitting the virus to someone at home detention, likelihood of violation or recidivism, and danger to the community.” Id. at *15. The district court ruled that this resulted in a lack of commonality because the only matter “apt to drive the resolution of the litigation” was which inmates should be released. Id. at *14 (quoting Dukes, 564 U.S. at 350.)
Here, the identical problem exists. Petitioners’ proposed class would combine inmates that have different crimes, sentences, outdates, disciplinary histories, ages, medical histories, proximities to infected inmates, availabilities of a home landing spot, likelihoods of transmitting
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the virus to someone at home detention, likelihoods of violation or recidivism, and dangers to the community. Moreover, class members likely have different means to provide for themselves upon release and different access to medical care upon release. Petitioners even lump together inmates who are currently sick with COVID-19 with asymptomatic inmates and inmates who might have previously been sick and made a full recovery. There simply is no commonality and typicality among proposed class member other than the fact or their incarceration at FMC Devens.
Further, Petitioners cannot show adequacy of representation. The “adequacy of representation element requires that [Petitioners] demonstrate that [their] interests will not conflict with those of the class members and that [their] counsel is qualified, experienced, and able to vigorously conduct the proposed litigation.” Payne v. Goodyear Tire & Rubber Co., 216 F.R.D. 21 (D. Mass. 2003) (citing Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 1985)). Here, again, Petitioners fail. As set forth above, Petitioners do not have an identical interest, and in fact are ineligible for release, thus presenting conflicting interests. Furthermore, Petitioners here demand a dramatic remedy that would have a profound effect on members of the class: the immediate release and removal of a substantial portion of the population at FMC Devens. Even if Petitioners purport to have homes that they could go to upon release, they provide no assurances that other class members (including those that would have to be released to effectuate their requested injunction) are similarly situated. Indeed, it is quite likely that the sudden removal of so many inmates would leave some of them 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. Accordingly, this Court must deny class certification.
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CONCLUSION The BOP is taking significant and ongoing steps to prevent the spread of COVID-19 in FMC Devens and to provide medical care and treatment for inmates who do become infected. The BOP and FMC Devens have taken the COVID-19 pandemic extremely seriously and have implemented numerous measures to proactively combat the spread of this disease to staff members and the inmate population. Shaw Decl. ¶ 66. The various phases of BOP’s Action Plan have been designed and implemented in a systemic manner both nationally and at FMC Devens in order to mitigate the spread of COVID-19. Id. The BOP and FMC Devens remain flexible in their ability to receive guidance from the CDC and other health organizations and to modify their actions to best respond to this pandemic, according to the quickly shifting needs on the ground. Shaw Decl. ¶ 68. For these reasons, and for those that may be argued orally, Petitioners cannot demonstrate that the BOP, or FMC Devens, has acted with deliberate indifference and their constitutional claims under the Eighth Amendment must fail. Moreover, the release of hundreds of prisoners by this Court is neither permitted by law, nor would it serve the health and safety of the inmates or the general public. Therefore, this Court must deny the Petition for Writ of Habeas Corpus, deny class certification in this case, and deny Petitioners’ motions for a temporary restraining order, injunctive relief and declaratory judgment.
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Dated: April 23, 2020

Respectfully submitted,
ANDREW E. LELLING United States Attorney
By: /s/ Eve A. Piemonte Eve A. Piemonte Assistant United States Attorney United States Attorney’s Office John J. Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3369 Eve.Piemonte@usdoj.gov

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 Case 1:20-cv-10738-GAO Document 40 Filed 04/30/20 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,
Petitioners, v.
STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,
Respondents.

No. 20-cv-10738-GAO

NOTICE OF SUPPLEMENTAL AUTHORITIES AND INFORMATION
Petitioners submit this Notice to bring several recent court decisions and other
developments to this Court’s attention.
First, in Rivas v. Jennings, No. 20-cv-02731-VC (N.D. Cal. April 29, 2020), D.E. 53
(attached as Exhibit 1), a case concerning ICE detainees, the court provisionally certified a class
and entered a TRO. The Court found an “an exceedingly strong likelihood” that petitioners will
prevail on the claim that respondents exhibit deliberate indifference “by unreasonably exposing
[detainees] to a significant risk of harm.” Id. at 3.
There is no need to repeat a discussion of the “tinderbox” risk of the virus spreading in crowded detention facilities. Nor is there need to recount the health risks posed by the virus—not just for people in high-risk categories but for healthy people as well. . . .
[I]t is undisputed that the agency has not come close to achieving social distancing for most detainees—for example, people are still sleeping in barracks-style dorms within arms-reach of one another. . . . . For similar reasons, the plaintiffs have demonstrated a strong likelihood of irreparable harm to the class. Although ICE notes it has discovered no case of COVID-19 at the facilities, this is not especially comforting given that only 2 detainees have been tested.
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. . . . The public interest and the balance of hardships also counsels in favor of emergency relief to initiate the process of mitigating health risks at the facilities. The conditions of confinement do not merely threaten detainees; they also threaten facility staff, not to mention the greater community whose health is put at risk by the congregation of large groups in cramped spaces.
Id. at 3-5. The court ordered respondents
to provide the Court and class counsel with information and records regarding each detainee at the facilities. This includes names, ages, any health vulnerabilities, and any criminal [history] information. . . . The purpose of this order is to enable the Court to implement a system for considering individual bail applications, modeled after a system created and successfully implemented by Judge Young in the District of Massachusetts.
Id. at 5. The court anticipated processing the bail applications within approximately two weeks.
See id. at 1. Responding to an objection that producing such information would be
“burdensome,” the court stated:
The fact that ICE does not have such a list at the ready, six weeks after Governor Newsom shut down the entire state and one week after this lawsuit was filed, speaks volumes about where the safety of the people at these facilities falls on ICE’s list of priorities.
Id. at 4.
Second, additional evidence has emerged that the BOP’s ongoing failure to test prisoners
in substantial numbers, and instead simply assuming that a COVID-19 outbreak is limited in
scope, is evidence of deliberate indifference. Respondents here have not revealed how many
FMC Devens prisoners, if any, have been tested since the first confirmed case was identified on
April 22. Meanwhile, new data from both BOP and Massachusetts Department of Correction
(“DOC”) illustrate what comes to light when broader testing is actually conducted.
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There are now 2,041 confirmed “open” COVID-19 cases among prisoners and staff across BOP, with 33 prisoner deaths.1 Of approximately 2,700 tests administered across BOP, more than 70 percent—over 2,000—have come back positive.2 Mass testing at FCI Terminal Island has now uncovered 600 cases—more than half of all prisoners in the facility—among inmates and staff as of April 29, compared with only 9 confirmed cases on April 15, when Petitioners commenced this action. Confirmed cases at FMC Fort Worth have grown to 337, an increase of 105 since Monday.
Here in Massachusetts, in late March, after the first three prisoner COVID-19 cases were reported in the DOC, undersigned counsel from the ACLU and others initiated a state lawsuit.3
1 See https://www.bop.gov/coronavirus/ (last visited Apr. 30, 2020). This total apparently does not included the 558 inmates and staff whose cases are not counted as “open” because they have “recovered.” 2 See Michael Balsamo, “Over 70% of tested inmates in federal prisons have COVID-19,” Associated Press (Apr. 30, 2020), available at https://apnews.com/fb43e3ebc447355a4f71e3563dbdca4f. 3 See Emergency Petition at 3, Committee for Public Counsel Services v. Chief Justice of the Trial Court, SJC-12926 (Mass. docketed Mar. 26, 2020), at https://www.mass.gov/doc/sjc12926-emergency-petition-under-g-l-c-211-ss-3/download.
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Much as the BOP has done here, the DOC responded by asserting that it had taken extensive measures concerning prisoner education, hygiene, social distancing, and quarantine.4 And, as here, those measures did not include substantially reducing prison populations. Yet more prisoners became infected, in numbers that remained largely hidden until recently, when more were tested; aggregate prisoner tests increased from 296 on April 22 to 747 by April 29. And the results have been striking; during that six-day period, the number of DOC prisoners diagnosed with COVID-19 more than doubled, from 127 to 257.5
The unavoidable conclusion from this new data is that there are likely many more active cases than current aggregate or individual facility numbers reveal due to lack of testing. And even if a facility like FMC Devens does not yet have multiple cases, a raging outbreak can emerge in a matter of days.
4 See Response of the Attorney General and Others at 10-14, Committee for Public Counsel Services v. Chief Justice of the Trial Court, SJC-12926 (Mass. docketed Mar. 30 2020), at https://www.mass.gov/doc/sjc-12926-response-of-the-attorney-general-others/download. 5 Undersigned counsel from the ACLU of Massachusetts are compiling data from the Massachusetts DOC and the Massachusetts sheriffs at https://data.aclum.org/sjc-12926-tracker/.
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Third, because Respondents imply that BOP’s testing protocols are informed by state and local health departments, as the CDC recommends, see Resp. at 11, it is relevant that Massachusetts has now “implemented required testing for staff and residents of nursing facilities.”6 As of April 27, 2020, nursing home facilities “will be required to test all staff and residents” to be eligible for additional state funding.7 As Governor Charlie Baker explained at the press conference announcing this policy, “[o]nce COVID-19 gets into a facility, it spreads rapidly and in many cases can be undetected for days” which “requires everyone to be more vigilant.”8 Here, that same reasoning “suggests that a similar approach would be necessary to understand the size of the COVID-19 infection rate at FMC Devens.” Declaration of Professor Lauren Brinkley-Rubinstein at ¶ 21 (April 26, 2020) [D.E. 38-1]. Without such testing, it remains impossible to know how many prisoners and staff are actually infected with COVID-19. See id. at ¶ 13; see also Supplemental Declaration of Dr. Joe Goldenson at ¶ 10 (Apr. 26, 2020) [D.E. 38-7].
Fourth, additional information has emerged highlighting the unnecessary and dangerous delays caused by the BOP’s ever-shifting criteria for transfers to home confinement, which have the effect of disqualifying many prisoners, even though such criteria are not mandated by any
6 Press Release, Baker-Polito Administration Announces Further Support, Resources, and Accountability Measures for Nursing Facilities, Funding for Congregate Care Facilities During COVID-19 (April 27, 2020), https://www.mass.gov/news/baker-polito-administrationannounces-further-support-resources-and-accountability-measures. 7 COVID-19 Nursing Facility Accountability and Support (April 27, 2020) (emphasis in original), attached as Exhibit 2. 8 Robert Weisman, State to Send Another $130 Million in Emergency Aid to Long-Term Care Sites, Boston Globe (Apr. 27, 2020), available at https://www.bostonglobe.com/2020/04/27/metro/state-send-another-130-million-emergency-aidlong-term-care-sites/.
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statute, regulation, or Justice Department directive. In United States v. Park, No. 16-cr-473 (S.D.N.Y. Apr. 24, 2020), the court granted – over the government’s objection – immediate compassionate release from FCI Danbury to Ms. Haena Park.9 As the Warden of FCI Danbury explained, within less than two weeks the BOP’s Correctional Programs Division had twice “revised the criteria which must be met in order for an inmate to be referred to home confinement.” Park, Declaration of Warden Diane Easter at ¶¶ 4-5 (Apr. 23, 2020) [D.E. 69-1].10 Concluding that the “ever-changing guidelines” meant “the Court cannot be assured that Ms. Park will indeed be released on April 30, as is currently being represented,” the court ordered her immediate release because “[w]e are living in novel and dangerous times” where “[e]very day— indeed, every minute—may count.”
No less than failing to evacuate in case of a fire, the BOP’s refusal to protect vulnerable prisoners from COVID-19 by rapidly reducing the population at FMC Devens constitutes deliberate indifference and necessitates immediate judicial intervention.
9 The decision ordering immediate compassionate release in Park is attached as Exhibit 3. See Dean Seal, Fraudster Freed as Judge Slams ‘Ever-Changing’ DOJ Advice, Law360 (Apr. 27, 2020), available at https://www.law360.com/whitecollar/articles/1267453/fraudster-freed-asjudge-slams-ever-changing-doj-advice?nl_pk=253efe11-0d6b-4833-b6a6cd93c8d69b59&utm_source=newsletter&utm_medium=email&utm_campaign=whitecollar. 10 The declaration of FCI Danbury Warden Easter is attached as Exhibit 4.
6

Case 1:20-cv-10738-GAO Document 40 Filed 04/30/20 Page 7 of 7

Respectfully submitted,

ALEXANDER GRINIS, MICHAEL GORDON, ANGEL SOLIZ, and others similarly situated,

By their attorneys,

/s/ William W. Fick William W. Fick, BBO# 650562 Daniel N. Marx, BBO# 674523 Amy Barsky, BBO# 601111 FICK & MARX LLP 24 Federal Street, 4th Floor Boston, MA 02210 857-321-8360 wfick@fickmarx.com dmarx@fickmarx.com abarsky@fickmarx.com

Matthew R. Segal, BBO# 654489 Jessie Rossman, BBO# 670685 ACLU FOUNDATION OF MASSACHUSETTS, INC. 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org jrossman@aclum.org

CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on April 30, 2020.
/s/ William Fick

7

 
 Case 1:20-cv-10738-GAO Document 41 Filed 05/04/20 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,
Petitioners, v.
STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,
Respondents.

No. 20-cv-10738-GAO

SECOND NOTICE OF SUPPLEMENTAL AUTHORITIES AND INFORMATION
Petitioners submit this Notice to bring recent court decisions and other developments to
this Court’s attention.
First, a member of the proposed class at FMC Devens has died of COVID-19.
Undersigned counsel learned of this development from a press release that the BOP posted on its
public website:
On April 7, 2020, inmate Darrel Underhill went to the outside hospital for a radical nephrectomy for renal cancer. On April 10, 2020, Mr. Underhill returned to the Federal Medical Center (FMC) Devens, in Ayer, Massachusetts, and was placed in quarantine status. On April 22, 2020, he developed a fever and was sent to the outside hospital where he tested positive for COVID-19; he returned to the institution the next day.
On Monday, May 4, 2020, Mr. Underhill, who was receiving hospice care in the Skilled Nursing Unit at FMC Devens, and had long-term, pre-existing medical conditions which the CDC lists as risk factors for developing more severe COVID-19 disease, was pronounced dead by FMC Devens hospital staff.
Mr. Underhill was a 76 year-old male who was sentenced in the District of New Jersey to a 121-month sentence for Distribution of

1

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Child Pornography. He had been in custody at FMC Devens since April 26, 2018.1

Respondents still have not revealed how many FMC Devens prisoners, if any, have been tested

since the first confirmed case was identified on April 22. Thus, it is impossible to know how

many other elderly and/or medically vulnerable prisoners, like Underhill, may be at imminent

risk of serious illness and death from COVID-19.

Second, there are now 2,340 confirmed “open” COVID-19 cases among prisoners and staff across 51 BOP facilities, with 40 prisoner deaths.2 Confirmed cases at FMC Fort Worth

have grown to 458, with 4 deaths. Meanwhile, the total population of FMC Devens remains

nearly static, despite Attorney General Barr’s admonition over a month ago that “time is of the

essence” in reducing prisoner populations by arranging prompt transfers to home confinement.

Date

Camp FMC

April 9 108

914

April 16 108

906

April 23 106

905

April 30 105

902

Third, today, the Sixth Circuit refused to stay the preliminary injunctive relief ordered in

Wilson v. Williams, No. 4:20-cv-00794, 2020 U.S. Dist. LEXIS 70674, at *25 (N.D. Ohio Apr.

22, 2020) (ordering emergency transfers to reduce the population of FCI Elkton). See Wilson v.

Williams, No. 20-3447 (6th Cir. May 4, 2020) (attached as Exhibit A). Of particular note, the

1 Federal Bureau of Prisons Press Release (May 4, 2020), available at https://www.bop.gov/resources/news/pdfs/20200504_press_release_dev.pdf.
2 See https://www.bop.gov/coronavirus/ (last visited May 4, 2020). As explained in prior filings, this total apparently does not include the 692 inmates and staff whose cases are not counted as “open” because they have “recovered,” nor does it appear to include the prisoners who have died (BOP now lists “zero” open cases at FMC Devens in the wake of the death noted above).
2

Case 1:20-cv-10738-GAO Document 41 Filed 05/04/20 Page 3 of 4
Sixth Circuit found that the case was properly brought as a habeas petition, to which the PLRA
does not apply:
Petitioners seek release for the subclass not because the conditions of their confinement fail to prevent irreparable constitutional injury at Elkton, but based on the fact of their confinement. Where a petitioner claims no set of conditions would be constitutionally sufficient, we construe the petitioner’s claim as challenging the fact of the confinement . . . . Petitioners’ proper invocation of § 2241 also forecloses any argument that the PLRA applies given its express exclusion of “habeas corpus proceedings challenging the fact or duration of confinement in prison” from its ambit. 18 U.S.C. § 3626(g)(2).
Wilson, supra, at 3 (internal citations omitted). With regard to the Eighth Amendment claim, the
Sixth Circuit explained:
The district court found that Elkton’s dorm-style structure rendered it unable to implement or enforce social distancing. The COVID19 virus, now a pandemic, is highly contagious, and can be transmitted by asymptomatic but infected individuals. Older individuals or those who have certain underlying medical conditions are more likely to experience complications requiring significant medical intervention, and are more likely to die. . . . . While the district court’s findings are based on a limited evidentiary record, its “account of the evidence is plausible in light of the record viewed in its entirety.”
Id. at 4 (internal citation omitted).
Fourth, today, in Gomes v. Acting Secretary, U.S Department of Homeland Security, No.
20-cv-00453-LM (D.N.H. May 4, 2020), the District Court orally granted a motion to conduct
emergency bail hearings for ICE detainees based on the threat of COVID-19 and provisionally
certified a class, as the court has done in Savino v. Hodgson, No. 20-cv-10644-WGY, 2020 U.S.
Dist. LEXIS 61775, at *28 (D. Mass. Apr. 8, 2020).
At this juncture, the court will provisionally certify the class for the purpose of holding expedited bail hearings—a form of preliminary and emergency relief in the context of this case.
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Case 1:20-cv-10738-GAO Document 41 Filed 05/04/20 Page 4 of 4

. . . Petitioners claim that respondents have subjected the putative class to the same injury: policies and practices (or the lack thereof) that put their health at substantial risk of harm by inhibiting their ability to practice social distancing during the COVID-19 pandemic. Petitioners’ deliberate indifference claim thus presents at least two common questions: whether each respondent had actual knowledge of the impending harm or risk posed to the putative class by COVID-19; and whether each respondent failed to take steps that would have easily prevented the harm to detainees.
Gomes, supra, D.E. 50 at 3, 7.

Respectfully submitted,

ALEXANDER GRINIS, MICHAEL GORDON, ANGEL SOLIZ, and others similarly situated,

By their attorneys,

/s/ William W. Fick William W. Fick, BBO# 650562 Daniel N. Marx, BBO# 674523 Amy Barsky, BBO# 601111 FICK & MARX LLP 24 Federal Street, 4th Floor Boston, MA 02210 857-321-8360 wfick@fickmarx.com dmarx@fickmarx.com abarsky@fickmarx.com

Matthew R. Segal, BBO# 654489 Jessie Rossman, BBO# 670685 ACLU FOUNDATION OF MASSACHUSETTS, INC. 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org jrossman@aclum.org

CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on May 4, 2020.
/s/ William Fick

4

 
 Case 1:20-cv-10738-GAO Document 43 Filed 05/07/20 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,

Petitioners, v.

Civil Action No. 20-cv-10738-GAO

STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,

Respondents.

RESPONDENTS’ NOTICE OF SUPPLEMENTAL AUTHORITY

Respondents in the above-captioned action respectfully submit the following court of

appeals decisions as supplemental persuasive authority for this Court’s consideration of the

pending motions now before this Court:

1. Swain v. Junior, -- F.3d --, 2020 WL 2161317 (11th Cir. May 5, 2020), attached hereto as Exhibit A.

In Swain, the plaintiffs sought declaratory and injunctive relief on behalf of the class

claiming violations of the Eighth and Fourteenth Amendments, and seeking immediate release

from custody pursuant to 28 U.S.C. § 2241. The plaintiffs challenged measures taken by the state

prison to halt the spread of COVID-19. The district court granted a preliminary injunction,

required defendants to take certain safety measures, and imposed reporting requirements on the

prison. The defendants moved for a stay pending appeal.

The Eleventh Circuit court granted defendants’ motion for a stay, finding that the district

court likely committed error in granting a preliminary injunction. The court analyzed many of the

Case 1:20-cv-10738-GAO Document 43 Filed 05/07/20 Page 2 of 2

same issues now before this Court, including: likelihood of success on the merits of plaintiffs’ Eighth Amendment claim, and, specifically, what constitutes “deliberate indifference;” discussed the court’s assumption of administrative decisions customarily left to the discretion of prison officials; and reviewed exhaustion under the Prison Litigation Reform Act (“PLRA”).
2. Valentine v. Collier, -- F.3d --, 2020 WL 1934431 (Apr. 22, 2020), attached hereto as Exhibit B.
Plaintiffs brought a class action alleging Eighth Amendment violations and challenging the measures the state prison system put in place to prevent the spread of COVID-19. The district court granted the plaintiffs’ motion for preliminary injunction and required the defendants to take specific measures. Defendants appealed.
The Fifth Circuit entered a stay of the injunction pending appeal, found that defendants were likely to prevail on appeal, and analyzed the measures the prison took under the Eighth Amendment, and the standard for “deliberate indifference;” discussed the court’s assumption of administrative decisions left to the discretion of prison officials; and reviewed the PLRA’s exhaustion requirement, and the permissible scope of a remedial injunction under the PLRA.
Respectfully submitted, ANDREW E. LELLING United States Attorney

Dated: May 7, 2020

By: /s/ Eve A. Piemonte Eve A. Piemonte Assistant United States Attorney United States Attorney’s Office John J. Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3369 Eve.Piemonte@usdoj.gov

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 Case 1:20-cv-10738-GAO Document 45 Filed 05/08/20 Page 1 of 6
UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CIVIL ACTION NO. 20-10738-GAO
ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated, Petitioners, v.
STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons,
in their official capacities, Respondents.
OPINION AND ORDER May 8, 2020
O’TOOLE, S.D.J. The petitioners, Alexander Grinis, Michael Gordon and Angel Soliz, inmates now in
custody at Federal Medical Center Devens (“FMC Devens”), bring what they characterize as a class action habeas petition pursuant to 28 U.S.C. § 2241 against respondents Stephen Spaulding, Warden at FMC Devens, and Michael Carvajal, Director of the Bureau of Prisons (“BOP”). The petitioners seek to represent: “(1) a subclass of all persons who, according to applicable CDC guidelines, are at high risk of injury or death from COVID-19, due to their advanced age or medical condition(s) (‘Medically Vulnerable Subclass’), and (2) a subclass of all persons who are appropriate candidates for early transfer to home confinement (‘Home Confinement Appropriate Subclass’).” (Pet. for Writ of Habeas Corpus Under § 28 U.S.C. 2241 & Compl. for Injunctive & Declaratory Relief ¶ 105 (dkt. no. 1).) The petitioners allege that their detention is in violation of the Eighth Amendment to the United States Constitution because of the threat of infection by the

Case 1:20-cv-10738-GAO Document 45 Filed 05/08/20 Page 2 of 6
virus COVID-19. Pending before this Court is the petitioners’ Motion for Immediate Bail Consideration, Temporary Restraining Order, and Preliminary Injunctive Relief (dkt. no. 3).
The petitioners request an order of this Court “releas[ing] sufficient Class Members on bail to ensure effective social distancing at FMC Devens in compliance with CDC guidelines.” (Mot. for Immediate Bail Consideration, TRO, & Prelim. Inj. Relief 1 (dkt. no. 3).) They also seek “a temporary restraining order or preliminary injunction ordering Respondents to comply with CDC guidelines and best practices to prevent the spread of COVID-19, including, without limitation, by reducing the prisoner population at FMC Devens sufficiently to permit effective social distancing.” (Id. at 2.) The Court heard oral argument from both the petitioners and the respondents.
Separately the petitioners filed a Motion for Class Certification or Representative Habeas Action (dkt. no. 5). The parties have briefed but have not yet been heard in argument on that motion.
A “district court determines whether to issue a preliminary injunction by weighing four factors: ‘(1) the likelihood of success on the merits; (2) the potential for irreparable harm if the injunction is denied; (3) the balance of relevant impositions, i.e., the hardship to the nonmovant if enjoined as contrasted with the hardship to the movant if no injunction issues; and (4) the effect (if any) of the court’s ruling on the public interest.’” Bl(a)ck Tea Soc’y v. City of Boston, 378 F.3d 8, 11 (1st Cir. 2004) (quoting Charlesbank Equity Fund II v. Blinds to Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004)); see also Ross–Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15 (1st Cir. 1996)). “The sine qua non of this four-part inquiry is likelihood of success on the merits.” New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002). “[I]f the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity.” Id. (citing Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir. 1993)).
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The petitioners have not demonstrated that they have a likelihood of prevailing on the merits of their pleaded claims.1
There is a substantial question whether the relief the petitioners seek is properly sought by means of a habeas petition under § 2241. The petitioners claim they are held “in custody in violation of the Constitution . . . of the United States,” 28 U.S.C. § 2241(c)(3), because maintaining them in custody at FMC Devens seriously endangers their health and thus amounts to cruel and unusual punishment in violation of the Eighth Amendment to the Constitution. The respondents argue that the lawfulness of the fact or nature of the petitioners’ custody is not put in question by the complaint; there is no complaint against the lawfulness of their convictions or the sentences imposed. Rather, the respondents characterize the petitioners’ claims as relating to “prison conditions,” in particular a species of overcrowding, and that accordingly their remedy should be sought by a civil rights complaint under the doctrine of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1999).2
It is not necessary to resolve that dispute for now, because the petitioners have a more fundamental problem. They have not demonstrated a likelihood of success on their underlying theory of liability: that by failing to release a significant number of inmates as they demand, the
1 In addition to asserting a habeas claim, the petitioners also assert claims for declaratory judgment and injunctive relief under the All Writs Act. 28 U.S.C. § 1651. 2 There is the further complication that there may be statutory prerequisites to the release relief sought by the petitioners that might be avoided in a habeas action, and thus counsel against proceeding under that rubric. See, e.g., 18 U.S.C. § 3626(a)(3)(A)(i) (prisoner release order may not be issued unless “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”). There is also a question of which judicial authority has jurisdiction to issue such an order. A “prisoner release order” may only be ordered by a three-judge court specially constituted. Id. § 3626(a)(3)(B). A “compassionate release” order altering the sentence of a convicted felon apparently may only be entered by the sentencing judge. Id. § 3582(c).
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respondents have subjected them to cruel and unusual punishment in violation of the Eighth Amendment.
To succeed on such a claim, the petitioners “must satisfy both a subjective and objective inquiry: [Petitioners] must show first, ‘that prison officials possessed a sufficiently culpable state of mind, namely one of “deliberate indifference” to an inmate’s health or safety,’ and second, that the deprivation alleged was ‘objectively, sufficiently serious.’” Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484, 497 (1st Cir. 2011) (quoting Burrell v. Hampshire Cnty., 307 F.3d 1, 8 (1st Cir. 2002)). Prison officials may exhibit “deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). But “deliberate indifference” requires evidence of more than poor judgment or what the law regards as “ordinary negligence.” It entails conduct (or an absence of conduct) amounting to “a wanton disregard” of a prisoner’s needs, Battista v. Clarke, 645 F.3d 449, 453 (1st Cir. 2011), where a prison official’s action amounts to a “recklessness, ‘not in the tort law sense but in the appreciably stricter criminal-law sense, requiring actual knowledge of impending harm, easily preventable.’” Watson v. Caton, 984 F.2d 537, 540 (1st Cir. 1993) (quoting DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir. 1991)).
Both the BOP and FMC Devens have made significant changes in operations in response to COVID-19. The respondents’ papers outline the steps taken by them at both the national and institutional levels. The measures taken at FMC Devens have included:
providing inmate and staff education; conducting inmate and staff screening; putting into place testing, quarantine, and isolation procedures in accordance with BOP policy and CDC guidelines; ordering enhanced cleaning and medical supplies; and taking a number of other preventative measures to include: (a) educating inmates and staff regarding the virus and the BOP’s response, and on measures that they should take to stay healthy; (b) establishing quarantine and isolation units that are physically separated from the housing units; (c) providing separate examination rooms and testing for symptomatic inmates; (d) enhancing screening of staff and visitors to FMC Devens; (e) reducing and/or prohibiting prisoner movement; (f) distributing personal protective equipment and sanitizer to staff and inmates, and
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requiring that masks be worn in FMC Devens; (f) separating inmates by housing unit and floor to shelter in place with the fewest number of inmates; (g) modifying activities and services to provide them in the housing unit, with the fewest number of inmates; and (h) developing extensive cleaning and disinfecting procedures at FMC Devens. (Resp’ts’ Omnibus Resp. to Pet. for Writ of Habeas Corpus & Opp’n to Pet’rs’ Mot. for Immediate Bail & Injunctive & Declaratory Relief 46–47) (dkt. no. 32).) The government reported at the hearing on the present motion that to that point in time only one inmate at FMC Devens had been diagnosed with the COVID-19 virus, out of a population of approximately one thousand. Data from the BOP website indicates no additional cases identified at FMC Devens since then. BOP: COVID-19 Update, Federal BOP (May 8, 2020, 4:00 PM), http://www.bop.gov/coronavirus/. These affirmative steps may or may not be the best possible response to the threat of COVID-19 within the institution, but they undermine an argument that the respondents have been actionably deliberately indifferent to the health risks of inmates. The Attorney General has instructed BOP facilities to transfer appropriate qualifying inmates from institutional incarceration to home confinement pursuant to the recently enacted “CARES Act,” P.L. 116-136, 134 Stat. 281 (Mar. 27, 2020). Indeed, the Court was informed at the hearing on the present motion that FMC Devens was preparing to transfer petitioner Grinis to home confinement in early May, but that he had objected to one of the steps in the process, completion of a fourteen-day quarantine period. It is not clear what his status is now. Unlike petitioner Grinis, however, petitioners Gordon and Soliz are serving lengthy sentences for serious drug offenses. They have not shown that it is likely that they would qualify for transfer from incarceration to home confinement under the current BOP eligibility requirement, and therefore they have not shown that they personally have a likelihood of success in obtaining the relief prayed for in their petition.
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Finally, the petitioners’ request to be admitted to bail also lacks merit. While a district court may have “inherent power” to release a habeas petitioner pending determination of the merits of the petition, see Woodcock v. Donnelly, 470 F.2d 93, 94 (1st Cir. 1972), a bail decision is a highly particularized one, involving detailed consideration of factors such as the nature and circumstances of the offense of conviction, the history and characteristics of the petitioner, and the nature or seriousness of any danger to the community from the release of the prisoner. See 18 U.S.C. § 3142(g). The petitioners do not address such considerations, instead basing their request for bail on the circumstances of their confinement alone, rather than on the particular factors as applied to each of them. So even if this action is properly characterized as a habeas petition, which is subject to doubt, the basis for making a considered bail decision is lacking.
For the foregoing reasons, the Motion for Immediate Bail Consideration, Temporary Restraining Order, and Preliminary Injunctive Relief (dkt. no. 3) is DENIED.
It is SO ORDERED. /s/ George A. O’Toole, Jr. Senior United States District Judge
6

 
 Case 1:20-cv-10738-GAO Document 51 Filed 05/14/20 Page 1 of 6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,
Petitioners, v.
STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,
Respondents.

No. 20-cv-10738-GAO

THIRD NOTICE OF SUPPLEMENTAL AUTHORITIES AND INFORMATION Petitioners respectfully submit this Notice to provide citations and information regarding cases discussed during the hearing held on May 12, 2020, and to bring other recent developments to this Court’s attention. First, bop.gov now confirms 10 open1 COVID-19 cases at FMC Devens – eight prisoners and two staff members – in addition to one prisoner death. Federal Medical Centers now have two of the top four confirmed COVID-19 clusters within the BOP: FMC Fort Worth has confirmed 622 open prisoner cases, four open staff cases, and seven prisoner deaths; FMC Lexington reports 206 open prisoner cases, six open staff cases, and one prisoner death.2

1 It appears that “open” cases represent individuals who currently have a confirmed COVID-19 infection, as the BOP separately reports “recovered” COVID-19 cases and deaths. 2 Bureau of Prisons: COVID-19 Cases, https://www.bop.gov/coronavirus/ (last visited May 14, 2020 at 4:49 pm). During the hearing, the government made several unsworn assertions regarding the current conditions at FMC Devens. These assertions go to the disputed merits of Petitioners’ claims and cannot defeat class certification. The absence of record support for these assertions, however, underscores the need for discovery to obtain actual evidence about FMC Devens, including the ability or inability to practice social distancing within each unit and testing protocols. Although there has been no evidence submitted in this case regarding the number of people tested at FMC Devens, the facility’s case management coordinator, Amber Bourke,
1

Case 1:20-cv-10738-GAO Document 51 Filed 05/14/20 Page 2 of 6
Second, as discussed at the hearing, Petitioners write to provide the following citations to
decisions granting class certification in litigation addressing COVID-19 in carceral settings:
 Roman v. Wolf, No. 20-00768-TJH, 2020 WL 1952650 (C.D. Cal. April 23, 2020) (certifying provisional class of all immigration detainees at Adelanto Immigration and Customs Enforcement Processing Center)3;
 Rivas v. Jennings, No. 20-cv-02731-VC, -- F.Supp.3d --, 2020 WL 2059848 (N.D. Cal. April 29, 2020) (certifying provisional class of all immigration detainees at the Mesa Verde Detention Facility and the Yuba County Jail);
 Fraihat v. ICE, No. 19-1546-JGB, 2020 WL 1932570 (C.D. Cal. April 20, 2020) (certifying provisional class of all people detained in ICE custody whose medical risk factors or disabilities “place them at heightened risk of severe illness and death upon contracting the COVID-19 virus”);
 Alcantara v. Archambeault, No. 20-cv-0756-DMS (S.D. Cal. May 1, 2020) (certifying provisional subclass of medically vulnerable detained at the Otay Mesa Detention Center), attached as Exhibit 2;
 Savino v. Souza, No. 20-10617-WGY, 2020 WL 1703844 (D. Mass. April 8, 2020) (certifying class of all civil immigration detainees housed at Bristol County House of Corrections);
 Gomes v. ICE, No. 20-cv-453-LM, 2020 WL 2113642 (D.N.H. May 4, 2020) (certifying provisional class of all civil immigration detainees housed at the Strafford County Department of Corrections for the purpose of facilitating expedited bails hearings of those individuals); and
 Wilson v. Williams, No. 4:20-cv-00794, 2020 WL 1940882 (N.D. Ohio April 22, 2020) (certifying conditional class of medically vulnerable prisoners incarcerated at FCI Elkton)4
recently submitted a declaration in United States v. Pena, No. 16-10236-MLW, attesting that as of May 8, 2020, only 43 prisoners at the main facility and no prisoners at the Camp had been tested. D.E. 189-1, ¶ 22 and n.3, attached as Exhibit 1. 3 The Ninth Circuit stayed the preliminary injunction pending appeal, but it did not disturb this class certification. Roman v. Wolf, No. 20-55436, 2020 WL 2188040 (9th Cir. May 5, 2020). 4 The Sixth Circuit denial of a stay pending appeal did not overturn this conditional class certification. Wilson v. Williams, No. 20-3447 (6th Cir. May 4, 2020) [D.E. 23-2].
2

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Aside from Fairhat, each of these cases sought habeas relief under § 2241.5 As
Petitioners’ counsel noted during the May 12 hearing, these decisions granting class certification
in COVID-19 litigation are consistent with decisions in this District that have granted class
certification in immigration-related habeas cases asking the federal court to deem unlawful or
unconstitutional government practices with respect to holding people in immigration detention,
while leaving to another entity – not the federal court in the class action itself – the
determination of whether specific individuals should be released.6
Neither of the cases submitted by the government in its May 7, 2020, notice of
supplemental authority [D.E. 43] addressed, let alone denied, class certification. See Valentine v.
Collier, No. 20-20207, 2020 WL 1934431 (5th Cir. Apr. 22, 2020) (granting stay of injunctive
5 Fairhat was a pre-COVID 19 case that later sought emergency relief in light of the pandemic. 2020 WL 1932570 at *1-2. 6 See, e.g., Prereira Brito v. Barr, 395 F. Supp. 3d 135 (D. Mass.), modified, 415 F. Supp. 3d 258 (D. Mass. 2019) (certifying class of noncitizens detained under 8 U.S.C. § 1226(a), concluding due process requires the government to prove dangerousness by clear and convincing evidence or risk of flight by preponderance of the evidence during § 1226(a) bond hearings, and ordering immigration courts to implement this procedure in individual § 1226(a) bond determinations); Reid v. Donelan, No. CV 13-30125-PBS, 2018 WL 5269992 (D. Mass. Oct. 23, 2018) and Reid v. Donelan, 390 F. Supp. 3d 201 (D. Mass. 2019) (certifying class of noncitizens detained for more than six months under 8 U.S.C. §1226(c) without a bond hearing, holding noncitizens must bring individual habeas petitions to determine if bond hearing was required but ordering immigration court to place the burden of proof on the government to prove dangerousness by clear and convincing evidence or risk of flight by preponderance of the evidence during any such required § 1226(c) bond hearing); see also Gordon v. Johnson, 300 F.R.D. 28 (D. Mass 2014) (certifying class of noncitizens detained by ICE under 8 U.S.C. § 1226(c) after more than 48 hours of release from criminal custody whose requested relief was that the government provide all class members with a bond hearing before an immigration judge to determine their eligibility for release from ICE custody); Calderon v. McAleenan, No. 18-10225-MLW, (D. Mass. May 17, 2019) (certifying class of citizens and noncitizen spouses seeking status under a 2016 regulatory process in a § 2241 habeas petition whose requested relief was an order directing ICE to consider a noncitizens’ eligibility for status under the 2016 regulatory process in making its removal decisions).
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relief pending appeal without addressing class certification); Swain v. Junior, No. 20-11622, 2020 WL 2161317 (11th Cir. May 5, 2020) (same).
Third, two relevant opinions have issued since this Court’s class certification hearing began on May 12.
Judge Young issued a written decision to accompany his May 7, 2020 order requiring universal COVID-19 testing of all immigration detainees at Bristol County House of Correction. Savino v. Souza, No. 20-10617-WGY (D. Mass. May 12, 2020), attached as Exhibit 2. Noting that “the real infection rate” at the facility “is a mystery,” because “testing of both staff and detainees has been minimal,” id. at 15, the court concluded, “[k]eeping individuals confined closely together in the presence of a potentially lethal virus, while neither knowing who is carrying it nor taking effective measures to find out, likely displays deliberate indifference to a substantial risk of serious harm.” Id. at 29.
That same day, in the District of Connecticut, Judge Shea denied a motion to dismiss and granted a temporary restraining order in a § 2241 habeas petition brought by prisoners at FCI Danbury who alleged that “Respondents were violating the Eighth Amendment by ‘fail[ing] to use the BOP’s available statutory authority to reduce the population at FCI Danbury to mitigate the severe risk posed by COVID-19.” Martinez-Brooks v. Easter, No. 3:20-cv-00549 (D. Conn. May 12, 2020) at 2-3, attached as Exhibit 3.7
7 Noting that the Second Circuit has held “‘that the class action device should not be imported into collateral actions, at least in its full vigor as contemplated by Rule 23’” but also “‘recognized the power of the judiciary . . . to fashion for habeas actions appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage,’” Judge Shea analyzed whether the case was proper for “‘a multiparty party proceeding similar to a class action.’” Id. at 62 (quoting United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125-26 (2d Cir. 1974)). Analyzing Rule 23(a) requirements, he concluded it was, noting consideration of these requirement “further bolsters my conclusion that multi-party treatment is likely appropriate.” Id. at 65.
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Judge Shea first rejected the Warden’s argument that the Court did not have jurisdiction over the habeas petition as “lack[ing] merit.” Id. at 27. He then determined that the medically vulnerable subclass was likely to succeed on the merits of their contention that “the Warden’s failure to transfer medically vulnerable prisoners from FCI-Danbury to home confinement in any ‘meaningful numbers’ constitutes deliberate indifference.” Id. at 46-47. In so doing, he contrasted the BOP’s self-imposed eligibility criteria that were “unrelated to medical vulnerability, and at best, tangentially related to public safety,” with the “explicit statutory authorization in the CARES Act to make widespread use of home confinement in response to the threat posed by COVID-19, and the exhortation of the head of the government department in which the Bureau of Prison sits.” Id. at 47-48.8 As a result, he issued an injunction that “directs the Warden to make prompt, meaningful use of her home confinement and compassionate release authority; expeditiously to consider all medically vulnerable inmates for home confinement and compassionate release; and to discontinue the use of unduly burdensome eligibility criteria that are divorced from the interests of vulnerable inmates as well as the public and that preclude otherwise eligible inmates from consideration.” Id. at 63-64. He further ordered expedited discovery on contested questions of fact regarding broader class-wide relief. Id. at 74.
8 Judge Shea noted the Warden’s representation that “only 159 inmates have been reviewed since March 26, and a mere 21 inmates have actually been placed on home confinement, out of a population of roughly 1000.” Id. The numbers are even lower at FMC Devens, a similarly sized facility. As of April 22, 2020, Ms. Bourke indicated that 118 prisoners at FMC Devens had been reviewed for home confinement, 91 were denied “as not meeting all of the stated criteria,” and 8 had “been approved for home transfers.” D.E. 32-2, ¶ 22. Ms. Bourke’s May 11, 2020 Declaration states that twelve prisoners in the camp “have been approved for compassionate release or early home confinement” as of May 8, 2020, but it did not state whether any have been released yet.
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Respectfully submitted,

ALEXANDER GRINIS, MICHAEL GORDON, ANGEL SOLIZ, and others similarly situated,

By their attorneys,

William W. Fick, BBO# 650562 Daniel N. Marx, BBO# 674523 Amy Barsky, BBO# 601111 FICK & MARX LLP 24 Federal Street, 4th Floor Boston, MA 02210 857-321-8360
wfick@fickmarx.com
dmarx@fickmarx.com
abarsky@fickmarx.com

/s/ Jessie J. Rossman Matthew R. Segal, BBO# 654489 Jessie Rossman, BBO# 670685 ACLU FOUNDATION OF MASSACHUSETTS, INC. 211 Congress Street Boston, MA 02110 (617) 482-3170
msegal@aclum.org
jrossman@aclum.org

CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on May 14, 2020.
/s/ Jessie J. Rossman

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 Case 1:20-cv-10738-GAO Document 54 Filed 05/27/20 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,

Petitioners, v.

Civil Action No. 20-cv-10738-GAO

STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,

Respondents.

RESPONDENTS’ SECOND NOTICE OF SUPPLEMENTAL AUTHORITY

Respondents in the above-captioned action respectfully submit the following supplemental

persuasive authority for this Court’s consideration of the pending motions now before this Court:

1. Wragg, et al. v. Ortiz, et al., May 5, 2020), Civil No. 20-5496 (RMB), Opinion, ECF No. 40, (D. NJ May 27, 2020), attached hereto.

In Wragg, the petitioners filed a “Complaint-Class Action for Declaratory and Injunctive

Relief and Petition for Writ of Habeas Corpus” claiming violation of the Eighth Amendment and

seeking release of hundreds of inmates to allow for social distancing and protection against

COVID-19. Wragg, D. 40 at 2-3.

In denying petitioners’ request for injunctive relief, and granting respondents’ motion to

dismiss, the court analyzed the same issues now pending before this Court. In finding that it lacked

jurisdiction to consider petitioners’ conditions of confinement claims brought pursuant to 28

U.S.C. § 2241, the court noted that the Supreme Court has not recognized petitioners’ claim as

cognizable, Wragg, D. 40 at 54, and further opined, “[t]his Court does not find this case to be that

Case 1:20-cv-10738-GAO Document 54 Filed 05/27/20 Page 2 of 3
‘extraordinary case’ where it should expand habeas jurisdiction, more extraordinary than even Abbasi, where the Supreme Court did not see fit to extend habeas jurisdiction over a conditions of confinement claim involving outright alleged physical abuse of prisoners who were not serving a sentence upon conviction of a crime.” Id., at 54 (citing Ziglar v. Abbasi, 137 S. Ct. 1843, 1863 (2017)). Furthermore, even assuming jurisdiction to consider petitioners’ claims existed, the court found that habeas relief was lacking where petitioners had other avenues available for immediate relief, such as a request for home confinement under the CARES Act and compassionate release under 18 U.S.C. § 3582(c)(1)(A), and exceptional circumstances to grant habeas relief were not present. Id. at 55.
The Wragg court opined, as this Court has held, that petitioners failed to present a likelihood of success on the merits of their Eighth Amendment claim. Indeed, no deliberate indifference exists in light of the Bureau of Prison’s nationwide action plan to combat COVID-19, and the steps taken within the institution itself. Wragg, D. 40 at 61. In addressing the same claims as those made by Petitioners in this case – physical distancing is not possible in a prison environment – the court found “[t]hat physical distancing is not possible in a prison setting … does not an Eighth Amendment claim make…” Id. at 65.
Finally, in denying class certification, the court found that petitioners failed to meet the requirement for commonality required by Fed. R. Civ. P. 23(a), because the court would be required to undertake “an intensive, multi-step, individualized inquiry as to whether each prisoner met criteria for conditional release.” Wragg, D. 40 at 81. The court further found that, like the Petitioners sub judice, the Wragg petitioners failed to meet the predominance requirement of Rule 23(b)(1), because although the issue of whether allegedly harmful prison procedures was common to all putative class members, the respondents’ treatment of individual class members was not. Id.
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at 87. The court also found that a class action was not a “superior method” by which to adjudicate the controversy, and the individuals’ petitions should be processed and evaluated as they were received, rather than requiring petitioners to wait for a class-wide resolution. Id. at 88-89.
For these reasons, and for those argued previously before this Court, Respondents supplement their Omnibus Response (ECF No. 32), and ask this Court to deny the Petition for Writ of Habeas Corpus, deny class certification in this case, and deny Petitioners’ motion for reconsideration of this Court’s Order denying their motions for temporary restraining order, injunctive relief and declaratory judgment.

Dated: May 27, 2020

Respectfully submitted,
ANDREW E. LELLING United States Attorney
By: /s/ Eve A. Piemonte Eve A. Piemonte Assistant United States Attorney United States Attorney’s Office John J. Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3369 Eve.Piemonte@usdoj.gov

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 Case 1:20-cv-10738-GAO Document 58 Filed 06/09/20 Page 1 of 18

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,

Petitioners, v.

Civil Action No. 20-cv-10738-GAO

STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,

Respondents.

RESPONDENTS’ OPPOSITION TO PETITIONERS’ MOTION FOR RECONSIDERATION

On May 26, 2020, Petitioners filed a motion for reconsideration of this Court’s order

denying them preliminary injunctive relief. ECF No. 52. Petitioners claim that reconsideration is

warranted because “previously unavailable evidence undermines factual predicates” of this

Court’s decision denying injunctive relief. Id. In particular, Petitioners claim that Respondent

Warden Spaulding “admitted under oath that Respondents are deliberately disregarding health

risks to prisoners” during his testimony in United States v. Pena, No. 16-cr-10236-MLW (D.

Mass.). ECF No. 53, at 1. Petitioners further allege that, due to Bureau of Prisons (“BOP”)

policies, the infection is spreading. Id., at 2.

Petitioners’ allegations are without merit and their motion for reconsideration must be

denied. First, Warden Spaulding never testified that Respondents were acting with deliberate

indifference to prisoners’ medical needs. To the contrary, the Warden’s testimony in the Pena

case was consistent with all of the information previously before this Court at the time it denied

