U.S. District Court Northern District of Ohio (Youngstown) CIVIL DOCKET FOR CASE #: 4:20-cv-00794-JG

Wilson et al v. Williams et al Assigned to: Judge James S. Gwin Case in other court: 6th Circuit, 20-03447
6th Circuit, 20-03547 Cause: 28:2241 Petition for Writ of Habeas Corpus (federa

Date Filed: 04/13/2020 Jury Demand: None Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: U.S. Government Defendant

Petitioner
Craig Wilson on behalf of himself and those similarly situated

represented by David A. Singleton Ohio Justice & Policy Center Ste. 601 215 East Ninth Street Cincinnati, OH 45202 513-543-7254 Fax: 513-562-3200 Email: dsingleton@ohiojpc.org ATTORNEY TO BE NOTICED

Freda J. Levenson ACLU of Ohio 4506 Chester Avenue Cleveland, OH 44103 614/586-1959 Fax: 216-472-2210 Email: flevenson@acluohio.org ATTORNEY TO BE NOTICED

Mark A. Vander Laan Dinsmore & Shohl - Cincinnati Ste. 1900 255 East Fifth Street Cincinnati, OH 45202 513-977-8238 Fax: 513-977-8505 Email: mark.vanderlaan@dinsmore.com ATTORNEY TO BE NOTICED

Michael L. Zuckerman Ohio Justice & Policy Center

Petitioner Eric Bellamy on behalf of himself and those similarly situated TERMINATED: 01/11/2021
Petitioner Kendal Nelson on behalf of himself and those similarly situated TERMINATED: 01/11/2021

Ste. 601 215 East Ninth Street Cincinnati, OH 45202 513-421-1108 Fax: 513-562-3200 Email: mzuckerman@ohiojpc.org ATTORNEY TO BE NOTICED
David J. Carey ACLU of Ohio - Columbus Ste. 203 1108 City Park Avenue Columbus, OH 43206 614-586-1972 Email: dcarey@acluohio.org ATTORNEY TO BE NOTICED
represented by David A. Singleton (See above for address) ATTORNEY TO BE NOTICED
Freda J. Levenson (See above for address) ATTORNEY TO BE NOTICED
Mark A. Vander Laan (See above for address) ATTORNEY TO BE NOTICED
Michael L. Zuckerman (See above for address) ATTORNEY TO BE NOTICED
David J. Carey (See above for address) ATTORNEY TO BE NOTICED
represented by David A. Singleton (See above for address) ATTORNEY TO BE NOTICED
Freda J. Levenson (See above for address)

Petitioner Maximino Nieves on behalf of himself and those similarly situated
V. Respondent Warden Mark Williams In his Official Capacity as Warden of Elkton Federal Correctional Institution

ATTORNEY TO BE NOTICED
Mark A. Vander Laan (See above for address) ATTORNEY TO BE NOTICED
Michael L. Zuckerman (See above for address) ATTORNEY TO BE NOTICED
David J. Carey (See above for address) ATTORNEY TO BE NOTICED
represented by David A. Singleton (See above for address) ATTORNEY TO BE NOTICED
Freda J. Levenson (See above for address) ATTORNEY TO BE NOTICED
Mark A. Vander Laan (See above for address) ATTORNEY TO BE NOTICED
Michael L. Zuckerman (See above for address) ATTORNEY TO BE NOTICED
David J. Carey (See above for address) ATTORNEY TO BE NOTICED
represented by David M. DeVito U.S. Department of Justice - San Francisco Northern District of Ohio 9th Floor 450 Golden Gate Avenue San Francisco, CA 94102

Respondent Michael Carvajal In his Official Capacity as the Federal Bureau of Prisons Director
Amicus Curiae

415-436-7332 Fax: 415-436-6748 Email: david.devito@usdoj.gov TERMINATED: 11/20/2020 ATTORNEY TO BE NOTICED
James R. Bennett , II Office of the U.S. Attorney Cleveland Northern District of Ohio Ste. 400 801 Superior Avenue, W Cleveland, OH 44113 216-622-3988 Fax: 216-522-4982 Email: james.bennett4@usdoj.gov ATTORNEY TO BE NOTICED
Sara E. DeCaro Office of the U.S. Attorney Cleveland Northern District of Ohio Ste. 400 801 Superior Avenue, W Cleveland, OH 44113 216-622-3670 Fax: 216-522-4982 Email: sara.decaro@usdoj.gov ATTORNEY TO BE NOTICED
represented by David M. DeVito (See above for address) TERMINATED: 11/20/2020 ATTORNEY TO BE NOTICED
James R. Bennett , II (See above for address) ATTORNEY TO BE NOTICED
Sara E. DeCaro (See above for address) ATTORNEY TO BE NOTICED

Disability Rights Ohio
Movant Kathryn Hampton MSt

represented by Laura A. Osseck Disability Rights Ohio Ste. 300 200 Civic Center Drive Columbus, OH 43215 614-466-7264 x 123 Fax: 614-644-1888 Email: losseck@disabilityrightsohio.org ATTORNEY TO BE NOTICED
represented by Darren W. Johnson Paul, Weiss, Rifkind, Wharton & Garrison - New York 1285 Avenue of the Americas New York, NY 10019 212-373-3000 Email: djohnson@paulweiss.com ATTORNEY TO BE NOTICED
David C. Kimball-Stanley Paul, Weiss, Rifkind, Wharton & Garrison- New York 1285 Avenue of the Americans New York, NY 10019 212-373-3000 Email: dkimballstanley@paulweiss.com ATTORNEY TO BE NOTICED
Jacqueline C. Greene Friedman, Gilbert & Gerhardstein Ste. 3400 441 Vine Street Cincinnati, OH 45202 513-572-4200 Fax: 216-621-0427 Email: jacqueline@FGGfirm.com ATTORNEY TO BE NOTICED
Sarah J. Gelsomino Friedman, Gilbert & Gerhardstein Ste. 1900 50 Public Square Cleveland, OH 44113-2205

Movant Brie Williams M.D
Movant Frank A. Castaldi

216-241-1430 Fax: 216-621-0427 Email: sarah@FGGfirm.com ATTORNEY TO BE NOTICED
Susanna M. Buergel Paul, Weiss, Rifkind, Wharton & Garrison - New York 1285 Avenue of the Americas New York, NY 10019 212-373-3000 Email: sbuergel@paulweiss.com ATTORNEY TO BE NOTICED
represented by Darren W. Johnson (See above for address) ATTORNEY TO BE NOTICED
David C. Kimball-Stanley (See above for address) ATTORNEY TO BE NOTICED
Jacqueline C. Greene (See above for address) ATTORNEY TO BE NOTICED
Sarah J. Gelsomino (See above for address) ATTORNEY TO BE NOTICED
Susanna M. Buergel (See above for address) ATTORNEY TO BE NOTICED
represented by David Debold Gibson, Dunn & Crutcher Washington 1050 Connecticut Avenue N.W. Washington, DC 20036 202-955-8551 Fax: 202-530-9682 Email: ddebold@gibsondunn.com ATTORNEY TO BE NOTICED

Movant Michael J Mack
Interested Party Eric Henderson

Matthew Guice Aiken Gibson, Dunn & Crutcher Washington 1050 Connecticut Avenue N.W. Washington, DC 20036 202-887-3688 Fax: 202-831-6089 Email: maiken@gibsondunn.com ATTORNEY TO BE NOTICED
Salvatore M. Mancina Gibson, Dunn & Crutcher Washington 1050 Connecticut Avenue, NW Washington, DC 20036 989-293-2107 Email: smancina@gibsondunn.com ATTORNEY TO BE NOTICED
represented by Darin Thompson Office of the Federal Public Defender - Cleveland Northern District of Ohio 750 Skylight Office Tower 1660 West Second Street Cleveland, OH 44113 216-522-4856 Fax: 216-522-4321 Email: darin_thompson@fd.org ATTORNEY TO BE NOTICED
represented by La Coulton Walls La Coulton J. Walls & Associates 1441 North Elk Grove Avenue Chicago, IL 60622 312-699-1232 Fax: 708-234-7101 Email: thewallslawfirm@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/13/2020
04/13/2020 04/13/2020 04/13/2020 04/13/2020 04/13/2020 04/14/2020 04/14/2020 04/14/2020
04/16/2020

# Docket Text
1 Petition under 28 USC 2241 for Writ of Habeas Corpus by a person in federal custody. Filing fee paid $ 5, receipt number AOHNDC9916754.. Filed by Craig Wilson, Maximino Nieves, Kendal Nelson, Eric Bellamy. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Exhibit A - Novisky Declaration, # 4 Exhibit B - Goldenson Declaration, # 5 Exhibit C - Nelson Declaration, # 6 Exhibit D McReynolds Declaration, # 7 Exhibit E - Bellamy Declaration, # 8 Exhibit F - Nieves Declaration, # 9 Exhibit G - Jackson Declaration, # 10 Exhibit H - Wilson Declaration, # 11 Exhibit I - Arzola Declaration) (Carey, David) (Entered: 04/13/2020)
2 Motion to Expedite and Memorandum in Support filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Carey, David) (Entered: 04/13/2020)
Judge James S. Gwin assigned to case. (W,K) (Entered: 04/13/2020)
Random Assignment of Magistrate Judge pursuant to Local Rule 3.1. In the event of a referral, case will be assigned to Magistrate Judge George J. Limbert. (W,K) (Entered: 04/13/2020)
3 Magistrate Consent Form issued. (W,K) (Entered: 04/13/2020)
4 Original Summons issued to counsel for service upon Michael Carvajal and Mark Williams. (W,K) (Entered: 04/14/2020)
5 Attorney Appearance by James R. Bennett, II filed by on behalf of Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 04/14/2020)
6 Attorney Appearance by Sara E. DeCaro (Co-Counsel) filed by on behalf of Michael Carvajal, Mark Williams. Related document(s) 5 .(DeCaro, Sara) (Entered: 04/14/2020)
7 Order signed by Judge James S. Gwin on 4/14/2020. The Court grants petitioners' motion to expedite and orders response briefing to be filed by 4/17/2020 at 12:00 PM EST. (Related Doc # 2 )(S,KM) (Entered: 04/15/2020)
8 Motion for leave To File Instanter Brief Of Amicus Curiae In Support Of Petitioners Emergency Petition For Writ Of Habeas Corpus, Injunctive, And Declaratory Relief filed by Amicus Curiae Disability Rights Ohio. Related document(s) 1 . (Attachments: # 1 Exhibit A Brief of Amicus Curiae Disability Rights Ohio)(Osseck, Laura) (Entered: 04/16/2020)

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9 Corporate Disclosure Statement filed by Disability Rights Ohio. (Osseck, Laura) (Entered: 04/16/2020)
Order [non-document] entered by Judge James S. Gwin on 4/17/2020 granting Motion for leave To File Instanter Brief Of Amicus Curiae In Support Of Petitioners Emergency Petition For Writ Of Habeas Corpus, Injunctive, And Declaratory Relief filed by Amicus Curiae Disability Rights Ohio. (Related Doc # 8 ). (S,KM) (Entered: 04/17/2020)
10 Answer , Return of Writ, and Reponse in Opposition filed by Michael Carvajal, Mark Williams. Related document(s) 1 . (Attachments: # 1 Exhibit A - Declaration of Sarah Dees, # 2 Exhibit B - Declaration of Kristy Cole, # 3 Exhibit C - AG Memos, BOP Memo) (Bennett, James) (Entered: 04/17/2020)
IMPORTANT: Notice [non-document] of Status Conference set for 4/17/2020 at 03:15 PM to be held by video conference before Judge James S. Gwin. Conference information to be provided by email. (S,KM) (Entered: 04/17/2020)
Order [non-document] entered by Judge James S. Gwin on 4/17/2020. In advance of the hearing today, the Respondents are ordered to identify all inmates who meet the following conditions: inmates suffering from documented and pre-existing: heart, pulmonary, kidney or liver conditions, diabetes, or conditions that cause a person to be immunocompromised, including but not limited to cancer, transplants, and HIV or AIDS, but excluding smoking and obesity. (S,KM) (Entered: 04/17/2020)
11 Response to Court Order filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 04/17/2020)
12 Minutes of Status Conference before Judge James S. Gwin on 4/17/2020. The Court takes matter under advisement. (Court Reporter: S. Perkins;Time: 40 minutes) (S,KM) (Entered: 04/17/2020)
13 Attorney Appearance by Michael L. Zuckerman filed by on behalf of All Plaintiffs. (Zuckerman, Michael) (Entered: 04/17/2020)
14 Motion for leave to File Brief of Amici Curiae Public Health and Human Rights Experts and Memorandum of points and authorities in support thereof filed by Kathryn Hampton, MSt and Brie Williams, M.D. (Attachments: # 1 Exhibit A Proposed Brief of Amici Curiae Public Health and Human Rights Experts)(Greene, Jacqueline) (Entered: 04/17/2020)

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15 Motion for attorney Susanna M. Buergel to Appear Pro Hac Vice. Filing fee $ 120, receipt number AOHNDC-9927596, filed by Amici Curiae. Related document(s) 14 . (Attachments: # 1 Exhibit Declaration of Susanna M. Buergel, # 2 Proposed Order)(Greene, Jacqueline) (Additional attachment(s) added on 4/20/2020: # 3 Signed Declaration) (B,R). (Entered: 04/17/2020)
16 Motion for attorney Darren W. Johnson to Appear Pro Hac Vice. Filing fee $ 120, receipt number AOHNDC-9927601, filed by Amici Curiae. Related document(s) 14 . (Attachments: # 1 Exhibit Declaration of Darren W. Johnson, # 2 Proposed Order)(Greene, Jacqueline) (Additional attachment(s) added on 4/20/2020: # 3 Signed Declaration) (B,R). (Entered: 04/17/2020)
17 Motion for attorney David C. Kimball-Stanley to Appear Pro Hac Vice. Filing fee $ 120, receipt number AOHNDC-9927602, filed by Amici Curiae. Related document(s) 14 . (Attachments: # 1 Exhibit Declaration of David C. Kimball-Stanley, # 2 Proposed Order)(Greene, Jacqueline) (Additional attachment(s) added on 4/20/2020: # 3 Signed Declaration) (B,R). (Entered: 04/17/2020)
18 Reply Memorandum in Support of their Emergency Petition for a Writ of Habeas Corpus filed by All Plaintiffs. Related document(s) 10 . (Carey, David) (Entered: 04/18/2020)
19 Supplement to Respondents' Answer, Return of Writ, and Response in Opposition to Petitioners Emergency Petition for Writ of Habeas Corpus, Injunctive and Declaratory Relief, filed by Michael Carvajal, Mark Williams. Related document(s) 10 . (Attachments: # 1 Exhibit DAdditional Relevant Case Law: Edward Nellson v. Warden J. Barnhart, et al)(Bennett, James) (Entered: 04/18/2020)
20 Notice of Additional Case Law filed by Michael Carvajal, Mark Williams. (Attachments: # 1 Exhibit E - Order Denying Plaintiff's Emergency Motion) Related document(s) 19 .(Bennett, James) (Entered: 04/20/2020)
21 Notice of Supplemental Case Law and Response to Respondents' Notices of Supplemental Case Law filed by All Plaintiffs. (Attachments: # 1 Exhibit A - Amaya-Cruz v. Adducci, # 2 Exhibit B Cameron v. Bouchard, # 3 Exhibit C - Banks v. Booth)Related document(s) 19 , 20 .(Carey, David) (Entered: 04/20/2020)
Order [non-document] entered by Judge James S. Gwin on 4/22/2020 granting Motion for leave to file Brief of Amici Curiae Public Health and Human Rights Experts (Related Doc # 14 )(S,KM) (Entered: 04/22/2020)

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Order [non-document] entered by Judge James S. Gwin on 4/22/2020 granting Motion for appearance pro hac vice by attorney Susanna M. Buergel for Kathryn Hampton and Brie Williams. Local Rule 5.1(c) requires that attorneys register for NextGen CM/ECF and file and receive all documents electronically. NextGen CM/ECF registration can be done online at www.pacer.gov. Login with your PACER credentials, go to the Maintenance tab, click Attorney Admissions/EFile Registration, select Ohio Northern District Court and then select Pro Hac Vice. If you were previously granted pro hac vice status and are already registered to file electronically, it is not necessary to register again. (Related Doc # 15 )(S,KM) (Entered: 04/22/2020)
Order [non-document] entered by Judge James S. Gwin on 4/22/2020 granting Motion for appearance pro hac vice by attorney Darren W. Johnson for Kathryn Hampton and Brie Williams. Local Rule 5.1(c) requires that attorneys register for NextGen CM/ECF and file and receive all documents electronically. NextGen CM/ECF registration can be done online at www.pacer.gov. Login with your PACER credentials, go to the Maintenance tab, click Attorney Admissions/EFile Registration, select Ohio Northern District Court and then select Pro Hac Vice. If you were previously granted pro hac vice status and are already registered to file electronically, it is not necessary to register again. (Related Doc # 16 )(S,KM) (Entered: 04/22/2020)
Order [non-document] entered by Judge James S. Gwin on 4/22/2020 granting Motion for appearance pro hac vice by attorney David C. Kimball-Stanley for Kathryn Hampton and Brie Williams. Local Rule 5.1(c) requires that attorneys register for NextGen CM/ECF and file and receive all documents electronically. NextGen CM/ECF registration can be done online at www.pacer.gov. Login with your PACER credentials, go to the Maintenance tab, click Attorney Admissions/E-File Registration, select Ohio Northern District Court and then select Pro Hac Vice. If you were previously granted pro hac vice status and are already registered to file electronically, it is not necessary to register again. (Related Doc # 17 )(S,KM) (Entered: 04/22/2020)
22 Order of Preliminary Injunction signed by Judge James S. Gwin on 4/22/2020. For the reasons as set forth in this Order, the Court grants in part and denies in part Petitioners motion for relief. (S,KM) (Entered: 04/22/2020)
23 Brief filed by Amici Curiae Public Health and Human Rights Experts. Related document(s) 14 ,. (Greene, Jacqueline) (Entered: 04/22/2020)

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24 Motion to File Under Seal and Ex Parte filed by Michael Carvajal, Mark Williams. Related document(s) 22 . (Bennett, James) (Entered: 04/23/2020)
25 Opposition to 24 Motion to File Under Seal and Ex Parte filed by All Plaintiffs. (Carey, David) (Entered: 04/23/2020)
IMPORTANT: Notice [non-document] of Status Conference set for 4/27/2020 at 10:30 AM to be held by video conference before Judge James S. Gwin. Conference information to be provided to counsel by email. (S,KM) (Entered: 04/27/2020)
26 NOTICE OF INTERLOCUTORY APPEAL to the Sixth Circuit Court of Appeals from the 22 Preliminary Injunction of 4/22/20, filed by Michael Carvajal, Mark Williams (Bennett, James) (Entered: 04/27/2020)
27 Minutes of Status Conference before Judge James S. Gwin on 4/27/2020. Status Conference held via video conference. The Court denies respondent's motion to file under seal and ex-parte 24 . The Court directs Petitioner's motion for class certification to be filed by close of business Wednesday 4/29/2020 with any opposition to be filed by close of business 5/1/2020. The Court further directs motion to stay be filed by close of business 4/29/2020, with any opposition to be filed by 12:00 pm 4/30/2020. (Court Reporter: S. Perkins; Time: 35 minutes) (S,KM) (Entered: 04/27/2020)
Acknowledgment from the USCA for Sixth Circuit of receipt of 26 Notice of Interlocutory Appeal (USCA# 20-3447). Date filed in USCA 4/27/20. (H,SP) (Entered: 04/28/2020)
28 Expedited Non-Appeal Transcript Order Form for proceedings held on 04/17/2020; 04/27/2020 before Judge James S. Gwin, re 27 Status Conference, Terminate Motions, 12 Status Conference. Court Reporter: Shirle Perkins. Requested completion date: 04/29/2020 filed by Michael Carvajal, Mark Williams. Related document(s) 27 , 12 . (Bennett, James) (Entered: 04/28/2020)
29 Emergency Motion for Stay pending Appeal filed by Michael Carvajal, Mark Williams. Related document(s) 27 , 22 , 26 . (Attachments: # 1 Brief in Support, # 2 Exhibit A - Declaration of Kristy Cole, # 3 Exhibit B - Declaration of Cory Clark, # 4 Exhibit C - Declaration of Peter Pottios)(Bennett, James) (Entered: 04/28/2020)
30 (Corrected) Emergency Motion to Stay pending Appeal filed by Michael Carvajal, Mark Williams. Related document(s) 27 , 22 , 26 . (Attachments: # 1 Brief in Support, # 2 Exhibit A - Declaration of

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Kristy Cole, # 3 Exhibit B - Declaration of Cory Clark, # 4 Exhibit C Declaration of Peter Pottios)(Bennett, James) (Entered: 04/28/2020)
31 Emergency Motion to Compel and Memorandum in Support filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. Related document(s) 22 . (Attachments: # 1 Exhibit A - Email Correspondence)(Carey, David) (Entered: 04/29/2020)
32 Marginal Entry Order entered by Judge James S. Gwin on 4/29/2020 granting Motion to compel (Related Doc # 31 ). The Court orders Respondents to provide list by April 30, 2020 at 8:00 AM EST. (S,KM) (Entered: 04/29/2020)
33 Motion for class certification filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Attachments: # 1 Brief in Support of Motion for Class Certification, # 2 Exhibit A - Carey Declaration)(Carey, David) (Entered: 04/29/2020)
34 Notice of Filing Respondents' Emergency Motion to Stay in Court of Appeals filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 04/30/2020)
35 Notice of Identification of inmates filed by Michael Carvajal, Mark Williams. (Attachments: # 1 Exhibit A List of Inmates)Related document(s) 32 .(Bennett, James) (Entered: 04/30/2020)
36 Notice of Order on Respondents' Emergency Motion for Administrative Stay in Court of Appeals filed by Michael Carvajal, Mark Williams. (Attachments: # 1 Exhibit A Sixth Circuit Order on Emergency Administrative Stay)(Bennett, James) (Entered: 04/30/2020)
37 Opposition to 30 (Corrected) Emergency Motion to Stay pending Appeal filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Carey, David) (Entered: 04/30/2020)
38 Appeal Order from USCA for the Sixth Circuit: Denying the request for administrative stay of the 26 Notice of Interlocutory Appeal (USCA# 20-3447). Circuit Judges: Cole, Gibbons, and Cook. Date issued by USCA 4/30/20 (H,SP) (Entered: 05/01/2020)
39 Expedited Non-Appeal Transcript Order Form for proceedings held on 4/17/20 and 4/27/20 before Judge James S. Gwin, Court Reporter: Shirle Perkins. Requested completion date: 05/01/2020 filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Carey, David) (Entered: 05/01/2020)

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40 Transcript of Hearing held on April 17, 2020 before Judge James Gwin. To obtain a bound copy of this transcript please contact court reporter Shirle Perkins at 216-357-7106. [32 pages] Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties requesting that privacy information be redacted must file a notice of intent to redact with the court by 5/8/2020. Redaction Request due 5/22/2020. Redacted Transcript Deadline set for 6/1/2020. Release of Transcript Restriction set for 7/30/2020. Related document(s) 28 , 39 . (P,Sh) (Entered: 05/01/2020)
41 Transcript of Hearing held on April 27, 2020 before Judge James Gwin. To obtain a bound copy of this transcript please contact court reporter Shirle Perkins at 216-357-7106. [20 pages] Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties requesting that privacy information be redacted must file a notice of intent to redact with the court by 5/8/2020. Redaction Request due 5/22/2020. Redacted Transcript Deadline set for 6/1/2020. Release of Transcript Restriction set for 7/30/2020. Related document(s) 28 , 39 . (P,Sh) (Entered: 05/01/2020)
42 Attorney Appearance by David M. DeVito filed by on behalf of Michael Carvajal, Mark Williams. (DeVito, David) (Entered: 05/01/2020)
43 Opposition to 33 Motion for class certification filed by Michael Carvajal, Mark Williams. (DeVito, David) (Entered: 05/01/2020)
44 Emergency Motion for Expedited Discovery and Motion for Entry of Protective Order filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. Related document(s) 22 . (Attachments: # 1 Exhibit A - Proposed Protective Order)(Carey, David). Modified text, added motion part on 5/5/2020 (S,SR). (Entered: 05/04/2020)
45 Order signed by Judge James S. Gwin on 5/5/2020 requiring memorandums as set forth in this Order. (S,KM) (Entered: 05/05/2020)
46 Appeal Order from USCA for the Sixth Circuit: The motion to stay is Denied. The motion to strike is Denied re 26 Notice of Interlocutory Appeal (USCA# 20-3447). Circuit Judges: Cole, Gibbons, and Cook. Date issued by USCA 5/4/20 (H,SP) (Entered: 05/06/2020)
47 Memorandum regarding effect of the Sixth Circuit May 4, 2020 Order denying a Stay under Fed.R.App.P.8(a) filed by Michael Carvajal,

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05/07/2020

Mark Williams. Related document(s) 45 . (DeVito, David) (Entered: 05/06/2020)
48 Opposition to 44 Emergency Motion for Expedited Discovery and Response to Petitioners Request for the Entry of a Protective Order filed by Michael Carvajal, Mark Williams. (Attachments: # 1 Exhibit A - Proposed Protective Order)(Bennett, James) (Entered: 05/06/2020)
49 Status Report filed by Michael Carvajal, Mark Williams. Related document(s) 45 .(Bennett, James) (Entered: 05/06/2020)
50 Memorandum regarding the Sixth Circuit's May 4, 2020 Order Denying Respondent's Motion for Stay Pending Appeal filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. Related document(s) 45 . (Carey, David) (Entered: 05/06/2020)
51 Emergency Motion to enforce Preliminary Injunction filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. Related document(s) 49 , 22 . (Carey, David) (Entered: 05/06/2020)
IMPORTANT: Notice [non-document] of Status Conference set for 5/7/2020 at 03:00 PM to be held by video conference before Judge James S. Gwin. Conference information to be provided to counsel by email. (S,KM) (Entered: 05/07/2020)
52 FILING ERROR - Emergency Motion to Withdrawal as a Class or Subclass Member filed by Petitioner Craig Wilson. (S,Ke) Modified to denote filing error on 5/8/2020 (S,Ke). (Entered: 05/07/2020)
53 Expedited Non-Appeal Transcript Order Form for proceedings held on 05/07/2020 before Judge James S. Gwin, Court Reporter: George Staiduhar. Requested completion date: 05/07/2020 filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 05/07/2020)
54 Expedited Non-Appeal Transcript Order Form for proceedings held on 5/7/20 before Judge James S. Gwin, Court Reporter: George Staiduhar. Requested completion date: 5/7/20 filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Carey, David) (Entered: 05/07/2020)
55 Transcript of zoom conference held on May 7th, 2020, before Judge James S. Gwin. To obtain a bound copy of this transcript please contact court reporter George J. Staiduhar at (216) 357-7128. [31 pages] Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties requesting that privacy information be redacted must

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file a notice of intent to redact with the court by 5/14/2020. Redaction Request due 5/28/2020. Redacted Transcript Deadline set for 6/8/2020. Release of Transcript Restriction set for 8/5/2020. Related document(s) 54 , 53 . (S,G) (Entered: 05/07/2020)
56 Minutes of Status Conference before Judge James S. Gwin on 5/7/2020. (Court Reporter: G. Staiduhar;Time: 40 minutes) (S,KM) (Entered: 05/08/2020)
57 Order signed by Judge James S. Gwin on 5/8/2020 denying Motion to stay for the reasons as set forth in this Order. (Related Doc # 29 30 )(S,KM) (Entered: 05/08/2020)
Order [non-document] entered by Judge James S. Gwin on 5/8/2020. By close of business on May 11, 2020, the Court orders Respondents to give a specific reason as to why each of the identified subclass members was determined to be ineligible for each form of release. If a subclass member was determined to be ineligible for release, Respondents are ordered to provide an explanation as to why that individual could not be transferred to a cell affording greater possibility for social distancing.By May 8, 2020, the Court orders Petitioners to provide Respondents a draft notice to Elkton inmates in accordance with the specifications delineated during the May 7, 2020 conference. Any outstanding objections to the draft notice are to be filed by the morning of May 11, 2020. By May 8, 2020, the Court orders Respondents to file any response to Petitioners emergency motion to compel.(S,KM) (Entered: 05/08/2020)
IMPORTANT: Notice [non-document] of Status Conference set for 5/14/2020 at 10:00 AM to be held by video conference before Judge James S. Gwin. Conference information to be provided by email. (S,KM) (Entered: 05/08/2020)
58 Opposition to 51 Emergency Motion to enforce Preliminary Injunction filed by Michael Carvajal, Mark Williams. (Attachments: # 1 Exhibit A-Declaration of Sarah Dees, # 2 Exhibit B-Letters from Elkton Inmates, # 3 Exhibit C-Declaration of Sukenna Stokes, # 4 Exhibit D-Interim Guidance from CDC on COVID19 and correctional-detention)(Bennett, James) (Entered: 05/08/2020)
59 Emergency Motion to Circulate Notice to Conditional Class Members filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. Related document(s) 55 , 56 ,. (Attachments: # 1 Exhibit A Proposed Notice and Questionnaire, # 2 Exhibit B - Proposed Informational Poster)(Carey, David) (Entered: 05/10/2020)

05/11/2020 05/11/2020
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05/13/2020 05/13/2020 05/13/2020
05/13/2020

60 Opposition to 59 Emergency Motion to Circulate Notice to Conditional Class Members filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 05/11/2020)
61 Notice of Supplemental Authority in Support of Motion for Enforcement of Preliminary Injunction filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Attachments: # 1 Exhibit A United States v. Guzman, # 2 Exhibit B - United States v. Peaks, # 3 Exhibit C - United States v. McIndoo)Related document(s) 51 .(Carey, David) (Entered: 05/11/2020)
62 Proposed Stipulated Protective Order filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 05/11/2020)
63 Notice of Service filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 05/11/2020)
64 Stipulated Protective Order signed by Judge James S. Gwin on 5/12/2020. (S,KM) (Entered: 05/12/2020)
65 Motion for leave to File Instanter Reply in Support of Motion to Circulate Notice filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. Related document(s) 60 , 59 , 55 , 56 . (Attachments: # 1 Proposed Reply in Support of Petitioners' Emergency Motion to Circulate Notice to Conditional Class Members, # 2 Exhibit A - Revised Proposed Notice)(Carey, David) Modif (Entered: 05/12/2020)
66 Order signed by Judge James S. Gwin on 5/13/2020 granting Petitioner's Motion to circulate notice attached to Petitioners most recent filing, with edits as set forth in this order. (Related Doc # 59 65 )(S,KM) (Entered: 05/13/2020)
70 Motion for attorney David Debold to Appear Pro Hac Vice. Filing fee paid $120.00 Receipt number 14660123330, filed by Movant Frank A Castaldi. (Attachments: # 1 Declaration of David Debold, # 2 Proposed Order)(J,G) Modified on 5/15/2020 (B,R). (Entered: 05/14/2020)
71 Motion for attorney Matthew Guice Aiken to Appear Pro Hac Vice. Filing fee $120.00 paid Receipt number 14660123331, filed by Movant Frank A Castaldi. (Attachments: # 1 Declaration of Matthew Guice Aiken, # 2 Proposed Order)(J,G) Modified on 5/15/2020 (B,R). (Entered: 05/14/2020)
73 Motion for attorney Sam M. Mancina to Appear Pro Hac Vice. Filing fee $120.00 paid Receipt number 14660123332, filed by Movant Frank A Castaldi. (Attachments: # 1 Declaration of Sam M. Mancina,

05/13/2020 05/13/2020 05/14/2020
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# 2 Proposed Order)(J,G) Modified on 5/15/2020 (B,R). (Entered: 05/14/2020)
74 Motion to intervene and Motion to modify protective order and designations under it filed by Movant Frank A Castaldi. Related document(s) 64 . (Attachments: # 1 Proposed Order)(J,G) (Entered: 05/14/2020)
75 Motion to file under seal filed by Movant Frank A Castaldi. Related document(s) 74 . (Attachments: # 1 Proposed Order)(J,G) (Entered: 05/14/2020)
67 Motion for leave to File Reply in Support of Petitioners' Emergency Motion for Enforcement, and to File Under Seal filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. Related document(s) 51 , 58 , 64 , 63 . (Attachments: # 1 Proposed Order Granting Motion for Leave to File and to File Under Seal)(Carey, David) (Entered: 05/14/2020)
68 Joint Notice of Supplement to Protective Order filed by Michael Carvajal, Mark Williams. (Attachments: # 1 Exhibit A-Revised Acknowledgment of Protective Order and Agreement to be Bound, # 2 Exhibit B-Initial Acknowledgement of Protective Order)Related document(s) 64 .(Bennett, James) (Entered: 05/14/2020)
69 Expedited Non-Appeal Transcript Order Form for proceedings held on 05/14/2020 before Judge James S. Gwin, Court Reporter: George Staiduhar. Requested completion date: 05/14/2020 filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 05/14/2020)
72 Minutes of Status Conference before Judge James S. Gwin on 5/14/2020. (Court Reporter: G. Staiduhar;Time: 45 minutes) (S,KM) (Entered: 05/14/2020)
Order [non-document] entered by Judge James S. Gwin on 5/14/2020 granting Motion for Leave to File Reply in Support of Petitioners' Emergency Motion for Enforcement and denying Motion to File Under Seal (Related Doc # 67 )(S,KM) (Entered: 05/14/2020)
Order [non-document] entered by Judge James S. Gwin on 5/14/2020. The Court orders Respondents to file a daily report indicating the number of COVID-19 tests performed at Elkton and the results of those tests. The report should indicate the daily numbers and running totals for each category. The Court orders Respondents to respond to Petitioners written discovery request regarding the criteria considered in home confinement determinations by 4 p.m. on May 15, 2020. Petitioners may identify a random sampling of individuals that have

05/14/2020
05/14/2020 05/14/2020 05/14/2020 05/15/2020 05/15/2020

been denied compassionate release, home release, and furlough, not to exceed 25 individuals in each category. Respondents are to provide to Plaintiffs the records relating to their denial of the identified relief for each identified individual.(S,KM) (Entered: 05/14/2020)
76 Transcript of zoom teleconference held on May 14th, 2020, before Judge James S. Gwin. To obtain a bound copy of this transcript please contact court reporter George J. Staiduhar at George J. Staiduhar. [35 pages] Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties requesting that privacy information be redacted must file a notice of intent to redact with the court by 5/21/2020. Redaction Request due 6/4/2020. Redacted Transcript Deadline set for 6/15/2020. Release of Transcript Restriction set for 8/12/2020. Related document(s) 69 . (S,G) (Entered: 05/14/2020)
77 SEALED Transcript of Excerpt of Zoom teleconference held on May 14th, 2020, before Judge James S. Gwin. Court Reporter: George J. Staiduhar. [6 pages] Related document(s) 69 . (S,G) (Entered: 05/14/2020)
78 Reply in support of 51 Emergency Motion to enforce Preliminary Injunction filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Attachments: # 1 Exhibit A - Home Confinement Spreadsheet, # 2 Exhibit B - Compassionate Release Spreadsheet, # 3 Exhibit C - Subclass Search Criteria, # 4 Exhibit D - Declaration of David Mills)(Carey, David) (Entered: 05/14/2020)
79 Expedited Non-Appeal Transcript Order Form for proceedings held on 5/14/20 before Judge James S. Gwin, Court Reporter: George Staiduhar. Requested completion date: 5/15/20 filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Carey, David) (Entered: 05/14/2020)
Filing fees in the total amount of $360.00 received from Matthew Aiken, David Debold and Sam Mancina. Receipt # 14660123330, 14660123331, 14660123332 Related document(s) 73 , 70 , 71 . (B,R) (Entered: 05/15/2020)
Order [non-document] entered by Judge James S. Gwin on 5/15/2020 granting Motion for appearance pro hac vice by attorney David Debold for Frank A Castaldi. Local Rule 5.1(c) requires that attorneys register for NextGen CM/ECF and file and receive all documents electronically. NextGen CM/ECF registration can be done online at www.pacer.gov. Login with your PACER credentials, go to the Maintenance tab, click Attorney Admissions/E-File Registration, select Ohio Northern District

05/15/2020
05/15/2020
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Court and then select Pro Hac Vice. If you were previously granted pro hac vice status and are already registered to file electronically, it is not necessary to register again. (Related Doc # 70 )(S,KM) (Entered: 05/15/2020)
Order [non-document] entered by Judge James S. Gwin on 5/15/2020 granting Motion for appearance pro hac vice by attorney Matthew Guice Aiken for Frank A Castaldi. Local Rule 5.1(c) requires that attorneys register for NextGen CM/ECF and file and receive all documents electronically. NextGen CM/ECF registration can be done online at www.pacer.gov. Login with your PACER credentials, go to the Maintenance tab, click Attorney Admissions/E-File Registration, select Ohio Northern District Court and then select Pro Hac Vice. If you were previously granted pro hac vice status and are already registered to file electronically, it is not necessary to register again. (Related Doc # 71 )(S,KM) (Entered: 05/15/2020)
Order [non-document] entered by Judge James S. Gwin on 5/15/2020 granting Motion for appearance pro hac vice by attorney Sam M. Mancina for Frank A Castaldi. Local Rule 5.1(c) requires that attorneys register for NextGen CM/ECF and file and receive all documents electronically. NextGen CM/ECF registration can be done online at www.pacer.gov. Login with your PACER credentials, go to the Maintenance tab, click Attorney Admissions/E-File Registration, select Ohio Northern District Court and then select Pro Hac Vice. If you were previously granted pro hac vice status and are already registered to file electronically, it is not necessary to register again. (Related Doc # 73 )(S,KM) (Entered: 05/15/2020)
80 Notice of Home Confinement Criteria filed by Michael Carvajal, Mark Williams. (Attachments: # 1 Exhibit A - Memorandum for Chief Executive Officers Re: Home Confinement, dated May 8, 2020)(Bennett, James) (Entered: 05/15/2020)
81 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 05/15/2020)
82 Marginal Entry Order signed by Judge James S. Gwin on 5/18/2020. The Court grants request to allow Castaldi to use the Bureau of Prisons materials in his application for compassionate release and will allow the Castaldi materials be designated as Confidential rather than Attorneys Eyes only. (Related Doc # 74 75 )(S,KM) (Entered: 05/18/2020)
83 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 05/18/2020)

05/19/2020 05/19/2020
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84 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 05/19/2020)
85 Order signed by Judge James S. Gwin on 5/19/2020. The Court grants the motion to enforce the preliminary injunction 51 and orders Respondents to take steps to comply with the preliminary injunction as set forth in this Order.(S,KM) (Entered: 05/19/2020)
86 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 05/20/2020)
87 Notice of Filing Respondents' Application for Stay and for an Administrative Stay in the Supreme Court of the United States filed by Michael Carvajal, Mark Williams. Related document(s) 22 .(Bennett, James) (Entered: 05/21/2020)
Order [non-document] entered by Judge James S. Gwin on 5/21/2020. By close of business today, the Court orders Respondents to file an explanation of why Respondents have not yet received or reported test results for tests that were completed more than 48 hours ago(S,KM) (Entered: 05/21/2020)
88 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 05/21/2020)
89 First Response to the Court's May 19, 2020 Order filed by Michael Carvajal, Mark Williams. Related document(s) 85 . (Attachments: # 1 Exhibit A-Home Confinement Review Worksheet, # 2 Exhibit BELK Inmate Aged 65 with Sentence info) (Bennett, James) (Entered: 05/21/2020)
90 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 05/22/2020)
91 Second Response to the Court's May 19, 2020 Order filed by Michael Carvajal, Mark Williams. Related document(s) 85 . (Bennett, James) (Entered: 05/23/2020)
92 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 05/26/2020)
93 Third Response to the Court's May 19, 2020 Order filed by Michael Carvajal, Mark Williams. Related document(s) 85 . (Bennett, James) (Entered: 05/26/2020)
94 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 05/27/2020)

05/27/2020

95 NOTICE OF INTERLOCUTORY APPEAL to the Sixth Circuit Court of Appeals from the 85 Order on Motion to enforce, filed by Michael Carvajal, Mark Williams (Bennett, James) (Entered: 05/27/2020)

05/28/2020

Acknowledgment from the USCA for Sixth Circuit of receipt of 95 Notice of Interlocutory Appeal (USCA# 20-3547). Date filed in USCA 5/28/20. (H,SP) (Entered: 05/28/2020)

05/28/2020

Order [non-document] entered by Judge James S. Gwin on 5/28/2020. By 3pm today, the Court orders Respondents to file a report detailing how Respondents are addressing the need to segregate inmates who have tested positive from inmates who have tested negative and inmates not yet tested. (S,KM) (Entered: 05/28/2020)

05/28/2020 96 Response to the Court's May 28, 2020 Order filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 05/28/2020)

05/28/2020 97 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 05/28/2020)

05/29/2020

98 Emergency Motion to stay filed by Michael Carvajal, Mark Williams. Related document(s) 85 , 22 . (Attachments: # 1 Brief in Support, # 2 Exhibit A - Declaration of Andrea Burnside, # 3 Exhibit AA Elkton Charts, # 4 Exhibit AB - March 26, 2020 Memo, # 5 Exhibit AC - April 3, 2020 Memo, # 6 Exhibit B - Declaration of Andre Matevousian, # 7 Exhibit C - Declaration of Hugh Hurwitz, # 8 Exhibit D - Declaration of Shannon Robbins, # 9 Exhibit DA - BOP Program Statement 5100.08, # 10 Exhibit DB - May 22, 2020 Press Release)(Bennett, James) (Entered: 05/29/2020)

05/29/2020

99 Notice of Filing Respondents' Emergency Motion for Stay in Court of Appeals filed by Michael Carvajal, Mark Williams. Related document(s) 85 , 22 .(Bennett, James) (Entered: 05/29/2020)

05/29/2020 100 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 05/29/2020)

05/29/2020

101 Supplement to Emergency Motion to stay - filed by Michael Carvajal, Mark Williams. Related document(s) 98 . (Bennett, James) (Entered: 05/29/2020)

05/29/2020

Order [non-document] entered by Judge James S. Gwin on 5/29/2020. The Court directs Petitioners to file any opposition to 98 101 Emergency Motion to stay filed by Mark Williams, Michael Carvajal by 6/1/2020 at 12:00 PM EST. (S,KM) (Entered: 05/29/2020)

05/30/2020

102 Memorandum in Opposition to 98 Emergency Motion to stay filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Attachments: # 1 Exhibit A - 2d Novisky Declaration, # 2 Exhibit B 2d Goldenson Declaration, # 3 Exhibit C - Questionnaires)(Carey, David) (Entered: 05/30/2020)

06/01/2020

103 Emergency Notice of Supplemental Exhibit to Opposition to Emergency Motion to Stay filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Attachments: # 1 Exhibit A Worksheet)Related document(s) 102 , 98 .(Carey, David) (Entered: 06/01/2020)

06/01/2020

104 Second Emergency Notice of Supplemental Exhibit to Opposition to Emergency Motion to Stay filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Attachments: # 1 Exhibit A Whitfield Declaration)Related document(s) 103 , 102 , 98 .(Carey, David) (Entered: 06/01/2020)

06/01/2020 105 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/01/2020)

06/02/2020 106 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/02/2020)

06/02/2020

107 Appeal Order form USCA for the Sixth Circuit: Denying the motion by respondent's to stay re Notice of Appeals 26 and 95 (USCA# 20-3447 & 20-3547). Circuit Judges: Cole, Gibbons, and Cook. Date issued by USCA 6/1/20 (H,SP) (Entered: 06/02/2020)

06/03/2020 108 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/03/2020)

06/04/2020

109 Order signed by Judge James S. Gwin on 6/4/2020 denying Respondent's Emergency Motion to stay for the reasons as set forth in this order. (Related Doc # 98 )(S,KM) (Entered: 06/04/2020)

06/04/2020 110 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/04/2020)

06/04/2020

111 Notice of Supreme Court Stay filed by Michael Carvajal, Mark Williams. (Attachments: # 1 Exhibit A Order of the Supreme Court of the United States)Related document(s) 85 , 22 .(Bennett, James) (Entered: 06/04/2020)

06/05/2020 112 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/05/2020)

06/05/2020

113 Motion to intervene in the class action, Motion for an order requiring respondents to show cause why they should not be held in contempt for violating court's injunction filed by Intervenor George Winkleman. (Attachments: # 1 Exhibit A - Email, # 2 Exhibit B - Letter, # 3 Cover Letter, # 4 Envelope)(J,G) (Entered: 06/08/2020)

06/08/2020 114 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/08/2020)

06/09/2020 115 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/09/2020)

06/09/2020

Order [non-document] entered by Judge James S. Gwin on 6/9/2020. The Court orders Petitioners and Respondents to file a response to re 113 Motion to intervene as a party and Motion to show cause by June 12, 2020. (S,KM) (Entered: 06/09/2020)

06/10/2020 116 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/10/2020)

06/10/2020

120 Motion for attorney La Coulton Walls to Appear Pro Hac Vice. Filing fee $ 120, receipt number 14660123986, filed by Interested Party Eric Henderson. (Attachments: # 1 Certification of La Coulton Walls, # 2 Proposed Order, # 3 Certificate of Good Standing)(J,G) (Entered: 06/12/2020)

06/10/2020 121 Emergency Motion to Intervene as Additional Plaintiff/Affected Party filed by Interested Party Eric Henderson. (J,G) (Entered: 06/12/2020)

06/11/2020

117 Information Copy of opinion from USCA for the Sixth Circuit: Vacating the District Court's April 22, 2020 preliminary injunction re 26 Notice of Interlocutory Appeal (USCA# 20-3447). This is not a mandate order. Circuit Judges: Cole, Gibbons, and Cook. Date issued by USCA 6/9/20. (Attachments: # 1 Judgment) (H,SP) (Entered: 06/11/2020)

06/11/2020 118 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/11/2020)

06/11/2020

119 Response to 113 Motion to intervene and Motion for and order to show cause filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Carey, David) (Entered: 06/11/2020)

06/12/2020 122 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/12/2020)

06/12/2020

123 Opposition to 113 Motion to intervene as a party and Motion to show cause filed by Michael Carvajal, Mark Williams. (DeVito, David) (Entered: 06/12/2020)

06/15/2020 124 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/15/2020)

06/16/2020 125 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/16/2020)

06/16/2020

Order [non-document] entered by Judge James S. Gwin on 6/16/2020. The Court directs petitioners and respondents to file a response to re 121 Motion to intervene as a party filed by Eric Henderson by June 23, 2020. (S,KM) (Entered: 06/16/2020)

06/17/2020 126 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/17/2020)

06/18/2020 127 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/18/2020)

06/19/2020 128 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/19/2020)

06/22/2020

129 Response to 121 Motion to intervene as a party filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Carey, David) (Entered: 06/22/2020)

06/22/2020 130 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/22/2020)

06/23/2020 131 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/23/2020)

06/23/2020

132 Opposition to 121 Motion to intervene as additional plaintiff/affected party filed by Michael Carvajal, Mark Williams. (Attachments: # 1 Exhibit A-Redacted Henderson Questionnaire)(Bennett, James) (Entered: 06/23/2020)

06/24/2020 133 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/24/2020)

06/24/2020

134 Reply to Respondent's Opposition of Movant's Request filed by Intervenor George Winkleman. Related document(s) 113 , 123 . (Attachments: # 1 Envelope) (J,G) (Entered: 06/24/2020)

06/25/2020 135 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/25/2020)

06/25/2020

Order [non-document]granting Motion for appearance pro hac vice by attorney La Coulton Walls for Eric Henderson. Local Rule 5.1(c) requires that attorneys register for NextGen CM/ECF and file and receive all documents electronically. NextGen CM/ECF registration can be done online at www.pacer.gov. Login with your PACER credentials, go to the Maintenance tab, click Attorney Admissions/EFile Registration, select Ohio Northern District Court and then select Pro Hac Vice. If you were previously granted pro hac vice status and are already registered to file electronically, it is not necessary to register again. (Related Doc # 120 ). Judge James S. Gwin on 6/25/2020.(S,KM) (Entered: 06/25/2020)

06/26/2020 136 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/26/2020)

06/29/2020 137 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/29/2020)

06/30/2020 138 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 06/30/2020)

07/01/2020 139 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/01/2020)

07/02/2020 140 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/02/2020)

07/02/2020

141 Emergency Motion to serve expedited Discovery introduction and background filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Attachments: # 1 Exhibit A - Discovery Requests, # 2 Exhibit B - Email Correspondence)(Carey, David) (Entered: 07/02/2020)

07/06/2020 142 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/06/2020)

07/06/2020

143 Opposition to 141 Emergency Motion to serve expedited Discovery introduction and background filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/06/2020)

07/07/2020 144 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/07/2020)

07/07/2020

145 Reply in support of 141 Emergency Motion to serve expedited Discovery introduction and background filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Carey, David) (Entered: 07/07/2020)

07/08/2020 146 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/08/2020)

07/09/2020 147 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/09/2020)

07/09/2020

148 Appeal Order from USCA for the Sixth Circuit: Denying the appellants' motion to expedite the issuance of the mandate re 26 Notice of Interlocutory Appeal (USCA# 20-3447). Circuit Judges: Cole, Gibbons, and Cook. Date issued by USCA 7/8/20 (Related document(s) 117 ) (H,SP) (Entered: 07/09/2020)

07/10/2020

Order [non-document] entered by Judge James S. Gwin on 7/10/2020. The Court orders the parties to file briefing supplements regarding the effect of the Sixth Circuits ruling on the motion for class certification. Petitioners are ordered to file any briefing by Monday, July 20, and Respondents by Monday, July 27.(S,KM) (Entered: 07/10/2020)

07/10/2020 149 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/10/2020)

07/13/2020 150 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/13/2020)

07/14/2020 151 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/14/2020)

07/15/2020 152 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/15/2020)

07/16/2020 153 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/16/2020)

07/17/2020 154 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/17/2020)

07/20/2020 155 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/20/2020)

07/20/2020

156 Response to the Court's July 10, 2020 Order filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Carey, David) (Entered: 07/20/2020)

07/21/2020 157 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/21/2020)

07/22/2020 158 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/22/2020)

07/23/2020

159 Order signed by Judge James S. Gwin on 7/23/2020. For the reasons as set forth in this order, the Court DENIES the motions to intervene and DENIES Winklemans request for an order to show cause (Related Docs # 113 121 )(S,KM) (Entered: 07/23/2020)

07/23/2020 160 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/23/2020)

07/24/2020 161 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/24/2020)

07/27/2020 162 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/27/2020)

07/27/2020

163 Supplemental Brief Regarding the Effect of the Sixth Circuit's Ruling on the Motion for Class Certification filed by Michael Carvajal, Mark Williams. (DeVito, David) (Entered: 07/27/2020)

07/27/2020

164 Motion to dismiss for failure to state a claim filed by Michael Carvajal, Mark Williams. Related document(s) 1 . (Attachments: # 1 Brief in Support)(DeVito, David) (Entered: 07/27/2020)

07/28/2020 165 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/28/2020)

07/29/2020 166 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/29/2020)

07/30/2020 167 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 07/30/2020)

07/31/2020 168 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 07/31/2020)

08/03/2020 169 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 08/03/2020)

08/04/2020

170 True copy of mandate from the USCA for the Sixth Circuit: Vacating the District Court's April 22, 2020 preliminary injunction re 26 Notice of Interlocutory Appeal (USCA# 20-3447). Date issued as mandate 8/3/20; Costs: None (H,SP) (Entered: 08/04/2020)

08/04/2020 171 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 08/04/2020)

08/05/2020 172 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 08/05/2020)

08/06/2020 173 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 08/06/2020)

08/06/2020

174 Order signed by Judge James S. Gwin on 8/6/2020 granting Motion for Expedited Discovery. The Court orders Respondents to respond and otherwise comply with Petitioners discovery requests as detailed in Petitioners motion for expedited discovery within 14 days of this order. (Related Doc # 44 )(S,KM) (Entered: 08/06/2020)

08/07/2020 175 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 08/07/2020)

08/10/2020 176 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 08/10/2020)

08/11/2020 177 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 08/11/2020)

08/12/2020 178 Status Report filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 08/12/2020)

08/13/2020 179 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 08/13/2020)

08/14/2020 180 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 08/14/2020)

08/17/2020 181 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 08/17/2020)

08/18/2020 182 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 08/18/2020)

08/19/2020 183 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 08/19/2020)

08/20/2020 184 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 08/20/2020)

08/20/2020

185 Motion to amend Emergency Petition and to substitute class representatives filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Attachments: # 1 Exhibit 1 - Proposed First Amended Petition)(Carey, David) (Entered: 08/20/2020)

08/21/2020 186 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 08/21/2020)

08/24/2020 187 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 08/24/2020)

08/25/2020 188 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 08/25/2020)

08/26/2020

189 Memorandum in Opposition to 164 Motion to dismiss for failure to state a claim filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Carey, David) (Entered: 08/26/2020)

08/26/2020 190 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 08/26/2020)

08/27/2020 191 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 08/27/2020)

08/28/2020 192 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 08/28/2020)

08/31/2020 193 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 08/31/2020)

09/01/2020

194 Motion to intervene as a party for an order allowing the use of protected document filed by Movant Michael J Mack. Related document(s) 64 . (Attachments: # 1 Proposed Order)(Thompson, Darin) (Entered: 09/01/2020)

09/01/2020 195 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/01/2020)

09/02/2020 196 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/02/2020)

09/03/2020 197 Opposition to 185 Motion to amend complaint filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 09/03/2020)

09/03/2020 198 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/03/2020)

09/04/2020 199 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/04/2020)

09/08/2020 200 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/08/2020)

09/09/2020 201 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/09/2020)

09/09/2020

202 Reply in support of 164 Motion to dismiss for failure to state a claim filed by Michael Carvajal, Mark Williams. (DeVito, David) (Entered: 09/09/2020)

09/10/2020

Order [non-document] entered by Judge James S. Gwin on 9/10/2020 granting in part and denying in part Motion to intervene as a party. (Related Doc # 194 ). The Court denies intervention as a party in this case. The Court further treats this motion as a request for partial release of the protective order and grants partial release of the materials for compassionate release motion. (S,KM) (Entered: 09/10/2020)

09/10/2020 203 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/10/2020)

09/11/2020 204 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/11/2020)

09/14/2020 205 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/14/2020)

09/15/2020 206 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/15/2020)

09/16/2020 207 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/16/2020)

09/17/2020 208 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/17/2020)

09/17/2020

209 Reply in support of 185 Motion to amend complaint filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Carey, David) (Entered: 09/17/2020)

09/18/2020 210 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/18/2020)

09/18/2020

211 Joint Motion to stay All Proceedings filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Carey, David) (Entered: 09/18/2020)

09/21/2020

212 True Copy of order from the USCA for the Sixth Circuit: The District Court's May 19, 2020 enforcement order is Vacated re 85 . The case is Remanded to the District Court for further proceedings re 95 Notice of Interlocutory Appeal (USCA# 20-3547). Circuit Judges: Cole, Gibbons, and Cook. Date issued by USCA 9/17/20 (H,SP) (Entered: 09/21/2020)

09/21/2020 213 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/21/2020)

09/22/2020 214 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/22/2020)

09/23/2020 215 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/23/2020)

09/24/2020 216 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/24/2020)

09/25/2020 217 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/25/2020)

09/28/2020 218 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/28/2020)

09/29/2020 219 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/29/2020)

09/30/2020 220 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 09/30/2020)

10/01/2020 221 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/01/2020)

10/02/2020 222 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/02/2020)

10/05/2020 223 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/05/2020)

10/06/2020 224 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/06/2020)

10/07/2020 225 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/07/2020)

10/08/2020 226 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/08/2020)

10/09/2020 227 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/09/2020)

10/09/2020

228 Joint Motion to stay All Proceedings filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Carey, David) (Entered: 10/09/2020)

10/13/2020 229 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/13/2020)

10/14/2020 230 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/14/2020)

10/15/2020 231 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/15/2020)

10/16/2020 232 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/16/2020)

10/19/2020 233 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/19/2020)

10/19/2020 234 Order signed by Judge James S. Gwin on 10/19/2020 granting Joint Motion and Staying Case 228 until October 30, 2020. (S,KM) (Entered: 10/19/2020)

10/20/2020 235 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/20/2020)

10/21/2020 236 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/21/2020)

10/22/2020 237 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/22/2020)

10/23/2020 238 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/23/2020)

10/26/2020 239 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/26/2020)

10/27/2020 240 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/27/2020)

10/28/2020 241 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/28/2020)

10/29/2020 242 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/29/2020)

10/29/2020

243 Joint Motion to stay All Proceedings filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Carey, David) (Entered: 10/29/2020)

10/30/2020 244 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 10/30/2020)

11/02/2020

Order [non-document] entered by Judge James S. Gwin on 11/2/2020 granting Motion to extend stay by 17 days. (Related Doc # 243 )(S,KM) (Entered: 11/02/2020)

11/02/2020 245 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 11/02/2020)

11/03/2020 246 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 11/03/2020)

11/04/2020 247 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 11/04/2020)

11/05/2020 248 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 11/05/2020)

11/06/2020 249 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 11/06/2020)

11/09/2020 250 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 11/09/2020)

11/10/2020 251 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 11/10/2020)

11/12/2020 252 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 11/12/2020)

11/13/2020 253 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 11/13/2020)

11/13/2020 254 Joint Motion to stay of All Proceedings filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 11/13/2020)

11/16/2020 255 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 11/16/2020)

11/17/2020 256 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 11/17/2020)

11/17/2020 257 Notice of Withdrawl of Attorney Joseph Mead filed by All Plaintiffs. (Mead, Joseph) (Entered: 11/17/2020)

11/18/2020 258 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 11/18/2020)

11/19/2020

Order [non-document] entered by Judge James S. Gwin on 11/19/2020 granting Motion to stay. The Court stays case an additional 14 days

from the date of this order. (Related Doc # 254 )(S,KM) (Entered: 11/19/2020)

11/19/2020 259 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 11/19/2020)

11/20/2020 260 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 11/20/2020)

11/20/2020 261 Notice of Withdrawal of Counsel David M. DeVito filed by Michael Carvajal, Mark Williams. (DeVito, David) (Entered: 11/20/2020)

11/23/2020 262 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 11/23/2020)

11/24/2020 263 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 11/24/2020)

11/25/2020 264 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 11/25/2020)

11/27/2020 265 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 11/27/2020)

11/30/2020 266 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 11/30/2020)

12/01/2020 267 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/01/2020)

12/02/2020 268 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/02/2020)

12/02/2020

269 Joint Motion to stay All Proceedings filed by Eric Bellamy, Kendal Nelson, Maximino Nieves, Craig Wilson. (Carey, David) (Entered: 12/02/2020)

12/03/2020 270 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/03/2020)

12/04/2020 271 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/04/2020)

12/07/2020 272 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/07/2020)

12/08/2020

Order [non-document] entered by Judge James S. Gwin on 12/8/2020 granting Motion to continue stay for an additional 14 days. (Related Doc # 269 )(S,KM) (Entered: 12/08/2020)

12/08/2020 273 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/08/2020)

12/09/2020 274 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/09/2020)

12/10/2020 275 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/10/2020)

12/11/2020 276 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/11/2020)

12/14/2020 277 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/14/2020)

12/15/2020 278 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/15/2020)

12/16/2020 279 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/16/2020)

12/17/2020 280 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/17/2020)

12/18/2020 281 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/18/2020)

12/21/2020 282 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/21/2020)

12/21/2020 283 Sixth Joint Motion for Stay of All Proceedings filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/21/2020)

12/22/2020 284 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/22/2020)

12/23/2020 285 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/23/2020)

12/28/2020 286 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/28/2020)

12/29/2020

Order [non-document] entered by Judge James S. Gwin on 12/29/2020 granting Motion to continue stay (Related Doc # 283 )(S,KM) (Entered: 12/29/2020)

12/29/2020 287 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/29/2020)

12/30/2020 288 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/30/2020)

12/31/2020 289 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 12/31/2020)

01/04/2021 290 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 01/04/2021)

01/05/2021 291 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 01/05/2021)

01/06/2021 292 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 01/06/2021)

01/07/2021 293 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 01/07/2021)

01/08/2021 294 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 01/08/2021)

01/08/2021 295 Stipulated Notice of Dismissal Under FRCP 41(a)(1) filed by Eric Bellamy, Kendal Nelson. (Carey, David) (Entered: 01/08/2021)

01/11/2021 296 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 01/11/2021)

01/11/2021

297 Order signed by Judge James S. Gwin on 1/11/2021 approving stipulated dismissal as to claims brought by Petitioner Kendal Nelson and Eric Bellamy. re 295 Notice (S,KM) (Entered: 01/11/2021)

01/11/2021 298 Joint Motion to stay All Proceedings filed by Michael Carvajal, Mark Williams. (Bennett, James) (Entered: 01/11/2021)

01/12/2021

Order [non-document] entered by Judge James S. Gwin on 1/12/201 granting Joint Motion to Stay until February 1, 2021. (Related Doc # 298 )(S,KM) (Entered: 01/12/2021)

01/12/2021 299 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 01/12/2021)

01/13/2021 300 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 01/13/2021)
01/14/2021 301 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 01/14/2021)
01/15/2021 302 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 01/15/2021)
01/19/2021 303 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 01/19/2021)
01/20/2021 304 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 01/20/2021)
01/21/2021 305 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 01/21/2021)
01/22/2021 306 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 01/22/2021)
01/25/2021 307 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 01/25/2021)
01/26/2021 308 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 01/26/2021)
01/27/2021 309 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 01/27/2021)
01/28/2021 310 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 01/28/2021)
01/29/2021 311 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 01/29/2021)
02/01/2021 312 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/01/2021)
02/01/2021 313 Joint Motion to stay all proceedings filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/01/2021)
02/02/2021 314 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/02/2021)
02/03/2021 315 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/03/2021)

02/04/2021 316 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/04/2021)

02/05/2021 317 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/05/2021)

02/05/2021

Order [non-document] entered by Judge James S. Gwin on 2/5/2021 granting Motion to stay until 2/15/2021. (Related Doc # 313 ).(S,KM) (Entered: 02/05/2021)

02/08/2021 318 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/08/2021)

02/09/2021 319 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/09/2021)

02/10/2021 320 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/10/2021)

02/11/2021 321 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/11/2021)

02/12/2021 322 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/12/2021)

02/12/2021 323 Joint Motion to stay All Proceedings filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/12/2021)

02/16/2021 324 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/16/2021)

02/17/2021 325 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/17/2021)

02/18/2021 326 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/18/2021)

02/19/2021 327 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/19/2021)

02/22/2021 328 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/22/2021)

02/23/2021 329 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/23/2021)

02/24/2021 330 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/24/2021)

02/25/2021 331 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/25/2021)

02/26/2021 332 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 02/26/2021)

03/01/2021 333 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 03/01/2021)

03/02/2021 334 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 03/02/2021)

03/03/2021 335 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 03/03/2021)

03/04/2021 336 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 03/04/2021)

03/05/2021 337 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 03/05/2021)

03/08/2021 338 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 03/08/2021)

03/09/2021 339 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 03/09/2021)

03/09/2021 340 Joint Motion to stay All Proceedings filed by Maximino Nieves, Craig Wilson. (Carey, David) (Entered: 03/09/2021)

03/10/2021 341 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 03/10/2021)

03/11/2021

Order [non-document] entered by Judge James S. Gwin on 3/11/2021 granting Motion to stay (Related Doc # 340 )(S,KM) (Entered: 03/11/2021)

03/11/2021 342 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 03/11/2021)

03/12/2021 343 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 03/12/2021)

03/15/2021 344 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 03/15/2021)

03/16/2021 345 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 03/16/2021)

03/17/2021 346 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 03/17/2021)
03/18/2021 347 Status Report filed by Michael Carvajal, Mark Williams. (DeCaro, Sara) (Entered: 03/18/2021)

PACER Service Center
Transaction Receipt

03/18/2021 16:59:43

PACER Login: CRClearinghouse Client Code: Peach

Description: Docket Report Search Criteria: 4:20-cv-00794-JG

Billable Pages: 25

Cost:

2.50

Exempt flag: Not Exempt

Exempt reason: Not Exempt

 
 Case: 4:20-cv-00794-JG Doc #: 1 Filed: 04/13/20 1 of 38. PageID #: 1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

CRAIG WILSON, ERIC BELLAMY, KENDAL NELSON, and MAXIMINO NIEVES, on behalf of themselves and those similarly situated,
Petitioners, v.
MARK WILLIAMS, warden of Elkton Federal Correctional Institutions; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities,

Case No. 4:20-cv-794 Judge Emergency Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief Class Action
IMMEDIATE RELIEF SOUGHT1

Respondents.

INTRODUCTION 1. As a tragic combination of infectious and deadly, COVID-19 poses a once-in-alifetime threat on a worldwide scale. Every state and territory in the United States has now been impacted, with nearly half a million cases and over 20,000 deaths reported to the Centers for Disease Control and Prevention (CDC). Even under ordinary conditions, each person who contracts this illness can be expected to infect between 2 and 3 others. 2. Cramped, overcrowded prisons amplify this threat. With thousands of people literally stacked on top of each other and unable to move around without rubbing shoulders, such environments are fundamentally incompatible with medically-indicated social distancing and hygiene protocols. As a result, they present a grave threat not only to prisoners and staff, but also

1 In addition to service of process, counsel for Petitioners have contacted attorneys for the United States, and will provide a courtesy copy of this Petition and all attachments hereto by email in order to provide actual notice on an expedited basis.
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to the broader community by enabling the spread of COVID-19 both inside and outside the prison walls.
3. This danger is playing out with disastrous consequences in Elkton Federal Correctional Institution (“FCI Elkton”), a low-security federal correctional institution with an adjacent low security satellite prison (“FSL Elkton”), collectively described as “Elkton.” As of April 12, 2020, at least 3 prisoners have died, and scores of prisoners and staff have reportedly been hospitalized, including more than a dozen who have needed ventilators to stay alive. These numbers will continue to grow exponentially. Despite knowing the risks to prisoners, staff, and the community, Elkton has failed to provide meaningful protection against the spread of the disease. Prisoners are still clustered together in confined spaces with limited access to hygiene and inadequate ventilation.
4. But even were Respondents to take basic measures to allow for cleaning and hygiene, the threat would remain. In fact, there is no set of internal protocols or practices that, in light of the current conditions and population levels, Elkton can use that will prevent further disease and death inside the prison. Declaration of Dr. Meghan Novisky ¶ 16 (attached as Exhibit A); Declaration of Dr. Joe Goldenson ¶ 25 (attached as Exhibit B). The only effective option is to begin immediately releasing2 Elkton residents based on broadly defined categories, such as membership in a high-risk class based on medical conditions, or proximity to release dates.
2 The term “release,” as used throughout this Petition, refers to discharge of incarcerated persons from the physical confines of Elkton, not necessarily release from custody. Release options may include, but are not limited to: release to parole or community supervision; transfer furlough (as to another facility, hospital, or halfway house); or non-transfer furlough, which could entail a released person’s eventual return to Elkton once the pandemic is over and the viral health threat is abated. Any releases would include requirements for testing, care, and social distancing, as informed by a public health expert.
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Novisky Decl. ¶ 17 (“Significantly reducing the prison population at Elkton as rapidly as possible

is the best line of defense to maintain the public health interests of persons incarcerated at Elkton,

correctional staff who work at Elkton, and the Ohio community”); Goldenson Decl. ¶ 33 (“It is my

public health recommendation that everyone who is medically-vulnerable to severe symptoms and

death from COVID-19 … be released from FCI Elkton and FCL Elkton immediately.”).

5. The Constitutional prohibition on cruel and unusual punishment requires

Respondents to provide safe living quarters, including protection from dangerous infectious

diseases. E.g., Helling v. McKinney, 509 U.S. 25, 33-34 (1993). Yet Respondents are unable to

comply with this Constitutional command without swift and sufficient releases. Because “[t]he

situation at FCI Elkton in particular is alarming,” and the BOP “cannot adequately protect [the

prisoner] from infection, especially in light of his vulnerability and the presence of COVID-19 in

FCI Elkton,” at least one federal court has already ordered a prisoner to be released from Elkton.

United States v. Rodriguez, No. 2:03-cr-0271, 2020 WL 1627331 (E.D. Pa., Apr. 1, 2020).

6. Time is of the essence. Delay can mean further death or serious illness.

Accordingly, Petitioners—a class and subclass of persons incarcerated at Elkton now and in the

future—bring this action and request expedited consideration and immediate release of categories

of all Petitioners and Class Members, coupled with appropriate support and conditions upon

release, as informed by public health expertise.

I.

JURISDICTION AND VENUE

7. Petitioners bring this putative class action pursuant to 28 U.S.C. § 2241 for relief

from detention that violates their Eighth Amendment rights under the U.S. Constitution.

8. This Court has subject matter jurisdiction over these claims pursuant to 28 U.S.C.

§ 2241 (habeas corpus); 28 U.S.C. § 1651 (All Writs Act); Article I, § 9, cl. 2 of the U.S.

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Constitution (Suspension Clause); 28 U.S.C. § 1331 (federal question jurisdiction); and 28 U.S.C.

§ 1346 (United States as a defendant).

9. Venue is proper in this judicial district and division pursuant to 28 U.S.C. § 2241(d)

because the Petitioners and all other class members are in custody in this judicial district and venue.

Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events or

omissions giving rise to Petitioners’ claims occurred in this district.

II.

PARTIES

10. Petitioner Craig Wilson, BOP Register Number 13730-025, has suffered from

chronic asthma since childhood, and uses a rescue inhaler and medication for breathing problems,

placing him in a high risk category for COVID-19. He is incarcerated at FCI Elkton for a

nonviolent offense, and now resides in a dorm with 150 bunks, in a cube of 8 by 9 feet that houses

2-3 prisoners. Social distancing is impossible in his environment, and he knows that if he contracts

the disease, he may die. He receives a weekly ration of soap but always runs out, and is unable to

purchase more because the commissary is closed. He asked for a grievance form in light of the

COVID-19 situation but was told there were no forms available. If he were released to home

detention, he has a stable home environment and an evidence-based recovery plan in place.

11. Petitioner Eric Bellamy, BOP Register Number 15061-088, is 52 years old, and has

a history of heart problems, including one enlarged heart valve and two valves that are

regurgitating. He is housed in a cell at FCI Elkton with 2 other men in a 6 by 8 foot area, with 150

people in the unit. He is constantly and unavoidably within 1-2 feet of other prisoners. He was

friends with Woodrow Taylor, a fellow prisoner who died from COVID-19. He was convicted of

possession of narcotics and of a firearm, and has served 16 months of a 75 month sentence. He has

no history of violence, and has a stable home environment if he is released.

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12. Petitioner Kendal Nelson, BOP Register Number 64823-060, has asthma, uses a

CPAP machine, has had a heart attack, has active coronary artery disease and a stent in an artery,

and suffers from stage 4 kidney disease. He has served 3 years of a 9 year sentence for a drug

offense and possession of a firearm. He has 170 men living in his pod at FSL Elkton, the low-

security satellite camp, in sets of 3 men living in cells designed for single occupancy. Because

many people around him are sick, he stays in his cell under the blankets as much as possible out

of fear of COVID-19. He has a stable residence available immediately upon release.

13. Petitioner Maximino Nieves, BOP Register Number 27537-050, resides at FSL

Elkton with 170 people in his unit in an open dormitory. He is about 2 feet away from other

residents when he sleeps, and it is impossible to keep 6 feet away from other prisoners during the

day. He has only about 11 months left of his sentence for conspiracy to distribute drugs. He has

no history of violence, and has a stable residence available immediately upon release.

14. Respondent Mark Williams is the warden of Elkton and currently has immediate

custody over Petitioners and all other putative Class members.

15. Respondent Michael Carvajal is the Director of the United States Bureau of Prisons

and is responsible for all people, including Petitioners, housed at Bureau of Prisons facilities,

including all structures at Elkton.

III.

FACTUAL ALLEGATIONS

COVID-19 Poses a Significant Risk of Illness, Injury, or Death

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16. The novel coronavirus that causes COVID-19 has led to a global pandemic,3 and
The United States has more confirmed cases of COVID-19 than any other country in the world.
As of April 12, 2020, there were more than 1.6 million reported COVID-19 cases throughout the world and more than 20,000 deaths in the United States.4 Projections indicate that hundreds of
thousands of people in the United States may die from COVID-19, accounting for existing interventions.5
17. “COVID-19 is twice as contagious as the flu, and 20 times more deadly.”6 The virus is “highly infectious,”7 and can be spread “easily and sustainably” from person-to-person.8 The virus can live on plastic and steel surfaces for up to 72 hours,9 and, powered by a single cough or sneeze, can be propelled in a gas cloud that extends up to 27 feet in length.10
3 Betsy McKay et al., Coronavirus Declared Pandemic by World Health Organization, WALL ST. J. (Mar. 11, 2020, 11:59 PM), https://cutt.ly/UtEuSLC. 4 See Johns Hopkins University of Medicine, Coronavirus COVID-19 Global Cases by the Center for Systems Science and Engineering at Johns Hopkins University, https://cutt.ly/StEyn2U. 5 Rick Noack, et al., White House Task Force Projects 100,000 to 240,000 Deaths in U.S., Even With Mitigation Efforts, WASH. POST. (April 1, 2020, 12:02 a.m.), https://cutt.ly/5tYT7uo. 6 Governor Mike DeWine (@GovMikeDeWine), Twitter (Mar. 14, 2020, 2:19PM), https://twitter.com/GovMikeDeWine/status/1238892579262992384?s=20 7 Goldenson Decl. ¶ 14 (noting that “only the great influenza pandemic of 1918 (the Spanish Flu as it was then known) is thought to have higher infectivity”). 8 See Centers for Disease Control and Prevention, How COVID-19 Spreads (accessed Apr. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prepare/transmission.html. 9 Neeltje van Doremalen et al., Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1, NEW ENG. J. MED., 2 (2020), available at https://doi.org/10.1056/NEJMc2004973 (accessed Apr 2, 2020). 10 Lydia Bourouiba, Turbulent Gas Clouds and Respiratory Pathogen Emissions: Potential Implications for Reducing Transmission of COVID-19, JAMA (2020), https://jamanetwork.com/journals/jama/fullarticle/2763852 (accessed Apr 2, 2020).
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18. Because the coronavirus spreads even among people who do not show symptoms,
staying away from people is the best way to prevent infection.11 In other words, everyone—
including officials at Elkton—has to act as if everyone has the disease.
19. There is no vaccine against COVID-19, and there is no known medication to
prevent or treat infection. Social distancing—deliberately keeping at least six feet of space between
persons to avoid spreading the illness12—supplemented by a vigilant hygiene regimen, including
washing hands frequently and thoroughly with soap and water, is the only known effective measure
for protecting against transmission of COVID-19.13
20. As a result, the only assured way to curb the pandemic is through dramatically
reducing contact for all.14 Consequently, every American institution—from schools15 to places of
worship,16 from businesses17 to legislatures18—has been exhorted or ordered to reduce the number
of people in close quarters, if not to empty entirely.19 The State of Ohio has issued an extraordinary
11 Novisky Decl. ¶ 6; see also, e.g., Ruiyun Li et al., Substantial undocumented infection facilitates the rapid dissemination of novel coronavirus (SARS-CoV2), SCIENCE (2020), available at https://cutt.ly/AtNrCxH. 12 Johns Hopkins University, Coronavirus, Social Distancing and Self-Quarantine, https://cutt.ly/VtYYiDG. 13 Goldenson Dec. ¶ 15. 14 Harry Stevens, Why Outbreaks Like Coronavirus Spread Exponentially, and how to “Flatten the Curve,” WASH. POST, (Mar. 14, 2020), https://cutt.ly/etYRnkz. 15 Centers for Disease Control and Prevention, Interim Guidance for Administrators of US K-12 Schools and Child Care Programs, https://cutt.ly/ItRPq5n. 16 Centers for Disease Control and Prevention, Interim Guidance for Administrators and Leaders of Community-and Faith-Based Organizations to Plan, Prepare, and Respond to Coronavirus Disease 2019 (COVID-19), https://cutt.ly/KtRPk1k. 17 Centers for Disease Control and Prevention, Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), https://cutt.ly/stRPvg4. 18 Nat’l Conf. of State Legislatures, Coronavirus and State Legislatures in the News, https://cutt.ly/4tRPQne.a 19 As of April 3, 2020, fully 311 million Americans were being urged by their City, County, Parish, Territory, and/or State governments to stay at home to reduce the spread of coronavirus.
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series of orders suspending elections, closing private businesses, cancelling sporting events,
shuttering schools, and ordering people to stay at home.20 People also have been told to undertake
aggressive sanitation measures, such as cleaning and disinfecting all surfaces, using products with
particular alcohol contents, and closing off any areas used by a sick person.21
21. Once contracted, COVID-19 can cause severe damage to lung tissue, including a
permanent loss of respiratory capacity, and it can damage tissues in other vital organs including
the heart and liver.22 Even if a person survives COVID-19, the virus can permanently damage
lungs, heart, and other organs.23
22. Approximately 1 out of 5 people who are infected with COVID-19 will need to be
hospitalized, and many of those will need intensive care.24 Such intensive care often requires
highly specialized equipment like ventilators that are in limited supply, and an entire team of care
See Sarah Mervosh, Denise Lu, Vanessa Swales, Which States and Cities Have Told Residents to Stay at Home, N.Y. TIMES (last updated Apr. 3, 2020), available at https://cutt.ly/CtDMZY0. 20 E.g., Amy Acton, Amended Director’s Stay at Home Order (Apr. 2, 2020), available at https://cutt.ly/VtB5Vam. 21 Centers for Disease Control and Prevention, Cleaning and Disinfecting Your Facility, https://cutt.ly/atYE7F9. 22 Centers for Disease Control and Prevention, Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease (COVID-19), https://cutt.ly/etRPVRl. 23Melissa Healy, Coronavirus infection may cause lasting damage throughout the body, doctors fear, LA TIMES (Apr. 10, 2020), available at https://cutt.ly/htNrJ77; see also Di Wu et al., Plasma Metabolomic and Lipidomic Alterations Associated with COVID-19, MEDRXIV 2020.04.05.20053819 (2020). For high-risk patients who survive, the effect of contracting this virus can be permanent and debilitating, and can include “profound deconditioning, loss of digits, neurologic damage, and loss of respiratory capacity.” Declaration of Dr. Jonathan Golob, Dawson v. Asher, No. 2:20-cv-00409-JLR-MAT at ¶ 4 (W.D. Wash., Mar. 16, 2020), available at https://cutt.ly/AtNrFOl. 24 Goldenson Decl. ¶¶ 7, 10; see also Letter from Faculty at Johns Hopkins School of Medicine, School of Nursing, and Bloomberg School of Public Health to Hon. Larry Hogan, Gov. of Maryland (Mar. 25, 2020) available at https://cutt.ly/stERiXk
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providers, including 1:1 or 1:2 nurse-to-patient ratios, respiratory therapists, and intensive care physicians.25
23. COVID-19 can also mean death. Worldwide, more than 100,000 people have already died from COVID-19, and that number grows each day.26 Between 0.3 and 3.5% of people infected will ultimately die from the disease.27 This percentage jumps for people in certain highrisk categories.28
24. People over the age of fifty face a greater risk of serious illness or death from COVID-19.29 In a February 29, 2020 preliminary report, individuals age 50-59 had an overall
mortality rate of 1.3%: 60-69-year-olds had an overall 3.6% mortality rate, and those 70-79 years old had an 8% mortality rate.30 However, people of all ages can get seriously ill or die. In fact, over half of the people hospitalized for COVID-19 have been under 65 years old.31
25. People of any age who suffer from the following also have an elevated risk: chronic
lung disease or moderate to severe asthma; serious heart conditions; conditions that can cause a
25 Kevin McCoy and Katie Wedell, ‘On-the-job emergency training': Hospitals may run low on staff to run ventilators for coronavirus patients, USA TODAY (Mar. 27, 2020), available at https://bit.ly/2V7rLsS. 26 World Health Organization, COVID-19 Dashboard, https://who.sprinklr.com/ 27 Goldenson Decl. ¶ 7. 28 Goldenson Decl. ¶ 8. 29 Goldenson Decl. ¶ 8; Xianxian Zhao, et al., Incidence, clinical characteristics and prognostic factor of patients with COVID-19: a systematic review and meta-analysis, MEDRXIV (Mar. 20, 2020), https://cutt.ly/etRAkmt. 30 Age, Sex, Existing Conditions of COVID-19 Cases and Deaths Chart, https://cutt.ly/ytEimUQ (data analysis based on WHO China Joint Mission Report and Chinese CCDC report published in the Chinese Journal of Epidemiology). 31 Centers for Disease Control and Prevention Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) – United States, February 12-March 16, 2020 (updated Mar. 26, 2020), https://cutt.ly/ztB53U1; see also Robin McKie, Why do some young people die of coronavirus?, THE GUARDIAN (Apr. 5, 2020), available at https://bit.ly/2x5dghp.
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person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, and prolonged use of corticosteroids and other immune weakening medications; severe obesity (defined as a body mass index of 40 or higher); diabetes; chronic kidney disease or undergoing dialysis; or liver disease.32 Early reports estimate that the mortality rate for those with cardiovascular disease was 13.2%, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer.33 Because COVID-19 affects the respiratory tract, people with moderate to severe asthma are also at a higher risk of getting very sick.34
The Dangers of COVID-19 are Heightened in Prisons 26. The imperatives of social distancing and hygiene apply with special force to prisons, where the government controls almost entirely a person’s ability to avoid others and to maintain adequate sanitation. Yet persons who live or work in prisons face a particularly acute threat of illness, permanent injury, and death, beyond that faced by the general public.35 27. As Professor Novisky, PhD, an expert on prisons and prisoner health, notes in her attached declaration, “prisons, by their very nature, are high risk sites for the spread of infectious
32 Goldenson Decl. ¶ 8; Centers for Disease Control and Prevention, Groups at Higher Risk for Severe Illness, https://bit.ly/3dYDrqI; World Health Organization, Coronavirus disease (COVID19) advice for the public: Myth busters, https://cutt.ly/dtEiCyc (“Older people, and people with pre-existing medical conditions (such as asthma, diabetes, heart disease) appear to be more vulnerable to becoming severely ill with the virus.”). 33 World Health Organization, Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), (Feb. 28, 2020), at 12 https://cutt.ly/KtD3ALr (finding fatality rates for patients with COVID-19 and co-morbid conditions to be: “13.2% for those with cardiovascular disease, 9.2% for diabetes, 8.4% for hypertension, 8.0% for chronic respiratory disease, and 7.6% for cancer”). 34 Goldenson Decl. ¶ 9. 35 Novisky Decl. ¶ 8.
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disease.”36 Dr. Goldenson, MD, a physician with decades of experience in correctional health,
agrees: “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, is significantly higher in jails, prisons, and detention centers than in the community.”37 And as one federal court has already noted, in a
case dealing specifically with the ongoing crisis at Elkton: “Prisons are tinderboxes for infectious
disease. The question whether the government can protect inmates from COVID-19 is being answered every day, as outbreaks appear in new facilities.”38
28. People in congregate environments—places where people live, eat, and sleep in close proximity—face increased danger of contracting COVID-19,39 as already evidenced by the rapid spread of the virus in even less crowded environments than prisons, such as cruise ships40 and nursing homes.41
29. Because they are forced to exist in close, shared spaces for eating, sleeping, and
bathing, it is impossible for people who are confined in prisons, jails, and detention centers to engage in the necessary social distancing required to mitigate the risk of transmission.42 High
36 Novisky Decl. ¶¶ 15-23. 37 Goldenson Decl. ¶ 21. 38 United States v. Rodriguez, No. 2:03-cr-0271, 2020 WL 1627331, (E.D. Pa., Apr. 1, 2020). 39 Novisky Decl. ¶¶ 9-10. 40 The CDC is currently recommending that travelers defer cruise ship travel worldwide. “Cruise ship passengers are at increased risk of person-to-person spread of infectious diseases, including COVID-19.” Centers for Disease Control and Prevention, COVID-19 and Cruise Ship Travel, https://cutt.ly/7tEEQvT. 41 The CDC notes that long-term care facilities and nursing homes pose a particular risk because of “their congregate nature” and the residents served. Centers for Disease Control and Prevention, Preparing for COVID-19: Long-term Care Facilities, Nursing Homes, https://cutt.ly/7tEEITH. 42 Novisky Decl. ¶ 10; Goldenson Decl. ¶ 20 (noting it is “extremely difficult, if not impossible” to implement recommended social distancing and hygiene procedures in detention settings).
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numbers of shared contact surfaces, limited access to medical care, and high numbers of people
with chronic, often untreated, illnesses living in close proximity with each other exacerbate the
dangers in detention settings.43
30. In addition to Professor Novisky and Dr. Goldenson, whose declarations are
attached to this petition, numerous public health experts have publicly warned that people held in
correctional facilities are likely to face serious, even grave, harm due to the outbreak of COVID-
19. Such experts include:
 Dr. Gregg Gonsalves, a professor at Yale School of Public Health;44  Dr. Ross MacDonald, Chief Medical Officer for Correctional Health Services;45  Dr. Marc Stern, an affiliate faculty member at the University of Washington School of
Public Health and a correctional health care consultant,46  Dr. Oluwadamilola T. Oladeru, a resident physician in the Harvard Radiation Oncology
Program at Massachusetts General Hospital, and Adam Beckman, a student at Harvard Medical School,47  Dr. Homer Venters, former chief medical officer of the New York; 48
43 Novisky Decl. ¶ 4 (prisons have “factors that aggravate the spread of COVID-19, including lack of social distancing, concentrations of immunocompromised, vulnerable adults, and lack of access to proper sanitation”); Goldenson Decl. ¶ 24; Letter from Johns Hopkins Faculty at 1, https://cutt.ly/DtB6tkA (“The close quarters of jails and prisons, the inability to employ effective social distancing measures, and the many high-contact surfaces within facilities, make transmission of COVID-19 more likely. Soap and hand sanitizers are not freely available in some facilities.”). 44 Kelan Lyons, Elderly Prison Population Vulnerable to Potential Coronavirus Outbreak, CONNECTICUT MIRROR (Mar. 11, 2020), https://cutt.ly/BtRSxCF. 45 Craig McCarthy and Natalie Musumeci, Top Rikers Doctor: Coronavirus ‘Storm is Coming,’ New York Post (March 19, 2020, 11:29 a.m.), https://cutt.ly/ptRSnVo. 46 Marc F. Stern, MD, MPH, Washington State Jails Coronavirus Management Suggestions in 3 “Buckets,” Washington Assoc. of Sheriffs & Police Chiefs (Mar. 5, 2020), https://cutt.ly/EtRSm4R. 47 Oluwadamilola T. Oladeru, et al., What COVID-19 Means for America’s Incarcerated Population – and How to Ensure It’s Not Left Behind, HEALTH AFFAIRS (Mar. 10, 2020), https://cutt.ly/QtRSYNA. 48 Madison Pauly, To Arrest the Spread of Coronavirus, Arrest Fewer People, MOTHER JONES (Mar. 12, 2020), https://cutt.ly/jtRSPnk
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 the faculty at Johns Hopkins schools of nursing, medicine, and public health,49 and  Dr. Josiah Rich, a Professor of Medicine and Epidemiology at Brown University.50
31. For example, as of February 29, 2020, at the peak of the outbreak in Wuhan,
China—the city where COVID-19 originated—over half of all new infection cases were
incarcerated people.51 On Rikers Island, the rate of infection among incarcerated people is over
eight times the rate of infection in New York City generally, and 45 times higher than the rate in
Wuhan.52 Fourteen prisoners have died of COVID-19 in Bucks County, Pennsylvania.53 Six
incarcerated people have already died of the disease at FCI Oakdale, a similar facility in
Louisiana.54 An Ohio corrections officer has also passed away.55
Existing Procedures and Protocols at Elkton Expose Class Members, Staff, and the General Public to an Unacceptable Risk of Infection, Suffering, and Death
32. People at Elkton are dying. The situation is particularly dire, even compared to
other corrections facilities. Elkton has proven that it is incapable of preventing the spread of
49 JHU Faculty Express Urgent Concern about Covid-19 Spread in Prison, Johns Hopkins Berman Institute of Bioethics, (Mar. 25, 2020) https://bioethics.jhu.edu/news-events/news/jhufaculty-express-urgent-concern-about-covid-19-spread-in-prison/ 50 Amanda Holpuch, Calls Mount to Free Low-risk US Inmates to Curb Coronavirus Impact on Prisons, THE GUARDIAN (Mar. 13, 2020) https://cutt.ly/itRSDNH. 51 Zi Yang, Cracks in the System: COVID-19 in Chinese Prisons, THE DIPLOMAT (March 9, 2020), available at https://cutt.ly/ctB6ieT. 52 These numbers likely underestimate the infection rate on Rikers Island, as they do not include the number of people contracted COVID-19 on Rikers Island but who have already been released. The rates of infection rely on publicly released data collected by the Legal Aid Society. See Legal Aid Society, Analysis of COVID-19 Infection Rate in NYC Jails (last visited Apr. 5, 2020, 3:00 p.m.), available at https://cutt.ly/RtYTbWd. 53 Press Release, Bucks County, PA, Larry R. King, Bucks County COVID-19 Deaths Reach 14; Four Cases Confirmed at Prison (Apr. 4, 2020), available at https://cutt.ly/utD6u5F. 54 Sixth inmate death from COVID-19 reported at FCI Oakdale I, KALB (Apr. 10, 2020, 2:22 pm), https://cutt.ly/htB6ahx 55 Ohio Dep’t of Rehabilitation and Correction, COVID-19 Information (updated Apr. 11, 2020), available at https://cutt.ly/ZtB6hMN.
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COVID-19—and indeed, any internal steps necessary to protect further infection will be ineffective under the current crowded conditions there.56
33. “It is difficult to overstate the devastation that a COVID-19 outbreak could inflict on a correctional facility such as FCI Elkton.”57 As of April 9, 2020, three prisoners have died in Elkton. “The medically established progression of COVID-19, combined with the pre-existing health conditions of all 3 men, makes it likely these individuals suffered tremendously leading up to their deaths.”58 “Given the way the disease has progressed elsewhere, we can expect the death toll to mount rapidly.”59
34. According to the President of the America Federation of Government Employees Local 607, a union that includes most of the staff at Elkton, as of April 8, 2020, 43 prisoners have been hospitalized outside the prison after testing positive for COVID-19 or showing symptoms of the disease, and 13 of them were on ventilators.60 An additional 8 staff members have confirmed COVID-19 diagnoses, with 2 of them on ventilators.61 These numbers can be expected to grow dramatically every day, threatening the health and lives of prisoners, staff, and the surrounding community.
35. As one federal court recently noted: “COVID-19 is now inside FCI Elkton. Many of the recommended measures to prevent infection are impossible or unfeasible in prison. The
56 Novisky Decl. ¶¶ 15-16. 57 Goldenson Decl. ¶ 28. 58 Novisky Decl. ¶ 7. 59 Goldenson Decl. ¶ 29. 60 Shane Hoover, Elkton prison union chief talks coronavirus affect on staff, TIMES REPORTER (Apr. 9, 2020), available at https://cutt.ly/JtB6Wy6. 61 Bureau of Prisons, COVID-19, https://www.bop.gov/coronavirus/ (last visited April 13, 2020, 12:10 a.m); Hoover, supra note 60.
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government’s assurances that the BOP’s ‘extraordinary actions’ can protect inmates ring hollow given that these measures have already failed to prevent transmission of the disease” at Elkton.62
36. Based on her expertise, including her knowledge and study of prisons such as Elkton, Dr. Novisky writes: “Given the structure, operations, and current conditions at Elkton, there is no realistic set of internal conditions or practices that FBOP can use that will prevent additional infection of prisoners and staff given the current number of prisoners living at Elkton.”63
37. Both experts note that social distancing is “impossible” at Elkton, putting everyone at risk.64 Those incarcerated agree: “It’s impossible to keep 6 feet of distance from others” at Elkton.65 As Petitioner Bellamy avers, in any given moment “I’m no more than 1-2 feet away from someone else, and there’s no way to keep more of a distance … I’m bumping up against people” in every aspect of daily life.66
38. “Low security Federal Correctional Institutions (FCIs) have … mostly dormitory or cubicle housing.”67 This means people residing at Elkton live in crowded quarters. Their beds
62 United States v. Rodriguez, No. 2:03-cr-0271, 2020 WL 1627331(E.D. Pa., Apr. 1, 2020). 63 Novisky Decl. ¶ 16; see also Goldenson Decl. ¶ 25 (“While every effort should be made to reduce exposure in detention facilities through internal mitigation efforts, this may be extremely difficult to achieve and sustain quickly enough.”) 64 Novisky Decl. ¶ 9 (“With continued functioning of shared spaces for bathing, eating, and sleeping, quarantine and social distancing would be impossible to implement at Elkton.”); Goldenson Decl. ¶ 32 (“Adequate social distancing would be impossible to maintain.”) 65 Declaration of Kendal Nelson (attached as Exhibit C) ¶ 3; Declaration of Eric McReynolds (attached as Exhibit D) ¶ 7 (“All day, I’m always right by somebody no matter what I’m doing, and there’s no way I can space myself off from other people. Bathroom sinks, tables in the day area, computers, they’re all close together.”). 66 Declaration of Eric Bellamy (attached as Exhibit E) ¶ 4. 67 Fed. Bureau of Prisons, About Our Facilities (last visited Apr. 13, 2020) https://www.bop.gov/about/facilities/federal_prisons.jsp
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very close to others, within a few feet.68 For example, Petitioner Bellamy is “housed in a cell with
two other men, crowded into maybe a 6-foot by 8-foot area with a bunk bed and an extra bed.”
The entire prison is “overcrowded, and every bed is taken up.” There is “way less” than the
recommended six-foot distance between beds.69
39. Each unit contains only a few sinks and showers, shared by more than a hundred
people.70 Showers and sinks are close together, making it impossible to wash yourself without
coming into contact with another.71 The few televisions, phones, and computers are shared, in
constant use, and all very close to one another.72 This further increases the risk of transmission.73
68 Declaration of Maximino Nieves (attached as Exhibit F) ¶ 3 (“We’re in 2- and 3-man cubicles, one after the other in an open dormitory… In the cubes, the person on the other side sleeps above where you read… We’re about 2 feet away from each other where we sleep.”); Nelson Decl. ¶ 4 (“All the beds are locked together and physically connected, so it’s impossible to maintain distance in the cubes.”); Declaration of Howard Jackson (attached as Exhibit G) ¶ 4 (“my bunkmate and I can never be more than 3 feet apart”); McReynolds Decl. ¶ 6 (“The racks are 2-3 to a cell. People are about 2-3 feet apart when they sleep.”); Declaration of Craig Wilson (attached as Exhibit H) ¶ 6 (“Our bunks are in very close proximity to each other, definitely less than six feet in all directions.”). 69 Bellamy Decl. ¶ 3. 70 Bellamy Decl. ¶ 8 (“The 150 or so people in my unit share 6 toilets and 12 showers, and you’re right up against people the whole time.”); Nieves Decl. ¶ 3 (“There are 170 people in my unit, sharing small bathrooms with 4 urinals, 10 showers, and 5 toilets, which we share.”); Nelson Decl. ¶ 3 (noting there are 5 toilets and 5 sinks for 170 men); Wilson Decl. ¶ 6 (“There are 10 sinks, 18 showers, 6 toilets, and 6 urinals for all 150 people.”); Declaration of Arsenio Arzola (attached as Exhibit I) ¶¶ 4-5 (12 shared showers for 165 people). 71 Arzola Decl. ¶ 5 (“The sinks are so close to each other than when we brush our teeth or wash our hands, the splash from the next man’s toothpaste hits you”); McReynolds Decl. ¶ 7 (“Bathroom sinks, tables in the day area, computers” are all close together”). 72 Nieves Decl. ¶ 3 “In the TV rooms, the tables are right on top of each other.”); Wilson Decl. ¶ 9 (“Both the phones and the computers are less than two feet apart and are all in constant use.); Arzola Decl. ¶ 6 (“Phones are about 4 inches apart, and computers are about 8 inches apart, and the lines to get to them are ridiculous, especially during the day.”); McReynolds Decl. ¶ 6 (talking on the phone, “I’m right next to someone, so close that I could kick him in the ankle.”) 73 Goldenson Decl. ¶¶ 21, 31.
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40. When residents go to eat, they are forced to be very close to one another. They stand in line for their food close to each other.74 And after receiving their food, eat close to each other as well: “There’s nowhere where we can eat without bumping right up against each other.”75
41. The prison has “sent out memos telling [the prisoners] to keep your distance and
wash your hands,” but because of the constant and unavoidable proximity that is inherent to life at Elkton at its current level of crowding, it is impossible for anyone to comply.76
42. People at Elkton do not have an adequate supply of hygiene products, so “it is difficult (if not impossible) for prisoners to follow recommended sanitation procedures.”77 “Soap and cleaning supplies are scarce. The commissary has been closed for a week.”78 “There are no dispensers for soap or hand sanitizer anywhere in the unit.”79 With the commissary closed, the
rationed small bottle of soap given to each person has to be used for washing hair, body, and hands, so Petitioner Wilson has run out of soap, as “everyone has.”80 There is limited access to other cleaning supplies.81
43. Elkton is not able to keep contagious prisoners away from others.82 Prisoners who
show enough symptoms are sent to a quarantine unit, where they are placed in close proximity to
74 Bellamy Decl. ¶ 4; Wilson Decl. ¶ 6; Jackson Decl. ¶ 4 (“At meal times, they call us in unitby-unit to go over and get our trays. Even at that time, we still can’t be six feet apart, like when we’re lined up.”); Arzola Decl. ¶ 6 (“We have controlled movements, like when we go to eat. It’s a stampede of people trying to get through a 4-6 foot wide door.”); McReynolds Decl. ¶ 6 (“We walk [to get food] at our own risk, with no spacing.”). 75 Nelson Decl. ¶ 5. 76 Jackson Decl. ¶ 7. 77 Novisky Decl. ¶ 12; see also Goldenson Decl. ¶ 20. 78 Arzola Decl. ¶ 7. 79 Wilson Decl. ¶ 10. 80 Wilson Decl. ¶ 10. 81 Nelson Decl. ¶ 10. 82 Novisky Decl. ¶ 6.
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others who may be sick, increasing the likelihood that they will ultimately become infected if they
aren’t already.83 Prisoners who have some symptoms but no fever are kept in the general
population.84 For example, Petitioner Nieves knew another prisoner who “was showing symptoms
for a while but they left him in his bunk until finally moving him to medical.”85 That prisoner
passed away a short time later.
44. Prisoners enter and exit quarantine in short order.86 Prisoners who are known to
have been directly exposed to prisoners who became ill are kept in close contact with other
prisoners.87 And people outside of quarantine clean the areas where people are sick.88
45. Mr. Arzola, a resident of FCI Elkton, recounts his interaction with a sick cellmate:
My cellmate, a man named Michael Bear, got very sick. He is about 68 years old and when the coronavirus first hit, he went to Medical three times in one week but was returned to the housing unit. I had to serve as his caretaker or first responder and take care of him. He was coughing, sneezing, moaning, and defecating on himself. I had no gear, but I provided him some medication from the commissary and tried to help him get dressed, feed him, and move him around. I’m not an EMT, just a human being who has an elderly dad at home who I pray is getting the help he needs.89
83 McReynolds Decl. ¶¶ 3-5. 84 Jackson Decl. ¶ 3 (“[P]retty much everywhere I go, I’m standing next to someone who has symptoms.”); Arzola Decl. ¶ 10 (“Some people with symptoms are being taken immediately to medical, others are left behind.”); McReynolds Dec. ¶ 2 (stating that he was coughing for “about a week, and then a fever just came on all of a sudden,” but he was not moved into quarantine until he had a fever). 85 Nieves Decl. ¶ 6. 86 Nelson Decl. ¶ 8; Arzola Decl. ¶ 10 (“Prisoners are not being quarantined for 14 days. They’re being sent back to units while still showing symptoms, and housed right back with us in the cubes.”). 87 Nieves Decl. ¶ 5 (“But for those of us like me who have been in contact but are showing no symptoms, they don’t do anything at all for us.”); Arzola ¶ 10 (“Nothing has been done with me or my other cellmate, even though we were so close to a sick person.”). 88 Wilson Decl. ¶ 8 (“A friend of mine who works in Medical was made to clean the cubes of those who were sick, and he ultimately got very sick and was put on life support.”). 89 Arzola Decl. ¶ 3.
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46. Even if Elkton provided effective isolation for people with symptoms, asymptomatic people can still spread the disease and yet remain in close contact with other prisoners.90
47. Elkton also does nothing to protect high-risk prisoners—such as those over the age of 50, or those who, like Petitioners Bellamy, Nelson, and Wilson, have medical histories or conditions that place them at greater risk—from exposure.91
48. After speaking with the Warden at Elkton and other BOP officials, U.S. Representative Bill Johnson described a desperate situation within the prison:
We've got to protect the staff and inmates at Elkton from the COVID-19 outbreak, and right now that facility is like a petri dish, a breeding ground for the virus. Staff members are coming home to their families and communities after their shifts, and inmates are in close proximity to each other with limited means to isolate or quarantine. And, the hospitals in the region run the risk of being overwhelmed if the outbreak isn’t stopped in its tracks. These hospitals, some of them very small rural community hospitals, need to be ready in case there is a sudden outbreak in their own local communities; and, they must have the capability and capacity perform their regular duties.92 49. The risk of infection is not limited to Elkton’s prisoners. “Correctional staff must be in close contact with prisoners in the course of their regular jobs to enforce security protocols, escort prisoners across cell blocks and units, administer medications, and supervise meal distribution, for example.”93 Staff members do not have access to appropriate protective
90 Novisky Decl. ¶ 6; see also McReynolds Decl. ¶ 7 (noting that there remain “people who might be carriers” but are showing no symptoms). 91 Bellamy Decl. ¶ 6; Jackson Decl. ¶ 7. 92 Rep. Bill Johnson, Statement on FCI Elkton (Apr. 6, 2010), available at https://billjohnson.house.gov/news/documentsingle.aspx?DocumentID=402824 93 Novisky Dec. ¶ 11.
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equipment, or do not wear it.94 In fact, several staff members at Elkton have already tested positive for COVID-19.
50. The head of the union that represents Elkton prison employees says the situation is worse than reported. Staff are scared and believe “the Bureau of Prisons is doing nothing to help their first-line staff members.”95 Staff “have been told to presume we have all been exposed,” and are concerned that their exposure will “risk our families' lives.”96 “We believe more could have been done to help stop the spread of COVID-19 at these facilities.”97
51. Corrections officers suing a similar federal facility in Oakdale have brought a lawsuit seeking hazard pay pointing to harrowing complaints: one “performed work in close proximity to objects, surfaces, and/or individuals infected with COVID-19.”98 Another “transported an inmate infected with COVID-19” and was given personal protective equipment only “after he had spent a significant amount of time with the inmate.”99
52. The Elkton staff’s fears of contracting COVID-19 in the confined prison space have invariably impacted the prisoners as well. “They’re clearly avoiding us.”100 “They don’t come into the pods as much or walk around.” “There’s less of them around and they’re all trying to keep their distance, which means nobody is around to help us. The counselor isn’t here, and a case manager
94 Nelson Decl. ¶ 9; Wilson Decl. ¶ 13. 95 Shane Hoover, Elkton prison union chief talks coronavirus affect on staff, TIMES REPORTER (Apr. 9, 2020), https://cutt.ly/JtB6Wy6. 96 Janet Rogers, Protest outside Elkton Prison in Lisbon over treatment of sick prisoners, staff, WFMJ (April 11, 2020; 8:08 p.m.), https://cutt.ly/2tNqkcj 97 Id. 98 Complaint, Braswell v. United States of America, Civil Action No. 20-cv-359C at ¶ 23 (Fed. Cl. Mar. 27, 2020), available at https://www.classaction.org/media/braswell-et-al-v-the-unitedstates-of-america.pdf. 99 Id. 100 Nieves Decl. ¶ 8.
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didn’t come in because he’s sick.”101 Even those who are “sympathetic” to the prisoners are unable
to help.102
53. Further, Elkton is not sealed off from the community outside them. “While jails,
prisons, and detention centers are often thought of as closed environments, this is not the case.”103
Indeed, the fact that Elkton is not a closed environment is how the infection made its way inside
in the first place.104 Even after BOP’s lockdown, possibly-infected-but-asymptomatic employees
are still going home and returning to Elkton.105
54. Moreover, “Elkton’s medical staffing right now is at only 50 percent of what it
should be,” and prisoners and staff with serious symptoms must be treated in community
hospitals.106 Yet there are limited hospitals in the region where Elkton is located, and they “run the
risk of being overwhelmed if the outbreak [at Elkton] isn’t stopped in its tracks.”107 Columbiana
County, where FCI Elkton is located, has reported 96 cases of COVID-19 as of April 11.108 The
101 Bellamy Decl. ¶ 9. 102 Wilson Decl. ¶ 13 (further noting that the staff are “hiding,” and “we only see them during count times”). 103 Goldenson Decl. ¶ 22. 104 Wilson Decl. ¶ 3 (a protocol to keep COVID-19 out of the prison was unsuccessful and was abandoned); Nelson Decl. ¶ 11 (a memo was circulated telling prisoners that a staff member had brought in the virus). 105 Goldenson Decl. ¶ 23 (“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.”); Novisky Decl. ¶ 13 (“With institutional staff filtering in and out of Elkton on a daily basis, staff can easily carry the infection from the community to the prison and vice versa.”). Cf. Wilson Decl. ¶ 3 (staff stated that they didn’t want to cooperate with a plan to keep them on the grounds for 2-week intervals). 106 Tom Giambroni, National Guard sent to help Elkton prison, THE REVIEW (Apr. 12, 2020), https://cutt.ly/atNqRkA. 107 Rep. Bill Johnson, Statement on FCI Elkton (Apr. 6, 2010), available at https://billjohnson.house.gov/news/documentsingle.aspx?DocumentID=402824 108 Rich Exner, Mapping Ohio’s 6,250 coronavirus cases, Saturday’s update, trend graphics, CLEVELAND.COM (Updated Apr. 12, 2020), https://cutt.ly/ttNqIyg
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county has two hospitals, East Liverpool City Hospital and Salem Regional Health Center, with a combined total of 219 beds and only 20 ICU beds.109 Neighboring Mahoning County offers an
additional 61 ICU beds, but has reported nearly four times the number of cases as Columbiana County.110 Ohio’s supply of ventilators is not publicly known, but both ventilators and beds are likely to be in short supply statewide as the pandemic continues.111
55. Thus, the growing concentration of infected prisoners in unsafe conditions within
the Elkton is dangerous not only to the prisoners and staff, but also puts all of the surrounding community at acute risk.112 Release of qualified prisoners to home confinement is necessary to reduce this concentration and the risks it poses to the safety of the community.113
56. Ohio Governor DeWine declared “there is no doubt this prison needs help.”114 In
response, the Governor sent 26 members of the National Guard to the prison to assist with ill
prisoners at Elkton. The National Guard, however, are not medical professionals nor are they
providing security. Their role at the prison is limited, and prisoners outside of the medical facility
109 Rich Exner, How many hospital beds are near you? Details by Ohio county, CLEVELAND.COM (Mar. 23, 2020), https://cutt.ly/otNqAgp. 110 Id.; Exner, supra note 108. 111 See Anne Saker and Terry DeMio, Coronavirus in Ohio: How many hospital beds, ventilators on hand? Probably not enough, CINCINNATI ENQUIRER (Mar. 20, 2020), available at https://cutt.ly/NtNq001. 112 Goldenson Decl. ¶¶ 22-23; Novisky Decl. ¶¶ 13-14. See also Yousur Al-Hlou, Kassie Bracken, Leslye Davis & Emily Rhyne, How Coronavirus at Rikers Puts All of N.Y.C. at Risk, N.Y. TIMES (Apr. 8, 2020), https://www.nytimes.com/video/us/100000007059873/coronavirusrikers-island.html (at 2:04, “it’s not just about who’s in the jails right now, it’s really about the city”; at 5:25, noting a consensus among prosecutors and public defenders that releases are not happening quickly enough). 113 Goldenson Decl. ¶¶ 32-33; Novisky Decl. ¶¶ 16-22. 114 Coronavirus: Governor orders National Guard to assist at federal prison, WHIO (April 6, 2020 3:00 PM), https://cutt.ly/EtNqMW6.
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have not seen them.115 Indeed, to the extent that National Guard personnel are entering and exiting
the facility routinely, they may provide another vector for COVID-19 to spread to the surrounding community.116
57. With these dire situations, Petitioners fear for their lives. “I feel like I’ve been handed a death sentence,” states Petitioner Craig Wilson.117 Yet prisoners remain housed in dangerous conditions, and their concerns are being ignored.118
Immediate Relief is Needed to Prevent Further Unnecessary Suffering and Loss of Life 58. The growing numbers of ill and dead at Elkton “make it clear that current measures
being taken by the FBOP are not sufficient in strength nor impact to adequately protect its staff, its prisoners, or the public.”119 “The death rate [at Elkton] will increase substantially before it starts to diminish without major interventions.”120
59. Because of the severity of the threat posed by COVID-19, and its potential to
rapidly spread throughout a correctional setting, public health experts recommend the rapid release from custody of people most vulnerable to COVID-19.121 Dr. Novisky urges Elkton “to release as many older incarcerated adults from the prison as possible”122 and to make efforts to “release those
115 Wilson Decl. ¶ 13; Nelson Decl. ¶ 16. 116 See Goldenson Decl. ¶ 23; Novisky Decl. ¶ 13. 117 Wilson Decl. ¶ 14. 118 Wilson Decl. ¶ 15 (“On March 30, 2020, I filed a request for home detention with the warden, but have gotten no response. I’ve asked for a grievance form to file, but I’ve been told that there are no forms available. All concerns that I and others have raised to staff are being ignored.”) 119 Novisky Decl. ¶ 6. 120 Goldenson Decl. ¶ 32. 121 Goldenson Decl. ¶ 33; Novisky Decl. ¶¶ 18-19; see also, e.g., Josiah Rich, Scott Allen, and Mavis Nimoh, We must release prisoners to lessen the spread of coronavirus, WASHINGTON POST (Mar. 17, 2020), available at https://wapo.st/2JDVq7Y. 122 Novisky Decl. ¶ 18
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at the prison with pre-existing chronic health conditions, most importantly those with respiratory conditions, cancer, heart disease, diabetes, kidney disease, HIV, and blood disorders.”123 Dr. Goldenson agrees: “It is my public health recommendation that everyone who is medicallyvulnerable to severe symptoms and death from COVID-19, as defined in this lawsuit, be released from FCI Elkton and FCL Elkton immediately.”124
60. Release protects the people with the greatest vulnerability to COVID-19 from transmission of the virus, and also allows for greater risk mitigation for people held or working in a prison and the broader community.125 Release of the most vulnerable people from custody also reduces the burden on the region’s health care infrastructure by reducing the likelihood that an overwhelming number of people will become seriously ill from COVID-19 at the same time.126
61. As Dr. Novisky explains: “Given the structure, operations, and current conditions at Elkton, there is no realistic set of internal conditions or practices that FBOP can use that will prevent additional infection of prisoners and staff given the current number of prisoners living at Elkton.” “Significantly reducing the prison population at Elkton as rapidly as possible is the best line of defense to maintain the public health interests of persons incarcerated at Elkton, correctional staff who work at Elkton, and the Ohio community.”127 “[F]ailing to do so will have grave consequences and long-term traumatic impacts for many.”128
123 Novisky Decl. ¶ 19 124 Goldenson Decl. ¶ 33. 125 Novisky Decl. ¶ 13. 126 Novisky Decl. ¶ 14. 127 Novisky Decl. ¶ 17. 128 Novisky Decl. ¶ 17; see also Goldenson Decl. ¶ 32 (“The death rate will increase substantially before it starts to diminish without major interventions.”)
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62. The outbreaks in corrections facilities around the country underscore the need for
immediate and significant reductions in population.129 Courts and executive branch officials
elsewhere in the country have accepted this reality and begun broad-based, categorical releases.130
Internationally, governments and jail staff have recognized the threat posed by COVID-19 and
released high numbers of detained persons.131 Domestically, jail administrators in Cuyahoga
County;132 San Francisco, California;133 Jefferson County, Colorado;134 and the State of New
Jersey,135 among others, have concluded that widespread jail release is a necessary and appropriate
public health intervention.
63. At least one federal court has already issued an order releasing a prisoner from
Elkton, citing the disturbing health conditions there.136 The Court found “[t]he situation at FCI
Elkton in particular is alarming,” and the BOP “cannot adequately protect [the prisoner] from
infection, especially in light of his vulnerability and the presence of COVID-19 in FCI Elkton.”137
129 See supra ¶ 31. 130 See, e.g., Memorandum and Order, Thakker v. Doll, No. 1:20-CV-0480 (M.D.Pa. Mar. 31, 2020) at Doc. No. 47 (categorically releasing petitioners who “suffer[] from chronic medical conditions and face[] an imminent risk of death or serious injury if exposed to COVID-19). 131 In Iran, for example, more than 85,000 people were released from jails to curb the spread of coronavirus. US Jails Begin Releasing Prisoners to Stem COVID-19 Infections, BBC NEWS (Mar. 19, 2020), https://cutt.ly/9tRDyb3 (noting Iran’s release of over 85,000 prisoners in response to the virus). 132 Scott Noll, Cuyahoga County Jail Releases Hundreds of Low-Level Offenders to Prepare for Coronavirus Pandemic, NEWS5 CLEVELAND (Mar. 20, 2020), https://cutt.ly/CtRSHkZ. 133 Megan Cassidy, Alameda County Releases 250 Jail Inmates Amid Coronavirus Concerns, SF to Release 26, SAN FRANCISCO CHRONICLE (Mar. 20, 2020), https://cutt.ly/0tRSVmG. 134 Jenna Carroll, Inmates Being Released Early from JeffCo Detention Facility Amid Coronavirus Concerns, KDVR COLORADO (Mar. 19, 2020), https://cutt.ly/UtRS8LE. 135 Erin Vogt, Here’s NJ’s Plan for Releasing Up to 1,000 Inmates as COVID-19 Spreads, NEW JERSEY 101.5 (Mar. 23, 2020), https://cutt.ly/QtRS53w. 136 United States v. Rodriguez, No. 2:03-cr-0271, 2020 WL 1627331(E.D. Pa., Apr. 1, 2020 137 Id.
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Deciding that release was the only acceptable option, the Court noted that even lengthy prison sentences “did not include incurring a great and unforeseen risk of severe illness or death.”138
64. The United States Attorney General recognized the “significant level of infection” at Elkton and over a week ago, suggested “immediately” “mov[ing] vulnerable inmates” to home confinement.139 This memorandum, however, lacks specificity and oversight, has not been significantly implemented, and has not led to the necessary immediate categorical release of appropriate prisoners to home confinement.
65. Although the Attorney General’s April 3 Memo directs Respondent Carvajal to implement the review process “immediately” and “immediately maximize appropriate transfers to home confinement,” Elkton’s response has been slow, piecemeal, and inadequate to mitigate the spread of COVID-19. Critical decisions are left entirely to the discretion of BOP personnel, who have already demonstrated that they lack the expertise and resources to implement Attorney General Barr’s directives and otherwise deal with the COVID-19 outbreak at Elkton.140 Even before President Trump signed the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Respondent Carvajal had the authority to release vulnerable prisoners in light of the
138 Id. 139 Memorandum from Attorney General William Barr to Director of Bureau of Prisons, The Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 (Apr. 3, 2020), available at https://politi.co/2UV3JBi; see also CARES Act, P.L. 116-136, § 12003(b)(2) (2020) (expanding home confinement authorization) 140 Goldenson Decl. 32 (“[L]eaving implementation in the hands of local officials alone, who lack the expertise and resources and were incapable of preventing the outbreak in the first place or treating those who eventually died, is insufficient.”)
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pandemic.141 He did not. Indeed, even while noting that prisoner concerns are “understandable,” Government attorneys continue to oppose release in individual cases for Elkton prisoners.142
66. It has now been several days since Attorney General Barr’s April 3 Memo “directing” Respondent Carvajal to “move with dispatch in using home confinement” for vulnerable prisoners. Respondents have not moved with dispatch. People will suffer and die while the process plays out. Given this track record, it defies reality that Elkton could now miraculously implement AG Barr’s directives on its own, in line with CDC guidelines143 and with the combination of speed and care for human life that the moment requires.144
67. Reports from prisoners confirm that the painstakingly slow, case-by-case approach is inadequate and certainly is not being implemented with dispatch. Petitioner Nieves, for example, resides in FSL Elkton, the even lower-security satellite camp of what is already a low-security prison. He is a nonviolent first-time offender, has only about 6 percent—approximately 11 months—of his sentence remaining, and has a stable residence awaiting him upon release. Around the time of the Attorney General’s April 3 Memo, he was among 15 prisoners who were told that they would be released after a short quarantine. Four days later, he and 4 others of that group were
141 18 U.S.C. § 3582. 142 See, e.g., United States’ Opposition to Defendant’s Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), United States v. Jeremy Rodriguez, No. 03-271 (E.D. Pa. Mar. 27, 2020). 143 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. 144 Id.; see also Novisky Decl. ¶¶ 18-21.
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abruptly put back into the regular population, with no explanation why. It is unclear whether any of the others have been released.145
68. A case-by-case review of prisoners is both unnecessary and inadequate to the moment, in which time is of the essence. A prisoner placed by BOP in a low security prison such as Elkton means that BOP has determined the prisoner presents “no public safety factors,” for whom there is no “relevant factual information regarding the inmate’s current offense, sentence, criminal history or institutional behavior that require[] additional security measures be employed to ensure the safety and protection of the public.”146 Instead, categorical movement of prisoners away from Elkton based on their vulnerability to COVID-19 is the only effective approach.147
69. Delay has already likely cost lives and led to needless suffering from COVID-19 at Elkton, but it is not too late to act. “Although the FBOP delay has already meant numerous prisoners and staff at Elkton have been infected (some of whom have died), it is not too late to take these steps, which can help prevent the situation from further deteriorating and causing unnecessary suffering to those who remain.”148 Without significant action, the conditions at Elkton “will escalate further,” and “many more incarcerated individuals and staff will become infected and will face elevated risks for medical complications and mortality.”149
145 Nieves Decl. ¶¶ 1, 9; see also Nelson Decl. ¶ 17 (confirming that a group of people was gathered for release, but many were later put back into the regular population). 146 BOP Program Statement P5100.08 (9/12/06) available at https://www.bop.gov/policy/progstat/5100_008.pdf. 147 See Goldenson Decl. ¶ 33; Novisky Decl. ¶ 18. 148 Novisky Decl. ¶ 23. See also Novisky Decl. ¶ 8 (“Based on my expertise on the health related risks associated with incarceration, it is my belief that if serious action is not taken swiftly, prisons under the jurisdiction of the FBOP, including Elkton, will escalate further”); Goldenson Decl. ¶ 32 (“The death rate will increase substantially before it starts to diminish without major interventions”). 149 Novisky Decl. ¶ 6.
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70. Because the Respondent have failed to act, immediate judicial intervention is

necessary to prevent the continued unconstitutional exposure of prisoners at Elkton to serious

illness and death.

71. Accordingly, expedited release—with social distancing, testing, and other expert-

guided measures as necessary—is needed not only to prevent irreparable harm to members of the

medically-vulnerable subclass, but also to reduce the incarcerated population at Elkton sufficiently

to ensure proper social distancing to reduce transmission for all class members, staff, and the wider

public.

IV.

CLASS ACTION ALLEGATIONS

72. Petitioners bring this action pursuant to Rule 23 of the Federal Rules of Civil

Procedures on behalf of themselves and a class of similarly situated individuals.

73. Petitioners each seek to represent a class of all current and future people in post-

conviction custody at Elkton (“Class”), including a subclass of persons who, by reason of age or

medical condition, are particularly vulnerable to injury or death if they were to contract COVID-

19 (“Medically-Vulnerable Subclass”).

74. The Medically-Vulnerable Subclass is defined as all current and future persons

incarcerated at Elkton over the age of 50, as well as all current and future persons incarcerated at

Elkton of any age who experience: chronic lung disease or moderate to severe asthma; serious

heart conditions; conditions that can cause a person to be immunocompromised, including cancer

treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled

HIV or AIDS, or prolonged use of corticosteroids and other immune weakening medications;

severe obesity (defined as a body mass index of 40 or higher); diabetes; chronic kidney disease or

undergoing dialysis; or liver disease.

29

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75. Each Petitioner can represent the Class because each Petitioner is currently housed at Elkton. Petitioners Bellamy, Nelson, and Wilson can also represent the Medically-Vulnerable Subclass because each Petitioner is over the age of 50 and/or has one of the conditions listed in the definition of the Subclass above.
76. This action has been brought and may properly be maintained as a class action under Federal law. It satisfies the numerosity, commonality, typicality, and adequacy requirements for maintaining a class action under Fed. R. Civ. P. 23(a).
77. Joinder is impracticable because (1) the classes are numerous; (2) the classes include future members, and (3) the class members are incarcerated, rendering their ability to institute individual lawsuits limited, particularly in light of the BOP’s current 14-day lockdown and generally reduced legal visitation and court closures in the Northern District of Ohio instituted to address COVID-19 concerns.
78. There are approximately 2,417 people in the proposed Class, and, upon information and belief, hundreds of people in the proposed Medically-Vulnerable Subclass.150
79. Common questions of law and fact exist as to all members of the proposed Class and Subclass: all have a right to receive adequate COVID-19 prevention, testing, and treatment.
80. Named Petitioners have the requisite personal interest in the outcome of this action and will fairly and adequately protect the interests of the class. Petitioners have no interests adverse to the interests of the proposed class. Petitioners retained pro bono counsel with experience and
150 Fed. Bureau of Prisons, FCI Elkton (last visited Apr. 12, 2020), https://www.bop.gov/locations/institutions/elk/.
30

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success in the prosecution of civil rights litigation. Counsel for Petitioners know of no conflicts

among proposed class members or between counsel and proposed class members.

81. Respondents have acted on grounds generally applicable to all proposed Class

members, and this action seeks declaratory and injunctive relief. Petitioners therefore seek class

certification under Rule 23(b)(2).

82. In the alternative, the requirements of Rule 23(b)(1) are satisfied, because

prosecuting separate actions would create a risk of inconsistent or varying adjudications with

respect to individual class members that would establish incompatible standards of contact for the

party opposing the proposed classes.

V.

ARGUMENT

Petitioner’s Incarceration Amid the COVID-19 Outbreak in Elkton Violates Their Rights to Constitutional Conditions of Confinement

83. Corrections officials have a constitutional obligation to protect incarcerated people

from a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 828 (1994). Indeed,

under the Eighth Amendment, prison officials “must provide humane conditions of confinement;

… must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must

take reasonable measures to guarantee the safety of the inmates[.]” Id. at 832 (internal quotation

marks omitted). This obligation also requires corrections officials to address prisoners’ serious

medical needs—including needs far less dire than those at stake here. See Estelle v. Gamble, 429

U.S. 97, 104 (1976); Brown v. Plata, 563 U.S. 493, 531-32 (2011); Flanory v. Bonn, 604 F.3d 249,

255 (6th Cir. 2010) (prison officials violated Eighth Amendment for failure to provide prisoner

with toothpaste for 337 days, creating future health risk). Thus, for example, the Sixth Circuit has

found Constitutional issues with exposing a prisoner to environmental tobacco smoke when that

exposure “causes [plaintiff] sinus problems and dizziness,” Talal v. White, 403 F.3d 423, 427 (6th

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Cir. 2005); see also Helling v. McKinney, 509 U.S. 25, 28, 35 (1993) (prisoner stated a valid Eighth Amendment claim against prison officials who required him to share cell with a prisoner who exposed him to high levels of second-hand smoke); Palacio v. Hofbauer, 106 F. App’x 1002, 1005 (6th Cir. 2004) (exposure to smoke violates Eighth Amendment when a prisoner has “a medical condition that is exacerbated by” second-hand smoke and the smoke “bothers” other prisoners).
84. This obligation requires corrections officials to protect incarcerated people from infectious diseases like COVID-19; officials may not wait until someone tests positive for the virus and an outbreak begins. McKinney, 509 U.S. at 33-34 (“That the Eighth Amendment protects against future harm to inmates is not a novel proposition … It would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them”); Stefan v. Olson, 497 F. App’x 568, 577 (6th Cir. 2012) (the proposition that “the Eighth Amendment protects against future harm to inmates is not a novel proposition.”); see also Farmer, 511 U.S. at 833 (“[H]aving stripped [prisoners] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.”). By then it is too late. That one individual would have almost certainly infected untold numbers of people before displaying symptoms.
85. Prison officials violate this affirmative obligation by showing “deliberate indifference” to the substantial risk of serious harm. Farmer, 511 U.S. at 828. “Deliberate indifference has two components to it: objective and subjective.” Villegas v. Metro. Govt. of Nashville, 709 F.3d 563, 568 (6th Cir. 2013). “[T]he objective component … is met upon a showing that a detainee faced a substantial risk of serious harm and that such a risk is one that society chooses not to tolerate.” Id. at 569. The subjective component is satisfied when an official has “(1) subjectively perceived facts from which to infer substantial risk to the prisoner, (2) did in
32

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fact draw the inference, and (3) then disregarded that risk.” Santiago v. Ringle, 734 F.3d 585, 591 (6th Cir.2013) (citations and internal quotation marks omitted). Such indifference may be “infer[red] from circumstantial evidence, including ‘the very fact that the risk was obvious,’ that a prison official knew of a substantial risk.” Id. (quoting Dominguez v. Corr. Med. Servs., 555 F.3d 543, 550 (6th Cir. 2009))
86. With respect to an impending infectious disease like COVID-19, deliberate indifference is satisfied when corrections 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, 509 U.S. at 33, 36 (holding that a prisoner “states a cause of action … by alleging that [corrections officials] have, with deliberate indifference, exposed him to conditions that pose an unreasonable risk of serious damage to future health”); see also Hutto v. Finney, 437 U.S. 678, 682-685 (1978) (recognizing the need for a remedy where prisoners were crowded into cells and some had infectious diseases).
87. Here, COVID-19 is “sure or very likely to cause serious illness,” and even waiting until “next week” to attempt internal mitigation efforts may be too long. Respondents are aware of the risk, which is obvious, significant, and severe.
88. As noted above, there are no mitigation efforts that Elkton could undertake that would prevent the risk of contraction—and possible later spread to the non-prison community— to any acceptable degree, other than immediate release of the Medically-Vulnerable Subclass and potentially more, such as those who are approaching the conclusions of their sentences. Respondents are aware that they are unable to control the spread of COVID-19 in Elkton, yet have failed to take effective action to protect prisoners or staff from further infection.
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89. Accordingly, Elkton’s failure to take medically-required steps to prevent disease and death constitutes deliberate indifference. Their nominal gestures—as by sending directives to the prisoners to engage in social distancing where it is flatly impossible to do so—do not suffice. See, e.g., Helling, 509 U.S. at 33, 36; Scicluna v. Wells, 345 F.3d 441, 446 (6th Cir. 2003) (denying qualified immunity for official that placed “a prisoner in need of urgent medical attention to a facility that the official knows is unable to provide the required treatment”).
This Petition is an Appropriate Vehicle to Remedy these Violations 90. Section 2241(c)(3) allows this court to order the release of prisoners like Petitioners who are held “in violation of the Constitution.” 28 U.S.C. 2241(c)(3); Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (“It is clear, not only from the language of §§ 2241(c)(3) and 2254(a), 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.”); Peyton v. Rowe, 391 U.S. 54, 67 (1968) (Section 2241(c)(3) can afford immediate release for claims other than those challenging the sentence itself); cf. Ziglar v. Abbasi, 137 S. Ct. 1843, 1862-63 (2017) (“Indeed, the habeas remedy, if necessity required its use, would have provided a faster and more direct route to relief than a suit for money damages. A successful habeas petition would have required officials to place respondents in less-restrictive conditions immediately[.]”). 91. “[A]n attack upon the execution of a sentence [as opposed to an attack on the validity of the conviction itself] is properly cognizable in a 28 U.S.C. § 2241(a) habeas petition.” United States v. Jalili, 925 F.2d 889, 893–94 (6th Cir. 1991); see also Solano-Moreta v. Fed. Bureau of Prisons, No. 17-1019, 2018 WL 6982510, at *1 (6th Cir. Sept. 24, 2018) (complaint
34

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about being improperly confined at a particular facility “arguably constitutes an attack upon the

execution of Solano-Moreta's sentence that is properly brought under § 2241”).

VI.

CLAIM FOR RELIEF

FIRST CLAIM FOR RELIEF

Unconstitutional Conditions of Confinement in Violation of the Eighth Amendment to the U.S. Constitution
Class including Medically-Vulnerable Subclass versus All Respondents 28 U.S.C. §§ 1651, 2241 & United States Constitution, Art. I, § 9

92. Under the Eighth Amendment, persons in carceral custody have a right to be free

from cruel and unusual punishment. As part of the right, the government must protect incarcerated

persons from a substantial risk of serious harm to their health and safety. See, e.g., Farmer, 511

U.S. at 828; Estelle, 429 U.S. at 104. Petitioners and Class Members face a substantial risk of

serious harm from COVID-19. Respondents are aware of the serious risk COVID-19 poses to

members of the Class—and particularly to members of the Medically-Vulnerable Subclass—yet

have failed to take meaningful action to reduce the population of Elkton and mitigate the risk of

harm to the Class members. Respondents are therefore deliberately indifferent to that risk and

violate Class members’ constitutional rights.

93. Elkton has neither the capacity nor the ability to comply with public health

guidelines to manage the outbreak of COVID-19 currently ravaging the facility and absent relief

measures requested herein, cannot provide for the safety of the Class.

94. Respondents’ actions and inactions result in the confinement of members of the

Class in a prison where Respondents have not followed and seem incapable of following public

health guidance regarding social distancing and personal hygiene, and treating or preventing

COVID-19 outbreaks and deaths, all of which violates Petitioners’ rights to be free from deliberate

35

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indifference to a substantial risk of serious harm—that is, to receive adequate treatment and

medical care, and social distancing in the face of COVID-19.

95. By failing to implement controls necessary to contain the COVID-19 outbreak and

stop preventable deaths at Elkton, Respondents have violated the Eighth Amendment rights of the

Class and especially of the Medically-Vulnerable Subclass.

VII.

REQUEST FOR RELIEF

96. Petitioners and Class Members respectfully request that the Court order the

following:

a) Certification of this petition as a class action, for the reasons stated herein;

b) Pursuant to 28 U.S.C. § 2243 and issued “forthwith,” either:

1. A temporary restraining order, preliminary injunction, permanent

injunction, and/or writ of habeas corpus requiring Respondents to

identify within six (6) hours of the Court’s order, and submit to the

Court a list of, all Medically-Vulnerable Subclass Members, and

release all such persons within twenty-four (24) hours, with such

release to include supports to ensure social distancing and other

expert-recommended measures to prevent the spread of

coronavirus; or

2. In the alternative, an order that Respondents show cause within, at

most, three days why such a writ should not issue.

c) Following immediate release of all Medically-Vulnerable Subclass

Members, a plan, to be immediately submitted to the Court and overseen by a qualified

public health expert pursuant to Fed. R. Evid. 706, which outlines:

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i. Specific mitigation efforts, in line with CDC guidelines, to prevent, to the degree possible, contraction of COVID-19 by every Class Member not immediately released;
ii. A housing and/or public support plan for any released Class or Subclass Members for whom testing confirms exposure to or infection with COVID-19 and who do not readily have a place to self-isolate for the CDC-recommended period of time (currently 14 days).
d) All further action required to release Class Members outside the Medically-Vulnerable Subclass to ensure that all remaining persons are incarcerated in Elkton under conditions consistent with CDC guidance to prevent the spread of COVID19, including requiring that all persons be able to maintain six feet or more of space between them;
e) If immediate release is not granted on the basis of this Petition alone, then expedited review of the Petition, including oral argument, via telephonic or videoconference if necessary;
f) A declaration that Elkton’s policies and practices violate the Eighth Amendment right against cruel and unusual punishment with respect to the Class;
g) Award Petitioners costs, expenses, and reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988 and any other applicable laws; and
h) Any further relief this Court deems just, necessary, or appropriate.
37

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Dated: April 13, 2020

Respectfully submitted,

/s/ David J. Carey

David J. Carey

(0088787)

ACLU of Ohio Foundation

1108 City Park Avenue, Ste. 203

Columbus, OH 43206

Phone: (614) 586-1972

Fax: (614) 586-1974

dcarey@acluohio.org

Joseph Mead

(0091903)

Freda J. Levenson (0045916)

ACLU of Ohio Foundation

4506 Chester Avenue

Cleveland, OH 44102

Phone: (614) 586-1972

Fax: (614) 586-1974

attyjmead@gmail.com

flevenson@acluohio.org

Counsel for Petitioners

Mark A. Vander Laan

(0013297)

David Singleton

(0074556)

Ohio Justice & Policy Center

915 East Ninth Street, Suite 601

Cincinnati, OH 45202

Phone: (513) 421-1108

mvanderlaan@ohiojpc.org

dsingleton@ohiojpc.org

38

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(SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

(EXCEPT IN U.S. PLAINTIFF CASES) (Firm Name, Address, and Telephone Number)

(IN U.S. PLAINTIFF CASES ONLY) (If Known)

(Place an X in One Box Only) (U.S. Government Not a Party) (Indicate Citizenship of Parties in Item III) (Place an X in One Box Only)

(For Diversity Cases Only)

(Place an X in One Box for Plaintiff and One Box for Defendant)
or
and

(Place an X in One Box Only)

(specify) (Do not cite jurisdictional statutes unless diversity)

(See instructions):

Writ of Habeas Corpus /s/ David J. Carey

Case: 4:20-cv-00794-JG Doc #: 1-1 Filed: 04/13/20 2 of 4. PageID #: 40
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

I.

Civil Categories: (Please check one category only).

1.

General Civil

2.

Administrative Review/Social Security

3.

Habeas Corpus Death Penalty

*If under Title 28, §2255, name the SENTENCING JUDGE:

CASE NUMBER:

II.

RELATED OR REFILED CASES. See LR 3.1 which provides in pertinent part: "If an action is filed or removed to this Court

and assigned to a District Judge after which it is discontinued, dismissed or remanded to a State court, and

subsequently refiled, it shall be assigned to the same Judge who received the initial case assignment without regardfor

the place of holding court in which the case was refiled. Counsel or a party without counsel shall be responsible for

bringing such cases to the attention of the Court by responding to the questions included on the Civil Cover Sheet."

This action

RELATED to another PENDING civil case

REFILED

If applicable, please indicate on page 1 in section VIII, the name of the Judge and case number.

III. In accordance with Local Civil Rule 3.8, actions involving counties in the Eastern Division shall be filed at any of the
divisional offices therein. Actions involving counties in the Western Division shall be filed at the Toledo office. For the purpose of determining the proper division, and for statistical reasons, the following information is requested.

ANSWER ONE PARAGRAPH ONLY. ANSWER PARAGRAPHS 1 THRU 3 IN ORDER. UPON FINDING WHICH PARAGRAPH APPLIES TO YOUR CASE, ANSWER IT AND STOP.

(1)

Resident defendant. If the defendant resides in a county within this district, please set forth the name of such

county

COUNTY:

Corporation For the purpose of answering the above, a corporation is deemed to be a resident of that county in which

it has its principal place of business in that district.

(2)

Non-Resident defendant. If no defendant is a resident of a county in this district, please set forth the county

wherein the cause of action arose or the event complained of occurred.

COUNTY:

(3)

Other Cases. If no defendant is a resident of this district, or if the defendant is a corporation not having a principle

place of business within the district, and the cause of action arose or the event complained of occurred outside

this district, please set forth the county of the plaintiff's residence.

COUNTY:

IV.

The Counties in the Northern District of Ohio are divided into divisions as shown below. After the county is

determined in Section III, please check the appropriate division.

EASTERN DIVISION

AKRON CLEVELAND
YOUNGSTOWN

(Counties: Carroll, Holmes, Portage, Stark, Summit, Tuscarawas and Wayne) (Counties: Ashland, Ashtabula, Crawford, Cuyahoga, Geauga, Lake,
Lorain, Medina and Richland) (Counties: Columbiana, Mahoning and Trumbull)

WESTERN DIVISION

TOLEDO

(Counties: Allen, Auglaize, Defiance, Erie, Fulton, Hancock, Hardin, Henry, Huron, Lucas, Marion, Mercer, Ottawa, Paulding, Putnam, Sandusky, Seneca
VanWert, Williams, Wood and Wyandot)

Case: 4:20-cv-00794-JG Doc #: 1-1 Filed: 04/13/20 3 of 4. PageID #: 41

Case: 4:20-cv-00794-JG Doc #: 1-1 Filed: 04/13/20 4 of 4. PageID #: 42
David Carey (0088787) ACLU of Ohio Foundation 1108 City Park Avenue Columbus, OH 43206 Phone: (614) 586-1972 dcarey@acluohio.org
Freda Levenson (0045916) ACLU of Ohio Foundation 4506 Chester Avenue Cleveland, OH 44103 Phone: (614) 586-1972 flevenson@acluohio.org
Joseph Mead (0091903) ACLU of Ohio Foundation 4506 Chester Avenue Cleveland, OH 44103 Phone: (216) 472-2220 attyjmead@gmail.com
David Singleton (0074556) Ohio Justice & Policy Center 915 East Ninth Street, Suite 601 Cincinnati, OH 45202 Phone: (513) 421-1108, ext.17 dsingleton@ohiojpc.org
Mark A. Vander Laan (0013297) Ohio Justice & Policy Center 915 East Ninth Street, Suite 601 Cincinnati, OH 45202 Phone: (513) 421-1108, ext.94 mvanderlaan@ohiojpc.org

Case: 4:20-cv-00794-JG Doc #: 1-2 Filed: 04/13/20 1 of 4. PageID #: 43

AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
_____N_o_r_th_e_rnDiDstirsitcrticotfo_f_O_h_i_o_____

Plaintiff(s)
v.
Defendant(s)

)

)

)

)

)

) )

Civil Action No.

4:20-cv-794

)

)

)

)

)

To: (Defendant’s name and address)

SUMMONS IN A CIVIL ACTION

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case: 4:20-cv-00794-JG Doc #: 1-2 Filed: 04/13/20 2 of 4. PageID #: 44

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

I personally served the summons on the individual at (place)

on (date)

; or

I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

I returned the summons unexecuted because

; or

Other (specify): .

My fees are $

for travel and $

for services, for a total of $

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Case: 4:20-cv-00794-JG Doc #: 1-2 Filed: 04/13/20 3 of 4. PageID #: 45

AO 440 (Rev. 06/12) Summons in a Civil Action
UNITED STATES DISTRICT COURT
for the
_____N_o_r_th_e_rnDiDstirsitcrticotfo_f_O_h_i_o_____

Plaintiff(s)
v.
Defendant(s)

)

)

)

)

)

) )

Civil Action No. 4:20-cv-794

)

)

)

)

)

To: (Defendant’s name and address)

SUMMONS IN A CIVIL ACTION

A lawsuit has been filed against you.
Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if you are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff’s attorney, whose name and address are:

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court.

Date:

CLERK OF COURT
Signature of Clerk or Deputy Clerk

Case: 4:20-cv-00794-JG Doc #: 1-2 Filed: 04/13/20 4 of 4. PageID #: 46

AO 440 (Rev. 06/12) Summons in a Civil Action (Page 2)
Civil Action No.

PROOF OF SERVICE (This section should not be filed with the court unless required by Fed. R. Civ. P. 4 (l))

This summons for (name of individual and title, if any)

was received by me on (date)

.

I personally served the summons on the individual at (place)

on (date)

; or

I left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,

on (date)

, and mailed a copy to the individual’s last known address; or

I served the summons on (name of individual) designated by law to accept service of process on behalf of (name of organization)
on (date)

, who is ; or

I returned the summons unexecuted because

; or

Other (specify): .

My fees are $

for travel and $

for services, for a total of $

.

I declare under penalty of perjury that this information is true.

Date:

Server’s signature Printed name and title

Additional information regarding attempted service, etc:

Server’s address

Case: 4:20-cv-00794-JG Doc #: 1-3 Filed: 04/13/20 1 of 10. PageID #: 47
Exhibit A
Declaration of Dr. Meghan Novisky

Case: 4:20-cv-00794-JG Doc #: 1-3 Filed: 04/13/20 2 of 10. PageID #: 48
Declaration of Meghan Novisky, PhD
1. I am an Assistant Professor in the Department of Criminology, Anthropology, and Sociology at Cleveland State University.
2. My research investigates the consequences of carceral contact on health, factors related to the conditions of confinement, and the collateral consequences of criminal justice policy. I have worked since 2009 with the University of Cincinnati's Corrections Institute (UCCI) as an evidence based programming consultant and trainer. In this role I have worked with correctional staff in 17 U.S. states and trained them on the implementation of research-informed programs and policies to help reduce their recidivism rates. I received my PhD in Sociology from Kent State University, where the focus of my dissertation involved identifying the barriers to health care access that exist in prisons, specifically among older adults.
3. My publications on health and incarcerated people have appeared in numerous peer-reviewed journals, including Criminology, Justice Quarterly, and Victims & Offenders. In 2020, I received the Early Career Investigator Award from the Academic Consortium on Criminal Justice Health (ACCJH), and I serve on the Executive Board of the Academy of Criminal Justice Sciences (Section on Corrections), and as Chair of the Annual Awards Committee of the American Society of Criminology, Division of Corrections and Sentencing.
4. One of the greatest challenges facing prisons regarding the provision of health services is that prisons, by their very nature, are high risk sites for the spread of infectious disease. Close proximity of many people (made worse by overcrowding), shared equipment tied to risky health behaviors such as tattooing, compromised abilities
1

Case: 4:20-cv-00794-JG Doc #: 1-3 Filed: 04/13/20 3 of 10. PageID #: 49
to maintain general hygiene, substandard health care services, and lack of awareness about infection status combine to aggravate risk factors associated with the spread of infectious disease.1
5. High levels of stress exposure can also weaken the immune system,2 thereby increasing the susceptibility of exposure among incarcerated persons as well as recovery prognosis. Of course, these factors are all greatly exacerbated in the event of a global pandemic such as COVID-19 given that prisons in the U.S. are already underresourced, understaffed, and chronically overcrowded.
6. On Tuesday, March 24th, the Federal Bureau of Prisons (FBOP) issued a press release stating the Bureau was “taking aggressive steps to protect the safety and security of all staff and inmates, as well as visitors and members of the public.”3 The memo further stated “this response is the Bureau’s top priority.” Yet, the measures outlined in the memo lacked the vision necessary to adequately contain and minimize spread of COVID-19. For example, the memo stated “facilities have been directed to designate available space for isolation and quarantine for inmates who have been exposed to or have symptoms of the virus.” Given that asymptomatic people can still be contagious, it would be impossible for institutions to definitively identify those exposed. Further, isolation of symptomatic prisoners does nothing to address those who are contagious but not symptomatic, nor does it address the threats contagious staff members pose to the incarcerated. As of the time of this filing, there now exist 541 confirmed cases
1 https://www.ecdc.europa.eu/sites/default/files/documents/Active-case-finding-communicable-diseases-inprisons.pdf 2 Fali, T., Vallet, H., and Sauce, D. (2018). “Impact of stress on aged immune system compartments: overview from fundamental to clinical data. Experimental Gerontology 105, 19-26. 3https://www.bop.gov/resources/news/pdfs/20200324_bop_press_release_covid19_update.pdf
2

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of COVID-19 across 40 FBOP facilities, including 352 prisoner and 189 staff diagnoses.4 Nine prisoners confined to FBOP institutions have died due to COVID-19. These statistics make it clear that current measures being taken by the FBOP are not sufficient in strength nor impact to adequately protect its staff, its prisoners, or the public.
7. On Monday March 30th prisoners at FCI Elkton, a low security male prison, began testing positive for COVID-19. As of April 12, 2020, Elkton has 35 confirmed cases of COVID-19, including 24 prisoner and 11 staff diagnoses. 5The FBOP released consecutive memos on 4/2/20,6 4/3/20,7 and 4/4/20,8 announcing the deaths of Elkton prisoners Woodrow Taylor (53 y/o), Margarito Garcia-Fragoso (65 y/o), and Frank McCoy (76 y/o), respectively. The medically established progression of COVID19, combined with the pre-existing health conditions of all 3 men, makes it likely these individuals suffered tremendously leading up to their deaths.
8. Based on my expertise on the health related risks associated with incarceration, it is my belief that if serious action is not taken swiftly, prisons under the jurisdiction of the FBOP, including Elkton, will escalate further, serving as hotspots for COVID-19 much like would be the case if people were forced to live on a crowded cruise ship during a pandemic. To be clear, without drastic intervention, many more incarcerated individuals and staff will become infected and will face elevated risks for medical complications and morality. This is due to the presence of factors that aggravate the spread of COVID-19, including lack of social distancing, concentrations of
4 https://www.bop.gov/coronavirus/ 5 https://www.bop.gov/coronavirus/ 6 https://www.bop.gov/resources/news/pdfs/20200402_press_release_elk.pdf 7 https://www.bop.gov/resources/news/pdfs/20200403_press_release_elk.pdf 8 https://www.bop.gov/resources/news/pdfs/20200404_press_release_elk.pdf
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immunocompromised, vulnerable adults, and lack of access to proper sanitation. All of these risk factors are important in assessing Elkton’s practical capacity to properly address risks for COVID-19.
9. The volume of prisoners incarcerated at Elkton alone severely limits its capabilities to implement social distancing practices. Elkton maintains a current population of 2,417 male prisoners; 1,999 at the low security FCI/Federal Correctional Institution, and 418 at the FSL/adjacent low security satellite prison.9 To keep all 2,417 prisoners (plus their population of staff) a minimum of 6 feet apart at all times is incredibly impractical.
10. It is my understanding that many prisoners in custody at Elkton share cells, sleeping areas, supplies, bathing areas, and other living spaces, compromising Elkton’s abilities to follow CDC physical distancing guidelines. Like most low security prisons, it is likely that Elkton has only a limited percentage of its cell capacity devoted to administering solitary living conditions (i.e., one person per cell with no shared living space), as low security prisons are not intended to function like maximum or supermaximum security prisons with high capacities for solitary confinement. With continued functioning of shared spaces for bathing, eating, and sleeping, quarantine and social distancing would be impossible to implement at Elkton.10 These factors, in combination with the high stress environment of incarceration in general, increase risks of infectious disease exposure in this institution dramatically.11
9 https://www.bop.gov/locations/institutions/elk/ 10 https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html 11 Massoglia, M. (2008). Incarceration as exposure: the prison, infectious disease, and other stress-related illnesses. Journal of Health and Social Behavior, 49, 56-71.
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11. Even if attempts were made to increase physical distance between prisoners at Elkton, this would fail to adequately address the regular contact that exists between Elkton staff and prisoners. Correctional staff must be in close contact with prisoners in the course of their regular jobs to enforce security protocols, escort prisoners across cell blocks and units, administer medications, and supervise meal distribution, for example.
12. Further, it is difficult (if not impossible) for prisoners to follow recommended sanitation procedures. While each Elkton prisoner is likely to have access to a rationed supply of soap, for example, disinfectant cleaning supplies and hand sanitizers would not typically be provided to each incarcerated person, at least not in the quantities necessary, as such supplies are likely to be considered contraband due to their alcohol content.
13. While Elkton has halted prisoner visitations, this will not stop the transmission of the virus between the prisoner population and the community. With institutional staff filtering in and out of Elkton on a daily basis, staff can easily carry the infection from the community to the prison and vice versa. Thus, unless Elkton staff are quarantined and prevented from continuing to cycle in and out of the prison to return to the community following each shift, this risk remains.
14. Further exacerbating the risk of infection to the surrounding community is that medical facilities in prisons are typically inadequate to provide the intensive care needed to handle serious cases of COVID19. Prisoners therefore require transport to community hospitals for care, increasing risks of infection and reducing the capacity of local hospitals to respond to other members of the community. These circumstances also
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increase risks for the correctional officers who must not only transport sick, incarcerated individuals to the hospital, but supervise them while they are hospitalized.
15. The FBOP population also includes a significant number of older adults. Over nineteen percent of the prison population (n = 33,817) is over the age of 50, making this group particularly vulnerable to COVID-19 based on age alone.12 Assuming Elkton’s population is representative of the national FBOP demographic data, roughly 1 in 5 prisoners at Elkton would be especially vulnerable to COVID-19 based on age. Furthermore, older incarcerated adults suffer from disproportionately more chronic health conditions than the general population of adults,13,14 including respiratory problems, making it likely this group will face medical complications should they continue to become infected. In fact, all 3 deaths at Elkton thus far have been prisoners that meet these categorical criteria: older than 50 years of age with pre-existing chronic health problems.
16. Given the structure, operations, and current conditions at Elkton, there is no realistic set of internal conditions or practices that FBOP can use that will prevent additional infection of prisoners and staff given the current number of prisoners living at Elkton.
17. Significantly reducing the prison population at Elkton as rapidly as possible is the best line of defense to maintain the public health interests of persons incarcerated at Elkton, correctional staff who work at Elkton, and the Ohio community. It
12 https://www.bop.gov/about/statistics/statistics_inmate_age.jsp 13 Loeb, S.J. and AbuDagga, A. (2006). Health-Related Research on Older Inmates: An Integrative Review. Research in Nursing and Health, 29, 556-565. 14 Bedard, R., Metzger, L., & Williams, B. (2016). Ageing prisoners: An introduction to geriatric healthcare challenges in correctional facilities. International Review of the Red Cross, 98, 917–939.
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is my recommendation that all prisons under the jurisdiction of the FBOP should do the same. Based on the existing evidence about COVID-19, failing to do so will have grave consequences and long-term traumatic impacts for many.
18. There are several measures that can be taken to safely reduce the prison population at Elkton. Most important among them is to release as many older incarcerated adults from the prison as possible. Doing so will not only help to significantly reduce the prison population, but will remove the individuals most at risk for infection and complications likely to elevate mortality risks. Older adults have significantly reduced risks for recidivism compared with younger adults, so doing this is unlikely to come at the expense of public safety. The most common convicting offenses among people incarcerated in FBOP jurisdiction are in fact drug offenses (n =73,759).15 Of course, aggravated cases where public safety is a concern need to be considered.
19. Efforts should also be made to release those at the prison with pre-existing chronic health conditions, most importantly those with respiratory conditions, cancer, heart disease, diabetes, kidney disease, HIV, and blood disorders. Because of their preexisting immunocompromised statuses, failing to do so will leave these individuals not only especially vulnerable to COVID-19, but less likely to recover from it should they become infected.
20. Notably, the FBOP has the option to implement these measures while still maintaining correctional custody. The FBOP could do so by increasing existing efforts to transfer supervision from institutions like Elkton to home confinement in the community.
15 https://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp
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In fact, they have been encouraged to do so by the Attorney General of the U.S. as of March 26, 2020.16
21. Specifically, the Attorney General recommended consideration of the following factors for home release: age and vulnerability of the prisoner to COVID-19; the security level of the facility, “with priority given to inmates residing in low and minimum security facilities,” and convicting offense/danger posed to the community. Elkton’s status as a low security prison confirms it is a prime candidate for rapidly downsizing its population in order to best protect the health of the prison population, its staff, and the Ohio community.
22. These actions are both meaningful and necessary. They would enable Elkton to free up needed space, thereby increasing competencies to develop and implement social distancing options not currently available. Doing so would also help to ensure already limited medical supplies and resources at Elkton do not become overwhelmed and that mortality risks are kept as low as possible.
23. Although the FBOP delay has already meant numerous prisoners and staff at Elkton have been infected (some of whom have died), it is not too late to take these steps, which can help prevent the situation from further deteriorating and causing unnecessary suffering to those who remain.
24. I have read the descriptions of the living conditions at Elkton contained in declarations from Elkton prisoners. The descriptions I read are consistent with my understanding of what the conditions of the prison are likely to be at this time based on the resources Elkton has, the structure of the facility itself, the currently limited actions
16 https://www.bop.gov/resources/news/pdfs/20200405_covid-19_home_confinement.pdf
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Case: 4:20-cv-00794-JG Doc #: 1-3 Filed: 04/13/20 10 of 10. PageID #: 56 taken at Elkton to address the risks presented by COVID-19, and the current number of confirmed cases (n = 35) and mortalities (n = 3) attributed to Elkton custody. Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. _______________________ Meghan Novisky, PhD Date: 4/13/2020
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Exhibit B
Declaration of Dr. Joe Goldenson

Case: 4:20-cv-00794-JG Doc #: 1-4 Filed: 04/13/20 2 of 12. PageID #: 58
Declaration of Joe Goldenson, MD 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/monitor at Cook County Jail in Chicago and Los Angeles County Jail, at other jails in Washington, Texas, and Florida, and at prisons in Illinois, Ohio, and Wisconsin.
The nature of COVID-19 5. The SARS-nCoV-2 virus, and the human infection it causes, COVID-19 disease, is a global pandemic and has been termed a global health emergency by the WHO. Cases first

Case: 4:20-cv-00794-JG Doc #: 1-4 Filed: 04/13/20 3 of 12. PageID #: 59
began appearing sometime between December 1, 2019 and December 31, 2019 in Hubei Province, China. Most of these cases were associated with a wet seafood market in Wuhan City.
6. On January 7, 2020, the virus was isolated. The virus was analyzed and discovered to be a coronavirus closely related to the SARS coronavirus which caused the 20022003 SARS epidemic.
7. COVID-19 is a serious disease. The overall case fatality rate has been estimated to range from 0.3 to 3.5%, which is 5-35 times the fatality associated with influenza infection. COVID-19 is characterized by a flu-like illness. While more than 80% of cases are self-limited and generally mild, overall some 20% of cases will have more severe disease requiring medical intervention and support.
8. The case fatality rate varies significantly depending on the presence of certain demographic and health factors. The case fatality rate varies significantly with advancing age, rising after age 50, and above 5% (1 in 20 cases) for those with pre-existing medical conditions including cardio-vascular disease, respiratory disease, diabetes, and immune compromise.
9. People with moderate to severe asthma may be at higher risk of getting very sick from COVID-19. COVID-19 can affect your respiratory tract (nose, throat, lungs), cause an asthma attack, and possibly lead to pneumonia and acute respiratory disease.
10. Among patients who have more serious disease, some 30% will progress to Acute Respiratory Distress Syndrome (ARDS) which has a 30% mortality rate overall, higher in those with other health conditions. Some 13% of these patients will require mechanical ventilation, which is why intensive care beds and ventilators have been in insufficient supply in Italy, Iran, and in parts of China.