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Petitioners’ motion for injunctive relief. Second, although there have been additional cases of COVID-19 at the Federal Medical Center, Devens, Massachusetts (“FMC Devens”), this Court’s decision finding that Petitioners failed to demonstrate a likelihood of success on their Eighth Amendment claims was not based solely on the number of positive COVID cases at FMC Devens. Because Petitioners cannot demonstrate that Respondents have acted with deliberate indifference, and because Petitioners offer no new legal or material factual information that undermines this Court’s decision denying injunctive relief, Petitioners motion for reconsideration must be denied.
ARGUMENT A. Legal Standard
“A motion for reconsideration is not intended to provide a party with a second bite of the proverbial apple.” Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006). “Courts should not permit motions for reconsideration to be used as vehicles for pressing arguments that could have been asserted earlier or for rearguing theories that have been previously advanced and rejected…Rather, the granting of motions for reconsideration is an extraordinary remedy which should be used sparingly.” Goldman v. United States, 2019 WL 1129455, at *5 (D. Mass. Mar. 12, 2019) (citing Palmer, 465 F.3d at 30). “A trial court acts well within its discretion in declining to reconsider a legally correct order.” Hannon v. Beard, 645 F.3d 45, 51 n. 5 (1st Cir. 2011).
Such is the case here. Petitioners’ motion reasserts the allegations they made in their original petition for writ of habeas corpus (“Petition”), and they offer no new legal or material factual evidence for this Court’s consideration. Petitioners do not identify any “manifest error of law or fact” made by this Court, nor can they. National Metal Finishing Co., Inc. v. BarclaysAmerican/Commercial, Inc., 899 F.2d 119, 123 (1st Cir. 1990). To the contrary, as set forth, infra, the measures Respondents have taken in response to the COVID-19 pandemic, and
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precedential legal authority affirms this Court’s decision denying injunctive relief to Petitioners. Accordingly, Petitioners’ motion for reconsideration must be denied. Estate of Rivera v. Doctor Susoni Hosp., Inc., 323 F.Supp.2d 262, 265 (D. Puerto Rico June 24, 2004) (“Motions for reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the Court overlooked and that might reasonably be expected to alter the conclusion reached by the Court.”) (citing Shrader v. CSC Transp., Inc., 70 F.3d 255, 257 (2nd Cir. 1995)).
B. Warden Spaulding Did Not Admit Deliberate Indifference To Prisoners’ Medical Needs Based upon the testimony of Warden Spaulding in the case of United States v. Pena, No.
16-cr-10236-MLW (D. Mass.), Petitioners claim that Respondents have acted with deliberate indifference in failing to properly consider COVID-19 in considering an inmate’s reduction in sentence (compassionate release), or release on home confinement. In so arguing, Petitioners improperly conflate the varying considerations undertaken for each form of relief, and inappropriately conclude that the Warden’s testimony equates to a finding of deliberate indifference by this Court. It does not.
In Pena, No. 16-CR-10236-MLW (D. Mass.), the sole issue before the district court (Wolf, J.) was defendant’s motion for compassionate release (or reduction in sentence) pursuant to 18 U.S.C. § 3582. ECF No. 53-1, at 7; ECF No. 53-2, at 13. In considering defendant’s motion, the court acknowledged that the BOP has the sole authority to decide whether to release an inmate to serve the remainder of his sentence in home confinement. ECF No. 53-1, at 12. In granting the defendant’s motion for reduction in sentence, however, the district court found “that there [were] extraordinary and compelling reasons” that warranted the defendant’s release. ECF No. 53-2, at 13. The court’s finding was fact-specific. ECF No. 53-2.
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Petitioners claim that Respondents’ failure to consider COVID-19 as part of a decision for a reduction is sentence does not establish deliberate indifference. Furthermore, this allegation misconstrues the Warden’s testimony. The Warden testified that he did not consider COVID-19 “as a sole determination of reduction in sentence or compassionate release.” ECF No. 53-1 at 44 (emphasis added). This is consistent with the information that was before this Court at the time it denied Petitioners’ motion for injunctive relief, and relates to Petitioners’ claims regarding a reduction in sentence, and not to Respondents’ actions regarding home confinement decisions. ECF No. 36-1. The Warden testified that he did not consider COVID-19 in response to the criteria to be considered for reduction in sentence motions, based upon Program Statement 5050.50, and the guidance he received from the BOP. ECF No. 53-1, at 44-45. As the Warden testified, the risk of contracting COVID-19, as a sole determination, is not considered an “extraordinary or compelling circumstance” for a reduction in sentence based upon Program Statement 5050.50 and BOP guidance that he followed. ECF No. 53-1, at 32, 44. Notably, this is the very information that was before the Court at the time this Court considered Petitioners’ claims, and denied them. See ECF No. 36-1, at ¶ 31 (the sole basis for Petitioner Grinis’ request for a reduction in sentence was the potential for COVID-19 infection, which does not meet the necessary criteria for a reduction in sentence under BOP policy); id., at ¶ 32 (Petitioner Gordon sought release based on potential effects of a COVID infection, which alone does not meet the necessary criteria for a reduction in sentence under BOP policy); id., at ¶ 33 (Petitioner Soliz was denied a reduction in sentence request as not having an end-of-life trajectory such that he met the necessary criteria for a reduction in sentence under BOP policy). Thus, the Warden’s testimony neither presents new facts to this Court, nor does it evidence an admission of deliberate indifference, as Petitioners allege.
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Furthermore, Petitioners’ motion for reconsideration also ignores that the BOP lacks authority to provide inmates with a reduction in sentence through compassionate or “early release.” ECF No. 36-1, at ¶ 22. A reduction of an inmate’s federal sentence can only be accomplished by an Article III judge; specifically, the inmate’s sentencing judge. Id. However, upon an inmate’s request, the Director of 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). Id. This process is outlined in the U.S. Dep’t of Justice Fed. Bureau of Prisons, Compassionate Release/Reduction In Sentence Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g), Program Statement 5050.50 (Jan. 17, 2019)1. Id. The BOP uses these statutory authorities in “extraordinary or compelling circumstances,” which could not have reasonably have been foreseen by the court at the time of sentencing. Id. For the reasons set forth, supra, based upon BOP policy and guidance, the risk of contracting COVID-19, alone, does not present “extraordinary or compelling circumstances” sufficient for Respondents to make a motion to the sentencing court.
With regard to home confinement, contrary to Petitioners’ claims, the Warden’s testimony in Pena does not change the information that was before this Court at the time it denied Petitioners’ request for injunctive relief. At the time this Court considered Petitioners’ request for a transfer to home confinement, pursuant to 18 U.S.C. § 3624(c)(2), the Court was aware that the BOP would consider the totality of the circumstances of each individual inmate, the statutory requirements for home confinement, and a list of discretionary factors that the BOP considered when evaluating Petitioners’ claims. ECF No. 36-1, at ¶ 5. In highlighting but one aspect of the Warden’s testimony in Pena, where the Warden testified that unless an inmate had served 50% or more of
1 This BOP Program Statement and all other program statements and operations memoranda cited herein are available at www.bop.gov via the Resources link.
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his sentence, or had served 25% or more of his sentence and had 18 months or less remaining, the inmate would not be considered for home confinement, Petitioners mischaracterize BOP policy, and mislead this Court.
The Warden’s testimony in Pena took place on May 13, 2020, shortly after the BOP issued new guidance with regard to prioritization of inmates to be considered for home confinement. ECF No. 36, ECF No. 53-1. Indeed, in response to the newly-issued BOP guidance, on April 24, 2020, Respondents filed a supplemental notice and declaration with this Court. ECF No. 36. As Respondents informed this Court:
The supplemental declaration of Amber Bourke, Case Manager, Federal Medical Center, Devens, Massachusetts (“Supp. Bourke Decl.”), attached hereto, provides the most current information regarding BOP’s priority home confinement program, and clarifies that the priority factors that BOP has generally considered for home confinement of inmates are subject to deviation in BOP’s discretion in certain circumstances, and are subject to revision as the situation progresses. The BOP is, at this time, prioritizing for consideration those inmates who either, (1) have served 50% or more of their sentences; or, (2) have 18 months or less remaining in their sentences and have served 25% or more of their sentences. See Supp. Bourke Decl. ¶ 19. As BOP processes the inmates eligible for home confinement under these criteria and learns more about the COVID-19 pandemic and its effect on BOP facilities, it is assessing whether and how to otherwise prioritize consideration. Id. Thus, the Warden’s testimony that inmates who had served 50% or more of their sentences; or, had 18 months or less remaining in their sentences and had served 25% or more of their sentences were being considered for priority consideration for home confinement, was information that was squarely before this Court at the time it denied Petitioners’ request for injunctive relief. Nor did this Court take issue with such priority consideration of inmates, which was designed to prioritize BOP’s limited resources. ECF No. 36-1, at ¶ 19. As this Court found, “[Petitioners] have not shown that it is likely that they would qualify for transfer from incarceration to home confinement under the current BOP eligibility requirement, and therefore they have not shown that
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they personally have a likelihood of success in obtaining the relief prayed for in their petition.” Grinis v. Spaulding, No. 20-cv-10738-GAO (D. Mass. May 8, 2020), ECF No. 45, at 5.
Finally, to the extent this Court considers Petitioners’ claims that Respondents are wholesale disregarding COVID-19 risk factors when considering an inmate for home confinement and reduction in sentence, an examination of those facts will result in a decision in Respondents’ favor. Since March, 2020, the BOP has increased home confinement by over 136%, and is continuing to aggressively screen inmates for home confinement. See Declaration of Amber Bourke (“Bourke Decl.”), attached hereto, at ¶ 2. Since the March 26, 2020 Memorandum instructing the BOP to prioritize home confinement as an appropriate response to the COVID-19 pandemic, the BOP has placed an additional 3,883 inmates on home confinement. Id. Specifically at FMC Devens, with regard to priority consideration of home confinement placements, all inmates within the guidelines of the Attorney General’s memos and the BOP guidelines have been reviewed, and referrals for home confinement have been made, when appropriate. Bourke Decl., at ¶ 3. Additionally, FMC Devens is reviewing the remaining inmates for COVID high-risk factors and determining which of those inmates may be reviewed and sent to BOP Central Office for a final review and determination. Id.
Under the initial reviews and these current ongoing reviews, FMC Devens has reviewed approximately 310 inmates for home confinement placement at this time. Bourke Decl., at ¶ 4. To date, FMC Devens has released 25 inmates to early Residential Re-entry Centers (“RRC”) or home confinement. Id. Additionally, 6 inmates have approved placement dates and will be released between June 9, 2020, and June 18, 2020. Id. Approximately 12 additional inmates have now met the qualifications for home confinement, and are being reviewed by the Special Investigative Section (“SIS”) and medical departments as part of the referral process. Id. Lastly,
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since April 3, 2020, FMC Devens was required to release 35 inmates pursuant to judicial orders. Id. This is comprised of 26 Compassionate Release/Reduction in Sentence Orders, 1 related to Washington D.C. legislation, 1 Time Served Order, 5 First Step Act sentence reduction orders, 1 Bail Order and 1 Release Order pending an Appeal. Id.
With regard to reductions in sentence, since April 3, 2020, approximately 241 Reduction in Sentence (“RIS”) requests have been submitted by FMC Devens inmates. Bourke Decl., at ¶ 5. To date, 5 RIS requests have been forwarded to BOP Central Office for further RIS consideration and approval, as FMC Devens has determined they meet RIS criteria. Id. Currently, none have been approved for a RIS by the BOP Central Office. Id.
Accordingly, it is clear that the Warden’s testimony in Pena is consistent with the declarations and information before this Court, and upon which this Court considered and found that Petitioners were not likely to succeed in their claim that they have been subjected to cruel and unusual punishment by Respondents. From the additional facts set forth, supra, Petitioners cannot credibly claim that Respondents are acting with deliberate indifference. For these reasons, Petitioners’ motion for reconsideration must be denied.
C. Additional Measures Taken At FMC Devens To Prevent The Spread Of COVID-19 Despite Petitioners’ claims that new evidence demonstrates that Respondents’ actions have
failed to prevent a deadly outbreak of COVID-19 at FMC Devens, this Court did not base its decision solely on the number of positive cases at FMC Devens. Indeed, this Court found that “[b]oth the BOP and FMC Devens have made significant changes in operations in response to COVID-19.” ECF No. 45, at 4. “These affirmative steps may or may not be the best possible response to the threat of COVID-19 within the institution, but they undermine an argument that the respondents have been actionably deliberately indifferent to the health risks of inmates.” Id.,
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at 5. Since the time of this Court’s decision denying injunctive relief, Respondents have taken further measures in response to the threat of COVID-19 at FMC Devens, as set forth below. As such, Petitioners’ cannot credibly claim that they have been subjected to cruel and unusual punishment in contravention of the Eighth Amendment.
Although there has been a rise in the number of positive COVID cases at FMC Devens, Petitioners ignore the reason behind that rise: increased testing of inmates. Petitioners also ignore that FMC Devens continues to operate under the BOP’s Action Plan for COVID-19. On May 18, 2020, the Bureau of Prisons (BOP) ordered the implementation of Phase 7 of its COVID-19 Action Plan. See Declaration of Clinical Director Megan Shaw (“Shaw Decl.”), attached hereto, at ¶ 2. This phase extends all measures from Phase 6, to include measures to contain movement and decrease the spread of the virus. Id. The Phase 7 action plan will remain in place through June 30, 2020, at which time the plan will be evaluated. Id. FMC Devens implemented Phase Seven as directed in conjunction with this order. Shaw Decl. ¶ 3.
Furthermore, nationally, there are more inmates and staff who have recovered from COVID-19 than are currently infected: there are 2,068 inmates and 185 BOP staff who have confirmed positive test results for COVID-19 nationwide; and 3,785 inmates and 452 BOP staff who have recovered, as of June 8, 2020. Shaw Decl. ¶ 4. FMC Devens has 42 open inmate cases of COVID-19, and 5 staff cases. Shaw Decl. ¶ 5. There have been 2 inmate deaths, and 0 staff deaths. Id. At FMC Devens, 10 inmates have recovered from COVID-19, and 1 staff member has recovered. Id. There are still no positive cases of COVID-19 at the Federal Prison Camp. Shaw Decl. ¶ 6. Furthermore, the entire asymptomatic inmate population at the Camp was tested for COVID-19 as part of the ongoing Infection Control procedures. Id.
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The increased numbers at FMC Devens are not the result of deliberate difference, but, in part, demonstrate actions Respondents have taken to prevent the spread of COVID-19, to include increased testing. On May 7, 2020, the BOP announced that it would substantially expand testing at BOP detention and quarantine sites (of which FMC Devens is not one) using additional Abbot ID NOW instruments for Rapid RNA testing obtained from the U.S. Department of Health and Human Services (“HHS”). Shaw Decl. ¶ 7. Beginning in March 2020, the BOP worked with HHS and the Federal Emergency Management Agency (“FEMA”) to increase its testing capabilities within the agency, and continued to provide testing for COVID-19 symptomatic inmates, as recommended by the Centers for Disease Control (“CDC”). Id.
In addition to the measures FMC Devens has already taken to prevent the introduction and spread of COVID-19 in the institution, as set forth in Respondents’ opposition to Petitioners’ motion for injunctive relief, FMC Devens received its first rapid Abbot test machine on April 29, 2020, and began to immediately rapid-test symptomatic inmates in order to isolate and quarantine them more quickly in an effort to decrease the chance of spread of COVID-19. Shaw Decl. ¶ 8. A short time later, FMC Devens received a second rapid Abbot test machine. Shaw Decl. ¶ 9. Both machines have been used, simultaneously, to quickly test both symptomatic inmates, and asymptomatic inmates who had close contact with an inmate who tested positive for COVID-19. Id. The BOP began testing of asymptomatic inmates to assist in slowing transmissions within a correction setting. Shaw Decl. ¶ 10. As a result, an increase in the number of COVID-19 positive tests has been reflected in the BOP’s numbers. Id. In fact, FMC Devens began testing asymptomatic inmates beginning in March, 2020, when inmates had risk factors for close contact with known COVID-19 positive individuals. Shaw Decl. ¶ 11. Once the institution had positive cases, testing in asymptomatic housing units took place to make sure there were no additional
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positive carriers who were potential vectors. Id. FMC Devens also tested every inmate at the institution during the last two weeks of May, 2020. Id. As a result of increased testing capabilities and the delivery of additional tests, FMC Devens was able to test all inmates in the institution. Shaw Decl. ¶ 12 (emphasis added). Additionally, continued inmate testing within units was conducted if there was a positive COVID-19 result in the unit, or if an inmate was within close contact of a COVID-positive inmate. Id.
Thus, while Petitioners seek to attribute the rise in positive COVID-19 cases to deliberate indifference by Respondents, the opposite is true. Respondents continue to take proactive measure to prevent the spread of COVID-19 at FMC Devens, and such measure have resulted in a reporting of increased positive COVID cases.
D. The Weight of Authority Supports Affirmance of this Court’s Decision Denying Preliminary Injunctive Relief In an attempt to raise new legal claims before this Court to support their request for
reconsideration, Petitioners ask this Court to consider persuasive authority from other district courts which have granted injunctive relief on similar claims. Aside from the distinguishing circumstances in some of these cases, Petitioners ignore the weight of authority against their claims. Petitioners also ignore the substantial steps that Respondents continue to take to prevent the spread of COVID-19 within FMC Devens.
1. Supplemental Legal Authority As this Court is aware, in Swain v. Junior, -- F.3d --, 2020 WL 2161317 (11th Cir. May 5, 2020), the plaintiffs sought declaratory and injunctive relief on behalf of the class claiming violations of the Eighth and Fourteenth Amendments, and seeking immediate release from custody pursuant to 28 U.S.C. § 2241. The plaintiffs challenged measures taken by the state prison to halt the spread of COVID-19. The district court granted a preliminary injunction, required defendants
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to take certain safety measures, and imposed reporting requirements on the prison. The defendants moved for a stay pending appeal. The Eleventh Circuit court granted defendants’ motion for a stay, finding that the district court likely committed error in granting a preliminary injunction. The court analyzed many of the same issues now before this Court, including: likelihood of success on the merits of plaintiffs’ Eighth Amendment claim, and, specifically, what constitutes “deliberate indifference;” discussed the court’s assumption of administrative decisions customarily left to the discretion of prison officials; and reviewed exhaustion under the Prison Litigation Reform Act (“PLRA”).
In Valentine v. Collier, -- F.3d --, 2020 WL 1934431 (5th Cir. Apr. 22, 2020) Plaintiffs brought a class action alleging Eighth Amendment violations and challenging the measures the state prison system put in place to prevent the spread of COVID-19. The district court granted the plaintiffs’ motion for preliminary injunction and required the defendants to take specific measures. Defendants appealed. The Fifth Circuit entered a stay of the injunction pending appeal, found that defendants were likely to prevail on appeal, and analyzed the measures the prison took under the Eighth Amendment, and the standard for “deliberate indifference;” discussed the court’s assumption of administrative decisions left to the discretion of prison officials; and reviewed the PLRA’s exhaustion requirement, and the permissible scope of a remedial injunction under the PLRA.
In Wragg, et al. v. Ortiz, et al., May 5, 2020), Civil No. 20-5496 (RMB), Opinion, ECF No. 40, (D. NJ May 27, 2020), the petitioners filed a “Complaint-Class Action for Declaratory and Injunctive Relief and Petition for Writ of Habeas Corpus” claiming violation of the Eighth Amendment and seeking release of hundreds of inmates to allow for social distancing and protection against COVID-19. Wragg, D. 40 at 2-3. In denying petitioners’ request for injunctive
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relief, and granting respondents’ motion to dismiss, the court analyzed the same issues now pending before this Court. Finding that it lacked jurisdiction to consider petitioners’ conditions of confinement claims brought pursuant to 28 U.S.C. § 2241, the court noted that the Supreme Court has not recognized petitioners’ claim as cognizable, Wragg, D. 40 at 54, and further opined, “[t]his Court does not find this case to be that ‘extraordinary case’ where it should expand habeas jurisdiction, more extraordinary than even Abbasi, where the Supreme Court did not see fit to extend habeas jurisdiction over a conditions of confinement claim involving outright alleged physical abuse of prisoners who were not serving a sentence upon conviction of a crime.” Id., at 54 (citing Ziglar v. Abbasi, 137 S. Ct. 1843, 1863 (2017)). Furthermore, even assuming jurisdiction to consider petitioners’ claims existed, the court found that habeas relief was lacking where petitioners had other avenues available for immediate relief, such as a request for home confinement under the CARES Act and compassionate release under 18 U.S.C. § 3582(c)(1)(A), and exceptional circumstances to grant habeas relief were not present. Id. at 55.
The Wragg court further opined, as this Court has held, that petitioners failed to present a likelihood of success on the merits of their Eighth Amendment claim. Indeed, the court found that no deliberate indifference existed in light of the BOP’s nationwide action plan to combat COVID19, and the steps taken within the institution itself. Wragg, D. 40 at 61. In addressing the same claims as those made by Petitioners here – physical distancing is not possible in a prison environment – the court found “[t]hat physical distancing is not possible in a prison setting … does not an Eighth Amendment claim make…” Id. at 65.
Notably, while Petitioners rely upon Wilson v. Williams, No. 4:20-cv-00794, 2020 WL 1940882 (N.D. Ohio, Apr. 22, 2020) in support of their request for injunctive relief, the Supreme Court of the United States has issued a stay of the district court’s orders pending disposition of the
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government’s appeal in the Sixth Circuit, and until further order of the Supreme Court. Williams v. Wilson, No. 19A1047, (June 4, 2002), attached hereto. And, a number of other courts have likewise determined that actions such as those taken by Respondents in this case do not violate the Eighth Amendment, and injunctive relief is not warranted. Lucero-Gonzalez v. Kline, No. CV-2000901-PHX-DJH (DMF) (D. Ariz. June 2, 2020) (official capacity defendants not liable under the Eighth Amendment and no injunctive relief is warranted where policies at the prison were not objectively, deliberately indifferent to plaintiffs’ health or safety, but rather reflected CDC recommendations and had been implemented without unreasonable delay); Nellson v. Barnhart, No. 20-cv-00756-PAB (D. Col. June 4, 2020) (finding no deliberate indifference or disregard of a substantial risk to inmate health where defendants are complying with CDC protocols, even if every inmate and staff member is not tested).
Thus, while Petitioners present some persuasive legal authority to support their request for reconsideration and the issuance of injunctive relief, the legal authority they offer is persuasive, and cumulative, and was considered by this Court when it denied Petitioners’ motion for injunctive relief. Furthermore, as set forth above, additional persuasive legal authority supports this Court’s denial of Petitioner’s motion for injunctive relief, and supports this Court’s finding that Petitioners are not likely to prevail on their Eighth Amendment claim.
E. New Evidence Further Weighs Against Petitioners’ Claims for Injunctive Relief It is clear that the BOP has not been deliberately indifferent to the COVID-19 outbreak,
and is taking aggressive measures to combat its spread and to care for inmates who contract the disease. While Petitioners may ultimately disagree with the measures taken by the BOP to protect and treat inmate health and safety, while also carrying out its mission to effectuate criminal sentences imposed by federal courts, deliberate indifference is not shown simply by a difference
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of medical judgment. 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”). “[A] prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation.” Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 811 (10th Cir. 1999). Indeed, a prisoner must prove more than “an inadvertent failure to provide adequate medical care,” Estelle, 429 U.S. at 105, or a mere “disagreement[ ] between [himself] and [his] doctors about the proper course of [his] medical treatment,” Kosilek, 774 F.3d at 83 (quoting Watson, 984 F.2d at 540). Regarding the latter, it is well established that the Eighth Amendment “does not impose upon prison administrators a duty to provide care ... of the prisoner’s choosing.” Id. at 82 (citing Ferranti v. Moran, 618 F.2d 888, 891 (1st Cir. 1980)).
In addition to the measures set forth in opposition to Petitioners’ request for injunctive relief, FMC Devens continues to take measures to prevent inmates from contracting COVID-19. In late May, 2020, several inmates housed in the sex offender unit (G Unit) tested positive for COVID-19 in the same day. Shaw Decl. ¶ 13. The G Unit has a first and second floor. Id. Four inmates on the first floor sex offender unit reported to sick call that they had fatigue, cough and or fever. Id. They were assessed and tested for COVID-19 and all 4 were positive. Id. In response to the positive test results, all inmates in the G Unit were tested, although there were no other symptomatic inmates on either floor at that time. Id. As a result, approximately 20 inmates tested positive for COVID. Id. All of the inmates who tested positive came out of the first floor sex offender unit. Id. FMC Devens immediately went into full facility lockdown and began testing all inmates in every housing unit to ensure there were no asymptomatic vectors with COVID-19. Id. The lockdown effectively prevented any inmates from coming into contact with inmates from other
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housing units. Id. FMC Devens also established the first floor of G Unit (“Unit G-A”), as an isolation unit and all inmates who tested negative for COVID-19 were moved into a quarantine unit where they would not be exposed to the positive G-A Unit inmates. Id. The quarantine inmates began a 14-day quarantine in this separate housing unit to mitigate the outbreak from further spread in case some of these inmates developed COVID-19 during the known 14-day incubation period of COVID-19. Id. Unit G-A inmates were then isolated in the unit to prevent exposure and reduce the spread of the virus with an emphasis on PPE and isolation infection control precautions. Id. Donning and doffing stations for PPE were established on the unit and education of custody officers began on every shift prior to its start. Id. The inmates from the GB Unit (second floor) who all tested negative were not moved from their unit as they are physically separated from the first floor of G Unit. Id. A 14-day continuation of the institution lockdown was enforced to ensure there was adequate time for any potentially exposed asymptomatic inmates to convert to a positive COVID-19 test or to begin showing symptoms that would trigger an automatic COVID-19 test and move to isolation. Shaw Decl. ¶ 14. In addition to placing the institution on lockdown, all of the asymptomatic housing units were then re-tested for COVID-19 during the 14-day lockdown to ensure that all inmates were negative prior to discontinuing the lockdown. Id.
As inmates who were positive for COVID-19 near the end of their required 14-day isolation period, they began to convert to being COVID-19 negative. Shaw Decl. ¶ 15. These inmates are in a “recovered” status, and they will be able to leave restrictive housing and return to their normal housing units. Id. Some COVID-19 positive inmates do not convert to negative for several weeks, and these inmates will remain in isolation on infection control precautions until they meet the CDC Testing Based Strategy for discontinuation of isolation precautions. Id. FMC Devens will be
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using the CDC’s strictest guidelines for Discontinuation of Isolation Precautions (the “Test-Based Strategy”). Shaw Decl. ¶ 16. Before discontinuation of isolation precautions, inmates will be required to have gone 3 consecutive days without a fever, have a resolution of respiratory symptoms, and have two negative COVID-19 tests taken more than 24 hours apart from each other. Shaw Decl. ¶ 17. The requirement for two tests will decrease the likelihood that one negative test is a false negative, and will help reassure that the inmate is COVID-19 negative before the isolation precautions are discontinued. Id. FMC Devens will continue its diligent testing and isolation/quarantine strategy to prevent the spread of COVID-19 within the institution, including separating from general population all inmates who develop symptoms or who have close contact with a suspected COVID-19 positive individual. Shaw Decl. ¶ 18. In addition, the institution will immediately return to a lockdown status if there are any signs that a new outbreak of cases is occurring in any housing unit. Id.
As such, it is clear that Respondents continue to take aggressive measures to prevent the spread of COVID-19 within the institution, injunctive relief is not warranted, and Petitioners’ motion for reconsideration must be denied.
CONCLUSION The BOP is taking significant and ongoing steps to prevent the spread of COVID-19 in FMC Devens and to provide medical care and treatment for inmates who do become infected. Petitioners cannot demonstrate that the BOP, or FMC Devens, has acted with deliberate indifference, and their constitutional claims under the Eighth Amendment fail. Respondents respectfully request that this Court deny Petitioner’s motion for reconsideration of this Court’s order denying injunctive relief to the Petitioners.
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Dated: June 9, 2020

Respectfully submitted,
ANDREW E. LELLING United States Attorney
By: /s/ Eve A. Piemonte Eve A. Piemonte Assistant United States Attorney United States Attorney’s Office John J. Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3369 Eve.Piemonte@usdoj.gov

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Case 1:20-cv-10738-GAO Document 58-1 Filed 06/09/20 Page 2 of 2

Case 1:20-cv-10738-GAO Document 58-2 Filed 06/09/20 Page 1 of 5

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,
Petitioners
V.
STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,
Respondents.

Civil Action No. 20-cv-10738-GAO

DECLARATION OF MEGAN SHAW, M.D., CLI CAL DIRECTOR I, MEGAN SHAW, M.D., Clinical Director, Federal Medical Center, Devens, Massachusetts, declare the following under 28 U.S.C. § 1746, and state that under penalty of perjury the following is true and correct to the best of my knowledge and belief: 1. I have previously signed a declaration for this litigation, dated April 22, 2020. The statements contained in this declaration are based upon my personal knowledge or information provided to me in my official capacity, and are intended to supplement the information previously submitted in this litigation. Action Plan for COVID-1 9 - Phase Seven 2. On May 18, 2020, the Bureau of Prisons (BOP) ordered the implementation of Phase 7 of its COVID-19 Action Plan. This phase extends all measures from Phase 6, to include measures to contain movement and decrease the spread of the virus. The Phase 7 action plan will remain in place through June 30, 2020, at which time the plan will be evaluated. See https:// w w w.bop.gov/ resources /n e w s/2 0200520_ covid- 19_phase_ s e v e n.jsp. 3. FMC Devens implemented Phase Seven as directed in conjunction with this order.

Case 1:20-cv-10738-GAO Document 58-2 Filed 06/09/20 Page 2 of 5

The Bureau of Prisons' COVID-19 Statistics

4. The BOP has 134,522 federal inmates in BOP-managed institutions and 12,788

inmates in community based facilities. Nationally, there are more inmates and staff who have

recovered fromCOVID-19 than are currently infected: there are 2,068 inmates and 185 BOP staff

who have confirmed positive test results for COVID-19 nationwide; and 3,785 inmates and 452

BOP staff who have recovered. See https://www.bop.gov/coronavirus/ (last visited June 8, 2020).

5. At this time, FMC Devens has 42 open inmate cases of COVID-19, and 5 staff

cases. There have been 2 inmate deaths, and O staff deaths. At the institution, 10 inmates have

recovered from COVID-19, and

staff member has recovered. See

https://www.bop.gov/coronavirus/ (last visited June 8, 2020).

6. To date, there are no positive cases of COVID-19 at the Federal Prison Camp. The

entire asymptomatic inmate population at the camp was tested for COVID-19 as part of the

ongoing Infection Control procedures.

Expanded Testing Capabilities

7. On May 7, 2020, the BOP announced that it would substantially expand testing at BOP detention and quarantine sites 1 using additional Abbot ID NOW instruments for Rapid RNA

tes,ting obtained from the U.S. Department of Health and Human Services (HHS). Beginning in

March 2020, the BOP worked with HHS and the Federal Emergency Management Agency

(FEMA) to increase its testing capabilities within the agency, and continued to provide testing for COVID-19 symptomatic inmates, as recommended by the Centers for Disease Control (CDC).2

8. In addition to the measures FMC Devens has taken to prevent the introduction and

spread of COVID-19 in the institution, as set forth in my previous declaration, FMC Devens

received its first rapid Abbot test machine on April 29, 2020, and began to immediately rapid-test

1 FMC Devens was not one of these sites. 2https://www.bop.gov/resources/news/pdfs/20200507_press_release_expanding_rapid_te sting.pdf.
2

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symptomatic inmates in order to isolate and quarantine them more quickly in an effort to decrease the chance ofspread of COVID-19.
9. A short time later, FMC Devens received a second rapid Abbot test machine. Both machines have been used, simultaneously, to quickly test both symptomatic inmates, and asymptomatic inmates who had close contact with an inmate who tested positive for COVJD-19.
10. The BOP began testing of asymptomatic inmates to assist in slowing transmissions within a correction setting. As a result, an increase in the number of COVID-19 positive tests has been reflected in the BOP's numbers.
11. FMC Devens began testing asymptomatic inmates beginning in March, 2020, when inmates had risk factors for close contact with known COVID-19 positive individuals. Once the institution had positive cases, testing in asymptomatic housing units took place to make sure there were no additional positive carriers who were potential vectors. FMC Devens also tested every inmate at the institution during the last two weeks of May, 2020.
12. As a result of increased testing capabilities and the delivery ofadditional tests, FMC Devens was able to test all inmates in the institution. Additionally, continued asymptomatic inmate testing within units was conducted if there was a positive COVID-19 result in the unit, or if an inmate was within close contact of a COVID-positive inmate.
Add itional Isolation Unit Created after Several Positive COVID-19 Results 13. In late May, 2020, several inmates housed in the sex offender unit (G Unit) tested positive for COVID-19 in the same day. The G Unit has a first and second fl oor. Four inmates on the first floor sex offender unit reported to sick call that they had fatigue, cough and or fever. They were assessed and tested for COVJD-19 and all 4 were positive. In response to the positive test results, all inmates on both floors of G Unit were tested, although there were no other symptomatic inmates on either floor at that time. As a result, approximately 20 inmates tested positive for COVID. A ll ofthe inmates who tested positive came out ofthe first floor sex offender unit. FMC Devens immediately went into full facility lockdown and began testing all inmates in
3

Case 1:20-cv-10738-GAO Document 58-2 Filed 06/09/20 Page 4 of 5
every housing unit to ensure there were no asymptomatic vectors with COVID-19. The lockdown effectively prevents any inmates from coming into contact with inmates from other housing units. In addition, FMC Devens established the first floor of G unit as an Isolation unit and all inmates who tested negative for COVID-19 were moved into a quarantine unit where they would not be exposed to the positive G-A Unit inmates. The quarantine inmates began a 14-day quarantine in this separate housing unit to mitigate the outbreak from further spread in case some of these inmates developed COVID - 19 during the known I4-day incubation period of COVID-19. Unit G-A (the first floor of G Unit) inmates were then isolated in the unit to prevent exposure and reduce the spread of the virus with an emphasis on PPE and Isolation infection control
precautions. Donning and doffing stations for PPE were established on the unit and education of
custody officers began on every shift prior to its start. The inmates from G-B who all tested negative were not moved from their unit as they are physically separated from the first floor of G Unit.
14. A 14-day continuation of the institution lockdown was enforced to ensure there was adequate time for any potentiaJly exposed asymptomatic inmates to convert to a positive COVID-19 test or to begin showing symptoms that would trigger an automatic COVID-19 test and move to isolation. All of the asymptomatic housing units were then re-tested for COVID-19 during the 14-day lockdown to ensure that all inmates were negative prior to discontinuing the lockdown.
Test-Based Strategy Before Discontinuation oflsolation Precautions 15. As inmates who were positive for COVID-19 neared the end of their required 14day isolation period, they began to convert to being COVID-19 negative. These are in a "recovered" status, and they will be able to leave restrictive housing and return to their normal housing units. Some COVID-19 positive inmates do not convert to negative for several weeks and these inmates will remain in isolation on infection control precautions until they meet the CDC Testing Based Strategy fo r discontinuation of isolation precautions.
4

Case 1:20-cv-10738-GAO Document 58-2 Filed 06/09/20 Page 5 of 5

16. FMC Devens will be using the CDC's strictest guidelines for Discontinuation of Isolation Precautions. The strategy is called the "Test-Based Strategy," and can be found at https://www.cdc.gov/coronavirus/20 I9-ncov/hep/disposition-hospitalized-patients.htmI.
17. Before discontinuation of isolation precautions, inmates will be required to have gone 3 consecutive days without a fever, have a resolution of respiratory symptoms, and have two negative COVID- 19 tests taken more than 24 hours apart from each other. The requirement for two tests will decrease the likelihood that one negative test is a false negative, and will help reassure that the inmate is COVID-1 9 negative before the isolation precautions are discontinued.
18. FMC Devens will continue its diligent testing and isolation/quarantine strategy to prevent the spread of COVID-19 within the institution, including separating from general population all inmates who develop symptoms or who have close contact with a suspected COVID-19 positive individual. In addition, the institution will immediately return to a lockdown status ifthere are any signs that a new outbreak of cases is occurri ng in any housing unit.

I declare the foregoing is true and correct to the best of my knowledge and belief, and is

CJ+- given under the penalty of perjury pursuant to 28 U.S.C. § 1746, this

day of June, 2020.

Respectfully submitted,

MEGAN SHAW, M.D. Clinical Director FMC Devens

5

 
 Case 1:20-cv-10738-GAO Document 63 Filed 07/02/20 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,

Petitioners V.

CIVIL ACTION 20-10738-GAO

STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,

Respondents

ORDER OF DISMISSAL

O’TOOLE

S.U.S.D.J.

,

In accordance with the Court's Opinion and Order of June 11, 2020, it is hereby ORDERED that the above-entitled action be and hereby is DISMISSED .because the complaint did not properly state a claim under section 2241.

By the Court,

7/2/2020 Date

/s/ Paul Lyness Deputy Clerk

Case 1:20-cv-10738-GAO Document 63 Filed 07/02/20 Page 2 of 2

 
 Case 1:20-cv-10738-GAO Document 4 Filed 04/15/20 Page 1 of 24

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,
Petitioners, v.
STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,
Respondents.

No. 20-cv-10738-GAO

MEMORANDUM IN SUPPORT OF MOTION FOR IMMEDIATE BAIL CONSIDERATION, TEMPORARY RESTRAINING ORDER, AND PRELIMINARY INJUNCTIVE RELIEF

William W. Fick, BBO# 650562 Daniel N. Marx, BBO# 674523 Amy Barsky, BBO# pending FICK & MARX LLP 24 Federal Street, 4th Floor Boston, MA 02210 857-321-8360 wfick@fickmarx.com dmarx@fickmarx.com abarsky@fickmarx.com

Matthew R. Segal, BBO# 654489 Jessie J. Rossman, BBO #670685 ACLU FOUNDATION OF MASSACHUSETTS, INC. 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org jrossman@aclum.org

Case 1:20-cv-10738-GAO Document 4 Filed 04/15/20 Page 2 of 24
INTRODUCTION “The COVID-19 global pandemic threatens all of us,”1 but “correctional institutions face unique difficulties in keeping their populations safe during this pandemic.”2 And these life-threatening conditions pose a special threat to FMC Devens, which houses many of the oldest and most medically vulnerable prisoners in the entire federal prison system. Yet the Respondents, Warden Stephen Spaulding and BOP Director Michael Carvajal, have failed to take necessary measures to mitigate that threat, in violation Eighth Amendment rights of Petitioners and proposed Class Members. Immediate judicial action is necessary to reduce the population of FMC Devens to a level that is sufficient to ensure effective social distancing, thereby reducing the spread of COVID-19, preventing serious illness—and, ultimately, saving the lives of prisoners, staff, and people in the surrounding community.
1 Savino v. Souza, No. 20-cv-10617-WGY, 2020 U.S. Dist. LEXIS 61775, at *7 (D. Mass. Apr. 8, 2020); see Declaration of Joe Goldenson, M.D. (Apr. 14, 2020) (“Goldenson Decl.”) ¶¶ 6-16, attached as Exhibit 1. 2 Savino, 2020 U.S. Dist. LEXIS 61775, at *7 (quoting Comm. for Pub. Counsel Servs. v. Chief Justice of the Trial Ct., 484 Mass. 431, 436 (2020)); see Goldenson Decl. ¶¶ 17-27.
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FACTUAL BACKGROUND Because there is no vaccine, cure, or proven therapeutic treatment for COVID-19, the only public health measures that have proven effective in limiting the spread of potentially deadly infections are strict social distancing and diligent hygiene practices. See Goldenson Decl. ¶ 16.3 The Centers for Disease Control and Prevention (“CDC”) recommends that everyone practice “social distancing,” even among people with no symptoms, because asymptomatic and pre-symptomatic people can transmit the virus to others.4 Also known as “physical distancing,” “social distancing” means “stay[ing] at least 6 feet from other people” and “stay[ing] out of crowded places.”5 Social distancing is no less important for prisoners at FMC Devens than it is for personnel in the federal courthouse or members of the public at large. “Although social distancing is challenging to practice in correctional and detention environments, it is a cornerstone of reducing transmission of respiratory diseases
3 See also CDC, “Coronovirus Disease (COVID-19),” (updated Apr. 7, 2020) (“There are no drugs or other therapeutics approved by the U.S. Food and Drug Administration to prevent or treat COVID-19. Current clinical management includes infection prevention and control measures and supportive care, including supplemental oxygen and mechanical ventilatory support when indicated.”), available at https://www.cdc.gov/coronavirus/2019-ncov/hcp/therapeuticoptions.html (last accessed Apr. 14, 2020). 4 CDC, “Social Distancing,” available at https://www.cdc.gov/coronavirus/2019ncov/prevent-getting-sick/social-distancing.html (last accessed Apr. 13, 2020). 5 Id.
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such as COVID-19.”6 Because “many individuals with COVID-19 do not display
symptoms, the virus could be present in facilities before cases are identified. Both
good hygiene practices and social distancing are critical in preventing further
transmission.”7
In fact, preventing the rampant spread of infection at FMC Devens may be
more important than in almost any other institutional setting. By design, FMC
Devens houses many of the oldest and most medically vulnerable prisoners in the
entire BOP system. These are the people who, if infected, are most likely to require
advanced support and intensive care; they also face the greatest risks of serious
illness and death.8
But effective social distancing is impossible at FMC Devens, both in the
Medical Center and the Camp. See Declaration of Alexander Grinis (Apr. 13, 2020)
6 CDC, “Interim Guidance for Correctional and Detention Facilities.” (“Social distancing is the practice of increasing the space between individuals and decreasing the frequency of contact to reduce the risk of spreading a disease (ideally to maintain at least 6 feet between all individuals, even those who are asymptomatic.”)), available at https://www.cdc.gov/coronavirus/2019ncov/community/correction-detention/guidance-correctional-detention.html (last accessed Apr. 13, 2020).
7 Id.
8 See Sharon Begley, “Who Is Getting Sick, and How Sick? A Breakdown of Coronavirus Risk by Demographic Factors,” STAT NEWS (Mar. 3, 2020), available at https://www.statnews.com/2020/03/03/who-isgetting-sick-and-how-sick-abreakdown-of-coronavirus-risk-by-demographic-factors/; see also Jason Oke & Carl Heneghan, “Global Covid-19 Case Fatality Rates,” Oxford COVID-19 Evidence Service (Mar. 28, 2020) (“Patients with comorbid conditions had much higher [fatality] rates.”), available at https://www.cebm.net/covid-19/global-covid-19-casefatality-rates/.
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(“Grinis Decl.”), ¶ 7, attached as Exhibit 2; Declaration of Michael Gordon (Apr. 13, 2020) (“Gordon Decl.”), ¶ 8, attached as Exhibit 3; Declaration of Angel Soliz (Apr. 13, 2020) (“Soliz Decl.”), ¶ 7, attached as Exhibit 4; see generally Goldenson Decl. ¶¶ 17-19 (“Space and resource limitations—and the resulting inability of inmates and employees to practice social distancing—make it extremely difficult to effectively quell the explosive growth of a highly contagious virus.”); id. ¶¶ 21-23 (“[P]risoners are physically unable to practice social distancing,” consistent with CDC guidelines, and “[b]ecause of this, incarcerated individuals are less able to protect themselves from being exposed to and becoming infected with infectious diseases, such as COVID-19.”); cf. Calderon Jimenez v. Cronen, No. 18-cv-10225MLW (D. Mass. Mar. 26, 2020) [DE 507-1 at 4] (recognizing “[s]ocial distancing is difficult or impossible” in prisons).
The limited steps that FMC Devens has reportedly taken, thus far, to prevent, detect, and treat cases of COVID-19 in the Medical Center and Camp fail to comply with even the most minimal recommendations of public health experts, and those steps are “clearly not enough to mitigate the risk of a surge of COVID-19 infections at the facility.” Goldenson Decl. ¶ 35. For example, taking the temperatures of prisoners and staff who already show symptoms of COVID-19, such as fever, sneezing, or coughing, “will not prevent the infection from infiltrating” FMC Devens, or spreading throughout the facility, because “individuals who are asymptomatic, either during the early stages of infection or throughout their entire
4

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period of infection” can unknowingly transmit the virus to others and shed the virus to surfaces and objects that others touch. Id. ¶ 36.
Indeed, Respondents are “flying blind” without adequate testing, so they do not—and cannot know—how many prisoners and staff may already be infected at FMC Devens. As of this filing, the BOP has not implemented any national testing protocol to detect the actual incidence of COVID-19 cases in FMC Devens or other institutions.9 Although 17 prisoners at FMC Devens had reportedly been tested as of April 7, 2020, all with negative results,10 that figure represents less than 2 percent of the facility’s total population, and it almost certainly understates the actual number of infections in the Medical Center and Camp, due to limited testing and dubious disclosures.11
Moreover, despite the assurances from Respondent Carvajal and directions from Attorney General William Barr, the BOP is moving far too slowly to address the COVID-19 pandemic. As of April 14, 2020, 444 federal prisoners and 248
9 See Frank G. Runyeon, “NY Prison’s Uneven COVID-19 Testing Puts Inmates At Risk,” Law360 (Apr. 10, 2020), available at https://www.law360.com/articles/1262694/ny-prisons-uneven-covid-19-testing-putsinmates-at-risk. 10 See United States v. Turner, No. 17-cr-132 (E.D. Pa.) (letter from U.S. Attorney’s Office to Judge Baylson) [DE #44 at 1]. 11 See Walter Pavlo, “Bureau Of Prisons Underreporting COVID-19 Outbreaks In Prison,” Forbes (Apr. 1, 2020), available at https://www.forbes.com/sitetis/walterpavlo/2020/04/01/bureau-of-prisonsunderreporting-outbreaks-in-prison/#487c61f27ba3; see Gordon Decl. ¶ 8 (noting prisoners in various and staff have “appear[ed] to be sick” and “suffering flu-like symptoms” in recent weeks).
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correctional staff, across 44 institutions, have tested positive for COVID-19, representing a jump of more than 100 confirmed cases in just one day.12 Notably, half of the Medical Centers in the BOP system (Butner, Carswell and Forth Worth) have already reported multiple cases.13 Yet the BOP continues to fail to take full advantage of its statutory authorities to quickly and significantly reduce the population at FMC Devens to prevent deadly outbreaks before they occur.
LEGAL ARGUMENT Both “the light of reason” and “the expert advice of the CDC” demand that this Court take immediate action “to reduce the population” at FMC Devens in sufficient number, and with sufficient speed, to prevent the spread of deadly infection, especially among older, medically vulnerable prisoners, “so that all those who remain (including staff)” may be better protected.” Savino, 2020 U.S. Dist. LEXIS 61775, at *26-27. I. Petitioners and other Class Members should be considered for immediate release on personal recognizance or bail pending a decision in these habeas proceedings. In these habeas proceedings pursuant to 28 U.S.C. § 2241, this Court has “inherent power to release the petitioner[s],” and other similarly situated federal prisoners at FMC Devens, “pending determination of the merits.” Woodcock v. Donnelly, 470 F.2d 93, 94 (1st Cir. 1972) (per curiam). “Such authority may be
12 See BOP, “COVID-19 Cases,” available at https://www.bop.gov/coronavirus/ (last accessed Apr. 14, 2020). As of April 14, 2020, 388 federal prisoners and 201 correctional staff had tested positive. 13 See id.
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exercised in the case of ‘a health emergency,’ where the petitioner has also demonstrated a likelihood of success on the merits.” Savino, 2020 U.S. Dist. LEXIS 61775, at *26-27 (“diligently entertaining bail applications while the petition for habeas corpus are pending”).
The COVID-19 pandemic is such an emergency, because “some infected people die,” and “if [a habeas] petitioner is infected and dies, the case will be moot,” and “[t]he habeas remedy will be ineffective.” Calderon Jimenez v. Cronen, No. 18cv-10225-MLW (D. Mass. Mar. 26, 2020) (granting immediate interim release of class member in habeas proceeding) [DE 507-1 at 4]. And as described infra Section II(B), Petitioners are likely to succeed on the merits of their Eighth Amendment claim.
One court in this district, and courts elsewhere, have granted such preliminary habeas relief to civil immigration detainees who also face risks of infection, illness, and death due to COVID-19. See, e.g., Avendano-Hernandez v. Decker, No. 20-cv-1589 (JPO) (S.D.N.Y. Apr. 1, 2020) (ordering immediate release of habeas petitioner); Calderon Jimenez v. Wolf, No. 18-cv-10225-MLW (D. Mass. Mar. 26, 2020) (finding “extraordinary circumstances exist that make the grant of bail necessary . . . to make the habeas remedy effective”). Indeed, in Savino, the court has repeatedly exercised “its authority to order bail for habeas petitioners under the reigning ‘exceptional circumstances’ of this nightmarish pandemic.” Savino, 2020 U.S. Dist. LEXIS 61775, at *27 (quoting Glynn v. Donnelly, 470 F.2d 95, 98 (1972)).
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Since that case was filed on March 27, the court has released 43 detainees on bail, pending a decision on the merits of their underlying habeas claims.
Similarly, this Court should immediately implement an efficient and effective process for identifying all those prisoners at FMC Devens who may be released on personal recognizance or bail pending a decision on the merits in this habeas proceeding. II. Immediate judicial action is necessary to protect Petitioners, other
Class Members, and the general public from the dangers of the COVID-19 pandemic. For a temporary restraining order, a petitioner “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “[W]hen the government is the opposing party,” the third and fourth factors—whether the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is denied and weighing the public interest—“merge.” Nken v. Holder, 556 U.S. 418, 435 (2009). For a preliminary injunction, a petitioner must make a substantially similar showing to obtain relief. See Largess v. Supreme Jud. Ct. for the Com. of Mass., 317 F. Supp. 2d 77, 81 (D. Mass. 2004). The purpose of a TRO is “preserving the status quo and preventing irreparable harm just so long as is necessary to hold a hearing[.]” Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70 of Alameda Cnty., 415 U.S. 423, 439 (1974). Thus, this Court may issue a temporary
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restraining order without waiting for any response from Respondents, or holding an adversary hearing, if it finds that “immediate and irreparable injury . . . will result to the movant before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1). Here, immediate judicial action is warranted, because the “risk of injury”— or worse, death—“is traceable to the government’s act of confining” Petitioners and Class Members “in close quarters” at FMC Devens, where they cannot engage in effective social distancing, yet that imminent danger “would of course be redressable by a judicial order of release or other ameliorative relief.” Savino, 2020 U.S. Dist. LEXIS 61775, at *13.
A. In the absence of immediate relief, Petitioners and other Class Members will suffer irreparable harm—infection, serious illness, and death.
Respondents have responsibility for, and control over, Petitioners and Class Members, yet Respondents have failed to comply with public health recommendations, including CDC guidelines, to protect the prisoners at FMC Devens. Respondents have not only failed to implement effective social distancing, but they have also prevented—and continue to prevent—prisoners from taking steps to protect themselves. As a result, “FMC Devens is a tinder-box that is waiting to explode with a surge of COVID-19 infections” among Petitioners and the proposed Class Members. Goldenson Decl. ¶ 34.
The facility has a high number of medically vulnerable individuals living in conditions where they are unable to practice any kind of meaningful physical distancing or maintain proper hygiene. The failure to routinely clean bathrooms and surfaces like phones and computers after every use creates a perfect pathway for the transmission of the virus. The facility is not a closed environment, with
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correctional officers and new prisoners arriving daily, and many people circulating amongst the units for jobs and medical treatment. And most important, the current population levels and physical structures do not allow prisoners or correctional officers to follow CDC’s recommendation to maintain 6 feet of distance between themselves. Id.; see generally id. ¶ 26 (stating that “outbreaks of COVID-19 in jails, prisons, and detention centers in the U.S. are inevitable” and, therefore, that “[r]eleasing as many individuals as possible is important to protect the health of those incarcerated” as well as “custodial, health care, and other facility staff and the community as a whole”). Petitioners or other Class Members will inevitably suffer infections unless immediate, remedial measures are taken, including reducing the population at FMC Devens such that effective social distancing becomes possible. Many prisoners will get severely ill; some will suffer permanent injury to their lungs or other organs; and others will die, “the single most irreparable harm of all.” Turner v. Epps, 842 F. Supp. 2d 1023, 1028 (S.D. Miss. 2012). See Goldenson Decl. ¶¶ 11-12, 14. “In this moment of worldwide peril from a highly contagious pathogen, the government cannot credibly argue that [Petitioners and Class Members] face no ‘substantial risk’ of harm (if not ‘certainly impending’) from being confined in close quarters in defiance of the sound medical advice that all other segments of society now scrupulously observe.” Savino, 2020 U.S. Dist. LEXIS 61775, at *13. It makes no difference whether, as of this filing, there are confirmed infections among
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prisoners and staff at FMC Devens. Prisoners who are not yet known to be infected, or who are incarcerated in facilities that the BOP has not publicly identified as “materially affected” by the COVID-19 pandemic, cannot be disregarded as “remote bystanders” to worsening public health crisis in the federal prison system, because ”[t]hey are that system’s next victims.” Brown v. Plata, 563 U.S. 493, 532 (2011).
B. Petitioners and other Class Members are likely to succeed on the merits of their Eighth Amendment claim.
“Prisoners retain the essence of human dignity inherent in all persons,” and “[r]espect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.” Plata, 563 U.S. at 510 (citing Atkins v. Virginia, 536 U.S. 304, 311 (2002) (“The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.” (internal quotations omitted))).
“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994). “[W]hen the State by the affirmative exercise of its power so restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs – e. g., . . . medical care, and reasonable safety – it transgresses the substantive limits on state action set by the Eighth Amendment.” DeShaney v. Winnebago Cnty. Dep’t of Social Servs., 489 U.S. 189, 199-200 (1989). “Contemporary standards of decency require no less.” Helling v. McKinney, 509 U.S. 25, 32 (1993) (citing Estelle v. Gamble, 429 U.S. 97, 103-05 (1976)). “A prison that deprives prisoners of . . . . adequate medical care is
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incompatible with the concept of human dignity and has no place in civilized
society.” Plata, 563 U.S. at 511.
Of particular significance here, incarcerating prisoners in crowded conditions
that expose them to infectious disease violates the prohibition on cruel and unusual
punishment.
In Hutto v. Finney, 437 U.S. 678, 682 (1978), we noted that inmates in punitive isolation were crowded into cells and that some of them had infectious maladies such as hepatitis and venereal disease. This was one of the prison conditions for which the Eighth Amendment required a remedy, even though it was not alleged that the likely harm would occur immediately and even though the possible infection might not affect all of those exposed. We would think that a prison inmate could also successfully complain about demonstrably unsafe drinking water without waiting for an attack of dysentery. Nor can we hold that prison officials may be deliberately indifferent to the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate shows no sign of current symptoms.
Helling, 509 U.S. at 33; see Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982)
(holding it is “cruel and unusual punishment to hold convicted criminals in unsafe
conditions”); Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (holding “correctional
officials have an affirmative obligation to protect [forcibly confined] inmates from
infectious disease”); see generally Plata, 563 U.S. at 519 (“Crowding . . . creates
unsafe and unsanitary living conditions that hamper effective delivery of medical
and mental health care.”).
A prison official acts with “deliberate indifference” to the substantial risk of
serious harm, such as from the spread of infectious disease among prisoners, when
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he “knows of but disregards an excessive risk” to the health or safety of prisoners. Farmer, 511 U.S. at 837. This Court “may conclude” that Respondents know of the substantial risk from the COVID-19 pandemic “from the very fact that the risk [is] obvious.” Id. at 842. Respondent Carvajal has publicly acknowledged that “[t]he COVID pandemic is creating unique challenges” for the BOP and has already resulted in hundreds of positive cases among prisoners and staff as well as numerous deaths.14
Although strict social distancing is the only effective means to prevent the spread of COVID-19, it is impossible at FMC Devens, both in the Medical Center and the Camp. See Gordon Decl. ¶ 8 (“It is impossible to stay six feet away from other inmates.”); Soliz Decl. ¶ 7 (same); Grinis Decl. ¶ 7 (same). At almost all times, prisoners are “very close together,” and they are “not instructed to maintain distance from each other.” Gordon Decl. ¶ 9. Staff have “not provided [prisoners] with any specific education about COVID-19 except that wearing masks and washing hands frequently is recommended.” Soliz Decl. ¶ 12.
Some Medical Center prisoners are housed in open, dormitory-style units, where they sleep in two-person bunk beds and move around freely. See Gordon Decl. ¶¶ 8, 15. Within “open” units, Medical Center prisoners also share common showers and toilets. See id. ¶ 8. They also share common phones and computers, which are clustered together and not cleaned between uses. See id. ¶ 9. Throughout the day,
14 Michael Carvajal, Video Transcript of Message to BOP Staff (Apr. 10, 2020), available at https://prisonology.com/wp-content/uploads/2020/04/COVID-19-Videotranscript-of-BOP-Director-Michael-Carvajal.pdf (last accessed Apr. 14, 2020).
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prisoners move in and out of their units, for programming, recreation, and medical treatment, and during these times, prisoners are required to move in line together, only inches apart, and they often congregate in groups. See id. ¶¶ 11-14. For example, prisoners must “march in line to pick up meals from the ‘chow hall’” and then return to the unit to eat; they “sit four or five to a table,” so “it is not possible to maintain six feet of separation from each other during meals.” Id. ¶ 14.
Others Medical Center prisoners are housed in units with two-person cells that each contain a bunk bed, toilet, and sink. See Soliz Decl. ¶ 7. Within these “closed” units, approximately 120 prisoners share 12 common showers that are “often dirty and littered with used soap, used band-aids, used razors, and other debris.” Id. ¶ 8-9. They also share 4 common phones and 5 common computers that are “very close together” and “not cleaned between users.” Id. ¶ 10. Although prisoners in closed units no longer eat in common areas (they now eat in their cells), they must go to the dining hall, pick up their food, and return to the unit to eat. See id. ¶ 9. They also “must stand in line next to each other to receive their medications.” Soliz Decl. ¶¶ 11.
Conditions are similarly cramped for prisoners in the Camp. See Grinis Decl. ¶ 7. There are more than 100 prisoners in the Camp, and they are housed in an open, dormitory-style space, where they sleep in open cubicles, with no doors and walls that do not extend to ceiling. See id. Most cubicles are occupied by 4 prisoners in 2 bunk beds; some are occupied by 2 prisoners in a single bunk bed. See id. All Camp prisoners share 12 common toilets, sinks, and showers. See id. ¶ 8. Prisoners
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are tasked with cleaning these facilities twice per day, and they are “often not sanitary.” Id. Moreover, no free soap is available to Camp prisoners, and hand sanitizer is only available in the kitchen. See id. ¶ 9. Camp prisoners also share 4 telephones and 5 computers, which are clustered close together and not cleaned between users. See id. ¶ 11. Meals are eaten in the Camp; prisoners stand “very close together” in line to be served food, and they eat at communal tables. Id. ¶ 12.
Given these conditions, “persons currently detained at FMC Devens are at significantly greater risk of contracting COVID-19 than if they were permitted to shelter in place in their home communities,” and “[i]f infected they are at increased risk of suffering severe complications and outcomes.” Goldenson Decl. ¶ 39. Respondents’ failure to minimize these known risks by reducing the population at FMC Devens, through compassionate release and/or transfer to home confinement, in order to enable effective social distancing among the remaining prisoners, amounts to deliberate indifference to infection, illness, and death from COVID-19.
“[I]n order to meaningful[ly] decrease the risk of COVID-19 infections at FMC Devens, the facility must reduce the prisoner population sufficiently to ensure social distancing and permit personal hygiene in compliance with CDC guidelines.” Id. ¶ 40. Nevertheless, Respondents Spaulding and Carvajal have failed to use the BOP’s statutory authority to reduce the prisoner population at FMC Devens, and Respondent Spaulding has also denied, or failed to respond to, requests by Petitioners for compassionate release or, in the alternative, transfer to home
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confinement. See Soliz Decl. ¶ 5 (denied); Gordon Decl. ¶ 20 (no response); Grinis Decl. ¶ 5 (no response).
Since March 26, 2020, when Attorney General Barr issued his first memorandum directing Respondent Carvajal to “utilize home confinement, where appropriate, to protect the health and safety of BOP personnel and the people in our custody,” Barr Mem. (Mar. 26, 2020) at 1, attached as Exhibit 5, the BOP has reportedly placed 1,019 prisoners on home confinement.15 That figure represents less than 0.5 percent of the total inmate population in BOP custody. Although no specific statistics are publicly available for FMC Devens, if the BOP has transferred a proportionate number of prisoners from the Medical Center or Camp to home confinement, it would have moved only 5 or 6 prisoners, leaving the remaining prisoners—who still cannot socially distance per CDC guidelines and who are at high risk—vulnerable to infection, serious illness, and death.
These meager efforts pale in comparison to the more urgent steps taken, some weeks ago, by some state officials to significantly reduce the populations of prisons and jails, enable social distancing, and slow the spread of COVID-19.16
15 See BOP, “Frequently Asked Questions regarding potential inmate home confinement in response to the COVID-19 pandemic,” available at https://www.bop.gov/coronavirus/faq.jsp (last accessed Apr. 13, 2020). 16 See, e.g., Tracey Tully, “1,000 Inmates Will Be Released from N.J. Jails to Curb Coronavirus Risk,” The New York Times (Mar. 23, 2020), available at https://www.nytimes.com/2020/03/23/nyregion/coronavirus-nj-inmates-release.html; Bernadette Hogan, “Cuomo Orders 1,100 parole violators released from jails over coronavirus concerns,” The New York Post (Mar. 27, 2020), available at https://nypost.com/2020/03/27/cuomo-orders-1100-parole-violators-released-fromjails-over-coronavirus-concerns/; “Kentucky plans to release more than 900
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These states have done much more, far faster, for their own prison populations than the BOP has accomplished for its national prison system.
C. The balance of equities favors immediate relief, and the public interest demands it.
The urgent need to comply with the Eighth Amendment by protecting prisoners—especially elderly and medically vulnerable prisoners at FMC Devens— from infection, disease, and death outweighs any interest in continuing to incarcerate them in a BOP facility or any possible harm to Respondents. Indeed, neither Respondent Spaulding nor Respondent Carvajal will suffer any harm if this Court orders them to fulfill their “profound obligation[s] to protect the health and safety” of all prisoners at FMC Devens. Barr Mem. (Apr. 3, 2020) at 1, attached as Exhibit 6 (recognizing that the duty to “administer the lawful punishments that our justice system imposes” on the entire BOP “a profound obligation to protect the health and safety of all inmates”); see also Barr Mem. (Mar. 26, 2020) at 1.
Meanwhile, there is a “strong public interest in ensuring that the detainees of correctional facilities are treated in a human fashion.” Mattsen v. Massimiano, No. 78-cv-2454-F, 1983 U.S. Dist. LEXIS 11891, at *12 (D. Mass. Nov. 8, 1983) (citing Preiser v. Newkirk, 422 U.S. 395, 402 (1974)). And “[i]t is always in the public interest to prevent the violation of a party’s constitutional rights.” Jackson Women’s
prisoners because of the COVID-19 outbreak,” WDRB.com (Apr. 2, 2020), available at https://www.wdrb.com/news/kentucky-plans-to-release-more-than-900-prisonersbecause-of-the-covid-19-outbreak/article_aef84282-7541-11ea-8a18efe5a8cf107d.html; “Inslee: 950 nonviolent offenders will get early release to fight spread of coronavirus in state prisons,” Q13 Fox News (Apr. 13, 2000), available at https://q13fox.com/2020/04/13/inslee-950-nonviolent-offenders-will-get-early-releaseto-fight-spread-of-coronavirus-in-state-prisons/.
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Health Org. v. Currier, 760 F.3d 448, 458 n.9 (5th Cir. 2014) (quoting Awad v.
Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012)); see Miller v. City of Cincinnati, 622
F.3d 524, 540 (6th Cir. 2010) (“When a constitutional violation is likely . . ., the
public interest militates in favor of injunctive relief[.]”); Preminger v. Principi, 422
F.3d 815, 826 (9th Cir. 2005) (“[P]ublic interest concerns are implicated when a
constitutional right has been violated, because all citizens have a stake in upholding
the Constitution.”).
Moreover, putting aside the risks to the prisoners themselves, the public
interest also demands aggressive efforts to control outbreaks in prisons, such as
FMC Devens, because infections within prison walls will inevitably spread outside
them.
Experts warn that an outbreak in correctional institutions has broader implications for the Commonwealth’s collective efforts to fight the pandemic. First, the DOC has limited capacity to offer the sort of specialized medical interventions necessary in a severe case of COVID-19. Thus, as seriously ill individuals are transferred from correctional institutions to outside hospitals, any outbreak in a correctional institution will further burden the broader health care system that is already at risk of being overwhelmed. Second, correctional, medical, and other staff enter and leave correctional institutions every day. Should there be a high concentration of cases, those workers risk bringing infections home to their families and broader communities. CPCS v. Trial Ct., 484 Mass. 431, 437 (2020); see Goldenson Decl. ¶ 27 (“It is
difficult to overstate the devastation that a COVID-19 outbreak can inflict on the
prisoners, correctional staff and their surrounding communities.”) (emphasis added).
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Public health experts recently explained, in the New England Journal of
Medicine, that immediate and extensive “efforts to decarcerate” are necessary to
protect people inside and outside of prisons.
The boundaries between communities and correctional institutions are porous, as are the borders between countries in the age of mass human travel. Despite security at nearly every nation’s border, Covid-19 has appeared in practically all countries. We can’t expect to find sturdier barriers between correctional institutions and their surrounding communities in any affected country. . . .
To promote public health, we believe that efforts to decarcerate, which are already under way in some jurisdictions, need to be scaled up; and associated reductions of incarcerated populations should be sustained. The interrelation of correctional-system health and public health is a reality not only in the United States but around the world.17 In the early 1990s, a tuberculosis epidemic broke out in New York City; it
began in local jails and was spread to the general public by correctional staff who
became infected and, then, returned home to their families and communities. See
Goldenson Decl. ¶ 27. The same could occur with COVID-19: “due to the frequent
ingress and egress of employees at [BOP] facilities, an outbreak within [FMC
Devens] can quickly spread to surrounding communities.” Id. (emphasis added).
Indeed, the risk of such community transmission is especially high for FMC Devens
17 Matthew J. Akiyama, M.D., Anne C. Spaulding, M.D., and Josiah D. Rich, M.D., “Flattening the Curve for Incarcerated Populations — Covid-19 in Jails and Prisons,” New England Journal of Medicine (Apr. 9, 2020), available at https://www.nejm.org/doi/pdf/10.1056/NEJMp2005687?articleTools=true.
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which houses a population of medically vulnerable prisoners that require travel outside the institution for medical treatment.
Finally, any countervailing “public safety” concerns—that is, the fear that a significant release of prisoners will cause a crime wave—are unwarranted, overblown, and outweighed by the real, imminent risk of serious illness and death. First, as noted above, the safety of prisoners at FMC Devens is a matter of “public safety.” Further, the Medical Center houses many prisoners that, due to their advanced age and/or poor health, pose no dangers to the community, and the Camp houses mostly non-violent offenders who are serving short sentences or otherwise nearing release. Prisoners transferred to home confinement would remain in BOP custody, and those granted compassionate release would remain on supervised release. Others who may be released on bail, pending a merits decision in this habeas proceeding, could be subject to appropriate release conditions, and they will face severe consequences for any failure to appear or other misconduct. Prisoners, like the rest of us, would also be required to comply with state and local “shelter in place” directives, significantly diminishing any asserted threat to public safety. Cf. Thakker v. Doll, No. 1:20-cv-480, 2020 U.S. Dist. Lexis. 59459, at *26 (M.D. Pa. Mar. 31, 2020) (holding that balance of equities favors release of immigration detainees during COVID-19 pandemic in part because failure to appear already carries grave consequences and travel is currently restricted).
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Case 1:20-cv-10738-GAO Document 4 Filed 04/15/20 Page 22 of 24 CONCLUSION
For the foregoing reasons, Petitioners respectfully request that this Court allow their Motion for the Immediate Consideration of Bail, a Temporary Restraining Order, and Preliminary Injunctive Relief.
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Respectfully submitted,

ALEXANDER GRINIS, MICHAEL GORDON, ANGEL SOLIZ, and others similarly situated,

By their attorneys,

/s/ William W. Fick William W. Fick, BBO# 650562 Daniel N. Marx, BBO# 674523 Amy Barsky, BBO# pending FICK & MARX LLP 24 Federal Street, 4th Floor Boston, MA 02210 857-321-8360 wfick@fickmarx.com dmarx@fickmarx.com abarsky@fickmarx.com

Matthew R. Segal, BBO# 654489 Jessie Rossman, BBO #670685 ACLU FOUNDATION OF MASSACHUSETTS, INC. 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org jrossman@aclum.org

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Case 1:20-cv-10738-GAO Document 4 Filed 04/15/20 Page 24 of 24

CERTIFICATE OF SERVICE I, William Fick, certify that I have caused the foregoing document to be served by e-mail PDF upon AUSA Ray Farquhar, Civil Chief (D. Mass.), on April 15, 2020. Because the government declined to waive formal service under Fed. R. Civ. P. 4, on that same day, I traveled in person to a U.S. Post Office to send the document to the following recipients by certified U.S. Mail:

U.S. Attorney’s Office Attn: Civil Process Clerk One Courthouse Way Boston, MA 02210
Michael Carvajal, Director Federal Bureau of Prisons 320 First St., NW Washington, DC 20534

Attorney General of the United States 950 Pennsylvania Ave NW Washington, DC 20530
Stephen Spaulding, Warden FMC Devens 42 Patton Road Devens, MA 01434

/s/ William Fick

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Exhibit 1

Case 1:20-cv-10738-GAO Document 4-1 Filed 04/15/20 Page 2 of 16

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON and ANGEL SOLIZ, on behalf of themselves and thos similarily situated,
Petitioners,

Case No. _20_-_1_07_3_8_-G__AO

v.

STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities
Respondents.

DECLARATION OF DR. JOE GOLDENSON
Pursuant to 28 U.S.C. § 1746, I, Dr. Joe Goldenson, declare as follows:
1. I am a medical physician with 33 years of experience in correctional health care. For 28 years, I worked for Jail Health Services of the San Francisco Department of Public Health. For 22 of those years, I served as the Director and Medical Director. In that role, I provided direct clinical services, managed public health activities in the San Francisco County jail, and administered the correctional health enterprise, including its budget, human resources services, and medical, mental health, dental, and pharmacy services.
2. I served as a member of the Board of Directors of the National Commission on Correctional Health Care for eight years and was past President of the California chapter of the American Correctional Health Services Association. In 2014, I received the Armond Start Award of Excellence from the Society of Correctional Physicians, which recognizes its recipient as a representative of the highest ideals in correctional medicine.
3. For 35 years, I held an academic appointment as an Assistant Clinical Professor at the University of California, San Francisco.
4. I have worked extensively as a correctional health medical expert and court monitor. I have served as a medical expert for the United States District Court for the Northern District of California for 25 years. I am currently retained by that Court as a medical expert in Plata v. Newsom, Case No. 3:01-cv-01351 (N.D. Cal.), to evaluate medical care provided to inmate patients in the California Department of Correctional Rehabilitation. I have also served as a medical expert and monitor at Cook County Jail

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in Chicago and Los Angeles County Jail, at other jails in Washington, Texas, and Florida, and at prisons in Illinois, Ohio, and Wisconsin.
5. A true and correct copy of my current curriculum vitae is attached as Exhibit A to this declaration.
I. General Conditions of COVID-19
6. COVID-19 is a serious disease that has reached pandemic status. As of April 14, 2020, there are at least 1,848,439 confirmed cases of COVID-19 worldwide, including 553,822 confirmed cases in the United States. At least 117,217 people have died, including 21,972 in the United States.1 These numbers have been increasing at an alarmingly rapid rate, reflecting the exponential growth of infections. Because these numbers include only laboratory confirmed cases, they likely understate the actual number of cases and deaths. Most medical and public health experts agree that the situation, which is already dire, will continue to worsen over the coming weeks to months.
7. COVID-19 is a highly contagious respiratory illness. The Centers for Disease Control and Prevention (“CDC”) estimates that the reproduction rate of the virus, the R0, is 2.43.8, meaning that each newly infected person is estimated to infect on average 3 additional persons. Only the great influenza pandemic of 1918 is thought to have higher infectivity.
8. COVID-19 is transmitted between persons in close proximity (within about six feet) by airborne droplets released by infected individuals when they cough, speak, or sneeze. The droplets can survive in the air for up to three hours. It may also be possible for an individual to become infected by touching a surface or object that has the virus on it and then touching his or her own mouth, nose, or possibly eyes. Infected droplets can survive on surfaces for variable lengths of time, ranging from up to four hours on copper, to 24 hours on cardboard, to 2-3 days on plastic or stainless steel.
9. Signs and symptoms of COVID-19 may appear 2 to 14 days after exposure and may include fever, cough, and shortness of breath or difficulty breathing.
10. A significant number of infected individuals do not exhibit symptoms. This poses a significant public health problem, because asymptomatic individuals—either before the onset of symptoms or because no symptoms will ever manifest—can nevertheless transmit the disease to others. According to the CDC, up to 25 percent of people
1 World Health Organization, Coronavirus disease (COVID-19) Situation Dashboard, https://who.sprinklr.com/ (accessed Apr. 14, 2020).
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infected with COVID-19 will remain asymptomatic.2 These asymptomatic and mildly symptomatic individuals can, and do, transmit the virus, contributing to its rapid spread.
11. For those who exhibit symptoms, they can become severe, and can lead to hospitalization, the need for intensive care, and in some instance, death. The overall case fatality rate has been estimated to range from .3 to 3.5%, which is 5-35 times the fatality associated with influenza infection.
12. The fatality rate increases with age and for those with conditions that make them particularly susceptible to the virus. Because the primary cause of death due to COVID19 is respiratory failure, patients with pre-existing pulmonary disease who become infected are more at risk for respiratory failure due to their underlying lung disease. Patients with pre-existing cardiac disease are at risk because cardiac output increases during severe infections. If the heart is already compromised, such an increase can exacerbate a patient’s underlying heart disease. Furthermore, some patients also may have severe cardiovascular damage as a result of COVID-19 infection. Medications for certain chronic conditions, such as liver or kidney disease, can also reduce the body’s ability to fight infection.
13. The CDC has determinated that the following underlying conditions may increase the risk of serious COVID-19 for individuals of any age:
 Diabetes;  blood disorders, such as sickle cell disease or usage of blood thinners;  chronic kidney disease;  chronic liver disease, such as cirrhosis or chronic hepatitis;  compromised immune systems (immunosuppression), including those
caused by cancer, transplant recipients for organs or bone marrow, and HIV or AIDS;  current or recent pregnancy;  endocrine disorders;  metabolic disorders;  heart disease, such as congenital heart disease, congestive heart failure, and coronary artery disease;  lung disease, including asthma or chronic obstructive pulmonary disease or other chronic conditions associated with impaired lung function; and  neurological and neurologic and neurodevelopment conditions, including disorders of the brain, spinal cord, peripheral nerve, and muscle such as cerebral palsy, epilepsy (and other seizure disorders), stroke, intellectual disability, moderate to severe developmental delay, muscular dystrophy, or spinal cord injury.
2 Apoorva Mandavilli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. Times (Mar. 31, 2020), https://www.nytimes.com/2020/03/31/health/coronavirus-asymptomatictransmission.html.
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14. A study of the fatality rates for patients with COVID-19 and co-morbid conditions has been found to be “13.2% for those with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer.”3 This disease also “can kill healthy adults in addition to elderly people with existing health problems.”4
15. There is currently no medical treatment for COVID-19, other than supportive measures, and no vaccine.
16. Because there is no vaccine, there are just two ways to prevent the spread of COVID19: physical social distancing (keeping persons separated by at least six feet) and hygiene (i.e., frequent handwashing with soap or hand sanitizer, wearing of masks, covering mouth and nose when coughing or sneezing, and cleaning and disinfecting flat and hard surfaces). Individuals must be able to practice physical social distancing for hygiene to have a meaningful impact. Reflecting this reality, as of April 7, 2020, at at least 42 states had issued stay-at-home orders.5
II. COVID-19 in Detention Facilities
17. The risk of exposure to and transmission of infectious diseases, as well as the risk of harm from developing severe complications or death if infected,6 is significantly higher in jails, prisons, and detention centers than in the community.
18. While jails, prisons, and detention centers are often thought of as closed environments, this is not the case. Custody, medical, and other support staff and contractors enter and leave the facility throughout the day. New detainees arrive on a frequent basis. Since there is no effective way to screen for newly infected or asymptomatic individuals, they can unknowingly transmit COVID-19 to those housed in the facility.
19. In addition, current recommendations for social distancing, frequent hand washing, and frequent cleansing of surfaces to prevent infection and the spread of the virus are extremely difficult, if not impossible, to implement in the correctional setting. Space and resource limitations—and the resulting inability of inmates and employees to practice social distancing—make it extremely difficult to effectively quell the explosive growth of a highly contagious virus.
3 Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), World Health Organization (Feb. 28, 2020), at 12, https://www.who.int/docs/defaultsource/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf. 4 Bill Gates, Responding to Covid-19 – A Once-in-a-Century Pandemic?, The New England Journal of Medicine (February 28, 2020), nejm.org/doi/full/10.1056/NEJMp2003762. 5 Sarah Mervosh, Denise Lu and Vanessa Swales, See Which States and Cities Have Told Residents to Stay at Home, N.Y. Times, (Apr. 7, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html 6 Active case finding for communicable diseases in prisons, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
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20. Sufficient soap and/or hand sanitizer is often not available for prisoners and staff to wash their hands frequently enough. Housing units are commonly poorly ventilated, which facilitates the transmission of airborne illnesses such as COVID-19.
21. Most important, prisoners are housed in close, crowded quarters, often sharing bunkbeds in a single room or in open dormitories. They also share eating areas, toilets, sinks, showers, telephones and other common areas, which are commonly not disinfected adequately, especially during the current pandemic when more frequent cleaning and disinfecting are required. Food preparation and distribution is often centralized for an entire facility. Guards and other facility staff routinely have direct physical contact with prisoners, especially when handcuffing or removing handcuffs from prisoners who are entering or exiting the facility.
22. As a result of these conditions, prisoners are physically unable to practice social distancing, which CDC has identified as a “cornerstone of reducing transmission of respiratory diseases such as COVID-19.”7
23. Because of this, incarcerated individuals are less able to protect themselves from being exposed to and becoming infected with infectious diseases, such as COVID-19.
24. These physical conditions are especially challenging because it is well-accepted within the medical community that, due to the burden of chronic illnesses and other persistent health challenges of many of those housed in correctional facilities, incarcerated individuals are physiologically 10 years older than their chronological age. Because physiological age is more relevant when evaluating risk of complications from COVID19, even younger incarcerated individuals could be at heightened risk of severe complications.
25. Correctional facilities largely lack the robust medical care infrastructure, including staff and resources, that would be necessary to deal with a COVID-19 outbreak.
26. Given these conditions, outbreaks of COVID-19 in jails, prisons and detention centers in the U.S. are inevitable. Releasing as many individuals as possible is important to protect the health of those incarcerated, custodial, health care, and other facility staff, and the community as a whole. Indeed, according to the World Health Organization, “enhanced consideration should be given to resorting to non-custodial measures at all stages of the administration of criminal justice, including at the pre-trial, trial and sentencing as well as post-sentencing stages.”8
7 Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/ coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html. 8 World Health Organization, Regional Office for Europe, Preparedness, prevention and control of COVID-19 in prisons and other places of detention: Interim guidance (Mar. 15, 2020),
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27. It is difficult to overstate the devastation that a COVID-19 outbreak can inflict on the prisoners, correctional staff and their surrounding communities. Given the conditions described above, the infection can spread rapidly within the facility. What is more, because jails and prisons lack the capacity to provide ICU treatment, prisoners with severe cases of COVID-19 must be transferred to community hospitals, further straining their already scarce resources. Finally, due to the frequent ingress and egress of employees at these facilities, an outbreak within a jail, prison, or detention center can quickly spread to surrounding communities. For example, the tuberculosis epidemic that broke out in New York City in the early 1990s began in jails and was spread to the community by jail employees who became infected and then returned home to their families and communities.
III. Risk of COVID-19 at FMC Devens
28. In making my assessment of the danger of COVID-19 at FMC Devens, I have reviewed the declarations of Alexander Grinis, Michael Gordon, and Angel Soliz. I have also reviewed the April 8, 2020 letter submitted by the United States Attorney in United States v. James Turner, No. 17-132.
29. My understanding is that FMC Devens is an administrative security medical center of nearly 1,000 prisoners with an adjacent minimum security satellite camp of more than 100 prisoners.
30. Based on the Grinis declaration, it is my understanding that prisoners detained in the minimum security “camp” sleep in a communal space with approximately 100 other prisoners in open 7 by 9 feet cubes that they share with 1 to 3 other prisoners in bunk beds. It is my understanding that all of the camp prisoners share 12 toilets, sinks and showers that are cleaned just twice a day. They also share 4 telephones and 5 computers that are not cleaned between uses, and eat their meals at communal tables after standing very close together to get their food. Camp prisoners work in different areas throughout the facility, including buildings outside of the camp.
31. Based on the Gordon declaration, it is my understanding that prisoners detained in the H-B unit sleep in 65 open cubicles that they share with another prisoner in a bunk bed. It is my understanding that the prisoners detained in the H-B unit share 4 toilets, 6 urinals and 6 shower stalls, as well as a single sink to clean cooking and eating utensils. They also share 4 phones and 5 computers that are not cleaned between uses, and eat their meals at tables of 4 or 5 people after standing inches from each other to get their food. Correctional staff move between the different units. Several prisoners in this unit leave the unit several times a week to go the dialysis facility on the compound.
32. Based on the Soliz declaration, it is my understanding that the approximately 120 prisoners detained in the J-B unit sleep in 2 man cells with a sink and toilet. They share
http://www.euro.who.int/__data/assets/pdf_file/0019/434026/Preparedness-prevention-andcontrol-of-COVID-19-in-prisons.pdf.
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12 showers that are usually dirty, and also share 4 phones and 5 computers that are not cleaned between uses. Prisoners in the J-B unit eat in their unit after they pick up their meals in the dining hall; they also stand in line together to receive their medications.
33. All of the declarants emphasize that new prisoners continue to enter their unit and that it is impossible for them to maintain six feet of distance from other individuals in their unit.
34. In my professional judgment, FMC Devens is a tinder-box that is waiting to explode with a surge of COVID-19 infections. The facility has a high-number of medically vulnerable individuals living in conditions where they are unable to practice any kind of meaningful physical distancing or maintain proper hygiene. The failure to routinely clean bathrooms and surfaces like phones and computers after every use creates a perfect pathway for the transmission of the virus. The facility is not a closed environment, with correctional officers and new prisoners arriving regularly, and many people circulating amongst the units for jobs and medical treatment. And most important, the current population levels and physical structures do not allow prisoners or correctional officers to follow CDC’s recommendation to maintain six feet of distance between themselves.
35. I have reviewed the United States Attorney’s description in Turner of the steps they have taken at FMC Devens in light of the pandemic, and in my professional opinion it is clearly not enough to mitigate the risk of a surge of COVID-19 infections at the facility.
36. Given the high percentage of individuals who are asymptomatic either during the early stages of infection, or throughout their entire period of infection, FMC Devens’ limited “screening” procedures of taking individuals’ temperatures will not prevent the infection from infiltrating the facility.
37. What is more, while the letter describes some additional hygiene procedures— such as the use of a disinfectant “known to be active against COVID-19” and the distribution of soap and three masks per month to prisoners—physical distancing is the most important element of preventing the transmission of the disease. Even under the “modified lockdown” at FMC Devens, prisoners are completely unable to successfully implement physical distancing at the current population levels and design capacity of the facilities. Until they are able to consistently do so, no other efforts will meaningfully decrease the risk of COVID-19 infection.
IV. Conclusion
38. For the reasons above, it is my professional opinion that persons currently detained at FMC Devens are at significantly greater risk of contracting COVID-19 than if they were permitted to shelter in place in their home communities. If infected, they are at increased risk of suffering severe complications and outcomes, including death.
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39. It is my public health recommendation that in order to meaningful decrease the risk of COVID-19 infections at FMC Devens, the facility must reduce the prisoner population sufficiently to ensure social distancing and permit personal hygiene in compliance with CDC guidelines.
40. It is my professional opinion that it is uneccessary and harmful to automatically quarantine asymptomatic prisoners for two weeks in solitary confinement in the Special Housing Unit (“SHU”) prior to release. Even solitary confinement in the facility cannot prevent the spread of infection due to ongoing contact with staff members. What is more, such confinement is unnecessarily traumatic and punitive for the prisoners. Instead, the Bureau of Prisons should work to ensure that prisoners are released to a place where they can maintain medically appropriate isolation for at least 14 days.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 14th day of April 2020.
___________________ Joe Goldenson, M.D.
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Exhibit A

Case 1:20-cv-10738-GAO Document 4-1 Filed 04/15/20 Page 11 of 16 CURRICULUM VITAE JOE GOLDENSON, MD BERKELEY, CA 94703

EDUCATION

Post Graduate Training

February 1992

University of California, San Francisco, CPAT/APEX

Mini-Residency in HIV Care

1979-1980

Robert Wood Johnson Fellowship in Family Practice

1976-1979

University of California, San Francisco

Residency in Family Practice

Medical School 1973-1975
1971-1973

Mt. Sinai School of Medicine, New York M.D. Degree University of Michigan, Ann Arbor

Undergraduate Education

1967-1971

University of Michigan, Ann Arbor

B.A. in Psychology

PROFESSIONAL EXPERIENCE

Practice Experience 1993-2015
1991-1993
1990-1991
1987-1990
1980-1987 1975-1976

Director/Medical Director Jail Health Services San Francisco Department of Public Health Medical Director Jail Health Services San Francisco Department of Public Health Chief of Medical Services, Hall of Justice Jail Health Services San Francisco Department of Public Health Staff Physician Jail Health Services San Francisco Department of Public Health Sabbatical Staff Physician United Farm Workers Health Center, Salinas, CA

Case 1:20-cv-10738-GAO Document 4-1 Filed 04/15/20 Page 12 of 16

Consulting 6/16-8/19 4/02-Present
6/14-9/14 6/10-12/13
6/08-6/12 5/08-9/09 1/08
9/07-1/10
8/06-8/12
6/05 11/02-4/03 4/02-8/06
1/02-3/02
8/01-4/02 7/01-4/02 1/96-1/14 5/95-6/08
3/98-12/98

Consultant to Los Angeles Department of Health Services re: provision of health care services in the LA County Jail Federal Court Medical Expert, Plata v. Newsome, Class Action Lawsuit re: prisoner medical care in California State Prison System Medical expert for the Illinois Department of Corrections and the ACLU of Illinois Federal Court appointed Medical Monitor, U.S.A. v. Cook County, et al., United States District Court for the Northern District of Illinois, No. 10 C 2946, re: medical care in the Cook County Jail Member, Plata v. Schwarzenegger Advisory Board to the Honorable Thelton E. Henderson, U.S. District Court Judge Medical Expert for ACLU re Maricopa County Jail, Phoenix, AZ Member of the National Commission on Correctional Health Care’s Technical Assistance Review Team for the Miami Dade Department of Corrections Federal Court appointed Medical Expert, Herrera v. Pierce County, et al., re: medical care at the Pierce County Jail, Tacoma, WA State Court Appointed Medical Expert, Farrell v. Allen, Superior Court of California Consent Decree re medical care in the California Department of Juvenile Justice Member of Technical Assistance Review Team for the Dallas County Jail Medical Expert for ACLU re Jefferson County Jail, Port Townsend, Washington Federal Court Medical Expert, Austin, et. al vs Wilkinson, et al, Class Action Law Suit re: Prisoner medical care at the Ohio State Penitentiary Supermax Facility Consultant to the Francis J. Curry, National Tuberculosis Center re: Tuberculosis Control Plan for the Jail Setting: A Template (Jail Template), Medical Expert for ACLU re Wisconsin Supermax Correctional Facility, Boscobel, WI Medical Expert for Ohio Attorney General’s Office re Ohio State Prison, Youngstown, OH Member and Surveyor, California Medical Association Corrections and Detentions Health Care Committee Medical Expert for the Office of the Special Master, Madrid vs Alameida, Federal Class Action Law Suit re: Prisoner medical care at the Pelican Bay State Prison Supermax Facility Member, Los Angeles County Department of Public Health Jail Health Services Task Force

Case 1:20-cv-10738-GAO Document 4-1 Filed 04/15/20 Page 13 of 16

2/98 6/94

Medical Expert, Department of Justice Investigation of Clark County Detention Center, Las Vegas, Nevada Surveyor, National Commission on Correctional Health Care, INS Detention Center, El Centro, CA

Work Related Committees

1/14 to present

Member, Editorial Advisory Board, Correctional Health Care

10/11 to 5/19 5/07-10/12
12/04-3/06

Report Member, Board of Directors of the National Commission on Correctional Health Care Liaison to the CDC Advisory Council for the Elimination of Tuberculosis (ACET) from the National Commission on Correctional Health Care Member of the CDC Advisory Council for the Elimination of

Tuberculosis (ACET) Ad Hoc Working Group on the Prevention

6/03-8/03

and Control of Tuberculosis in Correctional and Detention Facilities: Recommendations from CDC (MMWR 2006; 55(No. RR-9)) Member of the Advisory Panel for the Francis J. Curry National Tuberculosis Center and National Commission on Correctional Health Care, 2003: Corrections Tuberculosis Training and

3/02-1/03 6/01-1/15 3/01 9/97-6/02

Education Resource Guide Member of the Advisory Committee to Develop the Tuberculosis Control Plan for the Jail Setting: A Template (Jail Template), Francis J. Curry, National Tuberculosis Center Director’s Cabinet San Francisco Department of Public Health Consultant to Centers for Disease Control on the Prevention and Control of Infections with Hepatitis Viruses in Correctional Settings (MMWR 2003; 52(No. RR-1)) Member, Executive Committee of Medical Practice Group, San

Francisco Department of Public Health

3/97-3/02
3/96-6/12 2/00-12/00
12/98-12/00

American Correctional Health Services Association Liaison with American Public Health Association Chairperson, Bay Area Corrections Committee (on tuberculosis) Medical Providers’ Subcommittee of the Office-based Opiate Treatment Program, San Francisco Department of public Health Associate Chairperson, Corrections Sub-Committee, California Tuberculosis Elimination Advisory Committee

7/94-7/96 6/93-6/95 2/92-2/96

Advisory Committee for the Control And Elimination of Tuberculosis, San Francisco Department of Public Health Managed Care Clinical Implementation Committee, San Francisco Department of Public Health Tuberculosis Control Task Force, San Francisco Department of Public Health

3/90-7/97

San Francisco General Hospital Blood Borne Pathogen Committee

Case 1:20-cv-10738-GAO Document 4-1 Filed 04/15/20 Page 14 of 16

1/93-7/93

Medical Staff Bylaws Committee, San Francisco Department of Public Health

ACADEMIC APPOINTMENT

1980-2015

Assistant Clinical Professor

University of California, San Francisco

PROFESSIONAL AFFILIATIONS Society of Correctional Physicians, Member of President’s Council, Past-Treasurer and Secretary American Correctional Health Services Association, Past-President of California Chapter American Public Health Association, Jails and Prison’s Subcommittee Academy of Correctional Health Professionals

PROFESSIONAL PRESENTATIONS Caring for the Inmate Health Population: A Public Health Imperative, Correctional Health Care Leadership Institutes, July 2015 Correctional Medicine and Community Health, Society of Correctional Physicians Annual Meeting, October, 2014 Identifying Pulmonary TB in Jails: A Roundtable Discussion, National Commission on Correctional Health Care Annual Conference, October 31, 2006 A Community Health Approach to Correctional Health Care, Society of Correctional Physicians, October 29, 2006 Prisoners the Unwanted and Underserved Population, Why Public Health Should Be in Jail, San Francisco General Hospital Medical Center, Medical Grand Rounds, 10/12/04
TB in Jail: A Contact Investigation Course, Legal and Administrative Responsibilities, Francis J. Curry National Tuberculosis Center, 10/7/04
Public Health and Correctional Medicine, American Public Health Association Annual Conference, 11/19/2003
Hepatitis in Corrections, CA/NV Chapter, American Correctional Health Services Association Annual Meeting, 1/17/02
Correctional Medicine, San Francisco General Hospital Medical Center, Medical Grand Rounds, 12/16/02
SuperMax Prisons, American Public Health Association Annual Conference, 11/8/01
Chronic Care Programs in Corrections, CA/NV Chapter, American Correctional Health Services Association Annual Meeting, 9/19/02
Tuberculosis in Corrections - Continuity of Care, California Tuberculosis Controllers Association Spring Conference, 5/12/98
HIV Care Incarcerated in Incarcerated Populations, UCSF Clinical Care of the AIDS Patient Conference, 12/5/97
Tuberculosis in Correctional Facilities, Pennsylvania AIDS Education and Training Center, 3/25/93

Case 1:20-cv-10738-GAO Document 4-1 Filed 04/15/20 Page 15 of 16
Tuberculosis Control in Jails, AIDS and Prison Conference, 10/15/93 The Interface of Public Health and Correctional Health Care, American Public Health Association Annual Meeting, 10/26/93 HIV Education for Correctional Health Care Workers, American Public Health Association Annual Meeting, 10/26/93
PUBLICATIONS Structure and Administration of a Jail Medical Program. Correctional Health Care: Practice, Administration, and Law. Kingston, NJ: Civic Research Institute. 2017. Structure and Administration of a Jail Medical Program – Part II. Correctional Health Care Report. Volume 16, No. 2, January-February 2015. Structure and Administration of a Jail Medical Program – Part I. Correctional Health Care Report. Volume 16, No. 1, November-December 2014. Pain Behind Bars: The Epidemiology of Pain in Older Jail Inmates in a County Jail. Journal of Palliative Medicine. 09/2014; DOI: 10.1089/jpm.2014.0160 Older jail inmates and community acute care use. Am J Public Health. 2014 Sep; 104(9):1728-33.
Correctional Health Care Must be Recognized as an Integral Part of the Public Health Sector, Sexually Transmitted Diseases, February Supplement 2009, Vol. 36, No. 2, p.S3–S4 Use of sentinel surveillance and geographic information systems to monitor trends in HIV prevalence, incidence, and related risk behavior among women undergoing syphilis screening in a jail setting. Journal of Urban Health 10/2008; 86(1):79-92. Discharge Planning and Continuity of Health Care: Findings From the San Francisco County Jail, American Journal of Public Health, 98:2182–2184, 2008 Public Health Behind Bars, Deputy Editor, Springer, 2007 Diabetes Care in the San Francisco County Jail, American Journal of Public Health, 96:1571-73, 2006 Clinical Practice in Correctional Medicine, 2nd Edition, Associate Editor, Mosby, 2006. Tuberculosis in the Correctional Facility, Mark Lobato, MD and Joe Goldenson, MD, Clinical Practice in Correctional Medicine, 2nd Edition, Mosby, 2006. Incidence of TB in inmates with latent TB infection: 5-year follow-up. American Journal of Preventive Medicine. 11/2005; 29(4):295-301.
Cancer Screening Among Jail Inmates: Frequency, Knowledge, and Willingness Am J Public Health. 2005 October; 95(10): 1781–1787 Improving tuberculosis therapy completion after jail: translation of research to practice. Health Education Research. 05/2005; 20(2):163-74. Incidence of TB in Inmates with Latent TB Infection, 5-Year Follow-up, American Journal of Preventive Medicine, 29(4), 2005
Prevention and Control of Infections with Hepatitis Viruses in Correctional Settings, Morbidity and Mortality Reports, (External Consultant to Centers for Disease Control),Vol. 52/No. RR-1 January 24, 2003
Randomized Controlled Trial of Interventions to Improve Follow-up for Latent

Case 1:20-cv-10738-GAO Document 4-1 Filed 04/15/20 Page 16 of 16
Tuberculosis Infection After Release from Jail, Archives of Internal Medicine, 162:10441050, 2002
Jail Inmates and HIV care: provision of antiretroviral therapy and Pneumocystis carinii pneumonia prophylaxis, International Journal of STD & AIDS; 12: 380-385, 2001 Tuberculosis Prevalence in an urban jail: 1994 and 1998, International Journal of Tuberculosis Lung Disease, 5(5):400-404, 2001 Screening for Tuberculosis in Jail and Clinic Follow-up after Release, American Journal of Public Health, 88(2):223-226, 1998
A Clinical Trial of a Financial Incentive to Go to the Tuberculosis Clinic for Isoniazid after Release from Jail, International Journal of Tuberculosis Lung Disease, 2(6):506512,1998
AWARDS Armond Start Award of Excellence, Society of Correctional Physicians, 2014 Award of Honor, San Francisco Board of Supervisors, 2014 Award of Honor, San Francisco Health Commission, 2014 Certificate of Appreciation, San Francisco Public Defender’s Office, 2014 Certificate for Excellence in Teaching, California Department of Health Services, 2002 Employee Recognition Award, San Francisco Health Commission, July 2000 Public Managerial Excellence Award, Certificate of Merit, San Francisco, 1997
LICENSURE AND CERTIFICATION Medical Board of California, Certificate #A32488 Fellow, Society of Correctional Physicians Board Certified in Family Practice, 1979-1986 (Currently Board Eligible)

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Exhibit 2

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Declaration of Alexander Grinis 1. I am currently in custody at FMC Devens “Camp.” My Bureau of Prisons (“BOP”) Register Number is 01014-138. 2. I am 49 years old. 3. I am serving a sentence of 9 months arising from a conviction for making false statements on a loan application. The BOP calculates my release date to be June 16, 2020. 4. I have been told that I will be released to a halfway house on or about May 21, 2020. I have also been told that I will be required to spend two weeks in solitary confinement in the “SHU” or Special Housing Unit of the Devens prison as a form of quarantine prior to my release to the halfway house. 5. On April 10, 2020, I submitted by U.S. Mail a request to the Warden for compassionate release or in the alternative for release to home confinement under the Barr Memo and the CARES Act. I have not received a response to this request. 6. I have a medical history of hypertension and atypical chest pain. I am concerned that I may get COVID-19 and become very sick. 7. It is not possible to stay six feet away from other inmates. I am housed in the “camp” with approximately 100 other inmates. We all sleep in the same space, divided into “cubes” of approximately 7 by 9 feet. The cubes are open, without doors. The walls of the cubes do not go to the ceiling, they are between 5 to 6 feet tall. Approximately one third of the cubes contain a two-person bunk bed while the remaining cubes contain two two-person bunk beds. 8. There are 12 toilets, 12 sinks, and 12 showers shared among all of the inmates in the camp. These facilities are often not sanitary. They are supposed to be cleaned twice per day by inmates at 7 a.m. and 11 a.m.
Page 1 of 2

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9. Soap is available for purchase but not otherwise provided. Hand sanitizer is only available in the kitchen.
10. Camp inmates work during the day in different areas of the camp and outside of the camp in other buildings and areas of the facility. I work in the cafeteria of the camp.
11. There are 4 telephones and 5 computers in the camp, clustered together. They are not cleaned between users.
12. Meals are eaten in the camp. Inmates stand in line for food very close together and eat at communal tables.
13. Inmates are not provided with any specific education or instruction about COVID-19 except that wearing masks and washing hands frequently is recommended.
14. Most, but not all, staff have started wearing masks. Staff rarely wear gloves 15. Starting in April, inmates were provided with three face masks each, to last for a month. 16. New inmates are still coming into the camp. I do not know if they are quarantined first. 17. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
/s/ Alexander Grinis April 13, 2020
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Exhibit 3

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Exhibit 4

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Declaration of Angel Soliz 1. I am currently in custody at FMC Devens. My Bureau of Prisons (“BOP”) Register Number is 70926-079. 2. I am 59 years old. 3. I am serving a sentence of 240 months arising from a conviction for conspiracy and possession with intent to distribute methamphetamine. The BOP calculates my release date to be September 13, 2033. 4. I suffer from kidney disease and require dialysis. I also had a triple bypass and am diabetic. 5. I submitted a request to Warden Spaulding for compassionate release, which was denied. I then pursued administrative remedies which also were denied. 6. Because of my medical conditions, I am vulnerable to COVID-19 and at high risk of severe complications or death if I am infected. 7. It is not possible to stay six feet away from other inmates. I live in the “J-B” unit with approximately 120 other inmates. The unit is composed of cells housing two inmates each. The cells contain a sink and toilet and have doors that are closed and locked at night and during count times. 8. Inmates in the unit share 12 showers. They showers are often dirty and littered with used soap, used band-aids, used razors, and other debris. 9. Previously, inmates in the unit would eat meals in the dining hall. Recently, however, we have started bringing food back to our cells to eat. 10. There are 4 phones and 5 computers in the unit that are very close together. They are not cleaned between users.
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11. When medications are provided inmates must stand in line next to each other to receive their medications.
12. Inmates are not provided with any specific education or instruction about COVID-19 except that wearing masks and washing hands frequently is recommended.
13. Most, but not all, staff have started wearing masks and gloves. 14. Starting in April, inmates were provided with three face masks each, to last for a month. 15. New inmates are still coming into the unit. I do not know if they are quarantined first. 16. I declare under the penalty of perjury that the contents of this declaration are true and correct to the best of my knowledge. I will sign a hard copy of this declaration at my earliest opportunity.
/s/ Angel Soliz April 13, 2020
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 Case 1:20-cv-10738-GAO Document 6 Filed 04/15/20 Page 1 of 21

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,
Petitioners, v.
STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,
Respondents.

No. 20-cv-10738-GAO

MEMORANDUM IN SUPPORT OF PETITIONERS’ MOTION FOR CLASS CERTIFICATION OR REPRESENTATIVE HABEAS ACTION
Background This action is filed on behalf of a highly vulnerable putative class: prisoners held at Federal Medical Center in Devens, Massachusetts (“FMC Devens” or “Devens”), all of whom are at grave risk of contracting COVID-19 because of the lifethreatening, congregate conditions under which they are confined. Common questions of both fact and law pervade this matter, and a unified remedy to ameliorate conditions by reducing the population to permit social or physical distancing would address the injury to all Class Members. Respondents1 have acted

1 Respondents in this action are Stephen Spaulding, Warden of FMC Devens, who has immediate custody of Petitioners and all proposed Class Members, and Michael Carvajal, Director of the Federal Bureau of Prisons, who is responsible for the safety and security of all persons, including Petitioners and all proposed Class Members, serving federal sentences at BOP facilities, including FMC Devens. Both are sued in their official capacities.
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or refused to act on grounds applicable to the class as a whole, making class certification appropriate here. Specifically, Respondents have maintained a population and conditions that make it impossible to abide by the CDC’s recommended physical distancing. In fact, Respondents repeatedly force class members into situations—while sleeping, eating, recreating and receiving medication—where they have no choice but to be within far less than six feet of other prisoners and staff. The requested relief seeks to alleviate these dangerously unconstitutional conditions for the entire class.
The proposed class meets the requirements of Federal Rules of Civil Procedure 23(a) and (b). The class is sufficiently numerous: more than 1,000 individuals are currently imprisoned at FMC Devens.2 All Class Members are bound together by common questions of law and fact —whether conditions of confinement at FMC Devens unconstitutionally threaten their health and safety in the face of the lethal COVID-19 pandemic. The named Petitioners are proper class representatives because their claims are typical of the class as a whole and because they and their counsel will adequately and vigorously represent the class. Finally, Rule 23(b)(2) is satisfied here because Respondents have “acted or refused to act on grounds that apply generally to the class” by creating and maintaining conditions that put the class at imminent risk of catastrophic COVID-19 infection.
2 See https://www.bop.gov/locations/institutions/dev/. 2

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According to the Centers for Disease Control and Prevention (“CDC”), COVID-19 is spread from person-to-person, when people are in close proximity to one another (within about 6 feet), through respiratory droplets produced when someone speaks, coughs, or sneezes, including through the touch of shared surfaces.3 See Declaration of Joe Goldenson, M.D. (Apr. 14, 2020) (“Goldenson Decl.”) ¶ 8.4 There is no vaccine or cure for the illness. The only known measures that can be taken to reduce the risk of contracting COVID-19 are social distancing and scrupulous hygiene. See id. ¶ 16.5 The ability to socially distance is a necessary predicate for hygiene to have any meaningful impact. See id. The calls to adopt these measures throughout the world have led entire nations, states, and cities to “lock down,” in an extraordinary and unprecedented battle to impose physical distance between people to stop the spread of the deadly virus. See id.
Medical and correctional experts alike have recognized the obvious risk presented in crowded and confined environments like prisons. Incarcerated individuals “are at special risk of infection, given their living situations,” and “may
3 See also, e.g., Allison Aubrey, The New Coronavirus Can Live on Surfaces for 2–3 Days—Here’s How To Clean Them, NPR (Mar. 14, 2020), available at https://www.npr.org/sections/health-shots/2020/03/14/811609026/the-newcoronavirus-can-live-on-surfaces-for-2-3-days-heres-how-to-clean-them. 4 All declarations cited herein have been submitted as exhibits to the Memorandum in Support of Petitioners’ Motion for Immediate Bail Consideration, Temporary Restraining Order, and Preliminary Injunctive Relief. 5 CDC, Coronavirus Disease (COVID-19): How to Protect Yourself, (Mar. 18, 2020), available at https://www.cdc.gov/coronavirus/2019-ncov/prepare/prevention.html. (“The best way to prevent illness is to avoid being exposed to this virus.”).
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also be less able to participate in proactive measures to keep themselves safe.”6 See
also Goldenson Decl. ¶¶ 17-27, 34. These risks are compounded at FMC Devens—
one of just 7 administrative security federal medical centers—which houses elderly
and medically vulnerable populations.
Recognizing these risks, states and municipalities have released thousands of
prisoners.7 Concerned former federal judges and United States Attorneys have
urged the use of commutation in order to protect the lives of the elderly and
medically vulnerable.8 And fourteen Senators have implored the Department of
Justice to release people through the compassionate release mechanism.9 On March
6 “Achieving A Fair And Effective COVID-19 Response: An Open Letter to VicePresident Mike Pence, and Other Federal, State, and Local Leaders from Public Health and Legal Experts in the United States,” (March 2, 2020), available at https://bit.ly/2W9V6oS.
7 See Kimberly Kindy et al., ‘Disaster waiting to happen’: Thousands of inmates released as jails and prisons face coronavirus threat, Washington Post (Mar. 25, 2020), available at https://www.washingtonpost.com/national/disaster-waiting-tohappen-thousands-of-inmates-released-as-jails-face-coronavirusthreat/2020/03/24/761c2d84-6b8c-11ea-b313df458622c2cc_story.html?utm_campaign=wp_post_most&utm_medium=email&utm _source=newsletter&wpisrc=nl_most
8 Letter to President Trump by former United States Attorneys, federal judges, Assistant United States Attorneys, and DOJ lawyers and leaders (Mar. 27, 2020), available at https://fairandjustprosecution.org/wp-content/uploads/2020/03/Letter-to-Trumpfrom-DOJ-and-Judges-FINAL.pdf ; see also Letter to president by public health professionals (Mar. 27, 2020), available at https://thejusticecollaborative.com/wpcontent/uploads/2020/03/Public-Health-Expert-Letter-to-Trump.pdf (asking president to commute sentences of “all elderly people” and medically vulnerable people).
9 Letter from Senators Durbin, Grassley, et al. to Department of Justice and Bureau of Prisons (Mar. 23, 2020), available at
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26, 2020, after urgent calls for action by public health experts, Attorney General William Barr issued a directive to the Bureau of Prisons (BOP) to “prioritize the use of home confinement as a tool for combatting the dangers that COVID-19 poses to our vulnerable inmates.”10 Among the factors AG Barr instructed the BOP to consider are “the age and vulnerability of the inmate to COVID-19” and the “security level of the facility.”11 One week later, the Attorney General issued a second directive to the BOP “expand[ing]” the group of prisoners who are eligible for home confinement based on his finding that “emergency conditions are materially affecting the functioning of the Bureau of Prisons.”12 Unfortunately, the BOP has failed to use its authority to release sufficient numbers of inmates to mitigate the COVID-19 risk. Instead, it has placed only 1,019 prisoners on home confinement
https://www.durbin.senate.gov/imo/media/doc/Letter.%20to%20DOJ%20and%20BO P%20on%20COVID-19%20and%20FSA%20provisions%20%20final%20bipartisan%20text%20with%20signature%20blocks.pdf. 10 Memorandum from Attorney General William Barr to Director of Bureau of Prisons, Increasing Use of Home Confinement at Institutions Most Affected By COVID-19 (Apr. 3 2020) at 1 (describing contents of March 26 memo) [hereinafter Barr Memo 2], Exhibit 6; see also Memorandum from Attorney General William Barr to Director of Bureau of Prisons, Prioritization of Home Confinement As Appropriate In Response To COVID-19 Pandemic (Mar. 26, 2020) [hereinafter Barr Memo 1], Exhibit 5. 11 Barr Memo 1 at 2. 12 Barr Memo 2 at 1.
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since AG Barr issued his first memorandum, on March 26, 2020, a figure representing less than 0.5 percent of the total inmate population in BOP.13
This failure flies in the face of the urgency of the situation. As of April 14, 2020, 444 federal prisoners and 248 BOP staff members, across 42 institutions, have tested positive for COVID-19.14 Conditions at FMC Devens are fundamentally inadequate and ineffective to provide any protection against the pandemic. Prisoners are in close quarters with dozens of people—not to mention rotating staff—which makes it impossible to maintain social distance from others. See Declaration of Alexander Grinis (Apr. 13, 2020) (“Grinis Decl.”) ¶ 7; Declaration of Angel Soliz (Apr. 13, 2020) (“Soliz Decl.”) ¶¶ 7-11; Declaration of Michael Gordon (Apr. 13, 2020) (“Gordon Decl.”) ¶¶ 8-16.15 Inmates are packed together while standing in line to receive medications, food, and to move about the facility, and for “rec” time. See Soliz Decl. ¶¶ 10, 11; Gordon Decl. ¶¶ 9, 11-14; Grinis Decl. ¶¶ 11, 12. They sleep in cells or cubicles with at least one other inmate. See Gordon Decl.
13 See BOP, “Frequently Asked Questions regarding potential inmate home confinement in response to the COVID-19 pandemic,” available at https://www.bop.gov/coronavirus/faq.jsp (last accessed Apr. 13, 2020). 14 See BOP, “COVID-19 Cases,” available at https://www.bop.gov/coronavirus/ (last accessed Apr. 13, 2020). 15 This is especially problematic because since the virus can be spread by asymptomatic carriers, physical distance must be maintained from all people, including those with no symptoms. See CDC, Social Distancing, Quarantine, and Isolation, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/social-distancing.html; Savino v. Souza, No. 20-10617-WGY, 2020 U.S. Dist. LEXIS 61775, *5-6 (D. Mass. April 8, 2020).
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¶ 8; Grinis Decl. ¶ 7; Soliz ¶ 7. Such conditions are perfect for the spread of the virus, through both airborne droplets and common objects touched by numerous individuals within a short span of time, such as computers, phones, dining tables, and common spaces. See Grinis Decl. ¶¶ 7-9, 11-12; Gordon ¶¶ 7-15; Soliz Decl. ¶¶ 7, 10-11; Goldenson Decl. ¶ 34.
Numerous recent court rulings have ordered jails and prisons to decrease their incarcerated population in response to the unique and catastrophic situation posed by this virus for prisoners. See, e.g., Savino v. Hodgson, No. 20-10617-WGY, 2020 U.S. Dist. LEXIS 61775, at *1 (D. Mass Mar. 27, 2020) (certifying class action by immigration detainees at Bristol County House of Corrections, seeking “release or implementation of social distancing and other hygienic practices recommended by infectious disease experts” and releasing detainees to ease crowding); Basank v. Decker, No. 20-02518-AT, 2020 U.S. Dist. LEXIS 53191, at *8-9 (S.D.N.Y. Mar. 26, 2020) (granting TRO and immediate release of ten immigrant-detainee habeas petitioners, noting “‘tinderbox scenario’ as COVID-19 spreads to immigration detention centers,” given that “[i]t will be nearly impossible to prevent widespread infections inside the… jails … because detainees live, sleep, and use the bathroom in close proximity with others, and because ‘[b]ehind bars, some of the most basic disease prevention measures are against the rules or simply impossible.’” (citations omitted)); In re Request to Commute or Suspend County Jail Sentences, Docket No. 84230 (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).
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I. PROPOSED CLASS DEFINITION Petitioners propose to represent a class of all federal prisoners who are or will
be in custody at FMC Devens (“Class”), including (1) a Subclass of all persons who, according to applicable CDC guidelines, are at high risk of injury or death due to COVID-19, due to their advanced age or medical condition(s) (“Medically Vulnerable Subclass”);16 and (2) a Subclass of all persons who are appropriate candidates for early transfer to home confinement (“Home Confinement Appropriate Subclass”) (collectively “Subclasses”). II. PROPOSED CLASS REPRESENTATIVES
The proposed class representatives are Alexander Grinis, Michael Gordon, and Angel Soliz, all of whom are currently incarcerated at FMC Devens.
Petitioner Grinis is incarcerated in the minimum-security satellite camp at FMC Devens. See Grinis Decl. ¶ 1. Grinis, who is 49 years-old and has a medical history of hypertension and atypical chest pain, is at high risk of not only contracting COVID-19, but of having a severe case that leads to serious illness or death. See id. ¶¶ 1, 6. Grinis is an appropriate candidate for compassionate release and/or immediate transfer to home confinement. He is serving a 9-month sentence based on a conviction for making a false statement on a loan application, and the BOP has calculated his release date to be June 16, 2020. See id. ¶ 3. The BOP has advised Grinis that he will be released to a halfway house on or about May 21, 2020,
16 See https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/groups-athigher-risk.html.
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and that he will be required to spend 14 days in solitary confinement in the Special Housing Unit (“SHU”) of the prison, more commonly a severe punitive sanction, as a form of quarantine prior to his release to the halfway house. See id. ¶ 4. On April 10, Grinis sent a request by U.S. Mail to Warden Spaulding for compassionate release or, in the alternative, transfer to home confinement. As of this filing, Grinis had received no response. See id. ¶ 5.
Petitioner Gordon is detained in the “H-B” unit of the medical center at FMC Devens. See Gordon Decl. ¶ 7. Gordon, who is 51-years old, underwent a liver transplant and is on immunosuppressant medication to keep his body from rejecting the liver.17 See id. ¶¶ 3-4. In addition, he suffers from hypertension, a pulmonary embolism, and deep vein thrombosis. See id. ¶ 5. Because of these conditions, he is at high risk of not only contracting COVID-19, but of having a severe case that leads to serious illness or death. See id. ¶¶ 3-5. Gordon is an appropriate candidate for compassionate release and/or immediate transfer to home confinement. He is serving a 180-month sentence based on convictions for conspiracy to distribute marijuana, conspiracy to launder money, and money laundering. See id. ¶ 2. The BOP has calculated his release date to be August 18, 2027. Id. On April 10, 2020, Gordon submitted a request to Respondent Spaulding for compassionate release or, in the alternative, transfer to home confinement. Id. ¶ 19. As of this filing, Gordon has received no response. Id.
17 See https://www.nih.gov/news-events/nih-research-matters/organ-transplantswithout-life-long-drugs.
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Petitioner Soliz is detained in the “J-B” unit of the Medical Center. Soliz Decl. ¶ 7. Soliz, who is 59 years old, has diabetes, requires dialysis and has had a triple bypass. See id. ¶¶ 2, 4. Because of these conditions, Soliz is at high risk of contracting COVID-19 and having a severe case that leads to serious illness or death. Soliz is an appropriate candidate for compassionate release and/or immediate transfer to home confinement. He is serving a 240-month sentence for conspiracy and possession with intent to distribute methamphetamine. See id. ¶ 3. The BOP has calculated his release date to be September 13, 2033. See id. Soliz submitted a request to Respondent Spaulding for compassionate release, which was denied. See id. ¶ 5. He pursued administrative remedies, which were also denied. See id.
ARGUMENT Petitioners seek certification of the class described above, pursuant to Federal Rule of Civil Procedure 23. “By its terms, [Rule 23] creates a categorical rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S.393, 398 (2010). Class certification is appropriate where the proposed class satisfies the four requirements of Rule 23(a)—numerosity, commonality, typicality, and adequacy of representation—and at least one of the categories of Rule 23(b). These criteria are met here, because the numerous prisoners who form the proposed class are all being held at the same institution and all face the risk of
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contracting the COVID-19 virus due to their conditions of confinement. Although there are distinctions among the prisoners, they are bound by the common question “whether the government must modify the conditions of confinement” to allow for physical distancing in order to comply with the Eighth Amendment to the U.S. Constitution, making the certification of a class appropriate. Savino, 2020 U.S. Dist. LEXIS 61775, at *10, 21.
A. The Proposed Class Meets the Requirements of Rule 23(a). 1. The proposed class is so numerous that joinder would be impractical. The proposed class satisfies the requirement that the class be “so numerous
that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). The First Circuit has recognized that this is a “low threshold.” Garcia-Rubiera v. Calderon, 570 F.3d 443, 460 (1st Cir. 2009). “[A] class size of forty or more will generally suffice in the First Circuit.” Reid v. Donelan, 297 F.R.D. 185, 189 (D. Mass. 2014).
There are currently more than 1,000 inmates at FMC Devens, many of whom are unrepresented, see id.at 189, and lack the financial resources to bring individual claims, Torrezani v. VIP Auto Detailing, Inc., 318 F.R.D. 548, 554 (D. Mass. 2017) (class certification is favored where the Court “can reasonably infer that substantially all of the class members have limited financial resources….”).
Moreover, new prisoners continue to be admitted to FMC Devens, see Soliz Decl. ¶ 15; Grinis Decl. ¶ 16; Gordon Decl. ¶ 18, rendering the current number of detainees “merely the floor for this numerosity inquiry[,]” Reid, 297 F.R.D. at 189.
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The fact that future prisoners form a part of the proposed class makes joinder, already an infeasible option, that much more impracticable. See id. at 189.
2. The proposed class representatives present issues of fact and law in common with the class.
Rule 23(a)(2) requires that “questions of law or fact” be “common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality requires the identification of an issue that by its nature “is capable of class-wide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Dukes v. Wal-Mart Stores, Inc., 564 U.S. 338, 350 (2011); see also Parent/Professional Advocacy League v. City of Springfield, 934 F.3d 13, 28 (1st Cir. 2019). Commonality is “a low bar,” In re New Motor Vehicles Canadian Exp. Antitrust Litig., 522 F.3d 6, 19 (1st Cir. 2008), which can be satisfied with a single common issue, see Wal-Mart, 564 U.S. at 359.
This case satisfies the commonality requirement because its resolution turns on two related questions shared by all members of the proposed class. First, do the current conditions of confinement at FMC Devens, which render social distancing impossible and significantly increase the risk of COVID-19 infection for all class members, create an unconstitutional risk of harm? And second, does the Respondents’ failure to use their authority to decrease the incarcerated population to modify the conditions of confinement to enable social distancing constitute deliberate indifference? Cf. Savino, 2020 U.S. Dist. LEXIS 61775, at *21 (citation
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omitted). This falls squarely within the kind of questions that typically satisfy commonality in class actions challenging detention conditions. See id.18
Critically, the existence of some variation between individual’s specific circumstances does not defeat commonality where, as here, the central issues of the case are common across the class. See id. at *21 (holding “the admittedly significant variation among the Detainees does not defeat commonality or typicality” where there are common questions of law and fact); Reid, 297 F.R.D. at 191; cf. Tyson Foods, Inc. v. Bouaphakeo, 136 S.Ct. 1036, 1045 (2016) (even under the more stringent standards applicable to class actions seeking damages under Rule 23(b)(3), certification is appropriate if “one or more of the central issues in the action are common to the class and can be said to predominate,” even while “other important matters will have to be tried separately, such as damages or some affirmative defenses peculiar to some individual class members”).
Here, all class members live in the same facility—many of them literally share the same air supply—run by the same Warden, with the same staff cycling in and out. They endure the same crowded conditions caused by the Respondents’
18 See also Parsons v. Ryan, 754 F.3d 657, 678, 681 (9th Cir. 2014) (finding commonality in class action challenging prison medical care policies and noting “numerous courts have concluded that the commonality requirement can be satisfied by proof of the existence of systemic policies and practices that allegedly expose inmates to a substantial risk of harm”); Yates v. Collier, 868 F.3d 354, 363 (5th Cir. 2017) (affirming district court’s finding of commonality in class action challenging prison heat risk where court found the prison’s “heat-mitigation measures—more frequent showers, cold drinking water, fans and temporary access to air-conditioned ‘respite areas’—were ineffective to reduce the risk of serious harm to a constitutionally permissible level for any inmate”).
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failure to decrease the population at FMC Devens, including shared sleeping spaces, bathrooms, phones, and computers, as well as lines for meals, medications, and movement. See Soliz Decl. ¶¶ 10, 11; Gordon Decl. ¶¶ 8, 9, 11, 12; Grinis Decl. ¶¶ 11, 12. Because of these conditions, all of the prisoners are unable to practice social distancing, which the CDC recognizes as a cornerstone of avoiding COVID-19 infections and which “all other segments of society now scrupulously observe.” Savino, 2020 U.S. Dist. Lexis 61775, at *12; see Gordon Decl. ¶¶ 7-12; Grinis Decl. ¶¶ 7-8, 11-12; Soliz ¶¶ 7-11; Goldenson Decl. ¶ 22. Since the start of the pandemic, Respondents have therefore continued to subject all class members to conditions that amount to “a tinder-box that is waiting to explode with a surge of COVID-19 infections.” Goldenson Decl. ¶ 34.
Differences in health among members of the class do not defeat commonality because all inmates—along with correctional staff—face the risk of COVID-19 infection. See Savino, 2020 U.S. Dist. LEXIS 61775, at *21. Even though “the harm of a COVID-19 infection will generally be more serious for some petitioners than for others,” commonality is satisfied because “it cannot be denied that the virus is gravely dangerous to all of us.” Id.; see also Parsons, 754 F.3d at 678 (finding commonality “although a presently existing risk may ultimately result in different future harm for different inmates—ranging from no harm at all to death” because “every inmate suffers exactly the same constitutional injury when he is exposed” to a prison policy “that creates a substantial risk of serious harm”).
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Nor do differences in suitability for bail, compassionate release, or transfer to home confinement defeat commonality. “The question is not so much whether any particular [prisoner] should be released” but whether “the government is taking reasonable steps to identify those [prisoners] who may be released in order to protect everyone from the impending threat of mass contagion” by sufficiently reducing the population to allow for physical distancing. Savino, 2020 U.S. Dist. LEXIS 61775, at *23. The central, shared issue is that the density of prisoners must be reduced to prevent the spread of COVID-19 infections for all class members; it does not matter how the Eighth Amendment violation is remedied. See id.
3. The proposed class representatives’ claims are typical of those of the class.
The analysis of typicality and commonality “tend to merge.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 n.13 (1982); see Savino, 2020 U.S. Dist. LEXIS 61775, at *17-24 (analyzing commonality and typicality together). But where commonality looks to the relationship among class members generally, typicality under Rule 23(a)(3) focuses on the relationship between the proposed class representatives and the rest of the class. See George v. Nat’l Water Main Cleaning Co., 286 F.R.D. 168, 176 (D. Mass. 2012); Reid, 297 F.R.D. at 191. To satisfy Rule 23(a)(3), “a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.” Falcon, 457 U.S. at 156. “‘A sufficient nexus is established if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory.’” In re Relafen Antitrust Litig., 231 F.R.D. 52, 69 (D. Mass.
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2005), quoting In re Terazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672, 686 (S.D. Fla. 2004).
Petitioners satisfy this standard. The proposed class representatives are members of the class, and they are threatened by the same crowded conditions, including the inability to practice effective social distancing, created and maintained by Respondents. Based on the same theory of deliberate indifference, Petitioners seek the same relief as the entire class; namely, that Respondents sufficiently decrease the incarcerated population at FMC Devens to allow for effective physical distancing to mitigate the risk of COVID-19 infection. In such circumstances, the representatives’ claims are “obviously typical of the claims … of the class,” and satisfy Rule 23(a)(3). Savino, 2020 U.S. Dist. LEXIS 61775, at *21-24 (finding typicality met for class of immigrant detainees seeking relief from conditions at a single facility in the face of COVID-19).
4. The proposed class representatives and class counsel can adequately represent the class.
Finally, Petitioners and their counsel will “fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Two factors must be satisfied to fulfill this prerequisite: “(1) the absence of potential conflict between the named plaintiff and the class members and (2) that counsel chosen by the representative parties is qualified, experienced and able to vigorously conduct the proposed litigation.” Adair
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v. Sorenson, 134 F.R.D. 13, 18 (D. Mass. 1991) (quoting Andrews v. Bechtel Power Corp., 780 F.2d 124, 130 (1st Cir. 1985) (internal quotations omitted)).
Here, “the interests of the representative party will not conflict with the interests of any of the class members,” Andrews v. Bechtel Power Corp., 780 F.3d 124, 130 (1st Cir. 1985), because as discussed above, those interests are aligned with a common goal of relieving population density to permit social distancing. See Savino, 2020 U.S. Dist. LEXIS 61775, at *23. Petitioners have alleged the same injuries, arising from the same conduct, and they seek the same injunctive and declaratory relief, which will apply to the benefit of all class members. Counsel for Petitioners are not aware of any conflicts among members of the proposed Class or between counsel and members of the proposed Class.
In addition, undersigned pro bono counsel are qualified, experienced, and able to vigorously conduct the proposed litigation. Petitioners are represented by Fick & Marx, LLP and the ACLU Foundation of Massachusetts. Collectively, counsel have significant experience in the areas of constitutional law, civil rights, criminal law, class action litigation, and habeas corpus actions. For the same reasons, counsel also satisfy the requirements of Rule 23(g) and should be appointed as class counsel.
B. The Proposed Class Meets the Requirements of Rule 23(b). In addition to meeting the four requirements of Rule 23(a), Petitioners must
show that the proposed class falls into one of the three defined categories of Rule 23(b). See Reid, 297 F.R.D. at 192. This action falls within Rule 23(b)(2), which
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applies when “the party opposing the class has acted or refused to act on grounds generally applicable to the class, so that final injunctive relief or corresponding declaratory relief is appropriate with respect to the class as a whole.” See Savino, 2020 U.S. Dist. LEXIS 61775, at *24 (certifying class of ICE detainees in aMassachusetts facility under Rule 23(b)(2)). Civil rights cases like this one are the “prime examples” of Rule 23(b)(2) cases, Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997), where the claim asserts that the Respondents have “engaged in unlawful behavior towards a defined group[,]” Reid, 297 F.R.D. at 193.
The claims asserted by Petitioners satisfy these requirements. Respondents have engaged in unconstitutional behavior towards the entire class. Every member of the class is at imminent risk serious illness and possible death from COVID-19 infections due to their crowded conditions of confinement and inability to practice effective social distancing. And “a uniform remedy” could provide relief to every class member through “declaratory relief or … an injunction ordering the government to reduce crowding” at the facility. Savino, 2020 U.S. Dist. LEXIS 61775, at *24-25.
In the alternative, this putative class action satisfies the requirements of Rule 23(b)(1), because prosecuting hundreds of separate actions would create a risk of inconsistent or varying adjudications with respect to individual Class Members that would establish incompatible standards of conduct for Respondents.
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CONCLUSION Petitioner respectfully ask the Court to:
(1) Certify a class consisting of all prisoners who are now or will be held by Respondents at FMC Devens; with subclasses as follows:
a. A subclass of federal prisoners at FMC Devens who are medically vulnerable to severe infection and death from COVID-19 due to their age and/or medical condition (“Medically Vulnerable Subclass”); and
b. A subclass of federal prisoners at FMC Devens who are appropriate candidates for immediate transfer to home confinement (“Home Confinement Appropriate Subclass”); (2) Appoint Petitioners Alexander Grinis, Michael Gordon, and Angel Soliz as class representatives; and (3) Appoint the undersigned counsel as class counsel.
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Respectfully submitted,