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11. COVID-19 is widespread. Since it first appeared in Hubei Province, China, in late 2019, outbreaks have subsequently occurred in more than 160 countries and all populated continents, heavily affected countries include Italy, Spain, Iran, South Korea, and the US. The U.S. is now the world’s most affected country. As of April 11, 2020, there have been 1,524,161 confirmed human cases globally and 92,941 known deaths. The pandemic has been termed a global health emergency by the WHO. It is not contained and cases are growing exponentially.
12. In the United States alone, the CDC reports 459,165 cases and 16,570 deaths as of April 10, 2020. The Ohio Department of Health reports 5,836 cases and 227 dead as of April 10. All these numbers are likely underestimates because of limited availability of testing.
13. SARS-nCoV-2 is now known to be fully adapted to human-to-human spread. This is almost certainly a new human infection, which also means that there is no preexisting or “herd” immunity, allowing for very rapid chains of transmission once the virus is circulating in communities.
14. The U.S. CDC estimates that the reproduction rate of the virus, the R0, is 2.4-3.8, meaning that each newly infected person is estimated to infect on average 3 additional persons. This is highly infectious and only the great influenza pandemic of 1918 (the Spanish Flu as it was then known) is thought to have higher infectivity. This again is likely a function of all human populations currently being highly susceptible. The attack rate given an exposure is also high, estimated at 20-30% depending on community conditions, but may be as high as 80% in some settings and populations. The incubation period is thought to be 2-14 days, which is why isolation is generally limited to 14 days.
15. There is currently no vaccine for COVID-19, and no cure. The only know ways to prevent the spread of SARS-nCoV-2 involve measures such as thorough handwashing, frequent

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decontamination of surfaces, and maintaining six feet of physical distance between individuals (“social distancing”).
The risks of COVID-19 in detention facilities 16. COVID-19 poses a serious risk to prisoners, workers, and anyone else in detention facilities. Detention facilities, including prisons like Elkton, have long been associated with high transmission probabilities for infectious diseases, including tuberculosis, multi-drug resistant tuberculosis, MRSA (methicillin resistant staph aureus), and viral hepatitis. 17. The severe epidemic of Tuberculosis in prisons in Central Asia and Eastern Europe was demonstrated to increase community rates of Tuberculosis in multiple states in that region, underscoring the risks prison outbreaks can lead to for the communities surrounding a prison. 18. Infections that are transmitted through droplets, like influenza and SARS-nCoV-2 virus, are particularly difficult to control in detention facilities, as social distancing and proper decontamination of surfaces is virtually impossible. 19. For example, several deaths were reported in the US in immigration detention facilities associated with ARDS following influenza A, including a 16-year old male immigrant child who died of untreated ARDS in custody in May 2019. 20. 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. A number of features of these facilities can heighten risks for exposure, acquisition, transmission, and clinical complications of these infectious diseases. These include physical/mechanical risks such as overcrowding; population density in close confinement; insufficient ventilation; shared toilet,

Case: 4:20-cv-00794-JG Doc #: 1-4 Filed: 04/13/20 6 of 12. PageID #: 62
shower, and eating environments; and limits on hygiene and personal protective equipment such as masks and gloves in some facilities. Shared spaces and equipment (such as telephones) are commonly not adequately disinfected, especially during the current pandemic when more frequent cleaning and disinfecting are required. Limits on soap (copays are common) and recommended hand sanitizers, since they contain alcohol, are also risks for spread. The nationwide shortage of personal protective equipment (PPE), as well as ancillary products (such as cleaning supplies and thermometer probes) further impacts the ability of correctional facilities to implement necessary precautions.1
21. 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, is significantly higher in jails, prisons, and detention centers than in the community. Close, poorly ventilated, living quarters and often overcrowded conditions in these facilities foster the rapid transmission of infectious diseases, particularly those transmitted by airborne droplets through sneezing, speaking, or coughing. In these congregate settings, large numbers of people are closely confined and forced to share living spaces, bathrooms, eating areas, and other enclosed spaces. They are physically unable to practice social distancing, which the Centers for Disease Control and Prevention (“CDC”) has identified as the “cornerstone of reducing transmission of respiratory diseases such as COVID-19.”2 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.
22. 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
1 Study of COVID-19 in Correctional Facilities, Harvard University and National Commission on Correctional Health Care, April 9, 2020 2 https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html

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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. Detainees and inmates are often transferred between housing units, to other facilities, and to and from Court. This further increases the likelihood of transmission of COVID-19.
23. It has long been known that jails, prisons, and detention centers can be hotbeds of disease transmission. 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.
24. In addition to the nature of the prison environment, prison and jail populations are also at additional risk due to high rates of chronic health conditions, substance use, mental health issues, and, particularly in prisons, aging and chronically ill populations who may be vulnerable to death or severe illnesses after infection from COVID-19 disease.
25. While every effort should be made to reduce exposure in detention facilities through internal mitigation efforts, this may be extremely difficult to achieve and sustain quickly enough. It is therefore an urgent priority in this time of national public health emergency to reduce the number of persons in detention as quickly as possible.
26. Given the experience in China as well as the literature on infectious diseases in jail, additional outbreaks of COVID-19 among the U.S. jail and prison populations are inevitable, as evidenced in Elkton. Releasing as many inmates as possible is important to protect the health of inmates, correctional facility staff, health care workers at jails and other detention

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facilities, 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.”3
27. For these reasons, the pandemic has prompted prisoner releases around the world. France has announced it will free 5,000 inmates4, and in the United States, California officials are planning to release up to thousands of prisoners.5 In Britain, the Ministry of Justice is
planning to grant thousands of prisoners early release within weeks in an effort to contain the
spread of the virus in cells and facilities where it said social distancing rules are impossible to maintain .6 Many cities and counties across the US, including San Francisco, Los Angeles,
Chicago, Cleveland and New York, are also releasing prisoners to reduce the risk of COVID19.7
28. It is difficult to overstate the devastation that a COVID-19 outbreak could inflict
on a correctional facility such as FCI Elkton. At Rikers Island in New York, between April 1,
2020, and April 15, 2020, the number of COVID-19 positive incarcerated individuals and staff
members grew by 104 and 114 people, respectively, upping the jail’s total numbers of confirmed
cases to 288 among the incarcerated population, 488 among correction staff, and 78 among
3 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), http://www.euro.who.int/__data/assets/pdf_file/0019/434026/Preparedness-prevention-and-control-of-COVID-19inprisons.pdf. 4 Coronavirus: Low-risk prisoners set for early release, BBC News (Apr. 4, 2020), https:// www.bbc.com/news/uk-52165919. 5 Paige St. John, California to release 3,500 inmates early as coronavirus spreads inside prisons, L.A. Times (Mar. 31, 2020), https://www.latimes.com/california/story/2020-03-31/coronaviruscaliforniarelease-3500-inmates-prisons. 6 Britain plans to free many inmates early as it reports a on-day death toll, New York Times, 4/3/20. 7 Timothy Williams et al., ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars, N.Y. Times (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/us/coronavirusprisonsjails.html.

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health care workers.8,9 The first known case of COVID-19 at Rikers was confirmed on Wednesday, March 18,10 illustrating just how quickly this disease can and will overwhelm detention facilities. The Cook County jail in Chicago has emerged as the largest-known source of U.S. coronavirus infections, according to data compiled by The New York Times. At least 387 cases can be linked to the jail, including 272 inmates.
29. According to the Bureau of Prisons, three prisoners have died of COVID-19 at FCI Elkton and its adjacent low security satellite prison. Given the way the disease has progressed elsewhere, we can expect the death toll to mount rapidly.
30. From news reports, it is also my understanding that 43 detainees have been hospitalized outside the prison with COVID or suspected COVID, as have some staff members. Of those, 15 are on ventilators. Dozens more have symptoms. Even these dozens may represent the tip of the iceberg, since newly-infected people typically do not show symptoms for 2-14 days, and since the infection spreads rapidly to additional people.
31. It is my understanding that Elkton uses open bay / dorm housing units with multiple-occupancy cells, and a limited number of segregation units. It also my understanding that Elkton has roughly 2,400 detainees between the Elkton federal correction institution and the low security satellite prison on any given day; that staff that enter and leave the facility regularly; and that detainees share restroom and shower facilities and eat communally prepared food.
32. Based on these understandings, it is my opinion that the exponential infection of rate for COVID-19 we already see in the community would be magnified within Elkton.
8 Julia Craven, Coronavirus Cases Are Spreading Rapidly on Rikers Island, Slate (Apr. 2, 2020), https://slate.com/news-and-politics/2020/04/rikers-coronavirus-cases-increase.html. 9 Jan Ranson, Jailed on a Minor Parole Violation, He Caught the Virus and Died, N.Y. Times (Apr. 10, 2020) 10 As Testing Expands, Confirmed Cases of Coronavirus in N.Y.C. Near 2,000 (Mar. 18, 2020), N.Y. Times, https://www.nytimes.com/2020/03/18/nyregion/coronavirus-new-york-update.html.

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Adequate social distancing would be impossible to maintain. What’s more, the infection in Elkton would not stay limited to the facility, but would worsen infection rates in the broader community. The death rate will increase substantially before it starts to diminish without major interventions. This is why leaving implementation in the hands of local officials alone, who lack the expertise and resources and were incapable of preventing the outbreak in the first place or treating those who eventually died, is insufficient.
33. It is my public health recommendation that everyone who is medically-vulnerable to severe symptoms and death from COVID-19, as defined in this lawsuit,11 be released from FCI Elkton and FCL Elkton immediately, taking precautions that they are released to a place where they can maintain medically appropriate isolation for at least 14 days and receive any necessary and available testing healthcare for underlying chronic conditions.
34. It is my public health recommendation that a public health expert be appointed to oversee operations related to preventing further spread of COVID-19 in Elkton, which may include authorizing further staggered release of detainees until it is possible to maintain consistent social distancing and appropriate hygiene within the facility.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
11 “Persons held at Elkton over the age of 50 , as well as all current and future persons held at Elkton of any age who experience (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure and coronary artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i) inherited metabolic disorders; (j) history of stroke; (k) a developmental disability; and/or (l) a current or recent (last two weeks) pregnancy.”

Case: 4:20-cv-00794-JG Doc #: 1-4 Filed: 04/13/20 11 of 12. PageID #: 67 Executed this 11 day of April 2020 in Alameda County, CA __________________________________ Joe Goldenson, MD

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References 1. Dolan K, Wirtz A, Maazen B., et al. Global Burdern of HIV, viral hepatitis, and tuberculosis in prisoners and detainees. The Lancet, July 14, 2016. Stuckler D, Basu S, McKee M, King I. Mass incarceration can explain population increases in TB and multi-drug resistant TB in European and Central Asian countries. Proceedings of the National Academy of Science USA, 2008. 105:13280-85. 2. Beyrer C, Kamarulzaman A, McKee M; Lancet HIV in Prisoners Group. Prisoners, prisons, and HIV: time for reform. The Lancet. 2016 Jul 14. pii: S01406736(16)30829-7. doi: 10.1016/S0140-6736(16)30829-7. [Epub ahead of print] No abstract available. PMID: 27427447. 3. Marusshak LM, Sabol W, Potter R, Reid L, Cramer E. Pandemic Influenza and Jail Facilities and Populations. American Journal of Public Health. 2009 October; 99(Suppl 2): S339–S344. 4. Rubenstein LS, Amon JJ, McLemore M, Eba P, Dolan K, Lines R, Beyrer C. HIV, prisoners, and human rights. The Lancet. 2016 Jul 14. pii: S0140-6736(16)30663-8. doi: 10.1016/S0140-6736(16)30663-8 5. Wang J, Ng, CY, Brook R. Response to COVID-19 in Taiwan: Big Data Analytics, New Technology, and Proactive Testing. March 3, 2020. JAMA. Published online March 3, 2020. doi:10.1001/jama.2020.3151. 6. CDC, COVID-19, People Who are at Higher Risk, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/asthma.html

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Exhibit C
Declaration of Kendal Nelson

Case: 4:20-cv-00794-JG Doc #: 1-5 Filed: 04/13/20 2 of 5. PageID #: 70
DECLARATION OF KENDAL NELSON I, Kendal Nelson, am over the age of 18 and fully competent to make the following declaration: 1. I am currently incarcerated at Federal Correctional Institute, Elkton (“FCI Elkton”). I am
in the low security satellite camp. My Federal Bureau of Prisons Register Number is 64823060. I was convicted of a drug offense and possession of a firearm, and have served approximately 3 years of a 9-year sentence. I have no violent offenses on my record. 2. I am 46 years old. I suffer from coronary artery disease, and had a heart attack resulting in a stent being placed in my artery a number of years ago. I also have asthma, and use an inhaler regularly, and I use a CPAP machine at night for sleep apnea. I also have stage 4 chronic kidney disease, and a twisted aorta that causes my breathing problems. 3. I’m housed at the low-security satellite camp at FCI Elkton, called “FSL Elkton.” There are 170 men in my pod, living 3 to a cell in spaces that were made for single occupancy. There are 5 toilets and 5 sinks for the whole pod. It’s impossible to keep 6 feet of distance from others here. 4. Everywhere we go, we’re all bunched up together and keeping our distance is impossible. You can’t even walk around, much less maintain distance. That’s true everywhere—near the phones, near the computers, everywhere. All the beds are locked together and physically connected, so it’s impossible to maintain distance in the cubes. Sickness spreads quickly here. We don’t have much time before all of us get it. 5. When it’s time to eat, we pick up our food boxes from the cafeteria. We have to wait in a line where we’re bunched up right behind each other, heel-to-heel, because there isn’t enough space. We get our food and take them it to our pod. We sit together four chairs to
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Case: 4:20-cv-00794-JG Doc #: 1-5 Filed: 04/13/20 3 of 5. PageID #: 71
a table and eat. There’s nowhere where we can eat without bumping right up against each other. 6. We have TV rooms as common areas, but even there we can’t get enough space for social distancing. The TV rooms are small, like the size of an apartment bedroom. There might be 12 people in there at a time watching TV. 7. I’m in the same pod where Woodrow Taylor was, and I knew him. He was one of the prisoners who died from COVID-19. Woodrow had a bad heart and a bad kidney, just like me, and the fact that he died makes me scared. I also saw when another prisoner, Margarito Garcia-Fragoso, was taken out. He later died also. 8. Most of the men in my pod are coughing but don’t have fevers. If you have a fever they take you out of the pod into quarantine, but if not, you stay. A bunch of people have been taken out, but then they brought prisoners who were quarantined back into the pod with everyone else. 9. We still don’t have any masks, and neither do the correctional officers (COs). I haven’t been tested. As far as I know, they’re only testing the dead. 10. The commissary is closed. Prisoners are being fed small portions of food, with no ability to get more. We have no way to get cleaning supplies, and the living area is filthy with no surfaces being cleaned. Our water pipes burst, and different colors of water have come out of the pipes. Men are developing rashes that we think are from the water. The poor sanitation is making it unbearable. 11. We were told in a memo that a CO working at the FSL and the FCI is who brought the coronavirus into the prison, back in January.
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Case: 4:20-cv-00794-JG Doc #: 1-5 Filed: 04/13/20 4 of 5. PageID #: 72
12. There are less guards around than there used to be. They don’t come into the pods as much or walk around. A lot of them are sick too.
13. They are not allowing us to go outside and get fresh air, and we’re not allowed into the law library. There was a memo sent to prisoners about the virus being present in the prison, but they took no measures to prevent the spread that I could see.
14. I heard about a video that a prisoner took and put out on the Internet to show what’s going on here. After the video came out, that prisoner was sent to the hole and seems to be getting punished for it.
15. A lot of the people in my pod seem to be sick. The only thing I can do is stay in my cell under the blankets all the time so I can have some barrier between me and everyone else.
16. I heard that the National Guard is here but they’re in the FCI, not the FSL where I am. I was told they are there for Medical.
17. I have heard that a list of nonviolent offenders like me was provided to the prison, with instructions to release them. A group of people was gathered for possible release, but many of them were later put back into the regular population, and I don’t know why.
18. I have a secure and stable home environment that I can go to immediately if I am released. I declare under penalty of perjury that the foregoing is true and correct.
/s/ Kendal Nelson (by consent) Kendal Nelson
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Case: 4:20-cv-00794-JG Doc #: 1-5 Filed: 04/13/20 5 of 5. PageID #: 73 I, David J. Carey, certify that I reviewed the information contained in this declaration with Kendal Nelson by telephone on April 10, 2020 and as to ¶ 18, by correspondence on April 11, 2020, and that at that time, he certified that the information contained in this declaration was true and accurate to the best of his knowledge. Executed on April 12, 2020.
________________________ David J. Carey American Civil Liberties Union Foundation of Ohio 1108 City Park Avenue, Suite 203 Columbus, OH 43206 (614) 568-1972 dcarey@acluohio.org
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Case: 4:20-cv-00794-JG Doc #: 1-6 Filed: 04/13/20 1 of 3. PageID #: 74
Exhibit D
Declaration of Eric McReynolds

Case: 4:20-cv-00794-JG Doc #: 1-6 Filed: 04/13/20 2 of 3. PageID #: 75
DECLARATION OF ERIC MCREYNOLDS I, Eric McReynolds, am over the age of 18 and fully competent to make the following declaration:
1. I am currently incarcerated at Federal Correctional Institute, Elkton (“FCI Elkton”) My Federal Bureau of Prisons Register Number is 64593-060. I am 50 years old, and serving a sentence for a nonviolent drug trafficking offense, with a sentence enhancement for possession of a firearm.
2. Several weeks ago, I started coughing. That continued for about a week, and then a fever just came on all of a sudden. I had a fever of about 101. There is a quarantine unit for coronavirus at FCI Elkton, but they didn’t move me into the quarantine unit until I had a fever. I was moved in there on March 29, and stayed until April 7.
3. Everybody was sick in the quarantine area, but I wasn’t tested for coronavirus. I only know of one person who I understand had symptoms of coronavirus and was tested, but I don’t think he got his results even after he was moved back into the regular population.
4. No one in the quarantine area was spaced out. They took people to the hospital if your condition got worse, and of everyone they sent to the hospital, I only saw one person come back.
5. I don’t know if I had it or not. I think I did, but if I didn’t, the quarantine unit put me at risk because of how close everyone was together. I was in there with people who probably had it, so even if I didn’t have it before, I might have it now. If I did have it, I don’t want to infect anyone if I’m contagious.
6. It’s impossible to be spaced out or social distance here. The racks are 2-3 to a cell. People are about 2-3 feet apart when they sleep. Every day, all day, we’re in the dorm clustered in around each other, and it doesn’t change. As I’m talking on the phone right now, I’m right
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Case: 4:20-cv-00794-JG Doc #: 1-6 Filed: 04/13/20 3 of 3. PageID #: 76
next to someone, so close that I could kick him in the ankle. When we go to eat, we used to go to the chow hall. Now we pick up the trays and come back. We walk there at our own risk, with no spacing. I don’t think anyone knows what to do about this. 7. All day, I’m always right by somebody no matter what I’m doing, and there’s no way I can space myself off from other people. Bathroom sinks, tables in the day area, computers, they’re all close together. There’s nothing I can do to protect myself from people who might be carriers, whether or not they’re showing symptoms. I declare under penalty of perjury that the foregoing is true and correct.
/s/ Eric McReynolds (by consent) Eric McReynolds
I, David J. Carey, certify that I reviewed the information contained in this declaration with Eric McReynolds by telephone on April 11, 2020, and that at that time, he certified that the information contained in this declaration was true and accurate to the best of his knowledge. Executed on April 11, 2020.
________________________ David J. Carey American Civil Liberties Union Foundation of Ohio 1108 City Park Avenue, Suite 203 Columbus, OH 43206 (614) 568-1972 dcarey@acluohio.org
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Case: 4:20-cv-00794-JG Doc #: 1-7 Filed: 04/13/20 1 of 4. PageID #: 77
Exhibit E
Declaration of Eric Bellamy

Case: 4:20-cv-00794-JG Doc #: 1-7 Filed: 04/13/20 2 of 4. PageID #: 78
DECLARATION OF ERIC BELLAMY I, Eric Bellamy, am over the age of 18 and fully competent to make the following declaration: 1. I am currently incarcerated at Federal Correctional Institute, Elkton (“FCI Elkton”), in unit
“GB.” My Federal Bureau of Prisons Register Number is 15061-088. I was convicted of possession of narcotics and of a firearm, and have served approximately 16 months of a 75 month sentence. I have no violent offenses on my record, and I’ve completed a drug program. 2. I am 52 years old. I have a history of heart problems, including one enlarged heart valve and two valves that are regurgitating. I’ve been told by a doctor that I need a stent within a year. I also suffer from hypertension, and I’m going blind in my left eye, which I’m told is a result of my heart condition. I know that my conditions make me a higher risk for the coronavirus. 3. There is no way to social distance inside FCI Elkton. I’m housed in a cell with two other men, crowded into maybe a 6-foot by 8-foot area with a bunk bed and an extra bed. The whole prison is overcrowded, and every bed is taken up. There is way less than six feet between beds. 4. In any given moment I’m no more than 1-2 feet away from someone else, and there’s no way to keep more of a distance. When we go to get food, we have 5 minutes to get up, get dressed, and get to the building where we get our food boxes. Men are clustered together in line, because there’s no space to spread out. When we come back with our food, we can eat in our cubes, or go to the big or small TV rooms, there’s no distancing whatsoever in any of these places. I can move around and walk around the cubes, but I’m bumping up against people wherever I go.
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Case: 4:20-cv-00794-JG Doc #: 1-7 Filed: 04/13/20 3 of 4. PageID #: 79
5. I just saw on the news, on WKBN.com Youngstown, that 67 people at Elkton have the coronavirus, 44 are in the hospital, 12 staff have it, and 14 inmates on ventilator.
6. Nothing is being done to separate people who are older or higher-risk, like me. They don’t seem to care anything about what’s happening down here, because they’re focused on the hospital.
7. There are no staff around. I’m told that’s because they’re overstaffed at the hospital, with people pulling 12-hour shifts there, but they’re not doing anything in the regular housing units. They’re feeding us, and that’s it.
8. The 150 or so people in my unit share 6 toilets and 12 showers, and you’re right up against people the whole time. 2 stalls in the bathroom are broken.
9. The COs and other staff have been acting different since this started. There’s less of them around and they’re all trying to keep their distance, which means nobody is around to help us. The counselor isn’t here, and a case manager didn’t come in because he’s sick.
10. People who have a fever over a certain temperature are being sent to medical or quarantine. 11. I was friends with another prisoner, Woodrow Taylor, who was sick and later died of the
disease. After he was taken away to medical, they posted an “enter at your own risk” sign on his room. 12. If I am released, I have a stable home environment in Huntington, West Virginia, where I could go immediately. I declare under penalty of perjury that the foregoing is true and correct.
/s/ Eric Bellamy (by consent) Eric Bellamy
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Case: 4:20-cv-00794-JG Doc #: 1-7 Filed: 04/13/20 4 of 4. PageID #: 80 I, David J. Carey, certify that I reviewed the information contained in this declaration with Eric Bellamy by telephone on April 11, 2020, and that at that time, he certified that the information contained in this declaration was true and accurate to the best of his knowledge. Executed on April 12, 2020.
________________________ David J. Carey American Civil Liberties Union Foundation of Ohio 1108 City Park Avenue, Suite 203 Columbus, OH 43206 (614) 568-1972 dcarey@acluohio.org
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Case: 4:20-cv-00794-JG Doc #: 1-8 Filed: 04/13/20 1 of 4. PageID #: 81
Exhibit F
Declaration of Maximino Nieves

Case: 4:20-cv-00794-JG Doc #: 1-8 Filed: 04/13/20 2 of 4. PageID #: 82
DECLARATION OF MAXIMINO NIEVES I, Maximino Nieves, am over the age of 18 and fully competent to make the following declaration: 1. I am currently incarcerated at the low-security satellite camp at Federal Correctional
Institute, Elkton, called FSL Elkton. My Federal Bureau of Prisons Register Number is 27537-050. I was convicted of conspiracy to distribute drugs, and have only about 11 months left of a 220-month sentence, which was later reduced to 188 months. I have no violent offenses on my record, and no prior offenses of any kind. 2. I’m 46 years old and I don’t have a serious medical history. I thank God for that, because it’s dangerous enough from the coronavirus even for healthy people. 3. It’s totally impossible to maintain 6-foot distancing here. We’re in 2- and 3-man cubicles, one after the other in an open dormitory. There are 170 people in my unit, sharing small bathrooms with 4 urinals, 10 showers, and 5 toilets, which we share. In the cubes, the person on the other side sleeps above where you read. In the TV rooms, the tables are right on top of each other. We’re about 2 feet away from each other where we sleep. 4. The phones are on top of each other too. Talking on the phone right now, I’m on a phone bank of four phones. There’s a little silver divider like old-school public phones, and you’re so close you can hear each other’s conversations. People come in and out through the entrance right next to me, through a door about 2 feet away. 5. No one has been tested for the coronavirus that I know of. The guys who show symptoms are put into a quarantine unit and as far as I know, they get no further help, unless there’s shortness of breath and then they’re taken to a hospital. They keep them in the quarantine
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Case: 4:20-cv-00794-JG Doc #: 1-8 Filed: 04/13/20 3 of 4. PageID #: 83
unit for about 10 days and then release them. But for those of us like me who have been in contact but are showing no symptoms, they don’t do anything at all for us. 6. The prisoners are doing our best to keep surfaces clean with spray bottles of disinfectant, but people are still getting sick because we’re all so close together. I know three people who have passed away from the disease, including Woodrow Taylor. I sat next to him ever since he got to this place. He was showing symptoms for a while but they left him in his bunk until finally moving him to medical. After he died, they gave us masks—2 masks in a brown paper bag. 7. I believe we have a few guards who are infected. There are only three guards working in the compound where I am right now, one in each unit and the compound officer. There are fewer guards because they are so busy taking people to the hospital. Every time someone goes, two officers accompany them. 8. The COs are acting very cautious ever since this happened. Normally they do shakedowns, but now they’re interacting with us less. They’re clearly avoiding us. There’s a sense that we’re being rejected or abandoned and the COs are not in touch with what’s going on here. 9. I was one of 15 guys who was told, a little over a week ago, that I was going to be moved out. The unit manager from the FSL called me and the others up and told us “you guys are not coming back, say your goodbyes.” They moved us to the visiting room and set up cots to quarantine us, and our meals were brought in. I was there from Saturday, April 4 through Wednesday, April 8. On Wednesday, a different case manager came in and called five people, including me. He told us to pack back up and go back to the unit, but didn’t give us any explanation of why. So we were sent back in. Of that group of 15, 2 have been given
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Case: 4:20-cv-00794-JG Doc #: 1-8 Filed: 04/13/20 4 of 4. PageID #: 84
release dates, and 5 of us were sent back to the unit. I don’t know what happened to the other 8, but I think they’re still in the visiting area. 10. If released, I have a secure and stable home environment that I could go to immediately, including medical insurance. I declare under penalty of perjury that the foregoing is true and correct.
/s/ Maximino Nieves (by consent) Maximino Nieves
I, David J. Carey, certify that I reviewed the information contained in this declaration with Maximino Nieves by telephone on April 11, 2020 and as to ¶ 10, by correspondence on April 11, and that at that time, he certified that the information contained in this declaration was true and accurate to the best of his knowledge. Executed on April 12, 2020.
________________________ David J. Carey American Civil Liberties Union Foundation of Ohio 1108 City Park Avenue, Suite 203 Columbus, OH 43206 (614) 568-1972 dcarey@acluohio.org
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Case: 4:20-cv-00794-JG Doc #: 1-9 Filed: 04/13/20 1 of 4. PageID #: 85
Exhibit G
Declaration of Howard Jackson

Case: 4:20-cv-00794-JG Doc #: 1-9 Filed: 04/13/20 2 of 4. PageID #: 86
DECLARATION OF HOWARD JACKSON I, Howard Jackson, am over the age of 18 and fully competent to make the following declaration:
1. I am currently incarcerated at Federal Correctional Institute, Elkton (“FCI Elkton”). My Federal Bureau of Prisons Register Number is 54870-039. I was convicted of possession with intent to deliver narcotics, and have served approximately 4 years of a 135-month sentence. I have no violent offenses on my record.
2. I am 44 years old. I have a chronic stomach issue that I’ve been dealing with all my life. Before I self-surrendered, I had a stroke that left me confined to a wheelchair for about 1012 months. When I was brought into prison, I had no help and no rehab, but I managed to get myself back together. Then about 4 months ago, I had another stroke, a minor one. My fellow prisoners helped me get through it. No one has been regularly checking my blood pressure or anything, they’re just giving me baby aspirin.
3. Since the coronavirus hit, people are passing away. There’s a lot of sickness going on. There’s a quarantine unit where if you have a fever, they house you for a few days. But pretty much everywhere I go, I’m standing next to someone who has symptoms.
4. It’s impossible to social distance in here. Even with the sleeping arrangements, my bunkmate and I can never be more than 3 feet apart. When you walk down a hall, you have to turn to the side to allow each other to pass. Where we watch TV, there’s seating areas right next to each other. At meal times, they call us in unit-by-unit to go over and get our trays. Even at that time, we still can’t be six feet apart, like when we’re lined up. In bathrooms, when you’re up and getting ready in the morning, at mealtimes, sleeping times, all the time, we have to be close together.
5. They just gave us masks last week. Staff and COs got masks around the same time.
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Case: 4:20-cv-00794-JG Doc #: 1-9 Filed: 04/13/20 3 of 4. PageID #: 87 6. Since this started, fewer COs seem to be around and the staff is very secretive. We’d ask
them what’s going on and they wouldn’t tell us. They gave us different numbers about deaths and how many people are sick. From my understanding, all the COs are at the hospital. A lot of them are sick themselves. The COs are mad too, because they’re having to come to work and deal with this, and they only just got masks. 7. The prison is not doing anything in particular to protect people with preexisting conditions, like me. They’ve sent out memos telling us to keep your distance and wash your hands. I’m sure they know that’s not possible. I declare under penalty of perjury that the foregoing is true and correct.
/s/ Howard Jackson (by consent) Howard Jackson
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Case: 4:20-cv-00794-JG Doc #: 1-9 Filed: 04/13/20 4 of 4. PageID #: 88 I, David J. Carey, certify that I reviewed the information contained in this declaration with Howard Jackson by telephone on April 11, 2020, and that at that time, he certified that the information contained in this declaration was true and accurate to the best of his knowledge. Executed on April 11, 2020.
________________________ David J. Carey American Civil Liberties Union Foundation of Ohio 1108 City Park Avenue, Suite 203 Columbus, OH 43206 (614) 568-1972 dcarey@acluohio.org
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Case: 4:20-cv-00794-JG Doc #: 1-10 Filed: 04/13/20 1 of 5. PageID #: 89
Exhibit H
Declaration of Craig Wilson

Case: 4:20-cv-00794-JG Doc #: 1-10 Filed: 04/13/20 2 of 5. PageID #: 90
DECLARATION OF CRAIG W. WILSON I, Craig Wilson, am over the age of 18 and fully competent to make the following declaration: 1. I am currently incarcerated at Federal Correctional Institute, Elkton (“FCI Elkton”), a low-
security prison operated by the Federal Bureau of Prisons. My Federal Bureau of Prisons Register Number is 13730-025. I have served approximately half of a 120-month sentence for possession of methamphetamine and possession of a firearm. There has never been any violence on my record, but over the years I have suffered from addiction. I have a stable home environment available if I’m able to move to home detention, and I have an evidencebased recovery plan in place. 2. I am 42 years old. I’ve suffered from chronic asthma since childhood, and have had to use inhalers, steroids, and breathing machines at various times in order to breathe properly. I use a rescue inhaler regularly, and I take albuterol for my breathing problems. I know that my condition puts me in a high-risk category for COVID-19, and I’m afraid that if I catch it, I will die. 3. Around March 9, 2020, FCI Elkton established a protocol to keep the facility free of COVID-19. I understood that to involve keeping the staff on the grounds for two-week intervals, and to test them for the coronavirus upon arrival and departure. Mats, bedding, and food were brought in for the staff, but that plan was quickly abandoned. I understood that to be because the staff didn’t want to cooperate with the plan, because I heard some of them saying so. 4. It has been complete chaos since the coronavirus began to spread inside FCI Elkton. The prison has set up a quarantine unit, where they move people who they see showing symptoms, for a period of seven days. Medical is taking temperatures, using the same
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Case: 4:20-cv-00794-JG Doc #: 1-10 Filed: 04/13/20 3 of 5. PageID #: 91
thermometer for multiple people and only wiping it off with a sanitary napkin. If the fever goes away, they’re moved back to the regular housing unit with no testing done. As far as I know, no one is being tested unless they’re in bad enough condition to need to go to the hospital. 5. The number of people who are showing symptoms is staggering. A steady flow of people have ended up in the hospital, with ambulances leaving at all hours. I know three people have passed away. They were sick in bed with a fever, moved to a hospital, and never returned. 6. I know that social distancing is recommended to prevent the spread of the virus, but there is absolutely no way to practice social distancing here. We’re piled on top of each other and left to fend for ourselves. My housing unit has open dorms with 150 bunks, divided into cubes with each cube holding 2-3 prisoners. There are 10 sinks, 18 showers, 6 toilets, and 6 urinals for all 150 people. Our bunks are in very close proximity to each other, definitely less than six feet in all directions. The cube is about 8 feet by 9 feet, with a 5foot wall in between cubes. We are forced to get in tight lines for all meals and medications. 7. We’re not allowed to go outside, which makes no sense to me because we might be able to practice social distancing outside. The air-intake units for my dorm, HB dorm, are broken, so we’re not even getting fresh air from outside. The air that we receive is circulated from downstairs where the quarantine unit is housed. 8. A friend of mine who works in Medical was made to clean the cubes of those who were sick, and he ultimately got very sick and was put on life support. He was gone for a week and has just been put back into population.
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Case: 4:20-cv-00794-JG Doc #: 1-10 Filed: 04/13/20 4 of 5. PageID #: 92
9. There are only 4 phones and 4 computers shared by everyone in my unit. They are not being cleaned in between uses. Both the phones and the computers are less than two feet apart and are all in constant use.
10. There are no dispensers for soap or hand sanitizer anywhere in the unit. Once a week we are issued a 4-ounce bottle of “3-in-1” soap that is to be used for washing your hair and body, shaving, and washing your hands. I’ve run out of soap—everyone has. Without our commissary, we have nothing to wash with. They brought in a big jug of watered-down antibacterial spray for the dorm to share, and that’s all we have. We have access to one shared area for hot water, shared by all 150 people in the unit.
11. Each prisoner was issued two one-time-use masks a couple of weeks ago. They’re supposed to be disposable and we have no way to clean them, but that’s all we got. Using the mask repeatedly is dangerous, so many of us have nothing.
12. The prison commissary has been shut down. We are unable to purchase any additional soap, medicine, or sanitary equipment, and this also prevents us from buying stamps to mail letters to our loved ones.
13. Some staff still aren’t wearing protective gear, even after the deaths we’ve seen. The staff are hiding for the most part, and we only see them during count times. Many are sympathetic to the prisoners but unable to help. I’ve heard that the National Guard is here for medical assistance and staffing shortages, but I haven’t seen any of them. I’m worried that it’s going to come to the point of a riot soon.
14. The situation isn’t getting any better. Nothing is being done to protect me or others and I’m in fear for my life, because it seems like it’s only a matter of time until I get this virus. Many people around me feel the same way. I feel like I’ve been handed a death sentence.
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Case: 4:20-cv-00794-JG Doc #: 1-10 Filed: 04/13/20 5 of 5. PageID #: 93
15. On March 30, 2020, I filed a request for home detention with the warden, but have gotten no response. I’ve asked for a grievance form to file, but I’ve been told that there are no forms available. All concerns that I and others have raised to staff are being ignored.
I declare under penalty of perjury that the foregoing is true and correct. /s/ Craig Wilson (by consent) Craig Wilson
I, David J. Carey, certify that I reviewed the information contained in this declaration with Craig Wilson by telephone on April 10, 2020, and that at that time, he certified that the information contained in this declaration was true and accurate to the best of his knowledge. Executed on April 10, 2020.
________________________ David J. Carey American Civil Liberties Union Foundation of Ohio 1108 City Park Avenue, Suite 203 Columbus, OH 43206 (614) 568-1972 dcarey@acluohio.org
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Case: 4:20-cv-00794-JG Doc #: 1-11 Filed: 04/13/20 1 of 4. PageID #: 94
Exhibit I
Declaration of Arsenio Arzola

Case: 4:20-cv-00794-JG Doc #: 1-11 Filed: 04/13/20 2 of 4. PageID #: 95
DECLARATION OF ARSENIO ARZOLA I, Arsenio Arzola, am over the age of 18 and fully competent to make the following declaration: 1. I am currently incarcerated at Federal Correctional Institute, Elkton (“FCI Elkton”). My
Federal Bureau of Prisons Register Number is 27290-050. I was convicted for conspiracy to distribute drugs and possession and discharge of a firearm, and I have about 11 years remaining on my sentence. 2. I am 49 years old. I don’t know if I have any medical conditions, because I haven’t been given a physical since I’ve been incarcerated at FCI Elkton, which has been about 30 months. 3. My cellmate, a man named Michael Bear, got very sick. He is about 68 years old and when the coronavirus first hit, he went to Medical three times in one week but was returned to the housing unit. I had to serve as his caretaker or first responder and take care of him. He was coughing, sneezing, moaning, and defecating on himself. I had no gear, but I provided him some medication from the commissary and tried to help him get dressed, feed him, and move him around. I’m not an EMT, just a human being who has an elderly dad at home who I pray is getting the help he needs. 4. I’m in a housing unit called AA, in a 10,000 square foot warehouse. It’s wide open, with poor ventilation and filth on the ceiling and in the vents, which I’ve never seen cleaned. About 165 prisoners are in each dorm, in cubes that measure 8 by 10 feet, each containing 3 beds, 3 lockers, clothes, commissary, shoes, and 3 grown men. In this space, there is no way in the world for us to keep the six-foot distance for social distancing. Our beds are so close that we rub feet. We’re overcrowded like cattle. Some people get a 2-person cube, but that’s up to staff. I don’t think this place was even built to house this many people.
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Case: 4:20-cv-00794-JG Doc #: 1-11 Filed: 04/13/20 3 of 4. PageID #: 96
5. We have 12 shared showers. They’re next to each other, with a wooden wall partly dividing them, but my water hits the next man and his water splashes me. The sinks are so close to each other that when we brush our teeth or wash our hands, the splash from the next man’s toothpaste hits you, and you’re bumping elbows with him. We all use the same toilets, which are permanently stained with waste and filth. Surfaces are not being cleaned.
6. We have controlled movements, like when we go to eat. It’s a stampede of people trying to get through a 4-6 foot wide door. Social distancing is out the window. Phones are about 4 inches apart, and computers are about 8 inches apart, and the lines to get to them are ridiculous, especially during the day.
7. Soap and cleaning supplies are scarce. The commissary has been closed for a week. I’ve heard people call this institution a giant petri dish, a ticking time bomb, and a breeding ground for the COVID-19 pandemic.
8. It’s a fact that the staff is overwhelmed. They seem to be dealing with their own personal or union problems. They don’t want to be bothered by prisoners, and tensions are very high. Aggression is in the air, and every question from a prisoner to staff is answered in a very aggressive manner. Prisoners are scared to ask for anything—cleaning chemicals, paper, or anything else. Some of the staff wear masks, and some don’t. I hear them say “if you’re gonna get it, you’re gonna get it.”
9. We were provided masks two weeks into the outbreak, when people were already sick and being pulled out into quarantine hour after hour, day after day. We were exposed to the virus for at least those two weeks before getting masks.
10. Prisoners are not being quarantined for 14 days. They’re being sent back to units while still showing symptoms, and housed right back with us in the cubes. Some people with
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symptoms are being taken immediately to medical, others are left behind. My sick cellmate, Michael Bear, was taken away and they moved someone else in who was just out of a 7day quarantine and is still showing symptoms. Nothing has been done with me or my other cellmate, even though we were so close to a sick person. 11. The only way I can think of that we might be able to keep our distance would be to intentionally commit infractions in order to be put in the SHU, or special housing unit, as punishment. Things are not getting any better. I declare under penalty of perjury that the foregoing is true and correct.
/s/ Arsenio Arzola (by consent) Arsenio Arzola
I, David J. Carey, certify that I reviewed the information contained in this declaration with Arsenio Arzola by telephone on April 13, 2020 and that at that time, he certified that the information contained in this declaration was true and accurate to the best of his knowledge. Executed on April 13, 2020.
________________________ David J. Carey American Civil Liberties Union Foundation of Ohio 1108 City Park Avenue, Suite 203 Columbus, OH 43206 (614) 568-1972 dcarey@acluohio.org
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 Case: 4:20-cv-00794-JG Doc #: 7 Filed: 04/14/20 1 of 1. PageID #: 110

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

CRAIG WILSON, ET AL.,

)

)

Petitioners,

)

)

vs.

)

)

WARDEN MARK WILLIAMS, ET AL., )

)

Respondents.

)

)

)

CASE NO.4:20-cv-00794 JUDGE JAMES S. GWIN ORDER

On April 13, 2020, the petitioners filed the above-entitled action. In addition to the Petition under 28 U.S.C. 2241, petitioners filed a motion to expedite case scheduling.
The Court hereby grants the motion to expedite and orders respondents to file response briefing by April 17, 2020 at 12:00 PM EST.
IT IS SO ORDERED.

Dated: April 14, 2020

s/ James S. Gwin JAMES S. GWIN UNITED STATES DISTRICT JUDGE

 
 Case: 4:20-cv-00794-JG Doc #: 10 Filed: 04/17/20 1 of 45. PageID #: 127

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CRAIG WILSON, ERIC BELLAMY, KENDAL NELSON, and MAXIMINO NIEVES, on behalf of themselves and those similarly situated,
Petitioners,
v.
MARK WILLIAMS, Warden of Elkton Federal Correctional Institution; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities,
Respondents.

) CASE NO.: 4:20cv794 ) ) ) ) ) JUDGE: JAMES S. GWIN ) ) ) ) ) ) ) ) )

ANSWER, RETURN OF WRIT, AND RESPONSE IN OPPOSITION TO PETITION FOR WRIT OF HABEAS CORPUS, INJUNCTIVE AND DECLARATORY RELIEF

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TABLE OF CONTENTS TABLE OF AUTHORITIES ........................................................................................................ III STATEMENT OF THE ISSUES.................................................................................................... 1 SUMMARY OF THE ARGUMENT ............................................................................................. 1 INTRODUCTION ......................................................................................................................... 5 STATEMENT OF FACTS ............................................................................................................. 6
I. THE COVID-19 PANDEMIC AND THE BOP’S RESPONSE ................................. 6 II. STEPS BEING TAKEN AT ELKTON TO PREVENT COVID-19’S SPREAD ...... 7
A. Screening........................................................................................................... 8 B. Isolation and Quarantine Procedures ................................................................ 9 C. Testing ............................................................................................................... 9 D. Screening and Excluding Staff and Vistors ................................................... 10 E. Cleaning.......................................................................................................... 11 F. Supplies........................................................................................................... 11 G. Inmate and Staff Education............................................................................. 11 III. HOME CONFINEMENT AND COMPASSIONATE RELEASE ...................... 12 A. Compassionate Release................................................................................... 12 B. Home Confinement ........................................................................................ 13 LAW AND ARGUMENT ............................................................................................................ 15 I. PETITIONERS ARE NOT ENTITLED TO HABEAS RELIEF..................................... 15 A. Habeas Relief is Unavailable to Challenge Conditions of Confinement ........ 15 B. PLRA Precludes the Relief Requested............................................................ 16 C. The BOP has not Violated the Constitution .................................................... 19
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1. Standard ...................................................................................................... 19

2. Petitioners are not being Subject to an Unreasonable Risk of Harm ..................................................................................................... 20

3. The BOP has not shown Deliberate Indifference but has Taken Appropriate Measures to Protect the Health of Inmates at Elkton and the Public .......................................................................... 22

II. PETITIONERS ARE NOT ENTITLED TO A TEMPORARY RESTRAINING ORDER OR ANY INJUNCTIVE RELIEF .................................................................... 25

A. Standard .......................................................................................................... 25

B. Petitioners Unlikely to Succeed on the Merits ................................................ 26

1. The Conditions at Elkton are Different than Portraryed in the Petition ......................................................................................................... 27

2. Release is Unlikely to Redress the Alleged Harm ..................................... 28

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 Criminal Sentences of Inmates ............................ 29

C. Petitioners Fail to Establish Imminent Irreparable Harm 32

D.

Granting the Requested Relief Would Cause Substantial Harm to

Others ............................................................................................................. 33

E. Public Health and Safety Would Not Be Served by Granting the Requested Relief................................................................................................................ 34

III. PETITIONERS HAVE NOT PROVIDED A SUFFICIENT BASIS FOR CLASS CERTIFICATION, AND CLASS-WIDE RELIEF WOULD LIKELY HARM MANY INMATES TABLE............................................................................... 35

CONCLUSION............................................................................................................................. 37

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TABLE OF AUTHORITIES

CASES

PAGE(S)

Abney v. Amgen, Inc., 443 F.3d 540 (6th Cir. 2006) ................................................................... 32

Am. Civil Liberties Union Fund of Mich. v. Livingston Cty., 796 F.3d 636 (6th Cir. 2015) ....... 26

Baker v. District of Columbia, 326 F.3d 1302 (D.C. Cir. 2003) .................................................. 22

Benjamin v. Jacobson, 172 F.3d 144 (2d Cir. 1999) .................................................................. 17

Bragdon v. Abbot, 524 U.S. 624 (1998) ...................................................................................... 25

Brookens v. Am. Fed’n of Gov’t Emps., 315 F. Supp. 3d 561 (D.D.C. 2018) ............................. 28

Brown v. Plata, 563 U.S. 493 (2011) ........................................................................................... 18

Comcast Corp. v. Behrend, 569 U.S. 27 (2013) .......................................................................... 35

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ................................................................ 28

Dawson v. Asher, No. C20-0409 JRL-MAT, 2020 WL 1304557 (W.D. Wash March 19, 2020) .............................................................................................. 24

Farmer v. Brennan, 511 U.S. 825 (1994) .......................................................................... 2, 20, 22 Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) ..................................................... 26, 27, 28 Gilmore v. People of the State of Cal., 220 F.3d 987 (9th Cir. 2000) ................................... 17, 18 Helling v. McKinney, 509 U.S. 25 (1993) .............................................................................. 22, 23 Hickox v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016) ............................................................... 25 Hines v. Youssef, No. 1:13-cv-00357-AWI-JL, 2015 WL 164215
(E.D. Cal. Jan. 13, 2015) ............................................................................................ 21-22, 22

Hodges v. Bell, 170 F. App’x 389 (6th Cir. 2006) ....................................................................... 16

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Case: 4:20-cv-00794-JG Doc #: 10 Filed: 04/17/20 5 of 45. PageID #: 131
In re Am. Med. Sys., Inc., 75 F.3d 1069 (6th Cir. 1996) ........................................................ 35, 37 Inmates of Suffolk Cty. Jail v. Rouse, 129 F.3d 649 (1st Cir. 1997) ............................................ 17 Jacobson v. Massachusetts, 197 U.S. 11 (1905) .......................................................................... 25 Luedtke v. Berkebile, 704 F.3d 465 (6th Cir. 2013) ................................................................. 2, 15 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ........................................................................... 28 Lutz v. Hemingway, 476 F.Supp.2d 715 (E.D. Mich. 2007) ........................................................ 16 Martin v. Overton, 391 F.3d 710 (6th Cir. 2004) ........................................................................ 16 Money v. Pritzker, ___ F. Supp. 3d ___ Nos. 20-cv-2093 & 20-cv-2094,
2020 WL 1820660 (N.D. Ill. Apr. 10, 2020), ...................................................... 19, 23, 24, 36 Muhammad v. Close, 540 U.S. 749 (2004) .................................................................................. 16 Ne. Ohio Coal. for Homeless & Serv. Employees Int’l Union, Local 1199 v. Blackwell,
467 F.3d 999 (6th Cir. 2006) ................................................................................................ 26 Nelson v. Campbell, 541 U.S. 637 (2004) ............................................................................... 2, 15 Sch. Bd. of Nassau Cty., Fla. v. Arline, 480 U.S. 273 (1987) ..................................................... 25 Scott v. Benson, 742 F.3d 335 (8th Cir. 2014) ............................................................................. 24 Spectrum Five LLC v. FCC, 758 F.3d 254 (D.C. Cir. 2014) ....................................................... 28 State of Ohio ex rel. Celebrezze v. Nuclear Regulatory Comm’n,
812 F.2d 288 (6th Cir. 1987) ................................................................................................ 32 Sullivan v. United States, 90 F. App’x 862 (6th Cir. 2004) ......................................................... 15 United States ex rel. Siegel v. Shinnick, 219 F. Supp. 789 (E.D.N.Y. 1963) ............................... 25
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United States v. Gileno, No. 3:19-cr-161, 2020 WL 1307108 (D. Conn. Mar. 19, 2020) ..................................................................................................... 20
United States v. Hamilton, No. 19-CR-54-01, 2020 WL 1323036 (E.D.N.Y. Mar. 20, 2020) ..................................................................................................... 20
United States v. Jefferson, No. CCB 19-487, 2020 WL 1332011 (D. Md. Mar. 23, 2020) ........................................................................................................ 20
United States v. Martin, No. PWG-19-140-13, 2020 WL 1274857 (D. Md. Mar. 17, 2020) ........................................................................................................ 20
United States v. Steward, No. S1:20-cr-0052 (DCL), 2020 WL 1468005 (S.D.N.Y. Mar. 25, 2020) ..................................................................................................... 33
United States v. Taylor, No. 5:19-CR-192-KKC-MAS, 2020 WL 1501997 (E.D. Ky. Mar. 26, 2020) ..................................................................................................... 33
United States, v. Rollins, Nos. 19-CR-34S, 11-CR-251S, 2020 WL 1482323 (W.D.N.Y. Mar. 27, 2020) ............................................................................................. 20, 21
Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000) ............................ 28 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ........................................................... 35, 36 Wilson v. Seiter, 501 U.S. 294 (1991) .......................................................................................... 20 Winter v. NRDC, 555 U.S. 7 (2008) ...................................................................................... 26, 32
STATUTES 18 U.S.C. § 3582 .............................................................................................................. 12, 31, 33 18 U.S.C. § 3582(c)(1)(A) ............................................................................................... 12, 13, 31
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. 18 U.S.C. § 3621(b) ...................................................................................................................... 30 18 U.S.C. § 3624(c) ..................................................................................................................... 33 18 U.S.C. § 3624(c)(2) ........................................................................................................... 14, 30 18 U.S.C. § 3626 .................................................................................................... 2, 16, 17, 18, 19 18 U.S.C. § 3626(a)(3)(A)(i)(ii). ..................................................................................... 17, 18, 19 18 U.S.C. § 4205(g) ............................................................................................................... 12, 31 28 U.S.C. § 2241 ...................................................................................................................... 2, 15 U.S. CONSTITUTION U.S. Const. amend. VIII ............................................................................................................... 20 RULES Fed. R. Civ. P. 23 ............................................................................... 4, 5, 6, 7, 8, 9, 10, 11, 35, 36 OTHER 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), http://www.bop.gov/policy/progstat/5050_050_EN.pdf.
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STATEMENT OF ISSUES 1. Whether habeas relief is available to challenge conditions of confinement. 2. Whether the Prison Litigation Reform Act of 1995 prohibits the release of inmates. 3. Whether Petitioners are being subject to an unreasonable risk of harm. 4. Whether Respondents can be found deliberately indifferent despite taking measures to
protect and care for the health of the inmates at Elkton. 5. Whether Petitioners are likely to succeed on the merits of their claims. 6. Whether Petitioners can establish imminent irreparable harm. 7. Whether granting hundreds of inmates an immediate release would cause harm to some of
them or others. 8. Whether the public health and safety would be served by immediately releasing hundreds
of prisoners from incarceration. 9. Whether Petitioners are entitled to class certification in this case.
SUMMARY OF ARGUMENT 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. BOP staff have taken measures at FCI-Elkton to prevent and treat COVID-19 among inmates, 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; restricting inmates to their residential area with only one pod moving at a time for meals, and taking a number of other preventative measures. The gravamen of the Petition is that Petitioners are entitled to habeas relief and release
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from Elkton pursuant to 28 U.S.C. § 2241 based on “unconstitutional conditions of confinement.” (Pet. ECF No. 1 PageID # 35.) However, it is well-settled that a habeas petition under 28 U.S.C. § 2241, “is not the proper vehicle for a prisoner to challenge conditions of confinement.” Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013); see also Nelson v. Campbell, 541 U.S. 637, 643 (2004). Further, the Prison Litigation Reform Act of 1995 (“PLRA”), 18 U.S.C. § 3626, places strict limits on courts’ ability to order the release of inmates “in any civil action in Federal court with respect to prison conditions…” and precludes a single district judge from doing so. 18 U.S.C. § 3626(a)(3)(B).
In order to establish their claims that their confinement is unconstitutional, Petitioners must establish that “the deprivation alleged must be, objectively, ‘sufficiently serious’…” and that it is “the unnecessary and wanton infliction of pain….” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Petitioners can establish neither prong. First, Petitioners cannot establish that they have suffered a “sufficiently serious” deprivation, because the BOP has taken appropriate steps to mitigate the risks of COVID-19 throughout its inmate population including with respect to the inmate population at Elkton. 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. Second, Petitioners cannot establish that the BOP is deliberately indifferent to their health needs because BOP has worked very hard to prevent the spread of COVID-19 among the inmate population and has cared for and treated inmates who have gotten sick.
In addition to habeas relief, Petitioners also seek a temporary restraining order and injunctive relief. A district court must balance four factors in determining whether to grant
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injunctive relief: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction. None of these factors favor relief.
First, Petitioners are unlikely to succeed on the merits because the conditions at Elkton are different than portrayed in the Petition. Instead, staff at Elkton have numerous measures in place in compliance with CDC and BOP guidelines to prevent the spread of COVID-19. Further, Petitioners cannot show that the immediate release of a substantial number of Elkton inmates or themselves would lessen their risk of them contracting COVID-19. The also cannot show legal authority for the Court to release prisoners.
Second, Petitioners cannot show irreparable injury absent the requested relief. As discussed, the BOP have put in place a myriad of protections within Elkton reduce the risk that persons with COVID-19 enter Elkton in the first place and prevent the spread of COVID-19 within Elkton. 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. Thus, Petitioners cannot show irreparable injury.
Third, Petitioners demand for the immediate release and removal of a substantial portion of the population at Elkton would cause substantial damage to others. Petitioners can provide no assurances that these hundreds of inmates who they propose to be immediately released would be able to provide food, shelter, and medical care for themselves. 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 impacting the entire nation.
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Finally, the public interest would not be served by granting relief. The immediate release of hundreds of inmates would pose profound risks to the public from released prisoners engaging in additional criminal activity, potentially including violence or heinous sex offenses. Our overburdened police and safety services should not be forced to deal with the indiscriminate release of hundreds 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 formerways as soon as they walk through the prison gates.
In addition to relief, Petitioners seek class certification of every current and future inmate at Elkton. 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): numerosity, commonality, typicality, and adequacy of representation. Here there is no commonality and typicality because 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 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 were previously sick and made a full recovery. There simply is no comomonality and typicality among proposed class members other than incarceration at Elkton.
Likewise, Petitioners cannot show adequacy of representation because they demand a dramatic remedy that would have a profound effect on members of the class without considering the impact on the class members. It is quite likely that the sudden removal of so many inmates
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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.
INTRODUCTION Respondents Mark Williams, Warden of Elkton Federal Correctional Institution and Michael Carvajal, Director of Federal Bureau of Prisons, in their official capacities (“Respondents”), submit the following Answer, Return of Writ, and response in opposition to Petitioners’ Emergency Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief. Except as expressly admitted herein, Respondents deny each and every allegation contained in the Emergency Petition and deny Petitioners are entitled to any relief.1 Petitioners Craig Wilson, Eric Bellamy, Kendal Nelson, and Maximino Nieves are inmates at the Federal Correctional Institution-Elkton (“Elkton”) in Lisbon, Ohio, and bring this action on behalf of themselves and, purportedly, on behalf of all current and future inmates of Elkton. Petitioners claim that Respondents have failed to take adequate measures to protect them against the dangers posed by COVID-19. (See generally ECF No. 1.) They seek certification of the Petition as a class action; a temporary restraining order, preliminary injunction, permanent injunction and/or a writ of habeas corpus requiring Respondents to release all Medically-Vulnerable Subclass Members Id. at 36, submission of a plan for mitigation of COVID-19 and to provide housing for
1 Because this filing is an Answer, Return of Writ and Response in Opposition to the Emergency Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief, undersigned counsel do not believe that the page limit restrictions contained in Loc. R. 7.1(f) apply. However, if the Court determines that Loc. R. 7.1(f) applies to Respondents’ filing, then Respondents hereby respectfully move instanter for an enlargement of the page limits to 38 pages (exclusive of the cover sheet, table of contents, and table of authorities) due to the complexity of the issues involved and the volume of information necessary to give the Court an accurate description of all of the pertinent facts. Further, Respondents note that their filing is shorter than Petitioners’ Emergency Petition.
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self-isolation of exposed/infected Subclass or Class members for the CDC recommended period Id. at 37; release of as many Class Members as is necessary to allow for inmates to maintain six feet of distance between them Id.; and a declaration the Elkton’s policies and practices violate the Eighth Amendment Id.
As explained below, the Bureau of Prisons staff and officials (“BOP”) are taking substantial measures at Elkton to address COVID-19, including screening, testing, isolating, and quarantining. The BOP has also taken numerous other steps to prevent spread of COVID-19 in the facility and is assessing inmates for home confinement and/or to recommend compassionate release as directed by the Attorney General. Therefore, Respondents urge this Court to deny the relief requested by Petitioners.
STATEMENT OF FACTS
I. THE COVID-19 PANDEMIC AND THE 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 Exhibit A, Declaration of Sarah Dees (“Dees Decl.”) at ¶ 6.) 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 States.2 (Id. at ¶7.) Among other things, the BOP has, on a nationwide basis: implemented screening requirements for inmates and staff; temporarily suspended social visits, legal visits, inmate transfers, official travel, and contractor access; updated its quarantine and isolation procedures; and instituted a “modified
2 These protocols are discussed at length in the accompanying Declaration of Sarah Dees, Ex. 1.
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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. at ¶¶ 8-15.)
On April 1, 2020, the BOP ordered all inmates to remain “secured in their assigned cells” for a period of 14 days (to be reevaluated at the conclusion of that time period), in order to decrease the spread of the virus. (Id. at ¶ 16.) On April 13, 2020, the BOP ordered an extension of the April 1, 2020 modified operations order through May 18, 2020. (Id. at ¶ 17.) II. STEPS BEING TAKEN AT ELKTON TO PREVENT COVID-19’S SPREAD
Elkton is a low security facility designed to house approximately 2,000 inmates at the main facility (FCI) and approximately 500 inmates at the Federal Satellite Low (FSL). (See Exhibit B, Declaration of Kristy Cole (“Cole Decl.”) at ¶ 3.) The FCI facility and the FSL are separate facilities and the inmate populations do not interact. (Id.) The FCI consists of 3 buildings containing 12 dorm-style housing units of each. (Id.) There are approximately 300 inmates in each housing unit. (Id. at ¶ 22.) Each housing unit is divided into an A side and a B side. (Id.) The A and B sides are separated and the inmates do not intermingle. (Id.) The FSL is one building with two dorm-style housing units. (Id.) Each housing unit is divided into an A side and a B side. (Id.) There are approximately 250 inmates in each FSL unit. (Id.)
Elkton has implemented each of the steps described above 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. (Dees Decl. at ¶ 19.) As explained below, 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
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preventative measures. (Id. at ¶ 19.) Additionally, Elkton implemented the “modified operations” directive in a number of ways, including: (1) “grab and go” meals for inmates, meaning that inmates are permitted to pick up pre-packaged meals at designated times, but had to return to their housing units in order to eat; scheduled staggered mealtimes, so that only a single housing unit (approximately 150 inmates) are moving within the facility at any particular time; and (2) Health Services pill line (controlled medication dispensing) and (3) commissary are accomplished during these times as well. (Id. at ¶ 12.)
A. Screening Elkton has implemented extensive measures to screen inmates for COVID-19, both for newly arriving inmates and for its resident inmate population. Newly arriving inmates are both screened and quarantined. (Dees Decl. at ¶¶ 23-24.) All incoming Elkton inmates are screened by Health Services medical providers in a single, controlled area separate from other complex staff and inmates. (Id. at ¶¶ 23-24, 26.) Inmates are evaluated for any symptoms of illness, as well as for “exposure risk factors” such as recent exposure to known or suspected COVID-19 cases. (Id.) Whether or not inmates display symptoms or exposure risk factors, they are automatically quarantined for a period of 14 days to ensure that they do not develop any symptoms consistent with COVID-19, and are only released into the general population at the expiration of those 14 days and upon medical clearance. (Id. at ¶¶ 24-25.) All staff in any such quarantine or isolation units must wear Personal Protective Equipment. (Id. at ¶ 24.) Additionally, Elkton has put into place screening measures to identify and manage any COVID-19 infections within the complex’s existing inmate population. First, Health Services reviewed inmate medical records to identify “high-risk” individuals pursuant to CDC guidelines. (Id. at ¶ 30.) Specifically, staff identified (1) all individuals over age 65; and (2) individuals
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diagnosed with certain medical conditions, identified by the CDC as “high risk”. (Id. at ¶¶ 30-31.) These individuals continue to be screened for symptoms and temperature. (Id. at ¶ 31.) Second, Elkton is actively monitoring its general inmate population for illness. Inmates are actively encouraged to self-report symptoms of illness to unit staff either orally or via a written request to staff. (Id. at ¶ 33.) Any inmate who presents with symptoms consistent with COVID-19 will be evaluated by a medical provider in the Health Services Department. (Id. at ¶ 34.) Based upon this evaluation, a determination will be made whether isolation and/or testing is appropriate. (Id.) Elkton has also implemented enhanced screening measures for inmates with ongoing work details, whose functions have been determined to be “essential” to the institution. (Id. at ¶ 32.) These inmates are screened for symptoms of illness and are required to have their temperatures taken, both before their shifts begin and once again before returning to their housing units. (Id.)
B. Isolation and Quarantine Procedures Any inmate who presents with symptoms consistent with COVID-19 will be evaluated by a medical provider in the Health Services Department. Based upon this evaluation, a determination will be made whether isolation and/or testing is appropriate. (Dees Decl. at ¶ 34.) Elkton medical providers are prioritizing immediate medical care for anyone who claims symptoms indicative of a COVID-19 infection. (Id. at ¶ 35.) In addition to the areas designated for quarantine and isolation, Elkton has a “bridge-unit” staffed by the Ohio National Guard medical unit. (Id. at ¶ 53.) The bridge-unit acts as a step down unit for inmates returning from hospitalization for COVID-19 symptoms. (Id.) The bridge unit has had a range of patients from 2-15 at any one time. (Id.) C. Testing Elkton is conducting testing in accordance with CDC guidelines. The CDC has explained
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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. 16, 2020).) At Elkton, there are currently not enough tests to test every inmate. (Dees Decl. at ¶ 41.) Consequently, the decision whether to test an inmate for COVID-19 is made by Health Services staff based on a number of criteria, including but not limited to: (1) the nature and severity of the symptoms; (2) the inmate’s potential exposure to COVID-19; (3) whether the inmate is considered “high-risk,” and (4) whether the inmate is on a work detail, such as food service, that requires the inmate to interact with other inmates or staff. (Id. at ¶ 41.)
Elkton received 55 swabs and medical supplies to test inmates for COVID-19. (Id. at ¶ 43.) As of April 15, 2020 Elkton has 18 swabs remaining. (Id.) Elkton continues to work diligently to obtain as many COVID-19 tests as possible. (Id.) In addition, Elkton has 25 Abbott rapid screening cassettes, and anticipates receiving 25 additional Abbott cassettes per week. (Id.)
As of April 15, 2020, 39 Elkton inmates have tested positive for COVID-19. (Id. at ¶ 42.) There are 34 staff members who have tested positive for COVID-19. (Id.) There have been 5 inmate deaths. (Id.)
D. Screening and Excluding Staff and Visitors All individuals entering Elkton (including staff, delivery drivers, or any other visitors) must undergo a health screening prior to entry and the screening occurs while the individual is in their vehicle outside the facility. (Dees Decl. at ¶ 36.) This includes having their temperature taken and being asked a number of questions to evaluate their risk of exposure, as well as whether they have been experiencing any symptoms of illness. (Id.) The individuals conducting this screening have authority to deny entry to anyone with a temperature above 99 degrees Fahrenheit, or who
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report COVID-19 symptoms or exposure risk factors. (Id. at ¶ 37.) E. Cleaning All common areas in inmate housing units are cleaned daily, and are typically cleaned by
inmate orderlies multiple times throughout the day. (Dees Decl. at ¶ 46.) Elkton has also made this disinfectant available to inmates so that they may use it to clean their own cells. (Id. at ¶ 47.) Common areas outside inmate living areas, including the lobby, bathrooms, cafeteria, etc., are also cleaned with the same disinfectant on a daily basis. (Id. at ¶ 46.) Correctional staff are also required to disinfect all common equipment, such as keys and radios, upon obtaining these items from the supply room and again upon their return. (Id. at ¶ 48.) Staff also have regular, consistent access to soap and hand sanitizer. (Id.)
F. Supplies Correctional staff have been provided PPE to be used in appropriate locations throughout Elkton such as quarantined areas, isolation units, and screening sites. Elkton has sufficient PPE on hand, including N-95 respirator masks, surgical masks, rubber gloves, gowns, and foot coverings to meet its current and anticipated needs, as well as the ability to order additional PPE should the need arise. (Id. at ¶ 49.) In addition, all inmates and staff were provided protective face masks for daily use. (Id. at ¶ 50.) All inmates have access to sinks, water, and soap at all times. (Id. at ¶ 45.) All inmates may receive new soap weekly. (Id.) Inmates will receive additional soap upon request. (Id.) For inmates without sufficient funds to purchase soap in the commissary, soap is provided at no cost to the inmate. (Id.) G. Inmate and Staff Education From the outset of the COVID-19 pandemic, Elkton staff and officials have provided
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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. (Dees Decl. at ¶¶ 20-22.) III. HOME CONFINEMENT AND COMPASSIONATE RELEASE
A. Compassionate Release BOP does not have 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 5050.50 (Jan. 17, 2019), http://www.bop.gov/policy/progstat/5050_050_EN.pdf. Upon information and belief, within the past 15 days, approximately 550 Elkton inmates have submitted a request for Compassionate Release to BOP. (Cole Decl. ¶6.) Of the four named Petitioners in this case, only Mr. Nelson has submitted a request for Compassionate Release to BOP. (Id.) That request is under consideration. (Id.) To date, 7 inmates have been denied Compassionate Release by the Warden. (Id.) Packets for another 36 inmates are currently being reviewed by Health Services to determine if they meet the criteria for Compassionate Release. (Id.) Importantly, while the BOP is processing these requests as expeditiously as possible, the statute gives the BOP thirty (30) days to evaluate compassionate release requests
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before any motion may be presented in the sentencing court. 18 U.S.C. § 3582(c)(1)(A). Further, the ultimate decision lies with the sentencing judge. Id.
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.3 By memorandum 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 Exhibit C, Attorney General Memos dated March 26, 2020 and April 3, 2020, BOP Memo April 15, 2020.)Then on April 15, 2020, the BOP issued additional guidance regarding home confinement (Id.) 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.4
3 See https://www.bop.gov/resources/news/20200405_covid19_home_confinement.jsp (last visited Apr. 16, 2020). 4 See https://www.bop.gov/resources/news/pdfs/20200405_covid-19_home_confinement.pdf (last visited Apr. 16, 2020).
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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). 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. 116136, 516 § 12003(b)(2), 134 Stat. 281 (2020). On April 3, 2020, the Attorney General made that finding and authorized the Director of the Bureau to immediately maximize appropriate transfers to home confinement of all appropriate inmates held at Elkton. (Cole Decl. at ¶ 18.)
Pursuant to the Attorney’s General’s direction, Elkton receives rosters of inmates to be considered for home confinement. (Id. at ¶ 19.) The factors to be considered are: the inmate’s age and vulnerability to COVID-19 per CDC guidelines, the inmate’s conduct in prison including violence and gang activity, the inmate’s recidivism risk, the inmate’s reentry plan, the inmate’s danger to the community. (Id.) Some offenses, such as sex offenses, will render an inmate ineligible for home confinement. (Id.) As a result of Elkton’s higher population of inmates convicted of sex offenses, many Elkton inmates are ineligible for home confinement. (Id.)
To date at Elkton, six inmates have been approved for transfers to home confinement. (Id. at ¶ 20.) The inmates receiving transfers must quarantine for fourteen days prior to transfer. (Id.) Five of the six approved transfers have dates for transfer next week. (Id.) Two more inmates are currently being vetted by the Residential Reentry Manager. (Id.) Four inmates are in the process of being sent to the Residential Reentry Manager for consideration. (Id.) To date, 32 inmates have been denied home confinement as not meeting the stated criteria for a variety of reasons. (Id.)
Concerning the four named Petitioners in this case, two have requested and been
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considered for home confinement. (Id. at ¶ 21.) Mr. Bellamy was ineligible because he has active warrants from New Jersey. (Id.) Mr. Nieves was ineligible due to a history of serious violence (assault with a baseball bat). (Id.) Although he has not requested home confinement, Mr. Wilson is likely not a candidate because his recidivism risk score is too high; he has a Low recidivism risk score and a Minimal risk score is required. (Id.) Additionally, although he has not requested home confinement, Mr. Nelson is likely not a candidate because he has a history of violence (unlawful discharge of a firearm) and his recidivism risk score is too high; he has a Medium recidivism risk score and a Minimal risk score is required. (Id.)
LAW AND 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 “unconstitutional conditions of confinement.” (Pet. ECF No. 1 PageID # 35.) However, it is well-settled that a habeas petition under 28 U.S.C. § 2241, “is not the proper vehicle for a prisoner to challenge conditions of confinement.” Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013); see also Nelson v. Campbell, 541 U.S. 637, 643 (2004) (“[C]onstitutional claims that merely challenge the conditions of a prisoner’s confinement, whether the inmate seeks monetary or injunctive relief, fall outside of that core” of habeas relief.); and Sullivan v. United States, 90 F. App’x 862, 863 (6th Cir. 2004) (“§ 2241 is [not] a vehicle [] for challenging prison conditions….”). “[W]here a prisoner is challenging the very fact or duration of his physical imprisonment and the relief that he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a petition for writ of habeas corpus.”
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Lutz v. Hemingway, 476 F.Supp.2d 715, 718 (E.D. Mich. 2007) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). “Complaints that involve only conditions of confinement do not relate to the legality of the petitioner’s confinement, nor do they relate to the legal sufficiency of the criminal court proceedings which resulted in the incarceration of the petitioner,” and should be brought as a civil rights claim. Id. (quoting Maddux v. Rose, 483 F.Supp. 661, 672 (E.D. Tenn. 1980)); see also Muhammad v. Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus, requests for relief turning on circumstances of confinement may be presented in a § 1983 action.”) (internal citation omitted).
Where a party brings a condition of confinement claim under habeas, the court should “dismiss[] the petition without prejudice” to allow the party to “raise his potential civil rights claims properly.” Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004). See also Hodges v. Bell, 170 F. App’x 389, 393 (6th Cir. 2006) (a habeas proceeding does not “grant the district court jurisdiction to adjudicate Hodges’s conditions of confinement claims, or to order injunctive relief in response thereto.”). Thus, this Court does not have jurisdiction to order habeas relief for a condition of confinement claim, and the petition should be dismissed.
B. PLRA Precludes the Relief Requested Petitioners’ primary requested habeas relief is the release of hundreds of inmates from Elkton. However, the Prison Litigation Reform Act of 1995 (“PLRA”), 18 U.S.C. § 3626, places strict limits on courts’ ability to order the release of inmates “in any civil action in Federal court with respect to prison conditions…” and precludes a single district judge from doing so. 18 U.S.C. § 3626(a)(3)(B). That law applies to “any civil proceeding arising under Federal law with respect to the conditions of confinement or the effects of actions by government officials on the
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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).
Congress enacted the PLRA “to oust the federal judiciary from day-to-day prison management.” Inmates of Suffolk Cty. Jail v. Rouse, 129 F.3d 649, 655 (1st Cir. 1997); 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.”). “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
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the State’s interest in punishment, deterrence, and rehabilitation, as well as the need for deference to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of convicted criminals.” Brown v. Plata, 563 U.S. 493, 511 (2011). Section 3626 thus “restrict[s] the equity jurisdiction of federal courts,” Gilmore, 220 F.3d at 999, and, “[b]y its terms . . . restricts the circumstances in which a court may enter an order ‘that has the purpose or effect of reducing or limiting the prison population.’” Plata, 563 U.S. at 511 (quoting 18 U.S.C. § 3626(g)(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.
Insofar as the Petitioners in this case are seeking release as a remedy for the allegedly unconstitutional conditions at Elkton—either for themselves or for their putative class members—the PLRA prevents this Court from granting that relief. Under the PLRA, “[t]he authority to order release of prisoners as a remedy to cure a systemic violation of the Eighth Amendment is a power reserved to a three-judge district court, not a single-judge district court.” Id. at 500 (citing 18 U.S.C. § 3626(a)); see 18 U.S.C. § 3626(a)(3)(B) (“In any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court[.]”). Moreover, such an order may not be entered unless “(i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and (ii) the defendant has had a reasonable amount of time to comply with the previous court orders.” 18 U.S.C. § 3626(a)(3)(A). And even a three-judge court may order prisoners released to remedy unconstitutional prison conditions “only if the court finds by clear and convincing evidence” that
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“(i) crowding in the primary cause of the violation” and “(ii) no other relief will remedy [it.]” 18 U.S.C. § 3626(a)(3)(E)(i)-(ii).
One court recently reached this conclusion in an identical case. 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 prisoners over 12,000 prisoners in light of the COVID-19 pandemic. The Court held that the PLRA prevented it from entering the relief requested by Petitioners for the release of inmates. Id. at * 14.
Here, there can be no dispute that the 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 expressly admit that their action challenges the conditions of confinement. (Pet. ECF No. 1 PageID # 31 (“Petitioner’s [sic] Incarceration Amid the COVID-19 Outbreak in Elkton Violates Their Rights to Constitutional Conditions of Confinement”)(emphasis added); PageID #35 (“FIRST CLAIM FOR RELIEF: Unconstitutional Conditions of Confinement in Violation of the Eighth Amendment to the U.S. Costitution”)(emphasis added).) Accordingly, the PLRA strictly limits the relief that this Court may grant and precludes the Court from releasing inmates from Elkton as requested by Petitioners. 18 U.S.C. § 3626(a)(3)(B).
C. The BOP has not Violated the Constitution 1. Standard
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Petitioners allege that their conditions of confinement at Elkton constitute a violation of the Eighth Amendment. (Pet. ECF No. 1 PageID # 35.) 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). “First, the deprivation alleged must be, objectively, ‘sufficiently serious’….” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)). Accordingly, “a prison official’s act or omission must result in the denial of ‘the minimal civilized measure of life’s necessities….” Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). In claims like this, an inmate must show that he is incarcerated under conditions posing a substantial risk of harm. Id. Second, “‘only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.’” Id. (quoting Wilson, 501 U.S. at 297.) Accordingly, “a prison official must have a ‘sufficiently culpable state of mind.’” Id. (quoting Wilson, 501 U.S. at 297). As the Supreme Court explained “[i]n prison-conditions cases that state of mind is one of ‘deliberate indifference’ to inmate health or safety….” Id. (quoting Wilson, 501 U.S. at 302-303.) Thus, in order to establish a violation of the Eighth Amendment, the inmate must show prison officials “knows of and disregards an excessive risk to inmate health or safety….” Id. at 837. As discussed below, Petitioners cannot establish either prong
2. Petitioners are not being Subject to an Unreasonable 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 in 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,5 including with respect to the inmate population at
5 Courts around the country have recently received challenges to detention on the grounds of COVID-19 in the
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Elkton. 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. (Dees Decl. at ¶ 19.) Additionally, Elkton 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 had to return to their housing units in order to eat; scheduled staggered mealtimes, so that only a single housing unit (approximately 150 inmates) are moving within the facility at any particular time; and (2) Health Services pill line (controlled medication dispensing) and (3) commissary are accomplished during these times as well, which limits potential exposure. (Id. at ¶ 12.) All inmates have access to sinks, water, and soap at all times. (Id. at ¶ 45.) In addition, all inmates and staff were provided protective face masks for daily use. (Id. at ¶ 50.)
One of Petitioners’ primary arguments is that they live in units in proximity to other prisoners and less than a six foot distance between beds. (Pet. ECF No.1 PageID # 15-17.) What Petitioners fail to appreciate is 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
criminal bail context and have recognized the government’s public health efforts, particularly the efforts of the Bureau of Prisons, to address the COVID-19 crisis. See United States v. Martin, No. PWG-19-140-13, 2020 WL 1274857, at *4 (D. Md. Mar. 17, 2020); United States v. Jefferson, No. CCB 19-487, 2020 WL 1332011, at *1 (D. Md. Mar. 23, 2020); United States v. Hamilton, No. 19-CR-54-01, 2020 WL 1323036, at *2 (E.D.N.Y. Mar. 20, 2020); United States v. Gileno, No. 3:19-cr-161, 2020 WL 1307108, at *4 (D. Conn. Mar. 19, 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 serious as it is, the outbreak of COVID-19 simply does not override the statutory detention provisions above”).
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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.”). Each unit is essentially a closed family unit and the BOP separates each unit from other units, visitors, and sick inmates. (Dees Decl. at ¶ 54.) BOP staff also wear masks and/or PPE and give inmates masks to wear. (Id. at ¶¶ 49-50.) During movement, inmates are able to, and are encourage to, maintain social distancing while in line. Accordingly, Petitioners are not subject to an unreasonable risk of harm.
3. The BOP has not shown Deliberate Indifference but has Taken Appropriate Measures to Protect the Health of Inmates at Elkton and the Public
Petitioners likewise cannot satisfy the subjective element of the constitutional analysis, which requires them to prove “that officials had subjective knowledge of the serious medical need and recklessly disregarded the excessive risk to inmate health or safety from that risk.” Baker v. District of Columbia, 326 F.3d 1302, 1306 (D.C. Cir. 2003) (citing Farmer, 511 U.S at 837). The test is subjective, meaning “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he [or she] must also draw the inference.” Farmer, 511 U.S at 837. In order to support a claim for deliberate indifference to future health problems, the condition of confinement complained about must be “sure or very likely to cause serious illness….” Helling v. McKinney, 509 U.S. 25, 33 (1993). The condition complained of here is not the existence of COVID-19, which is not under the control of the BOP. Rather, the condition complained of is the precautions taken to reduce exposure or spread of COVID-19.
To be sure, the BOP is acutely aware of the risk that COVID-19 poses to its inmate population and to the public at large, but it can hardly be said to be indifferent, as shown by the actions to counteract the spread of COVID-19 described above. Additionally, Health Services has reviewed inmate medical records to identify “high-risk” individuals pursuant to CDC guidelines.
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(Dees Decl. at ¶ 30.) Health services continues to screen these individuals for symptoms and temperature. (Id. at ¶ 31.) Further, Elkton staff are actively monitoring the general inmate population for illness. Inmates are actively encouraged to self-report symptoms of illness to unit staff either orally or via a written request to staff. (Id. at ¶ 33.) Any inmate who presents with symptoms consistent with COVID-19 is evaluated by a medical provider in the Health Services Department. (Id. at ¶ 34.) Based upon this evaluation, a determination will be made whether isolation and/or testing is appropriate. (Id.) The decision whether to test an inmate for COVID19 is made by Health Services staff based on a number of criteria, including but not limited to: (1) the nature and severity of the symptoms; (2) the inmate’s potential exposure to COVID-19; (3) whether the inmate is considered “high-risk,” and (4) whether the inmate is on a work detail, such as food service, that requires the inmate to interact with other inmates or staff. (Id. at ¶ 41.) Elkton medical providers are prioritizing immediate medical care for anyone who claims symptoms indicative of a COVID-19 infection. (Id. at ¶ 35.) Currently, medical coverage is offered 24 hours daily at Elkton. (Id. at ¶ 3.)
Inmates who present with symptoms consistent with COVID-like illness are placed in isolation to separate them from asymptomatic quarantined inmates and general population inmates. (Dees Decl. at ¶ 51.) If the inmate’s condition merits hospitalization, they are transported to a local hospital. (Id.) In addition to isolation, Elkton has a “bridge-unit” staffed by the Ohio National Guard medical unit. (Id. at ¶ 53.) The bridge-unit acts as a step down unit for inmates returning from hospitalization for COVID-19 symptoms. (Id.)
Accordingly, Petitioners cannot establish that the precautions and care at Elkton 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. In that
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case, the court found that prison officials came forward “with a length list of the actions they have taken to protect…inmates.” Id. at *18. The court recognized that prison officials in that case (like BOP staff here) “are trying, very hard, to protect inmates against the virus and to treat those who have contracted it.” Id. There was no evidence to “support any suggestion that [prison officials] have turned a kind of blind eye and deaf ear to a known problem that would indicate ‘total unconcern’ for the inmates’ welfare.” Id. (quoting Rosario v. Brown, 670 F.3d 816, 821 (7th Cir. 2012).) Accordingly, the actions of prison officials were not deliberately indifferent but, instead, “easily pass constitutional muster.” Id. This Court should find likewise.
Further, in denying a request for release from immigration detention in the Western District of Washington earlier this month, when Seattle 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 JRLMAT, 2020 WL 1304557, at *2 (W.D. Wash March 19, 2020). 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”). Further, 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
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was likely to be the most effective for the protection of the public against disease.” Jacobson v. Massachusetts, 197 U.S. 11, 30 (1905). Rather, 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 soute of their (and not my) 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”). Thus, this Court should deny the Petition. II. PETITIONERS ARE NOT ENTITLED TO A TEMPORARY RESTRAINING ORDER
OR ANY INJUNCTIVE RELIEF A. Standard In addition to habeas relief, Petitioners also seek a temporary restraining order and injunctive relief. (Pet. ECF No. 1 PageID #36-37.) The standard for determining whether to issue a
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temporary restraining order is the same as for a preliminary injunction. Ne. Ohio Coal. for Homeless & Serv. Employees Int’l Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). “[P]reliminary injunctions are extraordinary and drastic remedies [] never awarded as of right.” Am. Civil Liberties Union Fund of Mich. v. Livingston Cty., 796 F.3d 636, 642 (6th Cir. 2015)(quoting Platt v. Bd. Of Comm’rs on Grievances & Discipline of Ohio Supreme Ct., 769 F.3d 447, 454 (6th Cir. 2014).
A district court must balance four factors in determining whether to grant injunctive relief: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction. Id. The party seeking a preliminary injunction bears the burden of justifying such relief. Id. As discussed below, Petitioners have failed to meet their heavy burden of establishing that they are entitled to extraordinary relief in the form of a temporary restraining order.
B. Petitioners Unlikely to Succeed on the Merits Likelihood of success on the merits is a threshold issue: “[W]hen a plaintiff has failed to show the likelihood of success on the merits, [the court] need not consider the remaining three Winters [v. NRDC, 555 U.S. 7 (2008)] elements.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015)(internal quotation omitted). 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 also unlikely to succeed on the merits because: (1) the conditions in Elkton are not as they are portrayed in the petition; (2) release is unlikely to redress the alleged harm; (3) Petitioners are not entitled relief that would divest BOP of its discretion to release inmates in appropriate circumstances, and; (4) Petitioners are not entitled to
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unilaterally truncate judicially-imposed sentences, which can only be modified by the sentencing
court.
1. The Conditions at Elkton are Different than Portraryed in the Petition
Petitioners portray the conditions at Elkton as particularly dire and that Elkton is incapable
of preventing the spread of COVID-19. (Pet. ECF No. 1 PageID # 13-14.) Petitioners go so far
as to allege that soap and cleaning supplies are scarce, that the commissary is closed, and that
contagious prisoners are not kept away from others. (Id. at PageID # 17.) This is simply not an
accurate description of the conditions at Elkton. As described in more detail in Respondents’
statement of facts, the current situation at Elkton includes:
1. Screening: All incoming inmates, staff and visitors are screened prior to admission to Elkton for signs and symptoms of COVID-19 exposure and deny entry to anyone with a temperature or other symptoms of COVID-19. (Dees Decl. at ¶¶ 23-38.) Further, Elkton is taking a number of measures to screen current inmates. (Id. at ¶ ¶ 27-35.)
2. Quarantine Procedures: Asymptomatic inmates who have been in contact with symptomatic inmates for a 14 day period before being release to general population. Efforts are made to not add or introduce new inmates to a quarantine housing unit after the clock has started. Further, all new inmates or inmates being transferred to home confinement are also placed in a 14 day quarantine separate from general population. (Id. at ¶¶ 24, 52.)
3. Isolation: Inmates who test positive for, or have symptoms consistent with, COVID-19 are placed in a separate isolation unit where all staff wear PPE and all inmates are required to wear a surgical mask. (Id. at ¶¶ 24, 34.) In addition to the areas designated for quarantine and isolation, Elkton has a “bridge-unit” staffed by the Ohio National Guard medical unit that acts as a step down unit for inmates returning from hospitalization with COVID-19 symptoms. (Id. at ¶ 53.)
4. Cleaning and Hygiene: All common areas in inmate housing units are cleaned daily, and are typically cleaned by inmate orderlies multiple times throughout the day. (Dees Decl. at ¶ 46.) Elkton has also made this disinfectant available to inmates so that they may use it to clean their own cells. (Id. at ¶ 47.) Common Areas outside inmate living areas, including the lobby, bathrooms, cafeteria, etc., are also cleaned with the same disinfectant on a daily basis. (Id. at ¶ 46.) All inmates and staff were provided protective face masks for daily use. (Id. at ¶ 50.) All inmates have access to sinks, water, and soap at all times. (Id. at ¶ 45.) All
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inmates may receive new soap weekly. (Id.) Inmates will receive additional soap upon request. (Id.) For inmates without sufficient funds to purchase soap in the commissary, soap is provided at no cost to the inmate. (Id.) 5. Inmate Separation Efforts: In addition to quarantine and isolation of inmates, the general population is further separated into small units of no more than (Id. at ¶ 54.) Clearly, BOP is trying, very hard to protect inmates against COVID-19 and to treat those who have contracted it. Therefore, Petitioners are unlikely to succeed on the merits. 2. Release is Unlikely to Redress the Alleged Harm Petitioners are unlikely to succeed on the merits because the primary relief that they seek from the BOP—the release from custody of a substantial number of Elkton inmates (or themselves)—is unlikely to redress the alleged harm that they or the members of the alleged class purportedly suffer—a 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 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).
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Petitioners cannot show that the immediate release of a substantial number of Elkton inmates or themselves would lessen their risk of them contracting COVID-19. It cannot be denied that COVID-19 is spreading throughout the nation generally and the State of Ohio specifically. Some inmates and staff at Elkton have contracted COVID-19. As noted, the BOP has taken measures to protect the staff and inmates at Elkton, 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, cleaning high-traffic areas more frequently, and isolating anyone showing symptoms of COVID-19. Unlike many in the community, inmates at Elkton do not need to leave the facility to purchase groceries, toiletries, or cleaning supplies. By contrast, Petitioners have not (and cannot) provided any assurances that the places that that 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 financial resources to provide for themselves; it is likely many would be homeless and penniless if released within 24-hours of the issuance of an order by this court as Petitioners request. (Pet. ECF No. 2 PageID # 36.) These inmates would certainly see their risk of contracting COVID-19 dramatically increased, not reduced, if, in the middle of a pandemic, they were released from Elkton with no viable means to obtain food, shelter and medical care on 24-hours’ notice.
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 Criminal Sentences of Inmates
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Petitioners are not entitled to have this Court release inmates from Elkton. There are specific legal avenues for the release or transfer of post-conviction inmates. Those include home confinement or compassionate release. Petitioners do not even attempt that this court has authority to release prisoners based on the avenues for release and, as discussed below, Petitioners are not likely to succeed on the merits if they did so argue,
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 the Bureau to immediately maximize appropriate transfers to home confinement of all appropriate inmates held at Elkton. (Cole Decl. at ¶ 18.)
Importantly, the determination of whether to place a prisoner in home confinement is solely in the discretion of the BOP and “not reviewable by any court.” 18 U.S.C. § 3621(b). The factors to be considered are: the inmate’s age and vulnerability to COVID-19 per CDC guidelines, the inmate’s conduct in prison including violence and gang activity, the inmate’s recidivism risk, the inmate’s reentry plan, the inmate’s danger to the community. (Cole Decl. at ¶ 18.) Some offenses, such as sex offenses, will render an inmate ineligible for home confinement. Id. As a result of Elkton’s higher population of inmates convicted of sex offenses, many Elkton inmates are ineligible for home confinement. Id.
It should be noted that, regarding the four named Petitioners in this case, two have
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requested and been considered for home confinement. Id. at ¶ 21. Mr. Bellamy is ineligible because he has active warrants from New Jersey. Id. Mr. Nieves is ineligible due to a history of serious violence (assault with a baseball bat). Id. Although he has not requested home confinement, Mr. Wilson likely is not a candidate because his recidivism risk is too high; he has a Low recidivism rate and a Minimal rate is required. Id. Additionally, although he has not requested home confinement, Mr. Nelson is likely not a candidate because he has a history of violence (unlawful discharge of a firearm) and his recidivism risk is too high; he has a Medium recidivism rate and a Minimal rate is required. Id.
Regarding compassionate release, neither BOP nor this Court have 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), http://www.bop.gov/policy/progstat/5050_050_EN.pdf.
Importantly, 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). Further, the ultimate decision lies with the sentencing judge. Id.
By seeking release the way they do, Petitioners are essentially seeking to divest the BOP of its statutory and regulatory discretion as to which inmates should be placed in home confinement
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and to divest sentencing judges their ability (within the requirements of law) to determine the sentence of individuals convicted in their court. Petitioners should not be granted such sweeping and unprecedented relief when existing administrative and statutory proceedings can grant them the relief they seek, if appropriate. For all these reasons, Petitioners have not shown that they are likely to succeed on the merits
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. Petitioners have failed to establish irreparable harm on their constitutional claims. To establish irreparable harm, Petitioners must show that, unless their motion is granted “they will suffer ‘actual and imminent’ harm that is speculative or unsubstantiated.” Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th Cir. 2006). Moreover, “the harm alleged must be both certain and great, rather than speculative or theoretical.” State of Ohio ex rel. Celebrezze v. Nuclear Regulatory Comm’n, 812 F.2d 288, 290 (6th Cir. 1987). Merely showing a “possibility” of irreparable harm is insufficient. See Winter, 555 U.S. at 22. “Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with [the Supreme Court’s] characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. As discussed above, Petitioners fail to take into account the myriad protections which have been put in place to prevent spread of infection within Elkton and to reduce the risk that persons
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with COVID-19 enter Elkton 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.
Further, Petitioners have other, alternative methods for relief other than seeking a temporary restraining order, for securing early release. See, e.g., 18 U.S.C. § 3582 (compassionate release); 18 U.S.C. § 3624(c) (prerelease custody/home confinement). Accordingly, 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 the Requested Relief Would Cause Substantial Harm to Others Petitioners demand a dramatic remedy that would have a profound effect on hundreds of inmates: the immediate release and removal of a substantial portion of the population at Elkton. Petitioners purport to have homes that they could go to upon release, but they provide no assurances that they can provide for their food and medical care needs nor that they will be able to protect themselves any better against the spread of COVID-19. More importantly, they do not (and cannot) provide any assurance regarding the 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
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in the midst of a grave pandemic that is having a substantial impact on the nation. Thus, Petitioners requested relief would cause substantial harm to themselves and others and such relief 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 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. BOP policy requires determinations to be made as to which inmates are entitled to home confinement (see, e.g., Attorney General’s Memorandum,), or the other judicial avenues available to 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. 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 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
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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 Elkton….” (Pet. ECF No. 1 at PageID #29. 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. There are four requirements under Fed. R. Civ. P. 23(a): numerosity, commonality, typicality, and adequacy of representation, Fed. R. Civ. P. 23(a), and the “party seeking class certification bears the burden of proof. In re American Medical Systems, Inc., 75 F.3d 1069, 1079 (6th Cir. 1996)(citations omitted). Petitioners fall short. They claim to satisfy the numerosity requirement only by lumping together “all current and future people in post-conviction custody at Elkton….” (Pet. ECF No. 1 PageID # 29 at ¶ 73.) According to their Petition, this constitutes “approximately 2,417 people in the proposed Class, and...hundreds of people in the proposed Medically-Vulnerable Subclass.” (Id. at PageID # 30 ¶ 78.) For purposes of this filing only, the BOP does not challenge the numerosity requirement under Rule 23(a) as constructed by Petitioners. 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 Plaintiff is 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 were previously sick and made a full recovery. There simply is no comomonality and typicality among proposed class member other than being incarcerated at Elkton.
Further, Petitioners cannot show adequacy of representation. To do so, the Sixth Circuit has set forth two criteria: “‘(1) the representative must have common interests with unnamed members of the class, and (2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel.” In re American Medical Systems, Inc., 75 F.3d at 1083 (quoting Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976). Plaintiffs 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 Elkton. Petitioners purport to have homes that they could go to upon release, but 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.
CONCLUSION The BOP is taking significant and ongoing steps to prevent the spread of COVID-19 in Elkton and to provide medical care and treatment for inmates who do become infected.
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Accordingly, Petitioners are unable to show that BOP is deliberately indifferent to a substantial risk of harm and cannot state a constitutional claim. Moreover, the immediate 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 should deny the Petition for Writ of Habeas Corpus and the requests for a temporary restraining order, injunctive relief and declaratory judgment.
Respectfully submitted, JUSTIN E. HERDMAN United States Attorney By: /s/ James R. Bennett II James R. Bennett II (OH #0071663) Sara DeCaro (OH #0072485) Assistant United States Attorneys United States Court House 801 West Superior Ave., Suite 400 Cleveland, Ohio 44113 216-622-3988 - Bennett 216-522-4982 - Fax James.Bennett4@usdoj.gov Sara.DeCaro@usdoj.gov
Attorneys for Respondents
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GOVERNMENT EXHIBIT
A
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

WILSON, ET AL, Petitioners
V.
WILLIAMS, ET AL, Respondents

•

•

•

•

•

CASE NO. 4:20-CV-00794

•

•

JUDGE GWIN

•

•

DECLARATION OF SARAH A. DEES I, Sarah A. Dees, do hereby declare, certify and state as follows: 1. I am employed by the United States Department of Justice, Federal Bureau of Prisons (BOP). I currently work as the Health Services Administrator at Federal Correctional Institution (FCI) Elkton in Lisbon, Ohio. I have held this position since January 5, 2020. I also serve as the Northeast Regional Paramedic, a position I have held since 2016. I have been employed by BOP since 2013. Throughout this declaration, when I refer to "FCI Elkton" generally, I am referring to both of the FCI Elkton institutions, the Federal Correctional Institution (FCI) and the Federal Satellite Low (FSL). 2. In my position as Health Services Administrator at FCI Elkton, I am responsible for coordinating comprehensive medical, dental, and mental health services of the highest quality while maintaining a clean, safe, and secure environment for nearly 2500 low security inmates and in addition to staff. The Health Services Department is staffed by a comprehensive team of BOP and Public Health Service health care workers, accompanied by professional contract staff committed to providing the highest standards of professionalism and dedication to the inmate population. FCI Elkton offers comprehensive ambulatory care addressing primary care, chronic

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care, emergent care and acute care. Additionally, minor office-based procedures, diagnostic testing, specialty consultations and office based dental procedures are provided in house.
3. The FCI Elkton Clinical Staff consist of two Physicians, five Mid-level Providers, five Registered Nurses, one Infection Control/Improving Performance Nurse and two Medication Technicians, as well as one Pharmacists, two Dentists, and a Dental Hygienist. Currently medical coverage is offered 24 hours daily during the COVID-19 Pandemic. The Health Services Department is accredited by the American Correctional Association (ACA) and the Accreditation Association for Ambulatory Health Care (AAAHC).
4. With respect to COVID-19, specifically, I am involved on a daily basis in the identification, planning, and implementation of all Bureau directives for preventing the spread of COVID-19 at FCI Elkton, including FSL Elkton. Through this role, I have knowledge of both the Bureau's national directives relating to COVID-19 and the additional steps that FCI Elkton, specifically, has taken to combat COVID-19 within the facility. Accordingly, through the course of my official duties, I have personal knowledge regarding the numerous measures, discussed below, that have been implemented both Bureau-wide and at FCI Elkton in order to prevent and manage the spread ofCOVID-19.
I. NATIONAL STEPS TAKEN BY BUREAU TO ADDRESS COVID-191 5. Before discussing the steps being taken at FCI Elkton, specifically, I will first
l As illustrated below, the Bureau's national guidance has undergone a number of changes in response to the evolving threat. The Bureau has established a COVID-19 resource section on its public webpage which is available at: https://www.bop.gov/coronavirus/. This webpage includes updates on the Bureau's response to COVID-19 and positive COVID-19 tests among inmates and staff at Bureau institutions nationwide.
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discuss the phases of the BOP's national response to the COVID-19 pandemic, which apply generally across all BOP institutions. As set forth below, the Bureau has taken-and is continuing to take-significant measures in response to the COVID-19 pandemic in order to protect the safety and security of all staff and inmates, as well as members of the public.
6. In January 2020, the Bureau became aware of the first identified COVID-19 cases in the United States and quickly took steps to prevent its introduction and spread in Bureau institutions. The Bureau's response, detailed below, has occurred over six. distinct "phases" to date. The Bureau will continue to modify and adjust its response as circumstances change, and at the guidance and direction of worldwide health authorities.
A. Action Plan for COVID-19 -Phase One 7. In January 2020, the Bureau began Phase One of its Action Plan for COVID-19. Phase One activities included, among other things, seeking guidance from the BO P's Health Services Division regarding the COVID-19 disease and its symptoms, where in the United States infections were occurring, and the best practices to mitigate its transmission. See https://www .bop.gov/resources/news/20200313 covid-19.jsp. In addition, an agency task force was established to begin strategic planning for COVID-19 Bureau-wide. This strategic planning included building on the Bureau's existing procedures for pandemics, such as implementing its pre-approved Pandemic Influenza Plan. From January 2020 through the present, the Bureau has been coordinating its COVID-19 efforts with subject-matter ex.perts both internal and external to the agency, including implementing guidance and directives from the World Health Organization (WHO), the Centers for Disease Control and Prevention (CDC), the Office of Personnel Management (OPM), the Department of Justice (DOJ), and the Office of the Vice President. See https://www.bop.gov/resources/news/20200313 covid-19.jsp.
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B. Action Plan for COVID-19 - Phase Two 8. On March 13, 2020, the Bureau implemented Phase Two of its Action Plan. Phase Two put into place a number of restrictions across ull Bureau facilities over a 30-day period, to be reevaluated upon the conclusion of that time period. Specifically, the Bureau suspended the following activities for an initial period of 30 days, with certain limited exceptions: social visits; legal visits; inmate facility transfers; official staff travel; staff training; contractor access; Volunteer visits; and tours. See https://www.bop.gov/coronavirus/covidl 9_status.jsp. 9. During Phase Two, inmates were subjected to new screening requirements. Specifically, all newly arriving Bureau inmates were screened for COVID-19 symptoms and "exposure risk factors," including, for example, if the inmate had traveled from or through any high-risk COVID19 locations (as determined by the CDC), or had had close contact with anyone testing positive for COVID-19. Asymptomatic inmates with exposure risk factors were quarantined, and symptomatic inmates with exposure risk factors were isolated and evaluated for possible COVID-19 testing by local Bureau medical providers. 2 10. Staff were also subjected to enhanced health screenmg in areas of "sustained community transmission," as determined by the CDC, and at medical referral centers. On March 22, 2020, FCI Elkton implemented this enhanced screening for staff and contractors at that time. The enhanced screening measures required all staff to self-report any symptoms consistent with COVJD-19, as well as any known or suspected COVID-19 exposure, and further required all staff to have their temperature taken upon entry into any Bureau facility. 11. Finally, in addition to the measures listed above, the Bureau implemented national
2 Throughout this declaration, "isolation" refers to a symptomatic inmate being confined to the FCI Visiting Room and FSL G-A Housing Unit. "Quarantine," on the other hand, refers to asymptomatic inmates who arc confined to four areas at FCI Elkton: the gym, chapel, SHU, or FSL visiting room.
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"modified operations" in order to maximize social distancing within Bureau facilities. These modifications included staggered meal and recreation times in order to limit congregate gatherings. Additionally, the Bureau established a set of quarantine and isolation procedures for known or potential cases of COVID-19.
12. FCI Elkton implemented this "modified operations" directive in a number of ways. For example, and among other things, FCI Elkton: (I) instituted "grab and go" meals for inmates, meaning that inmates were pennitted to pick up pre-packaged meals at designated times, but had to return to their housing units in order to eat; scheduled staggered mealtimes, so that only a single housing unit (approximately 150 inmates) are moving within the facility at any particular time; and (2) Health Services pill line (controlled medication dispensing) and (3) commissary are accomplished during these times as well.
C. Action Plan for- COVID-19- Phase Three 13. On March 18, 2020, the Bureau implemented Phase Three of the COVID-19 Action Plan for Bureau locations that perfonn administrative services (i.e., non-prison locations), which followed DOJ, Office of Management and Budget, and OPM guidance for maximizing telework. In this phase, individuals who had the ability to telework and whose job functions did not require them to be physically present were directed to begin teleworking. 14. Additionally, as part of this phase, and in accordance with the Pandemic Influenza contingency plan, all cleaning, sanitation, and medical supplies were inventoried. See https ://www.bop.gov/resources/news/pdfs/20200324_bop_press_release_covid 19_update.pd f.
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D. Action Plan for COVID-19-Phase Four 15. On March 26, 2020, the Bureau implemented Phase Four of its Action Plan. In Phase Four, the Bureau revised its preventative measures for all institutions. Specifically, the agency updated its quarantine and isolation procedures to require all newly admitted inmates to The Bureau, whether in areas of sustained community transmission or not, to be assessed using a screening tool and temperature check (further explained below). This screening tool and temperature check applied to all new intakes, detainees, commitments, prisoners returned on writ from judicial proceedings, and parole violators, regardless of their method of arrival. Thus, all new arrivals to any Bureau institution---cvcn those who were asymptomatic-were placed in quarantine for a minimum of 14 days or until cleared by medical staff. Symptomatic inmates were placed in isolation until they tested negative for COVID-19 or were cleared by medical staff as meeting CDC criteria for release from isolation.
E. Action Plan for COVID-19 - Phase Five 16. On March 31, 2020, the Director of the Bureau ordered the implementation of Phase 5 of its COVID-19 Action Plan, which took effect on April I, 2020. Specifically, the Director ordered the following steps to be taken: A. For a 14-day period, inmates m every institution will be secured in their assigned cells/quarters to decrease the spread of the virus. B. During this time, to the extent practicable, inmates should still have access to programs and services offered under normal operating procedures, such as mental health treatment and education. C. In addition, the Bureau is coordinating with the United States Marshals Service (USMS) to significantly decrease incoming movement during this time.
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D. After 14 days, this decision will be reevaluated and a decision made as to whether or not to return to modified operations.
E. Limited group gathering will be afforded to the extent practical to facilitate commissary, laundry, showers, telephone, and Trust Fund Limited Computer System (TRULINCS 3) access.
F. Provided inmates access to programs and services offered under normal operating procedures, such as mental health treatment and education.
G. In addition, the Bureau coordinated with the United States Marshals Service (USMS) to significantly decrease incoming movement during this time. See https://www.bop.gov/resourees/ncws/2020033 l _covid 19_action_plan_5.jsp.

F. Action Plan for COVID-19 - Phase Six

17. On April 13, 2020, the Director of the Bureau ordered the implementation of Phase

6 of its COVID-19 Action Plan. Specifically, the Director ordered an extension of the nationwide

action in Phase 5, which applies to medical screening, limited inmate gathering, daily rounds,

limited external movement, and fit testing, until May 18, 2020.

See

https://www.bop.gov/resources/news/pdfs/20200414_press_release_action_plan_6.pdf

18. Phase Six has been implemented at FCI Elkton.

II. STEPS TAKEN AT FCI ELKTON TO ADDRESS COVID-19

19. In addition to the steps taken at the national level, FCI Elkton itself 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,

3 TRULINCS is the internal Bureau computer and electronic message platform that inmates use to communicate with staff in the institutions and individuals in the community. Through this platform, inmates receive updates, notices, and can read inmate bulletins posted on the system by Bureau staff
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quarantine, and isolation procedures in accordance with Bureau policy and CDC guidelines; ordering enhanced cleaning and medical supplies; and taking a number of other preventative measures.
A. Inmate and Staff Education relating to COVID-19 20. From the outset of the COVID-19 pandemic, FCI Elkton officials have provided regular updates to inmates and staff regarding the virus and the Bureau's response, and have educated inmates and staff regarding measures that they themselves should take to stay healthy. 21. For example, in late February-Early March, Frequently Asked Questions bulletins were created from CDC and WHO guidelines to educate inmates and staff regarding the symptoms of COVID-19, instructing them to self-monitor for COVID-19 symptoms, and to immediately report such symptoms to sick call. The inmate population and staff members have been told best practices regarding personal hygiene to prevent the spread of COVID-19. The bulletins are posted in numerous locations around FCI Elkton. 22. Staff have also been trained to appropriately "don" and "doff' (off) Personal Protective Equipment (PPE) utilizing CDC guidelines found on the BOPs intranet and trainings with Health Services Staff. B. Screening for COVID-19 at FCI Elkton
1. Inmates 23. When new inmates arrive, they are met by medical providers from the Health Services Department, who conduct an initial screening in a designated area at FCI Elkton separate from other staff and inmates. The medical providers wear PPE during the screening process. 24. Following this initial screening, new inmates are escorted to a quarantine unit at FCI Elkton. There, they are quarantined for 14 days to ensure that they do not develop any
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symptoms consistent with COVID-19. If they do have symptoms consistent with COVID-19 infection, they are placed in a separate isolation unit. The isolation unit is used for all symptomatic inmates and inmates with a positive COVID-19 test. In these quarantine and isolation units, all staff must wear PPE; inmates in quarantine or isolation are required to wear a surgical mask.
25. After the expiration of 14 days, and upon medical clearance, inmates may be released into the general population.
26. This initial screening procedure at FCI Elkton allows for screening to occur in a controlled environment, and further ensures the rest of the inmate population are not exposed to newly-arrived inmates until they are properly screened and cleared by Health Services Department medical providers.
27. In addition to screening incoming inmates, FCI Elkton is also taking a number of measures to screen its current resident inmate population.
28. FCI Elkton screened inmates for elevated temperatures daily from March 20, 2020 through April 12, 2020. This screening was discontinued in favor of inmate self-reporting.
29. Inmates who self-report COVID-19 symptoms are screened for symptoms of COVID-19 (including fever, cough, and shortness of breath), as well as for "exposure risk factors," including whether the inmate has had close contact with anyone diagnosed with COVID-19 in the past 14 days. The screening takes place in a single, controlled area separate and apart from other inmates and prison staff.
30. The Health Services Department reviewed inmate medical records in order to determine which individuals at FCI Elkton were considered "high risk" for COVID-19 pursuant to CDC guidelines. These guidelines can be found at: https://www.cdc.gov/coronavirus/2019neov/need-extra-precautions/groups-at-higher-risk.html. Per CDC guidance, "high-risk"
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individuals include those over 65 and those with significant underlying medical conditions, such as chronic lung disease, moderate to severe asthma, liver disease, and diabetes.
31. In order to identify which inmates at FCI Elkton should be considered "high risk," staffsearched the Bureau's medical records for (1) all inmates aged 65 and over; and (2) all inmates who have been diagnosed with a condition identified by the CDC as being "high risk." Like all inmates at FCI Elkton these inmates continue to be screened for symptoms related to COVID-19 and temperatures.
32. FCI Elkton is also conducting enhanced screening for all inmates with ongoing work details, such as food service and cleaning orderlies. These functions are considered to be "essential" by FCI Elkton. Each ofthesc inmates is screened for illness both before and after each of their assigned work details. This includes being screened for any symptoms of illness and having their temperature taken. Furthermore, many cleaning orderlies are currently assigned only to the units in which they already reside and thus do not interact with staff or inmates in other units during the course of performing their duties.
33. All inmates are encouraged to self-monitor and to report symptoms of illness to unit staff either orally or via a written request to staff (commonly referred to as a "cop-out" within bureau institution).
34. Any inmate who presents with symptoms consistent with COVID-19 will be evaluated by a medical provider in the Health Services Department. Based upon this evaluation, a determination will be made whether isolation and/or testing is appropriate. As noted above, certain units at FCI Elkton have been designated as the isolation unit for inmates who are symptomatic and/or test positive for COVlD-19.
35. FCI Elkton medical providers are prioritizing immediate medical care for anyone
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who claims symptoms indicative ofa COVID-19 infection. 2. Staff and Visitors
36. Since March 22, 2020, all individuals entering FCI Elkton (including staff, delivery drivers, or any other visitors) must undergo a health screening prior to entry, the screening occurs while the individual is in their vehicle. This includes having their temperature taken and being asked a number of health screening questions based on the bureaus guidance to evaluate their risk of exposure, as well as whether they have been experiencing any symptoms of illness.
37. The individuals conducting this health screening are authorized to deny entry to any individual ifhe or she has a body temperature of99 degrees Fahrenheit, or above, or reports other symptoms consistent with COVID-19 (although it was recommended that they consult with FCI Elkton medical providers in advance of the decision to deny entry).
38. FCI Elkton employees have also been educated regarding the importance of staying home if they are feeling ill, and are required to self-report any COVID-19 exposure (known or suspected) as well as any positive COVID-19 test. If a staff member is tested for COVID-19, they are not permitted to return to work until after receiving the results of the test.
D. COVID-19 Testing at FCI Elkton 39. The CDC has identified four "priority levels" for testing individuals with a suspected COVID-19 infection. Priority levels one through three include hospitalized patients and healthcare workers with symptoms (Priority Level I); symptomatic patients in long-term care facilities, individuals 65 years or older, individuals with underlying conditions, and first responders (Priority Level 2); and symptomatic critical infrastructure workers, individuals who do not meet any ofthc criteria in Priority Levels I or 2, healthcare workers and first responders, and individuals with mild symptoms in communities experiencing high numbers of COVID-19 hospitalizations
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(Priority Level 3). The fourth, or non-priority level, is for individuals without symptoms.

40. The CDC has made clear that "[n]ot everyone needs to be tested for COVID-19,"

and "decisions about testing are at the discretion of state and local health departments and/or

individual clinicians." See coronavirus.gov "Priorities for Testing Patients with Suspected

COVID-19 Infection" 41. At FCI Elkton, there are not enough tests to test every inmate. Consequently, the

decision whether to test an inmate for COVID-19 is made by Bureau medical providers based on

a number of criteria, including but not limited to: (I) the nature and severity of the symptoms; (2)

the inmate's potential exposure to COVID-19; (3) whether the inmate is considered "high-risk,"

and (4) whether the inmate is on a work detail, such as food service, that requires the inmate to

interact with other inmates or staff. 42. As of April 15, 2020, 39 FCI Elkton inmates have tested positive for COVID-19.

There are 34 staff members who have tested positive for COVID-19. There have been 5 inmate

deaths. 43.

FCI Elkton received 55 COVID-19 testing swabs and medical supplies at hand to

test inmates for COVID-19. FCI Elkton as of April 15, 2020 has 18 COVID-19 testing swabs

remaining. FCI continues to work diligently to obtain as many COVID-19 tests as possible. In

addition, FCI Elkton has 25 Abbott rapid screening COVID-19 testing cassettes, and anticipates

receiving 25 additional Abbott testing cassettes per week.

E. Additional Measures to Combat COVID-19 44. In addition to the above steps, FCl Elkton has taken a number of additional

measures to combat COVID-19. 45. All inmates have access to sinks, water, and soap at all times. All inmates

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may receive new soap weekly. Inmates will receive additional soap upon request. For inmates without sufficient funds to purchase soap in the commissary, soap is provided at no cost to the inmate.
46. All common areas in inmate housing units are cleaned daily, and are typically cleaned by inmate orderlies multiple times throughout the day, with a designated disinfectant that kills human coronavirus. FCI Elkton has made this disinfectant available to all inmates so that they may use it to clean their own cells on a regular basis. Common areas outside inmate living areas, including the FCI Elkton, lobby, bathrooms, cafeteria, etc., are also cleaned with the same disinfectant on a daily basis (and often multiple times per day).
47. Each housing unit has been stocked with cleaning supplies for use by inmate orderlies and other inmates to clean both the common areas and their cells on a daily basis.
48. Correctional staff are required to disinfect all common equipment, such as keys and radios, upon obtaining these items from the supply room and again upon their return. Staff also have regular, consistent access to soap and hand sanitizer.
49. Correctional staff have been provided PPE to be used in appropriate locations throughout FCI Elkton such as quarantined areas, isolation units, and screening sites. FCI Elkton has sufficient PPE on hand, including N-95 respirator masks, surgical masks, medical gloves, gowns, and foot coverings to meet its current and anticipated needs, as well as the ability to order additional PPE should the need arise.
50. All inmates and staff were provided protective face masks for daily use. 51. FCI Elkton uses isolation to separate inmates who present with symptoms consistent with COVID-like illness from quarantined asymptomatic or general population mmates. Inmates have surgical masks to wear when interacting with staff or leaving the assigned
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cell and their proximity to staff and other inmates is minimized. Medical staff determine if COVID-19 testing is necessary based on applicable guidelines and community standards. If the inmate's condition merits hospitalization, the inmate will be transported to a local hospital.
52. FCI Elkton uses quarantine to separate asymptomatic inmates who have been in contact with symptomatic inmates during the incubation period, which is up to 14 days for COVID19. Inmates are housed together during this 14-day period with other asymptomatic inmates in a housing unit. Steps are taken to not add or introduce new inmates to a quarantine housing unit after the 14-day quarantine clock has started. At the end of the 14-day period, the inmates may be released from quarantine if no inmates develop COVID-19 symptoms or are diagnosed with COVID-19. If additional inmates present with symptoms during the incubation period, these symptomatic inmates are isolated and the 14-day quarantine period begins anew. Inmates receive twice daily temperature checks and if any symptoms are reported, they are documented. If an inmate becomes symptomatic or has a temperature of greater than or equal to I00.4 F, the inmate is placed in isolation.
53. ln addition to the areas designated for quarantine and isolation, FCI Elkton has a "bridge-unit" staffed by the Ohio National Guard. The bridge-unit acts as a step down unit for inmates returning from hospitalization for COVID-19 symptoms. The bridge unit has had a range of patients from 2-15 at any one time.
54. Inmates at FCI Elkton are housed in 150-man housing units. Restrictions are in place to maintain separation between housing units. For example, only one housing unit is released to the cafeteria for "grab and go" meal service. The next unit is not released until the previous unit has returned to their housing quarters.
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III. CONCLUSION 55. In sum, the Bureau and FCI Elkton take 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. The various phases of the Bureau's Action Plan have been designed and implemented in a systemic manner both nationally and at FCI Elkton in order to mitigate the spread ofCOVID-19.
56. In addition to the steps taken at the national level, FCI Elkton itself has taken a number of measures to prevent the introduction and spread of COVJD-19 in the complex.
57. The Bureau and FCI Elkton 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.
I declare that the foregoing is true and correct to the best of my knowledge and belief, and is given under penalty of perjury pursuant to 28 U.S.C. § 1746 this April 16, 2020.
RESPECTFULLY SUBMITTED,
Health Services Administrator FCI Elkton
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GOVERNMENT EXHIBIT
B
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

WILSON, ET AL, Petitioners
V.
WILLIAMS, ET AL, Respondents

*

*

*

CASE NO. 4:20-CV-00794

*

*

*

*

JUDGE GWIN

*

*

DECLARATION OF KRISTY COLE I, Kristy Cole, do hereby declare, certify and state as follows: 1. I am employed by the United States Department of Justice, Federal Bureau of Prisons (BOP). I currently work as the Case Management Coordinator (CMC) at Federal Correctional Institution (FCI) Elkton in Lisbon, Ohio. I have held this position since September, 2007. I have been employed by BOP since March, 1997. 2. The CMC's Office is dedicated to providing oversight of case management activities within the institution. This office works directly with the unit teams, providing training and disseminating information to insure that the institution is in compliance with Correctional Programs' policies and procedures. The CMC provides coordination and oversight of many programs within the institution, including, but not limited to, Central Inmate Monitoring, Financial Responsibility, Admission and Orientation, Inmate Performance Pay, Victim/Witness Program and Adam Walsh Act compliance. The CMC also oversees the Correctional Systems Department. 3. FCI Elkton is a low security institution designed to house approximately 2,000 inmates at the main facility and approximately 500 inmates at the adjacent Federal Satellite Low (FSL). The main FCI facility and FSL are separate facilities and the inmate populations do not interact.

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For purposes of this declaration, when I refer to "FCI Elkton", I am referring to both the main Federal Correctional Institution (FCI) facility and the Federal Satellite Low (FSL), unless otherwise specified.
4. FCI Elkton offers specialized services for sex offenders, specifically the Sex Offender Management Program. I. COMPASSIONATE RELEASE/ REDUCTION IN SENTENCE PROCEDURES.
5. BOP does not have 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)(l)(A). This process is outlined in BOP Program Statement 5050.50, Compassionate Release/Reduction In Sentence Procedures for Implementation of18 USC.§§ 3582 and 4205(g). (This BOP program statement and all other program statements and operations memoranda cited herein are available at www.bop.gov via the Resources link). 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. 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. The determination of release is ultimately the decision of the sentencing court.
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6. Upon information and belief, within the past 15 days, approximately 550 FCI Elkton inmates have submitted a request for Compassionate Release to BOP. Of the four named Petitioners in this case, only Mr. Nelson has submitted a request for Compassionate Release to BOP. That request is under consideration. To date, 7 inmates have been denied Compassionate Release by the Warden. Packets for another 36 inmates are currently being reviewed by Health Services to determine if they meet the criteria for Compassionate Release. II. INMATEFURLOUGHS.
7. BOP also has the authority to temporarily release from custody (or "furlough") an inmate pursuant to 18 U.S.C. § 3622 and BOP Program Statement 5280.09, Inmate Furloughs. The inmate must meet certain requirements, and the temporary release from custody is under carefully prescribed conditions. It is not a means to shorten a sentence. Emergency furloughs are only being used for those individuals who have been medically screened, considered to be at risk, and on the advice of medical professionals. The individuals then need to be quarantined for 14 days, if they have viable release residences. No FCI Elkton resident has met this criterion at this time. III. BOP'S AUTHORITY TO PLACE INMATES ON HOME CONFINEMENT.
8. 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, both of which are available on www.bop.gov via the Resources link.
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A. BOP'S AUTHORITY UNDER 18 U.S.C. § 3624(c)(2). 9. Under 18 U.S.C. § 3624(c)(2), BOP has the exclusive authority to place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months. BOP, shall, to the extent practicable, place prisoners with lower risk levels and lower needs on home confinement for the maximum amount of time permitted under section 3624(c)(2). During the inmate's incarceration, BOP institution staff are responsible for making referrals to Residential Reentry Centers (RRCs) or home confinement typically within 17-19 months of the prisoner's release date. 10. In order to appropriately evaluate an individual for home confinement, the staff assesses the risk of criminal activity in the community and determines whether there is an appropriate home where the individual can be placed. This is a time and resource intensive process. Upon receipt of the staff assessment, BOP reviews the assessment and makes the final determination regarding home confinement. If approved, absent any disciplinary infractions, the inmate would serve the remainder of his or her sentence on home confinement. B. BOP'S AUTHORITY UNDER 34 U.S.C. § 60541. 11. Under 34 U.S.C. § 60541, 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 offender or eligible terminally ill offender. 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 two-thirds of the term of imprisonment to which the offender was sentenced; who has not been convicted in the
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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.
12. "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 (i.e., Clinical Director of the local institution) to be in need of care at a nursing home, intermediate care facility, or assisted living facility, or diagnosed with a terminal illness.
13. In order to appropriately evaluate an elderly or terminally ill individual for home confinement, BOP assesses the risk of criminal activity in the community and determines whether there is an appropriate home where the individual can be placed. As mentioned earlier, this is a time and resource intensive process.
14. If approved, absent any disciplinary infractions, the inmate would serve the remainder of his or her sentence on home confinement.
I
15. Pursuant to the statute, a violation by an eligible elderly or terminally ill offender of the terms of home detention (including the commission of another Federal, State, or local crime) shall result in the removal of that offender from home detention and the return of that offender to an appropriate BOP institution, as determined by BOP.
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16. Inmates that do not meet the criteria for the elderly home confinement can be placed on home confinement under BOP's general authority to 'do so, 18 U.S.C. § 3624(c)(2).
17. 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 BOP memoranda dated April 3, 2020, and April 15, 2020. These documents directed BOP to prioritize the use of its statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic, and provided further guidance concerning criteria to be used.
C. THE CARES ACT. 18. The "Coronavirus Aid, Relief, and. Economic Security Act" (CARES) Act, Pub.L. 116-136, authorizes the Attorney General to expand the cohort of inmates who can be considered for home confinement upon his finding of emergency conditions which are materially affecting the function of BOP. 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 FCI Oakdale, FCI Danbury, FCI Elkton, and other similarly situated BOP facilities where COVID-19 is materially affecting operations. 19. Pursuant to the Attorney General's direction, FCI Elkton receives rosters of inmates to be considered for home confinement. That guidance mandates that the following criteria should be met when reviewing and referring inmates for home confinement: 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
6

Case: 4:20-cv-00794-JG Doc #: 10-2 Filed: 04/17/20 7 of 8. PageID #: 193
months (regardless of severity level); the inmate is a U.S. citizen; and the inmate has a viable release plan. As a result of FCI Elkton' s higher population of inmates convicted of sex offenses, many FCI Elkton inmates are ineligible for home confinement.
20. To date, six inmates have been approved for transfers to home confinement. The inmates receiving transfers must quarantine for fourteen days prior to transfer. Five of the six approved transfers have dates for transfer next week. Two more inmates are currently being vetted by the Residential Reentry Manager. Four inmates are in the process of being sent to the Residential Reentry Manager for consideration. To date, 32 inmates have been denied home confinement as not meeting the stated criteria for a variety of reasons.
21. Concerning the four named Petitioners in this case, two have requested and been considered for home confinement. Mr. Bellamy is ineligible because he has active warrants from New Jersey. Mr. Nieves is ineligible due to a history of serious violence (assault with a baseball bat). Although he has not requested home confinement, Mr. Wilson is not a candidate because his recidivism risk score is too high; he has a Low recidivism risk score and a Minimum risk score is required. Additionally, although he has not requested home confinement, Mr. Nelson is not a candidate because he has a history of violence (unlawful discharge of a firearm) and his recidivism risk score is too high; he has a Medium recidivism risk score and a Minimum risk score is required. IV. ELKTONFACILITY.
22. FCI Elkton consists of three buildings containing six dorm-style housing units. There are approximately 300 inmates in each housing unit. Each housing unit is divided into an A side and a B side. The A and B sides are separated and the inmates do not intermingle. The
7

Case: 4:20-cv-00794-JG Doc #: 10-2 Filed: 04/17/20 8 of 8. PageID #: 194 FSL is one building with two dorm-style housing units. Each housing unit is divided into an A side and a B side. There are approximately 250 inmates in each FSL unit.
I declare that the foregoing is true and correct to the best of my knowledge and belief, and is given under penalty of perjury pursuant to 28 U.S.C. § 1746 this April 17, 2020.
RESPECTFULLY SUBMITTED, Case Management Coordinator FCI Elkton
8

Case: 4:20-cv-00794-JG Doc #: 10-3 Filed: 04/17/20 1 of 7. PageID #: 19G5OVERNMENT
EXHIBIT
C
(@ffitt of t~t Attarne~ ~tneral
11asqinghm.il. QI. 205:30

March 26, 2020

MEMORANDUM FOR DIRECTOR OF BUREAU PRISONS

FROM:

(Jf~ THE ATIORNEY GENERAL

SUBJECT:

Prioritization of Home Confinement As Appropriate in Response to COVID-1 9 Pandemic

Thank you for your tremendous service to our nation during the present crisis. The current situation is challenging for us all, but I have great confidence in the ability of the Bureau of Prisons (BOP) to perform its critical mi ssion during these difficult times. We have some of the best-run prisons in the world and I am confident in our ability to keep inmates in our prisons as safe as possible from the pandemic currently sweeping across the globe. At the same time, there are some at-ri sk inmates who are non-violent and pose minimal likelihood of recidivism and who might be safer serving their sentences in home confinement rather than in BOP fac il ities. I am issuing this Memorandum to ensure that we utilize home confinement, where appropriate, to protect the health and safety of BOP personnel and the people in our custody.
I. TRANSFER OF INMATES TO HOME CONFINEMENT WHERE APPROPRIATE TO DECREASE THE RISKS TO THEIR HEALTH
One of BOP 's tools to manage the prison population and keep inmates safe is the ability to grant certain eligible prisoners home confinement in certain circumstances. I am hereby directing you to prioritize the use of your vari ous statutory authoriti es to grant home confinement fo r inmates seeking transfer in connection with the ongoing COVID-1 9 pandemic. Many inmates will be safer in BOP fac ilities where the population is controlled and there is ready access to doctors and medical care. But for some eligible inmates, home confinement might be more effective in protecting their health.
In assessing which inmates should be granted home confinement pursuant to this Memorandum, you are to consider the totality of circumstances for each individual inmate, the statutory requirements for home confinement, and the following non-exhaustive list of discretionary factors:
• The age and vulnerability of the inmate to COVID-1 9, in accordance with the Centers for Disease Control and Prevention (CDC) guidelines;

Case: 4:20-cv-00794-JG Doc #: 10-3 Filed: 04/17/20 2 of 7. PageID #: 196

Memorandum from the Attorney General

Page 2

Subject: Prioritization of Home Confinement As Appropriate in Response to COVID-19

Pandemic

• The secw-ity level of the facility currently holding the inmate, with priority given to inmates residing in low and minimum security facilities ;
• The inmate 's conduct in pri son, with inmates who have engaged in violent or gangrelated activity in prison or who have incurred a BOP violation within the last year not receiving priority treatment under this Memorandum;
• The inmate's score under PATTERN, with inmates who have anything above a minimum score not receiving priority treatment under this Memorandum;
• Whether the inmate has a demonstrated and verifiable re-entry p lan that will prevent recidivism and maximize public safety, including verification that the conditions under which the inmate would be confined upon release would present a lower risk of contracting COVID-19 than the inmate would face in his or her BOP facility;
• The inmate's crime of conviction, and assessment of the danger posed by the inmate to the community. Some offenses, such as sex offenses, will render an inmate ineligible for home detention. Other serious offenses should weigh more heavily against consideration for home detention.
In addition to considering these factors, before granting any inmate discretionary release, the BOP Medical Director, or someone he designates, will, based on CDC guidance, make an assessment of the inmate ' s risk factors for severe COVID-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. We should not grant home confinement to inmates when doing so is likely to increase their risk of contracting COVID-1 9. You should grant home confinement only when BOP has determined-based on the totality of the circumstances for each individual inmate-that transfer to home confinement is likely not to increase the inmate's ri sk of contracting COVID-19.
II. PROTECTING THE PUBLIC
While we have an obligation to protect BOP personnel and the people in BOP custody, we also have an obligation to protect the public. That mean s we cannot take any risk of transferring inmates to home confinement that will contribute to the spread of COVID-19, or put the public at risk in other ways. I am therefore directing you to place any inmate to whom you grant home confinement in a mandatory 14-day quarantine period before that inmate is discharged from a BOP facility to home confinement. Inmates transferred to home confinement under this prioritized process should also be subject to location monitoring services and, where a court order is entered, be subject to supervised release.
We must do the best we can to minimize the risk of COVID-19 to those in our custody, while also minimizing the risk to the public. I thank you for your service to the country and assistance in implementing this Memorandum.

Case: 4:20-cv-00794-JG Doc #: 10-3 Filed: 04/17/20 3 of 7. PageID #: 197
®fffre of t~e Attcrntl! ~rnrral
llas qiugtntt,'ID. Qt. 205,go
April 3, 2020

MEMORANDUM FOR DIRECTOR OF BUREAU OF PRISONS

FROM: SUBJECT:

THE ATTORNEY G E N E ~~
Increasing Use of Home Confinement at Institutions Most Affected by COVID-19

The mission of BOP is to administer the lawful punishments that our justice system imposes. Executing that mission imposes on us a profound obligation to protect the health and safety ofall inmates.
Last week, I directed the Bureau of Prisons to prioritize the use of home confinement as a tool for combatting the dangers that COVID-19 poses to our vulnerable inmates, while ensuring we successfully discharge our duty to protect the public. I applaud the substantial steps you have already taken on that front with respect to the vulnerable inmates who qualified for home confinement under the pre-CARES Act standards.
As you know, we are experiencing significant levels of infection at several of our facilities, including FCI Oakdale, FCI Danbury, and FCI Elkton. We have to move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions. I would like you to give priority to these institutions, and others similarly affected, as you continue to process the remaining inmates who are eligible for home confinement under pre-CARES Act standards. In addition, the CARES Act now authorizes me to expand the cohort of inmates who can be considered for home release upon my finding that emergency conditions are materially affecting the functioning of the Bureau of Prisons. I hereby make that finding and direct that, as detailed below, you give priority in implementing these new standards to the most vulnerable inmates at the most affected facilities, consistent.with the guidance below.
I. IMMEDIATELY MAXIMIZE APPROPRIATE TRANSFERS TO HOME CONFINEMENT OF ALL APPROPRIATE INMATES HELD AT FCI OAKDALE, FCI DANBURY, FCI ELKTON, AND AT OTHER SIMILARLY SITUATED BOP FACILITIES WHERE COVID-19 IS MATERIALLY AFFECTING OPERATIONS

Case: 4:20-cv-00794-JG Doc #: 10-3 Filed: 04/17/20 4 of 7. PageID #: 198

Memorandum from the Attorney General

Page 2

Subject: Increasing Use of Home Confinement at Institutions Most Affected by COVID-19

While BOP has taken extensive precautions to prevent COVID-19 from entering its facilities and infecting our inmates, those precautions, like any precautions, have not been perfectly successful at all institutions. I am therefore directing you to immediately review all inmates who have COVID-19 risk factors, as established by the CDC, starting with the inmates incarcerated at FCI Oakdale, FCI Danbury, FCI Elkton, and similarly situated facilities where you determine that COVID-19 is materially affecting operations. You should begin implementing this directive immediately at the facilities I have specifically identified and any other facilities facing similarly serious problems. And now that I have exercised my authority under the CARES Act, your review should include all at-risk inmates-not only those who were previously eligible for transfer.
For all inmates whom you deem suitable candidates for home confinement, you are directed to immediately process them for transfer and then immediately transfer them following a 14-day quarantine at an appropriate BOP facility, or, in appropriate cases subject to your case-bycase discretion, in the residence to which the inmate is being transferred. It is vital that we not inadvertently contribute to the spread of COVID-19 by transferring inmates from our facilities. Your assessment of these inmates should thus be guided by the factors in my March 26 Memorandum, understanding, though, that inmates with a suitable confinement plan will generally be appropriate candidates for home confinement rather than continued detention at institutions in which COVID-19 is materially affecting their operations.
I also recognize that BOP has limited resources to monitor inmates on home confinement and that the U.S. Probation Office is unable to monitor large numbers ofinmates in the community. I therefore authorize BOP to transfer inmates to home confinement even if electronic monitoring is not available, so long as BOP determines in every such instance that doing so is appropriate and consistent with our obligation to protect public safety.
Given the speed with which this disease has spread through the general public, it is clear that time is of the essence. Please implement this Memorandum as quickly as possible and keep me closely apprised of your progress.
II. PROTECTING THE PUBLIC
While we have a solemn obligation to protect the people in BOP custody, we also have an obligation to protect the public. That means we cannot simply release prison populations en masse onto the streets. Doing so would pose profound risks to the public from released prisoners engaging in additional criminal activity, potentially including violence or heinous sex offenses.
That risk is particularly acute as we combat the current pandemic. Police forces are facing the same daunting challenges in protecting the p1:1blic that we face in protecting our inmates. It is impossible to engage in social distancing, hand washing, and other recommend steps in the middle of arresting a violent criminal. It is thus no surprise that many of our police officers have fallen ill with COVID-19, with some even dying in the line of duty from the disease. This pandemic has dramatically increased the already substantial risks facing the men and women who keep us safe, at the same time that it has winnowed their ranks while officers recover from getting sick, or selfquarantine to avoid possibly spreading the disease.

Case: 4:20-cv-00794-JG Doc #: 10-3 Filed: 04/17/20 5 of 7. PageID #: 199

Memorandum from the Attorney General

Page 3

Subject: Increasing Use of Home Confinement at Institutions Most Affected by COVID-19

The last thing our massively over-burdened police forces need right now is 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 have a safe place to go where they will not be mingling with their old criminal associates, and that they will not return to their old ways as soon as they walk through the prison gates. Thus, while I am directing you to maximize the use of home confinement at affected institutions, it is essential that you continue making the careful, individualized determinations BOP makes in the typical case. Each inmate is unique and each requires the same individualized determinations we have always made in this context.
I believe strongly that we should do everything we can to protect the inmates in our care, but that we must do so in a careful and individualized way that remains faithful to our duty to protect the public and the law enforcement officers who protect us all.