ALEXANDER GRINIS, MICHAEL GORDON, ANGEL SOLIZ, and others similarly situated,

By their attorneys,

/s/ William W. Fick William W. Fick, BBO# 650562 Daniel N. Marx, BBO# 674523 Amy Barsky, BBO# pending FICK & MARX LLP 24 Federal Street, 4th Floor Boston, MA 02210 857-321-8360 wfick@fickmarx.com dmarx@fickmarx.com abarsky@fickmarx.com

Matthew R. Segal, BBO# 654489 Jessie J. Rossman, BBO #670685 ACLU FOUNDATION OF MASSACHUSETTS, INC. 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org jrossman@aclum.org

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CERTIFICATE OF SERVICE I, William Fick, certify that I have caused the foregoing document to be served by e-mail PDF upon AUSA Ray Farquhar, Civil Chief (D. Mass.), on April 15, 2020. Because the government declined to waive formal service under Fed. R. Civ. P. 4, on that same day, I traveled in person to a U.S. Post Office to send the document to the following recipients by certified U.S. Mail:

U.S. Attorney’s Office Attn: Civil Process Clerk One Courthouse Way Boston, MA 02210
Michael Carvajal, Director Federal Bureau of Prisons 320 First St., NW Washington, DC 20534

Attorney General of the United States 950 Pennsylvania Ave NW Washington, DC 20530
Stephen Spaulding, Warden FMC Devens 42 Patton Road Devens, MA 01434

/s/ William Fick

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,
Petitioners v.
STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,
Respondents.

Civil Action No. 20-cv-10738-GAO

RESPONDENTS’ SUPPLEMENTAL DECLARATION After the April 22, 2020 filing of Respondents’ Omnibus Response to Petition for Writ of Habeas Corpus and Opposition to Petitioners’ Motion for Immediate Bail and Injunctive and Declaratory Relief (ECF No. 32), supplemental guidance was issued by the Bureau of Prisons (“BOP”) with regard to BOP’s home confinement prioritization. The supplemental declaration of Amber Bourke, Case Manager, Federal Medical Center, Devens, Massachusetts (“Supp. Bourke Decl.”), attached hereto, provides the most current information regarding BOP’s priority home confinement program, and clarifies that the priority factors that BOP has generally considered for home confinement of inmates are subject to deviation in BOP’s discretion in certain circumstances, and are subject to revision as the situation progresses. The BOP is, at this time, prioritizing for consideration those inmates who either, (1) have served 50% or more of their sentences; or, (2) have 18 months or less remaining in their sentences and have served 25% or more of their sentences. See Supp. Bourke Decl. ¶ 19. As BOP processes the inmates eligible for home confinement under these criteria and learns more about the COVID-19 pandemic and

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its effect on BOP facilities, it is assessing whether and how to otherwise prioritize consideration. Id.
Respondents continue to oppose the relief requested by Petitioners. Petitioners cannot demonstrate that the BOP, or FMC Devens, has acted with deliberate indifference and their constitutional claims under the Eighth Amendment must fail. Moreover, the release of hundreds of prisoners by this Court is neither permitted by law, nor would it serve the health and safety of the inmates or the general public. Therefore, this Court must deny the Petition for Writ of Habeas Corpus, deny class certification in this case, and deny Petitioners’ motions for a temporary restraining order, injunctive relief and declaratory judgment.

Respectfully submitted,
ANDREW E. LELLING United States Attorney

Dated: April 24, 2020

By: /s/ Eve A. Piemonte Eve A. Piemonte Assistant United States Attorney United States Attorney’s Office John J. Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3369 Eve.Piemonte@usdoj.gov

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,
Petitioners, v.
STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,
Respondents.

No. 20-cv-10738-GAO
Leave to file excess pages granted on April 24, 2020 [D.E. 37]

PETITIONERS’ REPLY TO RESPONDENTS’ OMNIBUS RESPONSE

William W. Fick, BBO# 650562 Daniel N. Marx, BBO# 674523 Amy Barsky, BBO# 601111 FICK & MARX LLP 24 Federal Street, 4th Floor Boston, MA 02210 857-321-8360 wfick@fickmarx.com dmarx@fickmarx.com abarsky@fickmarx.com

Matthew R. Segal, BBO# 654489 Jessie J. Rossman, BBO #670685 ACLU FOUNDATION OF MASSACHUSETTS, INC. 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org jrossman@aclum.org

Case 1:20-cv-10738-GAO Document 38 Filed 04/27/20 Page 2 of 26
INTRODUCTION Petitioners and other Class members remain in imminent danger of infection, illness, and death from COVID-19 despite the steps Respondents claim to have taken. That is because too many prisoners remain at FMC Devens. There is no question that a significant reduction of the population would greatly reduce the dangers to the prisoners who leave FMC Devens, the prisoners and staff who remain, and the surrounding community. Yet Respondents have made the deliberate and unconstitutional choice to keep almost all prisoners where they are—in a large, congregate setting that is extremely vulnerable to a rapid outbreak because social distancing, a “cornerstone” of prevention, is impossible. Although Respondents use words like “required criteria” and “ineligible” to describe their decision to bar so many people from being transferred to home confinement, they cannot defeat a claim of deliberate indifference by arguing they have tied their own hands with bureaucratic red tape. That is not a defense; it’s a confession. Since Petitioners filed this action on April 15, confirmed COVID-19 infections among BOP prisoners and staff have grown to 1,118 across 45 BOP facilities,1 including the first confirmed infection at FMC Devens. Twenty-seven prisoners have died. During that same period, confirmed prisoner cases at FMC Forth Worth, an administrative security medical center like FMC Devens that holds many elderly and medically vulnerable men, exploded from 4 to 232 (three have already died).2 Eight of the top ten COVID-19 clusters in the United States are now
1 See https://www.bop.gov/cornavirus (last visited Apr. 26, 2020). As noted in the Petition, this total is artificially suppressed due to inadequate testing. See also Declaration of Prof. Lauren Brinkley-Rubinstein, (Apr. 26, 2020) (“Brinkley-Rubinstein Decl.”) ¶¶ 9-11, 13, attached as Exhibit A. In addition, BOP apparently removes those who have “recovered” from its cumulative count of “open” cases. 2 See Exhibit B (screenshots of FMC Devens weekly census data).
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in prisons and jails.3 Nursing homes—congregate facilities that share many features with FMC

Devens—account for over 1,300 COVID-19 deaths in Massachusetts, more than half of the state

total.4

Meanwhile, notwithstanding Respondents’ assurances that they are expeditiously

discharging their obligation to maximize transfers out of the facility, the population of FMC Devens has remained essentially static, near capacity in normal times.5 That is

Date April 9 April 16 April 23

Camp 108 108 106

FMC 914 906 905

deliberate indifference.

In the face of rampant illness and numerous prisoner deaths in its facilities, Respondents

have decided to carry out a policy that denies home confinement to prisoners – regardless of their vulnerability to COVID-19 – unless they meet numerous criteria.6 Respondents have already

used this policy as a basis to keep numerous prisoners inside FMC Devens, including Petitioner

Gordon, who Respondents determined did “not qualify for priority consideration” because he has

served 36.6% rather than 50% of his sentence.7

3 See https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html.
4 Miriam Wasser & Bob Oakes, “COVID-19 Hits Elder Care Facilities in Mass. the Hardest, with More than 1,300 Now Dead,” WBUR (Apr. 24, 2020), available at https://www.wbur.org/commonhealth/2020/04/24/seniors-coronavirus-nursing-homes-testing.
5 See Ex. C (weekly data compiled from https://www.bop.gov/about/statistics/).
6 See Respondents’ Response to Petition for Writ of Habeas Corpus and Opposition to Petitioners’ Motion for Immediate Bail and Injunctive and Declaratory Relief [D.E. 32] (“Resp.”) at 18-20; see also Declaration of Amber Bourke [D.E. 32-2], ¶ 21 (April 22, 2020) (“Bourke Decl.”); Declaration of Amber Bourke [D.E. 36-1], ¶¶ 18-19 (April 24, 2020) (“Bourke Supp. Decl.”).
7 See Bourke Supp. Decl. ¶ 28.
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Even the eight prisoners reportedly approved for transfer to home confinement remain at
FMC Devens, “quarantined” for 14 days8 in punitive isolation that serves no public health
purpose.9 Although Respondents highlight a laundry list of “appropriate measures to protect”
prisoners,10 they concede that strict physical distancing, a necessary “cornerstone” of COVID-19
prevention, remains impossible at FMC Devens given the current population levels.11
“Courts cannot blithely defer to the supposed expertise of prison officials when it comes
to the constitutional rights of inmates.” Wolff v. McDonnell, 418 U.S. 539, 599 (1974).
Respondents’ arbitrary and convoluted compassionate release and home confinement screening
policies are not an excuse but a deliberate and deadly bottleneck that risks the lives of prisoners,
staff, and civilians alike. FMC Devens today remains filled with elderly men in their 70s and
80s, men with debilitating medical conditions, and men within months of completing their
sentences, many of whom could be transferred to home confinement immediately with no danger
8 See Resp. at 19. 9 See Declaration of Professor Seth Prins, ¶¶ 5-18 (“Prins Decl.”), attached as Exhibit D. 10 See Resp. at 4-13, 30-34. 11 Moreover, undersigned counsel have been unable to discuss the Respondents’ filings with Petitioners. Counsel twice requested, on April 23 and 24, that Respondents facilitate legal phone calls with the named Petitioners in advance of today’s hearing, but no such calls were accommodated. Counsel understand that, sometime last week, Gordon was transferred out of FMC Devens for emergency medical care related to his liver transplant and then returned to the facility on April 24. Counsel last heard from Grinis by Corrlinks e-mail on April 19, when he reported that prison staff commented, “no one is being released,” removed a typewriter, and limited the amount of paper available to prisoners, with the effect of restricting their access to the courts. Then, on April 22, Respondents alleged that “Grinis is refusing to enter the required quarantine before his pending release to home confinement . . . result[ing] in a disciplinary action and the loss of his pending pre-release placement.” Bourke Decl. ¶ 23, n.1. It is darkly ironic that, having apparently voiced genuine terror at the prospect of two weeks of solitary isolation in “quarantine,” Grinis was sent to isolation anyway — as punishment — and now may remain at FMC Devens indefinitely, notwithstanding Respondents’ earlier determination that he is “at high risk for COVID-19.” Id.
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to public safety. Contrary to Respondents assertions, this section 2241 habeas petition is a proper legal vehicle to bring the Petitioners’ claims challenging unconstitutional confinement. Given the extraordinary circumstances of the COVID-19 pandemic, Petitioners readily satisfy the criteria for emergency injunctive release and class certification.
A substantial number of prisoners must be promptly evacuated from FMC Devens to save lives and mitigate the public health crisis that will otherwise decimate the Devens community. This Court should order Respondents to do so forthwith, as federal courts have done at other facilities. See, e.g., Wilson v. Williams, No. 4:20-cv-00794, 2020 U.S. Dist. LEXIS 70674, at *25 (N.D. Ohio Apr. 22, 2020) (ordering transfers out of FCI Elkton “through any means”); Roman v. Wolf, No. 20-cv-0768-TJH (C.D. Cal. Apr. 23, 2020), D.E. 55 at 2 (ordering respondents to “immediately reduce the detainee population” at ICE detention facility “to such a level that would allow the remaining detainees to maintain a social distance of 6 feet from each other at all times and at all places”), administrative stay granted (9th Cir. Apr. 25, 2020) (No. 20-55436). Alternatively, this Court should exercise its inherent habeas authority to release a sufficient number of class members on bail, as another court in this District has done for dozens of ICE detainees in Bristol County. See Savino v. Hodgson, No. 20-cv-10644-WGY, 202 U.S. Dist. LEXIS 61775, at *28 (D. Mass. Apr. 8, 2020) (“[T]he Court follows the light of reason and the expert advice of the CDC in aiming to reduce the population in the detention facilities so that all those who remain (including staff) may be better protected”).
ARGUMENT I. This Court has authority to order the relief that Petitioners request.
A. Section 2241 authorizes Petitioners’ COVID-19-related claims. Respondents contend that “habeas relief is unavailable” because Petitioners challenge the “conditions of their confinement.” Resp. at 21-22. Respondents are wrong for two reasons:
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(1) Petitioners attack “the fact or duration” of their unconstitutional confinement, for which the only appropriate class-wide relief is the immediate, substantial reduction of the population, whether by compassionate release, home confinement, furlough, bail, or other means; and (2) there is no legal bar against habeas claims that challenge “the conditions” of confinement.
1. Petitioners challenge “the fact or duration” of their confinement at FMC Devens, where social distancing is impossible.
By characterizing the Petition as an ordinary “conditions of confinement” claim akin to a complaint about inadequate “medical care,” Respondents misapprehend the issues. “Whereas many medical needs claims might appropriately be addressed through § 1983 litigation, claims concerning COVID-19 are not so easily classified.” Wilson, 2020 U.S. Dist. LEXIS 70674, at *13; see Money v. Pritzker, Nos. 20-cv-2093 & 2094, 2020 U.S. Dist. LEXIS 63599, at *25-26 (N.D. Ill. Apr. 10, 2020) (recognizing “the unique context in which litigation over COVID-19 arises . . . because the sudden threat to mortality from the spread of virus in a congregate setting may affect the fact or duration of confinement”).12 In this case, Petitioners are not making traditional, individualized “quality of care” demands for orthopedic shoes, see Warner v. Spaulding, No. 18-cv-10850-DLC, 2018 U.S. Dist. LEXIS 70032 (D. Mass. Sept. 24, 2018), at *1-2; cataract surgery, see Crooker v. Grondolsky, No. 12-cv-12016, 2013 U.S. Dist. LEXIS 2071 (D. Mass. Jan. 4, 2013), at *1; Hepatitis C therapy, see Kane v. Winn, 319 F. Supp. 2d 162, 173-74 (D. Mass. 1998), or similar medical devices or services.
12 In Money, the court relied on a declaration from Professor Judith Resnik, a habeas scholar who has opined that, given the “unprecedented circumstances, . . . ‘COVID-19 claims ought to be cognizable under both provisions.’” 2020 U.S. Dist. LEXIS. 63599, at *25-26. Thus, the court ultimately reviewed the plaintiffs’ claims under both § 1983 and § 2254; it dismissed the habeas claims because the plaintiffs, who were state prisoners, failed to exhaust available state remedies. See id. at *17, 46. That exhaustion issue is not present here. Prof. Resnik’s declaration is separately attached hereto as Exhibit D.
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Instead, Petitioners and the Class whom they seek to represent allege that their collective confinement at current population levels exposes them to deadly infection with a highly contagious virus in violation of the Eighth Amendment. They “ultimately seek to challenge the fact or duration of confinement,” not simply “the dangerous conditions within the prison created by the virus.” Wilson, 2020 U.S. Dist. LEXIS 70674, at *13. And for that reason, remedying the constitutional violations alleged in this case could not be accomplished simply by providing Petitioners and the putative Class members with more Virucide or with access alcohol-based sanitizers. The requested remedy, on a class basis, is necessarily the release or transfer of a sufficient number of class members from unconstitutional custody to allow for effective social distancing. See id. (recognizing that by prisoners at FCI Elkton brought habeas claims alleging that “continued imprisonment . . . is unconstitutional given the COVID-19 outbreak”).13
Thus, the Petition properly pursues habeas relief. See, e.g., Francis v. Maloney, 798 F.3d 33, 36 (1st Cir. 2015) (“[A]n individual may invoke § 2241 . . . to challenge placement (or lack thereof) in a community confinement center, or to contest one’s imprisonment in a specific facility.”); Gonzalez-Fuentes v. Molina, 607 F.3d 864, 873 (1st Cir. 2010) (explaining that when prisoner seeks “quantum change in the level of custody. . . then habeas corpus is his remedy”); Brennan v. Cunningham, 813 F.2d 1, 4-5 (1st Cir. 1987) (permitting habeas challenge to transfer from halfway house to state prison); Putnam v. Winn, 441 F. Supp. 2d 253, 256 (D. Mass. 2006) (finding habeas jurisdiction to consider challenge to rule prohibiting transfer to halfway house); Fox v. Lappin, 441 F. Supp. 2d 203, 206 (D. Mass. 2005) (“[W]here transfer or release are at issue, a habeas petition is warranted.”); Monahan v. Winn, 276 F. Supp. 2d 196, 204 (D. Mass.
13 Many other courts have accepted habeas petitions as proper vehicles to address the COVID-19 pandemic in custodial settings. See Ex. F (compilation of cases).
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2003) (“It is well-established that challenges to the ‘manner, location, or conditions of a sentence’s execution’ are proper subjects of a habeas corpus action under § 2241.”).
2. Petitioners may also challenge “the conditions” of their confinement. Although Petitioners have appropriately brought this case as a habeas action because they challenge the fact or duration of their confinement, they may also use habeas to challenge the unconstitutional conditions at FMC Devens. The First Circuit has expressly rejected the Respondents’ argument that conditions habeas is unavailable to challenge conditions. See Brennan, 813 F.2d at 4 (“We reject this contention.”). In Brennan, the petitioner, serving a life sentence for murder, was transferred from the New Hampshire state prison to a halfway house to participate in a work-release program. After that assignment was terminated and the petitioner was sent back to state prison, he filed a § 2254 petition. The district court granted habeas relief. On appeal, the warden argued – like the Respondents here – the action could not be “maintain[ed] . . . under the federal habeas corpus statute,” because “the claim for reinstatement” to the halfway house “challenge[d] the conditions of confinement and not the fact or length of confinement.” Id. The warden further asserted – like Respondents – that “the proper vehicle for such a challenge” was § 1983. Id. The First Circuit rejected that jurisdictional contention: “We do not agree that Prieser would mandate that the reinstatement claim be brought as a § 1983 action even if we were to accept the [warden]’s characterization of the claim as a challenge to the conditions of confinement.” Id. (emphasis added).
In Prieser, the Court explicitly left open the possibility that a challenge to prison conditions, cognizable under § 1983, might also be brought as a habeas corpus claim. Id. (citing Dickerson v. Walsh, 750 F.2d 150, 153-54 & n.5 (1st Cir. 1984) (“Federal prisoners have been permitted to contest the conditions of confinement by means of habeas proceedings
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even though the conditions were not the cause of detention and even though release was not the appropriate remedy.”) (collecting cases)); see also United States v. DeLeon, 444 F.3d 41, 59 (1st Cir. 2006) (“If the conditions of incarceration raise Eighth Amendment concerns, habeas corpus is available.”); Miller v. United States, 564 F.2d 103, 105 (1st Cir. 1997) (“Section 2241 provides a remedy for a federal prisoner who contests the conditions of confinement.”).
To understand how Respondents have misread the case law, it helps to revisit Prieser, on which Respondents mistakenly rely. Resp. at 21. Prieser involved a § 1983 action by state prisoners in New York who claimed that, as a result of disciplinary infractions, they had been wrongfully denied “good time” credit. 411 U.S. at 476. The procedural question whether “habeas corpus is the exclusive remedy in these circumstances” was, as the Supreme Court noted, of “considerable practical importance.” Id. at 477. Proceeding under § 1983, rather than § 2254, allowed the plaintiffs to avoid the burdensome exhaustion requirements for habeas petitions; put another way, if the state prisoners had filed individual habeas petitions (or a single class petition), they could have not sought intervention by the federal court until they had first sought and been denied relief by the state court. See id. at 477, 488 (noting plaintiffs brought § 1983 claims “so as to avoid the necessity of first seeking relief in a state forum”).
In resolving that procedural issue, the Supreme Court characterized claims that “attack[] the very duration of . . . physical confinement itself” as “within the core of habeas corpus.” Id. at 487-88; see id. at 498 (holding “state prisoner’s challenge to the fact or duration of his confinement . . . is just as close to the core of habeas as an attack on the prisoner’s conviction”). Because the plaintiffs brought “core” claims, their “sole federal remedy” was § 2254, not § 1983. But in describing the “core” of habeas, the Supreme Court did not define its border. See id. at 499 (stating “we need not in this case explore the appropriate limits of habeas corpus as an
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alternative remedy to a property action under § 1983”). It merely held “a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not the fact or length of his custody.” Id. And the Court offered an important clarification: “That is not to say that habeas corpus may not also be available to challenge such prison conditions.” Id. (emphasis added).
“Prieser . . . in no way decided that habeas corpus would not lie to challenge conditions of confinement; it decided only that a state prisoner who was seeking to challenge the length of confinement could not utilize 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3), to avoid the exhaustion requirements of § 2254(b) and (c).” Kahane v. Carlson, 527 F.2d 492, 498 (2d Cir. 1975) (Friendly, J., concurring). “The Court’s central concern, in Prieser and its progeny, has been with how far the general remedy provided by § 1983 may go before it intrudes into the more specific realm of habeas, not the other way around.” Dockens v. Chase, 393 F.3d 1024, 1028 (9th Cir. 2004). Thus, by insisting that “conditions” claims may only be brought in § 1983 actions, but not § 2241 petitions, Respondents attempt to constrain habeas corpus in a way that the Supreme Court and First Circuit have never endorsed.
Following Prieser, other federal appeals courts have agreed with the First Circuit that, although a § 1983 action can only challenge the “conditions” of confinement, but not the “fact or duration” of confinement, a habeas action can challenge either or both. See, e.g., Dockens, 393 F.2d at 1027 (explaining “both the majority and dissent in Prieser suggested that there are some circumstances concerning prison conditions in which both habeas corpus and § 1983 suits may lie”) (emphasis in original); In re U.S. Parole Comm’n, 793 F.2d 338, 344-45 (D.C. Cir. 1986) (holding “it [is not] necessary that litigation over the conditions of prison life proceed in habeas corpus” but can also establish § 1983 claims); Boudin v. Thomas, 732 F.2d 1107, 1111 (2d Cir.
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1984) (holding “habeas might sometimes be available to challenge the conditions of
confinement” and, thus, that petitioner’s complaint seeking transfer from administrative
segregation to general population could be brought as habeas petition) (emphasis in original);
Roba v. United States, 604 F.2d 215, 219 (2d Cir. 1979) (holding “challenge to [petitioner’s]
transfer while seriously ill would be a challenge to the conditions of confinement, for which
habeas corpus relief under § 2241 would be available”).14
Closing the door completely to habeas claims concerning prison conditions that render
confinement unlawful would not only run counter to Supreme Court and First Circuit precedent,
it would also raise serious constitutional concerns about the Suspension Clause. See U.S. Const.,
Art. I, § 9, cl. 2; Boumediene v. Bush, 553 U.S. 723, 746 (2008) (opting “not to foreclose the
possibility that the protections of the Suspension Clause have expanded along with post-1789
developments that define the present scope of the writ”); INS v. St. Cyr, 533 U.S. 289, 305 &
14 The overlap in remedies for unconstitutional prison conditions may explain why later cases, including decisions that the Respondents cite, Resp. 21-22, have consistently used qualified or hortatory language when distinguishing between habeas and § 1983 or Bivens claims. For example, in Crooker, this Court stated: “Claims for inadequate medical treatment are most properly characterized as conditions of confinement claims, which are generally not cognizable under § 2241; that most challenges to the constitutional adequacy of medical care should proceed as a civil rights action pursuant to Bivens.” 2013 U.S. Dist. LEXIS 2071, at *5-6 (emphasis added); see also Sperling v. Grondolsky, No. 17-cr-12075, 2018 U.S. Dist. LEXIS 66936, at *3 (D. Mass. Apr. 20, 2018) (“Typically, a Bivens action is the appropriate means for a federal prisoner to challenge the adequacy of his medical treatment.”) (emphasis added); Sanchez v. Sabol, 539 F. Supp. 2d 455, 459 n.1 (D. Mass. 2008) (“Notwithstanding the possible overlap of remedies, challenges to medical treatment remain most squarely in the realm of civil rights litigation under Bivens rather than habeas corpus.”) (emphasis added); Kane v. Winn, 319 F. Supp. 2d. 162, 213-15 (D. Mass. 2004) (“For most conditions of confinement claims, . . . and particularly for those involving inadequate medical treatment, courts usually hold that habeas relief is not available.”) (emphasis added). While it may be “generally,” “typically,” or “usually” true, it is not “necessarily” true. No Supreme Court or First Circuit case lays down such a rule. See id. Indeed, in “both state and federal prisoner cases, there are many indications that habeas will in fact lie for certain conditions of confinement claims.” Kane, 319 F. Supp. 2d at 214.
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n.13 (2001) (recognizing “the desirability of avoiding” have to “resolv[e] . . . a serious and difficult constitutional issue” about whether AEDPA and IIRIRA violate the Suspension Clause); cf. Devitri v. Cronen, 290 F. Supp. 3d 86, 93 (D. Mass. 2017) (finding jurisdiction under § 2241 and § 1331 in immigration proceedings, because otherwise, “the jurisdictional bar in 8 U.S.C. § 1252(g) . . . would violate the Suspension Clause as applied”).
Finally, the COVID-19 pandemic constitutes “extreme circumstances” that justify exercising habeas jurisdiction over Petitioners’ claims, even under the narrowest interpretation of habeas. Crooker, 2013 U.S. Dist. LEXIS 2071, at *9 (recognizing “extreme circumstances” may inform the “interpretation of the scope of § 2241”); see Kane, 319 F. Supp. 2d at 215 (holding habeas jurisdiction exists for “extreme cases” involving medical-treatment claims “where transfer or release might be a necessary remedy”); see also Crooker v. Grondolsky, No. 12-cv12024-RGS, 2012 U.S. Dist. LEXIS 156760, at *4 n.2 (D. Mass. Nov. 1, 2012) (finding no habeas jurisdiction over “medical treatment” claim because the case presented “[n]o extreme circumstances”). This Court should not hesitate to act to prevent a public health catastrophe for the prisoners and staff at FMC Devens as well as the surrounding community.
B. The PLRA Does Not Bar Petitioners’ Habeas Claims. Respondents are incorrect that the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626, “precludes the relief that Petitioners seek.” Resp. at 22-26. As defined in the PLRA, “the term ‘civil action with respect to prison conditions’ . . . does not include habeas corpus proceedings challenging the fact or duration of confinement in prison.” 18 U.S.C. § 3626(g)(2). Because Petitioners’ COVID-19 claims are “properly before the Court as a habeas action,” the PLRA “does not apply.” Wilson, 2020 U.S. Dist. LEXIS 70674, at *24. Indeed, while “habeas proceedings are essentially civil actions, the Supreme Court has long recognized that the label is ill-fitting and that habeas is in fact a unique creature in the law.” Martin v. Bissonette, 118 F.3d
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871, 874 (1st Cir. 1997) (internal citations omitted). “All the circuits that have addressed this question have agreed that the PLRA does not apply to habeas petitions.” Id. (adopting consensus; emphasis added); see also Monahan, 276 F. Supp. 2d at 204 (explaining “PLRA does not apply to section 2241 proceedings”).15
Regardless, the PLRA’s limitations on “release orders,” § 3626(a)(3), on which Respondents rely, Resp. at 23-25, would not preclude the relief Petitioners request: ordering the BOP to exercise its existing authority to recommend compassionate release (which only underlying sentencing courts could grant), transfer inmates to home confinement (a form of BOP custody), or use other authority to reduce the facility’s population (e.g., furloughs). Alternatively, use of the Court’s inherent habeas bail authority would constitute legal “enlargement” of class members’ custody rather than the termination their sentences or “release.” Wilson, 2020 U.S. Dist. LEXIS 70674, at *25 (explaining order to depopulate FCI Elkton “is not ordering the release of prisoners” because “inmates will remain in BOP custody, but the conditions of their confinement will be enlarged”). II. Failure to reduce substantially the FMC Devens population constitutes deliberate
indifference to the known, deadly risk of COVID-19. “A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828 (1994).
15 The COVID-19 cases on which Respondents rely, Resp. at 24, are inapposite. See Money v. Pritzker, Nos. 20-cv-2093 & 2094, 2020 U.S. Dist. LEXIS 63599 (N. D. Ill. Apr. 10, 2020), primarily asserted claims against state prison officials under § 1983 and the Americans with Disabilities Act. See id. at *7-8. Likewise, Plata v. Newsom, No. 01-cv-01351-JST, 2020 U.S. Dist. LEXIS 70271 (N.D. Cal. Apr. 17, 2020), involved decades-old civil rights (not habeas) litigation against state officials arising from chronic overcrowding and inadequate medical care. On the merits, unlike Respondents, the Plata defendants moved 1,300 prisoners “out of dormitory housing ‘to available space in other prison[s] to create more space and allow greater physical distancing in the dorms.’” Id. at *14-15.
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Respondents’ submissions describe changes the BOP has made within FMC Devens in response to the deadly risk of COVID-19. Resp. 3-13; 26-34; Declaration of Dr. Megan Shaw [D.E. 32-1] (April 22, 2020), ¶¶ 7-65 (“Shaw Decl.”). But even assuming these measures are actually being implemented consistently,16 they still reflect a deliberate and therefore unconstitutional, choice not to take the more substantial steps that would be required to actually address the risk that Petitioners and the putative Class members face from COVID-19. That is because Respondents neither dispute that “[i]ndividuals must be able to practice physical social distancing for hygiene to have a meaningful impact” on the risk of infection, see Declaration of Dr. Joe Goldenson [D.E. 4-1] (April 14, 2020) (“Goldenson Decl.”) ¶ 16, nor do they suggest that any of their changes enable such distancing within each housing unit of 150 people. Because strict social distancing, including within housing units, is the only effective means to prevent the spread of this fatal disease, this failure constitutes unconstitutional deliberate indifference.
A. Protective measures at FMC Devens are inadequate. “At this moment, a deadly virus is spreading amongst [FMC Devens] population and staff.” Wilson, 2020 U.S. Dist. LEXIS 70674, at *20. As of April 26, there was at least one confirmed positive COVID-19 prisoner at FMC Devens.17 Because FMC Devens is testing only symptomatic prisoners—not those who are pre-symptomatic or asymptomatic—this is likely
16 Due to the obstacles in communication with prisoners at FMC Devens noted above, undersigned counsel are unable at this time to present additional sworn statements from class members. However, communications that counsel have received indicate that many of the measures described by Dr. Shaw are being implemented inconsistently, if at all.
17 https://www.bop.gov/coronavirus/. 13

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only “the tip of the iceberg.” See Brinkley-Rubinstein Decl. ¶ 13.18 Exposure to a fatal disease that has caused international shuttering of non-essential businesses to avoid infection constitutes an “unsafe, life-threatening condition” that endangers “reasonable safety.” Helling v. McKinney, 509 U.S. 25, 33, 26 (1993); cf. Wilson, 2020 U.S. Dist. LEXIS 70674, at *19 (holding risk of exposure to COVID-19 “obviously” satisfies the objective component of the Eight Amendment).19
Critically, the measures detailed in Respondents’ submissions – such as increased education, distribution of PPE, and the provision of hygiene supplies – do not meaningfully alleviate this substantial risk of harm at FMC Devens because these measures “are critically deficient with respect to social distancing.” Supplemental Declaration of Dr. Joe Goldenson (April 26, 2020) (“Goldenson Supp. Decl.) ¶ 3 (Exhibit G); see also id. ¶ 2 (noting these changes have “not meaningfully addressed the fundamental component of social distancing”). While it is true that while COVID-19 “puts everyone at some degree of risk of getting sick,” Resp. at 28, not everyone is forced to live within less than six feet of more than 100 individuals. The changes at FMC Devens have not altered that dangerous daily reality for its prisoners. Indeed, while Dr. Shaw describes efforts to provide “separation between different units, she does not describe any social distancing within each unit, which she herself describes as composed of approximately
18 See, e.g., id. ¶ 12 (noting that when North Carolina’s Neuse Correctional Institution tested all 700 prisoners within its facility, it was discovered that 65% of them had COVID-19, and 95% of those were infected were not experiencing symptoms at the time of the test). 19 See also Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an affirmative obligation to protect [forcibly confined] inmates from infectious disease”); Powers v. Snyder, 484 F.2d 929, 931 (7th Cir. 2007) (“[K]knowingly exposing a prisoner to hepatitis or other serious diseases could [] amount to cruel and unusual punishment in violation of the federal Constitution.”);
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150 prisoners.” Goldenson Supp. Decl. ¶ 4. And within units, Respondents force Petitioners and other prisoners to engage in numerous activities, from lining up for meals to obtaining medications to using phones and computers, that involve clustering close together and being exposed to contaminated surfaces.
Respondents do not dispute that dozens of prisoners still “eat, sleep, recreate, shower, and use the bathroom under conditions where it is effectively impossible to follow the CDC’s recommendation to maintain six feet of distance between themselves.” Id. ¶ 5. The CDC recommends this social distancing not as an aspirational ideal, cf. Resp. at 30, but as “a cornerstone of reducing transmission of respiratory diseases such as COVID-19” in carceral settings.20 Consequently, “‘[s]heltering in place’ under these conditions cannot effectively mitigate the risk of COVID-19 transmission, particularly within the vulnerable population housed at FMC Devens.” Goldenson Supp. Decl. ¶ 5.
Respondents’ attempt to compare imprisonment at FMC Devens with life among “roommates or family members” is absurd. Resp. at 29. Many members of the community live with other people. But few, if any, live with 150 of them, in close quarters over which they have no meaningful control. What is more, FMC Devens is not a closed environment. Goldenson Supp. Decl. ¶ 8. Medical staff and correctional officers routinely enter and exit the facility. Due to pre-symptomatic and asymptomatic viral shedding, FMC Devens’ practice of taking temperatures and screening for symptoms before entry (even assuming the practice is implemented correctly and consistently) does not remove the “daily risk that these officers will
20 Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html.
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unknowingly bring the disease into the facility with them, where it could spread like wildfire among the vulnerable population that is unable to practice effective social distancing.” Id. ¶¶ 8-9, 11; see also Brinkley-Rubinstein Decl. ¶ 15. As a result, even accounting for the measures described in Respondents’ submissions, FMC Devens remains “at high risk of a COVID-19 outbreak at its current population levels.” Goldenson Supp. Decl. ¶ 13.
B. Failure to reduce the population constitutes deliberate indifference to the risk of infection with a deadly disease.
With respect to an infectious disease like COVID-19, deliberate indifference is satisfied when prison officials “ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year,” even when “the complaining inmate shows no serious current symptoms.” Helling v. McKinney, 509 U.S. 25, 3334 (1993). Here, that life-threatening condition is the complete inability to practice social distancing at FMC Devens where such a practice is necessary to mitigate the risk of COVID-19 infection. Respondents’ knowledge is apparent “from the very fact that the risk [is] obvious,” while their actions and inactions reveal their unconstitutional “disregard.” Farmer, 511 U.S. at 837. Specifically, Respondents’ failure to make social distancing possible for the people in their custody is a deliberate choice, as they have declined to exercise powers at their disposal that actually could achieve this goal.
The BOP has several tools to reduce its incarcerated population, most directly through its authority to transfer prisoners to home confinement under 18 U.S.C. § 3624(c)(2) [hereinafter Section 3624]. Home confinement under Section 3624 requires approval of neither an Article III judge nor BOP Central, compare with 18 U.S.C. 4205(g) and 18 U.S.C § 3582(c)(1)(A), and can be accomplished directly by the Warden and the Regional Residential Reentry Manager. Cf. Bourke Suppl. Decl. ¶ 26. Described by Respondents’ own expert as BOP’s “general authority”
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to place prisoners in home confinement, Bourke Decl.” ¶ 18, the Bureau’s power under Section 3624 is typically constrained only by the statutory requirement that an individual must have 6 months or 10% of their sentence remaining. See 18 U.S.C. § 3624(c)(2). Yet even that limitation has now been removed. The “Coronavirus Aid, Relief, and Economic Security Act” (CARES) Act, Pub. L. 116-136, authorizes the Bureau to remove this eligibility requirement “if the Attorney General finds that emergency conditions will materially affect the functioning of the Bureau,” which Attorney General Barr did on April 3, 2020.21 Eliminating this final statutory limitation on the BOP’s authority, the Attorney General instructed the BOP “to immediately review all inmates who have COVID-19 risk factors” including those who were not previously eligible for transfer due to time restrictions.22
But the BOP forthrightly admits that it has chosen, during this pandemic, to implement a policy that excludes vast numbers of Class members as candidates for home confinement. While the Attorney General listed “discretionary factors” to be considered in assessing prisoners for release,23 the Bureau is carrying out a policy that denies home confinement to prisoners who do not meet even one of ten “required criteria,” such as “hav[ing] no incident reports in the past 12 months (regardless of severity level)” and “ha[ving] served 50% of their sentence.” Resp. 18-19 (emphasis added). For example, the Bureau refused to transfer Petitioner Gordon to home confinement – and thus continues to subject him to the risk of catching and dying from COVID-
21 Attorney General William Barr, Memorandum for Director of Bureau of Prisons [D.E. 4-6] (Apr. 3, 2020). 22 Id. 23 Id.
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19 in prison – solely because he has served 36.6% rather than 50% of his sentence. Resp. 19-20; Bourke Suppl. Decl. ¶ 28.
Because of its deliberate choices, the Bureau has utterly failed to release people in any meaningful numbers. See Brinkley-Rubinstein Decl. ¶ 20. The 1,027 prisoners who have been transferred to home confinement since Attorney General Barr’s April 3 directive encouraging the Bureau to use this authority represents just half of one percent of the people in BOP custody on April 1. See Brinkley-Rubinstein Decl. ¶ 20. The numbers at FMC-Devens are similarly paltry: out of 118 prisoners reviewed for home confinement, 91 (or 77%) were excluded as a matter of Bureau policy; eight (or 6.7%) were approved; and just two (or 1.7%) have transfer dates for this upcoming week. Bourke Suppl. Decl. ¶ 26. Even if the Bureau was unaware of the impact of its actions three weeks ago, it now must know that its self-imposed process is entirely incapable of achieving the necessary population reductions in time. Its continuation of the status quo in the face of such abject failure constitutes deliberate indifference. Cf. Wilson, 2020 U.S. Dist. LEXIS 70674, at *21 (finding deliberate indifference when defendant “has altogether failed to separate its inmates at least six feet apart”).
Finally, Respondents compound their deliberate indifference by requiring the prisoners approved for transfers to first quarantine in solitary confinement for two weeks prior to transfer. See Bourke Decl. ¶ 22. This policy is unnecessary, as Attorney General Barr himself acknowledged the facility’s discretion to allow prisoners to quarantine at home.24 It is “ineffective as a health measure” to “constrain the spread of COVID-19 in a carceral setting. Prins Decl.” ¶¶ 5, 10; see also id. at ¶ 5 (noting “I am unaware of any studies supporting solitary
24 Attorney General William Barr, Memorandum for Director of Bureau of Prisons [D.E. 4-6] (Apr. 3, 2020).
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confinement as a disease containment strategy in jails or prisons”). And it is inhumane. See id. ¶ 10. “Based on its severe psychological and physiological impacts”—which can manifest in as little as 10 days—“solitary confinement is frequently described as akin to torture.” Id. ¶¶ 12, 13. After running the gauntlet of BOP’s approval process, a prisoner “should not have to choose between continuing to face a heightened risk of COVID-19 infection within a prison, or experiencing the trauma of two-weeks solitary confinement before they can be released into the community.” Id. ¶ 18. The imposition of this “illogical and self-defeating policy” which “appears to be inconsistent with the directive of the Attorney General, ungrounded in science, and a danger to both [prisoners] and the public health of the community,” United States v. Scparta, No. 18-cr-578-AJN, 2020 U.S. Dis. LEXIS 68935, at *5-10(S.D.N.Y. Apr. 19, 2020), further violates the Eighth Amendment. III. Petitioners are entitled to a TRO and/or preliminary injunction.
A. Petitioners are likely to succeed on the merits. Petitioners have established a strong likelihood of success on the merits of their Eighth Amendment claims, as set forth in Section II above. B. Petitioners will be irreparably harmed if this Court does not act. Respondents argue that the mere “possibility” of harm does not warrant relief. Resp. at 40. But in “this moment of worldwide peril from a highly contagious pathogen, the government cannot credibly argue that [prisoners] face not ‘substantial risk’ of harm (if not ‘certainly impending’) from being confined in close quarters in defiance of the sound medical advice that all other segments of society now scrupulously observe.” Savino, 2020 U.S. Dist. LEXIS 61775 at *13. Indeed, the “risk of contracting COVID-19 and the resulting complications, including the possibility of death, is the prototypical irreparable harm.” Banks, 2020 U.S. Dist. LEXIS 68766,
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at *37; see also Wilson, 2020 U.S. Dist. LEXIS 70674, at *21 (finding irreparable harm based on risk of COVID-19).
Respondents argue that Petitioners cannot show that, if released, “they will be safer from the risk of infection or have access to adequate care if infected.” Resp. at 41. But the baseline risk of infection in society at large, and deficiencies in the U.S. health care system, cannot justify subjecting Petitioners to extraordinarily high risk in a dense carceral setting where social distancing is impossible. “From both a practical and epidemiological standpoint, sheltering at home with a handful of people in a space without daily staff shift changes is qualitatively different from living in a congregant environment with 150 other people and staff that circulate between the facility and the community every single day.” Goldenson Supp. Decl. ¶12; see also id. ¶ 13 (noting that even accounting for “all of the measures articulate in Dr. Shaw’s declaration . . . FMC Devens is at high risk of a COVID-19 outbreak at its current population levels”). Nor can the theoretical availability of individual applications for compassionate release or home confinement, Resp. at 41, remove the dangers to the Class, particularly where Respondents themselves, control important gateways to those mechanisms that they are failing to use. As the static tally of prisoners in the Medical Center and Camp attests, Respondents are not working to reduce the danger of COVID-19 at FMC Devens by reducing the population, notwithstanding Attorney General Barr’s mandate to do so.
In this case, “[g]iven the gravity of [Petitioners’] asserted injury, as well as the permanence of death … [Petitioners] have satisfied the requirement of facing irreparable harm unless injunctive relief is granted.” Banks, 2020 U.S. Dist. LEXIS 68766, at *39.
C. The balance of the equities and the public interest favor relief. Respondents argue that “[t]he public would be placed at risk by release of criminally convicted inmates, without a release plan or conditions of release.” Resp. at 42. They ignore that
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Respondents, themselves could continue to exercise control over how to decrease population density — whom to release and under what conditions. See Wilson, 2020 U.S. Dist. LEXIS 70674, at *22-24 (“Petitioners do not ask this Court to throw open the gates to the prison and leave the inmates that are released to fend for themselves. Instead, Petitioners seek ‘release’ that consists of moving vulnerable inmates to various other types of confinement so that they are no longer at risk of dying from the virus”); cf. Savino, 2020 U.S. Dist. LEXIS 61775, at *23 (“The question is not so much whether any particular Detainee should be released …. Nor does it matter how the density of Detainees is [r]educed….”).
The public safety risk of recidivism, Resp. at 42, is grossly overstated. Prisoners transferred to home confinement remain in BOP custody, subject to conditions and supervision. Every federal prisoner ultimately released from a custodial sentence also has a term of supervised release to follow, monitored by a local federal Probation Office. Moreover, the dangers posed by releasing elderly prisoners in their 70s and 80s, prisoners with debilitating medical conditions, and those who have no history of violence are negligible. And for prisoners set to finish their sentences in the next 18 months, whatever their offenses of conviction or prior histories, acceleration of that process could have little marginal effect on public safety.
Although some prisoners may lack a place to go, many others, such as Petitioners Grinis and Gordon, have families who could pick them up with an hour’s notice (or with whom transportation arrangements could be made in a matter of days) and who could provide safe accommodations in private homes where prisoners could shelter-in-place and, if necessary, selfisolate. The inability of the Respondents to effectuate prompt community placements for those who need it is not excuse for continuing to perpetuate unconstitutional confinement.
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Moreover, “granting injunctive relief which lessens the risk that Plaintiffs will contract COVID-19 is in the public interest because it supports public health.” Banks, 2020 U.S. Dist. LEXIS 68766, at *39-40; see also Wilson, 2020 U.S. Dist. LEXIS 70674, at *22-24 (“there is a continued risk of harm to others, including prison staff, if inmates remain in the prison and the virus continues to thrive among the dense inmate population”). FMC Devens has outpatient care capacity only. See Shaw Decl. ¶ 2 (it provides “ambulatory care” and does “minor office-based procedures”). It has only 2 exam rooms and 6 physicians for nearly 1200 inmates, id. ¶¶ 2-3, the majority of whom will likely soon become infected. FMC Devens cannot actually treat COVID infections. All ill prisoners, therefore, will need to be transferred to local hospitals and will compete for limited healthcare resources in the surrounding community. IV. The Court should certify the proposed Class and Subclasses.
Respondents’ arguments against class certification, Resp. at 43-46, ignore that one court in this district and at least three other federal courts have already either certified, provisionally certified, or granted broad temporary relief applicable to a class of detained persons based on deliberate indifference claims concerning the threat of COVID-19. See Savino, 2020 U.S. Dist. LEXIS 61775, at *16-26 (certifying class of all ICE detainees at Bristol County jail, after provisionally certifying subclasses); Wilson, 2020 U.S. Dist. LEXIS 70674, at *15-19 & n.48 (conditionally certifying sub-class of inmates at FCI Elkton who are 65 years or older or have medical conditions, for purposes of preliminary injunction); Banks, 2020 U.S. Dist. LEXIS 68766, *13 (partially granting TRO to petitioners in D.C. correctional facilities without ruling on class certification but noting that named petitioners “have pled an injury which was caused by Defendants and is redressable by the relief requested” because “steps taken to reduce the risk of infection among any inmates… would also reduce the named Plaintiffs’ risk”); Roman, No. 20cv-00768-PVC (C. D. Cal. Apr. 23, 2020), D.E. 52 (provisionally certifying class of all detainees
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at ICE detention facility). Respondents do not counter the analysis in any of these cases, much less attempt to justify the creation of an intra-district split of authority.
Respondents argue that because the proposed class-members have different vulnerabilities to COVID-19 and different characteristics that may bear on release, “[t]here simply is no commonality and typicality.” Resp. at 44-45. But any such differences are immaterial for purposes of class certification. See Savino, 2020 U.S. Dist. LEXIS 61775, at *23 (“The case law supports a finding of commonality for class claims against dangerous detention conditions, even when some detainees are more at risk than others.”); Roman, supra, D.E. 52 at 4 (explaining that differences among petitioners are “immaterial” and shared legal issues are sufficient even if remedies may vary); Wilson, 2020 U.S. Dist. LEXIS 70674, at *17 (noting that class-wide relief would still permit “individualized determination as to where each subclass member should be placed, because “Petitioners do not seek to open the prison gates to allow its inmates to run free,” and the remedy “might look different for different inmates”).
As the First Circuit has explained, “what really ‘matters to class certification . . . is not the raising of common ‘questions’ as much as ‘the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation.” Parent/Professional Advocacy League v. City of Springfield, 934 F.3d 13, 28 (1st Cir. 2019) (quoting Wal-Mart v. Dukes, 564 U.S. 338, 350 (2011)) (emphasis and ellipsis in original). Accordingly, class certification is warranted when the unconstitutional harm is created by a common set of policies or practices, including prison polices and practice. See id. (citing Parsons v. Ryan, 754 F.3d 657, 679 (9th Cir. 2014) (prison case)). The unconstitutionality here – Respondents’ failure to ensure social distancing despite the known dangers of COVID-19 – “can be [resolved] in a single stroke.” Parsons, 754 F.3d at 679. Decreasing population density to permit physical distancing
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Case 1:20-cv-10738-GAO Document 38 Filed 04/27/20 Page 25 of 26 will resolve the unconstitutional harm for the entire class. To the extent the existing named petitioners could be somehow insufficiently “typical” of the class (an argument the Respondents have not explained or developed), additional petitioners could be joined or substituted – indeed, many Class members have already filed pro se requests to do just that.
Respondents also question adequacy of representation, arguing that Petitioners “do not have an identical interest[ ] and in fact are ineligible for release” and therefore their interests conflict with those of the class. Resp. at 45. Not so. The core claim of this case is that reducing density to permit social distancing mitigates the risk of infection and death for all classmembers, those who are released and those who remain. See Savino, 2020 U.S. Dist. LEXIS 61775, at *25 (ruling class of all detainees at detention facility would be entitled to a “uniform remedy” – a reduction in population – even though some would be released or transferred from the facility and some would not).
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CONCLUSION For the foregoing reasons, as well as those set forth in Petitioner’s opening papers, the Court should deny Respondents’ request to dismiss the Petition, order emergency relief, and certify the proposed class.