Case: 4:20-cv-00794-JG Doc #: 10-3 Filed: 04/17/20 6 of 7. PageID #: 200

U.S. Department of Justice Memorandum Federal Bureau of Prisons

Correctional Programs Branch

Central Office 320 First Street, N. W. Washing ton, DC 20534

MEMORANDUM FOR CORRECTIONAL PROGRAM ADMINISTRATORS

FROM:

~~~1 Assistant

Director

SUBJECT:

Furlough and Home Confinement Additional Guidance

The following guidance is provided from information contained in the CARES Act, memoranda from Attorney General Barr, and the Bureau of Prisons. This memorandum rescinds guidance previously provided.
Furlough The current pandemic is considered an urgent situation that may warrant an emergency furlough under 570.32(b) (1) and 570.33(b). These regulations authorize a non-transfer emergency furlough if the inmate is otherwise deemed appropriate, even if he/she has been submitted for Home Confinement (HC). Effective April 16, 2020, all inmates referred for an emergency furlough due to the Covid-19 pandemic should be submitted and keyed as FURL CRI.
Inmates who have been referred for a release planning furlough based on guidance issued prior to April 16, 2020, do not require a new application. These inmates should be keyed out of the facility as FURL REL. Furlough applications completed on or after April 16, 2020, should follow the updated guidance. Inmates within 12 months of his/her Projected Release Date (PRD), or those who have received Home Confinement placement and have a PRD exceeding one year, should be reviewed for furlough.
Home Confinement In an effort to alleviate concerns and questions, the following criteria should be met when reviewing and referring inmates for HC:
• Primary or prior offense is not violent

Case: 4:20-cv-00794-JG Doc #: 10-3 Filed: 04/17/20 7 of 7. PageID #: 201

• Primary or prior offense is not a sex offense • Primary or prior offense is not terrorism • No detainer • Mental Health Care Level is less than CARE-MH 4 • PATTERN risk score is Minimum (R-MIN) • No incident reports in the past 12 months (regardless of
severity level) • U.S. Citizen • Viable Release Plan

If the inmate meets the criteria above, the following should be noted, but are not a reason for denial:
• Age • Projected Release Date • Percentage of time served • Medical Care Level • Victim Witness Program • Arrival dated (ARSD)

factors

Any concerns regarding an inmate's suitability for HC placement should be noted in Section 11 of the BP-210, Institutional Referral for CCC Placement. It is strongly encouraged to refer inmates currently housed in a facility with active Covid-19 cases.

For inmates requesting relocation, a release plan must be submitted to the USPO prior to HC referral submission. The USPO approval letter must be forwarded to the RRM, once received. Institution staff should contact the Health Service Specialist in the RRM's office with questions regarding HC placement for inmates with medical concerns.

If you have any questions, please contact David Brewer, Acting Senior Deputy Assistant Director, Correctional Programs Division, at (202)353-3638.

 
 Case: 4:20-cv-00794-JG Doc #: 18 Filed: 04/18/20 1 of 17. PageID #: 245

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

CRAIG WILSON, ERIC BELLAMY, KENDAL NELSON, and MAXIMINO NIEVES, on behalf of themselves and those similarly situated,

Case No. 20-cv-0794 Judge James Gwin

Petitioners, v.
MARK WILLIAMS, warden of Elkton Federal Correctional Institutions; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities,

Respondents.
PETITIONERS’ REPLY MEMORANDUM IN SUPPORT OF THEIR EMERGENCY PETITION FOR A WRIT OF HABEAS CORPUS1

In the roughly 120 hours since Petitioners filed their emergency petition for a writ of habeas

corpus, the death toll at Elkton has doubled, and the number of BOP-confirmed COVID-19 cases

among prisoners has tripled. About three dozen corrections staff have tested positive for the virus, a number that has also tripled since this case was filed.2 Elkton now accounts for more than one third of all prisoner deaths from COVID-19 in federal prisons nationwide, and over half of the COVID-19 deaths in Columbiana County, making it one of the deadliest places a person can live

1 Petitioners file this reply brief by leave of Court. Petitioners reserve the right to file, if necessary, a formal traverse to the allegations in the Return of Writ. See 28 U.S.C. § 2248. As with Respondents’ Opposition, the page-limit restrictions of Loc. R. 7.1(f) appear not to apply here, but alternatively, Petitioners respectfully move to file instanter additional pages, to a total of 16, in light of the complex issues at hand. Noting the short timeline for this Reply, Petitioners also request leave to file without the statement of issues, and other formal requirements of that Rule. 2 Compare Kaylyn Hlavaty, Sixth Inmate at Elkton Federal Correctional Institution Dies From COVID-19, NEWS 5 CLEVELAND (April 16, 2020), https://www.news5cleveland.com/ news/continuing-coverage/coronavirus/6th-inmateat-elkton-federal-correctional-institution-dies-from-covid-19, with ECF No. 1-3 (Novisky Decl.) ¶ 7.
1

Case: 4:20-cv-00794-JG Doc #: 18 Filed: 04/18/20 2 of 17. PageID #: 246
in the current pandemic.3 According to one source, 32 prisoners have been hospitalized, including 16 requiring ventilators.4 Meanwhile, Respondents “have yet to come up with a good, sound criteria of how they are going to actually start the testing” of prisoners,5 much less a plan for social
distancing, release, or transfer. Two weeks after the Attorney General exhorted Respondents to
“immediately review” all prisoners with COVID-19 risk factors and “immediately transfer them”
after quarantine, a mere six of the 2,400 prisoners at Elkton, or 0.25%, have been approved.
Elkton has become an epicenter of COVID-19, and continued confinement will mean a
sentence of death, permanently damaged organs, or unnecessary suffering for more residents.
Respondents’ lack of effective action constitutes deliberate indifference to serious medical need.
This Court is empowered to provide a process for the necessary releases—the only means by which
prisoners’ Eighth Amendment rights can be vindicated. The nature of that authority, under 28
U.S.C. § 2241 or alternatively 28 U.S.C. § 1331, is explained further in Section III below.
ARGUMENT I. Continued Incarceration at Elkton Prison in its Current State Is Unconstitutional
“It is undisputed that the treatment a prisoner receives in prison and the conditions under
which he is confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney,
3 Zack Budryk, DOJ watchdog to inspect federal prisons after hundreds diagnosed with coronavirus, THE HILL (April 15, 2020), https://thehill.com/policy/healthcare/493065-doj-watchdog-to-inspect-federal-prisons-afterhundreds-diagnosed-with; Ohio Department of Health, COVID-19 Dashboard, https://coronavirus.ohio.gov/wps/portal/gov/covid-19/dashboards. 4 Shane Hoover, Inmates seek release from Elkton amid coronavirus pandemic, CANTON REPOSITORY (April 17, 2020), https://www.cantonrep.com/news/20200417/inmates-seek-release-from-elkton-amid-coronavirus-pandemic. One week ago, the number of prisoners on ventilators—including some who have since passed away—was 14. Sam Allard, The Latest out of Elkton Federal Prison, Where Horror Show Continues Apace, CLEVELAND SCENE (April 10, 2020), https://www.clevescene.com/scene-and-heard/archives/2020/04/10/the-latest-out-of-elkton-federalprison-where-horror-show-continues-apace. 5 Carolyn Sistrand, Elkton Inmate Says More Could Be Done To Sanitize, Enforce Social Distancing, WKBN (April 16, 2020), https://www.wkbn.com/news/coronavirus/elkton-inmate-says-more-could-be-done-to-sanitize-enforcesocial-distancing (accessed April 17, 2020).
2

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509 U.S. 25, 31 (1993). It is also undisputed that recklessly exposing a prisoner to a serious
infection is unconstitutional. Id.; Hutto v. Finney, 437 U.S. 678, 682 (1978). Respondents’ inaction
at Elkton meets both the objective and subjective prongs of deliberate indifference.
For the objective standard, a prisoner must show he was “incarcerated under conditions
posing a substantial risk of serious harm.” Richko v. Wayne Cty., Mich., 819 F.3d 907, 916 (6th
Cir. 2016) (quotation omitted); see also Farmer v. Brennan, 511 U.S. 825, 834 (1994). Incredibly,
with six dead, dozens seriously ill, and both numbers continuing to rise, Respondents dispute that
this standard is met. Even in mild cases, COVID-19 brings fever, cough, pained breathing, and a
host of other symptoms.6 Approximately one out of every five patients require hospitalization.7
Fluid builds up in the lungs, making it harder for oxygen to transfer to blood.8 Patients in advanced
stages cannot breathe. This condition can last for weeks; heart or kidneys may fail,9 or the patient
may slowly choke to death.10 Even patients who live may never fully recover.11
Failure to provide toothpaste for 337 days has been held in the Sixth Circuit to violate the
Eighth Amendment. Flanory v. Bonn, 604 F.3d 249, 255 (6th Cir. 2010). See also Talal v. White,
403 F.3d 423, 427 (6th Cir. 2005) (conditions causing “sinus problems and dizziness”); Dominguez
6 Abby Tang & Emmanuel Ocbazghi, What Coronavirus Symptoms Look Like, Day by Day, BUSINESS INSIDER (Apr. 6, 2020), https://www.businessinsider.com/novel-coronavirus-covid-19-symptoms-day-by-day-2020-3. 7 CENTERS FOR DISEASE CONTROL & PREVENTION, Severe Outcomes Among Patients with Coronavirus Disease 2019, at Table: Hospitalization, intensive care unit (ICU) admission and case-fatality percentages reported COVID-10 cases, by age group (March 27, 2020), https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm#T1_down. 8 CLEVELAND CLINIC, Here’s the Damage Coronavirus (COVID-19) Can Do to Your Lungs, https://health.clevelandclinic.org/heres-the-damage-coronavirus-covid-19-can-do-to-your-lungs/ (accessed Apr. 18, 2020); Tang & Ocbazghi, supra note 6. 9 Goldenson Decl. ¶ 10; see also Tang & Ocbazghi, supra note 4; Jean-Louis Vincent & Fabio Taccone, Understanding Pathways to Death in Patients with COVID-19, THE LANCET (Apr. 6, 2020), https://www.thelancet.com/journals/lanres/article/PIIS2213-2600(20)30165-X/fulltext. 10 See Tang & Ocbazghi, supra note 6. 11 How Are the Most Serious COVID-19 Cases Treated, and Does the Coronavirus Cause Lasting Damage?, THE CONVERSATION (Mar. 29, 2020), https://theconversation.com/how-are-the-most-serious-covid-19-cases-treated-anddoes-the-coronavirus-cause-lasting-damage-134398.
3

Case: 4:20-cv-00794-JG Doc #: 18 Filed: 04/18/20 4 of 17. PageID #: 248
v. Corr. Med. Servs., 555 F.3d 543, 551 (6th Cir. 2009) (overheating after working out in hot conditions). Elkton prisoners, meanwhile, face “physical torture or a lingering death.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). Petitioners need not show that they have the disease now, or even are certain to be infected—their well-documented risk is enough. See, e.g., Brown v. Bargery, 207 F.3d 863, 867–68 (6th Cir. 2000); McKinney, 509 U.S. at 33; Farmer, 511 U.S. at 843–44.
The subjective element is met where prison officials were deliberately indifferent to a substantial risk of harm to the prisoner’s health. Thaddeus-X v. Blatter, 175 F.3d 378, 402 (6th Cir. 1999) (en banc). Here, the undisputed state of affairs at Elkton—six dead and counting, with vital social distancing measures rendered impossible—speaks for itself. It is not enough for Respondents to say, as they do, that they are “trying, very hard to protect inmates against COVID19.” ECF No. 10 at 28. They also know that they are failing, and things continue to get worse.
“A prisoner is not required to show that he was literally ignored by the staff to prove an Eighth Amendment violation, only that his serious medical needs were consciously disregarded.” Rouster v. Cty. of Saginaw, 749 F.3d 437, 448 (6th Cir. 2014) (cleaned up). Custodians are still deliberately indifferent if they took some action, observed that it was failing, but refused to adjust. See, e.g, Richmond v. Huq, 885 F.3d 928, 944 (6th Cir. 2018) (“It is insufficient for a doctor caring for inmates to simply provide some treatment for the inmates’ medical needs”); Darrah v. Krisher, 865 F.3d 361, 369 (6th Cir. 2017) (“continuing to treat him with Methotrexate after Darrah had been on the drug for several months without any noticeable improvement”); Phillips v. Roane Cty., Tenn., 534 F.3d 531, 541 (6th Cir. 2008) (providing observation and limited care, but failing to provide “appropriate” medical care); Greene v. Bowles, 361 F.3d 290, 294 (6th Cir. 2004) (putting prisoner into protective custody but failing to protect her from a risk that persisted even then).
4

Case: 4:20-cv-00794-JG Doc #: 18 Filed: 04/18/20 5 of 17. PageID #: 249
At least one court has already observed that Respondents are failing at Elkton, but still they
refuse to adapt. See United States v. Rodriguez, 2020 WL 1627331, Case No. 2:03-cr-0271, ECF
No. 135 (E.D. Pa., April 1, 2020) (“The government’s assurances that the BOP’s ‘extraordinary
actions’ can protect inmates ring hollow given that these measures have already failed to prevent
transmission of the disease[.]”); see also Novisky Decl. ¶ 6 (continued spread shows that FBOP’s
actions “are not sufficient in strength nor impact to adequately protect its staff, its prisoners, or the
public.”); Goldenson Decl. ¶ 29 (“we can expect the death toll to mount rapidly” at Elkton).
As the Bureau of Prisons’ own daily updates illustrate, Respondents are aware that
continued custody at current levels is flatly incompatible with stemming the spread of COVID-19
at Elkton. Even as the Government urges that “public health officials are entitled to heightened
deference when exercising science-based public health judgment during a public health
emergency,” Resp. at 25, it fails to implement that judgment. Public-health officials consistently
urge that immediate and significant reduction of the population levels is the only effective response to prevent further illness and loss of life. Novisky Decl. ¶¶ 14, 17; Goldenson Decl. ¶ 33.12
While Respondents dispute some of the details from Petitioners’ declarations13—how
much soap a prisoner may obtain, for example—what they do not dispute speaks volumes.
12 Respondents do not challenge the expertise of these public-health officials, and they do not point to any scientific or medical experts or other evidence suggesting their current regime is effective. Nor can they, as casualties continue to mount. Instead, they simply offer declarations from a health administrator and a case management coordinator who describe actions that they claim the prison has taken. These officials are not health experts, and do not—indeed, cannot—state that the current protocols are effective. See Goldenson Decl. ¶ 32 (“[L]eaving implementation in the hands of local officials alone, who lack the expertise and resources and were incapable of preventing the outbreak in the first place or treating those who eventually died, is insufficient.”). 13 There are numerous disputes about whether some of these steps have actually been implemented consistently, or even at all. Petitioners have established a right to the requested relief based on the petition and the facts undisputed by Respondents. To the extent that the Court believes it necessary to resolve other factual disputes, the Court may “summarily hear and determine the facts,” 28 U.S.C. § 2243, including using testimony, depositions, affidavits, and documentary evidence. 28 U.S.C. §§ 2244-46. But even resolving factual disputes in favor of the Government—the opposite of the assumption to be applied at this early stage—continued confinement at Elkton is unconstitutional.
5

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Critically, Respondents’ declarant concedes that hundreds of prisoners are placed in a single housing unit, Cole Decl. ¶ 22, consistent with Petitioners’ multiple declarations describing highrisk communal living. Respondents also concede that prisoners “live in units in proximity to other prisoners and less than a six foot distance between beds.” Resp. at 21. Confining more than 100 people into a single area, with limited spacing, is precisely the sort of setting that accelerates the spread of COVID-19. Novisky Decl. ¶ 10 (shared sleeping and eating spaces, bathrooms, and showers, increase risks to Elkton’s population “dramatically”); Goldenson Decl. ¶ 32 (under these conditions, the spread of COVID-19 will be “magnified” at Elkton, and “[t]he death rate will increase substantially before it starts to diminish”). It is thus undisputed that medically-indicated social distancing is not being, and cannot be, observed at Elkton.
Although prisoners are being “encouraged” to keep a six-foot distance, they are simultaneously denied conditions that make that possible. Novisky Decl. ¶ 10 (“With continued functioning of shared spaces for bathing, eating, and sleeping, quarantine and social distancing would be impossible to implement at Elkton.”); Goldenson Decl. ¶ 32 (“Adequate social distancing would be impossible to maintain.”). This itself is deliberate indifference. Richmond, 885 F.3d 944. And while Respondents claim to quarantine prisoners with certain COVID-19 symptoms, they fail to acknowledge that asymptomatic people can be carriers for days, spreading infection throughout their housing unit. Novisky Decl. ¶ 6 (“Given that asymptomatic people can still be contagious, it would be impossible for institutions to definitively identify those exposed.”). Respondents ignore the expertise of health experts and instead urge the Court to let them continue trying failed methods, while more people fall ill and die. That is not what the Eighth Amendment requires.
II. All Prisoners at Elkton Have an Interest in Avoiding the High Risk of Infection There
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Faced with a death toll and an infection rate among the highest in the nation, Respondents nonetheless suggest that the prisoners are better off kept locked up at Elkton rather than being allowed to go somewhere—anywhere—else. To support this astonishing claim, Respondents conjecture that some prisoners might not engage in social distancing upon release, that some may not have anywhere to go, or that some might end up getting the disease anyway. They use this argument to question Petitioners’ underlying Eighth Amendment claims, Resp. at 21–22; the value of Petitioners’ requested relief, Resp. 33–34; and the bases for aggregate litigation, Resp. 35–37.
The risks that Respondents point to are wildly speculative, at best. They offer no evidence, and Petitioners’ declarations directly refute them. In contrast to Respondents’ hypotheticals, the evidence definitively shows that prisons are among the worst possible environments for spread of infection, see, e.g., Novisky Decl. ¶¶ 4-5, 9-16; Goldenson Decl. ¶¶ 20-32, and Elkton is one of the very most dangerous even among those, see supra at 1 (accounting for over one third of federal prison deaths); ECF No. 10-3, Page ID #197 (Memorandum from Attorney General describing Elkton and two others as “Institutions Most Affected by COVID-19”). The proven reality is that people are growing ill, needing hospitalization, and dying every day at Elkton. Respondents observe that there are risks outside prison walls, too, as if to suggest that some people might prefer to be incarcerated at Elkton during the outbreak. The documented, extreme risks within Elkton outweigh the mere possibility of some risk—undoubtedly a lesser one—elsewhere.
Release would give prisoners the chance to follow medically-indicated rules on social distancing that Respondents are preventing them from following. Petitioners’ evidence (and Respondents’ concessions) make clear that prisoners at Elkton cannot practice social distancing confined in a unit with 150 other people, any of whom may be infectious. Outside of those conditions, a prisoner can isolate himself; even if he shares a living space with other people, that
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is a far cry from 150 bunkmates. Inside the prison, meanwhile, the Government restrains each prisoner’s liberty and thus “renders him unable to care for himself, and at the same time fails to provide for his basic human needs,” such as “reasonable safety” from infection. DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989). That is why Respondents have an Eighth Amendment duty to get more prisoners out of Elkton. See id.
III. This Court Has the Authority to Remedy Continued Detention in Violation of the Eighth Amendment
A. Authority Under § 2241 Federal prisoners “seeking to challenge the execution or manner in which” their sentences are served can bring such claims under 28 U.S.C. § 2241. Terrell v. United States, 564 F.3d 442, 447 (6th Cir. 2009). Respondents seize on the phrase “conditions of confinement,” Resp. at 22– 23, 26–28, but Petitioners are not asking to alter a specific aspect of their confinement—for example, more soap. Rather, they have demonstrated that continued confinement of at least some class members at Elkton is itself unconstitutional in light of COVID-19.14 Whether thought of as a challenge to the place, manner, or execution of Elkton prisoners’ sentences, that kind of claim is cognizable under § 2241. E.g., United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991).15 Moreover, Petitioners seek a path to release for at least a subset of prisoners: in other words, “immediate release or a speedier release from that confinement—the heart of habeas corpus.”
14 As noted in the Petition, Petitioners use the term “release” to encompass a range of potential remedies that would remove them “from the physical confines of Elkton” but not necessarily from Respondents’ custody. Petition ¶ 4, n. 2. That satisfies the “quantum change in the level of custody” properly brought under habeas, see, e.g., Terrell, 564 F.3d at 448 (quoting Wilkinson v. Dotson, 544 U.S. 74, 86 (2005) (Scalia, J., concurring)), and here, under § 2241. 15 With regard to proper jurisdiction and venue, meanwhile, “courts have uniformly held that . . . claims seeking to challenge the execution or manner in which the sentence is served shall be filed in the court having jurisdiction over the prisoner’s custodian under 28 U.S.C. § 2241,” whereas claims under § 2255 “shall be filed in the sentencing court.” Charles v. Chandler, 180 F.3d 753, 755–56 (6th Cir. 1999). Relatedly, as some of Respondents’ citations simply concern “habeas,” Petitioners note that § 2241 is broader than and not necessarily restricted by interpretations of other habeas statutes. Bailey v. Wainwright, 951 F.3d 343, 347 (6th Cir. 2020)
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Preiser, 411 U.S. at 498. That has long been the province of the Great Writ. Hamama v. Adducci, 912 F.3d 869, 875 (6th Cir. 2018) (“The traditional remedy provided by habeas is ‘removing the injury of unjust and illegal confinement.’” (quoting 3 William Blackstone, Commentaries on the Laws of England 137 (1768)); Armstrong v. Cardwell, 457 F.2d 34, 36 (6th Cir. 1972) (noting that “habeas lies in ‘exceptional circumstances,’” such “as when the petitioner’s claims suggest that he has been victim of cruel and unusual punishment”); Coffin v. Reichard, 143 F.2d 443, 445 (6th Cir. 1944) (“A prisoner is entitled to the writ of habeas corpus when, though lawfully in custody, he is deprived of some right to which he is lawfully entitled even in his confinement, the deprivation of which serves to make his imprisonment more burdensome that the law allows[.]”). And more recent authority confirms that where a claim regarding conditions of confinement ultimately challenges the fact of that confinement itself, it is cognizable in habeas. See Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011); Nelson v. Campbell, 541 U.S. 637, 644–45 (2004).
Specifically, Petitioners seek a process to identify members of the Medically-Vulnerable Subclass, for whom their own health and the COVID-19 outbreak dictates that they should be able to serve their sentences at home or in another facility where there is not an objectively severe risk of serious illness or death. ECF No. 1 at ¶ 96 (Request for Relief); Novisky Decl. ¶ 17 (reduction is the “best line of defense to maintain the public health interests” of prisoners, staff, and community); Goldenson Decl. ¶¶ 21-25 (similar). Petitioners are thus properly “challenging the manner in which the sentence was being executed, rather than the validity of the sentence itself,”
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under § 2241, in a way that calls into question the fact of their confinement, not merely its
conditions. See Jalili, 925 F.2d at 893; Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998).16
Respondents’ cited authorities are not to the contrary. The Sixth Circuit’s memorandum
opinion in Luedtke v. Berkebile, 704 F.3d 465 (6th Cir. 2013), for example, simply concluded that
three claims challenging labor conditions and inmate treatment inside the prison were not properly
brought under § 2241, while concluding that a fourth claim challenging his exclusion from a
financial-responsibility program was cognizable. Id. at 466. Petitioners’ claims that the Eighth
Amendment requires sufficient action to protect them from serious illness or death is, if anything,
like the fourth of these claims. Moreover, unlike even this fourth claim, Petitioners seek a pathway
to release for at least a subset of vulnerable members from their current manner of confinement.17
16 Numerous district courts have concluded that habeas is the appropriate vehicle, and have granted immediate release to detainees to remedy constitutional violations caused by detention during current COVID-19 crisis. E.g., Fofana v. Albence, No. 20-10869, 2020 WL 1873307, at *11 (E.D. Mich. Apr. 15, 2020); Malam v. Adducci, No. 20-10829, 2020 WL 1672662, at *7 (E.D. Mich. Apr. 5, 2020); Basank v. Decker, No. 20 CIV. 2518 (AT), 2020 WL 1481503, at *1 (S.D.N.Y. Mar. 26, 2020); Bent v. Barr, No. 19-CV-06123-DMR, 2020 WL 1812850, at *2 (N.D. Cal. Apr. 9, 2020); Doe v. Barr, No. 20-CV-02141-LB, 2020 WL 1820667, at *8 (N.D. Cal. Apr. 12, 2020); Coronel v. Decker, No. 20-CV-2472 (AJN), 2020 WL 1487274, at *8 (S.D.N.Y. Mar. 27, 2020); Thakker v. Doll, No. 1:20-CV-480, 2020 WL 1671563, at *9 (M.D. Pa. Mar. 31, 2020); Leandro R. P. v. Decker, No. CV 20-3853 (KM), 2020 WL 1899791, at *9 (D.N.J. Apr. 17, 2020); Barbecho v. Decker, 2020 WL 1876328, at *1 (S.D.N.Y. Apr. 15, 2020); Savino v. Souza, No. CV 20-10617-WGY, 2020 WL 1703844, at *9 (D. Mass. Apr. 8, 2020). Other courts have concluded that habeas is the appropriate vehicle to seek immediate detention, but exercised discretion not to grant immediate release for reasons not relevant to the present case, such as where COVID-19 was not present in a facility. E.g., Awshana v. Adducci, No. 20-10699, 2020 WL 1808906, at *2 (E.D. Mich. Apr. 9, 2020) (seeking relief from detention due to COVID-10 “falls squarely within the prevue of section 2241”); Albino-Martinez v. Adducci, No. 2:20-CV-10893, 2020 WL 1872362, at *2 (E.D. Mich. Apr. 14, 2020) (“§ 2241 is the proper avenue for their claims,”); Habibi v. Barr, 2020 WL 1864642, at *2 (S.D. Cal. Apr. 14, 2020) (“[T]he Court does not find persuasive the Government’s position that the Petition is an improper vehicle for Petitioner’s claims.”); Ousman v. Decker, 2020 WL 1847704, at *9 (D.N.J. Apr. 13, 2020); Coreas v. Bounds, No. CV TDC-20-0780, 2020 WL 1663133, at *7 (D. Md. Apr. 3, 2020); Jones v. Wolf, No. 20-CV-361, 2020 WL 1643857, at *14 (W.D.N.Y. Apr. 2, 2020); Mays v. Dart, No. 20 C 2134, 2020 WL 1812381, at *5 (N.D. Ill. Apr. 9, 2020). The Department of Justice’s own manual also observes that prisoners properly challenge the execution of their sentences under § 2241 through, inter alia, “complaints about conditions of confinement.” DEP’T OF JUSTICE, JUSTICE MANUAL, Federal Habeas Corpus, 9-37.000, https://www.justice.gov/jm/jm-9-37000-federal-habeas-corpus (accessed Apr. 17, 2020). 17 Martin v. Overton, 391 F.3d 710 (6th Cir. 2004), which involved a “pro se petition for medical treatment,” is even further afield. See id. at 711–12. This Court need not agree that such a request is cognizable under § 2241, because Petitioners are not seeking a particular treatment, but rather action to ensure release of at least a subset of prisoners.
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Respondents assert that the Prison Litigation Reform Act of 1995 (“PLRA”), 18 U.S.C. § 3626, precludes this Court from granting relief. That is wrong. Section 3626 of the PLRA “does not include habeas corpus proceedings challenging the fact or duration of confinement in prison[.]” Id. § 3626(g)(2); see also Jones v. Bock, 549 U.S. 199, 200 (2007). Petitioners have, of course, brought habeas claims under § 2241 that “challeng[e] the fact or duration of [their] confinement.” See id. That a claim can also be brought outside of habeas does not mean that it cannot be brought in habeas. Adams, 644 F.3d at 482–83; Terrell, 564 F.3d at 448.
Furthermore, even if “[t]he authority to order release of prisoners as a remedy to cure a systemic violation of the Eighth Amendment is a power reserved to a three-judge district court” with regard to a vast state prison system under the PLRA, see Brown v. Plata, 563 U.S. 493, 50001 (2011), that does not mean that habeas does not allow a District Court to require a warden to move at least some medically-vulnerable prisoners at one federal prison to less restrictive custody to safeguard their rights, see Terrell, 564 F.3d at 447; cf. Ziglar v. Abbasi, 137 S. Ct. 1843, 1863 (2017) (noting “[a] successful habeas petition would have required [federal] officials to place [a putative class] in less-restrictive conditions immediately” without noting any PLRA problem).18
B. Alternative Authority Under § 1331 Respondents spend much of their Response arguing, incorrectly, that Petitioners’ claims are not cognizable under habeas. Habeas is but one of the routes that this Court has to grant appropriate relief. For example, Petitioners also have pointed 28 U.S.C. § 1331 as an alternate
18 In support of this argument, Respondents cite Money v. Pritzker, —F. Supp. 3d—, 2020 WL 1820660 (N.D. Ill. Apr. 10, 2020), but the breadth and posture of that case is starkly different from this one. The plaintiffs in that case were state prisoners from multiple prisons, suing in federal court on behalf of all Illinois prisoners to ask a federal judge to release at least a third of prisoners (12,000) across the entire Illinois prison system. 2020 WL 1820660, at *1. Here, the plaintiffs are federal prisoners from one prison that has become a COVID-19 hot-spot, suing in federal court—the only court available—to ask for steps to ensure targeted releases from that particular prison. Scope matters, as the Money court noted; after all, habeas petitions generally seek “release” from prison. Id. at *12.
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basis of jurisdiction for this Court to address Respondents’ ongoing Eighth Amendment violations. Petition ¶ 8, 81, 96. Section 1331 provides for federal district courts to have “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” And just like the Eighth Amendment provides an implied damages remedy under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), see Carlson v. Green, 446 U.S. 14, 17 (1980), prisoners can seek injunctive relief under the Eighth Amendment and § 1331 directly. See Abbasi, 137 S. Ct. at 1862 (noting that plaintiffs were “challeng[ing] large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners” and that, “[t]o address those kinds of decisions, detainees may seek injunctive relief”); see also Malam, 2020 WL 1672662, at *4. Indeed, it has been settled law for 200 years that federal courts have authority to enjoin unconstitutional acts by federal (and state) officials. See, e.g., Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689–91 (1949); Philadelphia Co. v. Stimson, 223 U.S. 605, 619–21 (1912); Ex parte Young, 209 U.S. 123 (1908); United States v. Lee, 106 U.S. 196, 219 (1882); Osborn v. Bank of the United States, 22 U.S. (9 Wheat) 738 (1824). Federal courts have not shied away from using that authority for the protection of prisoners. See Procunier v. Martinez, 416 U.S. 396, 405–06 (1974) (“When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights.”).19
19 To the extent that the PLRA applies to this alternative route to relief, this Court has numerous options to proceed without convening a three-judge court. See 18 U.S.C. § 3626(g)(2) (requiring a three-judge court only in the context of a “prisoner release order”); id. § 3626(a)(1)–(2) (allowing for prospective and preliminary injunctive relief); see also Money v. Pritzker, —F. Supp. 3d—, 2020 WL 1820660, at *12 (N.D. Ill. Apr. 10, 2020) (indicating that the PLRA may not be implicated when release orders do not diminish “a prison population in any meaningful way”). Should the Court conclude that PLRA applies but release is the appropriate remedy, the Court may, in light of its prior order, “request the convening of a three-judge court to determine whether a prisoner release order should be entered.” 18 U.S.C. § 3626(a)(3)(D).
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IV. A Categorical Release Process Is an Essential and Appropriate Measure The Medically-Vulnerable Subclass within Elkton faces a looming threat of serious illness
and death. Individuals with pre-existing heart disease, like Petitioners Bellamy and Nelson, “may suffer a heart attack or develop congestive heart failure,” and considerably higher case fatality rates (CFR) as a result.20 Where the overall CFR for COVID-19 ranges from 0.3–3.5%, see Goldenson Decl. ¶ 7, the death rate rises as high as 7–10% among those suffering from cardiovascular disease. See id. at ¶ 10.21 Individuals over the age of fifty, or those with certain medical conditions, also face an elevated CFR. Id. at ¶ 8. Many with pre-existing health conditions will “suffer[] tremendously leading up to their deaths.” Novisky Decl. at ¶ 8; see supra Section I.
Respondents’ laborious approach to prisoner release is a self-evident failure. Elkton continues to maintain a perfect storm of factors aggravating the disease’s spread: inability to practice social distancing, a concentration of immunocompromised or otherwise vulnerable people, and lack of basic sanitation. See Novisky Decl. at ¶ 8. By Respondents’ own admission, a mere six of the 2,400 prisoners at Elkton are being prepared for release. Such a pace is manifestly insufficient to allow social distancing among those who remain inside Elkton, and so does little or nothing to remedy the threat facing the Medically-Vulnerable Subclass.
Moreover, as Respondents cannot dispute, releasing the Medically-Vulnerable Subclass would directly advance the public health. As public-health experts note, “[d]ue 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.” Goldenson Decl. ¶ 23. Elkton’s outbreak
20 Dara K. Lee Lewis, MD, How Does Cardiovascular Disease Increase The Risk Of Severe Illness And Death From COVID-19?, HARVARD HEALTH BLOG (April 2, 2020), https://www.health.harvard.edu/blog/how-doescardiovascular-disease-increase-the-risk-of-severe-illness-and-death-from-covid-19-2020040219401. 21 See also Kevin J. Clerkin, MD et al., COVID-19 and Cardiovascular Disease, CIRCULATION (Mar. 21, 2020) https://www.ahajournals.org/doi/pdf/10.1161/ CIRCULATIONAHA.120.046941 (estimating a 10.5% death rate).
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will not remain in Elkton, but will “worsen infection rates in the broader community.” Id. at ¶ 32; see also Novisky Decl. ¶ 13 (similar). Releasing at-risk individuals to environments where they can practice social distancing will eliminate these sources and vectors of infection, thus reducing the danger that local ICUs will be overwhelmed. See Novisky Decl. ¶ 17; Goldenson Decl. ¶ 33; Petition ¶ 54 (collecting sources). Elkton’s surrounding hospitals have fewer approximately 80 ICU beds to serve two counties, and statewide shortages of both ventilators and beds are anticipated. Petition ¶ 54. Similar considerations have led detention systems around the world to release or transfer thousands of prisoners. See Goldenson Decl. ¶ 27; see also Malam v. Adducci, No. 20-10829, 2020 WL 1672662, at *13 (E.D. Mich. Apr. 5, 2020), as amended (Apr. 6, 2020) (“Petitioner’s release will protect public health.”); Castillo v. Barr, No. CV 20-00605 TJH, 2020 WL 1502864, at *6 (C.D. Cal. Mar. 27, 2020) (releasing a civil detainee “is absolutely in the public’s best interest . . . in preventing the further spread of the coronavirus”); Coronel v. Decker, No. 20-CV-2472 (AJN), 2020 WL 1487274, at *7 (S.D.N.Y. Mar. 27, 2020) (both petitioners and the public health and safety benefit from releasing immigration detainees).
Respondents cite only generalized risks to justify the continuation of their failed approach. They argue, primarily, that categorical release of prisoners presents a danger to public safety. Elkton is already a low-security facility, one specifically identified by the Attorney General as suitable for expanded and expedited transfers. See Petition ¶ 64 & n. 139, ¶ 68 & n. 146. In addition, 316 million Americans across 42 states—plus several more municipalities and territories—are under stay-at-home and travel restrictions.22 Any prisoners released, even aside from home-confinement restrictions and security measures, would be subject to those same orders,
22 Sarah Mervosh et al., See Which States and Cities Have Told Residents to Stay at Home, N.Y. TIMES (April 7, 2020), available at https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html.
14

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in addition to severe sanctions for violating terms of home confinement, furlough, or other forms of release. And indeed, having watched fellow prisoners at Elkton grow sick and die of COVID19, each prisoner is well aware that to refrain from social distancing is to endanger his own life.
Respondents’ unspecific and speculative fears cannot outweigh the tangible and immediate threat to prisoners’ lives—or for that matter, the threat to public health that will only be exacerbated if FCI Elkton continues to be a COVID-19 breeding ground. See Goldenson Decl. ¶¶ 23, 32–33; Novisky Decl. ¶ 17; cf. Thakker v. Doll, No. 1:20-cv-480, 2020 WL 1671563, at *9 (M.D. Pa. Mar. 31, 2020) (balance of equities favored release of detainees in light of COVID-19, in part because failure to appear already carries grave consequences and travel is restricted). Core constitutional protections—and the public health interest—should not be sacrificed for speculative gain. See G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994) (observing that “it is always in the public interest to prevent the violation of a party’s constitutional rights” and noting that the burden on the state’s interest was “unclear”).
V. Class-Wide Adjudication Is Appropriate and Necessary For similar reasons, proceeding on a class-wide basis, rather than via individual petitions,
is appropriate. Time is of the essence. With regard to commonality, Fed. R. Civ. P. 23(a)(2), Petitioners’ claims do “depend upon a common contention … of such a nature that it is capable of classwide resolution,” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011): the question whether Respondents’ failure adequately to protect prisoners at Elkton in violation of the Eighth Amendment is shared by all members the class. Cf. Farmer, 511 U.S. at 843–44 (prison officials cannot “escape liability for deliberate indifference” simply because they cannot “guess beforehand precisely who” might be harmed); Greene, 361 F.3d at 294 (similar). Further, under Fed. R. Civ. P. 23(a)(3), because Petitioners’ claim “arises from the same . . . practice or course of conduct that
15

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gives rise to the claims of other class members” and is “based on the same legal theory,” Petitioners satisfy typicality. See Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007) (citation omitted). Last, contrary to Respondents’ misguided assertions, Petitioners satisfy adequacy. Fed. R. Civ. P. 23(a)(4). They are “part of the class and possess the same interest and suffer the injury as the class members.” Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 625–26 (1997) (quotation marks omitted); see Part II, supra. All prisoners in Elkton face a common harm, caused by Respondents’ deliberate indifference, and all have a common interest in seeing that harm remedied.

Dated: April 18, 2020

Respectfully submitted,

/s/ David J. Carey

David J. Carey

(0088787)

ACLU of Ohio Foundation

1108 City Park Avenue, Ste. 203

Columbus, OH 43206

Phone: (614) 586-1972

Fax: (614) 586-1974

dcarey@acluohio.org

Joseph Mead

(0091903)

Freda J. Levenson (0045916)

ACLU of Ohio Foundation

4506 Chester Avenue

Cleveland, OH 44102

Phone: (614) 586-1972

Fax: (614) 586-1974

attyjmead@gmail.com

flevenson@acluohio.org

Counsel for Petitioners

David A. Singleton

(0074556)

Mark A. Vander Laan

(0013297)

Michael L. Zuckerman

(0097194)

Ohio Justice & Policy Center

915 East Ninth Street, Suite 601

Cincinnati, OH 45202

Phone: (513) 421-1108

mvanderlaan@ohiojpc.org

dsingleton@ohiojpc.org

mzuckerman@ohiojpc.org

16

Case: 4:20-cv-00794-JG Doc #: 18 Filed: 04/18/20 17 of 17. PageID #: 261 CERTIFICATE OF SERVICE
I hereby certify that on April 18, 2020, the foregoing was filed with the Court’s CM/ECF system. Notice of this filing will be sent by operation of that system to all counsel of record.
/s/ David J. Carey David J. Carey (0088787)
17

 
 Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 1 of 21. PageID #: 352

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

:

CRAIG WILSON, et al.,

:

:

Petitioners,

:

:

vs.

:

:

MARK WILLIAMS, et al.,

:

:

Respondents.

:

:

CASE NO. 4:20-cv-00794
ORDER [Resolving Doc. 1]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: On April 13, 2020, Petitioners, inmates at Elkton Federal Correctional Institution,
brought this emergency habeas action seeking release from Elkton due to the spread of COVID-19 within the prison.1 Petitioners claim to represent both a class of all Elkton inmates as well as a subclass of medically vulnerable inmates.2 Respondents opposed.3
On April 17, 2020 the Court held a hearing on the matter. On April 18, 2020, both parties filed additional materials in response to the Court’s hearing inquiries.4
For the foregoing reasons, the Petitioners’ motion for relief is GRANTED IN PART and DENIED IN PART.
I. COVID-19 at Elkton State government and the media have well documented the spread of COVID-19
and the efforts to contain the virus and limit its impact. The virus’s highly-infectious nature and the risks it poses, especially to medically vulnerable populations, has led to the

1 Doc. 1. 2 Id. 3 Doc. 10. 4 Docs. 18, 19.

Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 2 of 21. PageID #: 353 Case No. 4:20-cv-00794 Gwin, J.
implementation of unprecedented measures throughout the country and the world.
While research concerning the virus is ongoing, for some time health officials have
known and reported that asymptomatic persons spread the virus.5 A large percentage of
coronavirus-infected citizens are asymptomatic.6 These asymptomatic persons show no, or
limited, symptoms. Yet, they spread the virus.
Due to this threat from infected but asymptomatic individuals, testing, tracing and
treatment became the first mitigation responsibilities. As the virus has become more
widespread, state government has directed citizens to reduce the spread not only through
careful hygiene practices, but also through social distancing and isolation.
For inmates in our country’s prisons the virus is no less a threat, but distancing
measures are only minimally available.
Defendants Elkton officials have implemented measures to lessen the COVID-19
threat. Elkton segregates new inmates for fourteen days.7 Elkton officials evaluate existing
inmates with virus symptoms to determine whether isolation or testing is appropriate.8
They check inmate and staff temperatures.9 Elkton officials segregate inmates for fourteen
days before allowing the inmates to leave Elkton.10
But despite their efforts, the Elkton officials fight a losing battle. A losing battle for
5 CDC, Coronavirus Disease 2019: Recommendations for Cloth Face Covers, https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html (last visited Apr. 20, 2020) (citing Yan Bai, Lingsheng Yao, and Tao Wei, et al., Presumed Asymptomatic Carrier Transmission of COVID-19, JAMA (Feb. 21, 2020), https://jamanetwork.com/journals/jama/fullarticle/2762028).
6 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-asymptomatic-transmission.html.
7 Doc. 10 at 8. 8 Id. at 9. 9 Id. at 9-10. 10 Id. at 27.
-2-

Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 3 of 21. PageID #: 354 Case No. 4:20-cv-00794 Gwin, J.
staff. A losing battle for inmates.
The parties to the present action dispute some of the factual details of the current
conditions within Elkton. Even in light of these disputes, the prison’s “dorm-style” design guarantees that inmates remain in close proximity to one another.11 With the shockingly
limited available testing and the inability to distance inmates, COVID-19 is going to
continue to spread, not only among the inmate population, but also among the staff.
According to Respondents, Elkton has had 59 confirmed cases of COVID-19 among inmates.12 The number of infected staff members, 46, is almost as high.13 The number has
risen even in the days since the initiation of this lawsuit and will continue to do so absent
intervention.
Notably, it is unlikely that these figures represent the actual number of cases at the
institution, given the paltry number of tests the federal government has made available for
the testing of Elkton’s inmates.
To date, Elkton has received only 50 COVID-19 swab tests and one Abbott Rapid testing machine with 25 rapid tests.14 Most swab tests have already been used. Because
the Department of Justice has given BOP so few tests, Elkton medical staff has needed to
triage test usage.
Respondents represent that “test swabs are back-ordered until July or August,” but
11 Doc. 10 at 7. 12 Doc. 19 at 2. 13 The official numbers on the Bureau of Prison’s website conflict with the numbers reported by Respondents. The BOP’s website reports 52 confirmed cases among inmates, 46 cases among staff. Contrarily, Respondents report 59 cases among inmates and 34 among staff. Compare Federal Bureau of Prisons, COVID-19 Cases, https://www.bop.gov/coronavirus/ (last visited April 22, 2020), with Docs. 10 at 10, 19 at 2. 14 Doc. 19 at 1-2.
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Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 4 of 21. PageID #: 355 Case No. 4:20-cv-00794 Gwin, J. they “believe that they will receive an additional 25 rapid test[s]” each week.15 These
additional tests are all but useless considering Elkton’s 2,400 inmates.
Recent experience at another Ohio correctional facility, Marion Correctional
Institution, run by the Ohio Department of Rehabilitation and Corrections, shows how
quickly and insidiously the virus spreads among a tightly quartered prison population.
Both Elkton and Marion are low security prisons and house approximately 2,500 inmates.16
The State of Ohio has tested its prisoners en masse for COVID-19. At Marion 1,950 inmates tested positive for COVID-19.17 This number includes large numbers of inmates who were asymptomatic and would otherwise not have been tested.18
Everything suggests that if BOP tested as ODRC commendably has, results would
show that the virus has become equally widespread within Elkton. However, without
testing there is no way to know how many Elkton inmates have the virus.
The Ohio prisons virus response undercuts BOP’s ability to argue that testing is
either unavailable or is impossible. Why has the Justice Department allocated Elkton an
entirely insignificant number of tests while Ohio has been able to pull off mass testing
across not only Marion, but at multiple institutions?
While the COVID-19 tests inadequacy is one area of grave concern, testing is only
one part of the multi-faceted approach institutions like Elkton must take to reduce the
15 Id. 16 Ohio Department of Rehabilitation & Correction, Marion Correctional Institution, https://drc.ohio.gov/mci (last visited Apr. 22, 2020). 17 Ohio Department of Rehabilitation & Correction, COVID-19 Inmate Testing Updated 4/20/2020, https://drc.ohio.gov/Portals/0/DRC%20COVID-19%20Information%2004-20-2020%20%201304.pdf (last visited Apr. 20, 2020). 18 Id.
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Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 5 of 21. PageID #: 356 Case No. 4:20-cv-00794 Gwin, J.
virus’s spread.
Respondents report that the prison, in accordance with BOP guidance, has changed its operations to try to limit the virus’s spread.19 For instance, the prison has implemented health screening measures for various groups of inmates, staff, and civilians.20 These are all
good efforts.
However, once the virus is inside the prison, as it already is at Elkton, screening
measures can only be so effective. And screening will only help to identify individuals
with active symptoms, not those asymptomatic individuals who can nevertheless spread
the virus undetected.
Respondents have also implemented “modified operations” to somewhat reduce
inmate contact with each other. Elkton allows inmate housing units of 150 to pick up pre-
packaged meals, receive dispensed medications, and visit the commissary with only a single housing unit moving around the institution at one time.21 Better practices, but not
enough.
Respondents attempt to liken each housing unit to a “family unit.” They say that
each unit is akin to unincarcerated community members who live with roommates or family.22 They say that each housing unit is separate from other units, visitors, and sick inmates.23
But each single housing unit includes about 150 people.24 Respondents ignore that
19 Doc. 10 at 7-11. 20 Id. at 8-9. 21 Doc. 10 at 21. 22 Id. at 21-22. 23 Id. 24 Id.
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Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 6 of 21. PageID #: 357 Case No. 4:20-cv-00794 Gwin, J. some unit inmates nonetheless circulate throughout the prison as “essential” workers. Because some untested inmates circulate throughout Elkton, the housing units are not truly isolated. And with 150 “family members,” there are significant opportunities to increase the risk of spread. Within each housing unit there seems to be little chance of obstructing the spread of the virus.
Respondents say that soap and disinfectant are readily available, a fact that Petitioners dispute.25 However, these supplies can only be so useful in an environment where the inmates are constantly in close proximity to one another. Likewise, the education about hygiene and social distancing Respondents tout is only effective if the inmates have the supplies and physical space to put such knowledge into practice.26
Furthermore, while the deteriorating health conditions at Elkton pose a danger for each of the 2,400 men who are incarcerated at Elkton, the institution’s inability to stop the spread of the virus among the inmates in its care poses an even greater risk for inmates whose medical conditions put them at higher risk of death if they contract the virus.27
Plus, while this litigation concerns Elkton’s conditions for its inmates, the same conditions endanger prison staff, who must continue to go to work despite the virus’s spread throughout the facility. And the Elkton spread endangers the staff’s families who come into contact with Elkton’s undoubtedly exposed staff.
In light of these realities, Petitioners, inmates at Elkton, bring the present action. They sue on behalf of themselves and on behalf a class of all current and future Elkton
25 Compare Doc. 10 at 27, with Doc. 1 at 17. 26 Doc. 10 at 11-12. 27 See generally Briefs for Disability Rights Ohio and Public Health and Human Rights Experts as Amici Curiae Supporting Petitioners, Docs. 8-1 and 14-1.
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Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 7 of 21. PageID #: 358
Case No. 4:20-cv-00794 Gwin, J.
inmates.28
They bring additional claims on behalf of the “Medically-Vulnerable Subclass,”
defined as:
[A]ll current and future persons incarcerated at Elkton over the age of 50, as well as all current and future persons incarcerated at Elkton of any age who experience: chronic lung disease or moderate to severe asthma; serious heart conditions; conditions that can cause a person to be immunocompromised, including cancer treatment, smoking, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS or prolonged use of corticosteroids and other immune weakening medications; severe obesity (defined as a body mass index of 40 or higher); diabetes; chronic kidney disease or undergoing dialysis; or liver disease.29
Petitioners seek certification of the classes. In addition, they request:
a temporary restraining order, preliminary injunction, permanent injunction, and/or writ of habeas corpus requiring Respondents to identify within six (6) hours of the Court’s order, and submit to the Court a list of, all Medically-Vulnerable Subclass Members, and release all such persons within twenty-four (24) hours, with such release to include supports to ensure social distancing and other expertrecommended measures to prevent the spread of coronavirus.30
Petitioners define release as “discharge of incarcerated persons from the physical
confines of Elkton, not necessarily release from custody.”31 Petitioners suggest that
“[r]elease options may include, but are not limited to: release to parole or community
supervision; transfer furlough (as to another facility, hospital, or halfway house); or non-
transfer furlough, which could entail a release person’s eventual return to Elkton once the
pandemic is over and the viral health threat abated.”32
28 Doc. 1 at 29. 29 Id. 30 Doc. 1 at 36. 31 Id. at 2 n. 2. 32 Id. at 2.
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Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 8 of 21. PageID #: 359 Case No. 4:20-cv-00794 Gwin, J.
In other words, Petitioners seek an “enlargement.” Enlargement is not release, although some courts refer to it using the terms release or bail.33 When a court exercises
its power to “enlarge” the custody of a defendant pending the outcome of a habeas action,
the BOP maintains custody over the defendant, but the place of custody is altered by the court.34
After the release of the subclass, Petitioners request “a plan, to be immediately
submitted to the Court and overseen by a qualified public health expert” that provides for
mitigation efforts in line with CDC guidelines and a housing and/or public support plan for released inmates.35 They also seek the release of Class Members so that the remaining
inmates can follow CDC guidance to maintain six feet of space between them while in the prison.36
Respondents respond that Petitioners cannot challenge the conditions inside the
prison through a habeas corpus action and that this Court and the BOP do not have the authority to grant early release.37
II. Discussion District courts have inherent authority to grant enlargement to a defendant pending
a ruling on the merits of that defendant’s habeas petition.38 The Court finds that the
exceptional circumstances at Elkton and the Petitioners’ substantial claims, that are likely to
33 See Declaration of Professor Judith Resnik Regarding Provisional Remedies for Detained Individuals at 8, Money et al. v. Jeffreys, No. 1:20-cv-02094 (N.D. Ill. April 4, 2020), ECF No. 24-3.
34 Id. 35 Doc. 1 at 36-37. 36 Id. at 37. 37 Doc. 10 at 15-19. 38 See, e.g., Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001); Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990).
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Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 9 of 21. PageID #: 360 Case No. 4:20-cv-00794 Gwin, J. succeed at the merits stage, necessitate the exercise of that authority and that such relief is proper for members of the subclass defined infra.39
However, given the nature of the present litigation as class action habeas proceeding, the Court is unable to determine the specific type of enlargement most suitable for each subclass member. In light of this difficulty, the Court will grant a preliminary injunction, in aid of its authority to grant enlargements, ordering Respondents to determine the appropriate means of transferring medically vulnerable subclass members out of Elkton. Pursuant to the below analysis, the Court finds that Petitioners have met the standard for a preliminary injunction.
A. Jurisdiction Petitioners argue that Elkton’s inability, even if it tried, to adequately protect the
inmates from the risks posed by coronavirus subjects the prisoners to substantial risk of harm in violation of their Eighth Amendment rights. Petitioners say that their claim is cognizable under 28 U.S.C. § 2241 as a habeas action because they are challenging the execution of their sentences, rather than the validity of the convictions themselves.40 Petitioners argue that they are not seeking to challenge a specific aspect of their confinement, but the confinement itself.41
Respondents argue that habeas relief is not the proper vehicle to challenge conditions of confinement.42
Courts have attempted to clarify the types of claims appropriate for habeas relief and
39 Dotson, 900 F.2d at 79. 40 Doc. 1 at 34-35. 41 Doc. 18 at 8-9. 42 Doc. 10 at 15-16.
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Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 10 of 21. PageID #: 361 Case No. 4:20-cv-00794 Gwin, J.
distinguish those claims from civil rights claims more appropriately resolved under § 1983.
The general result has been that challenges to the fact or duration of confinement that seek
release sound in habeas whereas actions challenging the conditions of confinement raise
concerns properly addressed under § 1983.43
But, these seemingly bright line rules are difficult to apply in practice. The near
impossibility in some cases of drawing such distinctions has become even more obvious
with COVID-19. Whereas many medical needs claims might appropriately be addressed
through § 1983 litigation, claims concerning COVID-19 are not so easily classified as §
1983 claims.
Inmates challenging BOP’s COVID-19 response challenge the dangerous conditions
within the prison created by the virus. However, the only truly effective remedy to stop the
spread is to separate individuals—a measure that in our nation’s densely populated prisons
is typically impossible without the release of a portion of the population. So, such actions
ultimately seek to challenge the fact or duration of confinement as well. 44
In this case, the Petitioners frame their action as a § 2241 habeas claim.45 The Sixth
Circuit, echoing the distinctions recognized by other courts, has found that “§ 2241 is not
43 See Muhammad v. Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus . . . requests for relief turning on circumstances of confinement may be presented in a § 1983 action.”); Heck v. Humphrey, 512 U.S. 477 (1994); Preiser v. Rodriguez, 411 U.S. 475 (1978).
44 Mays v. Dart, No. 20 C 2134, 2020 WL 1812381, at *6 (N.D. Ill. Apr. 9, 2020). Two federal district courts have noted without deciding that claims such as those brought by Petitioners might be cognizable as habeas claims because the relief sought would affect the duration of confinement or because the conditions complained of could not be eliminated without releasing the inmates from detention. See A.S.M. v. Donahue, No. 7:20-CV-62, 2020 WL 1847158, at *1 (M.D. Ga. Apr. 10, 2020); Mays, 2020 WL 1812381 at *6.
45 Whereas other petitioners bringing COVID-19-related challenges have pleaded both habeas and § 1983 claims in the alternative, Petitioners do not do so here.
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Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 11 of 21. PageID #: 362 Case No. 4:20-cv-00794 Gwin, J. the proper vehicle for a prisoner to challenge conditions of confinement.”46 However, the Sixth Circuit has also held “§ 2241 is appropriate for claims challenging the execution or manner in which the sentence is served.”47 Petitioners’ action evades easy classification. Part of the difficulty rests in Petitioners’ differing relief requests for the class and subclass. For the significantly vulnerable subclass the Petitioners seek immediate release, arguing that for the medically vulnerable inmates continued imprisonment at Elkton is unconstitutional given the COVID19 outbreak. Notably, these Petitioners do not seek a commutation of their sentences, but rather to serve their sentences in home confinement, parole, or in half-way houses at least until the risk of the virus has abated. This claim is closer to a challenge to the manner in which the sentence is served and is therefore cognizable under 28 U.S.C. § 2241. For the remainder of the less-obviously-vulnerable class the challenges sound more as a confinement conditions claim. Petitioners seek the oversight of a public health expert to mitigate the risk COVID-19 poses to class members that remain incarcerated at Elkton. Because the not medically vulnerable Elkton inmates seek an alteration to the confinement conditions, the claims are more like § 1983 claims. Because Petitioners have brought their claims as a habeas petition, the Court may only properly address those claims suitable for habeas relief. The remainder of this order addresses the habeas claims of the vulnerable subclass alone.
46 Luedtke v. Berkebile, 704 F.3d 465, 465-66 (6th Cir. 2013) (citing two additional Sixth Circuit cases that found the same).
47 United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001).
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Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 12 of 21. PageID #: 363 Case No. 4:20-cv-00794 Gwin, J. B. Class Certification Given the emergency nature of this proceeding, a class certification determination has not yet taken place. That does not, however, preclude Petitioners from obtaining classwide interim relief at this stage. “[T]here is nothing improper about a preliminary injunction preceding a ruling on class certification.”48 This Court may grant preliminary injunctive relief to a conditional class. As a preliminary matter, the Court finds that the Petitioners’ subclass definition is likely too broad. Although the risk of complications from COVID-19 is serious for all inmates, the Court limits the subclass to those identified by the CDC as being at higher risk.49 This includes all Elkton inmates 65 years or older and those with documented, preexisting medical conditions, including heart, lung, kidney, and liver conditions, diabetes, conditions causing a person to be immunocompromised (including, but not limited to cancer treatment, transplants, HIV or AIDS, or the use of immune weakening medications), and severe obesity (body mass index of 40 or higher).50 The subclass definition excludes those whose only risk factor is a history of smoking, given the difficulty of documenting such occurrence and identifying those individuals through BOP records alone. Under Federal Rule of Civil Procedure 23(a), a class must meet the requirements of numerosity, commonality, typicality, and adequate representation. Additionally, one of Rule 23(b)’s requirements must also be satisfied.
48 Gooch v. Life Investors Ins. Co. of America, 672 F.3d 402, 433 (6th Cir. 2012). 49 The Court has “broad discretion to modify class definitions.” Ball v. Kasich, 307 F. Supp.3d 701, 718 (S.D. Ohio Mar. 30, 2018). 50 CDC, Coronavirus Disease 2019: People Who Are At Higher Risk, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html (last visited April 20, 2020).
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Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 13 of 21. PageID #: 364 Case No. 4:20-cv-00794 Gwin, J.
Petitioners have made a sufficient showing at this stage to satisfy the Rule 23(a)
factors for the above-defined subclass. Numerosity: The subclass consists of hundreds of Elkton inmates.51
Commonality: “Commonality requires [Petitioners] to demonstrate that the class
members have suffered the same injury.”52 “Their claims must depend upon a common
contention ... of such a nature that it is capable of classwide resolution—which means that
determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”53 This inquiry focuses on whether a class action will generate common answers that are likely to drive resolution of the lawsuit.54
In this case, all subclass members have been subjected to dangerous conditions in
which they run a high risk of exposure to the deadly COVID-19 virus. The inquiry driving
the litigation is whether the BOP’s failure to create safe conditions for inmates with
especially vulnerable health has violated those inmates’ rights. Answering this question
will determine whether the inmates are entitled to movement from Elkton.
Respondents argue that the subclass lacks commonality given the class’s
combination of “inmates that have different crimes, sentences, outdates, disciplinary
histories, ages, medical histories, proximities to infected inmates, availability of a home
landing spot, likelihoods of transmitting the virus to someone at home detention,
51 In accordance with the Court’s order, dated April 17, 2020, Respondents submitted for in camera review, lists of Elkton inmates with certain medical conditions. Although the Court cannot say with certainty the exact number of inmates who comprise the subclass, it is satisfied that the number is in the hundreds.
52 Ball, 307 F. Supp.3d at 719 (quoting Wal–Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50 (2011)).
53 In re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig., 722 F.3d 838, 852-53 (6th Cir. 2013) (citing Dukes, 564 U.S. at 350).
54 Id.
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Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 14 of 21. PageID #: 365 Case No. 4:20-cv-00794 Gwin, J. likelihoods of violation or recidivism, and dangers to the community.”55
However, the Petitioners seek varied relief that allows the BOP to make
individualized determination as to where each subclass member should be placed.
Petitioners do not seek to open the prison gates to allow its inmates to run free. In fact,
Petitioners concede that “release” might look different for different inmates. The
Petitioners acknowledge that while some inmates might be placed in home confinement others should be furloughed and that in all instances such “release” could be temporary.56
The motivating question in the litigation is whether the subclass members’ rights are
being violated by the deteriorating conditions at Elkton. As such, the subclass can satisfy
commonality.
Typicality: “Typicality is met if the class members’ claims are ‘fairly encompassed by the named plaintiffs’ claims.’”57 Three of the named Petitioners have documented
medical issues that are commiserate with those suffered by the subclass. The fourth named
Petitioner, Maximino Nieves, could represent that class, but not the subclass, as he attests that he doesn’t have a serious medical history.58 Excepting Nieves, nothing suggests that
the remaining three Petitioners’ claims are distinct from those of the remainder of the subclass. Typicality is satisfied.59
Adequate Representation: The Court is satisfied that counsel is competent to
represent the class. Additionally, the interests of the named Petitioners do not conflict with
55 Doc. 10 at 36-37. 56 Doc. 1 at 2 n. 2. 57 In re Whirlpool, 722 F.3d at 852 (citation omitted). 58 Doc. 1-8 at 2. 59 Respondents argue that the named Petitioners defy typicality because they are all ineligible for home confinement. This contention ignores the fact that other means of removal from Elkton might be available to the named Petitioners other than home confinement, such as transfer to another facility.
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Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 15 of 21. PageID #: 366 Case No. 4:20-cv-00794 Gwin, J. those of the other subclass members. Having satisfied the Rule 23(a) requirements, the subclass must also demonstrate that it meets one of the Rule 23(b) requirements. Petitioners argue that “Respondents have acted on grounds generally applicable to all proposed Class members, and this action seeks declaratory and injunctive relief.”60 Indeed, Respondents’ failure to protect the inmates from the spreading virus applies to the entirety of the subclass generally and injunctive relief is appropriate as to the subclass. Rule 23(b)(2) is therefore satisfied. For the purposes of the preliminary injunction inquiry, the Court finds that the subclass as defined in this order likely meets the requirements for class certification. C. Injunctive Relief “Four factors guide a district court’s decision to issue a preliminary injunction: whether the plaintiffs will likely win down the road, whether an injunction would prevent the plaintiffs from being irreparably harmed, whether an injunction would harm others, and how the injunction would impact the public interest.”61 The Court considers each in turn. 1. Likely Success Petitioners’ claims are predicated on a violation of their Eighth Amendment rights which protects them from “cruel and unusual punishments.” In order to succeed on an Eighth Amendment claim, Petitioners must satisfy both an objective and subjective component.62 “The objective component of the test requires the existence of a ‘sufficiently serious’
60 Doc. 1 at 31. 61 McNeil v. Community Prob. Servs., LLC, 945 F.3d 991, 994 (6th Cir. 2019). 62 Miller v. Calhoun Cty., 408 F.3d 803, 812 (6th Cir. 2005).
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Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 16 of 21. PageID #: 367 Case No. 4:20-cv-00794 Gwin, J. medical need.”63 Petitioners obviously satisfy this component. At this moment a deadly virus is spreading amongst Elkton’s population and staff. For infected inmates, the virus can lead to pneumonia. In the worse pneumonia cases, COVID-19 victims suffer diminishing oxygen absorption, with resulting organ failure leading to death. Victims choke to death. While not every inmate who contracts the virus will die, the subclass members are at a much greater risk of doing so. They have a very serious medical need to be protected from the virus. The subjective component requires that Respondents have acted with deliberate indifference, “a degree of culpability greater than mere negligence, but less than ‘acts or omissions for the very purpose of causing harm or with knowledge that harm will result.’”64 Petitioners satisfy this standard. While Respondents offer certain prison-practice changes to show they know COVID-19 risks and have sought to reduce those risks, the Court still finds that, at this preliminary stage of the litigation, the Petitioners have sufficiently met the threshold for showing that Respondents have been deliberately indifferent. One only need look at Elkton’s testing debacle for one example of this deliberate indifference. Additionally, Elkton has altogether failed to separate its inmates at least six feet apart, despite clear CDC guidance for some time that such measures are necessary to stop the spread and save lives. Having met both prongs of the Eighth Amendment analysis, Petitioners have demonstrated a likelihood of success on the merits.
63 Id. (citing Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004)). 64 Id. at 813 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
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Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 17 of 21. PageID #: 368 Case No. 4:20-cv-00794 Gwin, J.
2. Irreparable Harm Respondents argue that Petitioners have not shown that release will reduce the risk
of exposure to COVID-19. But the district court cases Respondents use that have found
that release would not lessen the risk to a defendant’s health did not deal specifically with
Elkton confinement.65 Of the reported inmate deaths in nation-wide BOP custody, 6 out of
23, more than 1 in 4, has occurred at Elkton, making it a hotspot for the virus and certainly
more dangerous than other facilities.66
Respondents also argue that the Petitioners’ harm is speculative. It is true that some
subclass members may not die if they contract the virus. However, it is more than mere
speculation that the virus will continue to spread and pose a danger to inmates if BOP does
not increase its efforts to stop the spread.67 Petitioners have therefore shown a risk for
irreparable harm.
3. Harm to Others Respondents argue that the release of inmates from Elkton “would cause substantial
damage to others” because there is no assurance that the inmates can care for themselves
upon release.68 They argue the inmates might be left without access to food, shelter, or
medical care.69
As stated previously, Petitioners do not ask this Court to throw open the gates to the
65 United States v. Taylor, No. 5:19-CR-192-KKC-MAS, 2020 WL 1501997, at *5 (E.D. Ky. Mar. 26, 2020) (noting that the Court believed that the practices at “any facility” were sufficient to protect from COVID-19); United States v. Steward, 2020 WL 1468005, at *1 (S.D.N.Y. Mar. 26, 2020) (denying release from Metropolitan Correctional Center).
66 Federal Bureau of Prisons, COVID-19 Cases, https://www.bop.gov/coronavirus/ (last visited April 22, 2020).
67 See Doc. 14-1 at 5-10 (describing the inadequacy of the Elkton measures and the risk of spread within the prison environment).
68 Doc. 10 at 3. 69 Id. at 3, 33-34.
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Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 18 of 21. PageID #: 369 Case No. 4:20-cv-00794 Gwin, J.
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. And as Respondents
acknowledge, it is BOP’s current policy to quarantine all inmates that are transferred from Elkton for 14 days before transfer.70 The continued implementation of this policy reduces
the risk that an inmate with COVID-19 will carry the virus with him outside of the prison.
Furthermore, 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.
4. Public Interest Respondents argue that the public faces a grave danger if inmates are to be released
en masse onto the streets. They say:
Our over-burdened police and safety services should not be forced to deal with the indiscriminate release of thousands of prisoners on 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.71
First, Respondents might as well be arguing against the release of any inmate, at any
time, for any reason, because even in the best of circumstances the country’s criminal
justice system has no way, short of life imprisonment, of ensuring former prisoners do not
recidivate. The COVID-19 pandemic has not suddenly raised this issue.

70 Doc. 10-2 at 7. 71 Doc. 10 at 41-42.

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Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 19 of 21. PageID #: 370 Case No. 4:20-cv-00794 Gwin, J. Third, the danger of recidivism reduces with age, especially after age 40.72 The subclass inmates are older and by definition, the vulnerable sub-class inmates suffer serious medical conditions. Second, it bears repeating that the Petitioners are not asking the Court to dump inmates out into the streets. No one’s interest would be served in doing so. The Court is confident that the transfer of prisoners from Elkton to other means of confinement could accomplish the goal of protecting Elkton’s vulnerable population while also protecting public safety. Third, six Elkton inmates have already died. Likely, they died after agonizing days under intensive care, most probably with ventilators. The BOP absorbs the high cost of this treatment—costs that are likely multiples of what it would have cost to test each Elkton inmate and guard. Finally, “it is always in the public interest to prevent the violation of a party’s constitutional rights.”73 D. The Prison Litigation Reform Act Respondents argue that the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626, bars this Court from granting the inmates’ release.74 This is not so. The PLRA does not extend to “habeas corpus proceedings challenging the fact or duration of confinement in prison.”75 Because the Court has determined that the subclass’s claims are
72 See generally United States Sentencing Commission, The Effects of Aging on Recidivism Among Federal Offenders, (Dec. 2017), https://www.ussc.gov/research/research-reports/effects-aging-recidivism-among-federal-offenders.
73 G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994). 74 Doc. 10 at 16. 75 18 U.S.C. § 3626(g)(2).
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Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 20 of 21. PageID #: 371 Case No. 4:20-cv-00794 Gwin, J. properly before the Court as a habeas action, this prohibition does not apply.76 Additionally, Respondents argue that a release order may only be entered by a three-judge court and that the court must find that “crowding is the primary cause of the violation of a Federal right” and “no other relief will remedy the violation.”77 As stated previously the PLRA does not bar this habeas proceeding. However, even if it did, the Court is not ordering the release of the prisoners. Instead, the inmates will remain in BOP custody, but the conditions of their confinement will be enlarged. III. Conclusion The Court GRANTS IN PART and DENIES IN PART Petitioners’ motion for relief. The Court orders the Respondents to identify, within one (1) day all members of the subclass as defined in this Order. Respondents must identify in the list each subclass member’s sentencing court and the case number of their underlying criminal conviction. Following identification, the Court orders Respondents to evaluate each subclass member’s eligibility for transfer out of Elkton through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or nontransfer furlough within two (2) weeks. In undertaking this evaluation, Respondents will prioritize the review by the medical threat level. For example, older inmates with heart, pulmonary, diabetes or immunity risks should receive review priority over subclass members who are younger. Subclass members who are ineligible for compassionate release, home release, or
76 See Colton v. Ashcroft, 299 F. Supp. 2d 681, (E.D. Ky. 2004) (“28 U.S.C. §§ 2241, 2254, and 2255 filings have been deemed not covered by the PLRA.”).
77 18 U.S.C. § 3626(a)(3)(E).
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Case: 4:20-cv-00794-JG Doc #: 22 Filed: 04/22/20 21 of 21. PageID #: 372 Case No. 4:20-cv-00794 Gwin, J. parole or community supervision must be transferred to another BOP facility where appropriate measures, such as testing and single-cell placement, or social distancing, may be accomplished. In transferring subclass members, Respondents must continue to comply with BOP policy of quarantining inmates for 14 days prior to transfer out of Elkton. Any subclass members transferred out of Elkton may not be returned to the facility until the threat of the virus is abated or until a vaccine is available and Elkton obtains sufficient vaccine supplies to vaccinate its population, whichever occurs first. IT IS SO ORDERED.

Dated: April 22, 2020

s/

James S. Gwin

JAMES S. GWIN

UNITED STATES DISTRICT JUDGE

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 Case: 4:20-cv-00794-JG Doc #: 23 Filed: 04/22/20 1 of 16. PageID #: 373

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

CRAIG WILSON, ERIC BELLAMY, KENDAL NELSON, and MAXIMINO NIEVES, on behalf of themselves and those similarly situated,

Petitioners,

v.

Case No. 4:20-cv-794

MARK WILLIAMS, warden of Elkton Federal Correctional Institutions; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities,

Judge James S. Gwin

Respondents.

BRIEF OF AMICI CURIAE PUBLIC HEALTH AND HUMAN RIGHTS EXPERTS

Case: 4:20-cv-00794-JG Doc #: 23 Filed: 04/22/20 2 of 16. PageID #: 374 TABLE OF CONTENTS Page
Table of Authorities ........................................................................................................................ ii I. Introduction..........................................................................................................................1 II. Statement of Interest of Amici Curiae .................................................................................2 III. Factual Background .............................................................................................................3 IV. Argument .............................................................................................................................3
A. The COVID-19 Pandemic Requires Proactive Social Distancing Measures...........3 B. Jails and Prisons Are at a Heightened Risk for the Spread of COVID-19 ..............5 C. Efforts to Combat COVID-19 at Elkton Are Inadequate.........................................9 V. Conclusion .........................................................................................................................10
i

Case: 4:20-cv-00794-JG Doc #: 23 Filed: 04/22/20 3 of 16. PageID #: 375

TABLE OF AUTHORITIES

AUTHORITIES

Page(s)

Alexis C. Madrigal & Robinson Meyer, How the Coronavirus Became an American Catastrophe, The Atlantic (Mar. 21, 2020), https://www.theatlantic.com/health/archive/2020/03/how-many-americansare-sick-lost-february/608521/ ...................................................................................................5

Andrew Jacobs, et al., ‘At War With No Ammo’: Doctors Say Shortage of Protective Gear Is Dire, N.Y. Times (Mar. 19, 2020) https://www.nytimes.com/2020/03/19/health/coronavirus-masksshortage.html ..............................................................................................................................8

Anna Flagg & Joseph Neff, Why Jails Are So Important in the Fight Against Coronavirus, The Marshall Project (Mar. 31, 2020) https://www.themarshallproject.org/2020/03/31/why-jails-are-so-important-inthe-fight-against-coronavirus .....................................................................................................6

Apoora Mandavilli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. Times (Mar. 31, 2020) https://www.nytimes.com/2020/ 03/31/health/coronavirus-asymptomatic-transmission.html ......................................................6

Bianca Malcolm, The Rise of Methicillin-Resistant Staphylococcus aureus in U.S. Correctional Populations, Journal of Correctional Health Care (May 13, 2011), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3116074/ ...........................................5

Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID19): Cases and Latest Updates, https://www.cdc.gov/coronavirus/2019-ncov/ cases-updates/cases-in-us.html ..................................................................................................5

Centers for Disease Control and Prevention, Situation Summary (2020), cdc.gov/ https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html .............................4

David Reuter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010), https://www.prisonlegalnews.org/news/ 2010/feb/15/swine-flu-widespread-in-prisons-and-jails-but-deaths-are-few/ ...........................5

Fed. Bureau of Prisons, BOP: About Our Agency, https://www.bop.gov/about/agency/ (last visited Apr. 16, 2020) ..............................................9

Federal Bureau of Prisons Clinical Practice Guidelines, Management of Methicillin-Resistant Staphylococcus aureus (MRSA) Infections, 1-2 (April 2012), https://www.bop.gov/resources/pdfs/mrsa.pdf ....................................................7

Jan Ransom & Alan Feuer, ‘We’re Left for Dead’: Fears of Virus Catastrophe at Rikers Jail, N.Y. Times (Mar. 30, 2020) ...................................................................................8

ii

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TABLE OF AUTHORITIES (Continued)

Page(s)

Jo Ann Bobby-Gilbert, Elkton Correctional Officers Fighting Invisible Enemy, Bus. J. (Apr. 16, 2020), https://businessjournaldaily.com/correctional-officersfighting-invisible-enemy/ ...........................................................................................................9

Kenji Mizumoto & Gerardo Chowell, Estimating Risk of Death from 2019 Novel Coronavirus Disease, China, January–February 2020, 26 Emerging Infectious Diseases, no. 6, June 2020, https://doi.org/10.3201/eid2606.200233.......................3

Kulish et. al, The U.S. Tried to Build a New Fleet of Ventilators. The Mission Failed., N.Y. Times (Mar. 29, 2020) https://www.nytimes.com/2020/03/29/ business/coronavirus-us-ventilator-shortage.html .....................................................................8

Matthew J. Akiyama, et al., Flattening the Curve for Incarcerated Populations— Covid-19 in Jails and Prisons, New England Journal of Medicine (April 2, 2020) ..........................................................................................................................................8

Meagan Flynn, Top doctor at Rikers Island calls the jail a ‘public health disaster unfolding before our eyes’, Wash. Post (Mar. 31, 2020) https://www.washingtonpost.com/nation/2020/03/31/rikers-islandcoronavirus-spread/ ..................................................................................................................10

Neil M. Ferguson et al., Imperial College London, Impact of Non-Pharmaceutical Interventions (NPIs) to Reduce COVID-19 Mortality and Healthcare Demand 7 (2020), https://www.imperial.ac.uk/media/imperial-college/ medicine/sph/ide/gida-fellowships/Imperial-College-COVID19-NPImodelling-16-03-2020.pdf .....................................................................................................4, 5

Sarah Mervosh et al., See Which States and Cities Have Told Residents to Stay Home, N.Y. Times (Mar. 31, 2020), https:// www.nytimes.com/2020/03/20/ us/ny-ca-stay-home-order.html ..................................................................................................4

Shane Hoover, Sixth Inmate Death at Elkton Federal Prison, Columbus Dispatch (Apr. 15, 2020).......................................................................................................................7, 9

Stephanie M. Lee, Nearly 900 Immigrants Had The Mumps In Detention Centers In The Last Year, Buzzfeed News (Aug. 29, 2019) https://www.buzzfeednews.com/article/stephaniemlee/mumps-ice-immigrantdetention-cdc ..............................................................................................................................5

Timothy Williams, et al., As Coronavirus Spreads Behind Bars, Should Inmates Get Out?, N.Y. Times (Mar. 30, 2020) https://www.nytimes.com/2020/ 03/30/us/coronavirus-prisons-jails.html.................................................................................5, 7

iii

Case: 4:20-cv-00794-JG Doc #: 23 Filed: 04/22/20 5 of 16. PageID #: 377

TABLE OF AUTHORITIES (Continued)

Page(s)

World Health Organization, Coronavirus Disease (Covid-19) Pandemic (2020), https://www.who.int/emergencies/diseases/novel-coronavirus-2019 ........................................3

Zack Budryk, DOJ Watchdog to Inspect Federal Prisons After Hundreds Diagnosed with Coronavirus, The Hill (Apr. 15, 2020)............................................................9

iv

Case: 4:20-cv-00794-JG Doc #: 23 Filed: 04/22/20 6 of 16. PageID #: 378
I. Introduction Amici Curiae, public health officials and human rights experts familiar with the
unique dangers associated with infectious diseases in jails and prisons, urge this Court to grant Petitioners’ Emergency Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief (Dkt. #1), and to order Respondents to work with local health officials to reduce the number of inmates at Elkton Federal Correctional Institution and its satellite prison (collectively, “Elkton”). Reducing the number of inmates at Elkton will minimize not only the public health risk to Petitioners, but also to other inmates, correctional facility staff, visitors and the public at large.
COVID-19 is an extremely infectious disease. It has created an unprecedented global health crisis and led to the adoption and implementation of novel but necessary mitigation strategies around the world, including the canceling of public events, the closing of schools and businesses, and stay-at-home orders to the general public. There is no vaccine or cure for COVID19. The virus has proven that it can infect, harm and kill anyone. But the risk is particularly acute for people with underlying health conditions that create a high risk for severe illness or death from COVID-19.
Managing the spread of COVID-19 within correctional facilities is critically important because they are enclosed environments, like cruise ships, that are highly susceptible to epidemics. In the case of COVID-19 specifically, the only way to mitigate the risk of serious infection is through hygienic measures like frequent hand washing and social distancing to limit exposure. But those prevention methods are all but impossible in a correctional setting, in which inmates are crowded together, sharing bathroom products, and where sanitizing products are frequently unavailable and infrequently used. Once an outbreak occurs, correctional facilities are rarely equipped to provide the intensive care and support needed to treat patients suffering from a severe COVID-19 infection.

Case: 4:20-cv-00794-JG Doc #: 23 Filed: 04/22/20 7 of 16. PageID #: 379
Acting quickly to mitigate the enormous risk associated with correctional facilities is not just necessary to protect those who are incarcerated, but also to protect staff and visitors. Moreover, because staff and visitors cycle in and out of these facilities, if appropriate mitigation measures are not taken immediately, those individuals risk spreading the disease to the broader community. Accordingly, the time to act is now, before it is too late. II. Statement of Interest of Amici Curiae
Amici curiae are experts in infectious diseases, healthcare policy, correctional healthcare, human rights and other related fields who have spent decades studying the provision of healthcare in correctional facilities. Based on their experience, and their review of the available information about the COVID-19 pandemic, it is their view that people with conditions like Petitioners’ are at high risk of serious, life-threatening COVID-19 infection, and that their continued confinement in DOC facilities subjects them to a heightened risk of contracting and further spreading COVID-19.
Amici are committed to ensuring correctional facilities provide quality healthcare to inmates, and that correctional facilities do not exacerbate the health risks of their inmates, their staff or the public at large. They understand the COVID-19 pandemic has placed enormous strains on society, and are committed to doing their part to ensure that correctional facilities take a prudent, science-based approach to addressing the virus. They respectfully submit this brief to offer their view that Respondents should work with state and local health officials to release individuals such as Petitioners, to whom COVID-19 poses a high risk of serious infection.
Amici are the following: Kathryn Hampton is Senior Officer of the Asylum Program at Physicians for Human Rights. In that capacity, she coordinates Physicians for Human Rights’ Asylum Network Program, an initiative that recruits, trains and supports a network of clinicians to provide forensic
2

Case: 4:20-cv-00794-JG Doc #: 23 Filed: 04/22/20 8 of 16. PageID #: 380
evaluations for asylum seekers and to advocate for human rights-based immigration policies. She has over 10 years of experience in human rights monitoring, analysis and reporting.
Brie Williams, M.D., M.S., is a Professor of Medicine in the University of California San Francisco Division of Geriatrics, where she collaborates with colleagues from criminal justice, public safety, and the law to integrate a healthcare perspective into criminal justice reform. She also co-directs the ARCH (Aging Research in Criminal Justice Health) Network, funded by the National Institute on Aging, which is a national group of researchers across multiple disciplines focused on developing evidence to better understand the health and healthcare needs of older adults and people with serious illness who reside in prisons and jails. III. Factual Background
Amici adopt and incorporate by reference the factual background set forth in Petitioners’ Emergency Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief (Dkt. #1). IV. Argument
A. The COVID-19 Pandemic Requires Proactive Social Distancing Measures The COVID-19 pandemic is an ongoing pandemic of coronavirus disease 2019 that
is caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). The novel coronavirus that causes COVID-19 first emerged in the province of Hubei, China in December 2019.1 As of April 15, 2020, there were 1,995,983 confirmed cases and 131,037 deaths in 213 countries, areas or territories worldwide.2 Due to the apparent ease with which the virus
1 Kenji Mizumoto & Gerardo Chowell, Estimating Risk of Death from 2019 Novel Coronavirus Disease, China, January–February 2020, 26 Emerging Infectious Diseases, no. 6, June 2020, https://doi.org/10.3201/eid2606.200233.
2 World Health Organization, Coronavirus Disease (Covid-19) Pandemic (2020), https://www.who.int/emergencies/diseases/novel-coronavirus-2019.
3

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spreads, these numbers have risen and will continue to rise exponentially without drastic government action.3
The consensus of doctors and epidemiologists since the emergence of COVID-19
as a global pandemic has been that the only way to gird against spread of the virus is to take proactive and early action to “flatten the curve.”4 Accordingly, a leading and frequently cited
report from the Imperial College London has suggested that “suppression will minimally require
a combination of social distancing of the entire population, home isolation of cases and household quarantine of their family members,” in addition to school and university closures.5 In other words,
social distancing is necessary at every level, including the institutional level. Given the speed with
which the virus spreads, such social distancing measures may have to last as long as 18 months until a vaccine is successfully developed.6 It is for precisely this reason that dozens of state
governments, including Washington, have instituted mandatory social distancing policies; indeed, roughly three in four Americans is now under orders to stay home.7
Although these measures are welcomed and necessary, they would have been more effective if governments had acted proactively, rather than merely prescriptively.8 The United