Respectfully submitted,

ALEXANDER GRINIS, MICHAEL GORDON, ANGEL SOLIZ, and others similarly situated,

By their attorneys,

/s/ William W. Fick William W. Fick, BBO# 650562 Daniel N. Marx, BBO# 674523 Amy Barsky, BBO# 601111 FICK & MARX LLP 24 Federal Street, 4th Floor Boston, MA 02210 857-321-8360 wfick@fickmarx.com dmarx@fickmarx.com abarsky@fickmarx.com

Matthew R. Segal, BBO# 654489 Jessie Rossman, BBO# 670685 ACLU FOUNDATION OF MASSACHUSETTS, INC. 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org jrossman@aclum.org

CERTIFICATE OF SERVICE I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on April 27, 2020.
/s/ William Fick

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Exhibit A

Case 1:20-cv-10738-GAO Document 38-1 Filed 04/27/20 Page 2 of 30

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,
Petitioners,
v.
STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,
Respondents.

)

)

)

)

)

)

)

Civil Action No. 1:20-cv-10738

)

)

)

)

)

)

)

)

)

DECLARATION OF PROFESSOR LAUREN BRINKLEY-RUBINSTEIN Pursuant to 28 U.S.C. § 1746, I, Professor Lauren Brinkley-Rubinstein, declare as follows:

1. I am an Assistant Professor of Social Medicine at UNC-Chapel Hill. I received my undergraduate degree in sociology from Western Kentucky University and my doctorate in community research and action from Vanderbilt University. I completed a post-doctoral fellowship studying HIV, incarceration and other complications of substance abuse in the infectious diseases division of the Warrant Alpert Medical School at Brown University. My CV is attached as Exhibit 1.

2. For the past decade, my work has centered on assessing the health impact of incarceration, with a particular focus on infectious and communicable diseases. Much of my work has focused on HIV transmission, prevention and treatment in the carceral setting. In this capacity, I have become very familiar with the conditions of confinement, including housing and health care, in jails and prisons.

3. Given my particular expertise, my work has almost entirely shifted to studying the transmission of COVID-19 in the carceral setting since the outbreak of the pandemic. Over the past month, I have been collecting all available data from state and federal prisons to better understand the spread of COVID-19 in the carceral setting. Specifically, I have been trying to discern prevalence rates, the transmission and spread of COVID-19 in prisons over time, and how prisons are related to community spread of the disease.

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4. We now know that a significant number of individuals infected with COVID-19 either do not exhibit symptoms until several days after they are infected (what is known as presymptomatic) or never exhibit any symptoms at all (what is known as asymptomatic).1 The CDC Director Dr. Robert Redfield estimates that 25% of people with COVID-19 may be asymptomatic.2
5. Critically, both asymptomatic individuals and pre-symptomatic individuals can and do spread the virus through viral shedding. Indeed, even for individuals who eventually become symptomatic, the CDC estimates that viral transmission can occur up to 48 hours before any symptoms.3
6. Unless asymptomatic individuals are tested, this silent transmission of the disease can lead to a rapid spreading of COVID-19 that is entirely hidden until it suddenly, and fatally, explodes into view in a massive outbreak. For example, according to a new model of the spread of the disease by researchers at Northeastern University, while there were only 23 confirmed cases of coronavirus in Boston, Seattle, Chicago, San Francisco and New York on March 1, 2020, there could have been as many as 28,000 infections in those cities by that time.4
7. Social distancing is the primary way to prevent the transmission of COVID-19. Recent research has shown that asymptomatic spread is rampant in congregant living spaces where social distancing is not possible.
8. In an April 23, 2020 press release announcing the expansion of asymptomatic testing “at select facilities,” the BOP itself acknowledges, “asymptomatic inmates who test positive for COVID-19 can transmit the virus to other inmates.”5
1 Centers for Disease Control and Prevention, Recommendations for Cloth Face Covers, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-facecover.html#studies. 2 Apoorva Mandavilli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. Times (Apr. 20, 2020), https://www.nytimes.com/2020/03/31/health/coronavirusasymptomatic-transmission.html. 3 Sam Whitehead and Carrie Feibel, CDC Director on Models for the Months to Come: ‘This Virus is Going to Be With Us’, NPR (Mar. 31, 2020), https://www.npr.org/sections/healthshots/2020/03/31/824155179/cdc-director-on-models-for-the-months-to-come-this-virus-isgoing-to-be-with-us. 4 Benedict Carey and James Glanz, Hidden Outbreaks Spread Through U.S. Cities Far Earlier Than Americans Knew, Estimates Say, N.Y. Times (Apr. 23, 2020), https://www.nytimes.com/2020/04/23/us/coronavirus-early-outbreaks-cities.html. 5 Press Release, Bureau of Prisons Expands COVID-19 Testing, (Apr. 23, 2020), attached as Exhibit 2.
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9. I have read the declaration that Dr. Megan Shaw, Clinical Director at FMC Devens, submitted in this case. Based on my review, it is my understanding that FMC Devens is testing only symptomatic prisoners. See Shaw Decl. ¶¶ 23, 26.
10. In my professional opinion, this testing protocol is dangerously flawed.
11. It is impossible to know the breadth of the COVID-19 infection rate within FMC-Devens based on testing that is limited to prisoners with symptoms of the disease. Based on my research, I know that you can only discover the true rate of COVID-19 infections within a facility by testing both symptomatic and asymptomatic prisoners.
12. For example, when North Carolina’s Neuse Correctional Institution tested all 700 prisoners in its facility, it was discovered that at least 65% had the virus.6 Ninety-five percent of those infected with COVID-19 were not experiencing symptoms at the time of their test.7 We have seen similar results in Michigan—where broad testing at Lakeland Prison revealed that 73% of the first 535 prisoners tested positive—and Ohio—where universal testing at Marion Correctional Institution and Pickaway Correctional Institution revealed 2,000 and 1,500 COVID-19 positive prisoners, respectively.8
13. In contrast, according to my review of publicly available data, as of April 26, 2020 FMCDevens was reporting a single confirmed prisoner case of COVID-19.9 But because the facility is testing only symptomatic prisoners, this data point is not meaningful. It certainly does not mean that the facility is safe. Everything we know about the presentation and transmission of this disease points to the fact that when you have one confirmed case under a symptomatic protocol, it is fair to assume that there are many more cases at that facility. In my professional opinion, this single confirmed case is the tip of the iceberg at FMC Devens.
14. Relying exclusively on symptomatic testing is dangerous not just for the prisoners within FMC Devens, but for the staff, their families, and the surrounding community as well.
15. Based on my review of Dr. Shaw’s declaration, FMC Devens is taking the temperature of every staff member, and screening them for symptoms, before they can enter the facility. Shaw Decl. ¶ 25. Due to asymptomatic and pre-symptomatic viral shedding, this will not prevent the virus from entering the facility. Similarly, the symptomatic testing of prisoners will not protect staff members from contracting the virus from prisoners and taking it back to
6 Cary Aspinwall and Joseph Neff, These Prisons are Doing Mass Testing for COVID-19 – And Finding Mass Infections, The Marshall Project (Apr. 24, 2020), https://www.themarshallproject.org/2020/04/24/these-prisons-are-doing-mass-testing-for-covid19-and-finding-mass-infections. 7 Id. 8 Id. 9 BOP, COVID-19 Cases, https://www.bop.gov/coronavirus/.
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their family members and communities. The unchecked spread of the virus inside FMC Devens will therefore lead to the spread of the virus outside the facility.
16. We have already seen the grave consequences of insufficient testing in congregant settings through the rapid spread of COVID-19 in nursing homes throughout the country.10 On April 24, 2020, the national number of nursing home deaths from COVID-19 surpassed 11,000.11 New York Governor Andrew Cuomo accurately described the spread of COVID19 in nursing homes as “fire through dry grass.”12
17. Reflecting this understanding, the Massachusetts Department of Public Health (DPH) now recommends that nursing home facilities using it mobile testing program “order tests for all residents and staff, NOT just symptomatic individuals.”13
18. When it comes to disease transmission, jails and prisons are similar to nursing homes. They both house a large number of individuals in close quarters. And much like nursing homes, the incarcerated population is more vulnerable to COVID-19 than the general population due to age and medical risk factors.
19. It is therefore not surprising that we have also seen large outbreaks at BOP facilities that have not decreased their population to allow for social distancing. As of April 25, 2020, BOP was reporting 217 confirmed COVID-19 positive prisoners and 2 COVID-19 prisoner deaths at FMC Forth Worth, as well as 51 confirmed COVID-19 positive prisoners, 48 confirmed COVID-19 positive staff and 6 COVID-19 prisoner deaths at FCI Elkton.14
20. These outbreaks make it all the more troubling that since the Attorney General’s April 3 memo encouraging the BOP to use home confinement to decrease its prison population, “the number of people allowed to serve the rest of their sentence in home confinement went up by only 1,027” which is “about half of one percent of the more than 174,000 people in the bureau’s custody at the start of the month.”15 Throughout the month of April, the total federal prison population decreased by approximately 3,400 people—including people
10 Associated Press, 11,000 Deaths: Ravaged Nursing Homes Plead for More Testing, N.Y. Times (Apr. 23, 2020), https://www.nytimes.com/aponline/2020/04/23/us/ap-us-virus-outbreaknursing-home-testing.html. 11 Id. 12 Id. 13 Massachusetts COVID-19 Nursing Home, Rest Home, and ALR Mobile Testing Program, Revised Guidance: April 13, 2020, attached as Exhibit 3. 14 BOP, COVID-19 Cases, https://www.bop.gov/coronavirus/. 15 Joseph Neff and Keri Blakinger, Few Federal Prisoners Released Under COVID-19 Emergency Policies, The Marshall Project (Apr. 25, 2020), https://www.themarshallproject.org/2020/04/25/few-federal-prisoners-released-under-covid-19emergency-policies.
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Case 1:20-cv-10738-GAO Document 38-1 Filed 04/27/20 Page 6 of 30 whose sentences ended in April—which is 300 less than the 3,700 people the BOP released on average every month last year.16 21. The same reasons that animate DPH’s testing recommendation suggests that a similar approach would be necessary to understand the size of the COVID-19 infection rate at FMC Devens. There is no reason to take a different approach to protect the health of those who live in nursing homes than to protect the health of those who live within our federal prisons. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 26th day of April 2020.
Lauren Brinkley-Rubinstein, PhD
16 Id. 5

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Exhibit 1

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Lauren Brinkley-Rubinstein, PhD 333 S. Columbia Street 341b MacNider Hall Chapel Hill, NC 27599
Lauren_Brinkley@med.unc.edu

EDUCATION

05/15 – 06/16

T32 Postdoctoral Fellow, HIV, Incarceration, and Other Complications of Substance Abuse Division of Infectious Diseases, Warren Alpert Medical School Brown University, Providence, RI

01/12 – 05/15

Ph.D., Community Research and Action Vanderbilt University, Nashville, TN

05/13

Graduate Certificate, Scholarship of Teaching and Learning Scholars Vanderbilt, University, Nashville, TN

08/09 – 12/11

M.S., Community Research and Action Vanderbilt University, Nashville, TN

08/04 – 12/06

M.A., Criminal Justice Policy City University of New York (CUNY), John Jay College of Criminal Justice, New York, NY

08/01 – 05/04

B.A., Sociology Western Kentucky University, Bowling Green, KY

PROFESSIONAL EXPERIENCE

04/19—Present

Adjunct Assistant Professor of Health Behavior, Gillings School of Public Health, University of North Carolina at Chapel Hill

06/16 – Present

Assistant Professor of Social Medicine, University of North Carolina at Chapel Hill

06/16 – Present

Core Faculty in the Center for Health Equity Research, University of North Carolina at Chapel Hill

06/16 – Present

Research Fellow at the Sheps Center for Health Services Research, University of North Carolina at Chapel Hill

06/16 – Present

Affiliated Faculty at the Center for Prisoner Health and Human Rights at Brown University

09/17 – Present

Health Criminology Research Consortium Faculty Fellow, Saint Louis University

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09/07 – 6/10

Research Associate, Metro Nashville Public Health Department

08/05 – 12/06

Research Assistant, Vera Institute of Justice

BIBLIOGRAPHY AND SCHOLARLY PRODUCTS

Special Journal Issues Edited

Cloud, D. Brinkley-Rubinstein, L., Bassett, M.T., Graves, J., & Fullilove, R.E. (2020). Special Issue of the American Journal of Public Health: Mass Incarceration as a Socio-Structural Determinant of Health Disparities.

Brinkley-Rubinstein, L., Sadacharan, R., Macmadu, A., & Rich, J.D. (2018). Special Issue of the Journal of Urban Health on Incarceration and Health.

Journal Articles

Nowotny, K., Bailey, Z., Omori, M., & Brinkley-Rubinstein, L. (in press). COVID-19 exposes need for progressive criminal justice reform. American Journal of Public Health

Wurcel, A.G., Dauria, E., Zaller, N., Nijhawan, A., Beckwith, C., Nowotny, K., & BrinkleyRubinstein, L. (2020). Clinical Infectious Diseases. pii: ciaa346. doi: 10.1093/cid/ciaa346.

Zaller, N.D., Nehrer, T., Marshall, S.A., Zielinski, M., & Brinkley-Rubinstein, L. (2020). Barriers and facilitators to linking high-risk jail detainees to HIV pre-exposure prophylaxis. PLOSOne.

Rennie, S., Buchbinder, M., Blue, C., Juengst, E., Brinkley-Rubinstein, L., & Rosen, D.L. (2020). Scraping the web for public health gains: Ethical considerations from a “big data” research project on HIV and incarceration. Public Health Ethics.

Buchbinder, M., Blue, C., Juengst, E., Brinkley-Rubinstein, L., Rennie, S., & Rosen, D.L. (2020). Expert stakeholders’ perspectives on a Data-to-Care strategy for improving care among HIV-positive individuals incarcerated in jails. AIDS Care.

Cloud, D.H., Bassett, M.T., Graves, J., Fullilove, R.E., & Brinkley-Rubinstein, L. (2020). Editors Choice. American Journal of Public Health.

Brinkley-Rubinstein, L. & Cloud, D.H. (2020). Mass incarceration as a driver of socio-structural health inequities. American Journal of Public Health.

Brinkley-Rubinstein, L., Allen, S.A., & Rich, J.D. (2020). Incarceration negatively impacts the health of children. The Lancet Public Health.

Macmadu, A., Goedel, W.C,, Adams, J.W., Brinkley-Rubinstein, L., Green, T.C., Clarke, J.G., Martin, R.A., Rich, J.D., Marshall, B.D.L. (2020). Estimating the impact of wide scale uptake of screening and medications for opioid use disorder in US prisons and jails. Drug and Alcohol Dependence.

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Tomar, N., Brinkley-Rubinstein, L., Ghezzi, M.A., VanDeinse, T.B., Burgin, S., & Cuddeback, G.S. (2019). Internalized stigma and its correlates among justice-involved individuals with mental illness. International Journal of Mental Health. 1-11.
Brinkley-Rubinstein, L. & Johnson, T. (2019). Solitary confinement and health. NC Med J. 80(6). 359360. doi: 10.18043/ncm.80.6.359.
Callander, D., Duncan, D.T., Hyun Park, S., Bowleg, L., Brinkley-Rubinstein, L., Theall, K.P., & Hickson, D.A. (in press). An intersectional analysis of life stress, incarceration and sexual health risk practices among cisgender Black gay, bisexual and other men who have sex with men in the Deep South of the United States: The MARI Study. Sexual Health.
Brinkley-Rubinstein, L., Crowley, C., Montgomery, M., Zaller, N.D., Martin, R., Clarke, J., Dubey, M., Chan, P.A. (in press). Knowledge and interest of pre-exposure prophylaxis among men in a criminal justice setting. Journal of Correctional Healthcare.
Brinkley-Rubinstein, L., Sivaraman, J., Shanahan, M., Proescholdbell, S., Rosen, D.L., Cloud, D.H., Junker, G., & Ranapurwala, S. (2019). Restrictive housing during incarceration is associated with increased post-release risk of death from suicide, homicide, and opioid overdose. JAMA Open Network: 2(10): e1912516. doi:10.1001/jamanetworkopen.2019.12516.
Peterson, M. Rich, J.D., Clarke, J.C., Macmadu, A., Truong, A., Pognon, K., & Brinkley-Rubinstein, L. (2019). Pre-Exposure Prophylaxis Awareness and Interest among Participants in a Medications for Addiction Treatment Program in a Unified Jail and Prison Setting in Rhode Island. Journal of Substance Abuse Treatment. 106:73-78. doi: 10.1016/j.jsat.2019.08.015.
Martin, R., Gresko, S.A., Brinkley-Rubinstein, L., Stein, L., & Clarke, J. (in press). Post-release treatment uptake among participants of the Rhode Island Department of Corrections Comprehensive Medication Assisted Treatment Program. Preventive Medicine. 4 (105766). doi: 10.1016/j.ypmed.2019.105766.
Rhodes B., Costenbader, B., Wilson, L., Hershow, R., Carroll, J., Zule, W., & Brinkley-Rubinstein, L. (2019). Urban, Black and multi-racial individuals are impacted by fentanyl-contaminated heroin. International Journal of Drug Policy. 19 (73).1-6. doi: 10.1016/j.drugpo.2019.07.008.
Brinkley-Rubinstein, L., Peterson, M., Macmadu, A., Truong, A.Q., Clarke, J.C., Marshall, B.D., Green, T.G., Parker, M., Pognon, K., Martin, R., Stein, L., & Rich, J.D. (2019). The benefits and implementation challenges of the first state-wide comprehensive medication for addictions program in a unified jail and prison setting. Drug and Alcohol Dependence. 7;205:107514. doi: 10.1016/j.drugalcdep.2019.06.016.
Hershow, R., Gonzalez, M., Costenbader, B., Golin, C., Zule, W., & Brinkley-Rubinstein, L. (2019). Medical providers and harm reduction views on Pre-Exposure Prophylaxis for HIV prevention among people who inject drugs. AIDS Education and Prevention. 31(4). 363-379. doi: 10.1521/aeap.2019.31.4.363.
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Peterson, M., Rich, J.D., Macmadu, A., Truong, A.Q., Green, T.C., Beletesky, L., Pognon, K. & Brinkley-Rubinstein, L. (2019). One guy goes to jail, two people are ready to take his spot: Perspectives on drug-induced homicide laws among incarcerated individuals. International Journal of Drug Policy.
Zaller, N.D., Zielinski, M., Coffey, J., & Brinkley-Rubinstein, L. (2019). Screening for opioid use disorder in the largest jail in Arkansas: A brief report. Journal of Correctional Healthcare. 25(3). 214218. doi: 10.1177/1078345819852133.
Brinkley-Rubinstein, L., Peterson, M., Zaller, N.D., & Wohl, D.A. (2019). Best practices for identifying men who have sex with men for corrections-based pre-exposure prophylaxis provision. Health & Justice. 7(7). 1-5. doi: doi.org/10.1186/s40352-019-0088-7
Ramsey, S.E., Ames, E.G., Brinkley-Rubinstein, L., Teitelman, A.M., Clarke, J., & Kaplan, C. (2019). Linking Women Experiencing Incarceration to Community-Based HIV Pre-Exposure Prophylaxis Care: Protocol of a Pilot Trial, Addiction Science & Clinical Practice. Addiction Science & Clinical Practice. 14(8), 1-13. doi: 10.1186/s13722-019-0137-5.
Chadwick, C.N., Brinkley-Rubinstein, L., McCormack, M., & Mann, A. (2019). Experiences of HIV stigma in rural Southern religious settings. International Journal of Culture and Mental Health. 11(3), 1-17. doi:10.1080/17542863.2018.1556718.
Zaller, N. & Brinkley-Rubinstein, L. (2018). Incarceration, drug use, and infectious diseases: A syndemic still not addressed. Lancet HIV. 18(12): P1301-1302. doi: 10.1016/S1473-3099(18)30438-3.
Brinkley-Rubinstein, L., Peterson, M., Arnold, T., Nunn, A.S., Beckwith, C.G., Castonguay, B., Junious, E., Lewis, C., Chan, P.A. (2018). Knowledge, interest, and anticipated barriers of pre-exposure prophylaxis uptake and adherence among gay, bisexual, and men who have sex with men who are incarcerated. PLoS One, 13(12):e0205593. doi: 10.1371/journal.pone.0205593.
Peterson, M., Nowotony, K., Dauria, E., Arnold, T., & Brinkley-Rubinstein, L. (2018). Institutional distrust among gay, bisexual, and other men who have sex with men as a barrier to accessing preexposure prophylaxis (PrEP). AIDS Care, 1-6. doi: https://doi.org/10.1080/09540121.2018.1524114.
Beckwith, C.G., Kuo, I., Fredricksen, R., Brinkley-Rubinstein, L., Loeliger, K., Young, R., Cunningham, W., Kahana, S., Franks, J., Zawitz, C., Seal, D., Springer, S., Christopoulos, K., Lorvick, J., Delaney, J.A., Crane, H.M., & Biggs, M.L. (2018). Risk behaviors and HIV care continuum outcomes among criminal justice-involved HIV infected transgender women and cisgender men: Data from the Seek, Test, Treat, and Retain Harmonization Initiative. PLoS ONE, 13(5), e0197730. doi: https://doi.org/10.1371/journal. pone.0197730.
Brinkley-Rubinstein, L., Dauria, E., Tolou-Sham, M., Christopolous, K., Chan, P.A., Beckwith, C.G., Parker, S., & Meyer, J. (2018). The path to implementation of HIV pre-exposure prophylaxis for people involved in criminal justice systems. Current HIV/AIDS Reports, 15(2), 93-95. doi: 10.1007/s11904018-0389-9.
Brinkley-Rubinstein, L., Drucker, E., Cloud, D.C., & Zaller, N. (2018). Opioid use among those who
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have criminal justice experience: Harm reduction strategies to lessen HIV risk. Current HIV/AIDS Reports, 15(3), 225-258. https://doi.org/10.1007/s11904-018-0394-z.
Brinkley-Rubinstein, L., Macmadu, A., Marshall, B.D.L., Heise, A., Ranapurwala, S., Rich, J.A., & Green, T.C. (2018). Risk of fentanyl-involved overdose associated with recent criminal justice system involvement: Findings from a recent outbreak of illicit synthetic fentanyl overdose in 2014 and 2015. Drug and Alcohol Dependence, 185, 189-191. doi: 10.1016/j.drugalcdep.2017.12.014.
Brinkley-Rubinstein, L., McKenzie, M., Macmadu, A., Zaller, N., Larney, S., Dauria, E., & Rich, J. (2018). A randomized, open label trial of methadone continuation versus forced withdrawal in a combined US prison and jail: Findings at 12-months post-release. Drug and Alcohol Dependence, 184, 57-63. doi: 10.1016/j.drugalcdep.2017.11.023.
Brinkley-Rubinstein, L. Sandacharan, R., Macmadu, A., & Rich, J.D. (2018). Introduction to the special issue of the journal of urban health: Incarceration and health. Journal of Urban Health, 95(4), 441-443.
Brinkley-Rubinstein, L., Zaller, N.D., Martino, S., Cloud, D.H., McCauley, E., Heise, A., & Seal, D. (2018). Criminal justice continuum for opioid users at risk of overdose. Addictive Behaviors, 86, 104110. doi: https://doi.org/10.1016/j.addbeh.2018.02.024.
Cloud, D.C., Castillo, T., Brinkley-Rubinstein, L., Dubey, M., & Childs, R. (2018). Syringe decriminalization advocacy in red states: Lessons from the North Carolina Harm Reduction Coalition. Current HIV/AIDS Reports, 15(3), 276-282. doi: 10.1007/s11904-018-0397-9.
Green, T.C., Clarke, J., Brinkley-Rubinstein, L., Marshall, B.D.L., Alexander-Scott, N., Boss, R., & Rich, J. (2018). Reduced post-incarceration fatal overdoses after implementation of a comprehensive program of medications for opioid use disorder in a statewide correctional system. JAMA Psychiatry. 75(4), 405-407. doi: 10.1001/jamapsychiatry.2017.461.
McCauley, E.M., Eckstrand, K., Desta, B., Brockmann, B., Bouvier, B., & Brinkley-Rubinstein, L. (2018). Exploring healthcare experiences for incarcerated individuals who identify as transgender in a southern jail. Transgender Health, 3(1), 34-41. doi: 10.1089/trgh.2017.0046.
Rebeiro, P.F., McPherson, T., Goggins, K., Turner, M.M., Bebawy, S.S., Brinkley-Rubinstein, L., Person, A.K., Sterling, T.R., Kripalani, S., & Pettit, A.C. (2018). Health literacy and demographic disparities in HIV-1 viral suppression. AIDS & Behavior, 22(8), 2604-1614. doi: 10.1007/s10461-0182092-7.
Stopka, T.J., Brinkley-Rubinstein, L., Johnson, K., Chan, P.A., Hutcheson, M., Crosby, R.A., Burke, D., Mena, L., & Nunn, A. (2018). HIV clustering in Mississippi: Spatial epidemiology study to inform implementation science in the Deep South. JMIR, 4(2), e35. doi: 10.2196/publichealth.8773.
Arnold, T., Brinkley-Rubinstein, L., Chan, P., Perez-Brumer, A., Mena, L., Beauchamps, L., Bologna, E., Johnson, K., & Nunn, A. (2017). Social, structural, behavioral, and clinical factors influencing retention in pre-exposure prophylaxis (PrEP) care in Mississippi. PLOSOne, 12(2), e0172354. doi: 10.1371/journal.pone.0172354.
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Zaller, N.D., Cloud, D.H., Brinkley-Rubinstein, L., Martino, S., Bouvier, B., & Brockmann, B. (2017). The importance of Medicaid expansion for criminal justice populations in the South. Health & Justice, 5(1), 2. doi: 10.1186/s40352-017-0047-0.
Brinkley-Rubinstein, L., Cloud, D.H., Davis, C., Zaller, N., Delany-Brumsey, A., Pope, L., Bouvier, B., & Rich, J.D. (2017). Addressing excess risk of overdose among recently incarcerated people in the USA: Harm reduction interventions in correctional settings. Special Issue: “Translating Research into Policy to Advance Correctional Health” of the International Journal of Prisoner Health, 13(1), 25-31. doi: 10.1108/IJPH-08-2016-0039.
Brinkley-Rubinstein, L., Rosen, D.L., Christopher, P., Bazerman, L., & Beckwith, C. (2017). Long acting injectable anti-retroviral therapy: An opportunity to improve HIV treatment and reduce HIV transmission among persons being released from prison facilities. Clinical Infectious Diseases, 65(7), 1247-1248. doi: 10.1093/cid/cix493.
Kipp, A.M., Rebeiro, P.F., Shepherd, B.E., Brinkley-Rubinstein, L., Turner, M., Bebawy, S., Sterling, T.R., & Hulgan, T. (2017). Daily marijuana use is associated with missed clinic appointments among HIV-infected persons engaged in HIV care. AIDS & Behavior, 21(7), 1996-2004. doi: 10.1007/s10461017-1716-7.
Nunn, A, Brinkley-Rubinstein, L., Oldenberg, C., Mayer, K., Mimiaga, M., Patel, R., & Chan, P. (2017). Defining the HIV pre-exposure prophylaxis care continuum. AIDS, 31(5), 731-734. doi: 10.1097/QAD.0000000000001385.
Nunn, A., Brinkley-Rubinstein, L., Towey, C., Yolken, A., Trooskin, S., Smith, E., Beckwith, C., Rose, J., & Chan, P. (2017). Latent class analysis of acceptability and willingness to identify individuals for self-HIV testing in community settings. Journal of the International AIDS Society, 20(1). 1-9. doi: 10.7448/IAS.20.1.21290.
Tomar, N., Ghezzi, M.A., Brinkley-Rubinstein, L., Blank Wilson, A., Van Deinse, T.B., Burgin, S., & Cuddeback, G.S. (2017). Statewide mental health training for probation officers: Improving knowledge and decreasing stigma. Health & Justice. 5(1), 11. doi: 10.1186/s40352-017-0057-y.
Brinkley-Rubinstein, L., Parker, S., Chan, P., Gjelsvik, A., Mena, L., Marshall, B., Harvey, J., Beckwith, C., Riggins, R. & Nunn, A. (2016). Condom use and incarceration among STI clinic attendees in the Deep South. BMC Public Health, 16(1), 971. doi: 10.1186/s12889-016-3590-z.
Marshall, B.D.L., Perez-Brumer, A.G., MacCarthy, S., Mena, L., Chan, P.A., Towey, C., Barnett, N., Parker, S., Barnes, A., Brinkley-Rubinstein, L., Rose, J.S., & Nunn, A. (2016). Individual and partnerlevel factors associated with condom non-use among African American STI clinic attendees in the Deep South: An event-level analysis. AIDS & Behavior, 20(6), 1334-1342. doi: 10.1007/s10461-015-1266-9.
Rich, J.D., Beckwith, C., Macmadu, A., Marshall, B., Brinkley-Rubinstein, L., Milloy, M.J., Atwoli, L., Sanchez, J. & Altice, F. (2016). Clinical care of the incarcerated patient with HIV, Hepatitis B and C, and TB. Lancet, 388(10049), 1103-114 doi: 10.1016/S0140-6736(16)30379-8.
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Brinkley-Rubinstein, L. (2015). Understanding the effects of multiple stigmas among formerly incarcerated HIV-positive African American men. AIDS Education & Prevention, 27(2), 168-180. doi: 10.1521/aeap.2015.27.2.167.
Brinkley-Rubinstein, L., Bethune, M., & Doykos, B. (2015). HIV health literacy as a process: A casemanagement perspective. Social Work in Public Health, 30(3), 250-259. doi: 10.1080/19371918.2014.994724.
Griffith, D.M., Brinkley-Rubinstein, L., Thorpe, R., Bruce, M. & Metzl, J.M. (2015). The interdependence of African American men’s definitions of manhood and health. Journal of Family & Community Health, 38(4), 284-296. doi: 10.1097/FCH.0000000000000079.
Brinkley-Rubinstein, L., & Craven, K. (2014). HIV risk and stigma: A latent class analysis of perceptions among youth in post-apartheid South Africa. PLOSOne, 9(2), e89915. doi: 10.1371/journal.pone.0089915.
Craven, K., McCormack, M. & Brinkley-Rubinstein, L. (2014). Navigating the margins: How a culturally responsive and relevant pedagogical framework can inform the creation of a positive developmental context for African American male youth. Journal of Interdisciplinary Studies in Education, 2(2), 61-80.
Doykos, B., Brinkley-Rubinstein, L., Craven, K., McCormack, M. & Geller, J. (2014). Leveraging identity, gaining access: Explorations of self in diverse field-based research settings. Journal of Community Practice, 22(1-2), 130-149.
McCormack, M.M., Brinkley-Rubinstein, L., & Craven, K. (2014). Leadership religiosity: A critical analysis of leadership within a juvenile justice community based organization. Journal of Leadership & Organization Development, 35(7), 622-636.
Meinbresse, M., Brinkley-Rubinstein, L., Grassette, A., Benson, J., Hall, C., Hamilton, R., Malott, M. & Jenkins, D. (2014). Exploring the experiences of violence among individuals who are homeless using a consumer-led approach. Journal of Violence and Victimization, 29(1), 122-136.
Brinkley-Rubinstein, L. (2013). Incarceration as a catalyst for worsening health. Health & Justice, 1(3), 1-17. doi: 10.1186/10.1186/2194-7899-1-3.
Brinkley-Rubinstein, L., Chadwick, C., & Graci, M. (2013). The connection between serious life events, anti-retroviral adherence, and mental health among HIV-positive individuals in the Western Cape, South Africa. AIDS Care, 25(12), 1581-1585. doi:10.1080/09540121.2013.793270.
Brinkley-Rubinstein, L., Craven, K.L., & McCormack, M.M. (2013) Shifting perceptions of race and incarceration as adolescents age: The importance of understanding the ways in which social environment informs racial identity. Journal of Child and Adolescent Social Work, 31(1), 25-38. doi: 10.1007/s10560013-0306-4.
Brinkley-Rubinstein, L., & Turner, W.L. (2013). Health impact of incarceration on HIV positive African American males: A qualitative exploration. Journal of AIDS Patient Care and STDs, 27(8), 450-
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458. doi: 10.1089/apc.2012.0457.
Slobogin, C. & Brinkley-Rubinstein, L. (2013) Putting desert in its place. Stanford Law Review, 65(2), 1-52.
Brinkley-Rubinstein, L., & Cornett, M.B. (2011). Is Mandatory HIV testing a violation of prisoners’ rights? An examination of the existing prison testing policies. Health Law & Policy Forum, 3(1), 35-37.
Books and Chapters
Brinkley-Rubinstein, L. (2018). Prison populations: Epidemiology of HIV/AIDS. In T.J. Hope, M. Stevenson & D. Richman (Eds.), Encyclopedia of AIDS (pp.1175-1178). New York, NY: Springer.
McCauley, E. & Brinkley-Rubinstein, L. (2017). Institutionalization and incarceration of LGBT individuals. In K. Eckstrand & J. Potter (Eds.) Trauma, resilience, and health promotion for LGBT patients, (pp.149-161). New York, NY: Springer.
Barnes, S., Brinkley-Rubinstein, L., Doykos, B., Martin, N., & McGuire, A. (2015). Academics in action! A model for community-engaged research, teaching, and service. New York, NY: Fordham University Press.
Barnes, S., Brinkley-Rubinstein, L., Doykos, B., Martin, N., & McGuire, A. (2015). Introduction. In S. Barnes, L. Brinkley-Rubinstein, B. Doykos & N. Martin (Eds.) Academics in action! A model for community-engaged research, teaching, and service, (pp.1-26). New York, NY: Fordham University Press.
Brinkley-Rubinstein, L., Chatman, V., Lunn, L. Mann, A. & Heflinger, C.A. (2015). Putting Boyer’s four types of scholarship into practice: A community research and action perspective on public health. In S. Barnes, L. Brinkley-Rubinstein, B. Doykos & N. Martin (Eds.) Academics in action! A model for community-engaged research, teaching, and service, (pp.124-141). New York, NY: Fordham University Press.
Brinkley-Rubinstein, L., & Mann, A. (2014). The complexity of culture: Culture’s impact on health disparities. In R. Gurung (Ed.), Multicultural approaches to health and wellness in America, (pp. 29-50). Westport, CT: Praeger.
Brinkley-Rubinstein, L. (2014). Historical perspectives on race and the war on drugs and prolonged effects of racially biased laws and policies. In S. Bowman (Ed.), Color behind bars: Racism in the U.S. prison system (pp. 171-190). Santa Barbara, CA: ABC-CLIO. Brinkley-Rubinstein, L., & Turner, W.L. (2013). Creating healthier communities: Advancing from science to policy to practice. In K. Fitzpatrick (Ed.), Poverty and health: A crisis among America’s most vulnerable, (pp.241- 258). Westport, CT: Praeger.
Commentaries
Brinkley-Rubinstein, L. (2014). Drug users need treatment, not punishment, The Tennessean, 14A.
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Brinkley-Rubinstein, L. (2013). Three possible strategies for eliminating racial bias in the criminal justice system, The Tennessean, 16A.

GRANTS

Active

U01DA050442 (Brown University)

08/2019 – 07/2024

$11,457,579

National Institute of Drug Abuse

Multiple Principal Investigator (15% of salary)

Using Implementation Interventions and Peer Recovery Support to Improve Opioid Treatment

Outcomes in Community Supervision

We propose to conduct an implementation and outcome evaluation to improve medication assisted

treatment uptake at sites in North Carolina, Rhode Island, and Pennsylvania.

UG1DA050072-01 (Yale University)

08/2019 – 07/2024

$11,828,050

Site Principal Investigator and Co-Investigator (20% of salary)

Transitions Clinic Network: Post Incarceration Treatment, Healthcare, and Social Support Study

We propose to adapt the Transitions Clinic Network model to use community health workers to connect

individuals leaving jails in New Haven, Durham, San Juan, the Bronx, and Milwaukee to community-

based medication assisted treatment.

R01MD013573 (University of North Carolina, Chapel Hill)

09/2018 – 08/2023

$2,721,528

National Institute of Minority Health Disparities

Principal Investigator (20% of salary)

The Southern Pre-Exposure Prophylaxis (PrEP) Cohort Study: Longitudinal PrEP initiation and

adherence among Parolees.

In this study, we are conducting an observational PrEP cohort study among parolees in three Southern

states: NC, KY, and FL.

U54MD002329

11/2017 – 10/2022

$1,402,893

National Institute of Minority Health Disparities (University of Arkansas for Medical Sciences)

Co-Investigator (20% of salary)

Linking High-Risk Jail Detainees to HIV pre-exposure prophylaxis: Pre-Exposure

Prophylaxis (PrEP)-LINK

In this study, we are assessing the facilitators and barriers to PrEP uptake among high-risk jail detainees

to optimize a future PrEP intervention.

R01AI129731 (University of North Carolina, Chapel Hill)

07/2017 – 06/2021

$681,959

National Institute of Allergy and Infectious Disease

Co-Investigator (7% of salary)

Leveraging Big Data to understand and improve continuity of care among HIV positive jail

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Inmates In this study, we are developing a database combining jail and state HIV records, use the database to examine burden of known HIV in county jails, assess inmates’ use of HIV services before, during and after incarceration, and identify inmate and facility factors associated with services before, during and after incarceration.

R34MH114654 (Brown University)

07/2017 – 06/2020

$681,959

National Institute of Drug Abuse

Co-Investigator (5% of salary)

Linkage to Community-Based HIV Pre-Exposure Prophylaxis Care Among at Risk

Women upon Release from Incarceration

In this study, we will test a HIV prevention intervention among women at the Rhode Island Department

of Corrections.

Completed

Robert Wood Johnson Foundation (University of North Carolina at Chapel Hill)

11/2018-11/2019

$149,245

Principal Investigator (no salary support)

Focusing a special issue of the American Journal of Public Health on how incarceration

exacerbates health disparities

This grant funds a special issue of the American Journal of Public Health and pays for the coordination of

the issue.

R21DA043487-Supplement

10/2018 – 09/2019

$150,000

Co-Investigator (7% of salary)

Adapting an Agent Based Model to Understand the Impact of Medication Assisted Treatment

Accessibility during Prison and Jail on Overdose Outcomes in the Community

In this study, we are using agent-based modeling to demonstrate the effect that access to medication

assisted treatment while incarcerated has on overdose outcomes in the community post-release.

Center for AIDS Research Supplement

09/2018 – 08/2019

$150,000

Co-Principal Investigator (15% of salary)

PrEP-aring for Prison Release

In this study, we are conducting qualitative research on how to adapt a community health worker

intervention to aid in linkage to PrEP care after release from prison.

R01MD010403 (Yale University)

09/2016 – 08/2019

$1,314,190

National Institute of Minority Health Disparities

Co-Investigator (9.8% of salary)

Building Resilient Neighborhoods and Positive Social Networks to Prevent Gun Violence

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We are applying a novel framework to mitigate the impact of gun violence in New Haven neighborhoods by defining gun violence as a chronic, manmade disaster, where prevention efforts can be planned and include the participation of neighborhood residents most impacted.

R21DA043487 (Brown University)

08/2017 – 07/2019

$476,602

National Institute of Drug Abuse

Co-Investigator (10% of salary)

Evaluating the implementation and impact of a novel medication assisted treatment program in a

unified jail and prison system

In this study, we are evaluating the implementation and impact of a comprehensive medication assisted

treatment program at the Rhode Island Department of Corrections.

The John and Laura Arnold Foundation (Brown University)

08/2017 – 07/2019

$296,234

Improving the Treatment of Opioid Use Disorders among People

Transitioning through Correctional Settings

Co-Investigator (10% of salary)

In this study, are evaluating the post-release treatment follow-up of individuals who participate in the

Rhode Island Department of Corrections comprehensive medication assisted treatment program.

UNC Committee of Faculty Research and Scholarly Leaves $10,000 Principal Investigator (no salary support) Small Grant to supplement other research activities This is an internal UNC grant that will be used to pay for research assistance.

01/2018 – 01/2019

UNC Center for AIDS Research Developmental Award

01/2018 – 12/2018

Principal Investigator (no salary support)

Exploring the use of pre-exposure prophylaxis among people who inject drugs in Durham County,

North Carolina

This project includes conducting qualitative interviews with people who inject drugs to explore HIV risk

behaviors, drug use trajectory, and interest in pre-exposure prophylaxis.

R25DA037190 (Brown University)

National Institute of Drug Abuse

05/2015 – 05/2017

Trainee

Criminal Justice Research Program on Substance Use and HIV

This program provided mentoring to promote training in clinical research for new investigators in

clinical research with a focus on HIV/AIDS, criminal justice, substance use, mental illness, global health

and health disparities.

R25DA035692 (University of California, Los Angeles) National Institute of Drug Abuse Trainee HIV/AIDS, Substance Abuse and Trauma Training Program

05/2015 – 05/2017

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This program provided multi-disciplinary, state-of-the-art training to better equip postdoctoral fellows and early career investigators to submit and receive grant funding.

T32DA013911 (Brown University)

National Institute of Drug Abuse

05/2015 – 06/2016

Trainee

Training in HIV and Other Infectious Consequences of Substance Abuse

This training program provided multi-disciplinary training in clinical research in the areas of prevention,

diagnosis and treatment of HIV and other infectious aspects of substance abuse.

INVITED PRESENTATIONS

Brinkley-Rubinstein, L. (2019, October). Incarceration as a Social Determinant of Health. Invited talk at University of Buffalo, Buffalo, NY.

Brinkley-Rubinstein, L. (2019, March). HIV infection among people who are incarcerated. Invited talk at the Southeast AIDS Education and Training Center coordinated by Vanderbilt University, Nashville, TN.

Brinkley-Rubinstein, L. (2019, March). Barriers and facilitators to implementation of a medication assisted treatment program in a statewide unified correctional setting in Rhode Island. Invited talk at the Mental Health Seminar Series at Duke University, Durham, NC.

Brinkley-Rubinstein, L. (2019, January). Fentanyl-contaminated heroin among communities of color. Invited talk at the Drug Policy Alliance, New York, NY.

Brinkley-Rubinstein, L. (2018, October). Opioid use among incarcerated populations. Invited talk at St. Louis University, St. Louis, MO.

Brinkley-Rubinstein, L. (2018, October). Initiating medication assisted treatment in incarcerated populations. Invited talk at the Vermont Center on Behavior and Health, Burlington, VT.

Brinkley-Rubinstein, L. (2018, September). Understanding substance use, mental illness, and involvement in the criminal justice system: Theory, interventions, and opportunities. Invited talk at the AHEC, Raleigh, NC.

Brinkley-Rubinstein, L. (2018, June). Introduction to the social determinants of health and health equity. Center for Health Equity Research Summer Training Program, University of North Carolina at Chapel Hill, Chapel Hill, NC.

PEER-REVIEWED CONFERENCE PRESENTATIONS

Brinkley-Rubinstein, L. (2019, March). Solitary Confinement is Associated with Increased Risk of Death. Presented at the Academic and Health Policy Conference on Correctional Health. Las Vegas, NV.

Neher, T.L., Brinkley-Rubinstein, L., Marshall, S.A., Zielinski, M., & Zaller, N.D. (2018,

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November). HIV risk factors and PrEP knowledge of incarcerated women in a county jail. Presented at the meeting of the American Public Health Association, San Diego, CA.
Macmadu, A., Brinkley-Rubinstein, L, & Rich, J. (2018, March). Fentanyl. Paper presented at the Academic and Health Policy Conference on Correctional Health. Houston, TX.
Ashkin, E., Rosen, D., & Brinkley-Rubinstein, L. (2018, March). NC Re-missioning. Presented at the Academic and Health Policy Conference on Correctional Health. Houston, TX.
Zaller, N., Brinkley-Rubinstein, L., Cloud, D., & Peterson, M. (2018, March). The CJ continuum for opioid users at risk of overdose. Presented at the Academic and Health Policy Conference on Correctional Health. Houston, TX.
Brinkley-Rubinstein, L. (2017, March). Exploring knowledge, interest, and barriers related to PrEP use among criminal justice involved men who have sex with men. Presented at the Academic and Health Policy Conference on Correctional Health. Atlanta, GA.
Marshall, B.D.L., King, M., Macmadu, A., Brinkley-Rubinstein, L., Sanchez, J., Beckwith, C.G., Altice, F.L., & Rich, J.D. (2016, June). The effect of incarceration on HIV care continuum outcomes in the United States: An agent-based modeling approach. Presented at the Epidemiology Congress of the Americas, Miami, FL.
Brinkley-Rubinstein, L. & Eckstrand, K. (2015, November). Exploring the health experiences of transgender individuals in a local jail. Presented at the American Public Health Association Annual Meeting, Chicago, Illinois.
Brinkley-Rubinstein, L. (2015, March). Health and incarceration of HIV positive individuals. Presented at the Academic and Health Policy Conference on Correctional Health. Boston, Massachusetts.
Brinkley-Rubinstein, L. (2014, November). Measuring the health impact of incarceration on the HIV positive individuals. Presented at the American Public Health Association Annual Meeting, New Orleans, Louisiana.
Brinkley-Rubinstein, L., & Griffith, D. (2014, November). How do African American men define health and what implications do these definitions have for health practices? Presented at the American Public Health Association Annual Meeting, New Orleans, Louisiana.
Brinkley-Rubinstein, L. (2014, October). The usefulness of mixed methods in assessing the health of formerly incarcerated individuals. Presented at the American Evaluation Association Annual Meeting, Denver, Colorado.
Brinkley-Rubinstein, L. (2014, March). Measuring the health impact of incarceration on HIV positive individuals. Presented at the Academic and Health Policy Conference on Correctional Health, Houston, Texas.
Griffith, D.M., Brinkley-Rubinstein, L., & Metzl, J. (2013, December). How do African American men
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define health and what implications do these definitions have for health practices? Presented at the meeting of International Congress on Men’s Health, Arlington, Virginia.
Brinkley-Rubinstein, L. (2013, October). Dual identities of formerly incarcerated HIV positive individuals and the impact on health. Presented at the American Public Health Association Annual Meeting, Boston, Massachusetts.
Brinkley-Rubinstein, L. & Turner, W.L. (2013, August). Incarceration as an exacerbation of worsening health among African American HIV positive men. Presented at the Annual Meeting of the American Sociological Association, New York, New York.
Brinkley-Rubinstein, L. (2013, March). Difficult pasts, uncertain futures: An exploration of the lived experiences of formerly incarcerated HIV positive African American males. Presented at the 5th Annual Health Disparities Conference at Teachers College, Columbia University, New York, New York.
Brinkley-Rubinstein, L. & Turner, W.L. (2013, March). Understanding the compounding effect of stigma among formerly incarcerated HIV positive African Americans: A qualitative exploration. Presented at the 6th Academic and Health Policy Conference on Correctional Health, Chicago, Illinois.
Brinkley-Rubinstein, L. & Mann, A. (2013, February). The complexity of culture: Using an intersectional and social ecological lens to examine the impact of culture on health disparities. Presented at the Cross Cultural Health Care Conference, Honolulu, Hawaii.
Brinkley-Rubinstein, L. (2012, October) Incarceration as a catalyst for worsening health. Presented at the Annual Meeting of the American Public Health Association, San Francisco, CA.
Meinbresse, M. & Brinkley-Rubinstein, L. (2012, September). Exploring the incidence of violence among high-risk homeless populations. Presented at the National Association for Community Health Centers Annual Conference. Orlando, FL.
Craven, K., Geller, J., Doykos, B., O’Connor, B., Brinkley-Rubinstein, L. & Bess, K. (2012, February). Contextual barriers to collective action and community organizing in a high poverty, high crime neighborhood. Presented at the Annual Meeting of the Association of American Geographers, New York, NY.
Brinkley-Rubinstein, L., Craven, K.L. & McCormack, M.M. (2011, November). Incarceration as exposure: An assessment of the efficacy of community organization to mediate involvement with the juvenile justice system. Presented at the International Conference on Urban Health, Belo Horizonte, Brazil.
Brinkley-Rubinstein, L. (2011, August). The cascading effects of social capital: From parenting to mediating sexual behavior. Presented at the Society for the Study of Social Problems Annual Meeting. Las Vegas, NV.
Brinkley-Rubinstein, L. (2011, July) Type of charge most often associated with HIV positive prisoners. Presented at the International AIDS Society Biannual Meeting. Rome, Italy.
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DiPietro, B. & Brinkley-Rubinstein, L. (2011, June). Show me the (UDS) Data: Difference between homeless & non-homeless health center patients. Presented at the National Health Care for the Homeless Conference & Policy Symposium. Washington, DC.
Brinkley-Rubinstein, L. (2011, June). Investigating the premises of empirical desert. Presented at the Law and Society Annual Meeting. San Francisco, CA.
Brinkley-Rubinstein, L. (2011, May). Perceived barriers to successful reintegration after release from prison. Presented at the 7th Annual International Congress of Qualitative Inquiry. Champaign-Urbana, IL.
Brinkley-Rubinstein, L., Rhodes, L., & O’Connor, B. (2011, April). Examining spatial distribution of incidence rates of sexually transmitted diseases and socio-economic measures. Presented at the American Association of Geographers Annual Meeting, Seattle, WA.
Rhodes, J., & Brinkley-Rubinstein, L. (2010, October). Examining incidence rates of sexually transmitted infections and socio-economic measures: A cross-sectional study in Nashville/Davidson County, TN. Presented at the 9th Annual International Conference on Urban Health, New York City, NY.
Brinkley-Rubinstein, L. (2010, July). Demographics and other characteristics associated with increased risk of incarceration and re-incarceration among HIV positive individuals. Presented at the International AIDS Conference, Vienna, Austria.
Brinkley-Rubinstein, L., Rhodes, J., McKelvey, B., & Solivan, A. (2010, June) Demographics and characteristics associated with the incidence of HIV among youth. Presented at the NIMH Annual International Research Conference on the Role of Families in Preventing and Adapting to HIV/AIDS, Nashville, TN.
Brinkley-Rubinstein, L. & Rhodes, J. (2010, March). Syphilis and HIV co-infection in Nashville/Davidson Co., Tennessee: A case for improving syphilis and STI testing among persons living with HIV. Presented at the 4th Annual Southeast Regional HIV/AIDS Conference sponsored by the Jefferson Comprehensive Care System, Inc., Little Rock, AR.
Brinkley-Rubinstein, L., & Rhodes, J. (2010, March). Early Syphilis and HIV syndemic in Nashville/Davidson Co., Tennessee: Implications for improving syphilis screening for people living with and at risk for HIV. Presented at the National STD Prevention Conference, Atlanta, GA.
TEACHING ACTIVITIES
University of North Carolina, Chapel Hill, Chapel Hill, NC Instructor of Record, Fall 2018
x Taught Social and Health Systems III to 16 second year medical students. This class focused on incarceration and health and covered the following subtopics: women and incarceration, substance use, HIV/AIDS, post-release healthcare access issues, how incarceration affects known social determinants of health (housing, employment, etc.), and healthcare delivery in correctional settings.
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University of North Carolina, Chapel Hill, Chapel Hill, NC
Instructor of Record, Fall and Spring, 2017, 2018 x Taught Social and Health Systems I & II to 15 first year medical students x Lectures given encompassed topics such as: influence of race, culture, gender, and sex on health
outcomes and health disparities; health reform; bioethics; and health policy as clinically relevant
for medical professionals.

Brown University, School of Public Health, Providence, RI
Co-Instructor of Record, Spring, 2016 x Taught the Tri-Lab: Designing better education for prisoner and community health x Gave lectures related to race and incarceration, community-based participatory research
methods, and the impact of incarceration on health x Mentored student groups who were designing education interventions to improve prisoner health.
Group topics included: Hepatitis C, PrEP, navigating the healthcare system post-release, and
PTSD

Vanderbilt University, Department of Human and Organizational Development, Nashville, TN
Co-Instructor of Record, Spring, 2015 x Taught HOD 3600: Ethnography x Gave lectures related to field work, data analysis, ethnographic methods x Mentored students to develop ethnographic research projects and research proposals

HONORS AND AWARDS

2014- 2016

Recipient, Langeloth Scholarship for the Academic and Health Policy Conference on Correctional Health

2015

Participant, SBSRN Mentor Day

2015

Winner, Newbrough Award for best scholarly work in the Department of Human and Organizational Development at Vanderbilt University

2013-2014

Winner, Society for Community, Research & Action Southeast region graduate student of the year

2012-2014

Recipient, Peabody College Honor Scholarship

2010-2014

Recipient, Peabody College tuition and stipend award

2014

Recipient, of a Vanderbilt Graduate School dissertation enhancement grant

2013

Recipient, Social Justice Institute Training for Mass Incarceration Scholarship

2012-2013

Nominated, Vanderbilt University Teaching Award

PROFESSIONAL SERVICE

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Associate Editorial Board: BMC Public Health, 2017-Present; BMC Infectious Diseases 2018-Present Editorial Board: Health & Justice 2016-Present Peer Reviewer 2018-2019: PLOSone, Journal of Healthcare for the Poor and Underserved, SAHARA-J: Journal of Social Aspects of HIV/AIDS, AIDS Care, HIV/AIDS and Social Services, Health & Justice, Drug and Alcohol Dependence, Addictive Behaviors, Preventive Medicine, American Journal of Public Health, American Journal of Preventive Medicine, Annals of Internal Medicine, AIDS & Behavior, American Journal of Public Health Local Host Committee: Academic and Health Policy Conference on Correctional Health 2020 annual meeting Executive Steering Committee Member: Justice, Substance Use, HIV/AIDS Involved Populations InterCFAR working group DSMB Member: Integrated Treatment Adherence Program for Bipolar Disorder at the Time of Prison Release (R34MH117198; PI: Weinstock, Lauren) DSMB Member: Kentucky Communities and Researchers Engaging to Halt the Opioid Epidemic (CARE2HOPE) (UH3DA44798; PIs: Young, April & Cooper, Hannah) PROFESSIONAL AFFILIATIONS American Public Health Association International Association of Urban Health International AIDS Society Society for Community Research and Action Academic Consortium on Criminal Justice and Health
Brinkley-Rubinstein 17

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Exhibit 2

Case 1:20-cv-10738-GAO Document 38-1 Filed 04/27/20 Page 26 of 30

FOR IMMEDIATE RELEASE April 23, 2020

U.S. Department of Justice Federal Bureau of Prisons
Contact: Office of Public Affairs 202-514-6551

Bureau of Prisons Expands COVID-19 Testing
WASHINGTON – Recently, the Bureau of Prisons (BOP) began expanding COVID-19 testing of inmates utilizing the Abbott ID NOW instrument for Rapid RNA testing at select facilities experiencing widespread transmission. The BOP continues to provide testing for COVID-19, symptomatic inmates, as recommended by the Centers for Disease Control and Prevention (CDC).
The BOP received ten Abbott ID NOW instruments on April 10, 2020, and a day later, 264 test kits were deployed to institutions with known COVID-19 cases. Their primary role is for rapid testing of newly symptomatic cases to confirm the diagnosis quickly and isolate them appropriately. Expanding the testing with the Abbott ID NOW instruments on asymptomatic inmates will assist the slowing of transmission with isolating those individuals who test positive and quarantining contacts.
Next week the BOP will receive ten additional Abbott ID NOW instruments. The deployment of these additional resources will be based on facility need to contain widespread transmission and the need for early, aggressive interventions required to slow transmission at facilities with a high number of at-risk inmates such as medical referral centers.
Asymptomatic inmates who test positive for COVID-19 can transmit the virus to other inmates. The testing of asymptomatic inmates will assist in slowing transmissions within a correctional setting along with increasing the number of COVID-19 positive tests reflective on the BOP.gov website.
Expanding COVID-19 testing for asymptomatic inmates with the Abbott ID NOW instrument and collaboration with public health entities will improve the BOP’s ability to manage COVID-19 at facilities experiencing widespread transmission. The COVID-19 testing of inmates utilizing the Abbott ID NOW instrument will provide BOP’s facilities the opportunity to implement a more comprehensive approach to medical isolation of inmates infected with the virus, whether asymptomatic, pre-symptomatic or symptomatic.

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Exhibit 3

Case 1:20-cv-10738-GAO Document 38-1 Filed 04/27/20 Page 28 of 30
MASSACHUSETTS COVID-19 NURSING HOME, REST HOME, AND ALR MOBILE TESTING PROGRAM
REVISED GUIDANCE: APRIL 13, 2020
Older adults living in congregate care settings, such as nursing homes, rest homes and assisted living residences are vulnerable to COVID-19. This program allows for safe, onsite sample collection by either medical personnel at your facility or trained personnel from the Massachusetts National Guard or Fallon EMS Service. Nursing homes, Rest homes, and ALRs (Facilities) in Massachusetts are eligible for the program. All residents and employees, symptomatic or asymptomatic, are eligible to be tested. To participate:
Healthcare personnel at a facility identify the need to test the facility due to COVID-19 infection concerns.
- You MUST have orders from a licensed provider for all tests. For facilities with ordering providers on-site (medical directors), the medical director or licensed independent provider on-call may serve as the ordering provider. For facilities with multiple on-site providers, ensure you have orders for all residents.
- For facilities without ordering providers associated with the facility, facility personnel should obtain orders from individuals’ providers.
- It is recommended that you order tests for all residents and staff, NOT just symptomatic individuals.
- Due to supply constraints at this point, we can only support one-time testing of the full facility to provide a baseline.
Facility Administrator or designee calls mobile testing hotline at 617-366-2350. The hotline is staffed 7 days a week from 8AM-4PM ET.
OPTION 1 FOR ALL FACILITIES WITH ON-SITE OR AFFILIATED MEDICAL STAFF: request testing kits for your facility (preferred) - Order: Facilities use the Broad Institute requisition form which will be e-mailed to the medical director (ordering provider) after you request test kits on the mobile testing hotline. It will be prepopulated with your ordering physician name and facility information, such that you only need to fill in resident name, date of birth and sample information. - Delivery: Call center will arrange a courier service to deliver the specimen collection materials to your facility. The specimen collection kit will include test kits and barcodes to label the samples. - Sampling: Licensed health care personnel should don PPE following CDC guidance. When collecting diagnostic respiratory specimens from an individual who may be infected with COVID19, the health care professional should wear an N95 respirator (or facemask if N95 not available), eye protection, gloves, and a gown. Facilities without sufficient PPE should use traditional channels to request (link).

Case 1:20-cv-10738-GAO Document 38-1 Filed 04/27/20 Page 29 of 30
- Labeling samples: Label each test by attaching one barcode to tube and the other to the requisition form. Write Resident/Employee Name and Date of Birth on swab tube and on prefilled paper requisition. Place swab (break in half) in tube and close tube tightly. Place tube and paper requisition in bag and seal.
- Paperwork: One form must be completed for each person tested. This must be PRINTED and attached to the sample. Please also ensure the full facility name, address, zip code, and phone number are on every form. It is crucial that this information is filled-out in full for epidemiological tracking and patient reporting. Incompletely labeled samples may be rejected for testing.
- Sending samples: When finished taking patient samples, please call the courier number provided with your test kit delivery to schedule pick-up.
- Resulting: Your ordering provider should expect to receive results from the Broad Institute through a secure electronic manifest.
OPTION 2: FACILITIES WITHOUT ON-SITE OR AFFILIATED HEALTH CARE PERSONNEL: Schedule in-facility testing by MA National Guard or Fallon Emergency Medical Service - Ordering: Through this option, you can request (via the mobile testing hotline) for personnel to come to your facility to collect patient specimens. - Complete ALL paperwork prior to arrival: For each resident being tested, you must print one requisition form, complete all fields, and attach to the sample. It is extremely important that this information is filled-out in full for proper epidemiological tracking and patient reporting. Ensure the full name of the facility, address, zip code and phone number are on every form. Incompletely labeled samples may be rejected for testing. If paperwork is incomplete when testing team arrives, testing may not be completed. - Testing team arrives: If MA National Guard is servicing your facility, you will be notified both the evening before and the morning of, when MANG is coming the next day. If Fallon is servicing your facility, you will receive a phone call the day before they arrive, letting you know when they will arrive for testing. We cannot take requests for either set of personnel.
o Personnel will arrive at the Facility entrance in PPE. Please ensure security is aware of their visit.
- Personnel will doff PPE before leaving the building. A red PPE disposal container must be provided at the entrance of the building to allow the personnel to dispose of their PPE.
- Await test results. Tests requested via this program will be paid for by the state. The results will be communicated back with the ordering provider listed on the requisition form.
WHAT TO DO WHILE AWAITING RESULTS: Symptomatic individuals should be presumed positive while awaiting test results and should be isolated. Please consult with your local Board of Health for protocols on isolation and/or reach out to the DPH Epidemiology Line (24/7): 617-983-6800.
Negative results, especially in asymptomatic individuals, should be interpreted with caution, as they merely represent a point in time and individuals who test negative could still be within the

Case 1:20-cv-10738-GAO Document 38-1 Filed 04/27/20 Page 30 of 30
incubation period of disease. Further, individuals potentially exposed but testing negative should still be closely monitored and quarantined as appropriate, if still within 14 days of exposure. Employees who test positive, even while asymptomatic, should not be returning to work until a minimum of 7 days following the positive result. Additionally, please visit DPH’s website that provides up-to-date information on COVID-19 in Massachusetts: https://www.mass.gov/2019coronavirus.

Case 1:20-cv-10738-GAO Document 38-4 Filed 04/27/20 Page 1 of 13
Exhibit D

Case 1:20-cv-10738-GAO Document 38-4 Filed 04/27/20 Page 2 of 13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,
Petitioners,
v.
STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,
Respondents.

)

)

)

)

)

)

)

Civil Action No. 1:20-cv-10738

)

)

)

)

)

)

)

)

)

DECLARATION OF PROFESSOR SETH PRINS

Pursuant to 28 U.S.C. § 1746, I, Professor Seth Prins, declare as follows:

1. I am an Assistant Professor of Epidemiology and Sociomedical Sciences at Columbia University Mailman School of Public Health. My work integrates methods from epidemiology with theory from sociology and criminology to identify and explain the collateral public health consequences of mass incarceration. A copy of my CV is attached as Exhibit 1.

2. I received my undergraduate degree in psychology from McGill University, and my Masters in Public Health and Doctorate in Epidemiology from Columbia University.

3. I have worked at the intersection of public health and the criminal legal system for over a decade. Before becoming an epidemiologist, I was a Senior Policy Analyst at the Council of State Governments Justice Center for five years. There, I worked at the local, state, and federal levels with legislators, judges, executive branch agency directors, district attorneys, public defenders, and advocates to improve collaboration between the mental health and criminal justice systems. In this capacity, I also toured a solitary confinement facility in Orlando, Florida. I also provided technical assistance to grantees and authored policy guides and position papers on behalf of the Bureau of Justice Assistance and the National Institute of Corrections.

4. My understanding is that FMC-Devens is currently requiring apparently healthy individuals, who are not exhibiting any COVID-19 symptoms to “quarantine” for two weeks in solitary
1

Case 1:20-cv-10738-GAO Document 38-4 Filed 04/27/20 Page 3 of 13
confinement in the Special Housing Unit (“SHU”) or some similar setting within the facility, before they can be released.
5. I am unaware of any studies supporting solitary confinement as a disease containment strategy in jails or prisons, and based on my experience and professional knowledge, it would not effectively constrain the spread COVID-19 in a carceral setting. Unless the entire SHU was a negative pressure environment, the air-borne droplets of COVID-19 virus would be spread by air-circulation throughout the unit. The circulation of medical staff and correctional officers into and out of the unit would also transmit the virus to other parts of the facility and into the surrounding community.
6. In my professional opinion, even in the midst of the current pandemic, it is ineffective as a public health measure to hold prisoners in such inhumane conditions for two weeks before releasing them from a facility.
7. Jails and prisons in New York are releasing people without doing so. This makes sense. If the prisoner had been kept in the general population of the prison immediately prior to their release, than they should be able to be released to self-isolate in the community as well.
8. Even if a prisoner is infected and symptomatic, there are still many families that would prefer to take on the risk of having the individual self-isolate in their home rather than having their family member die in prison. They should be allowed to make this choice. Indeed, thousands of families of essential workers are grappling with this every day. There is no reason that we should apply a different standard of behavioral surveillance to a prisoner whom the Bureau of Prisons has already decided to release.
9. Finally, if a prisoner eligible for release is infected, symptomatic, and does not have a home in which they can self-isolate, the Bureau could use empty hotel rooms or dorm rooms for quarantine purposes. In other words, there are available, non-punitive options.
10. Isolation in solitary confinement is not only ineffective as a health measure, it is also inhumane.
11. Because of my professional focus on mental health in the carceral system, I am very familiar with the body of work reviewing the use of solitary confinement in jails and prisons. The literature makes clear that solitary confinement is extraordinarily punitive and can have a severe impact on prisoners in even a short period of time.
12. As Dr. Kenneth Appelbaum explains “The literature on the ‘psychological, psychiatric, and sometimes physiological effects’ of solitary confinement has been described as ‘sizeable and
2

Case 1:20-cv-10738-GAO Document 38-4 Filed 04/27/20 Page 4 of 13
impressively sophisticated.’1 A recent review stated that ‘[n]early every scientific inquiry into the effects of solitary confinement over the past 150 years has concluded that subjecting an individual to more than 10 days of involuntary segregation results in a distinct set of emotional, cognitive, social and physical pathologies.’2”3
13. Based on its severe psychological and physiological impacts, solitary confinement is frequently described as akin to torture.
14. These severe impacts are true regardless of whether the individual is housed in the SHU or a different unit that similarly holds them in solitary confinement. Regardless of the name, forcing an individual to experience such extreme isolation cannot be made less punitive.
15. I have reviewed the declaration of Clinical Director Dr. Megan Shaw that was submitted in this lawsuit. She used the terms “Isolation Unit” and “Quarantined areas” to describe places where symptomatic prisoners and asymptomatic prisoners in the midst of screening, respectively, would be housed. See, e.g., Shaw Decl. p. 4 & n.1. Based on the document, the conditions of these two units were not entirely clear to me.
16. As I understand the document, however, it appears that prisoners who report their symptoms may be placed in solitary confinement for isolation until they test negative for COVID-19 or are otherwise cleared by medical staff for release from isolation. See Shaw Decl. p. 6.
17. Such a practice would undermine efforts to contain the infection, as the punitive nature of solitary confinement will discourage people from self-reporting their symptoms.
18. Over the past decade, the movement in this country has been to decrease the use of solitary confinement due to its extraordinarily damaging impacts. To revive a practice that was otherwise being phased out in the context of a pandemic, especially where there is no reason to think that it will protect against the spread of COVID-19, is an especially punitive response. Incarcerated individuals should not have to choose between continuing to face a heightened risk of COVID-19 infection within a prison, or experiencing the trauma of two-weeks of solitary confinement before they can be released into the community.
[signature on next page]
1 P.A. Smith, The Effects of Solitary Confinement on Prison Inmates: A Brief History and Review of the Literature, Crime & Just 34:441-528, 2006. 2 D. H. Cloud, E. Drucker, A. Browne, et al, Public Health and Solitary Confinement in the United States, Am. J. Public Health, 105:18-26, 2015. 3 Kenneth L. Appelbaum, American Psychiatry Should Join the Call to Abolish Solitary Confinement, The Journal of American Academy of Psychiatry and the Law 43, no. 4 (2015):10, http://jaapl.org/content/jaapl/43/4/406.full.pdf.
3

Case 1:20-cv-10738-GAO Document 38-4 Filed 04/27/20 Page 5 of 13 I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 25th day of April 2020. ________________________ Seth Prins, PhD
4

Case 1:20-cv-10738-GAO Document 38-4 Filed 04/27/20 Page 6 of 13
Exhibit 1

Seth J. Prins Case 1:20-cv-10738-GAO Document 38-4 Filed 04/27/20 Page 7 of 13
Assistant Professor of Epidemiology and Sociomedical Sciences
Columbia University Mailman School of Public Health, 722 W 168 Street Room 521, New York, NY 10032 Ñ bDTkR89!+QHmK#BX2/m |  sethjprins.com |  s_j_prins
Professional Appointments

Assistant Professor
Columbia University, Department of Epidemiology, Department of Sociomedical Sciences

2018‐present

Postdoctoral Research Fellow
Columbia University, Department of Sociomedical Sciences and School of Social Work

2016‐2018

Education

PhD in Epidemiology

Columbia University

2011‐2016

• Dissertation title: Is criminogenic risk assessment a prisoner of the proximate? Challenging the assumptions of an expanding paradigm • Dissertation sponsor: Sharon Schwartz. Committee and readers: Bruce G. Link, Lisa M. Bates, Adam Reich, Jennifer Skeem

MPH in Sociomedical Sciences

Columbia University

2008‐2010

BA in Psychology
McGill University

2000‐2004

Publications
Peer‐Reviewed Articles
1. Kajeepeta, S, CG Rutherford, KM Keyes, AM El‐Sayed, and SJ Prins (2020). County Jail Incarceration Rates and County Mortality Rates in the United States, 1987–2016. American Journal of Public Health 110(S1), S109–S115.
2. Prins, SJ and B Story (2020). Connecting the Dots Between Mass Incarceration, Health Inequity, and Climate Change. American Journal of Public Health 110(S1), S35–S36.
3. Reich, A and SJ Prins (2020). The Disciplining Effect of Mass Incarceration on Labor Organization. American Journal of Sociology In Press.
4. Eisenberg‐Guyot, J and SJ Prins (2019). Relational Social Class, Self‐Rated Health, and Mortality in the United States. International Journal of Health Services 50(1), 7–20.
5. Hatzenbuehler, ML, C Rutherford, S McKetta, SJ Prins, and KM Keyes (2019). Structural Stigma and All‐ Cause Mortality among Sexual Minorities: Differences by Sexual Behavior? Social Science & Medicine.
6. Prins, SJ (2019). Criminogenic or Criminalized? Testing an Assumption for Expanding Criminogenic Risk Assessment. Law and Human Behavior.
7. Prins, SJ, S McKetta, J Platt, C Muntaner, KM Keyes, and LM Bates (2019). Mental Illness, Drinking, and the Social Division and Structure of Labor in the United States: 2003‐2015. American Journal of Industrial Medicine 62(2), 131–144.
8. Beardslee, J, S Datta, A Byrd, M Meier, SJ Prins, M Cerda, and D Pardini (2018). An Examination of Parental and Peer Influence on Substance Use and Criminal Offending During the Transition From Adolescence to Adulthood. Criminal Justice and Behavior 45(6), 783–798.

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1

9. Keyes, KCMa,sDeS1G:2a0ry-,cJvB-1e0a7rd3s8le-eG, SAJOPrinDs,oPcMumOe'Mnta3lle8y-,4C RFuitlehedrf0o4rd/2, a7n/2d0J ScPhaugleenb8eorgf (123018). Joint Ef‐
fects of Age, Period, and Cohort on Conduct Problems Among American Adolescents From 1991 Through 2015. American Journal of Epidemiology 187(3), 548–557.
10. McKetta, S, SJ Prins, J Platt, LM Bates, and K Keyes (2018). Social Sequencing to Determine Patterns in Health and Work‐Family Trajectories for U.S. Women, 1968‐2013. SSM ‐ Population Health 6, 301–308.
11. Prins, SJ and A Reich (2018). Can We Avoid Reductionism in Risk Reduction? Theoretical Criminology 22, 258–278.
12. Hatzenbuehler, ML, SJ Prins, M Flake, M Philbin, MS Frazer, D Hagen, and J Hirsch (2017). Immigration Policies and Mental Health Morbidity among Latinos: A State‐Level Analysis. Social Science & Medicine 174, 169–178.
13. Cerdá, M, SJ Prins, S Galea, CJ Howe, D Pardini, M CerdÃ¡, SJ Prins, S Galea, CJ Howe, and D Pardini (2016). When Psychopathology Matters Most: Identifying Sensitive Periods When within‐Person Changes in Conduct, Affective, and Anxiety Problems Are Associated with Male Adolescent Substance Use. Addic‐ tion 111(5), 924–35.
14. Platt, J, SJ Prins, L Bates, and K Keyes (2016). Unequal Depression for Equal Work? How the Wage Gap Explains Gendered Disparities in Mood Disorders. Social Science & Medicine 149(C), 1–8.
15. Schwartz, S, SJ Prins, UB Campbell, and NM Gatto (2016). Is the ``Well‐Defined Intervention Assumption'' Politically Conservative? Social Science & Medicine 166, 254–257.
16. Muntaner, C, E Ng, H Chung, SJ Prins, H Chung, and SJ Prins (2015). Two Decades of Neo‐Marxist Class Analysis and Health Inequalities: A Critical Reconstruction. Social Theory & Health 13(3‐4), 267–287.
17. Muntaner, C, E Ng, SJ Prins, K Bones‐Rocha, A Espelt, and H Chung (2015). Social Class and Mental Health: Testing Exploitation as a Relational Determinant of Depression. International Journal of Health Services 45(2), 265–284.
18. Prins, SJ, JL Skeem, C Mauro, and BG Link (2015). Criminogenic Factors, Psychotic Symptoms, and Incident Arrests among People with Serious Mental Illnesses under Intensive Outpatient Treatment. Law and Human Behavior 39(2), 177–88.
19. Sohler, N, BG Adams, DM Barnes, GH Cohen, SJ Prins, and S Schwartz (2015). Weighing the Evidence for Harm from Long‐Term Treatment with Antipsychotic Medications: A Systematic Review. American Journal of Orthopsychiatry 86(5), 477.
20. Prins, SJ (2014). Why Determine the Prevalence of Mental Illnesses in Jails and Prisons? Psychiatric Services 65(8), 1074.
21. Prins, SJ (2014). Prevalence of Mental Illnesses in U.S. State Prisons: A Systematic Review. Psychiatric Services 65(7), 862–872.
22. Prins, SJ, FC Osher, HJ Steadman, PC Robbins, and B Case (2012). Exploring Racial Disparities in the Brief Jail Mental Health Screen. Criminal Justice and Behavior 39(5), 635–645.
23. Prins, SJ (2011). Does Transinstitutionalization Explain the Overrepresentation of People with Serious Mental Illnesses in the Criminal Justice System? Community Mental Health Journal 47(6), 716–722.
Chapter
1. Prins, SJ, JE Elliott, JL Meyers, R Verheul, and DS Hasin (2014). ``Substance Use Disorders''. In: The Amer‐ ican Psychiatric Publishing Textbook of Personality Disorders. Ed. by JM Oldham, AE Skodol, and DS Bender. Washington, DC: American Psychiatric Publishing, pp.407–428.

April 01, 2020

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Federal ReCpaosrets1:20-cv-10738-GAO Document 38-4 Filed 04/27/20 Page 9 of 13
1. Fabelo, T, G Nagy, and SJ Prins (2011). A Ten‐Step Guide to Transforming Probation Departments to Reduce Recidivism. Tech. rep. New York: Council of State Governments Justice Center.
2. Prins, SJ and L Draper (2009). Improving Outcomes for People with Mental Illnesses Under Community Cor‐ rections Supervision: A Guide to Research‐Informed Policy and Practice. Tech. rep. New York: Council of State Governments Justice Center.
3. Prins, SJ and FC Osher (2009). Improving Responses to People with Mental Illnesses: The Essential Elements of Specialized Probation Initiatives. Tech. rep. New York: Council of State Governments Justice Center.
Under Review
1. Prins, SJ (2020). ``Individual Risks or Population Risks: Do Criminogenic Risk Factors Explain Group Dif‐ ferences in Arrest and Conviction Rates?'' Under Review.
2. Prins, SJ, S McKetta, J Platt, C Muntaner, KM Keyes, and LM Bates (2020). ``"The Serpent of Their Agonies": Exploitation As Structural Determinant of Mental Illness''. Under Review.
3. Prins, SJ and A Reich (2020). ``Criminogenic Risk Assessment: A Meta‐Review and Critical Analysis''. Under Review.
4. Prins, SJ, Sandhya Kajeepeta, RF Pearce, J Beardslee, DA Pardini, and M Cerdá (2020). ``Identifying Sen‐ sitive Periods When Changes in Parenting and Peer Factors Are Associated with Changes in Adolescent Alcohol and Marijuana Use''. Under Review.
5. Seth J. Prins and Sharon Schwartz (2020). ``Toward a Dialectical Social Epidemiology''. Under Review.
Popular Press
1. Brett Story and Seth J. Prins (Aug. 28, 2019). A Green New Deal for Decarceration. Jacobin.
2. Prins, SJ, A Tergas, and S Goldberg (Oct. 16, 2019). Opinion | A Bad Post‐Rikers Jail Plan for New York. The New York Times. Opinion.
Fellowships

HIV, Substance Use, and Criminal Justice T32 Fellowship Program
National Institute on Drug Abuse grant T32‐DA‐37801, Nabila El‐Bassel and Lisa Metsch, Principal Investigators

2016‐2018

Psychiatric Epidemiology Training Program Predoctoral Fellow
National Institute of Mental Health grant 5‐T32‐MH‐13043, Bruce G. Link, Principal Investigator

2011‐2016

Invited Talks
Criminogenic or criminalized? Gendering, racialization, and the assumptions of criminogenic risk assessment
Seminar Series in Gender, Sexuality, and Health, Department of Sociomedical Sciences, Columbia University
How an epidemiologist encountered critical realism, and what critical realism might gain from debates about causal inference in epidemiology
Beyond Positivism: Theory, Methods, and Values in Social Science Conference. Quantitative Methods Plenary Panel, Montreal, QC
Moving beyond socioeconomic status to social class processes in public health
Region 2 Public Health Training Center Webinar

December 6 2017
August 8‐10 2017
August 1 2017

April 01, 2020

Seth J. Prins ∙ Curriculum Vitae

3

Health DispCaaristiees1a:2n0d-cthve-1C0r7i3m8in-GalAJOustiDceoScyusmteemnt 38-4 Filed 04/27/20 Page 10 of 13 October 21

Icahn School of Medicine at Mount Sinai

2016

Conference Presentations
'The serpent of their agonies': Exploitation as structural determinant of mental illness
Society for Epidemiologic Research, Minneapolis, MN
Changes in county jail incarceration rates are associated with changes in county mortality rates in the United States from 1987‐2016
Society for Epidemiologic Research, Minneapolis, MN (Poster)
Relational Social Class, Self‐Rated Health, and Mortality in the United States
Society for Epidemiologic Research, Minneapolis, MN (Poster)
Contemporary Class Relations as Structural Determinant of Mental Illness: Moving Beyond Stratification to Relational Social Processes
Society for Epidemiologic Research, Seattle, WA (Poster)
Testing Contemporary Class Relations as a Structural Determinant of Mental Illness: Moving Beyond Stratification to Relational Social Processes
Population Association of America, Chicago, IL
Substance use over the lifecourse: When do peers and parents matter most?
Society for Epidemiologic Research, Epidemiology Congress of the Americas, Miami, Florida

June 18 ‐ 21 2019
June 18‐21 2019
June 18‐21 2019
June 21‐23 2017
April 27‐29 2017
June 21‐24 2016

Awards and Recognition
'Anxious? Depressed? You might be suffering from capitalism', one of the top 10 articles mentioned across Sociology of Health & Illness’s news and social media streams
The William Farr Award in Epidemiology, Department of Epidemiology, Columbia University

2016 2016

Research Positions
Collaborator, Trajectories of Substance Use and Comorbid Mental Illness, Magdalena Cerda, Principal Investigator, National Institute on Drug Abuse grant 5K01DA030449‐05
Associate Researcher, University of Wisconsin School of Medicine and Public Health, County Health Rankings Project, Robert Wood Johnson Foundation. Bridget Catlin, PhD, MHSA, Co‐Director
Senior Policy Analyst, Council of State Governments Justice Center, Criminal Justice/Mental Health Consensus Project

2013 ‐ 2015 2010‐2011 2005‐2010

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TeachinCgasPeo1s:2i0ti-covn-1s0738-GAO Document 38-4 Filed 04/27/20 Page 11 of 13
Instructor

Applications of Epidemiologic Research Methods II P9489, Columbia University Department of Epidemiology, second‐year doctoral course

Spring 2019, 2020

Epidemiology, Bard Prison Initiative, Bard College, Woodbourne Correctional Facility

Fall 2015

Teaching Assistant
Publications, Presentations, and Grants, Columbia University, Department of Epidemiology, first‐year doctoral course

2015

Psychiatric Epidemiology Reading Seminar, Columbia University Mailman School of Public Health

2014

Principals of Observational Epidemiology, Columbia University Mailman School of Public Health

2013, 2014

Principals of Epidemiology and Introduction to Biostatistical Methods, Columbia Summer Research Institute

2012, 2013

Social Epidemiology, Columbia University Mailman School of Public Health

2012, 2013

Masters Thesis I and II, Columbia University Mailman School of Public Health

2012, 2013

Epidemiology of Drug and Alcohol Problems, Columbia University Mailman School of Public Health

2012

Service to Profession
Peer Reviewer
Addiction Research & Theory American Journal of Epidemiology American Journal of Industrial Medicine American Journal of Public Health American Journal of Orthopsychiatry BMC Psychiatry Canadian Journal of Psychiatry Criminal Behavior and Mental Health Drug and Alcohol Dependence Family Medicine and Community Health International Journal of Health Services Journal of Epidemiology & Community Health JAMA Psychiatry Journal of Occupational and Environmental Medicine Psychiatry, Psychology, and Law Occupational and Environmental Medicine Social Psychiatry and Psychiatric Epidemiology Social Science & Medicine Society and Mental Health Sociology of Health & Illness

April 01, 2020

Seth J. Prins ∙ Curriculum Vitae

5

AffiliationCsase 1:20-cv-10738-GAO Document 38-4 Filed 04/27/20 Page 12 of 13
American Psychopathological Association American Public Health Association American Sociological Association Society for Epidemiologic Research
Service to Department

PhD Dissertation Committee, Emilie Bruzelius

2020

PhD Dissertation Committee, Sarah McKetta

2020

DrPh Dissertation Project, Trena Mukherjee

2020

PhD Dissertation Committee (Defended), Caroline Bancroft, Do alternatives to incarceration mitigate the health effects of criminal justice involvement? An examination of the effects of probation on chronic disease risk and access to care

Fall 2019

DrPH Qualifying Exam Committee, Trena Mukherjee

Fall 2019

Methods Exam Committee

2019‐2020

Masters Academic Advisor, Alicia Singham‐Goodwin, Chloe Young, Isabella Hill

2019‐2021

Co‐designer and co‐facilitator, Power, Privilege, and Allyship training for faculty and teaching assistants on identifying and responding to microag‐ gressions in the classroom

2015

Facilitator, required journal club for masters student certificate in social determinants of health

2012‐2015

Founding member, Columbia University Association for Public Health Action in Criminal Justice (now the Columbia University Association for Justice and Health)

2011‐2013

Research Support

National Institute on Drug Abuse K01DA045955

Role: Principal Investigator

Adolescent substance use as determinant and consequence of the school‐to‐prison

Project period: 02/01/2019 ‐

pipeline: Disentangling individual risk, social determinants, and group disparities

01/31/2024

• Total direct costs: $862,573

National Institute on Minority Health and Health Disparities L60MD013029

Role: Principal Investigator

Racial and LGBTQ disparities in the role of substance use as determinant and consequence Project Period 7/1/2018 ‐

of the school‐to‐prison pipeline: Disentangling individual risk and social determinants

6/30/2020

Selected Media Coverage
1. Bellstrom, K (Jan. 2016). Depressed? Anxious? Blame the Gender Pay Gap. Fortune. 2. McGregor, J (Jan. 2016). The Gender Wage Gap Isn't Just Unfair. It Also Ups the Odds Women Get Anxiety
or Depression. The Washington Post. 3. Reuters (Jan. 2016). Depression and Anxiety in Women Linked to Male‐Female Pay Gap. The Guardian. 4. Cha, AE (Aug. 2015). The Perilous Plight of Middle Managers. The Washington Post.

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5. Dahl, MC(aSseept1. 2:2001-5c)v. -M1i0d7d3le8M-GaAnaOgemDeonct:uTmheenWt o3r8st-4of BFoiltehdW0o4r/l2d7s./2N0ew PYoarkgeMa1g3azoinf e1. 3
6. Lam, B (Aug. 2015). The Secret Suffering of the Middle Manager. The Atlantic.

April 01, 2020

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Case 1:20-cv-10738-GAO Document 38-5 Filed 04/27/20 Page 1 of 46
Exhibit E

CaseC:a1s:e201-:c2v0--0c2v0-19047D3o8c-GumAOent D#:o2c4u-m3eFnitle3d8:-054/0F8il/e2d00P4a/2g7e/210of P45agPea2geoIfD4#6:346 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

JAMES MONEY, WILLIAM RICHARD,

)

GERALD REED, AMBER WATTERS,

)

TEWKUNZI GREEN, DANNY

)

LABOSETTE, CARL REED, CARL “TAY

)

TAY” TATE, PATRICE DANIELS, and

)

ANTHONY RODESKY, on behalf of

)

Themselves and all similarly situated )

Individuals,

)

)

Petitioners,

)

)

v.

)

)

JEFFREYS, ROB,

)

)

Respondent.

)

No. 20 cv 2094

DECLARATION OF PROFESSOR JUDITH RESNIK REGARDING PROVISIONAL REMEDIES FOR DETAINED INDIVIDUALS

I have been asked to provide a declaration explaining my understanding of the remedies, both provisional and permanent, that federal judges can provide to people who are incarcerated and facing the threat of COVID-19. I declare that the following is a true and accurate account of what I believe are the pertinent legal principles and how they can apply in this unprecedented context. My views are based on my knowledge of the law and my experiences in cases. This opinion is mine and is not that of the institutions with which I am affiliated.

MY BACKGROUND
1. I am the Arthur Liman Professor of Law at Yale Law School where I teach courses, including on federal and state courts; procedure; large-scale litigation; federalism; and incarceration. Below, I provide a brief overview of my background; more details are in my resume, attached as Exhibit A to this Declaration.
2. Prior to joining the faculty of Yale Law School in 1997, I was the Orrin B. Evans Professor of Law at the University of Southern California (U.S.C.). During the decades before taking my current position, I was also a visiting professor at the law

CaseC:a1s:e201-:c2v0--0c2v0-19047D3o8c-GumAOent D#:o2c4u-m3eFnitle3d8:-054/0F8il/e2d00P4a/2g7e/220of P45agPea3geoIfD4#6:347
2
schools of the University of Chicago, Harvard University, Yale University, and New York University.
3. At the beginning of my legal career, after I obtained a B.A. from Bryn Mawr College and a J.D. from N.Y.U. Law School where I was an Arthur Garfield Hays Fellow, I was a law clerk for the Honorable Charles E. Stewart in the United States District Court Southern District of New York.
4. I have worked on occasion as a lawyer, including in the clinical programs at Yale Law School and at U.S.C. I have appeared before the United States Supreme Court and in federal district and appellate courts. I have also been appointed by federal judges to assist in issues arising in large-scale litigation.
5. I have taught law for decades. Much of my focus has been on the role and function of courts, and the relationship of governments to their populations. Of particular relevance to this declaration is that I regularly teach the class, Federal and State Courts in the Federal System. Readings for students include materials on habeas corpus and on civil rights litigation, including 42 U.S.C. §1983.
6. I have been recognized for my scholarship and other work, and I have received awards from various organizations.
7. In 2018, I was awarded an Andrew Carnegie Fellowship to work on a book, tentatively entitled Impermissible Punishments, which explores the impact of the 1960s civil rights revolution on the kinds of punishments that governments can impose on people convicted of crimes. In that year, I also was awarded an honorary doctorate from University College London.
8. I am the Founding Director of the Arthur Liman Center for Public Interest Law. The Liman Center teaches classes yearly, convenes colloquia, does research projects, supports graduates of Yale Law School to work for one year in public interest organizations, and is an umbrella for undergraduate fellowships at eight institutions of higher education.
9. I write about the federal courts; adjudication and alternatives such as arbitration; habeas corpus and incarceration; class actions and multi-district litigation; the judicial role and courts’ remedies; gender and equality; and about transnational aspects of these issues. In recent years, I have spent a good deal of time doing research related to prisons. I have helped to develop

CaseC:a1s:e201-:c2v0--0c2v0-19047D3o8c-GumAOent D#:o2c4u-m3eFnitle3d8:-054/0F8il/e2d00P4a/2g7e/230of P45agPea4geoIfD4#6:348
3
a series of reports that provide information nation-wide on the use of solitary confinement.
10. I regularly speak at conferences, and topics have included the federal courts, remedies, habeas corpus, civil rights, and prison litigation.
11. Recent publications include essays on the challenges of access to courts for people with limited resources. See Inability to Pay: Court Debt Circa 2020 (with David Marcus), 98 North Carolina Law Review 361 (2020). I have also written on the law and practices of solitary confinement. See, e.g., Not Isolating Isolation, in Solitary Confinement: Effects, Practices, and Pathways toward Reform 89-116 (Jules Lobel and Peter Scharff Smith, eds., Oxford University Press, 2020). In addition, I have addressed the boundaries of legal punishment. See (Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People’s “Ruin,” 129 Yale Law Journal Forum 365 (2020).
12. I have testified before the United States Congress, in hearings of subcommittees of the U.S. Judicial Conference addressing federal rules, and I serve as a court-appointed expert and trustee. I have given workshops and lectures to groups of federal judges, including at the request of the Federal Judicial Center and at the conferences of some federal circuits.
13. In February of 2019, I testified before the U.S. Commission on Civil Rights at its hearing on women in prison and co-authored a statement related to the isolation of many facilities for women, their needs for education and work training, and the discipline to which they are subjected. See Statement submitted for the record, Women in Prison: Seeking Justice Behind Bars, before the U.S. Commission on Civil Rights, March 22, 2019. The report, citing the contributions of many includes reference to this testimony. See U.S. Commission on Civil Rights, Women in Prison: Seeking Justice Behind Bars (February 2020), available at https://www.usccr.gov/pubs/2020/02-26-Women-in-Prison.pdf.
Remedies Available in the Federal Courts: Habeas Corpus, Civil Rights Litigation, and Enlargement
14. In light of my knowledge of the federal law of habeas corpus, Section 1983, state and federal court relations, procedure, and remedies, I have been asked by counsel for the petitioners/plaintiffs to address the range of responses available

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to judges presiding in cases that raise claims related to COVID19.
15. As I understand from public materials on the health risks of this disease, COVID-19 poses a deadly threat to the well-being and lives of people who contract this disease. To reduce the risk and spread of this disease, our governments have instructed us to stay distant from others and to take measures that are extraordinary departures from our daily lives and routines.
16. Applying these urgent medical directives to prisons poses challenges in every jurisdiction. Governing legal principles about prisoners’ access to courts were not framed to address COVID19’s reality: that being inside prisons can put large numbers of people (prisoners and staff) at risk of immediate serious illness and potential death.
17. These unprecedented risks from and harms of COVID-19 in prison raise a new legal question: whether COVID-19it has turned sentences which, when imposed, were (or may have been) constitutional into unconstitutional sentences during the pendency of this crisis. When sentencing people to a term of years of incarceration, judges had no authority to impose putting a person at grave risk of serious illness and death as part of the punishment for the offense. Now, such grave risks and harms can arise from the fact of incarceration.
18. A recent Supreme Court case, Montgomery v. Louisiana, 136 S.Ct. 718 (2016), provides an analogous situation - a constitutional-when-sentenced but unconstitutional-now sentence. The Court determined that, in light of new understandings of the limits of brain development in juveniles, sentences of life without parole (LWOP) imposed on individuals who had committed crimes when under the age of eighteen were lawful when issued but became unconstitutional. As a consequence, parole boards or courts had to reconsider whether LWOP remained appropriate. COVID-19 raises a parallel question, as it requires courts to address whether sentences lawful at imposition can (at least temporarily) no longer be served in prisons because otherwise, the sentence would become an unconstitutional form of punishment. In normal times, using Montgomery v. Louisiana as a guide, federal judges could remit eligible individuals to state courts and parole boards. But in these abnormal times, the speed at which decisions are made is critical. Therefore, as I discuss below, provisional remedies (enabling enlargement and release for some individuals and dedensifying for others) are necessary.

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19. As is familiar, the classic and longstanding remedy for relief from unconstitutional detention, conviction, and sentences is habeas corpus. Courts’ jurisdiction and remedial authority under habeas is constitutionally enshrined, has a substantial common law history, and is codified in federal statutes. See generally Paul D. Halliday, Habeas Corpus (Harvard U. Press, 2012); Amanda L. Tyler, Habeas Corpus in Wartime (Oxford U. Press, 2017); Randy Hertz and James Leibman, Federal Habeas Corpus Practice and Procedure (2 volumes, 2019); Hart & Wechsler, The Federal Courts and the Federal System, Chapter X1, 1193-1164 (Richard H. Fallon, Jr, John F. Manning, Daniel J. Meltzer & David Shapiro, 7th ed., 2015). These citations are the tip of a vast and substantial literature that aims to understand the history and law of habeas corpus.
The Legal Thicket
20. By way of a brief overview, in federal courts, petitioners file under 28 U.S.C. §2254 (state prisoners), §2255 (federal post-conviction prisoners), as well as under §2241 (the general habeas statute).1 In the mid-1970s, the Supreme Court provided rules and forms for §2254 and §2255 filings.
21. Congress has recognized that federal judges are authorized under the habeas statutes to “summarily hear and determine the facts, and dispose of the matter as law and justice require.” See 28 U.S.C. §2243. In addition to this statutory authority, federal judicial power is predicated on the constitutional protection of the writ and on the common law.
22. As is familiar, Congress has channeled and circumscribed some of federal judicial authority through the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and, relatedly, under the Prison Litigation Reform Act (PLRA) of 1996. Moreover, the Supreme Court has issued many decisions interpreting the prior habeas statutes, the 1996 revisions in AEDPA, and the intersection
1 In terms of the potential for concurrent bases for federal court jurisdiction, I will discuss the overlap with civil rights claims filed under 42 U.S.C. § 1983, on which a substantial amount of case law exists. In addition, habeas jurisdiction overlaps with other jurisdictional bases. For example, when I worked at Yale Law School in its clinical program, I filed lawsuits for federal prisoners predicated on 28 U.S.C. §2241 as well (in appropriate situations) as 28 U.S.C. §1331 (general question jurisdiction) and 28 U.S.C. §1361 (mandamus). Some of these cases, invoking both habeas and other jurisdictional provisions, were filed as class actions.

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of habeas and civil rights claims brought under 42 U.S.C. §1983. The result is a dense arena of law and doctrine that can be daunting for litigants and jurists alike.
23. A good deal of case law in the Supreme Court and in the circuits addresses when §1983 (with jurisdiction based on 28 U.S.C. §1343) is the appropriate mode for prisoners to use, as contrasted with habeas corpus. Given the ability to plead in the alternative, proceeding under both would be possible as a matter of federal procedural rules. Yet because state prisoners who rely on 28 U.S.C. §2254 have to exhaust state judicial remedies, they may seek to use §1983, to which that requirement does not apply. And, because the PLRA affects §1983 litigants, prisoners may hope to avoid its strictures by filing under habeas.
24. In response, the Supreme Court has set forth distinctions to channel claims. The shorthand that reflects much of the case law is that, when the fact or duration of confinement is at issue and release is the remedy, habeas is the preferred route. If prisoners are challenging conditions of confinement, §1983 is the method. See, e.g., Preiser v. Rodriguez, 411 U.S. 475 (1978); Heck v. Humphrey, 512 U.S. 477 (1994).
25. Yet the distinctions have been complex to apply in practice. Line-drawing has prompted many opinions that parse situations that entail overlaps, as exemplified by Mohammad v. Close, 540 U.S. 744 (2004), Wilkinson v. Dotson, 544 U.S. 74 (2005), and by other Supreme Court and lower court decisions.
26. COVID-19 poses a new and painful context in which to undertake that analysis. Some reported decisions addressing the constitutional right of prisoners that officials not be “deliberately indifferent to serious medical needs” consider those Eighth Amendment claims to be appropriate for §1983 because they relate to conditions. But this deadly disease turns ordinary conditions into potentially lethal threats of illness for which the remedy to consider is release of at least some prisoners because density puts people at medical risk. Thus, because COVID19 can end people’s lives unexpectedly and abruptly, COVID-19 claims turn the condition of being incarcerated into a practice that affects the fact or duration of confinement. In my view, COVID-19 claims, therefore, collapse the utility and purpose of drawing distinctions between what once could more coherently be distinguished. Therefore COVID-19 claims ought to be cognizable under both provisions.

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27. Recognizing the availability of both forms of jurisdiction is only the beginning of a series of questions that courts have to address. If c cases proceed under habeas, §1983, or both, courts need to consider how COVID-19 fits (or not) with conventional rules on exhaustion of judicial remedies for state court prisoners, many provisions of AEDPA, and the parameters of the PLRA. Again, new problems have emerged. For example, in terms of exhaustion of state judicial remedies, whatever the viability of state courts responding quickly, the concern is that day by day, the risk of illness increases for prisoners and staff. Those illnesses endanger others as well as stretch health care resources. Exhaustion would be “futile,” not only if state courts cannot act quickly but also if people become sick, risks skyrocket, and deaths occur. “Futility” thus needs to be analyzed in terms not only of the capacity of institutions but in terms of the likelihood that the people seeking relief will be well enough to have the capacity to do so, and that the remedy provided will be effective given the alleged harm.
28. Many other legal issues exist, in addition to the relationship of habeas and §1983 and exhaustion. Courts will need to consider when class actions are appropriate and when the criteria of Rule 23 is met; many facets of AEDPA including questions of successive petitions and deference to state court rulings; and the merits of arguments about unconstitutional sentences and conditions; and the range of remedies.
The Availability of Provisional Remedies
29. The reason to flag some of the many issues that litigation of both habeas petitions and civil rights cases entail is to underscore the importance of considering provisional remedies when cases are pending. In general, time is required for lawyers to brief and for judges to interpret and apply the law. But waiting days in a world of COVID infections can result in the loss of life.
30. While courts have not faced COVID before, they have faced urgent situations, which is why provisional legal remedies exist. Because COVID-19 cases may be predicated both on habeas corpus petitions and on §1983, courts have two ways to preserve the status quo – which here means protecting to the extent possible the health of prisoners, staff, and providers of medical services. One route is the use of temporary restraining orders and preliminary injunctions. These remedies require no explanation because they are familiar procedures. See Fed. R. Civ. Pro. 65.

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31. Another option is an aspect of federal judicial power that is less well-known. District courts have authority when habeas petitions are pending to “enlarge” the custody of petitioners. “Enlargement” is a term that, as far as I am aware, is used only in the context of habeas. (More familiar terms for individuals permitted to leave detention are “release” and “bail,” and some decision that “enlarge” petitioners use those words rather than enlargement).
32. The distinction is that enlargement is not release. The person remains in custody - even as the place of custody is changed and thus “enlarged” from a particular prison to a hospital, halfway house, a person’s home, or other setting. Enlargement is thus, a provisional remedy that modifies custody by expanding the site in which it takes place. In some ways, enlargement resembles a prison furlough.
33. Enlargement has special relevance in cases in which jurisdiction is based both on habeas and §1983, to which the PLRA has application. As I understand the PLRA’s rules on the “release” of prisoners, enlargement would not apply, as enlargement is not a release order. And, of course, interpreting the many directives of the PLRA in light of COVID entails more elaboration that this brief mention. – The need to work through that statute and case law is another reason why the availability of provisional remedies is so important. Enlargement provides an opportunity for increasing the safety of prisoners, staff, and their communities while judges consider a myriad of complex legal questions.
34. I first encountered the provisional remedy of enlargement in the 1970s, when I represented a prisoner – Robert Drayton – who was confined at F.C.I. Danbury and who filed a habeas petition alleging that the U.S. Parole Commission had unconstitutionally rescinded his parole. The Honorable T.F. Gilroy Daly, a federal judge sitting in the District of Connecticut, granted Mr. Drayton’s request for enlargement while the decision on the merits was pending. Mr. Drayton returned to his home in Philadelphia and came back to Connecticut for the merits hearing. Judge Daly thereafter ruled in his favor; that decision was upheld in part and reversed in part. See Drayton v. U.S. Parole Commission, 445 F. Supp. 305 (D. Conn. 1978), affirmed in part, Drayton v. McCall, 584 F.2d 1208 (2d Cir. 1978).
35. This provisional district court remedy of enlargement is not mentioned directly in in federal rules governing the lower federal courts. In contrast, at the appellate level, Federal Rule of Appellate Procedure (FRAP) 23 provides in part that:

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While a decision not to release a prisoner is under review, the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court, may order that the prisoner be: (1) detained in the custody from which release is sought; (2) detained in other appropriate custody; or (3) released on personal recognizance, with or without surety. While a decision ordering the release of a prisoner is under review, the prisoner must – unless the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court orders otherwise – be released on personal recognizance, with or without surety.
As that excerpt reflects, the Rule uses language familiar in the context of bail, and provides that appellate courts may also determine that a petitioner be detained in “other appropriate custody.”
36. Federal courts at all level are authorized by Congress to decide habeas cases “as law and justice requires.” 28 U.S.C. §2243. The case law also references that, at the district court level, the authority to release a habeas petitioner pending a ruling on the merits stems from courts’ inherent powers. See, e.g., Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). And, as I noted, in these reported decisions, the terms “bail” or “release” are sometimes used instead of or in addition to “enlargement.”
37. In the last weeks, the saliency of enlargement has prompted me to review the law surrounding it. To gather materials and opinions on enlargement, I asked two law students, Kelsey Stimson of Yale Law School and Ally Daniels of Stanford Law School, to help me research what judges have said about enlargement and what others have written. Below I detail some of the governing case law. The Hertz & Liebman Treatise on Habeas also has a section (§14.2) devoted to this issue.
38. Some of the decisions involve requests for release when habeas petitions were pending from state prisoners, and others from federal prisoners, or from people in immigration detention. Further, several appellate cases address the issue of whether a district court order on enlargement was appealable as of right or subject to mandamus.
39. My central point is that, amidst these various debates about appealability and the test for enlargement/release, most circuits have recognized that district courts have the authority

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to order release. See e.g., Woodcock v. Donnelly, 470 F.2d 93, 43 (1st Cir. 1972); Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001); Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992); Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974); Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990); Cherek v. United States, 767 F.2d 335, 337 (7th Cir. 1985); Martin v. Solem, 801 F.2d 324, 329 (8th Cir. 1986); Pfaff v. Wells, 648 F.2d 689, 693 (10th Cir. 1981): Baker v. Sard, 420 F.2d 1342, 1342-44 (D.C. Cir. 1969).
40. The Fourth and Eleventh Circuits appear, albeit less directly, to recognize enlargement authority. See Gomez v. United States, 899 F.2d 1124, 1125 (11th Cir. 1990); United States v. Perkins, 53 F. App’x 667, 669 (4th Cir. 2002). A Ninth Circuit opinion from 1989 likewise appears to recognize the power of district courts to grant release pending a habeas decision where there are “special circumstances or a high probability of success.” See Land v. Deeds, 878 F.2d 318 (9th Cir. 1989). Thereafter, another decision, In re Roe, described the Circuit as not having ruled on the issue in terms of state prisoners. See 257 F.3d 1077 (9th Cir. 2001).2
41. A discrete question is the standard for enlarging petitioners. To obtain an order for release pending the merits of habeas decision, the petitioner must demonstrate “extraordinary circumstances” and that the underlying claim raises “substantial claims.” See e.g. Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001). Courts have also discussed that release is appropriate when “necessary to make the habeas remedy effective.” Mapp, 241 F.3d at 226; see also Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992). As that Third Circuit decision explained, release was “available ‘only when the petitioner has raised substantial constitutional claims upon which he has a high probability of success, and also when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective.’”
42. Some judges have interpreted the “substantial questions” prong to require the underlying claim to have a “high probability
2 Subsequent lower court cases debated whether district courts do possess such authority. See, e.g., Hall v. San Francisco Sup. Ct., 2010 WL 890044, at *2 (N.D. Cal. Mar. 8, 2010) (“Based on the overwhelming authority [of other circuit courts] in support, the court concludes for purposes of the instant motion that it has the authority to release Hall pending a decision on the merits.”); United States v. Carreira, 2016 U.S. Dist. LEXIS 31210, at *4, (D. Haw. Mar. 10, 2016) (“[T]his Court declines to address the merits of Petitioner’s bail requests in the absence of definitive guidance from the Ninth Circuit regarding the scope of this Court’s bail authority.”).

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of success.” See Hall v. San Francisco Superior Court, No. C 095299 PJH, 2010 WL 890044, *1 (N.D. Cal. Mar. 8, 2010); In re Souels, 688 F. App'x 134, 135 (3d Cir. 2017). That test resembles standards for preliminary injunctive relief and for stays, which include an assessment of the likelihood of success on the merits and of whether the balance of hardships tips in favor of altering the status quo. (And, of course, more can be said about the nuances of these bodies of law as well.)
43. A few cases focus on the health of a petitioner as central to the conclusion that “extraordinary circumstances” exist. For example, in Johnston v. Marsh, the petitioner, Alfred Ackerman, brought a habeas claim alleging that he was convicted in Pennsylvania through a trial that lacked “due process.” 227 F.2d 528 (3d Cir. 1955). Ackerman asked for release pending a decision on the merits of his habeas petition; he argued that he had advanced diabetes and was “rapidly progressing towards total blindness.” Id. at 529. The district court authorized Ackerman to be released to a private hospital. The prison warden (Frank Johnston) went to the Third Circuit invoking sought writs of prohibition and mandamus to order the district court (Judge Marsh) to change his ruling. Rejecting the petitions, the Third Circuit affirmed that district courts possessed the authority to order relocation while the habeas petition was pending. Johnson v. Marsh has been cited in more recent cases to illustrate that findings of extraordinary circumstances may “be limited to situations involving poor health or the impending completion of the prisoner’s sentence.” Landano, 970 F.2d at 1239.
44. The court in In re Souels addressed what showing of health problems constituted extraordinary circumstances. See 688 F. App’x at 135-36. Sean Souels, who was serving a 46-month federal prison sentence, petitioned for a writ of mandamus directing the court to rule on his writ of habeas corpus and sought release pending the decision. Id. at 134. The court denied Souels bail because “he [did] not describe his medical conditions in any detail or explain how he cannot manage his health issues while he is in prison.” Id.
45. Health is not the only extraordinary circumstance that has been the basis for enlargement. For example, in United States v. Josiah, William Josiah brought a writ of habeas corpus after the Supreme Court invalidated the residual clause of the Armed Career Criminal Act (ACCA) and altered the method for determining whether prior convictions qualify as violent felonies under the ACCA. 2016 WL 1328101, at *2 (D. Haw. Apr. 5, 2016). Josiah, who was serving a federal prison sentence argued that his prior

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convictions did not qualify as violent felonies and that he should not be subject to the fifteen-year mandatory minimum. The district court concluded that because the issue of retroactivity was pending before the Supreme Court and Josiah would have served his full sentence if the Court held its prior ruling retroactive, release pending the higher court’s ruling was appropriate. Id. at *4-6.
46. Another case involved enlargement in the context of the military. See Gengler v. U.S. through its Dep't of Def. & Navy, 2006 WL 3210020, at *6 (E.D. Cal. Nov. 3, 2006). As that court explained, a “district court has the inherent power to enlarge a petitioner on bond pending hearing and decision on his petition for writ of habeas corpus.” Id. at *5. The judge also noted that a “greater showing must be made by a petitioner seeking bail in a criminal conviction habeas ‘than would be required in a case where applicant had sought to attack by writ of habeas corpus an incarceration not resulting from a judicial determination of guilt.’” The court used the test of “exceptional circumstances and, at a minimum, substantial questions as to the merits.” Id. at 13. The court found exceptional circumstances” based on the fact that the petitioner had been admitted to business school, had been granted permission by his commanding officer to attend, and would be forced to drop out if his custody were not enlarged. The court also ruled that “substantial questions as to the merits” existed because of alleged government’s errors in drafting the petitioner’s service agreement. Id. at *6.
47. As of this writing, I have located two reported cases on COVID. (Given the pace of litigation, I assume that more may have been filed and some may have been decided.) On April 7, the Honorable Jesse Furman, sitting in the Southern District of New York, granted on consent a motion styled “for bail” (the term used in the Second Circuit Mapp decision). Judge Furman ordered immediate release under specified conditions, pending the adjudication of the Section 2255 Motion. See United States v. Nkanga, No. 18-CR-00730 (S.D.N.Y., Apr. 7, 2020). The other case has less relevance as it was brought by an unrepresented litigant, Richard Peterson, who had originally sought habeas corpus relief on a claim about education credits and then filed an emergency request for release from a California state prison due to COVID19. No. 2:19-CV-01480, 2020 WL 1640008, at *1 (E.D. Cal. Apr. 2, 2020). A class action seeking state-wide population reductions was pending at the time the district court ruled. The Peterson decision viewed the issue as one about conditions, to be litigated as a civil rights claim; the court also ruled that the petitioner had not shown he met the test for granting release. Id. at *2. Soon thereafter, the Coleman/Plata three-judge court held that the

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issue was not for it to decide. See Plata, et al. v. Newsom, No. C01-1351-JST (N.D. Cal. Apr. 4, 2020) (Dckt. 3261); Coleman, et al., v. Newsom, No. No. 2:90-cv-0520 KJM DB P (N.D. Cal. Apr. 4, 2020) (Dckt. 3261). On April 6, Judge Mueller issued his order calling for immediate information on the constitutional implications of requirements for social distancing. Coleman, et al., v. Newsome, et al., No. 2:90-cv-0520 KJM DB P (N.D. Cal. Apr. 6, 2020) (Dckt. 6580).
48. The pro se Peterson case brings me back to the question of the relationship of habeas petitions based on COVID to civil rights claims based on conditions in a prison. As I discussed above, COVID-19 is an unprecedented event that, in my view, raises the legal question of whether the government-mandated protection for the disease means that sentences (that had been lawful when they were imposed and that remain lawful until sometime in February or March of 2020) cannot lawfully be served in settings of extreme risk. Thus, habeas corpus – which addresses the constitutionality of sentences and offers the possibility of release and enlargement – properly provides a jurisdictional basis and remedies for this situation. Further, as I have discussed, §1983 claims may also be appropriate, given that the distinction between conditions and duration becomes less plausible when confinement poses a risk of death, and thereby horribly altering the “fact” and “duration” of confinement. Class treatment of claims joined under habeas and §1983 enable layers of remedies, including the release of some individuals that will de-densify facilities to improve the safety for prisoners who remain the staff who work there.
49. By way of conclusion, I need to remind the Court that the Supreme Court has, in recent years, raised questions in many contexts about the remedial powers of federal judges. Whether the topic is nationwide injunctions or contracts, debates have occurred within the Court about the authority of federal judges.