3 See Centers for Disease Control and Prevention, Situation Summary (2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/summary.html.
4 See, e.g., Neil M. Ferguson et al., Imperial College London, Impact of Non-Pharmaceutical Interventions (NPIs) to Reduce COVID-19 Mortality and Healthcare Demand 7 (2020), https://www.imperial.ac.uk/media/imperial-college/medicine/sph/ide/gida-fellowships/ Imperial-College-COVID19-NPI-modelling-16-03-2020.pdf.
5 Id. at 1. 6 Id. at 15. 7 Sarah Mervosh et al., See Which States and Cities Have Told Residents to Stay Home, N.Y.
Times (Mar. 31, 2020), https:// www.nytimes.com/2020/03/20/us/ny-ca-stay-homeorder.html. 8 See Impact of Non-Pharmaceutical Interventions (NPIs) to Reduce COVID-19 Mortality at 3 (“Cities in which these interventions were implemented early in the epidemic were successful
4

Case: 4:20-cv-00794-JG Doc #: 23 Filed: 04/22/20 10 of 16. PageID #: 382
States now has over 632,548 cases and over 27,012 fatalities.9 Indeed, the COVID-19 virus has
wreaked havoc all over the United States, jeopardizing both the health and economic wellbeing of
millions of Americans.10 The worst-case scenario in the Imperial College study above suggests
that the United States could suffer up to 2.2 million deaths as a result of the COVID-19 crisis.11
B. Jails and Prisons Are at a Heightened Risk for the Spread of COVID-19
Jails and prisons, such as Elkton, are closed environments in which it is impossible
to implement and enforce social distancing guidelines, and are thus at a heightened risk for the
spread of COVID-19. It is common knowledge that outbreaks of contagious diseases are more
common in correctional settings than in communities at large.12 COVID-19 has proven to be no
exception. Over the past several weeks, hundreds of COVID-19 diagnoses have been confirmed
at local, state and federal correctional facilities.13 Given the dearth of testing, these numbers
at reducing case numbers while the interventions remained in place and experienced lower mortality overall.”). 9 Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): Cases and Latest Updates, https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-inus.html (last updated Apr. 14, 2020). 10 See generally Alexis C. Madrigal & Robinson Meyer, How the Coronavirus Became an American Catastrophe, The Atlantic (Mar. 21, 2020), https://www.theatlantic.com/ health/archive/2020/03/how-many-americans-are-sick-lost-february/608521/. 11 Impact of Non-Pharmaceutical Interventions (NPIs) to Reduce COVID-19 Mortality at 7. 12 See David Reuter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-fluwidespread-in-prisons-and-jails-but-deaths-are-few/; see also Bianca Malcolm, The Rise of Methicillin-Resistant Staphylococcus aureus in U.S. Correctional Populations, Journal of Correctional Health Care (May 13, 2011), https://www.ncbi.nlm.nih.gov/pmc/articles/ PMC3116074/; Stephanie M. Lee, Nearly 900 Immigrants Had The Mumps In Detention Centers In The Last Year, Buzzfeed News (Aug. 29, 2019) https://www.buzzfeednews.com/article/stephaniemlee/mumps-ice-immigrant-detention-cdc. 13 Timothy Williams, et al., As Coronavirus Spreads Behind Bars, Should Inmates Get Out?, N.Y. Times (Mar. 30, 2020) https://www.nytimes.com/2020/03/30/us/coronavirus-prisonsjails.html.
5

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understate (and likely dramatically understate) the problem.14 Indeed, in some areas, jails have seen infection rates nine times higher than the broader community.15
The enormity of the problem is exacerbated by the fact that staff, visitors, contractors and vendors all pass between communities and correctional facilities, and each group can bring infectious diseases into and out of those facilities. Moreover, inmates themselves often have to make court appearances and, each time they appear, they risk contracting infections and introducing them into the facility upon return. Additionally, correctional facility populations are constantly turning over, with about 200,000 people nationwide flowing into and out of jails every week. Each entrant potentially carries COVID-19 and introduces it into the facility’s population.16
These factors, all of which make it effectively impossible for correctional facilities to protect themselves from outbreaks outside their walls, are made worse by the fact that it is difficult to identify and isolate those individuals who are infected with COVID-19, who may suffer from only mild symptoms or even be entirely asymptomatic, but still be carrying and spreading the disease. In fact, recent estimates suggest that as many as 1 in 4 cases of coronavirus will not present symptoms and yet remain contagious.17 Unfortunately, correctional facilities typically do not have the ability to perform the kind of systematic testing that would be required to ensure that the virus does not enter the facility.
14 Id. 15 Anna Flagg & Joseph Neff, Why Jails Are So Important in the Fight Against Coronavirus, The
Marshall Project (Mar. 31, 2020) https://www.themarshallproject.org/2020/03/31/why-jailsare-so-important-in-the-fight-against-coronavirus. 16 Id. 17 Apoora Mandavilli, Infected but Feeling Fine: The Unwitting Coronavirus Spreaders, N.Y. Times (Mar. 31, 2020) https://www.nytimes.com/2020/03/31/health/coronavirusasymptomatic-transmission.html.
6

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The unique attributes of correctional facilities also make it impossible for those facilities to adopt and implement the mitigation efforts that have become a necessary safeguard of life outside those facilities. That is because these facilities are enclosed environments, much like the cruise lines that have proven susceptible to COVID-19 outbreaks. The social distancing that has been the hallmark of the United States’ COVID-19 prevention efforts is simply not possible in such a setting. Incarcerated people share close quarters, including dining halls, bathrooms, showers and other common areas, each presenting dangerous opportunities for transmission.18 Additionally, spaces within correctional facilities often are poorly ventilated, which promotes the spread of diseases. Other hygiene-based prevention strategies are similarly ineffective in a correctional setting. Inmates will not typically have access to sufficient soap and alcohol-based sanitizers to engage in the kind of frequent hand washing encouraged throughout the rest of the country.19 And staff often do not clean or sanitize high-touch surfaces like door handles or light switches.
For facilities like Elkton, where COVID-19 has already infected at least sixty inmates and killed six,20 it will be extremely difficult to properly treat those who have been infected or limit the spread of the virus. COVID-19’s most common symptoms are fever, cough and

18 Poor inmate hygiene has in previous years led to staph infection outbreaks, spread by, inter alia, the shared use of soap and towels and person-to-person contact via contaminated hands. See Federal Bureau of Prisons Clinical Practice Guidelines, Management of MethicillinResistant Staphylococcus aureus (MRSA) Infections, 1-2 (April 2012), https://www.bop.gov/ resources/pdfs/mrsa.pdf.

19 See Timothy Williams, et al., As Coronavirus Spreads Behind Bars, Should Inmates Get Out?, N.Y. Times (Mar. 30, 2020) https://www.nytimes.com/2020/03/30/us/coronavirus-prisonsjails.html (explaining that in some correctional facilities “Even as a visitor . . . if you want to wash your hands, you’ve got to walk out and go into another building to do it.”).

20 Shane Hoover, Sixth Inmate Death at Elkton Federal Prison, Columbus Dispatch (Apr. 15,

2020),

https://www.dispatch.com/news/20200415/sixth-inmate-death-at-elkton-federal-

prison/1.

7

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shortness of breath. Serious cases can develop that require invasive measures to improve
respiratory function, such as intubation. Appropriate care for such cases almost always includes
the use of highly specialized equipment like ventilators. The COVID-19 virus has put ventilators in high demand and short supply around the world.21 The virus even has led to shortages of less specialized equipment such as face masks, gloves and gowns.22
The necessary treatment for those infected with COVID-19, especially those in
high-risk populations, is labor-intensive. It requires that nurses tend to a limited number of patients
at a time, and often requires physicians with specialized backgrounds in respiratory care.
Correctional facilities are unable to address these needs. Correctional facilities often employ
nurses who practice beyond the scope of their licenses, and part-time physicians who have limited
availability to be on-site. The novel coronavirus outbreak is already straining hospital capacity
across the country. Correctional medical facilities, already underequipped, will be even more strained as staff members themselves become ill.23 Thus, the problem will be dangerously exacerbated if jails and prisons do not act immediately to reduce their prison populations and contain the spread of the virus.24
21 Kulish et. al, The U.S. Tried to Build a New Fleet of Ventilators. The Mission Failed., N.Y. Times (Mar. 29, 2020) https://www.nytimes.com/2020/03/29/business/coronavirus-usventilator-shortage.html.
22 See Andrew Jacobs, et al., ‘At War With No Ammo’: Doctors Say Shortage of Protective Gear Is Dire, N.Y. Times (Mar. 19, 2020) https://www.nytimes.com/2020/03/19/health/ coronavirus-masks-shortage.html.
23 See, e.g., Jan Ransom & Alan Feuer, ‘We’re Left for Dead’: Fears of Virus Catastrophe at Rikers Jail, N.Y. Times (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/nyregion/ coronavirus-rikers-nyc-jail.html (“[T]he rate of infection in city jails has continued to climb, and by Monday, 167 inmates, 114 correctional staff and 23 health workers had test positive.”).
24 Matthew J. Akiyama, et al., Flattening the Curve for Incarcerated Populations—Covid-19 in Jails and Prisons, New England Journal of Medicine (April 2, 2020), https://www.nejm.org/doi/full/10.1056/NEJMp2005687.
8

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C. Efforts to Combat COVID-19 at Elkton Are Inadequate Elkton is already proving incapable of protecting its inmates from COVID-19. So
far at Elkton, sixty inmates have tested positive and six inmates have already died from the coronavirus.25 Many more may already be infected. Releasing Petitioners and other medically vulnerable inmates before it is too late is the safest approach for inmates, staff and the public. Release not only removes those most at risk from a life-threatening environment, but will also allow for Elkton to implement better social distancing and hygiene policies, protecting those who remain in the prison. Slowing the spread of the virus in the prison will likewise slow the spread of the virus in the broader community. And release will lower the risk that already-burdened healthcare infrastructure will be overwhelmed by the additional care required by infected inmates.
The Federal Bureau of Prisons (“BOP”) is the Department of Justice agency responsible for the custody and care of federal inmates, including at Elkton.26 BOP has proven unable to institute solutions up to the task of protecting inmates and staff from the spread of the virus. As of April 15th, 451 federal inmates and 280 BOP workers have tested positive for coronavirus, with 17 inmate deaths since late March.27 Thirty prison employees at Elkton have tested positive for the coronavirus.28 BOP’s failure to provide testing, failure to order employee

25 Shane Hoover, Sixth Inmate Death at Elkton Federal Prison, Columbus Dispatch (Apr. 15,

2020),

https://www.dispatch.com/news/20200415/sixth-inmate-death-at-elkton-federal-

prison/1.

26 Fed. Bureau of Prisons, BOP: About Our Agency, https://www.bop.gov/about/agency/ (last visited Apr. 16, 2020).

27 Zack Budryk, DOJ Watchdog to Inspect Federal Prisons After Hundreds Diagnosed with Coronavirus, The Hill (Apr. 15, 2020), https://thehill.com/policy/healthcare/493065-dojwatchdog-to-inspect-federal-prisons-after-hundreds-diagnosed-with.

28 Jo Ann Bobby-Gilbert, Elkton Correctional Officers Fighting Invisible Enemy, Bus. J. (Apr. 16, 2020), https://businessjournaldaily.com/correctional-officers-fighting-invisibleenemy/.

9

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quarantines, and policy of asking employees not to work only if they have a fever will inevitably endanger more inmates, staff, and the community at large.29
Governor Mike DeWine’s deployment of Ohio National Guard members to Elkton and other facilities is encouraging, but is itself a symptom of a belated response and is inadequate to protect prisons and jails from COVID-19. The virus will continue to ravage these facilities. Elkton, a BOP Medical Care Level 2 facility where about half of the inmates have pre-existing medical conditions, is particularly at risk.30
Other correctional facilities have attempted measures to mitigate against the introduction and spread of COVID-19, but they have been thwarted by the realities of correctional life. In the face of rising infection numbers, the top doctor at New York’s Rikers Island was forced to conclude that mitigation efforts in such facilities cannot be successful unless paired with substantial inmate population reductions.31 BOP must likewise embrace that conclusion before it is too late. V. Conclusion
Amici urge the Court to consider this information when assessing whether to grant Petitioners’ Emergency Petition for Writ of Habeas Corpus, Injunctive, and Declaratory Relief (Dkt. #1). In particular, amici urge the Court to grant the Petition and order Respondents to release inmates, including Petitioners, thereby reducing overcrowding and mitigating the public health
29 See id. 30 See Corr. Info. Council – CIC Info Sheet, BOP – MEDICAL CARE LEVELS,
https://cic.dc.gov/sites/default/files/dc/sites/cic/page_content/attachments/BOP%20Medical %20Care%20Levels%205.17.17.pdf (last visited Apr. 16, 2020). 31 Meagan Flynn, Top doctor at Rikers Island calls the jail a ‘public health disaster unfolding before our eyes’, Wash. Post (Mar. 31, 2020) https://www.washingtonpost.com/nation/ 2020/03/31/rikers-island-coronavirus-spread/.
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effects to those individuals, facility staff and the public at large. Release should be coordinated with local public health authorities, in accordance with the most recent CDC guidance on personal protection equipment, quarantine and isolation protocols, so as to ensure the safety of the released individuals and the community.

Dated: April 22, 2020

FRIEDMAN & GILBERT
By: /s/ Jacqueline Greene
Jacqueline Greene, OH 0092733 FRIEDMAN & GILBERT 441 Vine Street, Ste. 3400 Cincinnati, Ohio 45202 T: (513) 572-4200 F: (216) 621-0427 jgreene@f-glaw.com
Sarah Gelsomino, OH 0084340 FRIEDMAN & GILBERT 50 Public Square, Ste. 1900 Cleveland, OH 44113 T: (216) 241-1430 F: (216) 621-0427 sgelsomino@f-glaw.com
Susanna M. Buergel, pro hac vice Darren W. Johnson, pro hac vice David C. Kimball-Stanley, pro hac vice PAUL, WEISS, RIFKIND, WHARTON
& GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 Telephone: (212) 373-3000 Facsimile: (212) 757-3990 sbuergel@paulweiss.com djohnson@paulweiss.com dkimball-stanley@paulweiss.com
Attorneys for Amici Curiae

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 Case: 4:20-cv-00794-JG Doc #: 29 Filed: 04/28/20 1 of 2. PageID #: 397

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CRAIG WILSON, et al., Petitioners,
v. MARK WILLIAMS, Warden of Elkton Federal Correctional Institution, et al.,
Respondents.

) CASE NO.: 4:20cv794 ) ) JUDGE JAMES S. GWIN ) ) ) ) EMERGENCY MOTION FOR STAY ) PENDING APPEAL ) )

Now come Respondents Mark Williams, Warden of Elkton Federal Correctional Institution and Michael Carvajal, Director of Federal Bureau of Prisons (“Respondents”), and, pursuant to Fed. R. Civ. P. 62(d), hereby respectfully move this Court to stay its Order and suspend the preliminary injunction contained therein issued on April 22, 2020 [ECF No. 22], pending final resolution of the appeal filed by Respondents on April 26, 2020. (Notice of Appeal, ECF No. 26 PageID # 394.) The grounds for this Motion are more fully set forth in the Memorandum in Support filed contemporaneously herewith.

(Signatures on the following page.)

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Case: 4:20-cv-00794-JG Doc #: 29 Filed: 04/28/20 2 of 2. PageID #: 398
Respectfully submitted, JUSTIN E. HERDMAN United States Attorney By: /s/ James R. Bennett II James R. Bennett II (OH #0071663) Sara DeCaro (OH #0072485) Assistant United States Attorneys United States Courthouse 801 West Superior Ave., Suite 400 Cleveland, Ohio 44113 216-622-3988 - Bennett 216-522-4982 - Fax James.Bennett4@usdoj.gov Sara.DeCaro@usdoj.gov Attorneys for Respondents
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Case: 4:20-cv-00794-JG Doc #: 29-1 Filed: 04/28/20 1 of 18. PageID #: 399

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CRAIG WILSON, et al.,
Petitioners, v. MARK WILLIAMS, Warden of Elkton Federal Correctional Institution, et al.,
Respondents.

) CASE NO.: 4:20cv794 ) ) ) JUDGE JAMES S. GWIN ) ) ) ) MEMORANDUM IN SUPPORT OF ) EMERGENCY MOTION TO STAY ) ) )

Case: 4:20-cv-00794-JG Doc #: 29-1 Filed: 04/28/20 2 of 18. PageID #: 400
Pursuant to Fed. R. Civ. P. 62(d), Respondents Mark Williams, Warden of Elkton Federal Correctional Institution and Michael Carvajal, Director of Federal Bureau of Prisons (“Respondents”) hereby respectfully request that this Court stay its Order and suspend the preliminary injunction contained therein issued on April 22, 2020 [ECF No. 22], pending final resolution of the appeal filed by Respondents on April 27, 2020, including any further requirement to publish the names on the list compiled by BOP. (Notice of Appeal, ECF No. 26 PageID # 394.) Respondents further respectfully request that the Court stay the briefing schedule for class certification and any hearing related thereto because it will conserve judicial resources and prevent a ruling in a case in which the court of appeals may determine that this Court lacks jurisdiction. Respondents submit that a stay is appropriate in this matter because they are likely to succeed on the merits on appeal and because the preliminary injunction inflicts significant harms on the public and the government that greatly outweigh any potential harm to Petitioners from a stay. Further, Respondents respectfully request an expedited ruling on this motion by 4:00 p.m. on April 30, 2020, because, if this Court does not grant a stay, Respondents will need to seek such relief in the Court of Appeals at that time to ensure meaningful relief in advance of upcoming deadlines and requirements imposed by the Court.
BACKGROUND On April 22, 2020, the Court issued a preliminary injunction requiring that Respondents (1) identify within one day all members of a “subclass” that the Court defined to include Elkton inmates who are considered to be at high risk according to guidelines of the Centers for Disease Control and Prevention (CDC), (2) evaluate each subclass member’s eligibility for transfer out of Elkton through any means, including, but not limited to, compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough within two weeks; and (3)
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transfer subclass members who are ineligible for compassionate release, home release, or parole or community supervision to another BOP facility where appropriate measures, such as testing and single-cell placement, or social distancing, may be accomplished. (ECF# 22 PageID # 37172.)
In compliance with the Court’s order, BOP compiled a list of 837 inmates who are over the age of 65 and/or have diagnosed medical conditions identified by the CDC as making an individual at higher risk of complications from COVID-19. (See, Second Declaration of Kristy Cole (“Cole-2 Decl.”), attached hereto as Exhibit A, at ¶ 46.). Compilation of the list satisfied the first requirement of the Court’s preliminary injunction. Because inclusion on the list discloses that an inmate has one or more potential risk factors, Respondents moved to seal the list to protect this highly personal and privileged information of hundreds of third-parties. (Mot. to Seal, ECF No. 24 PageID # 389.) The Court denied the Motion on April 27, 2020. (Minutes of Status Conference, ECF No. 27, PageID # 395.)
Under the terms of the Court’s preliminary injunction order, BOP estimates that it will take in excess of 418 man-hours to preliminarily evaluate all the inmates on the list for transfer. (Cole-2 Decl. at ¶ 47.) After the preliminary evaluation, significant work is needed to further evaluate and process each inmate prior to the inmate leaving Elkton. (Id. at ¶ 48.) This includes developing a release plan; conducting multiple checks, victim/witness notifications; and considering inmate health issues. (Id.) Many other offices within the Department of Justice— who are not named respondents here–would be required to be involved in the transport release process, including United States Probation Offices, United States Attorneys’ Offices, sentencing courts, and the United States Marshal Service. (Id.) The same BOP staff needed to comply with the Court’s Order are currently tasked with considering requests made by inmates across the
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country who are not on the newly generated list, their normal operational duties, and additional duties already asked of staff in responding to the COVID-19 pandemic. (Id. at ¶ 47.)
Even before the Petitioners brought this action and before the Court issued a preliminary injunction, the BOP was acting urgently to mitigate the risks of COVID-19 within its facilities and to reduce prison populations, to the extent possible and authorized by Congress. The BOP was, for example, already prioritizing the use of home confinement as a tool for combatting the dangers that COVID-19 poses to vulnerable inmates pursuant to the Attorney General’s March 26, 2020 and April 3, 2020 Memoranda. (ECF No. 10-2 PageID # 192 at ¶ 17.) The BOP has also been assessing and, in appropriate instances, recommending that an inmate’s sentencing court reduce a term of imprisonment under 18 U.S.C. § 4205.
In addition to reducing prison populations, BOP has taken extensive measures to reduce the spread of COVID-19 among the inmates at Elkton, including providing inmate and staff education; conducting inmate and staff screening; testing, quarantine, and isolation procedures; enhanced cleaning and sanitization protocols; providing soap, cleaning supplies, and personal protective equipment (PPE) to inmates; and restricting inmates to their residential area with only one pod moving at a time. (ECF# 10-1 PageID # 178-185 at ¶¶ 19-54). These efforts have been working as the number of new cases has been reduced.
On April 27, 2020, Respondents filed a Notice of Appeal to the Sixth Circuit from the Court’s preliminary injunction, including the Court’s determination that it has jurisdiction over this case. (Not. of Appeal, ECF No. 26 PageID # 394.) For the reasons discussed below, Respondents respectfully request this Court to stay its Order and suspend the preliminary injunction contained therein issued on April 22, 2020 [ECF No. 22]. On addition, Respondents further request that the Court stay its instruction to file the names of inmates identified by BOP
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on the public docket and also stay briefing on class certification. ARGUMENT
This Court has discretion to stay execution of its judgment pending resolution of an appeal. Fed. R. Civ. P. 62(d). A. Philip Randolph Institute v. Husted, 907 F.3d 913, 917 (6th Cir. 2018). Courts consider four factors when determining if a stay is warranted: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Id.; Hilton v. Braunskill, 481 U.S. 870, 867-77 (1987); Concerned Pastors for Soc. Action v. Khouri, 844 F.3d 546, 548 (6th Cir. 2016). “These four factors ‘are not prerequisites that must be met, but are interrelated considerations that must be balanced’ together.” Khouri, 844 F.3d at 548 (quoting In re EPA, 803 F.3d 804, 806 (6th Cir. 2015). As demonstrated below, Respondents have met their burden of showing that this Court should exercise its discretion to stay its order pending appellate review, Nken v. Holder, 556 U.S. 418, 433–34 (2008), because a balancing of the factors supports the issuance of a stay pending appeal. Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 156 (6th Cir. 1991). I. RESPONDENTS ARE LIKELY TO SUCCEED ON APPEAL
Respondents are likely to succeed on the merits of the appeal because binding Circuit precedent precludes habeas relief in these circumstances, the Prison Litigation Reform Act (PLRA) prohibits the Court from requiring transfer or release of prisoners, and the Petitioners have failed to establish an Eighth Amendment violation. Success on the merits is supported by other courts who have rejected arguments like those made by Petitioners. See, e.g. Livas v. Myers, No. 2:20-cv-00422-TAD-KK, 2020 WL 1939583 (W.D. La. Apr. 22, 2020) (Doughty, J.)
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(dismissing complaint with prejudice for lack of subject-matter jurisdiction, explaining that designation and classification decisions “fall[] squarely within BOP’s authority and outside the purview of this Court,” and noting that a contrary reading would make the court a “de facto ‘super’ warden of Oakdale”) Furando v. Ortiz, No. 1:20-cv-03739-RMB, 2020 WL 1922357 (D.N.J. Apr. 20, 2020) (Bumb, J.) (dismissing habeas petition for failure to exhaust administrative remedies as set forth in 28 CFR §§ 542.10 to 542.19); Plata v. Newsom, No. 01cv-01351, 2020 WL 1908776 (N.D. Cal. Apr. 17, 2020) (Tigar, J.) (holding that the State of California, which had taken measures similar to BOP, had not exhibited “deliberate indifference” even though it could not provide for social distancing and holding that the court would lack authority to release prisoners in any event because only a three-judge court can release prisoners to cure a systemic violation of the Eighth Amendment) A movant “need not always establish a high probability of success on the merits” and a stay is granted with a showing of “serious questions going to the merits” when the movant demonstrates irreparable harm that decidedly outweighs harm to Petitioners. Griepentrog, 945 F.2d at 153-54.
A. Habeas Relief Is Improper As this Court recognized in its April 22, 2020 order, it is well-settled in the Sixth Circuit that a habeas petition under 28 U.S.C. § 2241 “is not the proper vehicle for a prisoner to challenge conditions of confinement.” Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013). It is plain that Petitioners here challenge the conditions of their confinement at Elkton. Indeed, Petitioners’ own characterization of their claim is that “incarceration amid the COVID19 outbreak at Elkton violates their rights to constitutional conditions of confinement.” (Pet., ECF No. 1 PageID # 31 (emphasis added; capitalization omitted). The theory of relief is not that there is a defect in Petitioners’ convictions or sentences or that they are entitled to release from
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BOP custody, but rather that they should be allowed to complete their terms of custody in a different setting because they believe the conditions at the facility where they are currently being held are unconstitutional. These claims are no different from a suit brought under 42 U.S.C. § 1983 alleging that an inmate’s conditions of confinement violate the Eighth Amendment because the inmate is not receiving necessary medical care.
The Sixth Circuit held as much in Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004), where an inmate “sought a transfer to a different prison facility for the purpose of medical treatment.” The court noted that the inmate had improperly asserted that claim under section 2241 because he “did not challenge the terms or validity of his state prison term,” and held that “the district court should have dismissed the petition without prejudice to allow [the inmate] to raise his potential civil rights claim properly as a § 1983 action.” Id.
This Court has acknowledged that “[i]nmates challenging BOP’s COVID-19 response challenge the dangerous conditions within the prison created by the virus.” Order, ECF No. 22 PageID # 361 (emphasis added). The Court’s decision to grant habeas relief to allegedly medically-vulnerable inmates and require transfer to a different facility directly conflicts with the reasoning in Martin that habeas relief is not available—the claims of the subclass here are indistinguishable from the claim in Martin. Respondents are therefore likely to establish on appeal that this Court lacks jurisdiction to grant relief under § 2241.
B. The PLRA Precludes the Relief Ordered Respondents are also likely to succeed in establishing that the preliminary injunction contravenes the Prison Litigation Reform Act’s (“PLRA”) strict limits on the release of prisoners and litigation designed to reduce prison populations or challenge conditions of confinement. The PLRA applies to “any civil proceeding arising under Federal law with respect to the conditions
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of confinement or the effects of actions by government officials on the lives of persons confined in prison, but . . . not . . . habeas corpus proceedings challenging the fact or duration of confinement in prison.” 18 U.S.C. § 3626(a)(2). This suit challenging health conditions at Elkton plainly falls within this broad provision.
Because the PLRA applies to this suit, any preliminary injunction must “be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). This Court made no finding that its broad preliminary injunction satisfies those requirements. Nor did the Court comply with the PLRA’s requirements that a “prisoner release order”—that is, “any order . . . 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”—may “be entered only by a three-judge court,” and only after “a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation . . . sought to be remedied” and “the defendant has had a reasonable amount of time to comply with the previous court orders.” Id. § 3626(a)(3)(A), (B), (g)(4).
In this case, the Court has required BOP to either release subclass members or transfer them to another BOP facility, (Order, ECF No. 22 PageID # 371-72.)—an order that clearly seeks to “limit[]the prison population” at Elkton without satisfying the PLRA’s requirements. The Court has also directed the “nonadmission of prisoners” to Elkton by ordering that “[a]ny subclass members transferred out of Elkton may not return until the threat of the virus is abated or until a vaccine is available,” making the PLRA’s applicability even clearer.
The Court’s only justification for disregarding the PLRA was its conclusion that “the subclass’s claims are properly before the Court as a habeas action.” Dkt. 22 at 19-20. As
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explained, however, petitioners’ claims are not cognizable in habeas, and even if they were, they do not “challeng[e] the fact or duration of confinement,” as is necessary to avoid the PLRA’s requirements. 18 U.S.C. § 3626(g)(2).1 This is no mere technicality: by failing to abide by the PLRA’s restrictions in order to superintend BOP’s response at Elkton to COVID-19, the Court’s order violated Congress’s intent “to oust the federal judiciary from day-to-day prison management.” Inmates of Suffolk Cty. Jail v. Rouse, 129 F.3d 649, 655 (1st Cir. 1997). As the Supreme Court has emphasized, “[c]ourts must be sensitive to the State’s interest in punishment, deterrence, and rehabilitation, as well as the need for deference to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of convicted criminals.” Brown v. Plata, 563 U.S. 493, 511 (2011).
It should be noted that the Court justifies its order in this case based on its belief that “[d]istrict courts have inherent authority to grant enlargement to a defendant….” (ECF No. 22 PageID # 359.) The Court explained that when “a court exercises its power to ‘enlarge’ the custody of a defendant pending the outcome of a habeas action, the BOP maintains custody over the defendant, but the place of custody is altered by the court.” (Id.) However, the Court lacks authority to alter the place of custody because BOP has the sole discretion to determine where to confine inmates. 18 U.S.C § 3621. In fact, the Court’s concept of enlargement whereby it can alter the place of custody is specifically rejected by 18 U.S.C. § 3621(b) which provides “[n]otwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.” 18 U.S.C § 3621(b)(emphasis added). See also Livas, 2020 WL 1935583, at *8 (“[D]esignation and/or classification falls squarely within BOP’s
1 As we have demonstrated, this suit concerns prison “conditions” and therefore cannot be brought as a habeas action, but must be brought as a civil rights action. Such civil rights actions require exhaustion of administrative remedies under 42 U.S.C. § 1997e. See Lavista v. Beeler, 195 F.3d 254, 256-57 (6th Cir. 1999).
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authority and outside the purview of this Court. To rule otherwise would make this Court a de facto “super” warden of Oakdale.”); McKune v. Lile, 536 U.S. 24, 39 (2002) (“It is well settled that the decision where to house inmates is at the core of prison administrators’ expertise.”); Fullenwiley v. Wiley, No. 98-CV-1698, 1999 WL 33504428, at *1 (N.D.N.Y. Oct. 5, 1999) (“[D]iscretionary decisions by the BOP made pursuant to its authority under § 3621(b) are not subject to judicial review”); see also 18 U.S.C. § 3625. Although the Court relied on the concept of “enlargement” of a sentence to construe the relief requested by Petitioners as falling within § 2241, that concept is inapplicable here. “Enlargement” is essentially bail pending the adjudication of a habeas petition, but the Sixth Circuit has made clear that “there will be few occasions where a prisoner will meet th[e] standard” for that relief. Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990).
C. BOP Has Not Violated the Eighth Amendment Petitioners are also unlikely to prevail on appeal because the BOP has not violated the Eighth Amendment—the only basis for Petitioners’ claims for relief. To succeed on their Eighth Amendment claims, petitioners must satisfy two requirements. First, they must show that they suffer a deprivation that is, “objectively, sufficiently serious,” “result[ing] in the denial of the minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second, they must show that BOP is acting with “deliberate indifference to inmate health or safety,” “know[ing] of and disregard[ing] an excessive risk to inmate health or safety.” Id. at 834, 837; see also Whitley v. Albers, 475 U.S. 312, 319 (1986) (“[O]nly the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment.”).
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As to the first, objective requirement, Petitioners are not being denied the “minimal civilized measure of life’s necessities.” Farmer, 511 U.S. at 834. Respondents are acutely aware of the dangers that COVID-19 creates around the world. But risk of exposure to a communicable disease in prison raises Eighth Amendment concerns only if the threat is so severe that it would be “contrary to current standards of decency for anyone to be so exposed.” Helling v. McKinney, 509 U.S. 25, 35 (1993). COVID-19 puts prisoners and all other members of the public at unfortunate risk, and the record reflects the numerous steps that BOP has taken and continues to take to protect inmates from those risks to the extent possible. The record establishes that, among other things, BOP has implemented measures for screening inmates for the virus; isolating and quarantining inmates who may have contracted it; conducting testing in accordance with CDC guidelines; limiting and screening staff and visitors; cleaning common areas and giving inmates disinfectant to clean their cells; giving inmates continuous access to sinks, water, and soap; educating staff and inmates about ways to avoid contracting the virus; providing masks to inmates and various other PPE to staff; and limiting inmates’ movement from their residential areas (Cole Decl. ¶ 38; Dees Decl. ¶¶ 19-54, ). COVID-19 can have tragic effects both within and outside prisons, and “[u]nless 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.” Hines v. Youssef, No. 13-cv-357, 2015 WL 164215, at *4 (E.D. Cal. Jan. 13, 2015). Petitioners are thus unlikely to establish that they have been deprived of “the minimal civilized measure of life’s necessities.” Farmer, 511 U.S. at 834.
As to the second, subjective requirement, the Respondents have not acted with deliberate
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indifference to inmates’ health and safety. BOP has taken numerous steps to protect inmate health. More specifically, Elkton implemented each of the six phases of the BOP’s national Action Plan (Dees Decl. ¶ 7-18), provides inmate and staff education; conducts inmate and staff screening; put into place testing, quarantine, and isolation procedures in accordance with BOP policy and CDC guidelines; and obtained enhanced cleaning and medical supplies. (Id. at ¶ 19.) Additionally, Elkton implemented the “modified operations” in a number of ways, including: “grab and go” meals for inmates, meaning that inmates are permitted to pick up pre-packaged meals at designated times, but must return to their housing units in order to eat; scheduled staggered mealtimes, so that only a single housing unit (approximately 150 inmates) are moving within the facility at any particular time, controlled medication dispensing and commissary are accomplished during these times as well. (Id. at ¶ 12.) In addition to the measures BOP is taking to prevent, identify, and treat COVID-19 at Elkton, the BOP is diligently reviewing Elkton inmates’ motions for compassionate release and is undertaking, consistent with the Attorney General’s directives, identification of inmates who may be transferred to home confinement. (Cole Decl. ¶ 21-37). The record shows the agency’s extensive efforts to protect inmates given the inherent constraints of a prison setting and available resources. (Cole Decl. ¶ 38;Dees Decl. ¶ 19-54).
And, as the Supreme Court explained in Wilson v. Seiter, 501 U.S. 294, 302-303 (1991), the Eighth Amendment inquiry “depends upon the constraints facing the official”; as demonstrated here, BOP is faced with unprecedented constraints on its resources in responding to the COVID-19 crisis. In light of those constraints, BOP cannot be said to have acted with anything approaching deliberate indifference.
D. The Court Improperly Conditionally Certified the Subclass
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The Court recognized that petitioners’ definition of a subclass of medically vulnerable inmates “is likely too broad” and limited the subclass to “those identified by the CDC as being at higher risk.” Dkt. 22 at 12 & n.50. But the court erred in ordering class-wide relief even on that narrower subclass definition.
To qualify as a class, the members of petitioners’ subclass must have met the requirements of Federal Rule of Civil Procedure 23(a) for commonality and typicality. To satisfy the commonality requirement, petitioners must “demonstrate that the class members have suffered the same injury” and assert claims that “depend upon a common contention . . . of such a nature that it is capable of classwide resolution.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). And to satisfy the typicality requirement, petitioners must demonstrate that “a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct.” Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007). Whether an inmate is entitled to release or transfer is inherently individualized, requiring consideration of the inmate’s history and circumstances. See Money, 2020 WL 1820660, at *14-15; see also Cole Decl. ¶¶ XX [CITE]. Members of the subclass have been convicted of different offenses, have different disciplinary histories, present different safety risks, have different medical concerns, and have different resources and supports available if they are released from prison. Indeed, the Court acknowledged that “the [p]etitioners seek varied relief that allows the BOP to make individualized determination as to where each subclass member should be” and that “‘release’ might look different for different inmates.” Dkt. 22 at 14. Although the Court attempted to frame the case as raising the common question “whether the BOP’s failure to create safe conditions for inmates with especially vulnerable health has violated those inmates’ rights,” id. at
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13, the Court ignored that both the objective-risk and subjective-indifference prongs of the Eighth Amendment inquiry may differ among subclass members. II. THE EQUITIES AND PUBLIC INTEREST WARRANT A STAY PENDING APPEAL
A consideration of the equities also supports a stay of the preliminary injunction. In cases involving the government, the harms to the BOP and to the public interest “merge,” Nken, 556 U.S. at 435, as demonstrated by the widespread harms to the public and inmates at other institutions if respondents must comply with the Court’s order.
In this case, Respondents and the public will be greatly harmed without a stay. As explained above, in order to comply with the terms of the preliminary injunction, BOP estimates that it will take in excess of 418 man-hours to preliminarily evaluate all the inmates on the list for transfer. (Cole-2 Decl. at ¶ 47.) This is the equivalent of more than five staff members of Elkton’s Case Management Coordinator office working full time to comply with the Court’s order for two weeks. (Id.) After the preliminary evaluation, significant work is needed to further evaluate and process each inmate prior to the inmate leaving the institution. (Id. at ¶ 48.) This includes developing a release plan conducting multiple checks, notifying victims and witnesses, and considering inmate health issues. (Id.) Many other offices who are not are before the Court would necessarily be involved in that transport-release process, including United States Probation Offices, United States Attorneys’ Offices, sentencing courts, and the United States Marshal Service. (Id.) The same BOP staff needed to comply with the Court’s Order are also currently tasked with considering requests made by inmates who are not on the list, normal operational duties, and additional duties already asked of staff in responding to the COVID-19 pandemic. (Id. at ¶ 47.) BOP lacks the resources to both comply with the order, as well as fulfill its mission-critical functions. BOP further lacks the ability to compel other federal offices to
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comply with the Court’s mandates. The preliminary injunction further requires transferring potentially hundreds of inmates
who are ineligible for release to other BOP facilities. Transferring (or redesignation) of an inmate is, even under normal circumstances, an extremely burdensome process. The BOP must consider, inter alia, level of security the inmate requires, the level of security and staff supervision the institution is able to provide, the inmate’s program needs, safe and orderly management of the facilities, and protection of the inmate, victims, prison officials, and the public in general. (Cole-2 Decl. at ¶ 11-19; see also, Exhibit B, Declaration of Cory Clark (“Clark Decl.”) at ¶¶ 9-17.) As explained in Mr. Cole’s declaration, transferring so many inmates to comply with the Court’s order is virtually impossible. (Clark Decl. at ¶¶ 19-22.) Redesignating so many inmates at once would create a cascade of concerns and threats at exponentially more BOP facilities across the country that would irreparably harm the BOP’s nationwide operations, and disrupt its ongoing response to the COVID-19 pandemic.
Further, the mechanics and costs of complying with the Court’s preliminary injunction order creates great harm to the BOP. (Exhibit C, Declaration of Peter Pottios (“Pottios Decl.”),at ¶¶ 4-10.) As Mr. Pottios explains, it :would be exceptionally difficult if not impossible” to comply with the order. (Id. at ¶ 4.) All of the inmates could not be sent to one facilty. (Id. at ¶ 5.) Further, there would be a limited number of facilities with space, programing needs, and the ability to separate inmates. (Id. at ¶ 6.) Even transporting the inmates creates risk of the spread of COVID-19. (Id. at ¶ 7.) Not only does this create enormous practical problems, it also would be cost prohibitive. (Id. at ¶ 8-10.)
The preliminary injunction, coupled with the Court’s instruction on the record to publish the list of inmates, further causes irreparable harm by requiring the names of medically
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vulnerable inmates to be published publicly. The preliminary injunction requires BOP to identify inmates who are at higher risk for serious complications from COVID-19 due to age and/or underlying medical conditions. BOP did so. The Court then ordered public filing of the names on that list. The Court has explained that this “includes all Elkton inmates 65 or older and those with documented, pre-existing medical conditions, including heart, lung, kidney, and liver conditions, diabetes, conditions causing a person to be immunocompromised (including, but not limited to cancer treatment, transplants, HIV or AIDS, or the use of immune weakening medications), and severe obesity (body mass index of 40 or higher).” (Order, ECF No, 22 PageID # 363.) This list is therefore made up of the highly personal and privileged information of hundreds of inmates who are not before the Court. Without a stay of any requirement to publish the list, an inmate’s name on a list of medically-vulnerable inmates will always be public and, even if the appeal is successful, there will be no way to retroactively protect their privacy. A stay is appropriate to prevent great and irreparable harm to their privacy. Moreover, inmates on the list may wish to opt out of the class action and may well object to a transfer from a minimum security facility like Elkton to a “single cell” facility.
Those harms to the public and to third parties outweigh any harms a stay would inflict on Petitioners. Even before Petitioners brought this action and before the Court issued a preliminary injunction, the BOP was acting urgently to mitigate the risks of COVID-19 within its facilities and to reduce prison populations, to the extent possible. The BOP was, for example, already prioritizing the use of home confinement as a tool for combatting the dangers that COVID-19 poses to vulnerable inmates pursuant to the Attorney General’s March 26, 2020 and April 3, 2020 Memoranda. (ECF No. 10-2 PageID # 192 at ¶ 17.) The BOP has also been assessing and, in appropriate instances, recommending to an inmate’s sentencing court to reduce
16

Case: 4:20-cv-00794-JG Doc #: 29-1 Filed: 04/28/20 17 of 18. PageID #: 415
a term of imprisonment under 18 U.S.C. § 4205. In addition to reducing prison populations, BOP has been taking extensive measures to
reduce the spread of COVID-19 among the inmates at Elkton, including providing inmate and staff education; conducting inmate and staff screening; testing, quarantine, and isolation procedures; enhanced cleaning and sanitization protocols; providing soap, cleaning supplies, and personal protective equipment (PPE) to inmates; and restricting inmates to their residential area with only one pod moving at a time. (ECF# 10-1 PageID # 178-185 at ¶¶ 19-54). These efforts have been working as the number of new cases has been reduced. BOP is committed to inmate safety and, even with a stay, will continue its efforts to reduce the inmate population at Elkton and to take measures to prevent the spread of COVID-19 within Elkton.
Further, Respondents submit that staying the brief schedule for class certification and any hearing or decision related thereto is in the public interest. A stay will conserve judicial resources and prevent a ruling in a case in which the Sixth Circuit may soon determine that this Court lacks jurisdiction. It would also prevent confusion among class members regarding whether they need to file their own requests under appropriate administrative procedures or whether their requests are governed by the orders of this Court.
CONCLUSION For the foregoing reasons, Respondents respectfully urge this Court to grant the Motion to Stay and suspend the preliminary injunction pending appeal.
(Signatures on the following page.)
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Case: 4:20-cv-00794-JG Doc #: 29-1 Filed: 04/28/20 18 of 18. PageID #: 416
Respectfully submitted, JUSTIN E. HERDMAN United States Attorney By: /s/ James R. Bennett II James R. Bennett II (OH #0071663) Sara DeCaro (OH #0072485) Assistant United States Attorneys United States Courthouse 801 West Superior Ave., Suite 400 Cleveland, Ohio 44113 216-622-3988 - Bennett 216-522-4982 - Fax James.Bennett4@usdoj.gov Sara.DeCaro@usdoj.gov Attorneys for Respondents
CERTIFICATE OF COMPLIANCE Pursuant to Loc. R. 7.1(f), undersigned counsel certifies that the foregoing memorandum is 16 pages and within the limits of an unassigned matter.
/s/ James R. Bennett II James R. Bennett II (OH #0071663) Assistant United States Attorney
18

 
 Case: 4:20-cv-00794-JG Doc #: 29-2 Filed: 04/28/20 1 of 16. PageID #: 417

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

WILSON, ET AL, Petitioners
v. WILLIAMS, ET AL,
Respondents

*

*

*

CASE NO. 4:20-CV-00794

*

*

* *

JUDGE GWIN

*

DECLARATION OF KRISTY COLE

I, Kristy Cole, do hereby declare, certify and state as follows:

1. I am employed by the United States Department of Justice, Federal Bureau of Prisons

(BOP). I currently work as the Case Management Coordinator (CMC) at Federal Correctional

Institution (FCI) Elkton in Lisbon, Ohio. I have held this position since September, 2007. I have

been employed by BOP since March, 1997.

2. The CMC's Office is dedicated to providing oversight of case management activities

within the institution. This office works directly with the unit teams, providing training and

disseminating information to insure that the institution is in compliance with Correctional

Programs' policies and procedures. The CMC provides coordination and oversight of many

programs within the institution, including, but not limited to, Central Inmate Monitoring, ·

Financial Responsibility, Admission and Orientation, Inmate Performance Pay, Victim/Witness

Program and Adam Walsh Act compliance. The CMC also oversees the Correctional Systems

Department. The CMC Office at FCI Elkton has two staff members: myself and an Assistant

Case Management Coordinator.
1

GOVERNMENT EXHIBIT
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Case: 4:20-cv-00794-JG Doc #: 29-2 Filed: 04/28/20 2 of 16. PageID #: 418
THE BOP'S DESIGNATION AUTHORITY UNDER 18 U.S.C. §362l(b)
3. Attached to this declaration is a true and correct copy of BOP Program Statement
5100.08, Inmate Security Designation and Custody Classification (the "Program Statement").
4. The BOP issued the Program Statement to provide guidance to staff on how to apply
Title 18 United States Code (U.S.C.) § 3621(b), which states in pertinent part:
The Bureau of Prisons shall designate the place of the prisoner's imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering-
(1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence (A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or correctional facility as appropriate; and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28.
See 18 U.S.C. § 3621(b) (Emphasis added).
OVERVIEW OF THE BOP'S DESIGNATION PROCESS
5. The BOP created the Designation and Sentence Computation Center (DSCC) to
centralize all determinations regarding inmate sentence computations and institution placements.
The DSCC is located in Grand Prairie, Texas.
6. Decisions regarding jnitial institution placements are referred to as designations.
7. DSCC is divided into 18 teams of staff, each identified by a name. Seventeen of these
teams are organized by sentencing district. Those 17 teams are responsible for all sentence
computations and classification of defendants from their sentencing districts. The remaining
)
2

Case: 4:20-cv-00794-JG Doc #: 29-2 Filed: 04/28/20 3 of 16. PageID #: 419
team is Hotel Team. It is responsible for designating the facility where those defendants will
serve their criminal sentences 8. Once a defendant is sentenced to a federal term of imprisonment,.staff of the United States Probation Office (USPO) upload documents to an electronic system known as "eDesignate". For cases involving original sentencing to·a term of imprisonment, these documents typically include the Judgement in a Criminal Case and the Presentence Investigation Report (PSR). For cases involving sentencing to a term of imprisonment based upon revocation of a term of supervised release, these documents typically include the order by which the court revoked supervised release and imposed a term of imprisonment, along with the revocation petition, which BOP staff also refer to as the violation report. 9. Once USPO staff have uploaded the relevant documents, the case is transferred on eDesignate to the United States Marshals Service (USMS). Typically, USMS staff then upload a copy of the defendant's USM-129, Individual Custody/Detention Report, to eDesignate and then use eDesignate to transfer the case to the BOP and to request that the DSCC either provide a release date for the defendant (in cases where the defendant received a short sentence and there is not sufficient time to transport him to a facility before his release date) or designate the defendant to a facility to serve the term of imprisonment. 10. Once a case has been transferred from the USMS to the BOP, staff of the DSCC team assigned to the defendant's sentencing district will open the case and begin the designation process. When the process has been completed, DSCC staff respond to the USMS request through eDesignate, usually by notifying the USMS where the inmate will serve the term of imprisonment. The USMS then transports the inmate to the designated facility or, if the
3

Case: 4:20-cv-00794-JG Doc #: 29-2 Filed: 04/28/20 4 of 16. PageID #: 420

defendant has been allowed to voluntarily surrender, the USMS will notify the defendant of the

facility at which he must appear on the scheduled date.

FACTORS IN THE DESIGNATION PROCESS

11. When making designations about inmate designations, the BOP follows the guidance

contained in the Program Statement which provides:

This Program Statement provides policy and procedure regarding the Bureau of Prisons inmate classification system. The classification of inmates is necessary to place each inmate in the most appropriate,se~urity level institution that also meets their program needs and is consistent with th~ Bureau's mission to protect society. The Bureau's classification, designation and redesignation procedures are consistent with the statutory authority contained in 18 U.S.C. § 3621(6). All classification, designation and redesignation decisions are made without favoritism given to an inmate's social or economic status.

PS 5100.08 at page 1.

12. Consistent with the Program Statement, DSCC staff on the team assigned to the

defendant's sentencing district consider the following primary factors when making a

designation decision: (1) the level of security and supervision the inmate requires; (2) the level of

security and staff supervision the institution is able to provide; and (3) the inmate's program

needs. PS 5100.08 at Chapter 1, page 1.

13. DSCC staff also consider additional factors including, but not limited to:

•

The inmate's release residence;

•

The level of overcrowding at an institution;

•

Any security, location or program recommendation made by the

sentencing court;

•

Any Central Inmate Monitoring issues (see Program Statement Central

Inmate Monitoring Program);

4

Case: 4:20-cv-00794-JG Doc #: 29-2 Filed: 04/28/20 5 of 16. PageID #: 421

•

Any additional security measures to ensure the protection of

victims/witnesses and the public in general; and,

•

Any other factor(s) which may involve the inmate's confinement; the

protection of society; and/or the safe and orderly management of a BOP

facility.

PS 5100.08 at Chapter 1, pages 1-2.

14. The designation process involves two parts. First, DSCC staff on the team responsible

for the inmate's sentencing district classify the inmate according to a security level (minimum,

low, medium or high) and assign the inmate a custody level (community, out, in, or maximum)..

Second, DSCC staff on Hotel Team designate the inmate to a particular facility commensurate

with their security level and custody level and the factors identified below.

15. An inmate's security level represents the level of security the inmate requires. It is based

on the Criminal History Points as noted in the Presentence Investigation Report, and, if these

points are contested, as ruled upon by the Court in the Statement of Reasons. The BOP has

created Public Safety Factors and Management Variables which may adjust the inmate's security

level up or down depending on the BOP's professional judgment. PS 5100.08 at Chapter 5.

16. An inmate's custody classification represents the amount of staff supervision the. inmate

requires. It is tied to an inmate's security level. PS 5100.08 at Chapter 1, page 2 and Chapter 2,

page 2.

THE REDESIGNATION PROCESS

17. Under some circumstances, the BOP may transfer an inmate to a different institution

following initial designation. This is referred to as a redesignation. Reasons for requesting

redesignation include, but are not limited to disciplinary or closer supervision reasons, institution 1

5

Case: 4:20-cv-00794-JG Doc #: 29-2 Filed: 04/28/20 6 of 16. PageID #: 422
classification reasons, institution adjustment reasons, medical/psychological reasons, programming or training reasons, or because an inmate is nearing release. PS 5100.08 at Chapter 7, pages 1-12. 18. If institution staff believe an inmate is no longer appropriate for his current institution based on any of the factors identified in Chapter 7 of the Program Statement, they submit a redesignation request to the DSCC. Ordinarily, the DSCC will decide whether to grant or deny the request. DSCC staff will consider redesignation requests using the same factors outlined in paragraphs 24-26. In deciding whether to grant or deny a redesignation request, DSCC staff also carefully review the inmate's institutional adjustment and program performance. PS 5100. 08 at Chapter 1, page 3 and Chapter 7. 19. If the request is granted, the DSCC will designate the inmate to another facility. If the request is denied, the inmate will remain at the same facility.
THE BOP'S AUTHORITY TO PLACE INMATES ON HOME CONFINEMENT 20. The BOP's statutory authority to transfer prisoners to home confinement rests in 18 U.S.C. § 3624(c)(2) and 34 U.S.C. § 60541. The BOP's policy and procedures regarding home confinement are outlined in BOP Program Statement 7320.01, Home Confinement and BOP Operations Memorandum, Home Confinement under the First Step Act, both of which are available on www.bop.gov via the Resources tab. Both statutes set forth certain limitations with respect to the BOP's transfer authority. See 18 U.S.C. § 3624(c)(2) and 34 U.S.C. § 60541. However, pursuant to the Attorney General's directives in light oft~e COVID-19 pandemic, dated March 26, 2020, and April 3, 2020, infra, and given the surge in positive cases at select site's, the BOP began immediately reviewing all inmates who have COVID-19 risk factors, as
6

Case: 4:20-cv-00794-JG Doc #: 29-2 Filed: 04/28/20 7 of 16. PageID #: 423
described by the Centers for Disease Control and Prevention (CDC), to determine which inmates are suitable for home confinement. Since the release of the Attorney General's original
,
memorandum dated March 26, 2020, the BOP is prioritizing transfers to home confinement of all suitable inmates as an appropriate response to the COVID-19 pandemic.
The Attorney General's Memorandum for the Director of the Bureau of Prisons, dated March 26, 2020
21. On March 26, 2020, the Attorney General issued a Memorandum for the Director of the Bureau of Prisons (the March 26, 2020, Memorandum) to ensure that, in light of the COVID-19 pandemic, BOP utilizes home confinement, where appropriate, to protect the health and safety of BOP personnel and people in BOP's custody. Pursuant to the March 26, 2020, Memorandum, BOP is prioritizing the use of its statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic. It was noted in the March 26, 2020, Memorandum that many inmates will be safer in BOP facilities where the population is controlled and there is ready access to doctors and medical care. But for some eligible inmates, home confinement might be more effective in protecting their health. 22. In assessing whether home confinement should be granted pursuant to the March 26, 2020, Memorandum, BOP considers the totality of circumstances for each individual inmate, the statutory requirements for home confinement, and the following non-exhaustive list of discretionary factors:
a. The age and vulnerability of the inmate to COVID-19, in accordance with the CDC guidelines;
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Case: 4:20-cv-00794-JG Doc #: 29-2 Filed: 04/28/20 8 of 16. PageID #: 424
b. The security level of the facility currently holding the inmate, with priority given to inmates residing in low and minimum security facilities;
c. The inmate's conduct in prison, with inmates who have engaged in violent or gangrelated activity in prison or who have incurred a BOP violation within the last year not receiving priority treatment;
d. The inmate's score under PATTERN (the Prisoner Assessment Tool Targeting Estimated Risk and Need), 1 with inmates who have anything above a minimum score not receiving priority treatment;
e. Whether the inmate has a demonstrated and verifiable re-entry plan that will prevent recidivism and maximize public safety, including verification that the conditions under which the inmate would be confined upon release would present a lower risk of contracting COVID-19 than the inmate would face in his or her BOP facility;
f. The inmate's crime of conviction, and assessment of the danger.posed by the inmate to the community. Some offenses, such as sex offenses, will render an inmate ineligible for home confinement. Other serious offenses weigh heavily against consideration for home confinement.
23. In addition to setting forth these factors, the March 26, 2020 Memorandum stated that before granting any inmate discretionary release, the BOP Medical Director, or someone he designates, will, based on CDC guidance, make an assessment of the inmate's risk factors for severe COVID-19 illness, risks of COVID-19 at the inmate's prison facility, as well as the risk of COVID-19 at the location in which the inmate seeks home confinement. The BOP will not grant home confinement to inmates when doing so is likely to increase their risk of contracting
1 For more information on PATTERN, please visit www.bop.gov via Inmates/ First Step Act tab.
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Case: 4:20-cv-00794-JG Doc #: 29-2 Filed: 04/28/20 9 of 16. PageID #: 425

COVID-19. The BOP will grant home confinement only when it has determined -- based on the totality of circumstances for each individual inmate -- that transfer to home confinement is likely not to increase the inmate's risk of contracting COVID-19. 24. Moreover, the March 26, 2020 Memorandum noted that for the protection of the public, any inmate to whom BOP grants home confinement is to be placed in a mandatory 14-day quarantine before that inmate is discharged from a BOP facility to home confinement. Inmates transferred to home confinement under this prioritized process are also subject to locaticm monitoring devices and, where a court order is entered, are subject to supervised release.

The CARES Act and the Attorney General's Memorandum for the Director of the Bureau of Prisons, dated April 3, 2020

25. The Coronavirus Aid, Relief, and Economic Security (CARES) Act, Public Law No. 116-

236 (enacted March 27, 2020), authorizes the Attorney General to expand the cohort of inmates

who can be considered for home confinement upon his finding of emergency conditions which

are materially affecting the function of the BOP. On April 3, 2020, the Attorney General made

'

---,

that finding, and in a Memorandum for the Director of the Bureau of Prisons (April 3, 2020

Memorandum), authorized the Director to immediately maximize appropriate transfers to home

confinement of all appropriate inmates held at BOP facilities where the Director determines that

COVID-19 is materially affecting operations.

26. The April 3, 2020 Memorandum specifically stated that the BOP must move with

dispatch in using home confinement, where appropriate, to move vulnerable inmates out of FCI

Oakdale, FCI Danbury, and FCI Elkton, and to give priority to those institutions, and others

9

Case: 4:20-cv-00794-JG Doc #: 29-2 Filed: 04/28/20 10 of 16. PageID #: 426
similarly affected, as the BOP continues to process the remaining inmates who are eligible for home confinement under pre-CARES Act standards. 27. The April 3, 2020 Memorandum directed that the BOP give priority in implementing the new standards to the most vulnerable inmates at the most affected facilities and was explicit that the BOP should begin implementing this directive immediately at the identified facilities and any other facilities at risk of similar problems. The April 3, 2020 Memorandum stated that the review should include 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. 28. For inmates deemed suitable candidates for home confinement, the April 3, 2020 Memorandum directed the BOP to immediately process these inmates for transfer and then immediately transfer them following a 14-day quarantine at an appropriate BOP facility. The April 3, 2020 Memorandum further authorized BOP to, in appropriate cases, require that the inmate being transferred undergo his or her 14-day quarantine in the residence to which the inmate is being transferred rather than in the BOP facility from which the inmate is being transferred. The assessment of all inmates remains guided by the factors in the March 26, 2020 Memorandum. 29. The April 3, 2020 Memorandum also recognized that the BOP has limited resources to monitor inmates on home confinement and that the U.S. Probation Office is unable to monitor large number of inmates in the community, and authorized the BOP to transfer inmates to home confinement even if electronic monitoring is not available, so long as it determines in every instance that doing so is appropriate and consistent with the obligation to protect public safety.
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Case: 4:20-cv-00794-JG Doc #: 29-2 Filed: 04/28/20 11 of 16. PageID #: 427
30. Lastly, the April 3, 2020 Memorandum stated that it is essential for the BOP to continue making determinations for home confinement in a careful and individualized way that remains faithful to the duty of protecting the public and law enforcement officers.
The BOP's Implementation of the March 26, 2020 and the April 3, 2020 Memoranda 31. The BOP is devoting all available resources to executing the Attorney General's directives, with such resources tailored and prioritized according to the needs of individual institutions across the country. The BOP is assessing the inmate population to determine which inmates would be appropriate for transfer under this priority program. The BOP is then processing those inmates for transfer as expeditiously as possible. 32. The BOP is also frequently updating its public website to provide information and responses to frequently asked questions regarding its response to the COVID-19 pandemic, including providing information regarding its implementation of the Attorney General's directives. 33. The BOP has increased home confinement by 55.2% since March 2020, and is continuing to screen inmates for home confinement. 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 1,576 inmates on home confinement. See www.bop.gov (last viewed on April 27, 2020). 34. Inmates do not need to .apply to be considered for home confinement. BOP staff are reviewing all inmates to determine which ones meet the criteria established by the Attorney General. While all inmates are being reviewed for suitability for home confinement, any inmate who believes he or she is eligible may request to be r·eviewed for home confinement and provide a release plan to his or her Case Manager.
11

Case: 4:20-cv-00794-JG Doc #: 29-2 Filed: 04/28/20 12 of 16. PageID #: 428
35. It should be noted that for public safety reasons, in accordance with the March 26, 2020 Memorandum, and to ensure BOP is deploying its limited resources in the most effective manner, the BOP is currently assessing a number of factors to ensure that an inmate is suitable for home confinement including, but not limited to, reviewing the inmate's institutional discipline history for the last twelve months; ensuring that the inmate has a verifiable release pian; verifying that the inmate's primary or prior offense is not violent, a sex offense, or terrorism related; and confirming the inmate does not have a current detainer. 36. In addition, and in order to prioritize its limited resources, BOP has generally prioritized for home confinement those inmates who have served a certain portion of their sentences, or who have only a relatively short amount oftime remaining in those sentences. While these priority factors are subject to deviation in BOP's discretion in certain circumstances and are subject to revision as the situation progresses, 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. As BOP processes the inmates eligible for home confinement under these criteria and learns more about the
coyrD-19 pandemic and its effect on BOP facilities, it is assessing whether and how to
otherwise prioritize consideration. 37. If the incarcerated individual does not qualify for home confinement under BOP criteria, an inmate may be reviewed for placement in a Residential Reentry Center and home confinement at a later stage in accordance with applicable laws and BOP-policies.
Measures to Protect Inmate and Staff Safety 38. In response to the pandemic, BOP has taken significant measures to protect the health of the inmates in its charge. These steps include, but are not limited to the following:
12

Case: 4:20-cv-00794-JG Doc #: 29-2 Filed: 04/28/20 13 of 16. PageID #: 429
a. Beginning April 13, 2020, BOP implemented Phase VI of the Action Plan, which currently governs operations. The current modified operations plan requires that all inmates in every BOP institution be secured in their assigned
,,
cells/quarters for a period of at least 14 days, in order to stop any spread of the disease. Only limited group gathering is afforded, with attention to social distancing to the extent possible, to facilitate commissary, laundry, showers, telephone, and computer access. Further, BOP has severely limited the movement of inmates and detainees among its facilities. Though there will be exceptions for medical treatment and similar exigencies, this step as well will limit transmissions. b. All staff and inmates have been and will continue to be issued an appropriate face covering and strongly encouraged to wear the face covering when in public areas when social distancing cannot be achieved. c. Every newly admitted inmate is screened for COVID-19 exposure risk factors and symptoms. Asymptomatic inmates with risk of exposure are placed in quarantine. Symptomatic inmates are placed in isolation until they test negative for COVID-19 or are cleared by medical staff as meeting CDC criteria for release from isolation. In addition, in areas with sustained community transmission and at medical centers, all staff are screened for symptoms. Staff registering a temperature of 100.4 degrees Fahrenheit or higher are barred from the facility on that basis alone. A staff member with a stuffy or runny nose can be placed on leave by a medical officer.
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Case: 4:20-cv-00794-JG Doc #: 29-2 Filed: 04/28/20 14 of 16. PageID #: 430
d. Contractor access to BOP facilities is restricted to only those performing essential services (e.g. medical or mental health care, religious, etc.) or those who perform necessary maintenance on essential systems. All volunteer visits are suspended absent authorization by the Deputy Director of BOP. Any contractor or volunteer who requires access will be screened for symptoms and risk factors.
e. Social and legal visits were stopped as of March 13, 2020, and remain suspended until at least May 18, 2020, to limit the number of people entering the facility and interacting with inmates. In order to ensure that familial relationships are maintained throughout this disruption, BOP has increased detainees' telephone allowance to 500 minutes per month. Tours of facilities are also suspended. Legal visits will be permitted on a case-by-case basis after the attorney has.been screened for infection in accordance with the screening protocols in place for prison staff, contractors, and visitors.
f. Further details and updates ofBOP's modified operations are available to the public on the BOP website at a regularly updated resource page: www.bop.gov/coronavirus/index.jsp Compassionate Release / Reduction in Sentence Procedures
44. The BOP lacks the authority to provide inrriates with a reduction in sentence through compassionate or "early release." Rather, only an Article III judge-·specifically, the inmate's sentencing judge-may authorize such a reduction of an inmate's federal ~entence. However, on an inmate's request, the Director of the BOP may make a motion to an inmate's sentencing court to reduce a term of imprisonment under 18 U.S.C. § 4205(g) and 18 U.S.C. §
14

Case: 4:20-cv-00794-JG Doc #: 29-2 Filed: 04/28/20 15 of 16. PageID #: 431
3582(c)(l)(A). The BOP uses these statutory authorities in "extraordinary or compelling circumstances" which could not reasonably have been foreseen by the court at the time of sentencing. This process is outlined in BOP Program Statement 5050.50, Compassionate Release/Reduction In Sentence Procedures for Implementation of18 US.C. §§ 3582 and 4205(g). (This BOP program statement is available at www.bop.gov via the Resources tab). 45. Additionally, the First Step Act specifies that an inmate may file a Motion for Reduction of Sentence directly in the sentencing court after exhaustion of administrative remedies, or 30 days from the date the warden receives such a request from the inmate, whichever is earlier. See 18 U.S.C. § 3582(c)(l)(A).
REQUIREMENTS OF THE PRELIMINARY INJUNCTION 46. I understand BOP has been ordered by the Court in Wilson, et al. v. Williams, et al., No. 4:20-cv-00794 (N.D. Ohio Apr. 22, 2020), to create a list of inmates at FCI Elkton identified by the CDC as being at higher risk of complications from COVID-19. I further understand that BOP has been ordered to evaluate each inmate that is identified for transfer out ofFCI-Elkton through any means, including but, not limited to, compassionate release, parole or community
supervision, transfer furlough, or non-transfer furlough within two weeks. i further understand
that BOP has been ordered to transfer any identified inmate who is ineligible for compassionate release, home release, parole, or community supervision to another BOP facility. I further understand that BOP has compiled a list of 837 inmates who are over the age 65 and/or have diagnosed medical conditions that are identified by the CDC as making an individual at higher risk of complications from COVID-19. 47. The CMC Office's preliminary evaluation of each inmate on the list of 837 inmates for transfer would likely take in excess of 418 man-hours-the equivalent of more than five CMC
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staff members working full time on compliance with this aspect of the district court's order for two weeks. This dedication of work does not include consideration of requests made by the other roughly 1,700 inmates not included on the list. This also does not include the normal operations of the CMC Office nor does this include the additional duties asked of each staff member across all BOP institutions during this world-wide pandemic. 48. Significant work is needed in order to further evaluate and process each inmate prior to the inmate leaving the institution. Importantly, this includes developing a release plan, and having an officer with the United States Probation Office investigate that plan. Moreover, BOP conducts multiple checks at a variety oflevels, for example, N.C.I.C. checks for warrants, victim/witness notifications, and health issues to ensure the continuing safety of the inmate and of the community, before the inmate's release date. Finally, in the case of a request for Compassionate Release, coordination with the U.S. Attorney's Office in the district where the inmate was sentenced is necessary so that a motion could be filed before the sentencing judge for Compassionate Release. Each of these stages with various entities makes it impossible to predict how many man-hours this would require and/or how long this process would take per inmate.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and accurate to the best of my knowledge and belief.
Executed on this 27th day of April 2020.
~ Case Manager Coordinator Federal Correctional Institution Elkton, Ohio
16

 
 Case: 4:20-cv-00794-JG Doc #: 29-3 Filed: 04/28/20 1 of 8. PageID #: 433

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

WILSON, ET AL, Petitioners
v. WILLIAMS, ET AL,
Respondents

*

*

*

CASE NO. 4:20-CV-00794

*

*

* *

JUDGE GWIN

*

______________________________________________________________________________

DECLARATION OF CORY CLARK

I, Cory Clark, do hereby declare, certify and state as follows:

1. I am employed by the United States Department of Justice, Federal Bureau of Prisons

(BOP). I currently work as a Senior Designator for the Designations and Sentence Computation

Center (DSCC) in Grand Prairie, Texas. I have held this position since January 2006. I have

been employed by BOP since January 1996.

THE BOP’S DESIGNATION AUTHORITY UNDER 18 U.S.C. §3621(b)

2. Attached to this declaration is a true and correct copy of BOP Program Statement

5100.08, Inmate Security Designation and Custody Classification (the “Program Statement”).

3. The BOP issued the Program Statement to provide guidance to staff on how to apply

Title 18 United States Code (U.S.C.) § 3621(b), which states in pertinent part:

The Bureau of Prisons shall designate the place of the prisoner’s imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering–

(1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner;

GOVERNMENT EXHIBIT
B

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(4) any statement by the court that imposed the sentence – (A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or correctional facility as appropriate; and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28. See 18 U.S.C. § 3621(b) (Emphasis added). OVERVIEW OF THE BOP’S DESIGNATION PROCESS 4. The BOP created the DSCC to centralize all determinations regarding inmate sentence computations and institution placements. 5. Decisions regarding initial institution placements are referred to as designations. 6. Once a defendant is sentenced to a federal term of imprisonment, staff of the United States Probation Office (USPO) upload documents to an electronic system known as “eDesignate”. For cases involving original sentencing to a term of imprisonment, these documents typically include the Judgement in a Criminal Case and the Presentence Investigation Report (PSR). For cases involving sentencing to a term of imprisonment based upon revocation of a term of supervised release, these documents typically include the order by which the court revoked supervised release and imposed a term of imprisonment, along with the revocation petition, which BOP staff also refer to as the violation report. 7. Once USPO staff have uploaded the relevant documents, the case is transferred on eDesignate to the United States Marshals Service (USMS). Typically, USMS staff then upload a copy of the defendant’s USM-129, Individual Custody/Detention Report, to eDesignate and then use eDesignate to transfer the case to the BOP and to request that the DSCC either provide a release date for the defendant (in cases where the defendant received a short sentence and there is not sufficient time to transport him to a facility before his release date) or designate the defendant to a facility to serve the term of imprisonment.
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8. Once a case has been transferred from the USMS to the BOP, staff of the DSCC team assigned to the defendant’s sentencing district will open the case and begin the classification process. Once classified, the case is referred to the Hotel Team who is responsible for completing designations. When the process has been completed, DSCC staff respond to the USMS request through eDesignate, usually by notifying the USMS where the inmate will serve the term of imprisonment. The USMS then transports the inmate to the designated facility or, if the defendant has been allowed to voluntarily surrender, the USMS will notify the defendant of the facility at which he must appear on the scheduled date.
FACTORS IN THE DESIGNATION PROCESS 9. When making designations about inmate designations, the BOP follows the guidance contained in the Program Statement which provides:
This Program Statement provides policy and procedure regarding the Bureau of Prisons inmate classification system. The classification of inmates is necessary to place each inmate in the most appropriate security level institution that also meets their program needs and is consistent with the Bureau’s mission to protect society. The Bureau’s classification, designation and redesignation procedures are consistent with the statutory authority contained in 18 U.S.C. § 3621(b). All classification, designation and redesignation decisions are made without favoritism given to an inmate’s social or economic status. PS 5100.08 at page 1. 10. Consistent with the Program Statement, DSCC designation staff consider the following primary factors when making a designation decision: (1) the level of security and supervision the inmate requires; (2) the level of security and staff supervision the institution is able to provide; and (3) the inmate’s program needs. PS 5100.08 at Chapter 1, page 1. 11. DSCC designation staff also consider additional factors including, but not limited to:
Ɣ The inmate’s release residence;
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Ɣ The level of overcrowding at an institution; Ɣ Any security, location or program recommendation made by the
sentencing court; Ɣ Any Central Inmate Monitoring issues (see Program Statement Central
Inmate Monitoring Program); Ɣ Any additional security measures to ensure the protection of
victims/witnesses and the public in general; and, Ɣ Any other factor(s) which may involve the inmate’s confinement; the
protection of society; and/or the safe and orderly management of a BOP facility. PS 5100.08 at Chapter 1, pages 1-2. 12. The designation process involves two parts. First, DSCC staff on the team responsible for the inmate’s sentencing district classify the inmate according to a security level (minimum, low, medium or high). Second, DSCC staff on Hotel Team designate the inmate to a particular facility commensurate with their security level and custody level and the factors identified below. 13. An inmate’s security level represents the level of security the inmate requires. Security level is determined by several classification items, to include: an inmate’s voluntary status, months to release, severity of current offense, criminal history score, history of violence and escape, detainer/pending charges, age, education level, and drug and alcohol abuse. In addition, the BOP has created Public Safety Factors and Management Variables which may adjust the inmate’s security level up or down depending on the BOP’s professional judgment. PS 5100.08 at Chapter 5.
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14. An inmate’s custody classification represents the amount of staff supervision the inmate requires. It is tied to an inmate’s security level. PS 5100.08 at Chapter 1, page 2 and Chapter 2, page 2.
THE REDESIGNATION PROCESS 15. Under some circumstances, the BOP may transfer an inmate to a different institution following initial designation. This is referred to as a redesignation. Reasons for requesting redesignation include, but are not limited to disciplinary or closer supervision reasons, institution classification reasons, institution adjustment reasons, medical/psychological reasons, programming or training reasons, or because an inmate is nearing release. PS 5100.08 at Chapter 7, pages 1-12. 16. If institution staff believe an inmate is no longer appropriate for his current institution based on any of the factors identified in Chapter 7 of the Program Statement, they submit a redesignation request to the DSCC. Ordinarily, the DSCC will decide whether to grant or deny the request. DSCC staff will consider redesignation requests using the same factors outlined in paragraphs 24-26. In deciding whether to grant or deny a redesignation request, DSCC staff also carefully review the inmate’s institutional adjustment and program performance. PS 5100.08 at Chapter 1, page 3 and Chapter 7. 17. If the request is granted, the DSCC will designate the inmate to another facility. If the request is denied, the inmate will remain at the same facility.
REQUIREMENTS OF THE PRELIMINARY INJUNCTION 18. I understand BOP has been ordered by the Court in Wilson, et al. v. Williams, et al., No. 4:20-cv-00794 (N.D. Ohio Apr. 22, 2020), to create a list of inmates at FCI Elkton identified by the CDC as being at higher risk of complications from COVID-19. I further understand that
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BOP has been ordered to evaluate each inmate that is identified for transfer out of FCI Elkton through any means, including but, not limited to, compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough within two weeks. I further understand that BOP has been ordered to transfer any identified inmate who is ineligible for compassionate release, home release, parole, or community supervision to another BOP facility. I further understand that BOP has compiled a list of 837 inmates who are over the age 65 and/or have diagnosed medical conditions that are identified by the CDC as making an individual at higher risk of complications from COVID-19. Finally, I understand that inmates transferred from FCI Elkton are to be sent to another BOP facility where measures, such as single-cell placement or social distancing, may be accomplished. 19. There are several reasons why compliance with the Judge’s Order in this case is impossible. 20. The Judge has ordered that inmates transferred from FCI Elkton be sent to another BOP facility where measures, such as single-cell placement or social distancing, may be accomplished. However, inmates are not designated to particular cells. Rather, when a designation is made, DSCC considers the rated capacity and target populations of the prospective institution to determine whether there is enough space per inmate in the physical confines of the institution. The Warden of each institution determines how that space is to be used (single cell, double cell, etc.) depending on the number of inmates designated there and the available space. Thus, there is no way inmates could be transferred with any assurances that the inmate receive a single cell assignment at the new institution. 21. I believe BOP staff are doing their best during the pandemic to provide those social distancing measures that can be provided for the benefit of inmates and staff. However, there is
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no way to determine which institutions are appropriate to transfer inmates based on where social distancing measures could be accomplished. The measures put in place depend on the physical layout of the respective institution. For example, the measures in place at a BOP camp would certainly differ from those taken at one of BOP’s maximum security prisons. Thus, there can be no guarantee that a new facility can provide the measures desired by the Judge. 22. Additional factors besides space capacity and availability of social distancing must be considered by DSCC when re-designating inmates. These factors, including but not limited to programing needs such as the Residential Drug Abuse Program (RDAP), location recommendations from the inmate’s sentencing judge, care levels, and separatee/gang issues, care must be considered. These factors further limit the number of available options for transfer. 23. Should BOP attempt to comply with the Judge’s Order, it is expected that a substantive review of an inmate’s situation and needs would take between 30-40 minutes per inmate on average. Of course, simpler cases would require less time. Complicated cases, such as inmates who require special supervision (of which approximately 50 are housed at FCI Elkton), may require more time and levels of review. 24. Finally, even if the DSCC could comply in this instance with the Judge’s Order, it would be impossible to replicate this should any other Judges issue the same Order. In short order, BOP/DSCC would be unable to transfer inmates pursuant to one Court’s mandate without violating another Court’s similar order.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and accurate to the best of my knowledge and belief.
Executed on this 28th day of April 2020.
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Digitally signed by CORY
CORY CLARK CLARK Date: 2020.04.28 12:18:23
___________________-0_5_'0_0_' _____________ Cory Clark Senior Designator Designation and Sentence Computation Center
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 Case: 4:20-cv-00794-JG Doc #: 29-4 Filed: 04/28/20 1 of 4. PageID #: 441

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

WILSON, ET AL,

*

*

Petitioners

*

CASE NO. 4:20-CV-00794

*

v.

*

WILLIAMS, ET AL,

* *

JUDGE GWIN

Respondents

*

______________________________________*________________________________________

DECLARATION OF PETER POTTIOS

I, Peter Pottios, do hereby declare, certify and state as follows: 1. I am employed by the United States Department of Justice, Federal Bureau of Prisons (BOP). I currently work as the Prisoner Transportation Coordinator for the Designations and Sentence Computation Center (DSCC). I work in Kansas City, Missouri. I have held this position since July 2016. I have been employed by BOP since May 1991. 2. As the Prisoner Transportation Coordinator, I work as the BOP’s liaison to the Justice Prisoner & Alien Transportation System (JPATS). JPATS, managed by the United States Marshals Service, is a system for transporting prisoners and criminal aliens between judicial districts, correctional institutions and foreign countries. JPATS supports the federal judiciary through its scheduling and transportation responsibilities. JPATS transports sentenced prisoners who are in the custody of the BOP to hearings, court appearances and detention facilities. 3. I understand BOP has been ordered by the Court in Wilson, et al. v. Williams, et al., No. 4:20-cv-00794 (N.D. Ohio Apr. 22, 2020), to create a list of inmates at FCI Elkton identified by the CDC as being at higher risk of complications from COVID-19. I further understand that

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BOP has been ordered to evaluate each inmate that is identified for transfer out of FCI-Elkton through any means, including but, not limited to, compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough within two weeks. I further understand that BOP has been ordered to transfer any identified inmate who is ineligible for compassionate release, home release, parole, or community supervision to another BOP facility. I further understand that BOP has compiled a list of 837 inmates who are over the age 65 and/or have diagnosed medical conditions that are identified by the CDC as making an individual at higher risk of complications from COVID-19. Finally, I understand that inmates transferred from FCI Elkton are to be sent to another BOP facility where measures, such as single-cell placement or social distancing, may be accomplished. 4. Complying with the Judge’s Order would be exceptionally difficult if not impossible for a variety of reasons. 5. In the past, there have been occasions when BOP has had to transfer large numbers of inmates at one time due to natural disasters, such as damage caused to facilities from tornados or hurricanes. The most recent example occurred at FCI Estill in Estill, South Carolina earlier this month. In that situation, BOP was forced to transfer about the same number of inmates (832) that are involved in the list in this case. However, those inmates were transferred together and all brought to the same location, USP Lewisburg, which was able to accommodate the security level needed for those inmates. 6. Should BOP be forced to comply with the Judge’s Order, I do not believe there is a low security facility that would be able to house the FCI Elkton inmates as a group. Rather, smaller groups of inmates would be transferred together to a variety of BOP’s low security institutions
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around the nation. The list of low security facilities is further reduced when other factors, such as space capacity, programing needs, separatee requirements, and other issues are considered. 7. One of the Court’s concerns is that medically vulnerable inmates maintain social distancing. The ability to maintain this during transportation is almost impossible. If inmates are transported by bus from one institution to another, up to 40 inmates are transported together making social distancing between inmates and BOP staff impossible. Flights, which normally can carry up to 126 inmates, are now capped at 81 in an effort to reduce contact during the pandemic. Still, inmates/staff are around each other in an enclosed environment. Thus, eliminating the chances of the spread of disease is impossible. 8. Another impact with complying with the Judge’s Order is the monetary cost associated. JPATS charges BOP for the cost of transporting inmates. JPATS charges BOP $15,790 per flight hour to transport inmates on its planes. In Fiscal Year 2018, it cost an average of $863 per inmate to transport an inmate by air. It cost an average of $190 per inmate to transport an inmate by bus. 9. The mission to transfer the Estill inmates took BOP staff four days and cost in excess of $1,000,000. Transporting inmates to various institutions, as described above, would increase these costs tremendously. 10. The costs described above do not include the number of man-hours it would take to move the inmates, which obviously varies depending on the distance and mode of transportation. However, BOP can spend on average between $600-$2,000 in additional expenses and per diem costs for each group of 40 inmates transported by bus.