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50. Those cases do not address the extraordinary and painful moment in which we are all living. Ordinary life has been up-ended in an effort to keep as many people as possible alive and not debilitated by serious illness. Moreover, Supreme Court opinions have not focused on the relevance of remedial debates to the situation were confinement can put entire staffs and detained populations at mortal risk. Therefore, judges have the obligation and the authority to interpret statutes and the Constitution to preserve the lives of people living in and working in prisons. It is my hope that this dense account of case law and doctrine will be of service to this Court and to the parties in understanding the meaning and import of American law.
Dated: April 8, 2020
__________________________ Judith Resnik

CaseC:a1s:e201-:c2v0--0c2v0-19047D3o8c-GumAOent D#:o2c4u-m3eFnitle3d8:-054/0F8il/e2d00P4a/2g7e/2105 oPf 4a5geP1a6geoIfD4#6:360
EXHIBIT A

CaseC:a1s:e201-:c2v0--0c2v0-19047D3o8c-GumAOent D#:o2c4u-m3eFnitle3d8:-054/0F8il/e2d00P4a/2g7e/2106 oPf 4a5geP1a7geoIfD4#6:361 1 Judith Resnik

Address Yale Law School 127 Wall Street, P.O. Box 208215 New Haven, CT 06520-8215

Tel: (203) 432-1447 Fax: (203) 432-1719 Email: judith.resnik@yale.edu

Employment Arthur Liman Professor of Law, Yale Law School, 1997-present Founding Director, Arthur Liman Center for Public Interest Law Honorary Visiting Professor, University College London Faculty of Law, 2009-2021 Visiting Professor, Dauphine Université Paris, March 2016 Visiting Professor, Université Panthéon-Assas Paris II, May 2015 Convening Professor, Constituting Federalism, a seminar for the Institute for Constitutional History in conjunction with the New York Historical Society, February 2014 Scholar in Residence, Columbia Law School, Spring 2011; 2012 Distinguished Visiting Professor, University of Toronto School of Law, 2005 Parsons Visitor, Sydney University School of Law, 2004
Visiting Professor, New York University School of Law, 1996-1997 Visiting Professor, Harvard Law School, Fall 1989 Visiting Professor, Yale Law School, Spring 1989 Visiting Professor, University of Chicago Law School, Fall 1988
Orrin B. Evans Professor of Law, University of Southern California, 1989-1997; Professor of Law: 1985-1989; Associate Professor: 1982-1985; Assistant Professor: 1980-1982 Member, Faculty, The Salzburg Seminar on U.S. Legal Institutions, July 1988
Acting Director, Daniel and Florence Guggenheim Program in Criminal Justice, Yale Law School, 1979-1980
Lecturer in Law and Supervising Attorney, Yale Law School, 1977-1979
Instructor, New York University School of Law, 1976-1977
Law Clerk, Honorable Charles E. Stewart, United States District Court, Southern District of New York, 1975-1976

Resnik, Judith resume April 7, 2020

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Selected Professional Activities Chair of Fellows Selection Committee and Founding Director, Arthur Liman Center for Public Interest Law, Yale Law School, 1997-present Chair, Yale Law School Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2012-present Member, Board of Managerial Trustees, International Association of Women Judges, 2001-present Chair, Order of the Coif Book Award Committee, 2018-2020 Fellow, Whitney Humanities Center, 2020-2021 Chair, American Association of Law Schools, Section on Law and Humanities, 2020 Chair, American Association of Law Schools, Section on its Sections, 2019-2022 Advisor, American Law Institute, Project on Sexual and Gender-Based Misconduct on Campus, 2015-present Member, Task Force on Federal Judicial Selection, Project on Government Oversight of The Constitution Project, 2019 Steering Committee, Women Faculty Forum, Yale University, 2001-present Co-chair, 2001-2003, 2006-2008 Co-Chair, Judicial-Academic Network, National Association of Women Judges, 2009-2019, 1998-2001 Academic Fellow, Pound Civil Justice Institute, 2016-present Fellow, Davenport College, Yale University, 2002-present Former Chair, Section on Civil Procedure, American Association of Law Schools; 2018, 2003, 1991 Member, Executive Committee, Section on Federal Courts, American Association of Law Schools, 1999-2004, 2014-present; chair, 2002 Member, Executive Committee, Section on Law and the Humanities, American Association of Law Schools, 2015-present Member, Academic & Scientific Council, The Gender Equality Project, Switzerland, 2009-present Advisor, European Law Institute and International Institute for the Unification of Private Law Project, From Transnational Principles to Rules of European Civil Procedure, 2015-2016 Member, Executive Session, State Courts in the Twenty-First Century, The Kennedy School, Harvard University, 2008-2011 Member, Advisory Group, Principles of the Law of Aggregate Litigation, American Law Institute, 2004-2009 Member, Standing Committee on Federal Judicial Improvements, American Bar Association, 2006-2010 (prior three-year term in the late 1990s); Chair, Academic Advisory Committee to the Standing Committee on Federal Judicial Improvements, American Bar Association, 2010-2014 Member, Editorial Board, Yale Journal of Law and Feminism Member, Editorial Advisory Board, Yale Journal of Law and the Humanities Member, Advisory Board, Journal of Law and Ethics of Human Rights
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Member, Advisory Board, Litigation and Procedure, and Negotiation and Dispute Resolution eJournals (Social Science Research Network, online)
Member, Advisory Board, Women’s Studies Quarterly
Other Activities Co-chair of the Board, Fansler Foundation, 2003-2014 Member, National Board of Academic Advisors for the William H. Rehnquist Center on the Constitutional Structures of Government, 2007-2009 Member, Advisory Board of the Science for Judges Project, Brooklyn Law School, 2003-2007 Board Member, Lawyers’ Committee for Civil Rights, 2004-2007 Liaison, American Association of Law Schools to the American Bar Association Commission on Women, 2000-2005 Member, Advisory Board of the Center for Judicial Process, Albany Law School, 2000-2004 Member, Editorial Board, Law and Social Inquiry, 1998-2004 Member, Committee on Diversity in Legal Education of the Section of Legal Education and Admissions to the Bar of the American Bar Association, 1996-2002 Consultant, RAND, Institute for Civil Justice, 1980-2002 Member, Editorial Board, The Justice System Journal Member, Board of Governors, Society of American Law Teachers, 1980-1997 Co-Chair, University of Southern California Feminist Council, 1990-1996 Member, Ninth Circuit Gender Bias Task Force, 1990-1994 Co-Chair, Robert M. Cover Memorial Public Interest Retreat, Society of American Law Teachers, 1988-1992 Member of and a general reporter for the International Association of Procedural Law, 1991 Conference Member, Planning Committee, ABA-AALS Conference on Women in Legal Education, 1990 Member, Advisory Panel to a Subcommittee of the Federal Courts Study Committee, 1989-1990 Member, Steering Committee for the Center for Feminist Research, University of Southern California, 1990-1994 Member, American Bar Association, Litigation Section, Federal Initiatives Task Force, 1991-1993 Chair, Section on Women in Legal Education, American Association of Law Schools, 1989 Member, Twentieth Century Fund Task Force on Judicial Responsibility, 1988-1989 Member, Board of ACLU of Southern California, 1985 Chair, Bryn Mawr College Centennial Campaign for Southern California, 1983-1985
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Publications Books and Monographs
Fragile Futures and Resiliency: Litigating Climate Change, Judging Under Stress (coeditor Clare Ryan, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2019)
Ability to Pay (co-editors Anna VanCleave, Alexandra Harrington, Jeff Selbin, Lisa Foster, Joanna Weiss, Faith Barksdale, Alexandra Eynon, Stephanie Garlock, and Daniel Phillips, Arthur Liman Center for Public Interest Law Colloquium, 2019), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3387647
Working to Limit Restrictive Housing: Efforts in Four Jurisdictions to Make Changes (editor, Arthur Liman Center for Public Interest Law and Association of State Correctional Administrators, 2018).
Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-inCell (co-author, Arthur Liman Center for Public Interest Law and Association of State Correctional Administrators, 2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3264350
Global Reconfigurations, Constitutional Obligations, and Everyday Life (co-editor Clare Ryan, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2018)
Who Pays? Fines, Fees, Bail, and the Cost of Courts (co-editors Anna VanCleave, Kristen Bell, Skylar Albertson, Natalia Friedlander, Illyana Green, and Michael Morse, Arthur Liman Center for Public Interest Law Colloquium, 2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3165674
Reconstituting Constitutional Orders (co-editor Clare Ryan, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2017)
Aiming to Reduce Time-In-Cell: Reports from Correctional Systems on the Numbers of Prisoners in Restricted Housing and on the Potential of Policy Changes to Bring About Reforms (co-author, Yale Law School Arthur Liman Public Interest Program and Association of State Correctional Administrators, 2016)
Rethinking ‘Death Row’: Variations in the Housing of Individuals Sentenced to Death (co-authors Celina Aldape, Ryan Cooper, Katie Haas, April Hu, Jessica Hunter, and Shellie Shimizu, Arthur Liman Public Interest Program, 2016), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2874492
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Acts of State, Acts of God (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2016)
Time-in-Cell: The ASCA-Liman 2014 National Survey of Administrative Segregation in Prison (co-author, Yale Law School Arthur Liman Public Interest Program and Association for State Correctional Administrators, 2015), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2655627
The Reach of Rights (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2015)
The Invention of Courts, Daedalus: Journal of the American Academy of Arts and Sciences (co-editor Linda Greenhouse, Summer 2014)
Isolation and Reintegration: Punishment Circa 2014 (co-editors Hope Metcalf and Megan Quattlebaum, Arthur Liman Public Interest Program Colloquium, 2014)
Sources of Law and of Rights (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2014)
Governments’ Authority (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2013)
Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies (co-authors Hope Metcalf, Jamelia Morgan, Samuel Oliker-Friedland, Julia Spiegel, Haran Tae, Alyssa Work, and Brian Holbrook , Arthur Liman Public Interest Program, 2013), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2286861
Law’s Borders (editor, Yale Global Constitutionalism Seminar, A Part of the Gruber Program for Global Justice and Women’s Rights, 2012)
Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (with Dennis E. Curtis, Yale University Press, 2011)
Federal Courts Stories (co-editor Vicki Jackson, Foundation Press, 2010)
Migrations and Mobilities: Citizenship, Borders, and Gender (co-editor Seyla Benhabib, New York University Press, 2009)
The Processes of the Law: Understanding Courts and Their Alternatives (Foundation Press, 2004)
Adjudication and Its Alternatives: An Introduction to Procedure (with Owen Fiss, Foundation Press, 2003)
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The Effects of Gender: The Final Report of the Ninth Circuit Gender Bias Task Force (July 1993) (with The Hon. John C. Coughenour, The Hon. Proctor Hug, Jr., The Hon. Marilyn Patel, Terry W. Bird, Deborah R. Hensler, M. Margaret McKeown, and Henry Shields, Jr.), also reprinted in 67 Southern California Law Review 745 (1994)
Procedure (with Robert Cover and Owen Fiss, Foundation Press, 1988)
The Federal Procedural System: A Rule and Statutory Source Book (with Robert Cover and Owen Fiss, Foundation Press, 1988, 1989, 1991)
Chapters in Books Not Isolating Isolation, in Solitary Confinement: History, Effects, and Pathways to
Reform at 89-114 (Jules Lobel and Peter Scharff-Smith, eds., Oxford University Press, 2020)
Courts and Economic and Social Rights/Courts as Economic and Social Rights, in The Future of Economic and Social Rights at 259-286 (Katharine G. Young, ed., Cambridge University Press, 2019)
The Functions of Publicity and of Privatization in Courts and their Replacements (from Jeremy Bentham to #MeToo and Google Spain) in Open Justice: The Role of Courts in a Democratic Society at at 177-252 (Burkhard Hess and Ana Koprivica, eds., Max Planck Institute, Luxembourg, Nomos, 2019)
Judicial Methods of Mediating Conflicts: Recognizing and Accommodating Differences in Pluralist Legal Regimes, in Judicial Power: How Constitutional Courts Affect Political Transformations at 250-280 (Christine Landfried, ed., Cambridge University Press, 2019)
On Darkness and Light in Legal Imagination and in Practice, in The Dark Sides of the Law: Perspectives on Law, Literature, and Justice in Common Law Countries at 13-29 (Geraldine Gadbin-George, Yvonne-Marie Rogez, Armelle Sabatier, and Claire Wrobel, eds., Editions Michel Houdiard, 2019)
Bordering by Law: The Migration of Law, Crimes, Sovereignty, and the Mail, in Nomos LVII: Immigration, Emigration, and Migration, at 79-201 (Jack Knight, ed., New York University Press, 2017)
Why Eyes? Cautionary Tales from Law’s Blindfolded Justice (with Dennis E. Curtis), in Blinding as a Solution to Bias in Biomedical Science and the Courts: A Multidisciplinary Approach, at 227-247 (Aaron Kesselheim and Christopher Robertson, eds., Elsevier Press, 2016)
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Constructing the “Foreign:” American Law’s Relationship to Non-Domestic Sources, in Courts and Comparative Law, at 437-471 (Mads Andrenas and Duncan Fairgrieve, eds., Oxford University Press, 2015)
Epistemological Doubt and Visual Puzzles of Sight, Knowledge, and Judgment: Reflections on Clear-Sighted and Blindfolded Justices (with Dennis E. Curtis), in Genealogies of Legal Vision, at 201-242 (Peter Goodrich and Valérie Hayaert, eds., London: Routledge, 2015)
Federalism(s)’s Forms and Norms: Contesting Rights, De-Essentializing Jurisdictional Divides, and Temporizing Accommodations, in Nomos LV: Federalism and Subsidiarity, at 363-435 (James E. Fleming and Jacob T. Levy, eds., New York University Press, 2014)
Constructing Courts: Architecture, the Ideology of Judging, and the Public Sphere (with Dennis E. Curtis and Allison Tait), in Law, Culture & Visual Studies, at 547-572 (Richard K. Sherwin and Anne Wagner, eds., Springer Publishing Company, 2013)
“Hear the Other Side:” Miranda, Guantánamo, and Public Rights to Fairness and Dignity, in Law and the Quest for Justice, at 85-109 (Marjorie S. Zatz, Doris Marie Provine, and James P. Walsh, eds., Quid Pro Books, 2013)
Old and New Depictions of Justice: Reflections, Circa 2011, on Hill-Thomas, in I Still Believe Anita Hill, at 51-70 (Amy Richards and Cynthia Greenberg, eds., The Feminist Press, 2012)
Changing the Climate: The Role of Translocal Organizations of Government Actors (TOGAs) in American Federalism(s), in Navigating Climate Change Policy: The Opportunities of Federalism, at 120-143 (Edella C. Schlager, Kirsten H. Engel, and Sally Rider, eds., The University of Arizona Press Tucson, 2011)
Sisterhood, Slavery and Sovereignty: Transnational Women’s Rights Movements from 1840 through the Beginning of the Twenty-first Century, in Women’s America: Seventh Edition, at 781-790 (Linda Kerber, Cornelia Hughes Dayton, and Jane De Hart, eds., Oxford University Press, 2010)
New Federalism(s): Translocal Organizations of Government Actors (TOGAs) Reshaping Boundaries, Policies, and Laws, in Why the Local Matters: Federalism, Localism, and Public Interest Advocacy, at 83-99 (published by the Liman Public Interest Program at Yale Law School, and the National State Attorneys General Program at Columbia Law School, 2010)
Managerial Judges, Jeremy Bentham and the Privatization of Adjudication, in Common Law, Civil Law and the Future of Categories, at 205-224 (Janet Walker and Oscar
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G. Chase, eds., LexisNexis Canada, 2010), also published in 49 S.C.L.R. (2d) 205 (2010)
What’s Federalism For?, in The Constitution 2020, at 269-284 (Jack Balkin and Reva Siegel, eds., Oxford University Press, 2009)
Judicial Independence, in Global Perspectives on Constitutional Law, at 15-33 (Vikram David Amar and Mark V. Tushnet, eds., Oxford University Press, 2008)
From “Rites” To “Rights” of Audience: The Utilities and Contingencies of the Public’s Role in Court-Based Processes (with Dennis E. Curtis) in Representation of Justice, at 195-236 (Antoine Masson and Kevin O’Connor, eds., P.I.E. - Peter Lang, 2007)
Sisterhood, Slavery, and Sovereignty: Transnational Antislavery Work and Women’s Rights Movements in the United States During the Twentieth Century, in Women’s Rights and Transatlantic Antislavery in the Era of Emancipation, at 1954 (Kathryn K. Sklar and James Brewer Stewart, eds., Yale University Press, 2007)
Gendered Borders and United States’ Sovereignty, in Women and Immigration Law: New Variations on Classical Feminist Themes, at 44-63 (S.K. Van Walsum and T. Spijkerboer, eds., Routledge-Cavendish Press, 2006)
Contracting Civil Procedure, in Law and Class in America: Trends Since the Cold War, at 60-86 (Paul Carrington and Trina Jones, eds., New York University Press, 2006)
Democratic Responses to the Breadth of Power of the Chief Justice, in Reforming the Court: Term Limits for Supreme Court Justices, at 181-200 (Paul D. Carrington and Roger C. Cramton, eds., Carolina Academic Press, 2006)
Composing a Judiciary: Reflections on Proposed Reforms in The United Kingdom on How to Change the Voices of and the Constituencies for Judging, in Constitutional Innovation: The Creating of A Supreme Court for the United Kingdom; Domestic, Comparative and International Reflections, A Special Issue of Legal Studies, at 228-252 (Derek Morgan, ed., LexisNexis, United Kingdom, 2004)
The Story of Goldberg: Why This Case Is Our Shorthand, in Civil Procedures Stories: An In-Depth Look at the Leading Civil Procedure Cases, at 473-508 (Kevin M. Clermont, ed., Foundation Press, 2004; 2nd ed., 2007)
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Federalism(s), Feminism, Families, and the Constitution, in Women and the United States Constitution: History, Interpretation, and Practice, at 127-152 (Sybil A. Schwarzenbach and Patricia Smith, eds., Columbia University Press, 2004)
The Rights of Remedies: Collective Accountings for and Insuring Against the Harms of Sexual Harassment in Directions in Sexual Harassment Law, at 247-271 (Reva Siegel and Catherine MacKinnon, eds., University Press, 2004)
Civil Processes, in Oxford Handbook of Legal Studies, at 478-772 (Peter Cane and Mark Tushnet, eds., Oxford Press, 2003)
Women, Meeting (Again), In and Beyond the United States, Afterword to The Difference Difference Makes: Women and Leadership, at 203-216 (Deborah L. Rhode, ed., Stanford University Press, 2003)
Procedure: Legal Aspects (Vol.18), in International Encyclopedia of the Social & Behavioral Sciences, at 12136-12141 (Neil J. Smelser and Paul B. Baltes, eds., Elsevier Press, 2001)
Contested Identities: Task Force on Gender, Race, and Ethnic Bias and the Obligations of the Legal Profession (with Deborah Hensler) in Ethics in Practice, Lawyers’ Roles, Responsibilities, and Regulation, at 240-263 (Deborah L. Rhode, ed., Oxford University Press, 2000)
Federal Judicial Role (Vol. III); Single-Sex Education (Vol. V); Procedural Due Process Civil (Update I, Vol. IV), in The Encyclopedia of the American Constitution, 2nd edition, (Leonard Levy, Kenneth L. Karst, Adam Winkler, Dennis J. Mahoney, and John G. West, Jr., eds., Macmillan, 2000)
Singular and Aggregate Voices: Audiences and Authority in Law & Literature and in Law & Feminism, in Law and Literature: Current Legal Issues, Vol. II, at 687727 (Michael Freeman and Andrew D. E. Lewis, eds., Oxford University Press, 1999)
Foreword (with Carolyn Heilbrun) to Beyond Portia: Women, Law & Literature in the United States, at 11-52 (Jacqueline St. Joan and Annette Bennington McElhiney, eds., Northeastern University Press, 1997)
Procedure, in Looking at Law School, at 177-195 (Stephen Gillers, ed., Penguin Books, NY, 4th ed., 1997; 3rd ed., 1990)
From the Senate Judiciary Committee to the County Courthouse: The Relevance of Gender, Race, and Ethnicity to Adjudication, in Race, Gender, and Power in America, The Legacy of the Hill-Thomas Hearings, at 177-227 (Anita Hill and Emma Jordan, eds., Oxford Press, 1995)
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Gender in the Courts: The Task Force Reports, in The Woman Advocate, Excelling in the 90’s, at 3-38 (Jean Maclean Snyder and Andra Barmash Greene, eds., Prentice Hall Law & Business, 1995)
Finding the Factfinders, in Verdict: Assessing the Civil Justice System, at 500-530 (Robert E. Litan, ed., Brookings, May 1993)
Independent and Inter-dependent: The Ninth Circuit and the Federal Judiciary, in Restructuring Justice, at 321-330 (Arthur Hellman, ed., Cornell Press, 1990)
The Perception of Justice: Tort Litigants’ Views of Trial, Court-Annexed Arbitration, and Judicial Settlement Conferences (with E. Allan Lind, Robert MacCoun, Patricia Ebener, William L.F. Felstiner, Deborah R. Hensler, and Tom R. Tyler), The RAND Corporation, Institute for Civil Justice (1989)
Should Prisoners Be Classified by Sex?, in Criminal Corrections: Ideals and Realities, at 109-123 (J. Doig, ed., Mass: Lexington Books, Fall 1982)
Discrimination in Education, Chapter XXVIII in Dorsen, Bender, Neuborne, and Law, in Political and Civil Rights in the United States, at 107-173 (Little Brown, 1979, Supplement, 1981)
Prisoners of Their Sex: Health Problems of Incarcerated Women (with Nancy Shaw) in Prisoners’ Rights Sourcebook: Theory, Practice, and Litigation, Vol. II, at 319413 (Ira Robbins, ed., N.Y.: Clark Boardman, 1980, reprinted in 3 Prison Law Monitor 57-58, March 1981)
Federal Prisoners’ Access to Federal Courts: Jurisdiction and Related Procedural Matters, Prisoners Rights, at 85-158 (N.Y.: PLI, 1979)
Undelivered Care: The Incapacitated and the Mentally Ill New York City Defendant, A Report to the Mayor's Criminal Justice Coordinating Council (August 1973) (co-authored)
Articles Constituting Security and Fairness: Reflecting on Charles Reich’s Imagination and
Impact, 129 Yale Law Journal Forum 707 (2020)
Inability to Pay: Court Debt Circa 2020 (with David Marcus), 98 North Carolina Law Review 361 (2020)
(Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People’s “Ruin,” 129 Yale Law Journal Forum 365 (2020)
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Book Review: The Challenges of Engaging “The Art of Law: artistic representations and iconography of law and justice in context, from the middle ages to the first world war,” in 7 Comparative Legal History 239 (2019)
Sentencing Inside Prisons: Efforts to Reduce Isolating Conditions (with Kristen Bell), 87 University of Missouri Kansas City Law Review 133 (2018)
A2J/A2K: Access to Justice, Access to Knowledge, Economic Inequalities, and Open Courts and Arbitrations, 96 North Carolina Law Review 605 (2018)
Reorienting the Process Due: Using Jurisdiction to Forge Post-Settlement Relationships Among Litigants, Courts, and the Public in Class and Other Aggregate Litigation, 92 New York University Law Review 1017 (2017)
“Vital” State Interests: From Representative Actions for Fair Labor Standards to Pooled Trusts, Class Actions, and MDLs in the Federal Courts, 165 University of Pennsylvania Law Review 1765 (2017)
Lawyers’ Ethics Beyond the Vanishing Trial: Unrepresented Claimants, De Facto Aggregations, Arbitration Mandates, and Privatized Processes, 85 Fordham Law Review 1899 (2017)
Accommodations, Discounts, and Displacement: The Variability of Rights as a Norm of Federalism(s), 17 Jus Politicum 209 (2017)
“Within Its Jurisdiction”: Moving Boundaries, People, and the Law of Migration, 160 Proceedings of the American Philosophical Society 117 (2016)
Revising Our “Common Intellectual Heritage”: Federal and State Courts in Our Federal System, 91 Notre Dame Law Review 1831 (2016)
Time-In-Cell: Isolation and Incarceration (with Sarah Baumgartel and Johanna Kalb), 125 Yale Law Journal Forum (2016); http://www.yalelawjournal.org/forum/time-in-cell-isolation-and-incarceration
The Contingency of Openness in Courts: Changing the Experiences and Logics of Publics’ Role in Court-Based ADR, 15 Nevada Law Journal 1631 (2015)
Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights, 124 Yale Law Journal 2804 (2015); published in Portuguese in Grandes Temas do Novo CPC: Justiça Multiportas: Mediação, Conciliação, Arbitragem e Outros Meios de Solução Adequada Para Conflitos (DIDIER JR., Fredie; ZANETI JR., Hermes; CABRAL, Tricia Xavier Navarro eds., Salvador: JusPodvim, 2016))
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Reinventing Courts as Democratic Institutions, Daedalus: Journal of the American Academy of Arts and Sciences 9 (Summer 2014)
The Privatization of Process: Requiem for and Celebration of the Federal Rules of Civil Procedure at 75, 162 University of Pennsylvania Law Review 1793 (2014)
Inventing Democratic Courts: A New and Iconic Supreme Court (with Dennis E. Curtis), 38 Journal of Supreme Court History 207 (2013)
Gideon at Guantánamo: Democratic and Despotic Detention (with Hope Metcalf), 122 Yale Law Journal 2504 (2013)
Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies (with Hope Metcalf, Jamelia Morgan, Samuel Oliker-Friedland, Julia Spiegel, Haran Tae, Alyssa Work, and Brian Holbrook) (2013)
The Democracy in Courts: Jeremy Bentham, ‘Publicity’, and the Privatization of Process in the Twenty-First Century, NoFo 10 (2013)
Globalization(s), privatization(s), constitutionalization and statization: Icons and experiences of sovereignty in the 21st century, 11 International Journal of Constitutional Law (I·CON) 162 (2013)
Equality’s Frontiers: Courts Opening and Closing, 122 Yale Law Journal Online 243 (2013)
Opening the Door: Ruth Bader Ginsburg, Law’s Boundaries, and the Gender of Opportunities, 25 Columbia Journal of Gender and Law 81 (2013)
Constitutional Entitlements to and in Courts: Remedial Rights in an Age of Egalitarianism: The Childress Lecture, 56 St. Louis University Law Journal 916 (2012)
Comparative (In) equalities: CEDAW, the jurisdiction of gender, and the heterogeneity of transnational law production, 10 International Journal of Constitutional Law (I·CON) 531 (2012)
Building the Federal Judiciary (Literally and Legally): The Monuments of Chief Justices Taft, Warren, and Rehnquist, 87 Indiana Law Journal 823 (2012)
Re-Presenting Justice: Visual Narratives of Judgment and the Invention of Democratic Courts (with Dennis E. Curtis), 24 Yale Journal of Law and the Humanities 19 (2012)
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Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, 125 Harvard Law Review 78 (2011)
The Production and Reproduction of Constitutional Norms, 35 New York University Review of Law & Social Change 226 (2011)
Bring Back Bentham: “Open Courts,” “Terror Trials,” and Public Sphere(s), 5 Law & Ethics of Human Rights 226 (2011)
Compared to What?: ALI Aggregation and the Shifting Contours of Due Process and of Lawyers’ Powers, 79 George Washington Law Review 628 (2011)
Reading Reinhardt: The Work of Constructing Legal Virtue (Exempla Iustitiae), 120 Yale Law Journal 539 (2010)
Kyoto at the Local Level: Federalism and Translocal Organizations of Government Actors (TOGAs) (with Joshua Civin and Joseph Frueh), 40 Environmental Law Reporter 10768 (2010)
Detention, The War on Terror, and the Federal Courts, 110 Columbia Law Review 579 (2010)
The Internationalism of American Federalism: Missouri and Holland (Earl F. Nelson Memorial Lecture), 73 Missouri Law Review 1105 (2009)
Courts: In and Out of Sight, Site, and Cite, 53 Villanova Law Review 771 (2008)
Interdependent Federal Judiciaries: Puzzling about Why and How to Value the Independence of Which Judges, Daedalus 28 (2008)
Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs) (with Joshua Civin and Joseph Frueh), 50 Arizona Law Review 709 (2008)
Lessons in Federalism from the 1960s Class Action Rule and the 2005 Class Action Fairness Act: “The Political Safeguards” of Aggregate Translocal Actions, 156 University of Pennsylvania Law Review 1929 (2008)
Law as Affiliation: “Foreign” Law, Democratic Federalism, and the Sovereigntism of the Nation-State, 6 International Journal of Constitutional Law (I·CON) 33 (2008)
Foreign as Domestic Affairs: Rethinking Horizontal Federalism and Foreign Affairs Preemption in Light of Translocal Internationalism, 57 Emory Law Journal 31 (2007)
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Representing Justice: From Renaissance Iconography to Twenty-First Century Courthouses (with Dennis E. Curtis), Henry la Barre Jayne Lecture, 151 Proceedings of the American Philosophical Society 139 (2007)
Roscoe Pound Round-Table Discussion, in Conference of Chief Justices and Council on State Court Administrators Symposium, 82 Indiana Law Journal 1157 (2007)
No Daubert Hearing Necessary: The Extraordinary Expertise of Margaret Berger, 16 Journal of Law and Policy 6 (2007)
Whither and Whether Adjudication?, 86 Boston University Law Review 1101 (2006)
Uncovering, Disclosing, and Discovering How the Public Dimensions of CourtBased Processes Are at Risk, 81 Chicago-Kent Law Review 521 (2006)
Responding to a Democratic Deficit: Limiting the Powers and the Term of the Chief Justice of the United States (with Lane Dilg), 154 University of Pennsylvania Law Review 1575 (2006)
Law’s Migration: American Exceptionalism, Silent Dialogues, and Federalism’s Multiple Ports of Entry, 115 Yale Law Journal 1564 (2006)
Living Their Legal Commitments: Paideic Communities, Courts and Robert Cover, 17 Yale Journal of Law & the Humanities 17 (2005)
Procedure as Contract, 80 Notre Dame Law Review 593 (2005)
Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 Cardozo Law Review 579 (2005)
Procedure’s Projects, 23 Civil Justice Quarterly 273 (2004)
Migrating, Morphing, and Vanishing: The Empirical and Normative Puzzles of Declining Trial Rates in Courts, 3 Journal of Empirical Legal Studies 783 (2004)
Tribes, Wars, and the Federal Courts: Applying the Myths and the Methods of Marbury v. Madison to Tribal Courts’ Criminal Jurisdiction, 36 Arizona State Law Journal 77 (2004)
The Independence of the Federal Judiciary, in Proceedings of the American Academy of Arts and Sciences, 17 Bulletin 22 (2004)
For Owen M. Fiss: Some Reflections on the Triumph and the Death of Adjudication, 58 University of Miami Law Review 173 (2003)
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CaseC:a1s:e201-:c2v0--0c2v0-19047D3o8c-GumAOent D#:o2c4u-m3eFnitle3d8:-054/0F8il/e2d00P4a/2g7e/2300 oPf 4a5geP3a1geoIfD4#6:37515
A Continuous Body: Ongoing Conversations About Women and Legal Education, 53 Journal of Legal Education 564 (2003)
Of Courts, Agencies, and the Court of Federal Claims: Fortunately Outliving One’s Anomalous Character, 71 George Washington Law Review 798 (2003)
Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty (with Julie Suk), 55 Stanford Law Review 1921 (2003)
Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power, 78 Indiana Law Journal 223 (2003)
Reconstructing Equality: Of Justice, Justicia, and the Gender of Jurisdiction, 14 Yale Journal of Law and Feminism 393 (2002)
Mediating Preferences: Litigant Preferences for Process and Judicial Preferences for Settlement, 2002 University of Missouri-Columbia Journal of Dispute Resolution 155 (2002)
Teaching Billing: Metrics of Value in Law Firms and Law Schools (with Dennis E. Curtis), 54 Stanford Law Review 1409 (2002)
“Uncle Sam Modernizes His Justice”: Inventing the Federal District Courts of the Twentieth Century for the District of Columbia and the Nation, 90 Georgetown Law Journal 607 (2002)
Remarks, Bicentennial Celebration for the Courts of the District of Columbia Circuit, 204 Federal Rules of Decision 499 (2002)
Grieving Criminal Defense Lawyers (with Dennis E. Curtis), 70 Fordham Law Review 1615 (2002)
Engendering Democracy through Understanding Federal Family Law, 11 The Good Society (A PEGS Journal) 79 (2002)
Tribute to Norman Dorsen, 58 Annual Survey of American Law 29 (2001)
Categorical Federalism: Jurisdiction, Gender, and the Globe, 111 Yale Law Journal 619 (2001)
Procedure: Legal Aspects, 18 International Encyclopedia of the Social & Behavioral Sciences (eds. Neil Smelser and Paul Baltes) 12136 (2001)
The Modernity of Judging: Judicial Independence and the 20th Century United States Federal Courts, presented at The 1701 Conference, Vancouver, British Columbia,
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CaseC:a1s:e201-:c2v0--0c2v0-19047D3o8c-GumAOent D#:o2c4u-m3eFnitle3d8:-054/0F8il/e2d00P4a/2g7e/2301 oPf 4a5geP3a2geoIfD4#6:37616
Canada, May 9-11, 2001, on the 300th anniversary of the 1701 Act of Settlement
The Programmatic Judiciary: Lobbying, Judging, and Invalidating the Violence Against Women Act, 74 Southern California Law Review 269 (2000)
Money Matters: Judicial Market Interventions Creating Subsidies and Awarding Fees and Costs in Individual and Aggregate Litigation, 148 University of Pennsylvania Law Review 2119 (2000)
Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 Harvard Law Review 924 (2000)
Judicial Independence and Article III: Too Little and Too Much, 72 Southern California Law Review 657 (1999)
Legal Services: Then and Now (with Emily Bazelon), 17 Yale Law & Policy Review 292 (1998)
The Federal Courts and Congress: Additional Sources, Alternative Texts, and Altered Aspirations, 86 Georgetown Law Journal 2589 (1998)
“The Federal Courts”: Constituting and Changing the Topic, 32 University of Richmond Law Review 603 (1998)
On the Margin: Humanities and Law, 10 Yale Journal of Law and the Humanities 413 (1998)
Contingency Fees in Mass Torts: Access, Risk and the Provision of Legal Services When Layers of Lawyers Work for Individuals and Collectives of Clients (with Dennis E. Curtis), 47 DePaul Law Review 425 (1998)
Changing Practices, Changing Rules: Judicial and Congressional Rulemaking in Civil Juries, Civil Justice, and Civil Judging, in a Symposium, Evaluation of the Civil Justice Reform Act, 49 Alabama Law Review 133 (1997); also published in Canadian Institute for the Administration of Justice, The Administration of Justice in Commercial Disputes 149 (1997)
Litigating and Settling Class Actions: The Prerequisites of Entry and Exit, 30 U.C. Davis Law Review 835 (1997)
Afterword: Federalism’s Options, Symposium Issue: Yale Law & Policy Review/Yale Journal on Regulation 465 (1996)
Changing the Topic, 7 The Australian Feminist Law Journal 95 (1996); also published in 8 Cardozo Studies in Law and Literature 339 (Fall/Winter 1996)
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Asking About Gender in Courts, 21 Signs: Journal of Women in Culture and Society 952 (Summer 1996)
Individuals Within the Aggregate: Relationships, Representation, and Fees (with Dennis E. Curtis and Deborah Hensler), 71 New York University Law Review 296 (1996)
History, Jurisdiction, and the Federal Courts: Changing Contexts, Selective Memories, and Limited Imagination, 98 West Virginia Law Review 171 (1995)
Sentencing Women, 8 Federal Sentencing Reporter 134 (1995)
Aggregation, Settlement, and Dismay, 80 Cornell Law Review 918 (1995)
Procedural Innovations, Sloshing Over: A Comment on Deborah Hensler, A Glass Half Full, a Glass Half Empty: The Use of Alternative Dispute Resolution in Mass Personal Injury Litigation, 73 Texas Law Review 1627 (1995)
Multiple Sovereignties: Indian Tribes, States, and the Federal Government, 79 Judicature 118 (1995)
Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudication, 10 Ohio State Journal on Dispute Resolution 211 (1995)
Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century, 41 UCLA Law Review 1471 (1994); also published by RAND, Institute for Civil Justice (1995).
National Courts: Imagining Alternatives to State and Federal Courts, Southern California Law Review 2 (Spring 1995)
Rereading “The Federal Courts:” Revising the Domain of Federal Courts Jurisprudence at the End of the Twentieth Century, 47 Vanderbilt Law Review 1021 (1994)
The Future of Civil Litigation: A Panel Discussion in Symposium, Reinventing Civil Litigation: Evaluating Proposals for Change, 59 Brooklyn Law Review 1199 (1994)
Ambivalence: The Resiliency of Legal Culture in the United States, 45 Stanford Law Review 1525 (1993)
Gender Bias: From Classes to Courts, 45 Stanford Law Review 2195 (1993)
Revising the Canon: Feminist Help in Teaching Procedure, Introduction to a Symposium, 61 University of Cincinnati Law Review 1181 (1993)
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Hearing Women, 65 Southern California Law Review 1333 (1992) “Naturally” Without Gender: Women, Jurisdiction, and the Federal Courts, 66 New York
University Law Review 1682 (1991) Visible on Women’s Issues, 77 Iowa Law Review 41 (1991) From “Cases” to “Litigation,” 54 Law and Contemporary Problems 5 (1991);
also published by RAND, Institute for Civil Justice (1991)
Housekeeping: The Nature and Allocation of Work in the Federal Trial Courts, 24 Georgia Law Review 909 (1990)
In the Eye of the Beholder: Tort Litigants’ Evaluations of their Experiences in the Civil Justice System (with E. Allan Lind, Robert J. MacCoun, Patricia Ebener, William L.F. Felstiner, Deborah R. Hensler, and Tom R. Tyler), 24 Law & Society Review 953 (1990); related monograph, The Perception of Justice; also published by RAND, Institute for Civil Justice (1989)
Feminism and the Language of Judging, 22 Arizona State Law Journal 31 (1990) Changing Criteria for Judging Judges, 84 Northwestern University Law
Review 889 (1990) Convergences: Law, Literature, and Feminism (with Carolyn Heilbrun), 99 Yale Law
Journal 1913 (1990) Constructing the Canon, 2 Yale Journal of Law and the Humanities 221 (Winter 1990) Dependent Sovereigns: Indian Tribes, States, and the Federal Courts, 56 University of
Chicago Law Review 671 (1989) Complex Feminist Conversations, University of Chicago Legal Forum 1 (1989) The Domain of Courts, 137 University of Pennsylvania Law Review 2219 (1989) On the Bias: Feminist Reconsiderations of the Aspirations for Our Judges, 61 Southern
California Law Review 1877 (1988) The Limits of Parity in Prison, 13 Journal of the National Prison Project 26 (1987) Due Process: A Public Dimension, in Conference on Procedural Due Process: Liberty
and Justice, 39 University of Florida Law Review 405 (1987)
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Judging Consent, University of Chicago Legal Forum 43 (1987) Images of Justice (with Dennis E. Curtis), 96 Yale Law Journal 1727 (1987) Failing Faith: Adjudicatory Procedure in Decline, 53 University of Chicago Law Review
494 (1986); also published by RAND, Institute for Civil Justice (1986) The Declining Faith in the Adversary System, 13 Litigation 3 (1986) The Mythic Meaning of Article III Courts, 56 University of Colorado Law
Review 581 (1985) Precluding Appeals, 70 Cornell Law Review 603 (1985) Managerial Judges: The Potential Costs, in Symposium, Law and Public Affairs,
45 Public Administration Review 686 (Special Issue, November 1985) Tiers, 57 Southern California Law Review 837 (1984) Commentaries on Prisoner Litigation, 9 Justice System Journal 347 (Winter 1984) The Assumptions Remain, 23 Judges’ Journal 37 (Fall 1984) Managerial Judges and Court Delay: The Unproven Assumptions, 23 Judges’ Journal 8
(Winter 1984) Book Review of The Brandeis/Frankfurter Connection, 71 California Law
Review 776 (1983) Managerial Judges, 96 Harvard Law Review 374 (1982); also published by RAND,
Institute for Civil Justice (1982) Patients’ Rights: Disclosure, Consent, and Capacity (with Nikki Heidepriem), 1973/1974
Annual Survey of American Law 87 Selected Commentary in Newspapers, Magazines, and Journals
Protecting Prisoners in Pandemics Is a Constitutional Must, Bloomberg.com, March 30, 2020, https://news.bloomberglaw.com/health-law-and-business/insightprotecting-prisoners-in-pandemics-is-a-constitutional-must
Degrading strip search of 200 women prisoners cries out for courts to act, CNN.com, October 3, 2019, https://www.cnn.com/2019/10/03/opinions/women-prisonershave-rights-resnik/index.html
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This Question Changed the Face of the Supreme Court, CNN.com, September 25, 2018; http://www.cnn.com/2018/09/25/opinions/anita-hill-patsy-mink-changed-howwe-see-kavanaugh-judith-resnik/index.html
The Supreme Court’s Arbitration Ruling Undercuts the Court System, HuffPost, May 25, 2018; https://www.huffingtonpost.com/entry/opinion-resnik-forcedarbitration_us_5b08395ae4b0802d69caeb47?1s
To Help #MeToo Stick, End Mandatory Arbitration, HuffPost, January 23, 2018; https://www.huffingtonpost.com/entry/opinion-resnik-mandatoryarbitration_us_5a65fc39e4b0e5630071c15d?g9r
Arbitration Cuts the Public Out and Limits Redress, National Law Journal, August 22, 2016; http://www.nationallawjournal.com/id=1202765654457/ Arbitration-Cuts-the-Public-Out-and-Limits-Redress?slreturn=20160914112502
With One Decision, Obama and Lynch Could Reshape the Criminal Justice System (with Robert Ferguson and Margo Schlanger), The Washington Post online, August 3, 2015; https://www.washingtonpost.com/posteverything/wp/2015/08/03/with-onedecision-obama-could-totally-reform-the-criminal-justice-system/
No Fast Track for Unfair Trade Deals (with Amy Kapczynski), HuffPost Politics, June 11, 2015; http://www.huffingtonpost.com/amy-kapczynski/tpp-isds-no-fast-trackfor-unfair-trade-deals_b_7562084.html?1434041001
Can Less Confidentiality Mean More Fairness in Campus Sexual Assault Cases? (with Alexandra Brodsky and Claire Simonich), The Nation, February 23, 2015; http://www.thenation.com/article/198713/can-less-confidentiality-mean-morefairness-campus-sexual-assault-investigations
Renting Judges for Secret Rulings, The New York Times, February 28, 2014; http://www.nytimes.com/2014/03/01/opinion/renting-judges-for-secretrulings.html?ref=todayspaper
The Return of the Terrible Plan to Ship Female Inmates from the Northeast to Alabama, Slate, October 4, 2013; http://www.slate.com/blogs/xx_factor/2013/10/04/female_inmates_in_federal_pri son_must_give_up_their_beds_to_men_and_move.html
Keep Female Prisoners Close to Family (with Nancy Gertner), The Boston Globe, September 3, 2013; http://www.bostonglobe.com/opinion/2013/09/03/keepfemale-prisoners-close-family/eQf4dCawmOGmQ41Ap53GxL/story.html
Harder Time: Why are the federal prison beds for women in the Northeast going to men—while the women get shipped to Alabama?, Slate, July 25, 2013;
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http://www.slate.com/articles/news_and_politics/jurisprudence/2013/07/women_i n_federal_prison_are_being_shipped_from_danbury_to_aliceville.html
How “Robust” is Appellate Review of Courts-Martial? (with Eugene R. Fidell, Elizabeth L. Hillman, Dwight H. Sullivan, Stephen A. Saltzburg and Kate Stith) (2013), Balkinization; http://balkin.blogspot.com/2013/05/how-robust-is-appellatereview-of.html
Abolish the Death Penalty and Supermax, Too: Updating the Ban Against Cruel and Unusual Punishment (with Jonathan Curtis-Resnik), Slate, June 18, 2012; http://www.slate.com/authors.judith_resnik_and_jonathan_curtisresnik.html
War, Terror, and the Federal Courts, Ten Years After 9/11 – Conference (a discussion with Judge Brett Kavanaugh, Martin Lederman, Sarah Cleveland, Curt Bradley, and Stephen Vladeck), from the 2012 Annual Meeting of the Association of American Law Schools, 61 American University Law Review 1253 (2012)
A Collective Collage: Women, the Structure of American Legal Education, and Histories Yet to be Written (with Dennis E. Curtis), 80 University of Missouri Kansas City Law Review 737 (2012)
The Changing Face of Justice: The Visual Vocabulary of Courts is a Transnational Symbol of Government (with Dennis E. Curtis), The Guardian, March 24, 2011; http://www.guardian.co.uk/law/2011/mar/24/changing-face-justice-judith-resnik
Designing Justice (with Dennis E. Curtis), Los Angeles Daily Journal, January 21, 2011. What Does Justice Look Like? (with Dennis E. Curtis), Slate, January 21, 2011; http://www.slate.com/id/2281277/
From Fool’s Blindfold to the Veil of Ignorance (with Dennis E. Curtis), Yale Law Report (Winter 2011)
Object Lesson: On and Off Her Pedestal (with Dennis E. Curtis), Yale Alumni Magazine (November/December 2010)
Citizenship for the 21st Century: A Conversation with Seyla Benhabib and Judith Resnik, 38 Women Studies Quarterly 271 (Spring/Summer 2010)
Drafting, Lobbying, and Litigating VAWA: National, Local, and Transnational Interventions on Behalf of Women’s Equality, 11 Georgetown Journal of Gender and the Law 557 (2010)
Open the Door and Turn on the Lights, Slate, May 21, 2010; http://www.slate.com/id/2253500/
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Judicial Independence, Panel Discussion, Sandra Day O’Connor, Linda Greenhouse, Judith Resnik, Bert Brandenburg, and Viet D. Dinh, Bulletin of the American Academy 29 – 56 (Winter 2009)
There’s a New Lawyer in Town (with Emily Bazelon), Slate, February 9, 2009; http://www.slate.com/id/2210637/
Revival of Justice, Slate, January 6, 2009; http://www.slate.com/id/2208017/
Translocal Transnationalism: Foreign and Domestic Affairs, 102 American Society of International Law Proceedings 214 (2008)
Sitting on Great Judges (with Emily Bazelon), Slate, December 19, 2008; http://www.slate.com/id/2207071/
The Return of Regency (with Allison Tait), The XX Factor, September 11, 2008, guest post; http://www.slate.com/blogs/blogs/xxfactor/archive/2008/09/11/the-returnof-regency.aspx
Courts and Democracy: The Production and Reproduction of Constitutional Conflict in The Courts and Social Policy in the United States (Oxford: Foundation for Law, Justice and Society, 2008); http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1148202
Moving American Mores: From Women’s Education to Torture, 36 Women Studies Quarterly 339 (Spring/Summer 2008)
When the Justice Department Played Defense, Slate, October 27, 2006; http://www.slate.com/id/2152211/
Borders, Law, and Doors – Opening, Bryn Maw College Convocation, May 2006
Opening the Door: Court Stripping: Unconscionable and Unconstitutional? Slate, February 1, 2006; http://www.slate.com/articles/news_and_politics/jurisprudence/2006/02/opening_ the_door.html
So Long: Changing the Judicial Pension System Could Keep Judges from Staying on the Bench for Too Many Years, July/August Legal Affairs 20 (2005)
One Robe, Two Hats (with Theodore Ruger), New York Times, Op-Ed, Section 4 at 13, July 17, 2005
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Looking Back, Looking Forward: One Hundred Years, Concluding Remarks in Women Faculty Forum, Gender Matters: Women and Yale in its Third Century (2004)
The Courts, the Legislature, and the Executive: Separate and Equal? Issues at the Federal Level, 87 Judicature 220 (2004)
Judicial Selection, Independent Jurists, and Life-Tenure (2004); http://www.jurist.org/forum/symposium-jc/resnik.php
At Home and Work, Still a Man’s World, Commentary (with Emily Bazelon), Los Angeles Times, January 2, 2004
Engendering Equality: A View from the United States, 35 The European Lawyer 21, (February 2004)
Supermajority Rule, New York Times, Op-Ed, Section A at 31, June 11, 2003
Testimony Statement submitted for the record, Women in Prison: Seeking Justice Behind Bars, before the U.S. Commission on Civil Rights, March 22, 2019
Comments submitted on Proposed Changes to Code of Conduct for U.S. Judges and Judicial Conduct and Disability Rules (with Abbe R. Gluck), submitted to the Judicial Conference committees on Codes of Conduct and Judicial Conduct and Disability, November 13, 2018
Comments submitted for the Telephonic Hearing on Proposed Amendments to the Federal Rules of Civil Procedure before the Advisory Committee on Civil Rule of the Judicial Conference of the United States, February 16, 2017
Statement submitted for the record, Women in Detention: The Need for National Reform, Charles Colson Task Force on Federal Corrections Public Hearing, Washington, D.C., March 11, 2015
Statement submitted for the record, Women in Detention: The Need for a National Agenda, Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights, December 9, 2014
The Policies Governing Isolation in U.S. Prisons, Statement submitted for the Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights, Reassessing Solitary Confinement II: The Human Rights, Fiscal and Public Safety Consequences, February 25, 2014;
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http://www.law.yale.edu/documents/pdf/Liman/Liman_Senate_Statement_Reasse ssing_Solitary_Confinement--_Resnik_Metcalf_--_final_Feb_28_2014.pdf
Statement submitted for the record, Oversight of the Bureau of Prisons and CostEffective Strategies for Reducing Recidivism, Hearing before the Senate Judiciary Committee, U.S. Senate, November 13, 2013; http://www.law.yale.edu/documents/pdf/Liman/Senate_Judiciary_Committee_BO P_Oversight_Hearing_Liman_Statement_for_the_Record_
Statement submitted for the record, Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences, Hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights, U.S. Senate, June 19, 2012
Courtroom Use: Access to Justice, Effective Judicial Administration and Courtroom Security, Hearing before the Subcommittee on Courts and Competition Policy of the United States Committee on the Judiciary, U.S. House of Representatives, September 24, 2010
Statement submitted for the record, Recommendations on Courthouse Construction, Courtroom Sharing and Enforcing Congressionally Authorized Limits on Size and Cost, Hearing before the Subcommittee on Economic Development, Public Buildings and Emergency Management Committee on Transportation and Infrastructure, U.S. House of Representatives, May 21, 2010
Statement submitted for the record, Sunshine in Litigation Act: Does Court Secrecy Undermine Public Health and Safety, Hearing before the Subcommittee on Antitrust, Competition Policy and Consumer Rights of the Committee on the Judiciary, 110th Cong. 181, December 11, 2007
Hearings on the Judicial Nomination of John G. Roberts, Jr., to be Chief Justice of the United States, held by the Committee on the Judiciary of the United States Senate, Washington, D.C., September 15, 2005
Hearings on the Judicial Selection before the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, held by the House of Commons, Ottawa, Canada, April 20, 2004
Hearings on the Proposed Amendments to Federal Rule of Civil Procedure 23, held by the Committee on Rules of Practice and Procedure, Judicial Conference of the United States, January 2002
Hearings on the Senate's Role in the Nomination and Confirmation Process: Whose Burden?, held by the Senate Committee on the Judiciary, Subcommittee on
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CaseC:a1s:e201-:c2v0--0c2v0-19047D3o8c-GumAOent D#:o2c4u-m3eFnitle3d8:-054/0F8il/e2d00P4a/2g7e/2400 oPf 4a5geP4a1geoIfD4#6:38525
Administrative Oversight and the Courts, 107th Cong. , September 4, 2001, also published in 50 Drake Law Review 539 (2001-02)
Hearings on the Proposed Amendment to Federal Rule of Civil Procedure 23, held by the Committee on the Rules of Practice and Procedure, Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, November 1996
Hearings on the Proposed Long Range Plan of the Judicial Conference of the United States, held by the Committee on Long Range Planning, December 16, 1994
Hearings on the Proposed Changes in the Federal Rules of Civil Procedure, held by the Standing Committee on Rules of Practice and Procedure of the United States Judicial Conference, November 1991
Hearings on the Tentative Report of the Federal Courts Study Committee, held by members of the Committee, San Diego, California, January 29, 1990
Hearings on the Proposed Amendments to Rule 63 of the Federal Rules of Civil Procedure, held by the Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, January 1990
Hearings on the Confirmation of Robert H. Bork to be an Associate Justice of the United States Supreme Court, held by the Committee on the Judiciary, United States Senate, September 25, 1987
Hearings on Proposed Amendments to Rule 52(a) of the Federal Rules of Civil Procedure, held by the Subcommittee on Criminal Justice of the Judiciary Committee of the U.S. House of Representatives, June 26, 1985
Hearings on Proposed Amendments to Rule 68 of the Federal Rules of Civil Procedure, held by the Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, 1985
Hearings on Proposals to Amend the Rules Governing Section 2254 Cases in the United States District Courts, and Rules Governing Section 2255 Proceedings in the United States District Courts, held by the Advisory Committee to the Standing Committee on the Rules of Practice and Procedure of the United States Judicial Conference, 1984
Female Offender: 1979-80, Part 1: Hearings before the Subcommittee on Courts, Civil Liberties, and Administration of Justice of the House Committee. on Judiciary, 96th Cong. 59, October 11, 1979
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CaseC:a1s:e201-:c2v0--0c2v0-19047D3o8c-GumAOent D#:o2c4u-m3eFnitle3d8:-054/0F8il/e2d00P4a/2g7e/2401 oPf 4a5geP4a2geoIfD4#6:38626
Drug Abuse Treatment: Part 2: Hearings before the Select Committee on Narcotics Abuse and Control, House of Representatives, 96th Cong., July 25, 1978
Honors and Awards Andrew Carnegie Fellowship, 2018-2020
Honorary Doctorate of Laws, University College London, 2018
Visiting Scholar, Max Planck Institute for Procedural Law, Luxembourg, February 2018 Establishment of the Resnik-Curtis Fellowship in Public Interest Law on the 20th
anniversary of the Liman Program at Yale, 2017
Visiting Scholar, Phi Beta Kappa, 2014-2016
Recipient, Arabella Babb Mansfield Award, National Association of Women Lawyers, July 2013
Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (with Dennis E. Curtis) Selected as one of the “Best legal reads of 2011” by The Guardian Recipient, SCRIBES Award from the American Society of Legal Writers, 2012 Recipient, PROSE Award, Excellence in Social Sciences, 2012 PROSE Award, Excellence in Law & Legal Studies, 2012 Selected as an Outstanding Academic Title of the Year by Choice Magazine, January 2012 Recipient, The Order of the Coif Biennial Book Award, January 2014
New York University Alumna of the Month Award, June 2012, http://www.law.nyu.edu/alumni/almo/pastalmos/2011-12almos/judithresnikjune
Elizabeth Hurlock Beckman Award, Awarded to Outstanding Faculty in Higher Education in the Fields of Psychology or Law, Columbia University, March 2011
Migrations and Mobilities: Citizenship, Borders, and Gender, Selected as an Outstanding Academic Title of the Year by Choice Magazine, January 2011
Outstanding Scholar of the Year Award 2008, from the Fellows of the American Bar Foundation
Oral History, 2007, Women Trailblazers in the Law Project, American Bar Association Commission on Women in the Profession, deposited in the Library of Congress, 2009
Resnik, Judith resume April 7, 2020