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Case: 4:20-cv-00794-JG Doc #: 29-4 Filed: 04/28/20 4 of 4. PageID #: 444 Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and accurate to the best of my knowledge and belief. Executed on this 28th day of April 2020.
Digitally signed by PETER
PETER POTTIOS POTTIOS Date: 2020.04.28 13:14:34
_________________-_05_'0_0'________________ Peter Pottios Prisoner Transportation Coordinator Designation and Sentence Computation Center
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 Case: 4:20-cv-00794-JG Doc #: 33 Filed: 04/29/20 1 of 3. PageID #: 503

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

CRAIG WILSON, ERIC BELLAMY, KENDAL NELSON, and MAXIMINO NIEVES, on behalf of themselves and those similarly situated,
Petitioners,
v.
MARK WILLIAMS, warden of Elkton Federal Correctional Institutions; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities,
Respondents.

Case No. 20-cv-0794 Judge James Gwin

PETITIONERS’ MOTION FOR CLASS CERTIFICATION Pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2), Petitioners hereby move to certify this case as a class action as follows, and for appointment of the undersigned as class counsel under Rule 23(g). Class: All current and future people in post-conviction custody at Elkton. Subclass: The proposed subclass includes those prisoners who are particularly vulnerable to injury or death if they were to contract COVID-19. This subclass includes: (a) all current and future persons incarcerated at Elkton over the age of 50 and (b) all current and future persons incarcerated at Elkton of any age who experience: chronic lung disease or moderate to severe asthma; serious heart conditions; conditions that can cause a person to be immunocompromised (including cancer treatment, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, or prolonged use of corticosteroids and other immune weakening medications); severe obesity (defined as a body mass index of 40 or higher); diabetes; chronic kidney disease or undergoing dialysis; or liver disease.

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The grounds for this Motion are more fully set forth in the Memorandum in Support filed herewith.

Respectfully submitted,

/s/ David J. Carey David J. Carey (0088787) ACLU of Ohio Foundation 1108 City Park Avenue, Ste. 203 Columbus, OH 43206 Phone: (614) 586-1972 Fax: (614) 586-1974 dcarey@acluohio.org
Joseph Mead (0091903) Freda J. Levenson (0045916) ACLU of Ohio Foundation 4506 Chester Avenue Cleveland, OH 44102 Phone: (614) 586-1972 Fax: (614) 586-1974 attyjmead@gmail.com flevenson@acluohio.org

David A. Singleton (0074556) Mark A. Vander Laan (0013297) Michael L. Zuckerman (0097194) Ohio Justice & Policy Center 915 East Ninth Street, Suite 601 Cincinnati, OH 45202 Phone: (513) 421-1108 dsingleton@ohiojpc.org mvanderlaan@ohiojpc.org mzuckerman@ohiojpc.org
Counsel for Petitioners

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CERTIFICATE OF SERVICE
I hereby certify that on April 29, 2020, the foregoing was filed with the Court’s CM/ECF
system. Notice of this filing will be sent by operation of that system to all counsel of record.
/s/ David J. Carey David J. Carey (0088787) ACLU of Ohio Foundation 1108 City Park Avenue, Ste. 203 Columbus, OH 43206 Phone: (614) 586-1972 Fax: (614) 586-1974 dcarey@acluohio.org
Counsel for Petitioners

Case: 4:20-cv-00794-JG Doc #: 33-1 Filed: 04/29/20 1 of 8. PageID #: 506

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

CRAIG WILSON, ERIC BELLAMY, KENDAL NELSON, and MAXIMINO NIEVES, on behalf of themselves and those similarly situated,
Petitioners,
v.
MARK WILLIAMS, warden of Elkton Federal Correctional Institutions; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities,
Respondents.

Case No. 20-cv-0794 Judge James Gwin

MEMORANDUM IN SUPPORT OF PETITIONERS’ MOTION FOR CLASS CERTIFICATION
As of 4:00 p.m., the Bureau of Prisons reports that its testing has identified 45 prisoners and 48 staff who are COVID-19 positive at Elkton.1 Seven prisoners have died—the highest number of fatalities at a prison in the BOP system.2 This reality, along with the record evidence submitted to date, establish that “the deteriorating health conditions at Elkton pose a danger for each of the 2,400 men who are incarcerated” there and “an even greater risk for inmates whose medical conditions put them at higher risk of death if they contract the virus.” PI Order, ECF No. 22 at 6. This unabated exposure to a highly infectious, potentially fatal disease presents an unacceptable risk to these prisoners’ health that violates their constitutional rights.
Petitioners thus move to certify this case as a class action under Federal Rule of Civil Procedure 23(a) and 23(b)(2) and for appointment of the undersigned as class counsel under Rule 23(g).

1 See Federal Bureau of Prisons, COVID-19, https://bit.ly/bopcovid (last visited Apr. 29, 2020). 2 See id. (reporting seven deaths at one other facility, Oakdale I FCI).
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PROPOSED CLASS AND SUBCLASS DEFINITIONS Class: All current and future people in post-conviction custody at Elkton. Subclass: The proposed subclass includes those prisoners who are particularly vulnerable to injury or death if they were to contract COVID-19. This subclass includes: (a) all current and future persons incarcerated at Elkton over the age of 50 and (b) all current and future persons incarcerated at Elkton of any age who experience: chronic lung disease or moderate to severe asthma; serious heart conditions; conditions that can cause a person to be immunocompromised (including cancer treatment, bone marrow or organ transplantation, immune deficiencies, poorly controlled HIV or AIDS, or prolonged use of corticosteroids and other immune weakening medications); severe obesity (defined as a body mass index of 40 or higher); diabetes; chronic kidney disease or undergoing dialysis; or liver disease.
ARGUMENT A class action may be maintained if Rule 23(a)’s four requirements are met and the class is one listed in Rule 23(b). See Fed. R. Civ. P. 23(a)-(b). The proposed class and subclass meet Rule 23(a)’s requirements and seek relief as described in Rule 23(b)(2). I. The Proposed Class Satisfies the Requirements of Rule 23(a). Rule 23(a) contains four requirements: numerosity, commonality, typicality, and adequacy. Fed. R. Civ. P. 23(a). Each requirement is met here. Numerosity. The proposed Class and Subclass are sufficiently numerous to make joinder “impracticable.” Fed. R. Civ. P. 23(a)(1). There are approximately 2,407 persons within the proposed Class. See Federal Bureau of Prisons, FCI Elkton, available at https://bit.ly/bopelkton (last visited Apr. 29, 2020). There are “hundreds” of prisoners within the proposed Subclass. See PI Order, ECF No. 22 at 13 n.51 (reaching this conclusion after review of a list of “Elkton inmates
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with certain medical conditions”).3 Respondents have already identified at least 837 members using a keyword search. See Stay Mot., ECF No. 30-1 at 3. More may well be uncovered through additional investigation. These kinds of “substantial numbers” meet the numerosity requirement. Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006) (internal quotation marks omitted).
Commonality. “[T]here are questions of law or fact common to the” proposed Class and Subclass. Fed. R. Civ. P. 23(a)(2). The commonality requirement is met if the class’s claims “depend on a common contention” such that “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). That is the case here, where the claim is that continued incarceration at Elkton exposes the Class and Subclass members to a risk of contracting COVID19 that violates their Eighth Amendment rights.
“[T]here need be only one common question to certify a class,” and here there are many. In re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig., 722 F.3d 838, 853 (6th Cir. 2013). Common questions of fact include questions related to the risk of COVID-19 at Elkton, such as the current incidence of COVID-19 among persons incarcerated or working at Elkton and whether those incarcerated at Elkton are housed in accordance with CDC guidance. See, e.g., PI Order, ECF No. 22 at 16 (noting that “Elkton has altogether failed to separate its inmates at least six feet apart”). There are also common questions of fact related to the BOP’s actions—or failure to act— in response to those risks, such as the rate of testing at Elkton and measures implemented to avoid the spread of COVID-19. See, e.g., id. (“One only need look at Elkton’s testing debacle for one example of this deliberate indifference.”). Common questions of law, meanwhile, include whether
3 Because this Court’s preliminary injunction opinion addressed a narrower group of persons than the proposed subclass—restricting the age-based subclass definition to those persons over 65—the proposed subclass here is necessarily in the hundreds. See PI Order, ECF 22 at 12.
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the Respondents’ actions at Elkton amount to deliberate indifference that creates a risk of serious illness, needless suffering, and death to those incarcerated there in violation of the Eighth Amendment. These questions will “generate common answers” that are “apt to drive the resolution of the litigation.” Wal-Mart, 564 U.S. at 350 (internal quotation marks omitted).
Respondents disagree, but their arguments lack merit. They primarily argue that if the Court determines that continued confinement at Elkton violates the Class and Subclass members’ constitutional rights, then they—that is, the BOP—will have to make individualized determinations when assessing how to transfer those members out of Elkton. See PI Opp., ECF No. 10 at 36–37. That argument says nothing about whether class litigation will allow the Court to answer questions common to all claims. Respondents also suggest that the two-pronged test for deliberate indifference “may” differ among subclass members. Stay Mot., ECF No. 30-1 at 14. They do not explain how, and there is no indication that it should. The proposed Subclass definition borrows from the categories that the Government itself uses to identify those at highest risk for COVID-19. See Centers for Disease Control and Prevention, People Who Are at Higher Risk for Severe Illness, available at https://bit.ly/cdcrisks (last visited Apr. 28, 2020).4 During an ongoing pandemic, the Government cannot expect litigants to offer more fine-grained risk calculations based on medical conditions than it does. And Respondents have not shown that they have treated some Subclass members more indifferently than others based on such calculations.
4 As this Court recognized, the CDC identifies people 65 or older as high risk. See PI Order, ECF No. 22 at 12 n. 49 (invoking cours’ “broad authority to modify class definitions”). However, the Government’s latest available data supports the proposed Subclass cutoff of age 50. See, e.g., Centers for Disease Control and Prevention, Severe Outcomes Among Patients with Coronavirus Disease 2019 (COVID-19) — United States, February 12–March 16, 2020, tbl. 2, available at https://bit.ly/cdc316data (last visited Apr. 29, 2020) (listing the hospitalization rates as 21.2– 28.3% for ages 45 to 54, 20.5–30.1% for ages 55–64, and 28.6–43.5% for ages 65–74; ICU admission rates as 5.4– 10.4% for ages 45 to 54, 4.7–11.2% for ages 55–64, and 8.1–18.8% for ages 65–74; and fatality rates as 0.5–0.8% for ages 45 to 54, 1.4–2.6% for ages 55–64, and 2.7–4.9% for ages 65–74).
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Typicality. The named Petitioners’ claims are “typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Each Petitioner is housed at Elkton. Petitioners Bellamy, Nelson, and Wilson can also represent the Subclass because each is over the age of 50 and/or has one of the conditions listed in the definition of the Subclass above. Because the harm that each of them faces stems directly from Respondents’ conduct toward the class as a whole, this Court “may properly attribute a collective nature to the challenged conduct.” See Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007).
Adequacy. The Named Petitioners “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Petitioners have no interests adverse to the interests of the proposed Class and Subclass. Petitioners retained pro bono counsel with experience and success in the prosecution of civil rights litigation. Counsel know of no conflicts among proposed class members or between counsel and proposed class members. II. The Proposed Class Satisfies the Requirements of Rule 23(b)(2).
Rule 23(b)(2) permits class adjudication where, as here, Respondents “acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). “Rule 23(b)(2) has been liberally applied in the area of civil rights, including suits challenging conditions and practices at various detention facilities.” Braggs v. Dunn, 317 F.R.D. 634, 667 (M.D. Ala. 2016) (citation omitted). That is because “[t]he key to the (b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’” WalMart, 564 U.S. at 360 (citation omitted).
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Here, Respondents’ actions—and inaction—came in response to the risks of COVID-19 at Elkton, a ground that applies to all Class and Subclass members. Respondents’ deliberate indifference to the health and safety of all members of the Class and Subclass can be remedied only by declaring Respondents’ conduct in violation of Petitioners’ constitutional rights and granting injunctive relief to alleviate those risks. Rule 23(b)(2) is thus satisfied. See, e.g., Cole v. City of Memphis, 839 F.3d 530, 542 (6th Cir. 2016) (“[T]he focus in a (b)(2) class is more heavily placed on the nature of the remedy sought.”).5 III. Appointment of Class Counsel Is Appropriate.
The Court should appoint undersigned counsel class counsel here. Fed. R. Civ. P. 23(g)(1); see also PI Order, ECF No. 22 at 14 (“[C]ounsel is competent to represent the class.”). Counsel investigated the conditions at FCI-Elkton and the potential claims that could afford prisoners relief. See Fed. R. Civ. P. 23(g)(1)(A)(i); Carey Decl. ¶ 7. Counsel have experience handling complex cases on prisoners’ behalf, including experience in litigating inadequate medical treatment in federal prisons in Ohio. See Fed. R. Civ. P. 23(g)(1)(A)(ii); Carey Decl. ¶¶ 2–6. This has given counsel extensive “knowledge of the applicable law.” Fed. R. Civ. P. 23(g)(1)(A)(iii). And counsel has the resources and financial capacity to litigate this action. See Fed. R. Civ. Proc. 23(g)(1)(A)(iv); Carey Decl. ¶ 8. Counsel will thus “fairly and adequately represent the interests” of the Class and Subclass. Fed. R. Civ. P. 23(g)(4).
5 In the alternative, the requirements of Rule 23(b)(1) are satisfied, because prosecuting separate actions would create a risk of inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of contact for the party opposing the proposed classes.
6

Case: 4:20-cv-00794-JG Doc #: 33-1 Filed: 04/29/20 7 of 8. PageID #: 512

CONCLUSION For these reasons, Petitioners ask this Court to certify the described Class and Subclass.

Respectfully submitted,

/s/ David J. Carey David J. Carey (0088787) ACLU of Ohio Foundation 1108 City Park Avenue, Ste. 203 Columbus, OH 43206 Phone: (614) 586-1972 Fax: (614) 586-1974 dcarey@acluohio.org
Joseph Mead (0091903) Freda J. Levenson (0045916) ACLU of Ohio Foundation 4506 Chester Avenue Cleveland, OH 44102 Phone: (614) 586-1972 Fax: (614) 586-1974 attyjmead@gmail.com flevenson@acluohio.org

David A. Singleton (0074556) Mark A. Vander Laan (0013297) Michael L. Zuckerman (0097194) Ohio Justice & Policy Center 915 East Ninth Street, Suite 601 Cincinnati, OH 45202 Phone: (513) 421-1108 dsingleton@ohiojpc.org mvanderlaan@ohiojpc.org mzuckerman@ohiojpc.org
Counsel for Petitioners

7

Case: 4:20-cv-00794-JG Doc #: 33-1 Filed: 04/29/20 8 of 8. PageID #: 513
CERTIFICATE OF SERVICE
I hereby certify that on April 29, 2020, the foregoing was filed with the Court’s CM/ECF
system. Notice of this filing will be sent by operation of that system to all counsel of record.
/s/ David J. Carey David J. Carey (0088787) ACLU of Ohio Foundation 1108 City Park Avenue, Ste. 203 Columbus, OH 43206 Phone: (614) 586-1972 Fax: (614) 586-1974 dcarey@acluohio.org
Counsel for Petitioners

 
 Case: 4:20-cv-00794-JG Doc #: 33-2 Filed: 04/29/20 1 of 5. PageID #: 514
Exhibit A

Case: 4:20-cv-00794-JG Doc #: 33-2 Filed: 04/29/20 2 of 5. PageID #: 515

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

CRAIG WILSON, ERIC BELLAMY, KENDAL NELSON, and MAXIMINO NIEVES, on behalf of themselves and those similarly situated,
Petitioners,
v.
MARK WILLIAMS, warden of Elkton Federal Correctional Institutions; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities,
Respondents.

Case No. 20-cv-0794 Judge James Gwin

DECLARATION OF DAVID J. CAREY IN SUPPORT OF PETITIONERS’ MOTION FOR CLASS CERTIFICATION I, David J. Carey, declare as follows: 1. I am an attorney admitted to practice before courts of Ohio and New York. I am the Senior Staff Attorney at the American Civil Liberties Union of Ohio Foundation (“ACLU of Ohio”). I make this Declaration based on my personal knowledge, based on a review of the records maintained by my office and the office of my co-counsel in the ordinary course of business, and based on the representations of my co-counsel on which I reasonably rely. 2. I have approximately ten years of complex litigation experience as counsel for both plaintiffs and defendants. In my position at the ACLU of Ohio, I have litigated multiple prisoners’ rights and other post-conviction actions in federal and state courts in Ohio, as well as litigating in other areas of constitutional law pertaining to voting rights, equal protection, and free expression. Prior to my work at the ACLU of Ohio, I practiced in complex commercial litigation and business litigation at large commercial law firms in Columbus, OH and New York, NY, where I litigated complex contract disputes, labor and employment, product liability, and antitrust cases, as well as

Case: 4:20-cv-00794-JG Doc #: 33-2 Filed: 04/29/20 3 of 5. PageID #: 516
serving on a team litigating a post-conviction appeal in a capital murder case in Alabama. I received my undergraduate degree magna cum laude and with high honors from the College of William and Mary in 2006, and my law degree from New York University School of Law in 2009, where I was a Robert McKay Scholar.
3. The ACLU of Ohio is an affiliate of the national ACLU, which has nearly five decades of experience in complex prisoner rights class actions and has represented prisoners in five cases before the U.S. Supreme Court. Since its founding, the ACLU has litigated challenges on behalf of detainees in almost every U.S. state, as well as the District of Columbia, and federal courts have long recognized the special expertise of ACLU staff.1 The ACLU of Ohio has particular experience litigating prisoners’ rights cases, having litigated several complex prisoners’ rights cases in recent years, as well as one case that went to the U.S. Supreme Court in 2005.
4. ACLU counsel on this case also include Joseph Mead and Freda Levenson, both of whom have considerable experience with constitutional and other civil litigation. Mr. Mead is Associate General Counsel for the ACLU of Ohio, and is an Assistant Professor at the ClevelandMarshall College of Law, where he studies and teaches constitutional law, civil procedure, and nonprofit law. Mr. Mead has also served as a trial attorney for the United States Department of Justice, Civil Division, representing the United States in complex and constitutional litigation across the country, including litigating nationwide class actions and putative class actions, and clerked for judges of the United States Court of Appeals for the Sixth Circuit and the U.S. District Court for the Eastern District of Michigan. Ms. Levenson is the Legal Director of the ACLU of
1 See, e.g., Plyler v. Evatt, 902 F.2d 273, 278 (4th Cir. 1990); Palmigiano v. Garrahy, 707 F.2d 636, 637 (1st Cir. 1983); Duvall v. O'Malley, No. CV ELH-94-2541, 2016 WL 3523682, at *9 (D. Md. June 28, 2016); Dockery v. Fischer, 253 F. Supp. 3d 832, 856 (S.D. Miss. 2015); Riker v. Gibbons, No. 3:08-CV-00115-LRH, 2010 WL 4366012, at *4 (D. Nev. Oct. 28, 2010); Diaz v. Romer, 801 F. Supp. 405, 410 (D. Colo. 1992), aff'd, 9 F.3d 116 (10th Cir. 1993).

Case: 4:20-cv-00794-JG Doc #: 33-2 Filed: 04/29/20 4 of 5. PageID #: 517
Ohio, and litigates extensively in a wide range of constitutional and other civil matters, including on behalf of people involved in the criminal justice system specifically. She recently served as trial attorney in a class action before the U.S. District Court for the Southern District of Ohio that resulted in a $5 million recovery across thousands of class members, and served as lead counsel in a landmark challenge to partisan gerrymandering in Ohio. She previously served as a litigation partner at a large commercial law firm in Chicago.
5. Co-counsel the Ohio Justice & Policy Center (OJPC) has 23 years of experience litigating on behalf of incarcerated people in Ohio. Originally founded as the Prison Reform Advocacy Center in 1997, OJPC has litigated in both state and federal court to protect the human rights of people in prison.
6. OJPC counsel on this case are David A. Singleton, Mark A. Vander Laan, and Michael L. Zuckerman. Mr. Singleton is the executive director of OJPC as well as a professor of law and director of the Constitutional Litigation Clinic at Northern Kentucky University’s Chase College of Law, through which he has litigated dozens of cases in federal court. He has practiced law for 28 years, including litigating a class action in the U.S. District Court for the Southern District of Ohio that resulted in a settlement to improve health care for all Ohio prisoners. Mr. Vander Laan is the litigation director of OJPC. He has over forty years of litigation experience, having previously served as a litigation partner of a large Ohio-based firm. Mr. Zuckerman is an attorney and Skadden Fellow at OJPC. He previously served as a law clerk at the U.S. Supreme Court and the U.S. Court of Appeals for the Sixth Circuit.
7. Class counsel have conducted an extensive investigation into Elkton Federal Correctional Institution, as well as the social distancing requirements that are necessary to prevent or mitigate an outbreak of COVID-19.

Case: 4:20-cv-00794-JG Doc #: 33-2 Filed: 04/29/20 5 of 5. PageID #: 518
8. Class counsel have sufficient financial and human resources to litigate this matter.
I declare under penalty of perjury that the foregoing is true and correct. Executed on April 29, 2020 in Columbus, OH.
/s/ David J. Carey David J. Carey

 
 Case: 4:20-cv-00794-JG Doc #: 85 Filed: 05/19/20 1 of 11. PageID #: 1123

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

:

CRAIG WILSON, et al.,

:

:

Petitioners,

:

:

vs.

:

:

MARK WILLIAMS, et al.,

:

:

Respondents.

:

:

CASE NO. 4:20-cv-00794
ORDER [Resolving Docs. 51, 58, 78]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: On April 13, 2020, Petitioners, inmates at Elkton, brought this emergency habeas
action seeking modification of their sentences. Mostly, the Petitioners seek release from Elkton due to the spread of COVID-19 within the prison.1
On April 22, 2020, this Court granted a preliminary injunction in favor of Petitioners, ordering Respondents to identify members of the subclass; evaluate each subclass member’s eligibility for transfer within two weeks (by May 6), prioritizing the most medically vulnerable inmates; and requiring transfer inmates ineligible for other forms of release to different BOP facilities with less contagion factors.2
On May 6, 2020, Respondents filed a status report regarding their efforts to comply with the Court’s preliminary injunction Order.3 In response, the Petitioners filed an Emergency Motion to Enforce the Preliminary Injunction the same day.4 Respondents

1 Doc. 1. 2 Doc. 22.
3 Doc. 51. 4 Doc. 58.

Case: 4:20-cv-00794-JG Doc #: 85 Filed: 05/19/20 2 of 11. PageID #: 1124 Case No. 4:20-cv-00794 Gwin, J. opposed the motion and Petitioners filed a reply.5 Despite the preliminary injunction, Respondents have made limited efforts to reduce the COVID-19 risks for subclass members within the prison. To their credit, Respondents represent they are beginning to implement mass testing. However, after little access to COVID-19 tests for months after the February 2020 outbreak, the tests’ progress creeps. Although Respondents represented to the Court that it would be receiving test results from its outside labs within 24-48 hours, Respondents appear to not have received test results for tests that were completed more than 96 hours ago.6 Also, Respondents report that, for reasons unknown to the Court, and despite the obvious need for rapid implementation of mass testing across the entire institution, they are only conducting tests on Mondays and Tuesdays.7 As of May 19, 524 total tests have been performed.8 Elkton houses 2,357 inmates.
To date, the test results show how ineffective Respondents have been at stopping the spread. According to the Respondent, the tests have identified 55 positive inmates and 175 negative inmates to date.9 Respondent have no results for the rest of the tests.
These numbers appear to only account for the Abbot rapid tests performed since May 14 and Quest Diagnostics mass testing efforts that Elkton has undergone since May 11. Presumably, the results do not include the inmates who had previously tested positive.10 According to BOP, Elkton’s active cases as of May 19, 2020 include 135
5 Doc. 78. 6 Doc. 58 at 3. 7 Doc. 81 at 2. 8 Doc. 83. 9 Id. 10 Doc. 81 (reporting that mass testing began on May 11).
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Case: 4:20-cv-00794-JG Doc #: 85 Filed: 05/19/20 3 of 11. PageID #: 1125 Case No. 4:20-cv-00794 Gwin, J. inmates and 8 staff members.11 But Respondents have previously stated that as of May 8, 130 inmates and 50 staff members had tested positive.12 However, even according to Respondents’ testing status report, approximately 24% of tests from the reported Abbott and Quest tests came back COVID-19 positive.13 In other words, so far the data demonstrates that almost one in four inmates at Elkton has been infected—an unacceptable number. This percentage could potentially rise as more results come in. Notably, Respondents represented to the Court that their mass testing plan involved testing the inmates in batches according to their housing unit.14 If Respondents have indeed kept the housing units as separate as they insist,15 the percentage of infected inmates in each housing unit might vary and could potentially be even higher. However, while the increased testing goes in the right direction and will help the parties understand the extent of the spread at Elkton, it can only go so far in helping the institution fight the pandemic. Distancing has been, and continues to be, the institution’s best hope for sparing medically-vulnerable inmates from the serious medical consequences, and potential death, associated with COVID-19. Concerningly, Respondents have made poor progress in transferring subclass members out of Elkton through the various means referenced in the Court’s preliminary injunction Order.
11 Federal Bureau of Prisons, COVID-19 Cases, https://www.bop.gov/coronavirus/ (last visited May 19, 2020).
12 Doc. 58-1 at 14. 13 Doc. 84. 14 Doc. 58-1 at 13-14. 15 Id. at 14-15.
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Case: 4:20-cv-00794-JG Doc #: 85 Filed: 05/19/20 4 of 11. PageID #: 1126 Case No. 4:20-cv-00794 Gwin, J. In considering the adequacy of Respondent’s compliance, context is important. Elkton operates as a low security correctional institution with an adjacent low security satellite prison.16 By its nature, Elkton houses inmates with lower institutional and public risk factors. Respondents’ say that they have evaluated all subclass members for home release, compassionate release, and furlough under the applicable BOP program statements.17 Respondent identifies 837 inmates as being over 65 years old or as having significant pretexting health conditions making them especially vulnerable to COVID-19.18 Of this 837 vulnerable population, Respondents have made only minimal effort to get at-risk inmates out of harm’s way. As of May 8, 2020, five subclass members were “pending [home confinement] community placement.”19 Six inmates were identified as maybe qualifying for home confinement.20 No inmates were deemed eligible for furlough transfer.21 But to date, Respondents have not identified any inmates whose confinement has actually been enlarged as a consequence of the preliminary injunction. Such results do not comply with this Courts’ previous Order. In order to alleviate the spread of COVID-19 within the prison the Court describes the available avenues of relief and directs the Respondent to comply with further standards enforcing the preliminary injunction. A. Home Confinement
16 Id. at 2. 17 Doc. 58 at 6-10. 18 Doc. 51 at 3.
19 Id. at 7. 20 Id. at 8-9. 21 Id. at 10.
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Case: 4:20-cv-00794-JG Doc #: 85 Filed: 05/19/20 5 of 11. PageID #: 1127 Case No. 4:20-cv-00794 Gwin, J.
“The Bureau of Prisons has statutory authority to transfer prisoners to home confinement under 18 U.S.C. § 3624(c)(2) and 34 U.S.C. § 60541.”22 Earlier, the Bureau
of Prisons could assign home confinement for the shorter of 10 percent of the imprisonment term or 6 months.23 Under 34 U.S.C. § 60541, the BOP can release elderly
offenders and terminally ill offenders to home detention.
On March 27, 2020, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”).24 The CARES Act lifted home confinement’s 10 percent of
sentence or 6 months requirement if the Attorney General made an emergency conditions finding.25
On April 3, 2020, the Attorney General endorsed a memo that made the emergency conditions finding and expanded home confinement eligibility.26 The 10% of sentence
limitation and the six-month limitation went away.
The April 3 memo followed up on Barr’s earlier March 26, memo which stated that
“there are some at-risk inmates who are non-violent and pose minimal likelihood of
recidivism and who might be safer serving their sentences in home confinement rather than in BOP Facilities.”27 The Attorney General told the Bureau to “prioritize the use of your
various statutory authorities to grant home confinement for inmates seeking transfer in
22 Martinez-Brooks v. Easter, No. 3:20-cv-00569 (MPS), 2020 WL 2405350, at *10 (D. Conn. May 12, 2020). 23 18 U.S.C. § 3624(c)(2). 24 Martinez-Brooks, 2020 WL 2405350 at *10. 25 CARES Act, Pub. L. No. 116-136, § 12003(b)(2) (2020). 26 Attorney General William P. Barr, Memorandum for Director of Bureau of Prisons, Re: Increasing Use of Home Confinement at Institutions Most Affected by COVID-19, Office of the Attorney General (Apr. 3, 2020) https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf [hereinafter “Apr. 3 Memo”]. 27 Attorney General William P. Barr, Memorandum for Director of Bureau of Prisons, Re: Prioritization of Home Confinement As Appropriate in Response to COVID-19 Pandemic, Office of the Attorney General (Mar. 26, 2020) https://www.justice.gov/file/1262731/download.
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Case: 4:20-cv-00794-JG Doc #: 85 Filed: 05/19/20 6 of 11. PageID #: 1128 Case No. 4:20-cv-00794 Gwin, J. connection with the ongoing COVID-19 pandemic.”28 Barr’s directive gave a non-exhaustive list of discretionary factors to be used for evaluating inmates for confinement. The Attorney General directed the BOP to consider the “age and vulnerability of the inmate to COVID-19, in accordance with the Centers for Disease Control and Prevention (CDC) guidelines.”29 The other factors in the memo included: 1) The security level of the facility currently holding the inmate, with priority given to low security and minimum security facilities; 2) The inmate’s prison conduct especially violent or gang-related prison activity; 3) The inmate’s PATTERN score; 4) Whether the inmate has a re-entry plan; 5) The inmate’s conviction crime and danger to the public.30 The Attorney General said that some offenses, including sex offenses, should generally make the offender ineligible for home detention.31 In using the CARES Act to expand home confinement availability, the Attorney General’s April 3, 2020, memo admitted that the Bureau of Prisons was “experiencing significant levels of infection at several of our facilities, including FCI Oakdale, FCI Danbury, and FCI Elkton.”32 The memo acknowledged the BOP’s duty to protect inmates and told BOP to “move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions.”33 The Attorney General told the BOP to “begin implementing this directive immediately” and “as quickly as possible.”34
28 Id. 29 Id. 30 Id. 31 Id. (emphasis added). 32 Apr. 3 Memo. 33 Id. 34 Id.
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Case: 4:20-cv-00794-JG Doc #: 85 Filed: 05/19/20 7 of 11. PageID #: 1129 Case No. 4:20-cv-00794 Gwin, J. The Attorney General went on to authorize home confinement transfers “even if electronic monitoring is not available, so long as BOP determines in every such instance that doing so is appropriate and consistent with our obligation to protect public safety.”35 Against a backdrop where approximately one out of every four Elkton inmates have tested positive for COVID-19, the Respondent must move inmates out. By thumbing their nose at their authority to authorize home confinement, Respondents threaten staff and they threaten low security inmates. The Court orders Respondents to make full use of the home confinement authority beyond the paltry grants of home confinement it has already issued. The Court orders Respondents to (a) eliminate all requirements that the inmate have served some part of his sentence to be eligible for home confinement; (b) disregard any incident reports at the low or moderate severity levels (300 or 400 levels); (c) disregard the violence offense restriction for any inmate whose underlying conviction involved an offense that occurred more than 5 years ago or for which the only basis or denial is a prior violent offense; (d) grant home confinement to inmates who were previously deemed ineligible solely on the basis of a Low PATTERN risk score; and (e) eliminate the requirement that the inmate be a U.S. citizen. For any inmate on the subclass list that Respondents continue to find does not meet the home confinement requirements, Respondents are ordered to provide a detailed description of the basis for the denial. Such descriptions are to be submitted on a rolling basis. Respondents must produce the information for at least one-third of the subclass
35 Id.
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Case: 4:20-cv-00794-JG Doc #: 85 Filed: 05/19/20 8 of 11. PageID #: 1130 Case No. 4:20-cv-00794 Gwin, J.
every 48 hours. The first report is due by the May 21, 2020, close of business.
In addition to the detailed denial explanation, the explanations should also include
the following:
(a) Date inmate entered BOP custody; (b) Inmate’s criminal history category and criminal history points; (c) The underlying crime. For drug crimes, the Respondent will state whether the
conviction was under 21 U.S.C. § 841(b)(1)(A), (B), or (C); (d) Any statutory or mandatory minimums; (e) The educational or training programs completed by the inmate; (f) Any intra-institution discipline involving the inmate, including the dates and a
specific factual description of each; (g) Inmate’s expected release date; and (h) The percentage of the sentence the inmate has completed.
B. Compassionate Release Another avenue of relief for the subclass is compassionate release. The
compassionate release statute requires inmates to apply to BOP to request a favorable compassionate release recommendation.36 After 30 days or the exhaustion of
administrative remedies, whichever is earlier, inmates may directly petition their sentencing court for compassionate release.37 Even if the BOP deems an inmate eligible for
compassionate release, it falls to the sentencing court to grant the actual reduction of sentence.38
According to Respondents, BOP considers the following factors, though they are not
exclusive or weighted: “(1) nature and circumstances of the inmate’s offense; (2) criminal
36 18 U.S.C. § 3582(c)(1). 37 Id. 38 Id.
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Case: 4:20-cv-00794-JG Doc #: 85 Filed: 05/19/20 9 of 11. PageID #: 1131 Case No. 4:20-cv-00794 Gwin, J. history; (3) comments from victims; (4) unresolved detainers; (5) supervised release violations; (6) institutional adjustment; (7) disciplinary infractions; (8) personal history derived from the PSR; (9) length of sentence and amount of time served; (10) inmate’s current age; (11) inmate’s age at the time of offense and sentencing; (12) inmate’s release plans (employment, medical, financial); and (13) whether release would minimize the severity of the offense.”39 Despite the above-listed criteria, Respondents have listed their rationale for denying certain compassionate release petitions as: “does not meet medical criteria” or “COVID 19 only.”40 Within 48 hours of this Order, Respondents are ordered to clarify these descriptions with individual explanations for each inmate. The Court also orders Respondents to explain why a member of the subclass who, by definition, meets the CDC’s criteria for having a medical complication high risk do not qualify for compassionate release based on his medical conditions. The Respondents must provide each subclass member who has requested compassionate release, a written approval of the request,41 or a written denial of the request, together with the appropriate appeal form.42 Any compassionate release petitions filed by subclass members must be adjudicated within 7 days on a continuing basis. Nothing in the Court’s prior Order granting the preliminary injunction or this Order should be construed by either party to limit a sentencing court’s ability to grant compassionate release or any other form of relief to subclass members.
39 Doc. 58 at 8. 40 Doc. 78, Ex. B. 41 28 C.F.R. § 571.62. 42 28 C.F.R. §§ 571.63, 542.15.
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Case: 4:20-cv-00794-JG Doc #: 85 Filed: 05/19/20 10 of 11. PageID #: 1132 Case No. 4:20-cv-00794 Gwin, J. C. Transfer In the Court’s earlier Order it instructed Respondents to move subclass members out of Elkton through furloughs or transfers. This has not been done. Within 7 days of this Order, for each inmate Respondents continue to deem ineligible for home confinement or compassionate release, Respondents are ordered to show cause in the form of an individualized determination for why that inmate cannot be transferred to another BOP facility where social distancing is possible in compliance with the Court’s preliminary injunction Order. Some inmates eligible for transfer may ask to accept the risks of remaining at Elkton for family proximity or other reasons. If Respondents receive such requests, the Respondents will consider those requests. D. Subclass List Respondents produced the search criteria used to compile the subclass member list and admit that the list was underinclusive by at least nine inmates who are 65 years old.43 Additionally, Respondents appear not to have searched for or included inmates who are at a higher risk for COVID-19-related medical complications due to obesity. This does not comply with this Court’s preliminary injunction order.44 Respondents are to identify all such inmates who are not already on the list within 48 hours. The Court requires Respondents to evaluate the nine additional inmates and any others identified for inclusion due to obesity for relief as outlined the Court’s preliminary injunction Order immediately. To the extent Respondents deem the additional nine

43 Doc. 78, Ex. C. 44 Id.

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Case: 4:20-cv-00794-JG Doc #: 85 Filed: 05/19/20 11 of 11. PageID #: 1133 Case No. 4:20-cv-00794 Gwin, J.
subclass members to be ineligible for enlargement, Respondents are to provide
explanations for such findings consistent with this Order and this Court’s previous orders to
that effect.

IT IS SO ORDERED. Dated: May 19, 2020

s/

James S. Gwin

JAMES S. GWIN

UNITED STATES DISTRICT JUDGE

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 Case: 4:20-cv-00794-JG Doc #: 37 Filed: 04/30/20 1 of 17. PageID #: 541

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

CRAIG WILSON, ERIC BELLAMY, KENDAL NELSON, and MAXIMINO NIEVES, on behalf of themselves and those similarly situated,
Petitioners, v.
MARK WILLIAMS, warden of Elkton Federal Correctional Institutions; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities,

Case No. 20-cv-0794 Judge James Gwin

Respondents. PETITIONERS’ OPPOSITION TO RESPONDENTS’ EMERGENCY MOTION TO STAY PENDING APPEAL
INTRODUCTION AND BACKGROUND The crisis at FCI Elkton and FSL Elkton (jointly, “Elkton”) continues to worsen, even in the few days since this Court’s interim order. A 55-year old man with long-term pre-existing medical conditions—whose name appears on Respondents’ preliminary list of the subclass in this action—died on Sunday, April 26.1 The Federal Bureau of Prisons (BOP) website reports that 49 prisoners and 48 staff at Elkton have now tested positive for COVID-19—although these appear to be current rather than cumulative numbers, as they have fluctuated.2 As of Friday, April 24, 25 people from Elkton were hospitalized, with 10 on ventilators.3

1 Jo Ann Bobby-Gilbert, Seventh Elkton Inmate Dies from COVID-19, BUSINESS DAILY (April 27, 2020), https://businessjournaldaily.com/seventh-elkton-inmate-dies-from-covid-19-2/ (accessed April 28, 2020); Columbus man is seventh inmate who dies of COVID-19 at Elkton Correctional, WKBN (April 27, 2020), https://www.nbc4i.com/community/health/coronavirus/columbus-man-is-seventh-inmate-who-dies-of-covid-19-atelkton-correctional/ (accessed April 28, 2020).

2 Federal Bureau of Prisons, COVID-19: Coronavirus, https://www.bop.gov/coronavirus/ (accessed April 30, 2020).

3 Neena Satija & Matt Zapotosky, Amid Coronavirus Pandemic, Federal Inmates Get Mixed Signals About Home

Confinement

Releases,

WASHINGTON

POST

(April

24,

2020),

available

at

1

Case: 4:20-cv-00794-JG Doc #: 37 Filed: 04/30/20 2 of 17. PageID #: 542
Those numbers assuredly understate the scope of the problem, given the dearth of testing being conducted at Elkton—a situation that Senator Rob Portman recently decried as “unacceptable,” noting that it “threatens the lives of the FCI Elkton inmates as well as Ohioans in the greater northeast Ohio region.”4 By Respondents’ own account, only a few dozen prisoners have been tested, and only 25 tests per week are anticipated to be made available. See ECF No. 19. At that pace, even if all tests were allocated to prisoners rather than staff and no one was tested more than once, the entire Elkton population would not be tested until early 2022. Even the Medically-Vulnerable Subclass could not be fully tested until roughly November 2020.
Meanwhile, BOP has provided little reassurance, or even clarity, on any plans to move prisoners to home confinement. It has reversed itself repeatedly on its internal criteria for home confinement, particularly the question of whether prisoners must serve at least half of their sentences. “First they needed to have met that mark, then they didn’t, then the requirement was apparently reinstated … Then, on Wednesday, a new Bureau of Prisons memo indicated that prisoners who had not hit the halfway point were still eligible.”5 BOP’s equivocation “contrasts sharply with some local and state actions that have released thousands of inmates deemed to be the most vulnerable or the least dangerous amid escalating outbreaks of the coronavirus.”6
Respondents plainly will not take the decisive, life-saving actions necessitated by the emergency at Elkton on their own initiative. By requesting a stay pending appeal, they ask for this Court’s permission to continue a pattern of tentative half-measures. Respondents have failed to
https://www.washingtonpost.com/investigations/amid-coronavirus-pandemic-federal-inmates-get-mixed-signalsabout-home-confinement-releases/2020/04/24/0bbc5458-84de-11ea-a3eb-e9fc93160703_story.html (accessed April 28, 2020). 4 Portman Urges U.S. Department of Justice and Bureau of Prisons to Increase COVID-19 Testing at FCI Elkton (April 27, 2020), available at https://www.portman.senate.gov/newsroom/press-releases/portman-urges-usdepartment-justice-and-bureau-prisons-increase-covid-19 (accessed April 29, 2020). 5 Id. 6 Id.
2

Case: 4:20-cv-00794-JG Doc #: 37 Filed: 04/30/20 3 of 17. PageID #: 543
demonstrate a likelihood of success on the merits or irreparable injury in the absence of a stay— but should a stay issue, the impact on Petitioners, subclass members, and the community will be disastrous. I. Respondents Have Failed To Demonstrate a Strong Likelihood of Success on Appeal
“On a motion to stay pending appeal, district courts balance the following factors: (1) the likelihood that the party seeking the stay will prevail on appeal; (2) whether denial of a stay would irreparably harm the moving party; (3) whether the stay will harm others; and (4) the public interest in granting the stay.” Capital One Bank (USA) N.A. v. Jones, 710 F. Supp. 2d 634, 636 (N.D. Ohio 2010); see Nken v. Holder, 556 U.S. 418, 434 (2009). These “interrelated” factors “must be balanced together,” Michigan Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991), and “[t]he party requesting a stay bears the burden of showing that the circumstances justify an exercise of [the Court’s] discretion.” Nken, 556 U.S. at 433–34. Because a stay “is an ‘intrusion into the ordinary processes of administration and judicial review,’” it is never issued as a matter of right, even if irreparable injury may result. Id. at 427 (citations omitted).
A. Petitioners Have Demonstrated Deliberate Indifference “It is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993). It is also undisputed that recklessly exposing a prisoner to a serious infection is unconstitutional. See, e.g., id.; Hutto v. Finney, 437 U.S. 678, 682 (1978) (among the prison conditions for which the Eighth Amendment required a remedy was placement of prisoners in punitive isolation under conditions where infectious diseases could spread easily). The Court correctly concluded that conditions at Elkton prison satisfy both the objective and subjective standards of deliberate indifference. To satisfy the objective standard, “[a]ll that [a prisoner] needs to show is that [he] was ‘incarcerated under conditions posing a substantial risk of
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Case: 4:20-cv-00794-JG Doc #: 37 Filed: 04/30/20 4 of 17. PageID #: 544
serious harm.’” Richko v. Wayne Cty., Mich., 819 F.3d 907, 916 (6th Cir. 2016) (quotation omitted); see also Farmer v. Brennan, 511 U.S. 825, 834 (1994) (objective standard is met if deprivation is “sufficiently serious” or that the prisoner “is incarcerated under conditions posing a substantial risk of serious harm.”). As the Court noted, “Petitioners obviously satisfy this component.” PI Order, ECF 22 at 16. COVID-19 kills, the uncontested evidence shows a high risk of infection in settings such as Elkton, and a high risk of death, hospitalization, and suffering for everyone—a risk heightened among members of the subclass. Although Respondents suggest the risk is the same in Elkton as it is elsewhere, this is refuted by the uncontested evidence, see Novisky Decl., ECF No. 1-3, ¶ 10 (shared sleeping and eating spaces, and shared bathrooms and showers, increase risks to Elkton’s population “dramatically”); Goldenson Decl., ECF No. 1-4, ¶ 32 (noting that under these conditions, the spread of COVID-19 will be “magnified” at Elkton, and “[t]he death rate will increase substantially before it starts to diminish”), as well as Elkton’s growing death toll. While governments go to extraordinary steps to mandate social distancing and limit large gatherings outside of prison, Respondents have not disputed that prisoners inside Elkton are denied the ability to take that necessary, life-saving step.
Petitioners are also likely to prevail on the subjective prong, showing that prison officials were deliberately indifferent to these substantial risks. Respondents argue that they are taking some steps, but these steps are not enough. See United States v. Rodriguez, 2020 WL 1627331, Case No. 2:03-cr-0271, ECF No. 135 (E.D. Pa., April 1, 2020) (“The government’s assurances that the BOP’s ‘extraordinary actions’ can protect inmates ring hollow given that these measures have already failed to prevent transmission of the disease[.]”). People at Elkton are dying at alarming rates. See Brown v. Plata, 563 U.S. 493, 505 n.4 (2011) (upholding an injunction when there was a preventable death among prisoners every five to six days, in a population more than 60 times
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larger than that at Elkton). “A prisoner is not required to show that he was literally ignored by the staff to prove an Eighth Amendment violation, only that his serious medical needs were consciously disregarded.” Rouster v. Cty. of Saginaw, 749 F.3d 437, 448 (6th Cir. 2014) (cleaned up). Custodians are still deliberately indifferent if they took some action, observed that it was failing, but choose not to adjust. See, e.g, Richmond v. Huq, 885 F.3d 928, 944 (6th Cir. 2018) (“It is insufficient for a doctor caring for inmates to simply provide some treatment for the inmates’ medical needs”); Darrah v. Krisher, 865 F.3d 361, 369 (6th Cir. 2017) (“continuing to treat him with Methotrexate after Darrah had been on the drug for several months without any noticeable improvement”); Phillips v. Roane Cty., Tenn., 534 F.3d 531, 541 (6th Cir. 2008) (providing observation and limited care, but failing to provide “appropriate” medical care, was deliberate indifference); Greene v. Bowles, 361 F.3d 290, 294 (6th Cir. 2004) (putting prisoner into protective custody but failing to protect her from a risk that persisted even in protective custody was unconstitutional).
Respondents are aware that their methods aren’t working, and despite CDC direction, they continue to forcibly expose prisoners to large, congregate settings of more than 100 people that would be illegal on the outside. Even after the Attorney General directed Respondents to begin moving people to home confinement, barely anyone has been moved, and from Respondents’ briefing and declarations, it appears that they are willing to delay implementation of the AG’s direction for weeks or months, by which time it will be too late. They have not even been able to procure more than a few dozen tests, even as state prisons in Ohio have been able to test everyone.7
7 Bill Chappell & Paige Pfleger, 73% of Inmates at an Ohio Prison Test Positive for Coronavirus, NPR (Apr. 20, 2020), https://www.npr.org/sections/coronavirus-live-updates/2020/04/20/838943211/73-of-inmates-at-an-ohioprison-test-positive-for-coronavirus.
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Respondents also suggest that they should be excused from providing constitutionally adequate protection from a deadly virus because of “constraints” that they are under. But just like a prison cannot stop providing food or medical care just because it is expensive, the Bureau of Prisons cannot simply allow prisoners to suffer needlessly because it does not want to devote additional staff time. Prisons may have some discretion, but they cannot choose a course of action that they know will cost lives and immense suffering. “If government fails to fulfill [their obligation to prisoners], the courts have a responsibility to remedy the resulting Eighth Amendment violation … Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.” Plata, 563 U.S. at 511. Petitioners are likely to prevail on their Eighth Amendment claim.
B. Petitioners’ Claim Is Properly Brought Under § 2241, Rendering the PLRA Inapplicable
Respondents are also unlikely to persuade the Sixth Circuit that habeas relief is inappropriate in these circumstances, or that the Prison Litigation Reform Act (PLRA) applies.
“Habeas is at its core a remedy for unlawful executive detention.” Munaf v. Geren, 553 U.S. 674, 693 (2008). It exists to allow prisoners to challenge “the fact or duration of [their] confinement.” Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). When such a challenge is based on “the manner or execution of” a prisoner’s sentence, Sixth Circuit precedent provides that prisoners may bring it under 28 U.S.C. § 2241. States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001).
Petitioners claim that their and others’ current detention at Elkton is unlawful; they thus properly challenge the “fact or duration of” their confinement via habeas. See Dotson, 544 U.S. at 78. More specifically, they argue that keeping them locked in a crowded prison amid an insufficiently stanched outbreak of a highly contagious and potentially fatal disease is what makes the fact or duration of their confinement unlawful. See section I.A, supra. They thus properly
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brought this case principally under § 2241, because their quarrel is not with the validity of their sentences, but rather “the manner or execution of” those sentences—serving them in the midst of a runaway, inadequately addressed outbreak at Elkton, which poses a substantial risk of serious illness or death. See Peterman, 249 F.3d at 461; PI Order, ECF 22 at 11; section I.A, supra.
Respondents’ highlighting the phrase “conditions of confinement,” e.g., ECF 30-1 at 6, does not change the answer. The Sixth Circuit has indeed stated that “§ 2241 is not the proper vehicle for a prisoner to challenge conditions of confinement.” Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013). But while Petitioners have used that phrase colloquially to describe the problems at Elkton, they are not challenging—and thus are not seeking a remedy regarding—the conditions at Elkton. Rather, they are seeking the remedy that habeas corpus has always been defined by and existed to enable: a release from (or reduction in) custody. See Munaf, 553 U.S. at 693; Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). Petitioners claim a right not to more soap or to more prophylactic measures within Elkton’s walls, but rather to at least a “quantum change in the level of custody.” See Terrell v. United States, 564 F.3d 442, 448 (6th Cir. 2009) (quoting Wilkinson v. Dotson, 544 U.S. 74, 86 (2005) (Scalia, J., concurring)); accord PI Order, ECF 22 at 7–8, 10–11.8 Indeed, that is the only remedy that would be effective to cure their injury.
Martin v. Overton, 391 F.3d 710 (6th Cir. 2004), is not to the contrary. In that case, a state prisoner who had previously been incarcerated at one state prison—and been treated by a particular doctor there—was transferred to a different state prison. Id. at 712. He sought to be transferred back to the first state prison for further treatment with his old doctor by filing a pro se petition
8 To be sure, the woefully inadequate “conditions” at Elkton help explain why “the only truly effective remedy” at this point appears to be “the release of a portion of the population.” Cf. PI Order, ECF 22 at 10. But that merely helps explain, in turn, why Petitioners are challenging their confinement itself, not simply its conditions. Cf. Bailey v. Wainwright, 951 F.3d 343, 346–47 (6th Cir. 2020) (“A challenge to a judgment, including one based on the method of implementing the sentence, challenges the extent of an inmate’s custody.”).
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under §2241. Id. The Sixth Circuit, unremarkably, observed that the prisoner was wrong to bring his claim under §2241, because “[h]e did not challenge the terms or validity of his state prison term,” but rather “sought a transfer to a different prison facility for the purpose of medical treatment and civil damages resulting from the alleged delay and denial of that treatment.” Id. at 714. That kind of claim against a state prison official, the court rightly observed, would have properly been brought under §1983. Id.9
Petitioners’ claims are nothing like the claim in Martin. Martin was seeking medical care from a particular doctor, as well as damages for its absence; he was not challenging the fact or duration of his confinement in any way. See id. at 712. Had his old doctor seen him at his new prison, he would have had no claim at all. See id. Petitioners, by contrast, cannot escape the risk of serious illness or death posed by Respondents’ inaction in the face of the COVID-19 outbreak at Elkton unless at least some subset of them have their confinement changed or reduced, which is why their claim does challenge the fact or duration of their confinement. See PI Order, ECF 22 at 10–11.
As noted by the Court, the change in confinement that Petitioners seek is not what many people refer to colloquially as “release,” but rather a broader set of potential alterations in custody that would remove them “from the physical confines of Elkton” but not necessarily from Respondents’ custody. See Pet., ECF 1 at ¶ 4, n. 2; PI Order, ECF 22 at 11. The Court has noted that these kinds of alterations in custody have been better known as “enlargement,” PI Order, ECF 22 at 8, which Respondents appear at one point to concede the Sixth Circuit has recognized is a power held by federal district courts, see Stay Mem., ECF 30-1 at 10; Dotson v. Clark, 900 F.2d
9 Petitioners have invoked §1331 and the Eighth Amendment an alternative basis for this Court’s jurisdiction in this suit seeking only injunctive and declaratory relief against federal officers, see Pet., ECF 1 at ¶ 8, 81, 96; Reply, ECF 18 at 11–12, but that basis is unnecessary to address further because this suit is properly brought under §2241.
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77, 79 (6th Cir. 1990); see also, e.g., Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001); Landano v. Rafferty, 970 F.2d 1230, 1238–39 (3d Cir. 1992); 28 U.S.C. § 2243 (court shall “dispose of the matter as law and justice require”).10
As for Respondents’ separate argument that enlargement is impermissible in this context because 18 U.S.C. § 3621(b) provides that “a designation of a place of imprisonment under this subsection is not reviewable by any court,” that argument fails both textually and structurally. First, § 3621(b) requires that prison assignments “meet[] minimum standards of health and habitability,” which of course these do not. Second, § 3621(b) clearly cannot divest the federal courts of power to remedy illegal detention, see U.S. Const. art. I, § 9, cl. 2; Boumediene v. Bush, 553 U.S. 723, 771 (2008), yet on Respondents’ broad reading, it would, since habeas often entails reviewing (and altering) a person’s “place of imprisonment.” Indeed, while Respondents elsewhere suggest that a suit such as Petitioners’ “must be brought as a civil rights action,” Stay Mem., ECF 30-1 at 9 n. 1, Respondents’ theory would seem to bar those too. Even a prisoner claiming that prison itself was not an authorized sentence, cf. In re Bonner, 151 U.S. 242, 254–56 (1894); Wright v. Spaulding, 939 F.3d 695, 698 (6th Cir. 2019), would be left with no remedy.11 Respondents’ theory, in other words, proves too much.12
10 Respondents observe that, under circuit precedent, the standard for exercising such power will be met only in extraordinary cases. Stay Mem., ECF 30-1 at 10; Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990). Petitioners do not disagree, but wonder what circumstances Respondents anticipate being more extraordinary than these.
11 See also Washington v. Fed. Bureau of Prisons, No. CV 5:16-3913-BHH, 2018 WL 6061039, at *3 (D.S.C. Nov. 20, 2018) (concluding that BOP’s “discretion” under §3621(b) “is not unbridled” and is still “subject to review for compliance with federal law,” including “the Eighth Amendment”).
12 Furthermore, Respondents give no reason why the Court cannot “exercise[] its power to ‘enlarge’ the custody of [prisoners at Elkton] pending the outcome of [this] habeas action,” cf. PI Order, ECF 22 at 8, so as to ensure that Elkton prisoners do not fall sick or die before the case can be properly resolved, see, e.g., Landano v. Rafferty, 970 F.2d 1230, 1238–39 (3d Cir. 1992); Puertas v. Overton, 272 F. Supp. 2d 621, 630 (E.D. Mich. 2003). Nor do Respondents explain why the Court would be unable to grant preliminary relief in support of that authority. See 28 U.S.C. §1651 (authorizing federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law”); PI Order, ECF 22 at 9.
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Finally, as the Court has already recognized, PI Order, ECF 22 at 19–20, the PLRA does not apply to this case. That is because, as already discussed, Petitioners challenge the fact or duration of their confinement via habeas, whereas the PLRA provisions on which Respondents rely do not apply to “habeas corpus proceedings challenging the fact or duration of confinement in prison[.]” 18 U.S.C. § 3626(g)(2); see also Jones v. Bock, 549 U.S. 199, 200 (2007). And even if Petitioners’ claims could have been brought outside of habeas as well, that does not preclude them having been properly brought in habeas. See Adams v. Bradshaw, 644 F.3d 481, 482–83 (6th Cir. 2011); Terrell, 564 F.3d at 448.
Respondents are thus unlikely to succeed on appeal in any argument that this Court lacked authority to issue its preliminary injunction. Moreover, contrary to Respondents’ rhetoric, Petitioners are not seeking to involve the Court in “day-to-day prison management,” Stay Mem., ECF 30-1 at 9 (quoting Inmates of Suffolk Cty. Jail v. Rouse, 129 F.3d 649, 655 (1st Cir. 1997)), but rather seeking reasonable, tailored habeas relief amid extraordinary circumstances to safeguard their and their fellow prisoners’ lives, in light of Respondents’ unconstitutional failure to do so.
C. Preliminary Class Certification Is Warranted Respondents’ two-paragraph attack on this Court’s conditional class ruling does not meet their burden to show that they are likely to succeed on appeal. There, Respondents would need to make a “strong showing” that this ruling “amounted to a clear abuse of discretion.” In re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig., 722 F.3d 838, 850 (6th Cir. 2013) (stressing that review is “narrow” and “very limited” (internal quotation marks omitted)). The ruling here had two parts: Rule 23(a)’s four requirements and Rule 23(b)(2)’s requirement. See PI Order, ECF No.
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22 at 12. Of these five requirements, Respondents argue that just one is not met here: commonality. See Stay Mot., ECF No. 30-1 at 13.13 That is wrong.
Respondents first seize on this Court’s statement that the Proposed Subclass “is likely too broad.” PI Order, ECF No. 22 at 12. To start, that statement was made on the basis of the record to date. See, e.g., Sali v. Corona Reg’l Med. Ctr., 909 F.3d 996, 1006 (9th Cir. 2018) (“[T]he manner and degree of evidence required at the preliminary class certification stage is not the same as at the successive stages of the litigation.” (internal quotation marks omitted)). And there is evidence that the risk to the portion of the Proposed Subclass for which this Court raised a question—those between ages 50 and 65—are seriously at risk from COVID-19. See Certification Mot., ECF No. 33-1 at 4 n.4. In any event, the Court granted preliminary relief after exercising its discretion to identify a narrower Subclass—as relevant, those over the age of 65—that it did not think was too broad. Accord Powers v. Hamilton Cty. Pub. Def. Comm’n, 501 F.3d 592, 619 (6th Cir. 2007).
Respondents’ next argue that the commonality requirement is not met because the relief Petitioners seek would require BOP to make individualized determinations when assessing how to transfer those members out of Elkton. See Stay Mot., ECF No. 30-1 at 13. But when it comes to commonality, “there need be only one common question to certify a class.” Whirlpool, 722 F.3d at 853. There are numerous common questions in this litigation that—when answered—will advance this litigation. See Certification Mot., ECF No. 33-1 at 3–4 (listing, for example, fact questions regarding BOP’s actions to reduce the risk of COVID-19 spread and whether those actions comply with CDC guidelines). Nor, in any event, does the fact BOP may have to make
13 Respondents mention “commonality and typicality,” but do not separately discuss typicality. Stay Mot., ECF No. 30-1 at 13. Their choice not to challenge the other four requirements means they have forfeited any argument that those requirements are not met. In any event, Petitioners’ have explained why all five requirements are met. See Certification Mot., ECF No. 33-1.
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individualized determinations after this Court renders a judgment mean that this Court will not need to address questions common to the class to reach that judgment.
In one sentence, Respondents suggest that the two-pronged test for deliberate indifference “may” differ among subclass members. Stay Mot., ECF No. 30-1 at 14. But the Subclass definition this Court identified borrows from the categories that the Government itself uses to identify those who are objectively at high risk for COVID-19.14 And Respondents have not shown that they have treated some members of that Subclass differently (or more indifferently) than others based on this kind of risk calculation.
Respondents thus have not shown they are likely to prevail on appeal on this issue.15 II. Respondents Have Not Demonstrated that They Will Suffer Irreparable Injury
Absent a Stay The Government has also failed to demonstrate that it faces irreparable harm without a stay—one of the “most critical factors.” Nken v. Holder, 556 U.S. 418, 434 (2009). Respondents claim irreparable harm because, they complain, they will have to devote agency staff time to implementing the injunction. Stay Mot., ECF No. 30-1 at 14 (“BOP estimates that it will take in excess of 418 man-hours to preliminarily evaluate all the inmates on the list for transfer.”). This is not enough. “Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough.” Sampson v. Murray, 415 U.S. 61, 90 (1974); see also, e.g., Ohio State Conference of N.A.A.C.P. v. Husted, 769 F.3d 385, 389 (6th Cir. 2014).
14 See Centers for Disease Control and Prevention, People Who Are at Higher Risk for Severe Illness, https://bit.ly/cdcrisks (last visited Apr. 29, 2020). 15 It is also not clear that a conditional certification ruling is appealable at this stage in the first place. See, e.g., Taylor v. Pilot Corp., 697 F. App’x 854, 858 (6th Cir. 2017) (“A district court’s decision to approve notice to a conditionallycertified FLSA class is not a final judgment on the merits. It is also not a collateral order excepted from the finaljudgment rule.”).
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As an afterthought, Respondents mention that “[r]edesignating so many inmates at once would create a cascade of concerns and threats at exponentially more BOP facilities across the country that would irreparably harm the BOP’s nationwide operations, and disrupt its ongoing response to the COVID-19 pandemic.” Other than stating a legal conclusion, Respondent does not explain the scope of the disruption or point to evidence that it would prohibit the agency from completing its mission. As noted in the next section, the equities clearly favor prisoners’ lives over inconvenience to agency staff. Respondents point only to agency inconvenience, not irreparable harm. This factor weighs against their motion.16 III. Petitioners Would Suffer Substantial Harm From A Stay
As the Court has observed, Elkton is “fight[ing] a losing battle” to contain the spread and impact of COVID-19 within the prison walls. PI Order, ECF No. 22 at 2. Crowding and close contact are inherent to life at Elkton, and render social distancing—the cornerstone of any effort to slow the spread of respiratory disease—impossible. See Pet., ECF No. 1 at ¶ 19. People are continuing to die. See supra note 1. Absent quick action to carry out the interim relief ordered by this Court, the situation will likely continue to worsen. See Novisky Decl. ¶ 6; Goldenson Decl. ¶ 29; Rodriguez, 2020 WL 1627331, at *8 (the BOP’s actions have “already failed to prevent transmission of the disease” at Elkton). Petitioners, and others in the Medically-Vulnerable Subclass, continue to face this danger daily. Time is of the essence to move them out of Elkton.
The health and lives of the nonmovants weigh strongly against a stay. See, e.g., Concerned Pastors for Soc. Action v. Khouri, 844 F.3d 546, 549 (6th Cir. 2016) (rejecting requested stay because injunction reduced the “risk of exposure to lead”). Courts have frequently found far less
16 Respondents also seek a stay of the portion of the order that requires them to file a list of people who fit the definition of the putative class. That request was untimely when filed, but is now moot, as Respondents have now filed the list following denial of an administrative stay by the Sixth Circuit.
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extreme harms to nonmovants to be “substantial” in the context of a stay. See, e.g., id.; Griffiths v. Ohio Farmers Ins. Co., No. 1:09-CV-1011, 2010 WL 2774446, at *3 (N.D. Ohio Jul. 12, 2010) (Gwin, J.) (“[d]elaying discovery or the start of a trial” was itself substantial harm); Glover v. Johnson, No. 77-CV-71229, 1994 WL 799392, at *1 (E.D. Mich. Jan. 14, 1994) (denying motion for stay or reconsideration in order to preserve the ability to renew a contract for paralegal training); see also Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194, 1199-1200 (6th Cir. 1983) (“time is of the essence” is a valid reason to deny a stay).
The harm to a nonmoving party need not be irreparable—merely “substantial”—to defeat a motion to stay. See, e.g., Hosp. Auth. of Metro. Gov’t of Nashville & Davidson Cty. v. Momenta Pharm., Inc., No. 3:15-CV-01100, 2019 WL 5305506, at *3 (M.D. Tenn. Oct. 21, 2019) (threshold met by delay of a remedy to plaintiffs). The harm to Petitioners and class members from a stay here would be both. The health, and even in some cases the lives, of Medically-Vulnerable Subclass members depend upon swift enforcement of this Court’s interim order. Respondents’ requested stay, if granted, would leave them exposed to serious illness and death. IV. A Stay Would Be Contrary to the Public Interest
As noted above, see supra section II, requiring Respondents to expend agency staff time and transfer particularly vulnerable prisoners would not pose meaningful harms to the public interest, particularly when balanced against the harm that Petitioners and other prisoners at Elkton are facing. Nor does the fact that Respondents have taken some remedial steps, Stay Mem., ECF 30-1 at 16–17, render a stay in the public interest, given that the problem all along has been that Respondents half-measures have been tragically inadequate. See section I.A, supra.
The public, meanwhile, has an inherent interest in the prompt resolution of this matter. See Willis v. Big Lots, Inc., No. 2:12-CV-604, 2017 WL 1734224, at *3 (S.D. Ohio May 4, 2017) (“there is a strong public interest in the efficient resolution of litigation,” cognizable in the context
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of a stay), report and recommendation adopted, No. 2:12-CV-604, 2017 WL 2493142 (S.D. Ohio June 8, 2017). This is always so where constitutional rights are at stake. See G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994) (“it is always in the public interest to prevent the violation of a party’s constitutional rights”).
But even further, the community has a direct health interest that would be endangered by a stay. Leaving Elkton to remain as a COVID-19 breeding ground places both its staff and the general public at risk. Left in its current state, it will continue to act as a concentrated source of the infection that can be carried out to the surrounding community, by allowing it to act as a concentrated source of infection for the surrounding area. Goldenson Decl. ¶ 32 (“What’s more, the infection in Elkton would not stay limited to the facility, but would worsen infection rates in the broader community.”); Novisky Decl. ¶ 13 (“With institutional staff filtering in and out of Elkton on a daily basis, staff can easily carry the infection from the community to the prison and vice versa.”). As Senator Portman observed in an April 27 letter urging BOP to increase testing, “[e]ven as we make strides in Ohio to quell this pandemic, outbreaks in congregate settings like prisons can spill over through the staff and medical professionals who are coming in and out of the prison each day to care for these inmates and could undo the progress that we are making.”17 This Court’s interim order is the first step towards halting that potentially lethal dynamic. The public interest is therefore best served by expediting that order, not staying it.
Respondents also misread Nken v. Holder in attempting to equate the public’s interest with Respondents’ own in this context. Nken does not provide that a government-movant’s claimed hardships are equivalent to the public interest. Rather, the Court in Nken stated that the third and
17 Portman Urges U.S. Department of Justice and Bureau of Prisons to Increase COVID-19 Testing at FCI Elkton (April 27, 2020), available at https://www.portman.senate.gov/newsroom/press-releases/portman-urges-usdepartment-justice-and-bureau-prisons-increase-covid-19 (accessed April 29, 2020).
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fourth factors merge when the government is “the opposing party”, i.e., the nonmovant. 556 U.S.

at 435; see also Slyusar v. Holder, 740 F.3d 1068, 1074 (6th Cir. 2014). The basis for this merging

is the public’s interest in “prompt execution” of valid orders, 556 U.S. at 436, and “valid law[s],”

Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 571 U.S. 1061, 1062

(2013). That same reasoning weighs not for Respondents here, but against them; the public has an

interest in seeing this Court’s order executed promptly, the Constitution vindicated, and the risk to

the health of prisoners, staff, and the community mitigated. Respondents have failed to

demonstrate irreparable harm to themselves absent a stay, but even were it otherwise, the public

interest is distinct from Respondents’ own and weighs against a stay. See Nken, 556 U.S. at 436.

CONCLUSION For the foregoing reasons, this Court should deny Respondents’ motion for a stay pending

appeal.

Dated: April 30, 2020 Respectfully submitted,

/s/ David J. Carey David J. Carey (0088787) ACLU of Ohio Foundation 1108 City Park Avenue, Ste. 203 Columbus, OH 43206 Phone: (614) 586-1972 Fax: (614) 586-1974 dcarey@acluohio.org
Joseph Mead (0091903) Freda J. Levenson (0045916) ACLU of Ohio Foundation 4506 Chester Avenue Cleveland, OH 44102 Phone: (614) 586-1972 Fax: (614) 586-1974 attyjmead@gmail.com flevenson@acluohio.org

David A. Singleton (0074556) Mark A. Vander Laan (0013297) Michael L. Zuckerman (0097194) Ohio Justice & Policy Center 915 East Ninth Street, Suite 601 Cincinnati, OH 45202 Phone: (513) 421-1108 dsingleton@ohiojpc.org mvanderlaan@ohiojpc.org mzuckerman@ohiojpc.org
Counsel for Petitioners

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Case: 4:20-cv-00794-JG Doc #: 37 Filed: 04/30/20 17 of 17. PageID #: 557 CERTIFICATE OF SERVICE
I hereby certify that on April 30, 2020, the foregoing was filed with the Court’s CM/ECF system. Notice of this filing will be sent by operation of that system to all counsel of record.
/s/ David J. Carey David J. Carey (0088787) ACLU of Ohio Foundation 1108 City Park Avenue, Ste. 203 Columbus, OH 43206 Phone: (614) 586-1972 Fax: (614) 586-1974 dcarey@acluohio.org Counsel for Petitioners
17

 
 Case: 4:20-cv-00794-JG Doc #: 38 Filed: 05/01/20 1 of 3. PageID #: 558

No. 20-3447
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED
Apr 30, 2020 DEBORAH S. HUNT, Clerk

CRAIG WILSON, on behalf of themselves and all )

others similarly situated, et al.,

)

)

Petitioners-Appellees,

)

)

v.

)

)

MARK WILLIAMS, In his official capacity as

)

Warden of Elkton Federal Correctional Institution, )

et al.,

)

)

Respondents-Appellants.

)

O R D E R

Before: COLE, Chief Judge; GIBBONS and COOK, Circuit Judges.
Petitioners, four inmates housed in the Elkton Federal Correctional Institution, on behalf of themselves and others housed in Elkton, filed a petition under 28 U.S.C. § 2241 to obtain protections to limit their exposure to the COVID-19 virus. They sought to represent all current and future inmates, including a subclass of inmates who—through age and/or certain medical conditions—were particularly vulnerable to complications, including death, if they contracted COVID-19. Following a hearing, the district court entered a preliminary injunction directing Respondents Mark Williams, the Warden of the Elkton Federal Correctional Institution, and Michael Carvajal, the Director of the Federal Bureau of Prisons (collectively, “the BOP”), to take certain steps for the subclass: (1) identify within one day all members of the subclass by sentencing court and case number of their underlying criminal conviction; (2) evaluate each member of the

Case: 4:20-cv-00794-JG Doc #: 38 Filed: 05/01/20 2 of 3. PageID #: 559 No. 20-3447 -2-
subclass’s eligibility for transfer out of Elkton by any means within two weeks; (3) prioritize their review according to the medical threat level of each inmate; (4) transfer those deemed ineligible for compassionate release to another facility utilizing certain measures to contain the transmission of COVID-19; and (5) prohibit the return of the subclass members transferred to Elkton until the virus abates or a vaccine is available to vaccinate Elkton’s population. The BOP appeals, moves to stay the injunction pending resolution of their appeal, and requests an administrative stay of the deadline to identify subclass members. Petitioners move to strike the motion to stay and, alternatively, oppose an administrative stay. The BOP replies, reiterating its prior reasons for granting a stay, and opposes Petitioners’ motion to strike.
The COVID-19 virus is extremely contagious. Conditions in detention and correctional facilities favor its more rapid transmission. The measures the BOP implemented to lessen contagion met with limited success at Elkton: dozens of inmates and staff have contracted the virus; and several have died. Thus, we are sympathetic to the Petitioners’ concerns. The district court’s grant of injunctive relief to Petitioners requires time and effort by the BOP to implement, given the short deadlines it establishes. The BOP also raises several arguments challenging that order. We will address the motions to stay the preliminary injunction and to strike following receipt of responses to those motions and further deliberation. For now, we consider only the request for an administrative stay of the deadline for publicly releasing the identities of those inmates who are members of the subclass.
The BOP seeks an administrative stay in order to protect the disclosure of the subclass members’ personal and privileged health information. Further, it asserts release of the information raises security concerns given that other inmates at Elkton could gain access to the information. The BOP was ordered to produce a list of the inmates it identified within a day of the district court’s preliminary injunction. It did not. Instead, it moved to file the list under seal and ex parte. Petitioners moved to compel production of the list. The district court denied the BOP’s motion,

Case: 4:20-cv-00794-JG Doc #: 38 Filed: 05/01/20 3 of 3. PageID #: 560 No. 20-3447 -3-
granted Petitioners’ motion, and again directed the BOP to produce the list. Only then did it seek to stay its deadline. The BOP has identified 837 inmates in the subclass, which includes all Elkton inmates 65 years or older and those with specific pre-existing medical conditions that are documented. Pursuant to the district court’s order, however, the BOP need only identify the subclass member, “each subclass member’s sentencing court[,] and the case number of their underlying criminal conviction.” (R. 22, Order, Page ID# 371). This limited information, although it identifies an inmate as medically vulnerable, does not disclose what medical condition(s) support the classification. Nor do the BOP’s conclusory allegations of security meet their heavy burden of showing a compelling reason why the list should not be publicly available. See Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016).
The request for an administrative stay is DENIED.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk

 
 Case: 4:20-cv-00794-JG Doc #: 43 Filed: 05/01/20 1 of 18. PageID #: 615

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CRAIG WILSON, et al., Petitioners,
v. MARK WILLIAMS, Warden of Elkton Federal Correctional Institution, et al.,
Respondents.

) CASE NO.: 4:20cv794 ) ) ) ) JUDGE JAMES S. GWIN ) ) ) ) )

OPPOSITION TO MOTION FOR CLASS CERTIFICATION

Case: 4:20-cv-00794-JG Doc #: 43 Filed: 05/01/20 2 of 18. PageID #: 616
INTRODUCTION In their Motion for Class Certification (ECF No. 33, the “Class Motion”), PetitionersPlaintiffs (“Petitioners”) seek to certify a class encompassing all current or future inmates at FCI Elkton, as well as a subclass, which, informed by the Court’s preliminary injunction ruling, Petitioners define to include “all Elkton inmates 65 years or older and those with documented, pre-existing medical conditions, including heart, lung, kidney, and liver conditions, diabetes, conditions causing a person to be immunocompromised (including, but not limited to cancer treatment, transplants, HIV or AIDS, or the use of immune weakening medications), and severe obesity (body mass index of 40 or higher).” This Court should deny Petitioners’ Class Motion for failure to meet the requirements of Federal Rules of Civil Procedure 23(a) and (b). Petitioners’ request for a one-size-fits-all order declaring that the Bureau of Prisons is deliberately indifferent to providing reasonable medical care and safety to the proposed class is fundamentally incompatible with classwide adjudication. Each of the Named Petitioners and the proposed class members – numbering more than 2,400 in the class and more than 800 in the subclass – presents significantly different medical risk factors, criminal histories, and social circumstances requiring individualized analysis, and disqualifying their claims from class treatment. Named Petitioners fail to present any evidence or analysis about the class members, precluding the rigorous analysis that Rule 23 requires must accompany a class certification ruling. Petitioners also seek varying forms of relief, which they concede (and the Court has acknowledged) will differ between class members based upon a case-by-case assessment of each class member’s suitability for particular remedies, as measured by a host of criteria. The Named Petitioners’ claims also are not representative of the proposed class given the variety of facts presented by each inmate’s individual cirucmstances, such as their differing
1

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criminal backgrounds, myriad underlying medical conditions of varying severity, if any, and home environments available to an inmate if released.
BACKGROUND I. Factual Background
A. The Named Petitioners Petitioner Craig Wilson is 42 years old. According to the Petition, he suffers from chronic asthma, and has since childhood. He uses a rescue inhaler and takes medication for breathing problems. (ECF No. 1 at 4). The Petition does not describe Wilson’s criminal history, but characterizes his conviction offense as a “nonviolent offense.” (Id.) His scheduled release date is January 5, 2026. Wilson has not sought relief through the administrative process, though he contends he attempted to do so but could not due to a lack of available forms. (Id.) Wilson is not among the inmates identified by BOP pursuant to the Court’s orders. (ECF No. 35-1). Petitioner Eric Bellamy is 52 years old. The Petition alleges that he has a history of heart problems, including one enlarged heart valve and two valves that are regurgitating. (ECF No. 1 at 4). He was convicted of possession of narcotics and a firearm, for which he is serving a 75month sentence. (Id.) The Petition states he has “no history of violence.” (Id.) He has served 16 months of his sentence and is scheduled for release on January 10, 2024. Bellamy is not among the inmates identified by BOP pursuant to the Court’s orders. (ECF No. 35-1). Petitioner Kendal Nelson is 46 years old. The Petition states that he suffers from asthma and uses a CPAP machine, has had a prior heart attack, has active coronary artery disease and a stented artery, and suffers from stage 4 kidney disease. (ECF No. 1 at 5). He was convicted of “a drug offense and possession of a firearm” and sentenced to serve 9 years. (Id.) So far, he has served 3 years, and is scheduled for release on February 4, 2025. He is the only Named Petitioner
2

Case: 4:20-cv-00794-JG Doc #: 43 Filed: 05/01/20 4 of 18. PageID #: 618
who is identified by BOP pursuant to the Court’s orders. (ECF No. 35-1 at 11). Petitioner Maximino Nieves is 46 years old. Unlike the other Petitioners, Nieves alleges
no health problems of any kind. (ECF No. 1 at 5). He was convicted of conspiracy to distribute narcotics and is scheduled for release in less than a year, on February 4, 2021. Nieves is not among the inmates identified by BOP pursuant to the Court’s orders. (ECF No. 35-1).
B. The Unnamed Class Members Petitioners provide little information about potential class members beyond their incarceration at Elkton. Unnamed class members may range in age from young adults to the very elderly; may have health issues that span the spectrum from terminal to non-existent; and may be presently infected with COVID-19 and receiving treatment, healthy and unexposed, or previously-infected and now recovered with potential immunity. Petitioners do not explain the ways in which those characteristics might affect the merits of their claims or the type of relief for which they are eligible. The offenses for which proposed class members are presently incarcerated and their overall criminal histories are likewise disparate. Some pose high risk of recidivism and would present a threat to their community, while others are unlikely to reoffend and pose little threat if released. Some inmates have homes and families that could provide support for home confinement, while others would likely become homeless and alone, without any means of supporting themselves. Some could access high quality medical treatment if they became ill, while others depend entirely on BOP and would have no meaningful access to health care if released. In sum, measured by these and other potentially relevant data points, every one of the more than 2,400 proposed class members is a unique individual with different characteristics.
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Case: 4:20-cv-00794-JG Doc #: 43 Filed: 05/01/20 5 of 18. PageID #: 619
II. Procedural History Petitioners commenced this action on April 13, 2020 (ECF No. 1) (the “Petition”).
Invoking 28 U.S.C. § 2241, Petitioners claim that their continued detention violates their Eighth Amendment right to be free from cruel and unusual punishment on the grounds that Respondents have acted with deliberate indifference to their medical needs. Petitioners filed the Petition as a class action in which the Named Petitioners sought to represent a class consisting of all current and future inmates at Elkton, as well as a subclass of “medically vulnerable” inmates.
Respondents answered the Petition on April 17, 2020, opposing the relief sought by Petitioners. (ECF No. 10). On April 22, 2020, the Court issued an Order granting in part and denying part Petitioners’ request for preliminary injunctive relief. (ECF No. 22). In the Order, the Court found that the broader class Petitioners seek to represent, comprising all present and future Elkton inmates, raised a challenge to the conditions of their confinement, which was not cognizable under § 2241. (ECF No. 22 at 11) (“For the remainder of the less-obviouslyvulnerable class the challenges sound more as a confinement conditions claim.”). The Court also found that the proposed subclass of medically vulnerable inmates – which the Court narrowed to include only those inmates considered “high risk” under CDC guidelines – were challenging the manner in which they served their sentences, which could be maintained as a habeas proceeding under § 2241. (Id.) The Court went on to find that this subclass provisionally satisfied the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(2) for treatment as an injunctive class, and entered a preliminary injunction, ordering Respondents to immediately identify all potential members of the redefined subclass. (Id. at 13, 22).
Acknowledging that each potential class member presents a different candidacy for the varying types of relief requested, the Court found it was “unable to determine the specific type of enlargement most suitable for each subclass member.” (Id. at 9). Indeed, the Court explained that
4

Case: 4:20-cv-00794-JG Doc #: 43 Filed: 05/01/20 6 of 18. PageID #: 620
“the Petitioners seek varied relief that allows the BOP to make individualized determination as to where each subclass member should be placed.” (Id. at 14). Thus, the Court ordered Respondents to conduct these “individualized determination[s]” and “evaluate each subclass member’s eligibility for transfer out of Elkton through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough within two (2) weeks.” (Id. at 20). Further recognizing the factual variations in each potential class member, the Court ordered Respondents to “prioritize the review by the medical threat level. For example, older inmates with heart, pulmonary, diabetes or immunity risks should receive review priority over subclass members who are younger.” (Id.)
Respondents appealed the preliminary injunction Order to the Sixth Circuit and filed a motion in this Court seeking a stay pending appeal. (See ECF Nos. 26 & 29).
SUMMARY OF ARGUMENT To certify a class under Federal Rule of Civil Procedure 23, a plaintiff must show that the proposed class satisfies all four requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. Here, Petitioners fail to meet three of the four. Commonality and typicality are lacking because Petitioners’ proposed class would combine inmates with different conviction offenses, sentences, outdates, disciplinary histories, ages, medical histories, proximities to infected inmates, availabilities of a home landing spot, likelihoods of transmitting the virus to someone in home detention, likelihoods of violation or recidivism, and present different dangers to the community. Moreover, class members likely have different means of providing for themselves and different access to medical care upon release. Petitioners lump inmates who are currently sick with COVID-19 together with asymptomatic inmates, as well as inmates who were previously sick and made a full recovery. They also include future inmates whose identies are as of yet unknown and who may never be exposed to or contract COVID-19.
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There simply is no commonality and typicality among proposed class members other than current or future incarceration at Elkton. Likewise, Petitioners cannot show adequacy of representation because they demand a drastic remedy that would have profound effects on members of the class without considering the personal impact on the individual class members. It is 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 substantially impacting the nation. Petitioners’ failure to account for such concerns in the relief that they seek demonstrates their unfitness as class representatives.
ARGUMENT I. Class Certification Is Inappropriate in Habeas Proceedings
The Supreme Court “has never addressed whether habeas relief can be pursued in a class action.” Jennings v. Rodriguez, 138 S. Ct. 830, 858 n.7 (2018) (Thomas, J., concurring) (citing Schall v. Martin, 467 U.S. 253, 261 n.10 (1984)) (reserving the question). At least as a technical matter, “Rule 23 does not apply to habeas corpus proceedings.” Mays v. Dart, No. 20 C 2134, 2020 WL 1987007, at *16 (N.D. Ill. Apr. 27, 2020) (citing Bijeol v. Benson, 513 F.2d 965, 96768 (7th Cir. 1975). Even courts that allow class actions pursuing habeas relief generally agree that such proceedings are “ordinarily disfavored.” See Cox v. McCarthy, 829 F.2d 800, 804 (9th Cir. 1987). The Sixth Circuit appears not to have decided the question. For the reasons explained in connection with the Rule 23 analysis below, class action procedures are incompatible with the type of relief for which habeas proceedings are designed. Indeed, the inmate-specific determinations required in this case illustrate why class litigation should not be permitted. II. Class Certification Standard
“The class action is ‘an exception to the usual rule that litigation is conducted by and on
6

Case: 4:20-cv-00794-JG Doc #: 43 Filed: 05/01/20 8 of 18. PageID #: 622
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 Federal Rule of Civil Procedure 23, a plaintiff must show that the proposed class satisfies all four requirements of Rule 23(a) and one of the three requirements of Rule 23(b). Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011).
Petitioners seek certification under Rule 23(b)(2). Rule 23(b)(2) permits class actions for declaratory or injunctive relief where “the party opposing the class has acted or refused to act on grounds that generally apply to the class.” Fed. R. Civ. P. 23(b)(2). Petitioners bear the burden of proving that each requirement of Rule 23 is satisfied. See In re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig., 722 F.3d 838, 850 (6th Cir. 2013).