CaseC:a1s:e201-:c2v0--0c2v0-19047D3o8c-GumAOent D#:o2c4u-m3eFnitle3d8:-054/0F8il/e2d00P4a/2g7e/2402 oPf 4a5geP4a3geoIfD4#6:38727
Convocation Speaker, Bryn Mawr College Commencement, May 2006
Member, American Philosophical Society, elected Spring 2002
Fellow, American Academy of Arts and Sciences, elected Spring 2001
Recipient, Margaret Brent Women Lawyers of Achievement Award, American Bar Association Commission on Women in the Profession, August 1998
Recipient, NYU School of Law, Legal Teaching Award, Spring 1995
Recipient, USC Associates Award for Creativity in Research, Spring 1994
Recipient, Florence K. Murray Award, National Association of Women Judges, Fall 1993
Recipient, “Big Splash Award” from the Program of Women and Men in Society (SWMS), University of Southern California, 1992
Member, Phi Kappa Phi, elected by the USC Chapter, 1991
University Scholar, University of Southern California, 1982-1983
Recipient, Student Bar Association Outstanding Faculty Award, University of Southern California Law Center, 1982-1983
Arthur Garfield Hays Fellow, 1974-1975, New York University
Education Bryn Mawr College, B.A., cum laude, 1972 New York University School of Law, J.D., cum laude, 1975
Bar Memberships Connecticut United States District Courts: District of Connecticut, Southern District of New York, Eastern District of New York United States Court of Appeals for the First, Second, Third, Fourth, Ninth and Eleventh Circuits United States Supreme Court
Selected Litigation United States Supreme Court Of counsel on Brief of Amici Curiae, Law Professors in Support of Petitioners (No. 18622), on Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit, Whole Woman’s Health, et. al. v. Texas Catholic Conference of Bishops (2018) (on the question of standing)
Resnik, Judith resume April 7, 2020

CaseC:a1s:e201-:c2v0--0c2v0-19047D3o8c-GumAOent D#:o2c4u-m3eFnitle3d8:-054/0F8il/e2d00P4a/2g7e/2403 oPf 4a5geP4a4geoIfD4#6:38828
Of counsel on Brief of Amici Curiae, Former Judges, Former Prosecutors, Former Government Officials, Law Professors, and Social Scientists in Support of Respondents (No. 17-312), United States of America v. Sanchez-Gomez 138 S.Ct. 1532 (2018) (on the use of shackles for defendants in federal court)
Of counsel on Brief of Amici Curiae, Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law in Support of Respondents (Nos. 161436 and 16-1540), Donald J. Trump, et al. v. International Refugee Assistance Project, et al, Donald J. Trump, et al. v. State of Hawaii, et al. (2017), 138 S.Ct. 2392 (2018) (on travel bans)
Of counsel on Brief of Amici Curiae, Constitutional Law, Federal Courts, Citizenship, and Remedies Scholars in Support of Respondent Luis Ramon Morales-Santana (No. 15-1191), Lynch v. Morales-Santana, 136 S.Ct. 2545 (2016) (on citizenship and gender)
Oral Argument and brief presented on behalf of the Respondent Norman Carpenter in Mohawk Industries, Inc. v. Carpenter (No. 08-678, 2009 WL 3169419) (argued October 5), 558 U.S. 100 (2009) (on appealability)
Of counsel on Brief of Law Professors as Amici Curiae, in Support of Respondent Jacob Denedo (No. 08-267, 2009 WL 418793), United States v. Denedo, 556 U.S. 904 (2009) (on jurisdiction)
Of counsel on Brief of Amici Curiae Professors of Constitutional Law and of Federal Jurisdiction, in Support of Petitioner Keith Haywood (No. 07-10374), Haywood v. Drown, 556 U.S. 729 (2009) (on state law and Section 1983)
Of counsel on Brief of Amici Curiae Professors of Constitutional Law and of the Federal Courts, in Support of the Habeas Petitioners Omar and Munaf (Nos. 07394, 06-1666), Munaf v. Geren, 553 U.S. 674 (2008) (on the scope of habeas corpus)
Of counsel on Brief of Professors of Constitutional Law and of the Federal Jurisdiction as Amici Curiae, in Support of Petitioners Boumediene et al. (Nos. 06-394, 06-1196), Boumediene v. Bush, 553 U.S. 723 (2008) (on the scope of habeas corpus)
Brief of Amici Curiae Norman Dorsen, Frank Michelman, Burt Neuborne, Judith Resnik, and David Shapiro, in Support of Petitioner Salim Ahmed Hamdan (No. 05-184), Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (on due process)
Brief of Amici Curiae of Law Professors in Support of Petitioner Paula Jones (No. 951853, 1996 WL48092), Clinton v. Jones, 520 U.S. 681 (1997) (on immunity)
Resnik, Judith resume April 7, 2020

CaseC:a1s:e201-:c2v0--0c2v0-19047D3o8c-GumAOent D#:o2c4u-m3eFnitle3d8:-054/0F8il/e2d00P4a/2g7e/2404 oPf 4a5geP4a5geoIfD4#6:38929
Oral Argument presented on behalf of the Rotary Club of Duarte: Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987) (on California public accommodations law and associational rights under the First Amendment)
United States Courts of Appeals Brief of Amici Curiae, Scholars of the Law of Prisons, the Constitution, and the Federal Courts in Support of the Appellants (No. 16-4234), Delores Henry, et al., v. Melody Hulett, et al. (7th Cir, rehearing en banc pending, 2020) (on constitutional rights in prison)
Brief of Amici Curiae of Constitutional Law and Procedure Scholars Judith Resnik and Brian Soucek in Support of Petitioner (No. 16-73801), submitted for the hearing en banc, C.J.L.G. v. Jefferson B. Sessions III (9th Cir., , 880 F.3d 1122 (2019) (on due process, right to counsel, and immigrant children)
Of counsel on Brief of Amici Curiae, Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law in Support of Plaintiffs-Appellees, (No. 17-17168), Ninth Circuit, State of Hawaii, et al., v. Donald Trump (2017) (on travel bans)
Of counsel on Brief of Amici Curiae, Professors of Federal Courts Jurisprudence, Constitutional Law, and Immigration Law in Support of Plaintiffs-Appellees, (No. 17-2231 (L), 17-2232, 17-2233, 17-2240 (Consolidated)), Fourth Circuit, International Refugee Assistance Project, et al., Iranian Alliances Across Borders, et al., Eblal Zakzok, et al., v. Donald Trump (2017) (on travel bans)
Of counsel on Brief of Amici Curiae, Constitutional Law Professors in Support of Appellees and Affirmance (No. 17-1351), International Refugee Assistance Project et al. v. Donald J. Trump, et. al. (4th Cir. 2017) (on travel bans)
Appellate Counsel In re San Juan Dupont Plaza Hotel Fire Litigation, 111 F.3d 220 (1st Cir. 1997) (on awards of fees and costs in a mass tort multi-district litigation)
In re Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation, 56 F.3d 295 (1st Cir.1995)
In re Nineteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation, 982 F.2d 603 (1st Cir. 1992)
United States District Court Of Counsel on Motion for Leave to File Declaration of Correctional Expert Rick
Raemisch as Amicus Curiae, Savino et al. v. Hodgson et al. (D. Mass., No. 1:20-
Resnik, Judith resume April 7, 2020

CaseC:a1s:e201-:c2v0--0c2v0-19047D3o8c-GumAOent D#:o2c4u-m3eFnitle3d8:-054/0F8il/e2d00P4a/2g7e/2405 oPf 4a5geP4a6geoIfD4#6:39030
cv-10617-WGY, granted March 31, 2020) (to provide the court and parties with expert information) Of Counsel on Unopposed Motion for Leave to File Amicus Curiae Statement of Correctional Expert Rick Raemisch, Coleman v. Newson (E.D. Cal, No. 2:90-CV00520-KJM-DB 2020), Plata v. Newsom (No. C01-1351 JST, N.D. Cal., granted April 2, 2020) (to provide the court and parties with expert information) Court-appointed trustee in re: MDL-926 Global Breast Implant Settlement, 173 F.Supp.2d 1381 (Judicial Panel on Multidistrict Litigation, N.D. Alabama, N.D. Texas, 1994) (overseeing the court-created “common benefit fund”) Expert appointed by the district court to assist the Special Master in McLendon v. Continental Group, Inc., 802 F.Supp. 1216 (D.N.J. 1992) (assisting the court in relationship to a settlement in an ERISA class action) Exhibits, Co-Curator The Remarkable Run of a Political Icon: Justice as a Sign of the Law. Rare Book Exhibition Gallery, Lillian Goldman Law Library, Yale Law School, September – December 2011 (with Dennis E. Curtis, Allison Tait & Michael Widener); http://library.law.yale.edu/justice-sign-law-exhibit Courts: Representing and Contesting Ideologies of the Public Sphere. Yale Art Gallery, Study Galleries, January – May 2011 (with Dennis E. Curtis) Selected Media Interview, WNPR – Connecticut Public Radio’s Where We Live, presented by John Dankosky, August 5, 2013; http://wnpr.org/post/connecticuts-criminal-justicesystem Interview, BBC Radio 4’s Law in Action, presented by Joshua Rozenberg, March 12, 2013; http://www.bbc.co.uk/programmes/b01r5ln5 Cameo in Fair Game, directed by Doug Liman, Fall 2010, and panel moderator, discussion of the film with Valerie Plame, Joseph Wilson, Emily Bazelon and Doug Liman, Paris Theatre, New York City, October 5, 2010
Resnik, Judith resume April 7, 2020

Case 1:20-cv-10738-GAO Document 38-7 Filed 04/27/20 Page 1 of 5
Exhibit G

Case 1:20-cv-10738-GAO Document 38-7 Filed 04/27/20 Page 2 of 5

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,
Petitioners,
v.
STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,
Respondents.

)

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)

)

)

)

Civil Action No. 1:20-cv-10738

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)

)

)

)

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SUPPLEMENTAL DECLARATION OF DR. JOE GOLDENSON
Pursuant to 28 U.S.C. § 1746, I, Dr. Joe Goldenson, declare as follows:
1. I previously submitted a declaration in this case based on my experience and my review of the declarations of Alexander Grinis, Michael Gordon, and Angel Soliz and the April 8, 2020 letter submitted by the United States Attorney in United States v. James Turner, No. 17-132. In that declaration, I detailed the particular danger that COVID-19 poses in carceral settings; described the central role that social distancing must play in any effort to effectively reduce the transmission of COVID-19; offered my professional opinion that FMC Devens was at high risk of a COVID-19 outbreak at its current population levels; and recommended that it must sufficiently reduce the prisoner population to allow for effective social distancing to meaningfully reduce this risk.
2. I am submitting this supplemental declaration to provide my professional opinion in response to the declaration that Dr. Megan Shaw, Clinical Director at FMC Devens, submitted in this case. Based on my review of the measures described in Dr. Shaw’s declaration, it is clear to me that although FMC Devens has instituted changes at the facility, it has not meaningfully addressed the fundamental component of social distancing. As a result, it continues to be my professional opinion that to meaningfully reduce the risk of COVID-19 infections at FMC Devens, the facility must sufficiently reduce the prisoner population to allow for effective social distancing.
3. As noted above, Dr. Shaw’s declaration describes some positive measures at FMC Devens including the distribution of masks and the provision of additional hygiene
1

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supplies. See, e.g., Shaw Decl. ¶ 31, 46-48. However, the facility’s actions are critically deficient with respect to social distancing, which the CDC describes as a “cornerstone of reducing transmission of respiratory diseases such as COVID-19.”1
4. Dr. Shaw also describes ways in which the facility has reduced contact between different housing units, including staggering recreation, mealtimes, programming and commissary for different units, and dispensing medication within each unit. Shaw Decl. ¶ 12, 31. However, although this allows for some separation between the different units, Dr. Shaw does not describe any social distancing within each unit, which she herself describes as composed of approximately 150 prisoners.
5. As a result, it is my understanding that each housing unit of approximately 150 prisoners still eat, sleep, recreate, shower and use the bathroom under conditions where it is effectively impossible to follow the CDC’s recommendation to maintain six feet of distance between themselves. “Sheltering in place” under these conditions cannot effectively mitigate the risk of COVID-19 transmission, particularly within the vulnerable population housed at FMC Devens.
6. Dr. Shaw’s declaration references “additional physical barriers, currently under construction, in order to decrease the number of inmates in each ‘shelter in place’ designated location.” Shaw Decl. ¶ 31. It is not clear to me what this means, nor do I see any accounting for the effects of any “physical barriers” on the existing mechanical ventilation systems in the facility. It is my understanding that plastic sheets are being placed within some units to divide the space. Even if this could create a barrier against COVID-19 transmission—and I am not sure how that would be possible without complete and proper sealing, as well as regular cleaning of this additional contact surface—enclosing fewer people in a smaller space will not increase their ability to maintain six feet of distance from each other. The same would be true of a more permanent wall erected within a unit; indeed, this would likely decrease the overall available space because of physical footprint of the wall itself. Unless FMC Devens undertakes construction to substantially increase the overall available space, it will not enhance the facility’s ability to allow for social distancing at current population levels.
7. In preparation for this supplemental declaration, I have also reviewed the Respondents’ omnibus response filed in this case. Its comparison of a 150-prisoner housing unit to a “closed family unit” is entirely inapt. See Resp. Br. at p. 29. No family unit is sheltering in place with scores of individuals in a single home. And if they were, they would not be
1 Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/ coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html.
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in compliance with the CDC’s recommendation to limit “mass gatherings” to ten people where, as at FMC-Devens, there is a high risk population.2
8. What is more, unlike a closed family unit, FMC-Devens is not a closed environment. Medical staff and correctional officers are entering the facility every single day. Taking their temperature and asking about their symptoms, while a good thing to do, does not preclude the possibility that they will bring the disease into the facility. Cf. Shaw Decl. ¶ 25. To the contrary, pre-symptomatic people can transmit the virus, as can what the CDC estimates to be the up to 25% of people infected with COVID-19 that remain asymptomatic throughout the entirety of their infection.3
9. Dr. Shaw describes the process by which prisoners who enter the facility are first “quarantine[d]” from the rest of the population for 14-days even if they do not have any symptoms. Shaw Decl. ¶ 26. But the officers who routinely enter the facility without any quarantine-period pose the exact same danger of transmission. Thus, there is a daily risk that these officers will unknowingly bring the disease into the facility with them, where it could spread like wildfire among the vulnerable population that is unable to practice effective social distancing.
10. My understanding is that as of April 22, 2020, FMC Devens had one confirmed positive case of COVID-19. See Resp. Br. at p. 5 n.3. In light of the incidence of asymptomatic and pre-symptomatic infections, and the fact that FMC Devens apparently does not test asymptomatic prisoners, this number is not a meaningful indicator of how many people are actually infected with COVID-19 at FMC Devens.
11. At least as important, whatever the current number of COVID-19 infections at FMCDevens may be, there is also the potential for daily ingress of the virus through the staff. Given the continued inability to effectively practice social distancing at the facility, it is therefore still my professional opinion that persons currently detained at FMC Devens are at significantly greater risk of contracting COVID-19 than if they were permitted to shelter in place in their home communities.
12. The Respondents’ contention to the contrary is entirely unsupported. It is true that “[e]very person in the United States, whether in prison or not, faces the risk of COVID19 exposure.” Resp. Br. at p. 41. But the degree of that risk varies greatly. From both a practical and epidemiological standpoint, sheltering at home with a handful of people in a space without daily staff shift changes is qualitatively different from living in a
2 Centers for Disease Control and Prevention, Interim Guidance for Coronavirus Disease 2019 for Event Planners, https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/massgatherings-ready-for-covid-19.html. 3 Apoorva Mandavilli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. Times (Mar. 31, 2020), https://www.nytimes.com/2020/03/31/health/coronavirus-asymptomatictransmission.html.
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congregant environment with 150 other people and staff that circulate between the facility and the community every single day. 13. For that reason, taking into account all of the measures articulated in Dr. Shaw’s declaration, it is still my professional opinion that FMC Devens is at high risk of a COVID-19 outbreak at its current population levels. As a result, taking into account all of the measures articulated in Dr. Shaw’s declaration, my public health recommendation remains that in order to meaningfully decrease the risk of COVID-19 infections at FMC Devens, the facility must reduce the prisoner population sufficiently to ensure social distancing and permit personal hygiene in compliance with CDC guidelines. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 26th day of April 2020. ________________________ Joe Goldenson, MD
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 Case 1:20-cv-10738-GAO Document 48 Filed 05/12/20 Page 1 of 1

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,

Petitioners, v.

Civil Action No. 20-cv-10738-GAO

STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,

Respondents.

RESPONDENTS’ NOTICE REGARDING PETITIONER ALEXANDER GRINIS

Respondents in the above-captioned action notify this Court that on May 4, 2020, Petitioner

Alexander Grinis (“Grinis”) was released from FMC Devens on May 5, 2020, pursuant to an order

entered in response to his emergency motion for modification of his sentence and for

compassionate release. United States v. Grinis, Criminal Action No. 18-10206-NMG (D. Mass.

May 4, 2020), ECF No. 162, attached hereto.

Respectfully submitted,

ANDREW E. LELLING United States Attorney

Dated: May 12, 2020

By: /s/ Eve A. Piemonte Eve A. Piemonte Assistant United States Attorney United States Attorney’s Office John J. Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3369 Eve.Piemonte@usdoj.gov

 
 Case 1:20-cv-10738-GAO Document 53 Filed 05/27/20 Page 1 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,
Petitioners, v.
STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,
Respondents.

No. 20-cv-10738-GAO

MEMORANDUM IN SUPPORT OF PETITIONERS’ MOTION TO RECONSIDER THE COURT’S MAY 8, 2020 DECISION DENYING PRELIMINARY RELIEF
In light of new evidence, this Court should reconsider its denial of Petitioners’ request for emergency injunctive relief. The Court’s May 8 order expressly relied on steps supposedly taken by the Bureau of Prisons, including its receipt of the Attorney General’s instructions to transfer individuals to home confinement, as evidence that Respondents had not been “actionably deliberately indifferent to the health risks of inmates” at FMC Devens. D.E. 45 at 5. Since then, however, the prison’s warden has admitted under oath that Respondents are deliberately disregarding health risks to prisoners. In fact, contrary to the Attorney General’s instructions, deliberately disregarding health risks to prisoners is Respondents’ policy.
Specifically, in United States v. Pena, No. 16-CR-10236-MLW, Respondent Warden Stephen Spaulding has testified as follows:
 BOP policy actually prohibits considering a prisoner’s COVID-19 vulnerability when evaluating whether the prisoner should be granted compassionate release during the COVID-19 pandemic;
 BOP policy also prohibits transferring prisoners to home confinement during the COVID-19 pandemic, regardless of their vulnerability to
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COVID-19, until they have served at least 50% of their sentences or at least 25% of their sentences with under 18 months left to serve;  “[E]veryone would be safer if the population [of FMC Devens] were reduced to create greater social distancing”; and  Thus far, FMC Devens has “been both fortunate and somewhat lucky” to have escaped a more serious confirmed outbreak. Meanwhile, likely due to the alarming policies to which Respondent Spaulding has testified, another fact on which this Court relied is no longer true, namely, that “only one inmate at FMC Devens had been diagnosed with the COVID-19 virus.” D.E. 45 at 5. In fact, the infection is spreading: FMC Devens now has confirmed 24 open prisoner cases, 2 open staff cases, and 1 prisoner death. Respondents’ rigid adherence to arbitrary and irrational policies, which do not comply with the recommendations of public health experts or guidance from the DOJ, fails to address the known and growing risk of COVID-19. For Respondents to stay the course at FMC Devens, in the face of this new evidence and the unfolding tragedy, is classic deliberate indifference.
BACKGROUND Fearing for their health and safety in the face of the COVID-19 pandemic, Petitioners Alexander Grinis, Michael Gordon, and Angel Soliz1 filed a motion for a temporary restraining order and preliminary injunctive relief on April 15, asking this Court to order Respondents to utilize all available tools to reduce the population at FMC Devens in sufficient numbers and with sufficient speed to permit effective social distancing before an outbreak of deadly infections. D.E. 3, 4. Petitioners argued that Respondents’ failure to reduce the population where they had
1 On May 12, Petitioner moved to substitute Pablo Rivera, a prisoner in the FMC Devens “Camp,” as a named petitioner and proposed class representative, D.E. 49, in place of Grinis, who was released from the Camp on May 5 pursuant to a decision granting compassionate release in his underlying criminal case. That motion is still pending.
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the authority to do so and where social distancing—a cornerstone of COVID-19 prevention— was impossible at current population levels, constituted deliberate indifference in violation of the Eighth Amendment. D.E. 4 at 11-17; D.E. 38 at 16-19.
On May 8, this Court denied the motion, concluding that Petitioners had failed to establish a likelihood of success on their claim that Respondents were deliberately indifferent. D.E. 45 at 3-4. Based on the government’s submissions, this Court made two factual findings. First, this Court concluded Respondents had established an adequate plan to respond to COVID19, including implementation of their home confinement authority, as the Attorney General instructed. Id. at 4-5. Second, this Court accepted Respondents’ assurance that their plan was working because the “government reported at the hearing . . . only one inmate at FMC Devens had been diagnosed with the COVID-19 virus” and “the BOP website indicates no additional cases identified at FMC Devens since then.” Id. at 5.
Now, however, new evidence that was previously unavailable to both Petitioners and this Court undermines both factual predicates of the May 8 decision and establishes that immediate judicial action is warranted.
Respondents previously asserted that BOP’s response to the COVID-19 pandemic included “immediately reviewing all inmates who have COVID-19 risk factors . . . to determine which inmates are suitable for home confinement” by considering “the totality of circumstances” including “the age and vulnerability of the inmate to COVID-19.” D.E. 36-1 at 2-3. But on May 13, Respondent Spaulding provided sworn testimony in United States v. Pena, No. 16-CR10236-MLW (D. Mass. May 13, 2020), concerning a pending individual compassionate release motion [hereinafter May 13 Transcript] [attached as Exhibit 1]. Respondent Spaulding unequivocally stated that (1) COVID-19 has no bearing on FMC Devens’ compassionate release
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decisions and (2) FMC Devens will not review the need for any prisoner to be transferred to home confinement in light of COVID-19, regardless of the prisoner’s age or medical vulnerability, until the prisoner has served at least 50% of his sentence or at least 25% of his sentence with under 18 months left to serve. See, e.g., May 13 Transcript at 42-43, 66-67. As Judge Wolf found, this policy is “utterly inconsistent” with the Attorney General’s direction to maximize the use of home confinement as a tool combat COVID-19, and it necessarily means “there are at-risk inmates who are not being individually assessed for release. And some of them may get very sick. Some of them may die.” Id. at 127.
Indeed, the newest BOP data demonstrate exactly that. Respondents’ earlier submissions emphasized that there was only one confirmed prisoner case at FMC Devens. D.E. 5 and n.3. As of May 26, however, the BOP website reports 24 confirmed prisoners cases, along with 1 prisoner death and 2 confirmed staff cases at the facility.2 While tragic, it is not surprising that the BOP’s policy that does not consider COVID-19 risks has not effectively addressed COVID19 risks. Respondent Spaulding conceded that FMC Devens may have “been both fortunate and somewhat lucky” through mid-April, when the number of confirmed COVID-19 infections could be counted on one hand. May 13 Transcript at 90. It was deliberate indifference to rely on “luck” to save lives during the COVID-19 pandemic; that indifference is more pronounced now that the luck has run out.
In light of this new evidence, Petitioners ask this Court to reconsider its May 8 decision under Federal Rules of Civil Procedure 59(e) and to grant Petitioners’ previously requested preliminary injunctive relief, consistent with the injunctive relief ordered by other courts in Savino v. Souza, No. 20-10617, 2020 WL 1703844 (D. Mass. Apr. 8, 2020); Gomes v. Dep’t of
2 BOP.gov/coronavirus (last visited May 27, 2020 at 11:12 am). 4

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Homeland Security, No. 20-cv-453, 2020 WL 2113642 (D. N.H. May 4, 2020); Wilson v. Williams, No. 4:20-cv-00794, 2020 WL 1940882 (N.D. Ohio, Apr. 22, 2020), and MartinezBrooks v. Easter, No. 3:20-cv-00569, 2020 WL 2405350 (D. Conn. May 12, 2020).
ARGUMENT This Court has “‘substantial discretion and broad authority’ to grant a motion for reconsideration pursuant to Fed. R. Civ. P. 59(e).” CrossFit, Inc. v. Mustapha, 162 F. Supp. 3d 46, 51 n.5 (D. Mass. 2016) (quoting Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 81-82 (1st Cir. 2008)). Under Rule 59(e), a “motion for reconsideration will be granted upon a showing of . . . new evidence.” Id.3 Reconsideration is warranted here because Respondent Spaulding’s May 13 testimony about BOP’s home confinement policy and the number of confirmed positive cases at FMC-Devens as of May 26, constitute new evidence that proves preliminary injunctive relief is appropriate, before more people—prisoners at FMC Devens, staff, and members of the surrounding community—get sick and die. I. New evidence demonstrates that Respondents have failed to use compassionate
release and home confinement authority appropriately because they refuse to take COVID-19 into account. When Petitioners demanded population reductions at FMC Devens to permit social distancing, Respondents responded that they were implementing “numerous measures to fight the introduction and spread of COVID-19 within its facilities,” D.E. 32 at 4-5, including the use of compassionate release and home confinement in response to the pandemic, id. at 13-20, 41. In her April 24 declaration, Amber Bourke, the Case Management Coordinator at FMC Devens, stated that, “pursuant to the Attorney General’s directives in light of the COVID-19 pandemic,” the “BOP began immediately reviewing all inmates who have COVID-19 risk factors, as
3 Rule 59(e) motion must be brought no later than 28 days after the entry of judgment. Fed. R. Civ. P. 59(e). This motion was timely filed 18 days after this Court’s May 8, 2020 order.
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described by the Centers for Disease Control and Prevention (CDC), to determine which inmates are suitable for home confinement” and “is prioritizing transfers to home confinement of all suitable inmates as an appropriate response to the COVID-19 pandemic.” D.E. 36-1 at 2. Recognizing that the Attorney General’s April 3 memo called on the BOP to review “a much broader pool of at-risk inmates – not only those who were eligible for transfer prior to the Attorney General exercising his authority under the CARES Act,” id. at 4, Bourke added that “BOP Case Management staff are urgently reviewing all inmates to determine which ones meet the criteria established by the Attorney General,” id. at 6. To make this assessment, Bourke attested that “BOP considers the totality of circumstances for each individual inmate,” including “[t]he age and vulnerability of the inmate to COVID-19, in accordance with the CDC guidelines.” Id. at 2-3.
Respondent Spaulding’s May 13 testimony makes clear, however, that Respondents do not consider COVID-19 in reviewing prisoners for compassionate release, and will not review any prisoner for transfer to home confinement in light of COVID-19 until the prisoner satisfies an arbitrary time-served threshold absent from, and in conflict with, the Attorney General’s directives.
As Respondent Spaulding testified, “I don’t consider COVID-19 as part of the criteria for reduction of sentence or compassionate release.” May 13 Transcript at 43; see also id. at 28-29 (confirming BOP’s compassionate release program statement has not been revised since the pandemic began); id. at 31 (confirming that compassionate release request reviewed “based on the same criteria that [he] would have used before the pandemic”); id. at 42-43 (confirming the pandemic is not considered in any prisoner’s request for compassionate release). His testimony similarly revealed that COVID-19 vulnerability is not a salient factor in decisions regarding
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transfers to home confinement. “That is because the Bureau of Prisons has directed its wardens not to evaluate inmates for release under the Attorney General’s criteria unless they have served 50 percent or more of their sentence or have served 25 percent or more of their sentence and have 18 months or less to serve.” United States v. Pena, No. 16-CR-10236-MLW (D. Mass. May 15, 2020) [hereinafter May 15 Transcript] [attached as Exhibit 2] at 19; see also May 13 Transcript at 66-67. “Despite the directions from the Attorney General,” Respondents will not consider a prisoner for home confinement, irrespective of COVID-19 vulnerability, until the prisoner satisfies one of those arbitrary time-served thresholds. May 15 Transcript at 19. As Respondent Spaulding emphasized, “the Bureau has made a firm stance on this.” May 13 Transcript at 91; see also May 15 Transcript at 6-7, 19.4 Illustrating the strictness of the BOP’s policy, Respondent Spaulding testified the BOP would not even consider for home confinement a 70-year old prisoner who met all of the Attorney General’s criteria—including “outstanding” prison conduct, May 13 Transcript at 85, and “the best possible [risk assessment] score for PATTERN,” id. at 86—because he “does not meet the criteria that the Bureau pushed down to the wardens for the 50 percent or 18 months/25 percent,” id. at 89.
4 As Judge Wolf found, “Warden Spaulding testified that an exception to these eligibility requirements, these percentages, can be made only if Bureau of Prisons central office in Washington D.C. orders a warden to evaluate for home confinement an inmate who does not meet the criteria.” May 15 Transcript at 19. For example, the central office apparently made such an exception for President Trump’s former campaign manager Paul Manafort. See, e.g., Eileen Sullivan, Paul Manafort, Trump’s Ex-Campaign Manager, Released to Home Confinement, N.Y. Times (May 13, 2020), https://www.nytimes.com/2020/05/13/us/politics/paul-manafort-releasedcoronavirus.html.
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II. New evidence demonstrates that Respondents’ actions have failed to prevent a deadly outbreak of COVID-19 at FMC Devens.
Respondents previously told this Court that, “as a result” of their efforts in response to the pandemic, there was only one confirmed prisoner at FMC Devens as of April 22. D.E. at 4-5 and n. 3. This claim implied, and this Court’s May 8 order seemed to accept, that Respondents’ plan was working to prevent the spread of COVID-19 at FMC Devens. Id.
New numbers indicate otherwise. The web site BOP.gov now reports 24 confirmedpositive prisoners, along with 1 prisoner death and 2 confirmed-positive staff members at the facility as of May 26.5 At present, FMC-Devens has the 15th highest outbreak out of 122 BOP facilities.6 As Judge Wolf held on May 15—when there were still no confirmed positive prisoners at the FMC Devens camp—“it is probable that” the facility’s “good luck will not continue and an inmate at camp will become infected,” at which point there is “significant potential that the virus will spread.” May 15 Transcript at 15; see also id. at 16 (noting “the risk of any infection spreading at the camp is significant”).
The BOP’s recent track record in these circumstances is not good. On April 30, another federal medical center—FMC Lexington—had 5 confirmed-positive prisoners. By May 3, it was up to 32; on May 6, it was 57; and by May 9, it was 136. As of May 26, FMC Lexington had 213 confirmed-positive prisoners.7 Respondents can no longer suggest that they have kept COVID-19 out of FMC Devens. And given the alarming trajectory at other similar BOP medical centers, it would be deliberately indifferent—and profoundly dangerous—to assume that the situation will not worsen. The need to stop the spread of COVID-19 at FMC Devens is urgent.
5 BOP.gov/coronavirus (last visited May 27, 2020 at 11:12 am). 6 Id. 7 Id.
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III. In light of this new evidence, this Court should grant Petitioners’ motion for reconsideration of its May 8 decision and order the requested preliminary injunctive relief.
The new evidence described above establishes Petitioners’ likelihood of success in proving Respondents’ deliberate indifference to a serious risk in violation of the Eighth Amendment. See also D.E. 4 at 11-17; D.E. 38 at 16-19. Because Petitioners have also demonstrated irreparable harm and that the balance of equities and the public interest favor relief, see D.E. 4 at 9-11, 17-20; D.E. 38 at 19-22, this Court should grant Petitioners’ motion for reconsideration of its May 8 decision and order preliminary injunctive relief.
Respondent Spaulding admits that “we have the sickest inmates from around the country that come to us” at FMC Devens. May 13 Transcript at 104. He concedes “there’s a degree of risk” that staff members “may be [a]symptomatic but bring the virus into the camp,” id. at 90-91; see also id. at 108. And he agrees that “at FMC Devens, everyone would be safer if the population were reduced to create greater social distancing”. Id. at 64; see also id. at 63 (agreeing that “reducing the population at FMC Devens makes everyone safer). For good reason. “Distancing has been, and continues to be, the institution’s best hope for sparing medicallyvulnerable inmates from serious medical consequences, and potential death, associated with COVID-19.” Wilson v. Williams, No. 4:20-cv-00794, at 3 (N.D. Ohio May 19, 2020).
Under these circumstances, it is constitutionally insufficient for Respondents to refuse to use the authority that Congress has granted, in the ways that the Attorney General has directed, to decrease the population at FMC Devens and, instead, “knock on wood” that positive cases do not enter a facility. May 13 Transcript at 79. As Judge Wolf explained, “it’s utterly illogical” for the BOP to “add criteria inconsistent” with the new criteria set the Attorney General established for home confinement in light of the pandemic. May 13 Transcript at 83; see also Wilson, No. 4:20-cv-00794, at 7 (“By thumbing their nose at their authority to authorize home confinement,
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Respondents threaten staff and they threaten low security inmates.”); Martinez-Brooks, No. 3:20CV-00569, 2020 WL 2405350, at *23 (“Especially in light of the Barr memos, it is unimaginable that the Respondents would not be taking COVID-19 medical risk factors—some of which, by some estimates, gives an inmate a better than 10% chance of dying should the inmate contract COVID-19—into consideration in reviewing inmates for home confinement.”).
Yet as Respondent Spaulding’s testimony now makes clear, that is exactly what FMC Devens has done. As a result, “Petitioners have shown a likelihood of success on the merits of their claim that the Warden’s inadequate implementation of the home confinement authority in the CARES Act constitutes ‘deliberate indifference’ under the Eighth Amendment.” MartinezBrooks, 2020 WL 2405350, at *23; see also Wilson, No. 4:20-cv-00794, at 7 (granting motion to enforce preliminary injunction and ordering Respondents to “make full use of the home confinement authority beyond the paltry grants of home confinement it has already issued”); Cameron v. Bouchard, No. 20-10949, at *61-62 (E.D. Mich. May 21, 2020) (granting preliminary injunction after concluding “Defendants’ failure to make prompter, broader, and more meaningful use of their authority to implement what appears to be the only solution capable of adequately protecting medically-vulnerable inmates may constitute deliberate indifference under the Eighth Amendment”).
CONCLUSION Petitioners respectfully request that this Court grant their motion for reconsideration of its May 8 decision and, further, grant the requested preliminary injunctive relief.
[signatures on next page]
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Case 1:20-cv-10738-GAO Document 53 Filed 05/27/20 Page 11 of 11

Respectfully submitted,
MICHAEL GORDON, ANGEL SOLIZ, and others similarly situated,
By their attorneys,
William W. Fick, BBO# 650562 Daniel N. Marx, BBO# 674523 Amy Barsky, BBO# 601111 FICK & MARX LLP 24 Federal Street, 4th Floor Boston, MA 02210 857-321-8360 wfick@fickmarx.com dmarx@fickmarx.com abarsky@fickmarx.com

/s/ Jessie J. Rossman Matthew R. Segal, BBO# 654489 Jessie Rossman, BBO# 670685 ACLU FOUNDATION OF MASSACHUSETTS, INC. 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org jrossman@aclum.org

CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on May 27, 2020.
/s/ Jessie J. Rossman

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 Case 1:20-cv-10738-GAO Document 59 Filed 06/10/20 Page 1 of 3

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated,

Petitioners, v.

Civil Action No. 20-cv-10738-GAO

STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,

Respondents.

RESPONDENTS’ NOTICE OF SUPPLEMENTAL AUTHORITY

Respondents in the above-captioned action respectfully submit the following supplemental

persuasive authority for this Court’s consideration of the pending motions now before this Court:

1. Wilson v. Williams, No. 20-3447 (6th Cir. June 9, 2020), Order, ECF No. 54-1, attached hereto.

Petitioners filed a petition pursuant to 28 U.S.C. § 2241 to obtain release from custody to

limit their exposure to COVID-19. Wilson, ECF No. 54-1, at 21. The appeals court held that

jurisdiction to consider petitioners’ claims under § 2241 was proper, although the statute precluded

some of the relief petitioners sought. Id. The court found that the district court erred in concluded that petitioners showed a likelihood of success on the merits of their Eighth Amendment claim,

and found that the court abused its discretion in granting a preliminary injunction. Id., at 2-3.

1 Page numbers are to the court’s decision, rather than the ECF filing.

Case 1:20-cv-10738-GAO Document 59 Filed 06/10/20 Page 2 of 3
In a case where 59 inmates and 46 staff members tested positive for COVID-19, and there were six inmate deaths, the appeals court found that the Bureau of Prisons took preventative measures to reduce the risk of COVID-19 spread at the institution (FCI Elkton), including efforts to expand testing, which the court found “demonstrate[d] the opposition of a disregard of a serious health risk.” Id., at 16-17. Analyzing cases in the Sixth, Eleventh, and Fifth Circuits, the court concluded that the actions taken by prison officials in responding to the pandemic demonstrated a “reasonable response.” Id., at 18-19. Indeed, as the court acknowledged, in finding no likelihood of success on petitioners’ Eighth Amendment claim “our precedents do not require that prison officials take every possible step to address a serious risk of harm.” Id., at 21 (case citations omitted).
2. Chunn v. Edge, No. 20-cv-01590-RPK-RLM, Memorandum and Order, (E.D.N.Y. June 9, 2020), ECF No. 112, attached hereto.
In Chunn, the petitioners challenged the conditions at Metropolitan Detention Center (“MDC”) Brooklyn’s response to the COVID-19 pandemic, claiming violation of the Eighth Amendment. Petitioners sought a preliminary injunction that would release all MDC inmates whose age or medical condition placed them at heightened risk from the virus. Chunn, ECF No. 112, at 1.
In denying petitioners’ request for injunctive relief, the court concluded that petitioners failed to show “a clear likelihood that MDC officials have acted with deliberate indifference to substantial risks in responding to COVID-19. Rather than being indifferent to the virus, MDC officials have recognized COVID-19 as a serious threat and responded aggressively.” Id., at 2. These measures included “massively restricting movement within the facility, enhancing sanitation protocols, and creating quarantine and isolation units.” Id., at 53; 56 (citing “dozens of measures” imposed by MDC). Noting some deficiencies in MDC’s implementation of CDC
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guidelines, the court found “the facility’s aggressive response to a public health emergency with no preexisting playbook belies the suggestion that these apparent deficiencies are the product of deliberate indifference on the part of prison officials.” Id., at 2, 59 (“Shortfalls in the immediate implementation of guidelines this complex and resource-intensive do not suggest knowing disregard of a substantial risk of harm, rather than negligent error.”).
Accordingly, Respondents respectfully request that the Court consider this supplemental authority and deny Petitioners’ motion for reconsideration for the reasons set forth, supra, and as set forth in Respondents’ opposition to the motion.
Respectfully submitted, ANDREW E. LELLING United States Attorney

Dated: June 10, 2020

By: /s/ Eve A. Piemonte Eve A. Piemonte Assistant United States Attorney United States Attorney’s Office John J. Moakley U.S. Courthouse 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617) 748-3369 Eve.Piemonte@usdoj.gov

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 Case 1:20-cv-10738-GAO Document 60 Filed 06/11/20 Page 1 of 9

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 20-10738-GAO
ALEXANDER GRINIS, MICHAEL GORDON, and ANGEL SOLIZ, on behalf of themselves and those similarly situated, Petitioners,
v.
STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons,
in their official capacities, Respondents.

O’TOOLE, S.D.J.

OPINION AND ORDER June 11, 2020

Invoking 28 U.S.C. § 2241, the petitioners ask the Court to grant their request for the

issuance of a writ of habeas corpus. Since at least the time of Magna Carta, the Great Writ has

been available to free a petitioner from unlawful confinement by the sovereign. See Neil Douglas

McFeeley, The Historical Development of Habeas Corpus, 30 SMU L. Rev. 585, 585 (1976). The

writ is available when the petitioner “is in custody in violation of the Constitution . . . of the United

States.” 28 U.S.C. § 2241(c)(3). The petitioners1 allege that they and other inmates committed at the United States Bureau

of Prisons (“BOP”) Federal Medical Center Devens (“FMC Devens”) in Ayer, Massachusetts, are

held in conditions placing them in “maximum danger from COVID-19.” (Pet. for Writ of Habeas

Corpus Under § 28 U.S.C. 2241 & Compl. for Injunctive & Declaratory Relief ¶ 10 (dkt. no. 1).)

1 Alexander Grinis is no longer in custody at FMC Devens. Since the filing of the petition, he has been released pursuant to a grant of compassionate release under 18 U.S.C. § 3582(c) by the judge who imposed his original sentence.

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They assert that the respondents, who are the warden at FMC Devens and the director of the BOP, “have demonstrated deliberate indifference to the severe and obvious risk of rampant infection and death that COVID-19 poses to FMC Devens prisoners, in violation of the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment.” (Id. ¶ 12.) The petition alleges that the respondents “have failed to provide prisoners the ability to physically distance by ordering compassionate release and/or implementing immediate transfers to home confinement with sufficient speed or in sufficient numbers” in order to make “effective social distancing” possible. (Id. ¶ 13.) In brief, the petitioners contend that the prison conditions that respondents have permitted to exist amount to deliberate indifference to the good health and safety of all inmates, themselves included, and thus amount to unconstitutional imprisonment. The principal relief the petitioners seek is an order requiring the respondents to release a sufficient number of inmates through either compassionate release or transfer to home confinement to “permit effective social distancing.” (Id. ¶ 123.)
The petition is asserted as a class action under Federal Rule of Civil Procedure 23. It proposes “a class of all persons in custody at FMC Devens,” which is said to include two “subclasses”: “all persons who, according to applicable [Centers for Disease Control and Prevention] guidelines, are at high risk of injury or death from COVID-19, due to their advanced age or medical condition(s)” and also “all persons who are appropriate candidates for early transfer to home confinement.” (Id. ¶ 105.) The petitioners have moved for class certification and the respondents have opposed it.
Prior to the question of class certification, however, is the taxonomic question of how properly to understand the nature of the petitioners’ claims. They insist that they seek the writ (or writs?) of habeas corpus because the remedy they seek is the discharge of imprisoned bodies from
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custody. The respondents say that what the petitioners seek in substance is a “prisoner release order” as defined by the Prison Litigation Reform Act (“PLRA”), codified at 18 U.S.C. § 3626, to ameliorate allegedly unconstitutional conditions of confinement. The respondents are right.
The proper categorization of a claim is to be determined by its substance, not simply by the nomenclature chosen to identify it. “[A] pleading will be judged by the quality of its substance rather than according to its form or label.” Rodriguez v. Municipality of San Juan, 659 F.3d 168, 173 (1st Cir. 2011) (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1286 (3d ed. 2004)).
The core remedy provided by the writ of habeas corpus is release from unlawful custody. It is clear, not only from the language of [§ 2241(c)(3)] . . . , but also from the common-law history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). That is not what the petitioners here say they want. What they say they want is for the FMC Devens inmate population to be reduced sufficiently to promote feasible “social distancing,” and while that may include releasing the petitioners themselves, it need not necessarily occur; it would be enough if a number of other prisoners were released to get to a satisfactory overall population level. A proper § 2241 habeas petition asks that the petitioner himself be afforded direct relief in the form of release from existing custody. Some years ago, the Supreme Court left open “the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement, as distinct from the fact or length of the confinement itself.” Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979); Preiser, 411 U.S. at 499–500 (“When a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie
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to remove the restraints making the custody illegal. But we need not in this case explore the
appropriate limits of habeas corpus as an alternative remedy to a proper action under § 1983.”
(citation and footnote omitted)). “[M]ore recently, the Supreme Court noted that it has ‘never
followed [that] speculation in [Preiser].’” Brian R. Means, Federal Habeas Manual § 1:29 (May
2020) (quoting Muhammad v. Close, 540 U.S. 749, 751 n.1 (2004) (per curiam)).2
The petitioners have made it quite clear they do not necessarily seek direct release from
custody for themselves. The remedy they do seek—that some yet to be determined number of yet
to be identified inmates should be released—is not a proper function of the writ.
2 Circuit courts have been divided over the question:
A majority of circuits have concluded that constitutional challenges to prison decisions that would not necessarily affect the length of confinement, such as claims involving conditions of confinement—transfers to administrative segregation, exclusion from prison programs, and suspension of privileges—must be brought as a civil rights action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics or under the Administrative Procedure Act. . . . But other circuits have held that conditions-of-confinement claims may be brought in the habeas corpus context.
Brian R. Means, Postconviction Remedies § 5:7 (July 2019) (footnotes omitted). In dictum that is decidedly obiter, the First Circuit has speculated that “[i]f the conditions of incarceration raise Eighth Amendment concerns, habeas corpus is available,” United States v. DeLeon, 444 F.3d 41, 59 (1st Cir. 2006), but that question was neither presented nor decided in that case.
The First Circuit has held that in certain circumstances a habeas petition can be the appropriate means for a prisoner to seek reduction in the restrictiveness of his custodial condition. See González-Fuentes v. Molina, 607 F.3d 864, 873 (1st Cir. 2010); Brennan v. Cunningham, 813 F.2d 1, 4 (1st Cir. 1987). Superficially, those cases could broadly be thought of as challenges to those petitioners’ “conditions of confinement,” but not in the same sense as that term is used by the petitioners in this case and not in a way that would implicate the PLRA. In González-Fuentes and Brennan, the petitioners claimed that they had been removed from less restrictive conditions of confinement outside of prison and unlawfully returned to confinement in prison; they sought habeas relief in the form of release from prison back to their previous less restrictive status. González-Fuentes, 607 F.3d at 873; Brennan, 813 F.2d at 1, 4. The petitioners here present no such claim; there is no challenge to the lawfulness of their present sentences of imprisonment under their respective judgments of conviction.
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What the petitioners seek in actual substance is, as noted above, a “prisoner release order,”
defined by the PLRA:
[T]he term “prisoner release order” includes any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison . . . .
18 U.S.C. § 3626(g)(4). “[R]educing or limiting the prison population” at FMC Devens is exactly
the chief relief the petitioners pray for. That makes their action a “civil action with respect to prison
conditions” as defined by the PLRA:
[T]he term “civil action with respect to prison conditions” means any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison . . . .
Id. § 3626(g)(2).
An illustrative case is Brown v. Plata, 563 U.S. 493 (2011). In that case, the Supreme Court
upheld lower courts’ orders requiring the California prison system to reduce overcrowding that
was so severe that it prevented inmates from having adequate access to medical care to a degree
that it amounted to cruel and unusual punishment in violation of the Eighth Amendment’s
prohibition. The causes of action that justified those orders were civil rights suits prosecuted and
adjudicated in conformance with the PLRA. Similar claims are available to the petitioners here
under the doctrine of Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
The PLRA, however, imposes a precondition to the entry of a “prisoner release order”:
In any civil action with respect to prison conditions, 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.
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18 U.S.C. § 3626(a)(3)(A). This provision plainly establishes two factual conditions precedent to a “prisoner release order.” It cannot be ignored simply because a judge thinks, however conscientiously, that this would be a good time to ignore it.
Indeed, to deter that eventuality, Congress restricted the issuance of a “prisoner release order” by imposing both an important procedural requirement and a substantive condition to such an order. The procedural requirement limits the power to issue such an order to a specially constituted three-judge court. Id. § 3626(A)(3)(B). The substantive condition is that the three-judge court must conclude, by clear and convincing evidence, that
(i) crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will remedy the violation of the Federal right. Id. § 3626(A)(3)(E). Given the urgency that the petitioners apprehend, it is not surprising that they want to avoid having to comply with such procedural and substantive restrictions, and they contend they have found a way to do that. The PLRA’s statutory definition of “civil action with respect to prison conditions,” quoted in part above, has a carve out. A “civil action with respect to prison conditions” does not include habeas corpus proceedings challenging “the fact or duration of confinement in prison.” Id. § 3626(g)(2). Hence the petitioners’ framing of their pleading here. They contend that the “fact . . . of confinement” means effectively all the pertinent facts about a prisoner’s incarceration, including, for example, overcrowding. And “duration” means that any order to shorten a sentence of incarceration also is excepted from PLRA’s strictures if it is issued in response to a habeas petition. The substantive problem with those understandings of the habeas exception is that they are so broad as to provide an easy evasion of the requirements of the PLRA, and that cannot be a correct understanding of the statutory words. A habeas petition always has something to do with the fact and duration of imprisonment, but interpreting the exception so
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broadly as to authorize use of the writ to cover the sort of claims advanced in this case would render the PLRA’s limiting conditions and requirements nugatory. Why would an inmate file a civil rights action under the Bivens doctrine or under 42 U.S.C. § 1983 that would be subject to the conditions and restrictions of the PLRA when he could avoid those conditions and restrictions wholesale simply by styling his action as a “habeas corpus proceeding[] challenging the fact or duration of confinement in prison”? Poof! The PLRA disappears.
It is a familiar canon of construction to construe the words of a statute to give harmonious effect to all its parts. See Hibbs v. Winn, 542 U.S. 88, 101 (2004). The petitioners’ proposed understanding of the habeas exception to the definition of “civil action with respect to prison conditions” does the opposite; it would read out all the PLRA’s prerequisite and restrictive provisions so long as the court pleading is styled as “habeas petition” rather than “complaint.”
Properly understood, the “fact . . . of imprisonment” simply means that the petitioner is imprisoned, because the traditional writ is an available remedy to a person who is actually in some recognized form of custody. The petitioners here erroneously choose to read it as if the language were plural: the facts of imprisonment, as in how or under what conditions he is imprisoned. Even if that were a plausible reading of the words by themselves, for the reasons just discussed it should not be a preferred one. Similarly, the “duration of imprisonment” is properly understood as referring to a traditional habeas remedy for circumstances where the prisoner has been kept in custody beyond the authorized term. The habeas carve-out in the definition of a “civil action with respect to prison conditions” is purposefully narrow.
Finally, there is the curious circumstance that the petitioners might not, in the end, be entitled themselves to habeas relief but nevertheless purport to bring the claim on behalf of other inmates who would be. There is nothing in the long history of the writ that would support
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permitting prisoner A to seek the writ to effect prisoner B’s discharge from custody, but that is an outcome that the petitioners expressly propose. And this brings us back to the class certification motion.
It would be unusual, but it is not theoretically impossible, for there to be a class action for habeas relief for a large number of prisoners whose sentences of confinement, for example, were all voidable for an identical reason, such as the invalidity of a common statute of conviction. But at least in such a case, the named representative petitioners would have to show that they themselves were entitled to the writ on the same basis as the members of the proposed class. By their own admission, the named petitioners here might not be. That is itself enough to end the question of class certification with them as class representatives.
But the implications of the foregoing discussion go further than denying class certification. The two remaining petitioners have not challenged the fact or duration of their own confinement at FMC Devens, and they may not be able to do so credibly. In any event, they themselves say they do not necessarily want to be released, a very odd thing for habeas petitioners to say. This action is thus revealed as a false flag operation. Flying the banner of habeas corpus, it is nevertheless in substance a “civil action with respect to prison conditions” that seeks the entry of a “prisoner release order” as those terms are defined in the PLRA.
Consequently, for the reasons discussed herein, the several pending motions—the Motion for Class Certification or Representative Habeas Action (dkt. no. 5), the Motion to Consolidate Cases (dkt. no. 44), the Motion to Substitute Named Petitioner (dkt. no. 49), and the Motion to Reconsider (dkt. no. 52) —are all DENIED.
Section 3626(a)(3)(C) affords the petitioners the opportunity to request relief properly available under the PLRA by filing “materials sufficient to demonstrate that the requirements of
8

Case 1:20-cv-10738-GAO Document 60 Filed 06/11/20 Page 9 of 9 subparagraph (A) have been met.” If the petitioners wish to do so, they must file such materials within seven days of the entry of this Opinion and Order. If they do not do so, this action will be DISMISSED.3
It is SO ORDERED. /s/ George A. O’Toole, Jr. Senior United States District Judge
3 The petition purports also to assert claims under the All Writs Act and the Declaratory Judgment Act, but the petitioners have not advanced any developed argument as to those claims.
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 Case 1:20-cv-10738-GAO Document 61 Filed 06/18/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

MICHAEL GORDON and ANGEL SOLIZ, on behalf of themselves and those similarly situated,
Petitioners,
v.
STEPHEN SPAULDING, Warden of Federal Medical Center Devens, and MICHAEL CARVAJAL, Director of the Federal Bureau of Prisons, in their official capacities,
Respondents.

No. 20-cv-10738-GAO

PETITIONERS’ RESPONSE TO COURT’S JUNE 11, 2020 ORDER AND MOTION TO CLARIFY OR, ALTERNATIVELY, TO VACATE COURT’S MAY 8, 2020 ORDER
In response to this Court’s June 11, 2020 Opinion and Order [D.E. 60], Petitioners respectfully disagree with this Court’s decision that it lacks jurisdiction under 28 U.S.C. § 2241 to hear Petitioners’ class-action claims for habeas relief, and they decline the invitation to proceed in this case, instead, under the Prison Litigation Reform Act, 18 U.S.C. § 3626, which would be practically impossible in the limited time afforded, even if it were legally appropriate. See D.E. 60 at 8-9 (allowing Petitioners seven days to submit the “materials” referenced by § 3626(a)(3)(C) that a “three-judge court” would typically review in deciding whether to issue a “prisoner release order,” including but not limited to proof that “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”)). Petitioners
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recognize that, in light of their decision, the Court will dismiss this action. See id. at 9.
In addition, Petitioners respectfully move this Court to either (1) clarify that its recent decision that it lacks habeas jurisdiction has already vacated its May 8, 2020 Opinion and Order [D.E. 45] denying Petitioners’ request for a preliminary injunction, or in the alternative, (2) in connection with its anticipated dismissal of this action, vacate its May 8, 2020 Opinion and Order. The May 8 decision was based on this Court’s findings concerning the merits of Petitioners’ habeas claims. See D.E. 45. at 3 (“It is not necessary to resolve [the jurisdictional dispute] for now, because the petitioners have a more fundamental problem. They have not demonstrated a likelihood of success on their underlying theory of liability[.]”).
Having now concluded that it lacked jurisdiction in this matter from the outset—and indeed denying Petitioner’s Motion to Reconsider on this basis—this Court had no legal authority to issue any decisions on the merits of Petitioners’ request for preliminary injunction. See generally Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 430-31 (2007) (“[A] federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) . . . . ‘Without jurisdiction the court cannot proceed at all in any cause’; it may not assume jurisdiction for the purpose of deciding the merits of the case.”) (quoting Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 93-102 (1998)).
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Case 1:20-cv-10738-GAO Document 61 Filed 06/18/20 Page 3 of 3

Respectfully submitted,
MICHAEL GORDON, ANGEL SOLIZ, and others similarly situated,
By their attorneys,
/s/ William W. Fick William W. Fick, BBO# 650562 Daniel N. Marx, BBO# 674523 Amy Barsky, BBO# pending FICK & MARX LLP 24 Federal Street, 4th Floor Boston, MA 02210 857-321-8360 wfick@fickmarx.com dmarx@fickmarx.com abarsky@fickmarx.com

Matthew R. Segal, BBO# 654489 Jessie J. Rossman, BBO #670685 ACLU FOUNDATION OF MASSACHUSETTS, INC. 211 Congress Street Boston, MA 02110 (617) 482-3170 msegal@aclum.org jrossman@aclum.org

CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1
I, William W. Fick, certify that I conferred with counsel for Respondents, who does not assent to the relief requested in this motion.
/s/ William W. Fick

CERTIFICATE OF SERVICE
I, William W. Fick, certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as nonregistered participants on June 18, 2020.
/s/ William Fick

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