“Rule 23 does not set forth a mere pleading standard,” Dukes, 564 U.S. at 350; rather, the plaintiff is required “to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Id. “Class certification is appropriate if the court finds, after conducting a ‘rigorous analysis’ that the requirements of Rule 23 have been met.” Whirlpool, 722 F.3d at 850 (quoting Dukes, 564 U.S. at 350). “Evidentiary proof is required to show compliance with Rule 23.” Food Lion, LLC v. Dean Foods Co., 312 F.R.D. 472, 482 (E.D. Tenn. 2016). Ordinarily, “the class determination should be predicated on evidence presented by the parties concerning the maintainability of the class action,” and it necessarily may entail “some overlap” with the merits of the plaintiff’s underlying claim. Whirlpool, 722 F.3d at 851. III. Petitioners’ Motion to Certify Should Be Denied
A. The Proposed Class of All Current and Future Inmates Cannot Be Certified In the Class Motion, Petitioners continue to press for certification not only of the subclass defined by the Court’s prior ruling, but also the broader class that includes all present and future
7

Case: 4:20-cv-00794-JG Doc #: 43 Filed: 05/01/20 9 of 18. PageID #: 623
Elkton inmates. The Court’s Order, however, foreclosed certification of any such class. Distinguishing members of the Court’s re-drawn subclass, which the Court construed as
raising a “challenge to the manner in which the sentence is served” that was “cognizable under 28 U.S.C. § 2241,” the Court found that “the remainder of the less-obviously-vulnerable class” – i.e., everyone in the proposed class who was not part of the subclass – was raising a challenge that “sound[ed] more as a confinement conditions claim.” (ECF No. 22 at 11).1 The Court found that the “alteration to the confinement conditions” claims asserted by the “not medically vulnerable Elkton inmates” were “more like § 1983 claims” unsuitable for habeas relief. (Id.). And since Petitioners brought only a habeas claim, the Court found that it could “only properly address those claims suitable for habeas relief”—which those of the all-inclusive class were not. (Id.). Though the Court did not dismiss those claims outright, it found they could not proceed and denied relief to any inmates outside the proposed subclass. Thus, certification of the larger class would be futile because, as the Court has already found, such claims are not cognizable in habeas. See J & R Mktg., SEP v. Gen. Motors Corp., 549 F.3d 384, 390 (6th Cir. 2008) (“If it is found, prior to class certification, that the named plaintiffs’ individual claims are without merit, then dismissal is proper.”)
B. Petitioners Cannot Establish Commonality Within the Subclass The nature of both the merits and petitioners’ demand for relief serve to defeat class certification. To obtain class certification, Petitioners must demonstrate that the proposed class is entitled to common relief as to each count on which certification is sought. See Fed. R. Civ. P. 23(a)(2), (b)(2). The Supreme Court has repeatedly held that “what matters to class certification . . . is not the raising of common questions—even in droves—but, rather the capacity of a

1

Respondents reiterate their objection that even the subclass’s claims are not cognizable in

habeas. See Stay Mot. at 6-7, Dkt. 29; see also Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir.

2013); Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004).

8

Case: 4:20-cv-00794-JG Doc #: 43 Filed: 05/01/20 10 of 18. PageID #: 624
classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Dukes, 564 U.S. at 350 (internal quotation marks and citation omitted). The commonality requirement applies with special force to a class seeking certification under Rule 23(b)(2). As the Supreme Court recently noted, “Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.” Jennings, 138 S. Ct. at 852 (quoting Dukes, 564 U.S. at 360).
For certification under Rule 23(b)(2), Petitioners must show that the challenged conduct is “such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Dukes, 564 U.S. at 360. Accordingly, Petitioners bear the burden to demonstrate that any factual differences among the proposed class members are unlikely to affect their entitlement to relief. See id. Class certification under Rule 23(a) and (b)(2), therefore, requires two steps: (1) the identification of a common legal problem, and (2) a showing that the common legal issue may be resolved as to all class members simply by virtue of their membership in the class. Dukes, 564 U.S. at 350 (concluding that the common legal problem “must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”).
Petitioners’ proposed subclass fails to meet the commonality requirement. They allege an Eighth Amendment violation, which requires proof that (1) Petitioners have suffered a deprivation that is, “objectively, sufficiently serious,” “result[ing] in the denial of the minimal civilized measure of life’s necessities,” and (2) that BOP is acting with “deliberate indifference to inmate health or safety,” “know[ing] of and disregard[ing] an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994). To meet the first part of the test,
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Case: 4:20-cv-00794-JG Doc #: 43 Filed: 05/01/20 11 of 18. PageID #: 625
Petitioners must establish the existence of a “sufficiently serious” medical need. Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004).
By definition – and as the Court’s prior Order recognizes – each putative class member has different medical needs, some more serious than others. (ECF No. 22 at 11). Even when limited to the subclass defined by the Court, each individual presents a different risk profile for COVID-19 based on age, preexisting conditions, and a host of other factors. The proposed class members’ differing risk profiles preclude a single, indivisible remedy, because not all risk profiles necessitate the same precautions. Indeed, the four Named Petitioners alone have differing medical conditions and thus differing risk profiles for COVID-19. In fact, only one of them, Petitioner Nelson, was identified by BOP pursuant to the Court’s orders regarding the subclass. (ECF No. 35-1 at 11). But although he may meet the subclass definition, Petitioner Nelson’s medical condition nevertheless differs materially from those of the other 836 potential subclass members. Some are likely at greater risk to contract the virus with serious complications, others less. The undeniable point is that all have different Eighth Amendment claims, which will make it impossible to resolve the merits “as to all class members simply by virtue of their membership in the class,” as required for certification. Dukes, 564 U.S. at 350. To adjudicate Petitioners’ claims, the Court will have to conduct an individualized evaluation of each class member’s condition and needs, as well as prison officials’ cognizance of and response thereto – in effect requiring 837 separate mini-trials. Such “[d]issimilarities within the proposed class” defeat commonality. Id.
Even after separately analyzing each class member’s Eighth Amendment claim on the merits, moreover, the individualized inquiries will not end. Assuming some Petitioners could prove a constitutional violation, the relief to which they might be entitled would require separate
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Case: 4:20-cv-00794-JG Doc #: 43 Filed: 05/01/20 12 of 18. PageID #: 626
evaluation for each class member, accounting for such factors as age, conviction offense, criminal history, and recidivism risk, to name a few. The “key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Dukes, 564 U.S. at 360 (citation omitted). Here, Petitioners admittedly do not seek a single, indivisible remedy. Instead, they seek varying forms of relief that could result in compassionate release, parole, community supervision, transfer furlough (to another facility, hospital, or halfway house), or non-transfer furlough – all dependent upon a constellation of individualized factors. (See ECF No. 1 at 2 n.2; ECF No. 22 at 7, 20). Thus, Petitioners’ requested relief further defeats the commonality requirement and renders class certification inappropriate. See Money v. Pritzker, --- F. Supp. 3d ---, 2020 WL 1820660, at *14 (N.D. Ill. Apr. 10, 2020) (refusing to certify class of inmates seeking furlough based upon COVID-19 threat due to lack of commonality).
C. Petitioners Cannot Establish Typicality Within the Subclass Petitioners’ proposed class also fails to meet the typicality requirement. Commonality and typicality are interrelated and, in some instances, merge. Dukes, 564 U.S. at 350. “Both [requirements] serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Id. Just as the Named Petitioners’ circumstances and those of other Elkton inmates are too varied to satisfy the commonality requirement, Petitioners are also unable to satisfy Rule 23(a)(3). See id. (where “individualized assessments are necessary” the class fails on typicality under Rule 23(a)(3)).
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Case: 4:20-cv-00794-JG Doc #: 43 Filed: 05/01/20 13 of 18. PageID #: 627
Typicality “refers to the individual characteristics of the named plaintiff in relation to the class.” Food Lion, 312 F.R.D. at 483. “Typicality is met if the class members’ claims are fairly encompassed by the named plaintiffs’ claims.” Whirlpool, 722 F.3d at 852. This requirement “insures that the representatives’ interests are aligned with the interests of the represented class members so that, by pursuing their own interests, the class representatives also advocate the interests of the class members. Id. at 852-53. Where the plaintiffs’ claims depend on each individual’s unique interactions with the defendant, typicality is lacking. Sprague v. Gen. Motors Corp., 133 F.3d 388, 399 (6th Cir. 1998) (en banc).
The different forms of relief requested demonstrate Petitioners’ inability to establish typicality. Petitioners ask the Court to order Respondents to release some inmates, place others on home confinement, send others to halfway houses, and transfer others to different facilities – though Petitioners cannot say what remedy they want for any particular class member. (ECF No. 1 at 37). This proposed remedial scheme exposes that the individual decision as to each putative class member will differ based on each inmate’s unique factors. In short, Petitioners seek a classwide remedy on an individualized basis—a contradiction in terms that in and of itself defeats typicality.
In addition, Petitioners’ claims are subject to unique defenses based on the facts and circumstances of each individual class member. See Sacal-Micha v. Longoria, --- F. Supp. 3d ---, 2020 WL 1518861, at *5 (S.D. Tex. Mar. 27, 2020) (noting that decisions from other district courts demonstrate individualized nature of analysis to determine whether release is appropriate). Petitioners effectively request classwide relief through de facto individual habeas petitions decided on the facts of each inmate. This relief is wholly inconsistent with the requirement that relief be common across the class. Dukes, 564 U.S. at 360. Other federal inmates throughout the
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country have filed individual actions seeking release based upon COVID-19. That numerous federal inmates are having their cases for release heard on an individualized basis, with some inmates obtaining release (although Respondents argue that such remedy is not appropriate in a conditions of confinement case) and others not, further demonstrates that the impropriety of classwide relief.
D. Petitioners Are Inadequate Class Representatives The Named Petitioners are not adequate class representatives because, as discussed above, their interests may conflict with those of other putative class members. The adequacy requirement is designed to protect class members who are not named as parties to the action but nevertheless who will be bound by a subsequent judgment. Hansberry v. Lee, 311 U.S. 32, 45 (1940); see also Smith v. Babcock, 19 F.3d 257, 265 n. 13 (6th Cir.1994) (holding that “[n]o class should be certified where the interests of the members are antagonistic, because the preclusive effect of the verdict may deprive unnamed class members of their right to be heard”). Assessing the adequacy of class representation involves two inquiries: (1) whether the named plaintiffs and their counsel have any conflicts of interest with other class members; and (2) whether the named plaintiffs and their counsel will prosecute the action vigorously on behalf of the class. See Vassalle v. Midland Funding LLC, 708 F.3d 747, 757 (6th Cir. 2013). As discussed above, the fact that the Named Petitioners have different medical needs, criminal histories, and recidivism risk ratings (among other things) underscores why they are inadequate class representatives with conflicting interests. Indeed, only Petitioner Nelson appears to qualify as a potential member of the subclass. The other three Named Petitioners are not members of the subclass and their claims are not cognizable in habeas; therefore they cannot possibly serve as class representatives. Reid v. White Motor Corp., 886 F.2d 1462, 1471 (6th Cir.
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Case: 4:20-cv-00794-JG Doc #: 43 Filed: 05/01/20 15 of 18. PageID #: 629
1989) (“[T]he class representative must be a member of the class he claims to represent.”). Nor is Petitioner Nelson an adequate representative. Whether an inmate is eligible for release depends in part upon whether he presents a danger to the community or a flight risk. Surely inmates eligible for release have different interests than other class members who are not. Given that release is not possible for all inmates, and that some inmates for whom release is possible are less likely to be released than others (because of relative flight risk or danger to the community), the interests of Named Petitioners – none of whom appear to be eligible for release – are adverse to those putative class members who may be. With his history of violence involving unlawful discharge of a firearm and Medium recidivism rating, Petitioner Nelson’s claim for release is different (and weaker) than those of potential class members without any violence in their past and with minimal recidivism risk ratings. Furthermore, not all inmates may desire release or transfer for various reasons; for example, some inmates may not want to pursue release if they do not have a safe place to live. The Named Petitioners cannot adequately represent these widely divergent interests they do not share with potential class members.
D. Petitioners Cannot Satisfy Rule 23(b)(2) “No class that fails to satisfy all four of the prerequisites of Rule 23(a) may be certified, and each class meeting those prerequisites must also pass at least one of the tests set forth in Rule 23(b).” Sprague, 133 F.3d at 397. Accordingly, “the unstated implication of Rule 23(b) is that there are cases that satisfy the Rule 23(a) criteria—numerous individuals with common questions whose rights are being pursued by an adequate class representative with typical claims—but that are unworthy of class certification on those grounds alone.” 2 Newberg on Class Actions § 4:1 (5th ed.). Even if Petitioners could satisfy the commonality, typicality, and adequacy requirements of Rule 23(a) they fail to demonstrate that the putative class here fits Rule 23(b)(2).
14

Case: 4:20-cv-00794-JG Doc #: 43 Filed: 05/01/20 16 of 18. PageID #: 630
Rule 23(b)(2) is referred to as a “mandatory” class action because class members do not have an automatic right to notice or a right to opt out of the class. The defining characteristic of a mandatory class is “the homogeneity of the interests of the members of the class.” Romberio v. Unumprovident Corp., 385 F. App’x 423, 432 (6th Cir. 2009) (quoting Reeb v. Ohio Dep’t of Rehab. & Corr., 435 F.3d 639, 649 (6th Cir. 2006)). “Rule 23(b)(2) operates under the presumption that the interests of the class members are cohesive and homogeneous such that the case will not depend on adjudication of facts particular to any subset of the class nor require a remedy that differentiates materially among class members.” Lemon v. Int’l Union of Operating Eng’rs, Local No. 139, AFL-CIO, 216 F.3d 577, 580 (7th Cir. 2000).
Here, potential class members have divergent interests requiring adjudication of individualized facts and seeking varied remedies, rendering such a “mandatory” class inappropriate. The individual nature of the injunctive relief sought is underscored by the various and specific inquiries required by the Court’s Order on preliminary relief, which recognizes that the putative subclass members have different criminal histories, may or may not be eligible for various programs, have different medical conditions which differ in severity, differ in age, as well as recidivism risk classification and the various other factors considered for eligibility and/or transfer under BOP’s mandate. (See ECF No. 22 at 9, 14, 20). Where, as here, “individual class member[s] would be entitled to a different injunction or declaratory judgment” from each other, Rule 23(b)(2) “does not authorize class certification.” Id.
CONCLUSION For the foregoing reasons, the Court should deny Petitioners’ Motion for Class Certification.
15

Case: 4:20-cv-00794-JG Doc #: 43 Filed: 05/01/20 17 of 18. PageID #: 631
Respectfully submitted, JUSTIN E. HERDMAN United States Attorney By: /s/ David M. DeVito James R. Bennett II (OH #0071663) Sara DeCaro (OH #0072485) David M. DeVito (CA #243695) Assistant United States Attorneys United States Court House 801 West Superior Ave., Suite 400 Cleveland, Ohio 44113 216-622-3988 - Bennett 216-522-4982 - Fax James.Bennett4@usdoj.gov Sara.DeCaro@usdoj.gov David.DeVito@usdoj.gov Attorneys for Respondents
16

Case: 4:20-cv-00794-JG Doc #: 43 Filed: 05/01/20 18 of 18. PageID #: 632 CERTIFICATE OF COMPLIANCE
Pursuant to Loc. R. 7.1(f), undersigned counsel certifies that the foregoing memorandum is 15 pages and within the limits of an unassigned matter.
/s/ David M. DeVito David M. DeVito (CA #243695) Assistant United States Attorney
17

 
 Case: 4:20-cv-00794-JG Doc #: 46 Filed: 05/06/20 1 of 5. PageID #: 651

No. 20-3447
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED
May 04, 2020 DEBORAH S. HUNT, Clerk

CRAIG WILSON, on behalf of themselves and all )

others similarly situated, et al.,

)

)

Petitioners-Appellees,

)

)

v.

)

)

MARK WILLIAMS, in his official capacity as

)

Warden of Elkton Federal Correctional Institution, )

et al.,

)

)

Respondents-Appellants.

)

O R D E R

Before: COLE, Chief Judge; GIBBONS and COOK, Circuit Judges.
Petitioners, four inmates housed in the Elkton Federal Correctional Institution and its low-security satellite prison FSL Elkton (collectively “Elkton”), on behalf of themselves and others housed or to be housed there, filed a petition under 28 U.S.C. § 2241 to obtain enlargement of their custody to limit their exposure to the COVID-19 virus. They sought to represent all current and future inmates, including a subclass of inmates who—through age and/or certain medical conditions—were particularly vulnerable to complications, including death, if they contracted COVID-19. Following a hearing, the district court entered a preliminary injunction directing Respondents Mark Williams, Elkton’s warden, and Michael Carvajal, the Director of the Federal Bureau of Prisons (“BOP”), to take certain steps for the subclass that included: (1) evaluating each subclass member’s eligibility for transfer out of

Case: 4:20-cv-00794-JG Doc #: 46 Filed: 05/06/20 2 of 5. PageID #: 652 No. 20-3447 -2-
Elkton by any means within two weeks; (2) transferring those deemed ineligible for compassionate release to other facilities utilizing certain measures to contain transmission of COVID-19; and (3) prohibiting those transferred from returning to Elkton until certain conditions were met. Respondents appeal, and move to stay the injunction pending resolution of their appeal. Petitioners move to strike the motion to stay, and separately oppose a stay. Respondents reply. Disability Rights of Ohio, a not-for-profit organization advocating for people with disabilities in Ohio, files an amicus brief in support of Petitioners.
First, we address the procedural motion. Petitioners move to strike Respondents’ motion to stay, and more particularly, the portion of that motion seeking an administrative stay. To the extent Petitioners sought to strike the request for an administrative stay, our prior denial of this request renders that portion of their motion moot. More generally, however, Petitioners contend Respondents have abused the stay process by requesting relief in this court without first obtaining a ruling from the district court. A party must first move the district court for a stay unless it would be impracticable, the district court denied a motion to stay, or it otherwise already failed to afford the relief requested. Fed. R. App. P. 8(a)(1)(A), (a)(2)(A). We find Respondents complied with Rule 8 and protected their interests by simultaneously seeking relief here, given the short time frame in which they sought relief.
We balance four factors to determine whether, in our discretion, a stay is appropriate: (1) whether the movant “has made a strong showing that he is likely to succeed on the merits”; (2) whether the movant “will be irreparably injured absent a stay”; (3) whether issuance of a stay will “substantially injure” other interested parties; and (4) “where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009) (citation omitted). The first two factors are “the most critical.” Id.

Case: 4:20-cv-00794-JG Doc #: 46 Filed: 05/06/20 3 of 5. PageID #: 653 No. 20-3447 -3-
Respondents challenge the preliminary injunction on multiple grounds, alleging that: the district court lacked jurisdiction under § 2241 over the action; if the suit had been properly brought under the Prison Litigation Reform Act (“PLRA”), the injunction would contravene its requirements for the release of prisoners; Petitioners failed to establish a violation of their Eighth Amendment rights; and the case is not suitable for classwide adjudication. We review legal conclusions de novo, factual findings for clear error, and the district court’s ultimate decision to issue injunctive relief for abuse of discretion. Graveline v. Johnson, 747 F. App’x 408, 412 (6th Cir. 2018).
Section 2241 provides jurisdiction to district courts over habeas petitions when a petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). The Supreme Court has neither foreclosed a prisoner from using, nor authorized a prisoner to use, habeas relief to challenge his conditions of confinement. See Preiser v. Rodriguez, 411 U.S. 475, 499 (1973). We need not reach this question here, however. 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. See Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011); cf. Terrell v. United States, 564 F.3d 442, 446−48 (6th Cir. 2009). Petitioners’ proper invocation of § 2241 also forecloses any argument that the PLRA applies given its express exclusion of “habeas corpus proceedings challenging the fact or duration of confinement in prison” from its ambit. 18 U.S.C. § 3626(g)(2).
Given the procedural posture of the case, we review not the merits of Petitioners’ Eighth Amendment claim, but whether the district court abused its discretion in entering the preliminary

Case: 4:20-cv-00794-JG Doc #: 46 Filed: 05/06/20 4 of 5. PageID #: 654 No. 20-3447 -4-
injunction. We accept the district court’s factual findings unless we find them clearly erroneous. Fed. R. Civ. P. 52(a)(6). The district court found that Elkton’s dorm-style structure rendered it unable to implement or enforce social distancing. The COVID-19 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. At Elkton, COVID-19 infections are rampant among inmates and staff, and numerous inmates have passed away from complications from the virus. Elkton has higher occurrences of infection than most other federal prisons. Respondents lack adequate tests to determine if inmates have COVID-19. 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.” United States v. Ables, 167 F.3d 1021, 1035 (6th Cir. 1999). Thus, at this juncture and given our deferential standard of review on motions to stay, “[t]he district court’s choice between two permissible views of the evidence cannot . . . be clearly erroneous.” Id.
Finally, Respondents challenge the conditional certification of a class action for the subclass. Respondents, however, have neither petitioned for nor received permission to appeal that decision. See Fed. R. Civ. P. 23(f). Regardless, we will not generally consider “[i]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation.” United States v. Sandridge, 385 F.3d 1032, 1035 (6th Cir. 2004) (citation omitted).
Respondents also argue that the enormous burden compliance with the injunction places on the BOP’s time and resources constitutes irreparable harm. “Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are

Case: 4:20-cv-00794-JG Doc #: 46 Filed: 05/06/20 5 of 5. PageID #: 655 No. 20-3447 -5-
not enough.” Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991) (citation omitted). Further, Respondents received fourteen days in which to evaluate each subclass member’s eligibility for transfer out of Elkton. Assuming Respondents have been complying with this directive while the motion to stay is pending, their time to comply is about to expire, rendering any remaining harm slight. Based on this, we cannot find that Respondents have established irreparable harm.
The motion to stay is DENIED. The motion to strike is DENIED. ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk

 
 Case: 4:20-cv-00794-JG Doc #: 50 Filed: 05/06/20 1 of 9. PageID #: 684

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

CRAIG WILSON, ERIC BELLAMY, KENDAL NELSON, and MAXIMINO NIEVES, on behalf of themselves and those similarly situated,
Petitioners, v.
MARK WILLIAMS, warden of Elkton Federal Correctional Institutions; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities,

Case No. 20-cv-0794 Judge James Gwin

Respondents. PETITIONERS’ MEMORANDUM REGARDING THE SIXTH CIRCUIT’S MAY 4, 2020
ORDER DENYING RESPONDENTS’ MOTION FOR STAY PENDING APPEAL INTRODUCTION
Although this Court may exercise discretion as to whether to stay its own orders pending appeal, it is bound by the rulings of the Sixth Circuit on discrete matters within that inquiry. Where the Sixth Circuit’s rulings have resolved disputed issues in this case, those resolutions are now the law of the case, and this Court may not revisit them. Further, where the appellate court’s holdings establish or reinforce binding precedent on general points of law, this Court may not exercise its discretion in a manner that contradicts that precedent.
The Sixth Circuit’s May 4, 2020 Order resolved substantially identical issues to those raised in Respondents’ Motion to Stay in this Court: namely, whether Respondents can show a strong likelihood of success on the merits of their appeal (they cannot), or whether their claims of irreparable harm are legally cognizable interests justifying a stay (they are not). This Court cannot grant a stay without revisiting those issues, which would violate the law of the case.

1

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Even aside from the law of the case, the Sixth Circuit’s Order also reaffirms several legal principles that operate to preclude any stay for Respondents here. First, it affirms on de novo review this Court’s ruling that 28 U.S.C. § 2241 jurisdiction properly applies where, as here, an incarcerated petitioner claims that no set of condition changes would be sufficient to cure a constitutional injury. See infra Section I-A. Second, it confirms that claims of this nature properly sound in habeas, rendering the Prison Litigation Reform Act inapplicable. Id. Third, it reiterates that the time, money, and energy required to comply with a district court’s order cannot constitute irreparable harm as a matter of law. Infra Section II.
These discrete legal rulings render it a foregone conclusion that Respondents’ Motion to Stay is without merit—indeed, to grant that Motion would require rulings contrary to the Sixth Circuit’s. As no pertinent issues remain unresolved in Respondents’ Motion, Petitioners respectfully submit that it must be denied.
ARGUMENT The law of the case doctrine precludes this Court from “reconsideration of identical issues” following resolution by the appellate court, whether those issues were resolved “explicitly or by necessary inference from the disposition[.]” Hanover Ins. Co. v. Am. Eng’g Co., 105 F.3d 306 (6th Cir. 1997) (internal citation omitted). The doctrine is “directed to a court’s common sense,” id., and is to be applied in the context of this Court’s “authority to interpret the scope and meaning” of any appellate order, including orders granting or denying a stay pending appeal. Reed v. Rhodes, 472 F. Supp. 603, 605 (N.D. Ohio 1979); United States v. Michigan, 508 F. Supp. 480, 485 (W.D. Mich. Nov. 13, 1980). Without law of the case, “an adverse judicial decision would become little more than an invitation to take a mulligan, encouraging lawyers and litigants alike to believe that if at first you don't succeed, just try again.” Entek GRB, LLC v. Stull Ranches, LLC, 840 F.3d 1239, 1240 (10th Cir. 2016) (Gorsuch, J.).
2

Case: 4:20-cv-00794-JG Doc #: 50 Filed: 05/06/20 3 of 9. PageID #: 686
“Different Rules of Procedure govern the power of district courts and courts of appeals to stay an order pending appeal. Under both Rules, however, the factors regulating the issuance of a stay are generally the same: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987) (citations omitted). The plain meaning of the Sixth Circuit’s May 4, 2020, Order resolves each and potentially dispositive issue raised in Respondents’ Motion to Stay before this Court—most notably by explicitly rejecting their same arguments on the first two factors, which are “the most critical.” Order, App. ECF No. 23-2 (“Order”) at 1 (quoting Nken v. Holder, 556 U.S. 418, 434 (2009)). Treating those issues as settled—as this Court must—forecloses the possibility of a stay.
I. The Sixth Circuit Resolved the Issue of Likelihood of Success on Appeal in Petitioners’ Favor As a Matter of Law A. 28 U.S.C. § 2241 Jurisdiction Applies, and the PLRA Does Not As the Sixth Circuit observed in denying Respondents’ notice to say, Petitioners “filed a
petition under 28 U.S.C. § 2241 to obtain enlargement of their custody to limit their exposure to the COVID-19 virus.” Order at 1. The Sixth Circuit reviewed this Court’s “legal conclusions de novo.” Id. at 3. The panel concluded in relevant part:
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. See Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011); cf. Terrell v. United States, 564 F.3d 442, 446−48 (6th Cir. 2009). Petitioners’ proper invocation of § 2241 also forecloses any argument that the PLRA applies given its express exclusion of “habeas corpus proceedings challenging the fact or duration of confinement in prison” from its ambit. 18 U.S.C. § 3626(g)(2). Order at 3. Those unqualified rulings are now the law of this case. Hanover, 105 F.3d at 312.
3

Case: 4:20-cv-00794-JG Doc #: 50 Filed: 05/06/20 4 of 9. PageID #: 687
Here, the Sixth Circuit, reviewing de novo, concluded that Petitioners’ § 2241 petition for enlargement qualifies as a challenge to the fact of their confinement that is cognizable under § 2241. Order at 1, 3. It also concluded that Petitioners’ having properly brought their claim under § 2241 renders the Prison Litigation Reform Act (PLRA) inapplicable in relevant part. Order at 3. These were linchpins of Respondents’ legal argument in favor of success on the merits. See ECF 30-1, Stay Mem. at 5–10. The Sixth Circuit has now stated its view on those issues. See Hanover, 105 F.3d at 312. Even taking these questions alone out of the equation, it is now all but impossible for Respondents to make “a strong showing that [they are] likely to succeed on the merits,” Nken v. Holder, 556 U.S. 418, 434 (2009) (citation omitted), or could have shown a likelihood of establishing on appeal that this Court “abused its discretion when it issued the preliminary injunction,” U.S. Student Ass’n Found. v. Land, 546 F.3d 373, 380 (6th Cir. 2008).
B. The Sixth Circuit Held that This Court’s Finding of Deliberate Indifference Is Unlikely To Be Disturbed on Appeal
The Sixth Circuit has also conclusively resolved that the Government is not likely to prevail in its appeal from this Court’s conclusion on the Eighth Amendment. This Court found that the Petitioners “obviously satisfy” the objective element, and “that, at this preliminary stage of the litigation, the Petitioners have sufficiently met the threshold for showing that Respondents have been deliberately indifferent.” Order, ECF No. 22 at 16. The Court rested these conclusions on several findings, including: the severity of COVID19, the low number of tests being administered, and that “Elkton has altogether failed to separate its inmates at least six feet apart, despite clear CDC guidance for some time that such measures are necessary to stop the spread and save lives.” Id. The Government did not dispute any of these factual findings while the motion for a preliminary injunction was being litigated, nor does it dispute them now. See Stay Mem., ECF No. 30-1 at 10-12. The Sixth Circuit ruled that the Court’s factual findings will likely survive appellate
4

Case: 4:20-cv-00794-JG Doc #: 50 Filed: 05/06/20 5 of 9. PageID #: 688
review, and agreed that they state a claim for deliberate indifference. Order at 4. The Sixth Circuit has determined that the Government is not likely to prevail on its challenge to this ruling in the current appeal. See U.S. Student Ass’n Found., 546 F.3d at 380.
To be sure, the parties may litigate the factual disputes as this case progresses through discovery, summary judgment, and trial. But the question before the Court today is the same that was before the Sixth Circuit: is the Government likely to prevail on its contention that this Court erred in its Eighth Amendment holding on appeal? The Sixth Circuit answered in the negative.
Nor is it relevant that the Government attached new declarations to its Motion to Stay. Nothing in them offers any basis to depart from the Court’s earlier factual findings. The only evidence relevant to the Eighth Amendment in the new declarations is paragraph 38 in the Cole Declaration, which reiterates some of the steps that Elkton has used to try to slow the spread of COVID-19. Yet the declaration does not suggest that social distancing is possible, for example, or otherwise call into doubt this Court’s holding that the lack of tests and the refusal to provide social distancing violates the Constitution. See United States v. Rayborn, 495 F.3d 328, 337 (6th Cir. 2007) (“[T]he evidence before the district court regarding the church’s interstate commerce activities is not materially different from the evidence considered by the previous Sixth Circuit panel.”). The Sixth Circuit’s ruling on the likely outcome of the appeal on the Eighth Amendment controls.
C. The Sixth Circuit Held that This Court’s Conditional Certification of a Class Was Not Properly on Appeal
As the Sixth Circuit observed, Respondents “neither petitioned for nor received permission to appeal” this Court’s conditional certification of a class action for the subclass. Order, App. ECF 23-2 at 4. As their appeal itself was defective, see id., Respondents obviously cannot show a strong likelihood of success on the merits of that appeal, in this Court just as in the Sixth Circuit.
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Case: 4:20-cv-00794-JG Doc #: 50 Filed: 05/06/20 6 of 9. PageID #: 689
Moreover, Respondents’ arguments to this Court as to the appropriateness of conditional certification closely mirror those in the Court of Appeals; indeed, the latter appears to have incorporated portions of the former by reference. Compare Stay Mem., ECF No. 30-1 at 13 with App. Stay Mot., App. ECF No. 9-1 at 18 (citing to declarations from Respondents’ motion to this Court) (arguing in both instances only that entitlement to transfer is “inherently individualized”). The Court of Appeals held these arguments to be impermissibly “perfunctory” and so deemed waived. That principle must apply equally in this Court. See Doe v. The Ohio State Univ., 136 F. Supp. 3d 854, 867 (S.D. Ohio 2016) (“It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to … put flesh on its bones.”) (quoting McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)). II. The Sixth Circuit Held that, as a Matter of Law, Respondents Have Failed to Show
Irreparable Harm, and Further that Respondents’ Claimed Harm Is Moot Both in this Court and in the Sixth Circuit, Respondents offered no evidence of irreparable harm beyond the purportedly “enormous burden [of] compliance” with this Court’s April 22 Order. That position was rejected wholesale by the Sixth Circuit as legally insufficient to constitute irreparable harm. See Order at 4-5 (“Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough.”) (citation omitted)); see also, e.g., Ohio State Conference of N.A.A.C.P. v. Husted, 769 F.3d 385, 389 (6th Cir. 2014). That same principle controls in this Court, and the Sixth Circuit has resolved its application to Respondents’ claimed injuries. Id. Its ruling leaves no room for a finding of irreparable harm that might justify a stay. Respondents thus fail outright to establish the second of the two “most critical” factors of a stay inquiry. Nken, 556 U.S. at 434. The Sixth Circuit also observed that any harm to Respondents from carrying out this Court’s order—in addition to being legally insufficient—has now diminished to the point of
6

Case: 4:20-cv-00794-JG Doc #: 50 Filed: 05/06/20 7 of 9. PageID #: 690 mootness. See Order at 5 (“Assuming Respondents have been complying with [this Court’s interim order] while the motion to stay is pending, their time to comply is about to expire, rendering any remaining harm slight.”). That is even truer today. As of the time of this submission, approximately 13 days and 21 hours have passed of the 14-day period allotted for Respondents’ compliance with this Court’s Order. Respondents’ investment of time and energy has already passed, rendering moot any claims of irreparable harm.
CONCLUSION For the foregoing reasons, Petitioners respectfully submit that the Sixth Circuit’s May 4, 2020 order fully resolves Respondents’ motion for stay before this Court, by applicability of the law of the case. Further, Respondents’ motion is moot.
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Case: 4:20-cv-00794-JG Doc #: 50 Filed: 05/06/20 8 of 9. PageID #: 691

Dated: May 6, 2020

Respectfully submitted,

/s/ David J. Carey David J. Carey (0088787) ACLU of Ohio Foundation 1108 City Park Avenue, Ste. 203 Columbus, OH 43206 Phone: (614) 586-1972 Fax: (614) 586-1974 dcarey@acluohio.org
Joseph Mead (0091903) Freda J. Levenson (0045916) ACLU of Ohio Foundation 4506 Chester Avenue Cleveland, OH 44102 Phone: (614) 586-1972 Fax: (614) 586-1974 attyjmead@gmail.com flevenson@acluohio.org

David A. Singleton (0074556) Mark A. Vander Laan (0013297) Michael L. Zuckerman (0097194) Ohio Justice & Policy Center 915 East Ninth Street, Suite 601 Cincinnati, OH 45202 Phone: (513) 421-1108 dsingleton@ohiojpc.org mvanderlaan@ohiojpc.org mzuckerman@ohiojpc.org
Counsel for Petitioners

8

Case: 4:20-cv-00794-JG Doc #: 50 Filed: 05/06/20 9 of 9. PageID #: 692 CERTIFICATE OF SERVICE
I hereby certify that on May 6, 2020, the foregoing was filed with the Court’s CM/ECF system. Notice of this filing will be sent by operation of that system to all counsel of record.
/s/ David J. Carey David J. Carey (0088787) Counsel for Petitioners
9

 
 Case: 4:20-cv-00794-JG Doc #: 51 Filed: 05/06/20 1 of 11. PageID #: 693

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

CRAIG WILSON, ERIC BELLAMY, KENDAL NELSON, and MAXIMINO NIEVES, on behalf of themselves and those similarly situated,
Petitioners, v.
MARK WILLIAMS, warden of Elkton Federal Correctional Institutions; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities,

Case No. 20-cv-0794 Judge James Gwin

Respondents. PETITIONERS’ EMERGENCY MOTION FOR ENFORCEMENT OF
PRELIMINARY INJUNCTION INTRODUCTION AND BACKGROUND Prisoners are still dying as the COVID-19 pandemic continues to rage through Elkton. Today, a 70 year-old man whose name appears on Respondents’ preliminary list of subclass members passed away.1 His is the eighth death at Elkton, and the fifth since this case was filed. See ECF No. 1 at ¶ 3. Confirmed cases have risen to 99 prisoners and 49 staff.2 One week ago, those numbers were 49 and 48.3 The situation remains as dire and urgent as ever, and Respondents’ halfhearted response measures have done little or nothing to stem the tide. In the face of a direct

1 WKYC Staff, 8th inmate dies from coronavirus at federal prison in Elkton, WKYC (May 6,

2020),

https://www.wkyc.com/article/news/health/coronavirus/8th-inmate-dies-from-

coronavirus-at-federal-prison-in-elkton/95-4d3c0f2e-c648-4e8c-b483-496bc053cd5b.

2 Federal Bureau of Prisons, COVID-19: Coronavirus (May 6, 2020),

https://www.bop.gov/coronavirus/.

3 See ECF No. 37 at 1 (citing the BOP website). Upon information and belief, the numbers on the

BOP website are currently active cases rather than cumulative, and so not including the dead or

recovered.

1

Case: 4:20-cv-00794-JG Doc #: 51 Filed: 05/06/20 2 of 11. PageID #: 694
order from this Court to begin moving medically vulnerable prisoners out of Elkton, Respondents have turned to a mixture of stalling tactics and outright defiance.
This Court ordered Respondents to evaluate and transfer vulnerable prisoners out of this epicenter of COVID-19—quickly. See ECF No. 22. As the Court reaffirmed yesterday, that Order required Respondents “to identify members of the subclass; evaluate each subclass member’s eligibility for transfer within two weeks (by May 6), prioritizing the most medically vulnerable inmates; and transfer inmates ineligible for other forms of release to another BOP facility.” ECF No. 45 at 1. Respondents were directed to assess each person’s possibility for “transfer out of Elkton through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough[.]” ECF No. 22 at 20.
Respondents have already demonstrated, time and again, that they will not take such action on their own. But under this Court’s Order, it is not for Respondents to decide whether the subclass should be moved out of Elkton, but only how—beginning with the most vulnerable, and keeping in BOP facilities only those who are “ineligible for” release or home confinement. “None of the above” is not an option that Respondents may continue to choose. See ECF No. 22 at 9 (injunction issued “ordering Respondents to determine the appropriate means of transferring medically vulnerable subclass members out of Elkton”); id. at 20-21 (“Subclass members who are ineligible for [release or home confinement] must be transferred to another BOP facility”).
Respondents’ Status Report is a damning account of noncompliance with the letter and spirit of the Court’s Order. Rather than rebutting the showing of subjective deliberate indifference to the prisoners who are falling ill and dying in Respondents’ care, the Report confirms it on multiple levels. First, Respondents have refused outright to evaluate prisoners for furlough as they were ordered to do. Second, they have refused to conduct or facilitate compassionate release
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Case: 4:20-cv-00794-JG Doc #: 51 Filed: 05/06/20 3 of 11. PageID #: 695
measures unless a prisoner directly applies, but have done nothing to advise them to do so. Cf. ECF No. 41 at 15 (Respondents’ position that it would be “premature” even to begin measures to fully identify the medically vulnerable subclass). Third, they have regarded this Court’s Order as a ceiling, not a floor—they have failed to identify any other mechanism for release or transfer. Fourth, Respondents’ Status Report is silent on any measures of any kind to transfer to another facility individuals who are ineligible for home confinement, or even to prepare to do so. Nor is there any inkling that Respondents’ are prioritizing the most pressing cases—or any case.
The paltry results of Respondents’ evaluations speak for themselves. Out of 837 medically vulnerable class members, which must be reduced by those who have already died while awaiting release, five are “pending community placement.” ECF No. 49 at 2. Only one has “met the criteria” for compassionate release, and the BOP is “working on” a release plan. Id. at 3. Zero have been approved, or apparently considered, for furlough. Id. at 4. In passing, Respondents have even rewritten the Court’s instruction to consider “all Elkton inmates 65 years or older” into a list of those “over the age of 65.” Id. at 1.4
Meanwhile, the stalling continues. Having already delayed production of their preliminary class list until more than a week after the Court’s Order, Respondents argue today that their requests to stay that Order—none of which have been granted by any Court, for any period of time—should somehow justify delays in producing a proposed protective order that would enable emergency discovery. ECF No. 48 at 3-4. Even relevant discovery about the class list itself is described as “unnecessarily divert[ing] BOP resources away from the health and security of the
4 Respondents’ admission explains why at least two, and possibly more, 65 year-old prisoners were left off the list, as noted in Petitioners’ Emergency Motion for Expedited Discovery. See ECF No. 44 at 2 n. 1.
3

Case: 4:20-cv-00794-JG Doc #: 51 Filed: 05/06/20 4 of 11. PageID #: 696
inmates.” ECF No. 48 at 2. On the contrary, given Respondents’ abject failure to protect their charges’ health to date, rapid discovery is rendered all the more necessary.
Federal courts are “not reduced to issuing injunctions against [government actors] and hoping for compliance. Once issued, an injunction may be enforced.” Hutto v. Finney, 437 U.S. 678, 690 (1978). This Court’s Order was not an advisory opinion, and it did not merely suggest that Respondents keep the parties and the Court informed while they continue their present, demonstrably failed course. Social distancing remains impossible at Elkton, and the death toll continues to rise. Respondents’ defiant response to this Court’s Order—coupled with stalling tactics that threaten to run out the clock while the disease runs its course—is manifestly inadequate. Absent the Court’s intervention, more people will die while Respondents continue their incessant delays and deflections.
ARGUMENT I. Respondents Have Failed To Conduct the Required Evaluations
A. Respondents Refuse To Conduct Any Review for Furloughs By statute, the Bureau of Prisons may release a prisoner from his place of imprisonment for a limited period, if the release is consistent with “the purpose for which the sentence was imposed” and any pertinent policy statement issued by the Sentencing Commission, if it is “otherwise consistent with the public interest,” and if there is “reasonable cause to believe that a prisoner will honor the trust to be imposed in him[.]” 18 U.S.C. § 3622. Purposes of such release may include, among others, obtaining medical treatment. § 3622(a)(3). Sentenced prisoners housed in BOP facilities are eligible. See 28 C.F.R. § 570.31. Among other possibilities, emergency nontransfer furloughs are available to “address a family crisis or other urgent situation.” 28 C.F.R. § 570.32(b)(1).
4

Case: 4:20-cv-00794-JG Doc #: 51 Filed: 05/06/20 5 of 11. PageID #: 697
Respondents have conceded that BOP already has the authority to temporarily release individuals from custody. See ECF No. 10-2 at p. 3 ¶ 7. They simply refuse to use it, as it is “only being used for those individuals who have been medically screened, considered to be at risk, and on the advice of medical professionals.” Id. (“No FCI Elkton resident has met this criterion.”). The entire medically-vulnerable subclass matches that description, rendering this mechanism an excellent fit under the Court’s instruction to “evaluate each subclass member’s eligibility [for] transfer furlough, or non-transfer furlough[.]” ECF No. 22 at 20.
But faced with that direct order, Respondents have responded with outright defiance—no one, in their unilateral view, will receive furlough “as a stand-alone basis for release from an institution.” ECF No. 49 at 4. No one, by their own account, has been evaluated for a furlough under the Court’s Order, much less granted one. On its face, Respondents’ Status Report appears to recount a brazen repudiation of this Court’s Order as to furloughs.
B. Respondents Have Evaluated Only a Fraction of the Medically Vulnerable Subclass for Compassionate Release and Their Explanations Why Are Unavailing
The Court’s April 22 ruling ordered Respondents to “evaluate each subclass member’s eligibility for transfer out of Elkton through any means, including but not limited to compassionate release,” among other measures. ECF No. 22 at 20. In response, BOP attempts to offload its responsibility to comply onto the prisoners themselves. Arguing that BOP lacks standalone “authority to grant ‘compassionate release,’” Respondents’ Status Report states that they have evaluated only 243 of the prisoners on their own privately generated list of medically vulnerable subclass members because those were the only subclass members who had “submitted a request for compassionate release.” ECF No. 49 at 3. They argue that the lack of a proposed “release plan” is a barrier to considering subclass members who have not yet made a request, as is not knowing “whether a particular inmate even desires to seek compassionate release.” Id. at 4. Thus far, they
5

Case: 4:20-cv-00794-JG Doc #: 51 Filed: 05/06/20 6 of 11. PageID #: 698
report that only 1 of those 243 prisoners “met the criteria for compassionate release,” and it appears that even that prisoner has not yet actually been released. Id. at 3.
Respondents’ lack of action amounts to abdication of their responsibility to follow the Order. The Court “order[ed] Respondents to evaluate each subclass member’s eligibility for,” among other avenues, “compassionate release.” ECF No. 22 at 20. The Order did not say anything about evaluating only those inmates who took the threshold step of making a request. See id. Furthermore, Respondents’ own report demonstrates that they are perfectly capable of evaluating inmates who have not made requests: they note that “BOP has identified six inmates on the list who, although they have not formally requested compassionate release, BOP is currently considering.” Status Report, ECF No. 49 at 3.5 Yet Respondents leave unexplained why the 588 other prisoners on BOP’s list of 837 prisoners were not similarly evaluated. More generally, and self-evidently, that Respondents have thus far identified only one qualifying prisoner at a lowsecurity facility like Elkton calls into the question the vigor of their efforts.6
5 Indeed, some courts are waiving compassionate-release exhaustion requirements altogether in light of the pandemic. E.g., United States v. Zukerman, No. 16 CR. 194 (AT), 2020 WL 1659880, at *2 (S.D.N.Y. Apr. 3, 2020) (“[T]he Court holds that Zukerman’s exhaustion of the administrative process can be waived in light of the extraordinary threat posed—in his unique circumstances—by the COVID-19 pandemic.”). Moreover, there is certainly no reason to believe that a prisoner must consent to be evaluated for compassionate release. Even assuming for argument’s sake that some prisoners would object to compassionate release, those prisoners would surely have a chance to voice their objections before being forcibly compassionately released by Respondents. 6 Respondents' ambivalence may also be reflected in their opposition to at least one compassionate-release petition brought in this District by an Elkton prisoner, who supplemented his motion based on COVID-19. See United States v. Smith, No. 4:15-CR-19, 2020 WL 2063417, at *2, 4 (N.D. Ohio Apr. 29, 2020) (noting that Government opposed the prisoner's supplemental motion on exhaustion grounds and denying relief while observing that the prisoner “may be a member of the subclass” involved in this habeas litigation).
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Case: 4:20-cv-00794-JG Doc #: 51 Filed: 05/06/20 7 of 11. PageID #: 699
C. Respondents Have Failed to Explain Why They Have Not Considered Other Means to Comply with the Court’s Order
The Court directed the Bureau of Prisons to determine eligibility “through any means, including but not limited to … parole or community supervision… ” Order, ECF No. 22 at 20. The Respondents have opted to interpret the order quite narrowly, and then not to comply with even that. To begin, Respondents argue that “BOP has no legal authority to ‘release’ inmates via parole or community supervision,” because “a term of supervised release does not replace a portion of the sentence of imprisonment.” Status Report, ECF 49 at 4. As Respondents well know, the Court was not suggesting that an additional punishment should be imposed on the prisoners, but that BOP should use community-based placements, with conditions, as necessary to implement the Court’s order. Further, the Government’s terse defiance fails to explain why it is refusing to use Bureau of Prison’s significant authority to transfer people to alternative forms of confinement, including home detention, while imposing conditions. That BOP is again choosing not to take necessary steps only underscores the necessity of further action by this Court. II. Respondents Have Failed To Describe Any Action To Transfer Prisoners
As noted above, this Court’s Order requires that those individuals who are “ineligible for compassionate release, home release, or parole or community supervision must be transferred to another BOP facility where appropriate measures … may be accomplished.” ECF No. 22 at 20– 21. Respondents acknowledged as much in seeking a stay from this Court. Stay Mem., ECF No. 30-1 at 2–3, 8, 15. And the Court’s May 5 Order reiterated that Respondents must “evaluate each subclass member’s eligibility for transfer within two weeks (by May 6), prioritizing the most medically vulnerable inmates; and transfer inmates ineligible for other forms of release to another BOP facility.” Order, ECF 45 at 1; accord Sixth Circuit Order, App. ECF 23-2 at 1–2.
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Case: 4:20-cv-00794-JG Doc #: 51 Filed: 05/06/20 8 of 11. PageID #: 700
Despite this unambiguous instruction, Respondents’ Status Report says nothing about transferring any prisoners to any other facility, having plans in place to do so, or in fact doing anything at all to begin these urgent transfers—for the most medically vulnerable, or for anyone else. Respondents argued, in pursuing a stay, that transferring inmates is “an extremely burdensome process,” Stay Mem., ECF 30-1 at 15, but that is all the more reason to begin the process, and it certainly does not excuse them from compliance. That there is no indication that they have initiated, let alone effected, even a single transfer flies directly in the face of what Respondents were ordered to do. III. Respondents’ Efforts To Shield This Process from Discovery Renders the Full Extent
of Their Noncompliance Unknown Even those evaluations that Respondents have actually undertaken have resulted in absurdly low numbers of individuals approved for release. See Status Report, ECF No. 49. Of the 837 known subclass members—a number that is known to be underinclusive, e.g., supra n. 4— Respondents have approved six people, or 0.7% of the subclass, for some form of release. That is equal to the number that had already been approved for home confinement transfers before Respondents answered the Petition in this case. See ECF No. 10-2 at ¶ 20. Respondents have not, in other words, stepped up their pace in response to this Court’s Order. Instead, they appear to be applying a set of unattainable filtering criteria. The reasoning for each rejection remains known only to Respondents, as they refuse to answer discovery about the conditional class. See Opp., ECF No. 48, at 2-3. Across multiple cases, the BOP has taken contradictory and shifting views on what criteria apply for home confinement, for example.7
7 Neena Satija & Matt Zapotosky, Amid coronavirus pandemic, federal inmates get mixed signals about home-confinement releases, WASHINGTON POST (April 24, 2020), https://www.washingtonpost.com/investigations/amid-coronavirus-pandemic-federal-inmatesget-mixed-signals-about-home-confinement-releases/2020/04/24/0bbc5458-84de-11ea-a3ebe9fc93160703_story.html.
8

Case: 4:20-cv-00794-JG Doc #: 51 Filed: 05/06/20 9 of 11. PageID #: 701 Indeed, BOP’s approach to home confinement in the COVID-19 crisis has been described as “Kafkaesque” and “an illogical and self-defeating policy that appears to be inconsistent with the directive of the Attorney General, ungrounded in science, and a danger to both [the prisoner] and the public health of the community.” United States v. Scparta, No. 18-CR-578 (AJN), 2020 WL 1910481, at *1 (S.D.N.Y. Apr. 20, 2020). Furloughs, according to Respondents, are at the Warden’s discretion, applying wholly unknown criteria within the statutory boundaries of that discretion. See Status Report, ECF No. 49 at 4. The results, however, speak for themselves. Respondents’ glacial pace and minuscule scope of releases to date simply underscores the need for expedited discovery and enforcement of this Court’s Order. Respondents have proven that left to proceed at their own discretion, they will do little or nothing to expedite releases or transfers.
CONCLUSION For the foregoing reasons, Petitioners respectfully request that this Court take appropriate measures to enforce compliance with its April 22, 2020 Order.
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Case: 4:20-cv-00794-JG Doc #: 51 Filed: 05/06/20 10 of 11. PageID #: 702

Dated: May 6, 2020

Respectfully submitted,

/s/ David J. Carey David J. Carey (0088787) ACLU of Ohio Foundation 1108 City Park Avenue, Ste. 203 Columbus, OH 43206 Phone: (614) 586-1972 Fax: (614) 586-1974 dcarey@acluohio.org
Joseph Mead (0091903) Freda J. Levenson (0045916) ACLU of Ohio Foundation 4506 Chester Avenue Cleveland, OH 44102 Phone: (614) 586-1972 Fax: (614) 586-1974 attyjmead@gmail.com flevenson@acluohio.org

David A. Singleton (0074556) Mark A. Vander Laan (0013297) Michael L. Zuckerman (0097194) Ohio Justice & Policy Center 915 East Ninth Street, Suite 601 Cincinnati, OH 45202 Phone: (513) 421-1108 dsingleton@ohiojpc.org mvanderlaan@ohiojpc.org mzuckerman@ohiojpc.org
Counsel for Petitioners

10

Case: 4:20-cv-00794-JG Doc #: 51 Filed: 05/06/20 11 of 11. PageID #: 703 CERTIFICATE OF SERVICE
I hereby certify that on May 6, 2020, the foregoing was filed with the Court’s CM/ECF system. Notice of this filing will be sent by operation of that system to all counsel of record.
/s/ David J. Carey David J. Carey (0088787) Counsel for Petitioners
11

 
 Case: 4:20-cv-00794-JG Doc #: 58 Filed: 05/08/20 1 of 15. PageID #: 749

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CRAIG WILSON, et al.
Petitioners, v. MARK WILLIAMS, Warden of Elkton Federal Correctional Institution, et al.,
Respondents.

) CASE NO.: 4:20CV794 ) ) ) JUDGE JAMES S. GWIN ) ) ) ) RESPONDENTS’ OPPOSITION TO ) PETITIONERS’ EMERGENCY MOTION ) FOR ENFORCEMENT OF ) PRELIMINARY INJUNCTION ) ) )

INTRODUCTION

Now come Respondents Mark Williams, Warden of Elkton Federal Correctional

Institution and Michael Carvajal, Director of Federal Bureau of Prisons, in their official

capacities (“Respondents”), and hereby respectfully oppose Petitioners’ Emergency Motion for

Enforcement of Preliminary Injunction. With no evidentiary support, Petitioners claim BOP has

“done little or nothing to stem the tide,” while accusing Respondents of “turn[ing] to a mixture

of stalling tactics and outright definance.” (ECF No. 51 PageID #693-94.) Though sensational,

these accusations are simply not true. On the contrary, BOP continues to work relentlessly to

protect Elkton’s inmates, prison staff, and the public, and to comply with the Court’s rulings

under these unprecedented and challenging circumstances.

LAW AND ARGUMENT

I. EFFORTS AT ELKTON TO CONTAIN THE COVID-19 OUTBREAK

Despite Petitioners’ unfounded claims to the contrary, the Health Services staff at Elkton

has “worked tirelessly to ensure that every inmate is safe from the effects of this pandemic.”

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Case: 4:20-cv-00794-JG Doc #: 58 Filed: 05/08/20 2 of 15. PageID #: 750
(Supplemental Declaration of Sarah Dess (“Supp. Dees Decl.”), attached hereto as Exhibit A, at ¶ 83.) The staff are working 12 hour shifts so that the inmates have 24-hour on-site medical coverage. (Id.) Even before Petitioners brought this lawsuit, staff identified inmates who were at greater risk for COVID-19 complications. (Id. at ¶¶ 32, 85.) These inmates were carefully monitored for symptoms related to COVID-19. (Id. at ¶ 33.) Despite staff members being at risk and many of them getting sick themselves, “[c]are for the inmates has not declined during this pandemic.” (Id. at ¶ 85.)
Along with ongoing reviews by DOJ and BOP executive staff, a number of independent “public health officials have monitored the medical situation at FCI Elkton.” (Id. at ¶ 79.) This included the Ohio Department of Health, the Columbiana County Health Department, and local hospitals. (Id. at ¶¶ 80-82.) Comparing Elkton to nursing homes that house people in similar proximity, health officials have found that Elkton has been more successful at stopping the spread of COVID-19. (Id. at ¶ 80.) These health officials were impressed with the planning done at Elkton in response to the pandemic. (Id. at ¶ 81.)
The effectiveness of these ongoing efforts is evidenced by the fact that several (and perhaps many) subclass members want to be excluded from this action so they can remain at Elkton. For example, one inmate reported that he is “healthy even during this pandemic” and is “safe and secure at [Elkton]….” (J.S. Letter “Emergency Motion to Be Excluded from Any Subclass in this Suit,” attached hereto as Exhibit B; see also, J.B. Letter “Emergency Motion to Withdraw,” Ex. B (letter motion from an inmate who wants to withdraw from subclass and stay at Elkton).) Another subclass member wrote to the Court to advise that he does not wish to be transferred out of FCI Elkton. (ECF No. 52, PageID # 705.)
Moreover, Elkton is now in position to begin mass testing of inmates and staff.
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Case: 4:20-cv-00794-JG Doc #: 58 Filed: 05/08/20 3 of 15. PageID #: 751
Specifically, Elkton has contracted with Quest Diagnostics to test for COVID-19 with a turnaround time of between 24-48 hours. (Supp. Dees Decl. ¶ 46.) On May 7, 2020, Quest provided Elkton with 400 test swabs and BOP anticipates an additional 150-200 tests each day after that. (Id.) While the logistics of mass testing are still being finalized, it should only be limited by how often Quest can pick up the tests. (Id.) Elkton also has received an Abbott rapid testing machine, 250 test cassettes, and anticipates an additional 432 test cassettes being delivered within the week. (Id. at ¶ 44.)
Importantly, the data shows that these efforts have been effective in containing COVID19. (Supp. Dees Decl. at ¶ 66, attachment A.) As the chart below illustrates, the number of inmates being hospitalized per day has dropped substantially; only one inmate has been sent to the hospital for COVID-19 since April 17, 2020:
Inmates sent to Local Hospital for COVID-19
10 9 8 7 6 5 4 3 2 1 0
Similarly, the numbers of hospitalized and intubated inmates are both trending down:
3

4

Additionally, the total number of staff members who have tested positive for COVID-19 has remained nearly unchanged for more than two weeks:

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

0

1

2

3

4

5

6 66

77

7

7

888888888

8

9

9

10 10 10 10 10

10

11

11

12

12 12

12

13

14 14

14 14

14

15

16 16

16

17 17

17 17 17 17

17

18

18

19

20

Intubations

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

Case: 4:20-cv-00794-JG Doc #: 58 Filed: 05/08/20 4 of 15. PageID #: 752
Inmates at Local Hospital
50 45 40 35 30 25 20 15 10
5 0

(Id. at ¶ 66, attachment A.) This is not to minimize the gravit of the COVID-19 pandemic that has affected Elkton
and the nation as a whole. The novel coronavirus hs had severe consequences, but the Elkton
5

FSL

FCI

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

Finally, though it has fluctuated, the number of inmates in isolation has never exceeded
more than 0.5% of the inmate population:
Inmate Isolation
60 55 50 45 40 35 30 25 20 15 10
5 0

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

Case: 4:20-cv-00794-JG Doc #: 58 Filed: 05/08/20 5 of 15. PageID #: 753
Staff Confirmed Positive COVID-19
55 50 45 40 35 30 25 20 15 10
5 0

Case: 4:20-cv-00794-JG Doc #: 58 Filed: 05/08/20 6 of 15. PageID #: 754
staff and the BOP as a whole has worked diligently to minimize those consequences. And the current evidence and data above suggests that they are succeeding. II. BOP HAS EVALUATED ALL MEDICALLY VULNERABLE INMATES
A. Home Confinement In compliance with the Court’s Order, BOP has evaluated every inmate on the subclass list for eligibility for home confinement. Generally, 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 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 BOP Director to immediately maximize appropriate transfers to home confinement of all appropriate inmates held at Elkton. (Cole Decl. ECF 10-2 PageID # 192 at ¶ 18.) Contrary to Petitioners’ arguments, the factors for eligibility for home confinement are clearly set forth in the regulations and the guidance issued by the Attorney General. Pursuant to BOP Program Statement 7320.01, Home Confinement, Sec. 12, an inmate is eligible for home confinement only if the inmate: (1) has no public safety factors; (2) had excellent institutional adjustment; (3) has a stable residence with a supportive family; (4) has confirmed employment (if employable); and (5) has little or no need for the services of a CCC. Further, under the Attorney General’s guidance, BOP must consider the totality of the circumstances for each individual inmate, the statutory requirements for home confinement, and a number of discretionary factors.
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Case: 4:20-cv-00794-JG Doc #: 58 Filed: 05/08/20 7 of 15. PageID #: 755
(Attorney General Memorandum, dated March 23, 2020, ECF No. 10-3 PageID # 195.) Some offenses, such as sex offenses, will render an inmate ineligible for home confinement. (Id.)
The specific criteria that an inmate should meet to be eligible for home confinement are: (1) primary or prior offense is not violent; (2) primary or prior offense is not a sex offense; (3) primary or prior offense is not terrorism; (4) no detainer; (5) Mental Health Care Level is less than CARE- MH 4; (6) PATTERN risk score is Minimum (R- MIN); (7) no incident reports in the past 12 months (regardless of severity level); (8) U. S . citizen; and (9) a viable release plan. (Bureau of Prisons’ Guidance, ECF No. 10-3 PageID # 200-201.)
Even before the Court issued its preliminary injunction, BOP had begun evaluating the eligibility for home confinement of all inmates throughout the United States. BOP assigned additional staff to assist in the reviews for the inmates at Elkton. As of May 5, 2020, BOP completed these the eligibility for home confinement of all of the subclass members on the list. Five inmates are pending community placement. The remaining inmates identified on the list are not eligible for home confinement, in part because many are sex offenders who the Attorney General has deemed ineligible for home confinement. Respondents have complied fully with this aspect of the Court’s Order.
B. Compassionate Release Petitioners also accuse Respondents of failing to evaluate subclass members for “Compassionate Release.” This is incorrect. As an initial matter, an inmate’s federal sentence can only be ordered reduced by the inmate’s sentencing judge. The authority to grant “Compassionate Release” derives from 18 U.S.C. § 4205(g) and 18 U.S.C. § 3582(c)(1)(A). The First Step Act, codified at 18 U.S.C. § 3582, and the applicable regulations, 28 C.F.R § 571.61, specify that an inmate may file a Motion for Reduction of Sentence directly with the sentencing court after
7

Case: 4:20-cv-00794-JG Doc #: 58 Filed: 05/08/20 8 of 15. PageID #: 756
exhausting administrative remedies, or 30 days from the date the Warden receives such a request from the inmate, whichever is earlier. The sentencing court decides whether to grant such a motion.
The process of applying for Compassionate Release 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), http://www.bop.gov/policy/progstat/5050_050_EN.pdf. Generally, the process begins with a request by the inmate to the Warden accompanied by the necessary information. Upon receiving an application, BOP must consider: (1) nature and circumstances of the inmate’s offense; (2) criminal history; (3) comments from victims; (4) unresolved detainers; (5) supervised release violations; (6) institutional adjustment; (7) disciplinary infractions; (8) personal history derived from the PSR; (9) length of sentence and amount of time served; (10) inmate’s current age; (11) imate’s age at the time of offense and sentencing; (12) inmate’s release plans (employment, medical, financial); and (13) whether release would minimize the severity of the offense. BOP Program Statement 5050.50, Sec. 7. Under BOP regulations, these factors are neither exclusive nor weighted. Id. Rather, BOP considers these factors and any other relevant information to determine whether the inmate’s release would pose a danger to the safety of any other person or the community. Id.
To date, 243 subclass members have filed requests for compassionate release with the Warden. All 243 applications have been evaluated and decided by BOP. However, it is ultimately up to the sentencing judge to determine whether to grant compassionate release. For the remaining subclass members, while they have not submitted requests and therefore Elkton lacks information to complete an assessment, Elkton nevertheless evaluated their potential eligibility as well. Six subclass members who have not applied for compassionate release may qualify, and BOP is further
8

Case: 4:20-cv-00794-JG Doc #: 58 Filed: 05/08/20 9 of 15. PageID #: 757
reviewing those inmates and asking them for additional necessary information such as a release plan. The remaining subclass members do not appear to be appropriate candidates for Compassionate Release under the applicable factors.
It should be noted, contrary to Petitioners’ suggestion that exhaustion may not be required for Compassionate Release (ECF No. 51 at 6 n.5), the majority of courts that have considered whether a district court may waive the exhaustion and 30-day requirements of the First Step Act, 18 U.S.C. § 3582(c)(1)(a) and the BOP’s regulatory provision, 28 C.F.R. § 571.61, due to the exigent circumstances presented by COVID-19, have held that the exhaustion requirements are mandatory. E.g. United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020) (finding exhaustion requirement in § 3582 mandatory); United States v. Smith, No. 4:15-cr-19, 2020 WL 2063417, at *3 (N.D. Ohio Apr. 29, 2020) (“the Court will not read an exception into § 3582(c)(1) which does not exist, and Smith’s motions are denied for failure to exhaust his administrative remedies”); United States v. Alam, No. 15-20351, 2020 WL 1703881, at *2 (E.D. Mich. Apr. 8, 2020) (collecting cases). The only court of appeals that has addressed this issue so far is the Third Circuit which held that an inmate’s failure to wait the requisite 30-day period before seeking a compassionate release from the district court “present[ed] a glaring roadblock foreclosing compassionate release[.]” Raia, 954 F.3d at 597.
C. Furloughs The BOP has the authority to temporarily release from custody (i.e. “furlough”) an inmate pursuant to 18 U.S.C. § 3622 and BOP Program Statement 5280.09, Inmate Furloughs. That statute requires any furlough to be “consistent with the purpose for which the sentence was imposed” and may only be granted for an authorized purpose. 18 U.S.C. § 3622. As relevant here, the regulations permit BOP to grant emergency furloughs to allow an inmate to address a
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family crisis or other urgent situation. 28 C.F.R. § 570.32(b)(1). Effective April 16, 2020, BOP issued guidance that the COVID-19 pandemic “is considered an urgent situation that may warrant an emergency furlough….” (ECF No. 10-3 PageID # 200.) However, inmates are generally ineligible for furlough if: (1) convicted of a serious crime against a person; (2) their presence in the community could attract undue public attention, create unusual concern, or diminish the seriousness of the offense; or (3) granted a furlough in the past 90 days. 28 C.F.R. § 570.36(b). Further, BOP guidance provides that furloughs are to be considered for inmates who are within 12 months of projected release or who have received home confinement with a projected release date exceeding one year. (ECF No. 10-3 PageID # 200.) BOP staff have examined the subclass members eleigibility for furlough under these authorities on several occasions.. In short, none satisfy the criteria for furlough eligibility
D. No Other Basis for Release or Transfer Exists that Elkton Has Not Considered In their Motion, Petitioners accuse Respondents of failing “to identify any other mechanism for release or transfer,” but fail to identify any mechanism that Respondents failed to consider. In reality, no other legal mechanism exists for the release or transfer of prisoners other than those that already considered. III. TRANSFER OF SUBCLASS MEMBERS Petitioners complain that Respondents failed to describe any action regarding the transfer of prisoners. (Mot. to Enforce, ECF No. 51 PageID # 699.) While not specifically addressed in the status report, as described below, BOP has began the process of investigating and planning for possible transfers of inmates. A. Procedure for Designation of Place of Imprisonment Pursuant to 18 U.S.C. § 3621(b), BOP is required to designate the place of a prisoner’s
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Case: 4:20-cv-00794-JG Doc #: 58 Filed: 05/08/20 11 of 15. PageID #: 759
imprisonment. Once an inmate has been transferred to BOP after sentencing, BOP considers the following primary factors when making a designation decision: (1) the level of security and supervision the inmate requires; (2) the level of security and staff supervision the institution is able to provide; and (3) the inmate’s program needs. (Declaration of Sukenna W. Stokes (“Stokes Decl.”), attached as Exhbit C, at ¶ 13, see also, attachment A, PS 5100.08 at page 1.) BOP alos considers additional factors including, but not limited to:
 The inmate’s release residence;  The level of overcrowding at an institution;  Any security, location or program recommendation made by the sentencing
court;  Any Central Inmate Monitoring issues (see Program Statement Central
Inmate Monitoring Program);  Any additional security measures to ensure the protection of
victims/witnesses and the public in general; and,  Any other factor(s) which may involve the inmate’s confinement; the
protection of society; and/or the safe and orderly management of a BOP facility.
(Id. at ¶ 14, see also, attachment A, PS 5100.08 at Chapter 1, pages 1-2.) The designation process involves two parts. (Id. at ¶ 15.) First, BOP classifies the
inmate according to a security level (minimum, low, medium or high) and assigns the inmate a custody level (community, out, in, or maximum). (Id.) Second, BOP designates the inmate to a particular facility commensurate with their security level and custody level and the identified factors. (Id. at ¶ 15.)
Under some circumstances, the BOP may transfer an inmate to a different institution following initial designation which is referred to as redesignation. (Id. at ¶ 23.) Reasons for requesting redesignation include, but are not limited to disciplinary or closer supervision reasons, institution classification reasons, institution adjustment reasons, medical/psychological reasons, programming or training reasons, or because an inmate is nearing release. (Id., see also,
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Attachment A, PS 5100.08 at Chapter 7, pages 1-12.) B. Efforts to Transfer Subclass Members In compliance with the Court’s April 22, 2020, Order in this matter, the Northeast
Regional Correctional Programs Department has been reviewing BOP records concerning available bed space at institutions located throughout the Northeast Region, as well as nationwide. (Stokes Decl. at ¶ 26.) This review has focused on determining whether sufficient and available space exists to transfer and house for an extended period of time those identified inmates deemed inappropriate or otherwise ineligible for release via compassionate release or reduction in sentence, furlough, home confinement, parole, or community supervision. (Id.) The review has considered the capability of affording these inmates appropriate measures, such as testing, single-cell placement, and social distancing opportunities, as well as the BOP’s suspension of inmate internal movement, programming and security concerns. (Id. at ¶ 27.) Because the inmates at Elkton would be transferred from a low security institution, the assessment must account for each institution’s physical structure, layout, custody, and security level. (Id. at ¶ 28.) To comply with the Court’s requirement to place subclass memebers in single-cells, BOP would likely need to transfer inmates to higher security institutions that contain cell-type housing, while simultaneously transferring those higher security inmates to other institutions in order to prevent the two groups from intermingling. (Id. at ¶ 29.)
Higher security institutions, including medium Federal Correctional Institutions, and United States Penitentiaries, have cells with typically two beds per cell. (Id. at ¶ 30.) As such, a medium or high security institution that reports it has, for example, 500 empty beds, would most likely only be able to accommodate at most 250 inmates in single-cell status, further limiting BOP’s options. (Id.) Moreover, given the limited available single cell bed space, the majority of
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the inmates would likely have to be transferred to institutions outside of 500 driving miles of their primary residences. (Id. at ¶ 36.)
In addition to the available bed space issues raised by transferring these inmates to higher security institution, such transfers would raise serious security concerns. (Id. at ¶ 37.) BOP reviews many factors to see if a particular institution is appropriate for an inmate, including the inmate’s criminal history, programing needs, release residence, level of security and supervision needed, and and, any other factor(s) which may involve the inmate’s confinement, the protection of society, and/or the safe and orderly management of a BOP facility. (Id.)
Many of the subclass members at Elkton receive various mental health services, including assessment, individual and group counseling, and crisis intervention functions. (Id. at ¶ 38.) A non-residential sex offender treatment program is available to inmates housed in the federal satellite low attached to FCI Elkton. (Id.) Further, substance abuse services including the Residential Drug Abuse Program (RDAP), nonresidential treatment, and a drug abuse education course are also available at Elkton. (Id.) However, these important drug and sex offender treatment programs are not available at many other institutions. (Id. at ¶ 39.) Disrupting inmate participation in these programs may cause significant lapses in treatment, which may impact an inmate’s recovery, ability to continue with a program, and his eligibility for an early release pursuant to 18 U.S.C. § 3621(e) through completion of RDAP. (Id.)
Further, BOP is highly concerned about avoiding the risk of COVID-19 transmission that the CDC has suggested may occur if detained individuals are transferred between facilities during the COVID19 crisis. (See, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/ 2019-ncov/downloads/guidance-correctional-detention.pdf, last access on May 8, 2020, attached
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as Exhibit D.) In fact, the CDC recommends that a correctional institution suspend all transfers unless absolutely necessary if there is a suspected or confirmed case of COVID-19 at the institution. (Id. at 13.) It is because of these risks that BOP has a policy against most transfers during the pandemic. (Supp. Dees Decl. at ¶ 10.) This policy is well-founded, as demonstrated by what happened during the recent transfer of 124 inmates to FCI-Gilmer.1 Inmates were screened prior to being transferred and upon arrival at FCI-Gilmer. (Id.) None of the inmates were symptomatic. (Id.) Nevertheless, three days after arriving at FCI-Gilmer, one inmate developed symptoms, was sent to a local hospital, and tested positive for COVID-19. (Id.) As a result, the prison staff unions and elected leaders have urged BOP not to transfer prisoners during the COVID-19 pandemic. (Id.)
In attempting to comply with the court’s order, BOP must carefully evaluate the statutorily mandated factors governing the designation of appropriate facilities for particular inmates, availability of alternative spaces that meet the requirements of the court’s order, the problems that may arise based on alternative placements, and the best ways to mitigate any risk of spreading COVID-19 through transfers. These evaluations obviously take time, but BOP is moving as quickly as possible.
1 See, http://wvmetronews.com/2020/05/04/bureau-of-prisons-confirms-positive-test-at-gilmerprison-came-from-inmate-who-was-transferred-there/ (last visited May 9, 2020).
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CONCLUSION This Court should deny Petitioner’s Emergency Motion for Enforcement of Preliminary Injunction. The BOP is working hard to comply with the Court’s Order within the limits of the law, controlling regulations and policies, and the best interest, safety and security of its inmates during the COVID Pandemic.
Respectfully submitted, JUSTIN E. HERDMAN United States Attorney By: /s/ James R. Bennett II James R. Bennett II (OH #0071663) Sara E. DeCaro (OH #0072485) David M. DeVito (CA #243695) Assistant United States Attorneys United States Court House 801 West Superior Ave., Suite 400 Cleveland, Ohio 44113 216-622-3988 - Bennett 216-522-4982 - Fax James.Bennett4@usdoj.gov Sara.DeCaro@usdoj.gov David.DeVito@usdoj.gov Attorneys for Respondents
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 Case: 4:20-cv-00794-JG Doc #: 78 Filed: 05/14/20 1 of 17. PageID #: 1042

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

CRAIG WILSON, ERIC BELLAMY, KENDAL NELSON, and MAXIMINO NIEVES, on behalf of themselves and those similarly situated,
Petitioners, v.
MARK WILLIAMS, warden of Elkton Federal Correctional Institutions; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities,

Case No. 20-cv-0794 Judge James Gwin

Respondents. REPLY IN SUPPORT OF PETITIONERS’ EMERGENCY MOTION FOR
ENFORCEMENT OF PRELIMINARY INJUNCTION INTRODUCTION
Respondents’ Opposition effectively asks this Court to allow them to run out the clock— that is, to allow COVID-19 to run its course within Elkton, even though Respondents cannot and do not dispute that social distancing remains impossible. Armed with a series of self-serving declarations, Respondents argue that they “carefully monitored” vulnerable prisoners, but cannot say that they effectively quarantined them. They stress that a handful of individual prisoners remain healthy, disregarding the dozens—perhaps hundreds—who have fallen ill or died. They state that they are “in a position to begin” mass testing, but do not explain how belated testing alone could do any more than to quantify Respondents’ failure to protect those who live at their mercy.
And indeed, Respondents cannot test their way out of the calamity at Elkton. First, by Respondents’ own account, the majority of tests require a 24-48 hour turnaround. ECF No. 58 at 3. During that time, an individual whose positive test has not yet been revealed—particularly if he

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is asymptomatic—will continue living in tight quarters with others. Second, Respondents’ failed remedial measures to date demonstrate their inability to conduct an effective quarantine. This is no surprise, given the clustered dormitory-style layout of Elkton and the crowding within it. Even quarantined housing areas will have staff moving in and out, which will invariably lead to further spread inside Elkton. Third, even a negative test can easily be a false negative. The Abbott rapid test that Respondents tout as a solution recently “missed a third of the positive samples found by [a competitor],” according to a recent New York University study.1 Fourth, even infection and recovery does not mean that a person is safe from this deadly illness. The World Health Organization has advised that “[t]here is currently no evidence that people who have recovered from COVID-19 and have antibodies are protected from a second infection.”2
In any event, the time for that discussion has passed. Respondents are under a clear Order to move people out of Elkton. Instead of complying, they have thrown up a series of roadblocks to every conceivable form of release. Despite guidance from their own agency and an Order from this Court to consider furloughs, they have simply declined or pled an inability to use their own discretion. Though the CARES Act has granted them sweeping authority to move prisoners to home confinement in this national emergency, the results of their review—recently produced at this Court’s order—demonstrates an unwillingness to use that authority as the moment demands, instead electing to construe it as tightly as possible. Prisoners’ compassionate-release applications are met with strident opposition from the BOP on technical grounds.
1 Carolyn Y. Johnson & Steven Mufson, Abbott Coronavirus Test Missed a Large Number of Positive Results Caught by a Rival Firm, Preliminary Study Says, WASH. POST (May 13, 2020), https://www.washingtonpost.com/health/2020/05/13/abbott-test-hailed-by-president-trump-hasbeen-dogged-by-accuracy-questions/. 2 WORLD HEALTH ORGANIZATION, “Immunity passports” in the context of COVID-19 (April 24, 2020), https://www.who.int/news-room/commentaries/detail/immunity-passports-in-the-contextof-covid-19.
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Respondents’ dogged resistance to life-saving releases cannot continue. Petitioners respectfully submit that further action is needed to enforce this Court’s Order.
ARGUMENT I. Respondents Have Failed to Use the Tools at Their Disposal to Alleviate the Outbreak
At conference on May 7, the Court ordered Respondents to “give a more specific delineation as to why each of the reviewed people were designated to be ineligible” for the various forms of enlargement or release, “and then, also, if you have an explanation why they statutorily would not be able to be released, some explanation why you couldn’t transfer them[.]” (ECF No. 55 at 12.) The former was provided, in the form of two spreadsheets produced on Monday, May 11. See Exhibits A, B.3 No further information on the latter was provided. On May 13, Respondents finally provided a cursory explanation of the general criteria used for searches in order to compile their preliminary class list. See Exhibit C.4
A. Respondents Concede That They Have Failed to Evaluate for Furlough Respondents have not argued—nor can they—that they cannot use emergency furloughs to move people to safety. See ECF No. 10-2 (Cole Decl. in Support of Answer) at ¶ 7 (“BOP also has the authority” for furloughs); see also ECF No. 58 at 9-10 (similar). By their own account, the buck stops with each of the Respondents. “The issuance of furloughs is within the sole discretion of the BOP and delegated to the Warden of each institution.” ECF No. 49 at 4 (status report).
3 Petitioners have redacted names and other personally identifying information, in part on the basis that the subject of the present Motion is Respondents’ lack of compliance rather than the merits of individual cases. Should the Court instruct otherwise, Petitioners will file supplemental copies of these exhibits without redaction. 4 Respondents initially designated this exhibit “Attorneys’ Eyes Only.” By email late in the evening on May 13, Petitioners requested that Respondents withdraw that classification. Per the discussion at conference on May 14, that dispute is moot and Exhibit C is filed without redaction.
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Nor can they argue that furloughs are an inappropriate mechanism here. As noted previously, they are designed in part to address medical emergencies. See ECF No. 51 at 5. Respondents have said as much. See ECF No. 10-2 at ¶ 7. Indeed, the same internal guidance that they cite as a basis to refuse home confinement expressly calls for their use:
The current pandemic is considered an urgent situation that may warrant an emergency furlough under 570.32(b) (1) and 570.33(b). These regulations authorize a non-transfer emergency furlough if the inmate is otherwise deemed appropriate, even if he/she has been submitted for Home Confinement (HC). ECF No. 10-3 at 6 (BOP Memorandum for Correctional Program Administrators). In their status report, Respondents presented the tautology that that they are not using furloughs because furloughs are not being used—and this Court’s Order apparently notwithstanding, they offered no plans to do so. See ECF No. 49 at 4 (“Furloughs are not being used as a stand-alone basis for release from an institution”); see also ECF No. 10-2. They have backpedaled in more recent briefing, instead claiming that prisoners are “generally” ineligible under regulatory criteria, and stating without citation or explanation that “none” of the subclass members “satisfy the criteria.” ECF No. 58 at 11. They have not provided any case-by-case review for furloughs, as they have for compassionate release and home confinement.5 Respondents’ new position is at odds with their earlier avowal of “sole discretion.” They were right the first time. The regulation that they now cite is not an inflexible limitation, but rather provides that “[o]rdinarily, Wardens will not grant a furlough to an inmate if” the cited criteria are met. 28 C.F.R. § 570.36(b). Respondents ask the Court to simply take their word for it, without evidence or detail, that these criteria are met for each and every member of the 837-person Medically-Vulnerable Subclass. But even if that were true, it would not justify a wholesale denial
5 Respondents’ list of home confinement results, however, notes two furloughs—contradicting their claim that no one in the class could be furloughed. See Exhibit A at Row 439; Row 677.
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of furloughs. Nothing about this pandemic is ordinary, which is why BOP guidance encourages furloughs to counteract its effects in prisons. See ECF No. 10-3 at 6. Whatever form of systemic review is being conducted for furloughs in Elkton—if any at all—is insufficient to meet either the Court’s Order or the needs of the moment.
B. Respondents’ Produced Information Confirms a Failure To Use Home Confinement as This Crisis and the Eighth Amendment Mandate
Respondents’ spreadsheet of home confinement findings confirm that they have applied an impossibly stringent inquiry, with self-evidently disastrous results. Of 837 medically-vulnerable prisoners, only five are approved for transfer to home confinement, see ECF No. 58 at 7, which is the most effective means of ensuring a prisoner’s safety, see ECF No. 1-3 at ¶¶ 17-20 (Novisky Decl.); see also ECF No. 1-4 at ¶ 33 (Goldenson Decl.).
Nothing in the law requires that Elkton approach home confinement in this manner. On the contrary, the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) authorizes Respondent Carvajal to lengthen the amount of time that prisoners can be placed on home confinement, provided that the Attorney General makes a finding that “emergency conditions will materially affect the functioning of the Bureau.” CARES Act, Pub. L. No. 116-136, § 12003(b)(2) (2020). That finding has been made. See ECF No. 10-3 (Attorney General’s April 3, 2020 Memorandum). And indeed, Attorney General Barr exhorted Respondent Carvajal to “give priority to” Elkton based on the severity of the infection there, and to “give priority in implementing” the new CARES Act standards to “the most vulnerable inmates at the most affected facilities” by “immediately maximiz[ing] appropriate transfers to home confinement.” ECF No. 10-3 at 3.
Underlying BOP’s position in this action is the presumption that its own informal guidance and discretionary factors for what “should” be demonstrated to merit home confinement, see ECF No. 10-3 at 6, is immovable and unreviewable, such that each individual criterion may be treated
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as an absolute requirement for a grant of home confinement. This absolute approach is not even consistent with the Attorney General’s memoranda to the Bureau, which emphasize that the factors are “discretionary” and the decision must be “individualized” and “based on the totality of the circumstances.” ECF No. 10-3 at 1 (March 26 memo) (“In assessing which inmates should be granted home confinement pursuant to this memorandum, you are to consider the totality of the circumstances for each individual inmate, the statutory requirements for home confinement, and the following non-exhaustive list of discretionary factors.”); ECF No. 10-3 at 3 (April 3 memo) (“Thus, while I am directing you to maximize the use of home confinement at affected institutions, it is essential that you continue making the careful, individualized determinations BOP makes in the typical case. Each inmate is unique and each requires the same individualized determinations we have always made in this context.”). Under Respondents’ absolutist view, a single failed element—for example, an incident report of even the mildest nature in the past 12 months, see ECF No. 10-3 at 6—would be enough to deny home confinement outright. Of course, such an unyielding approach is particularly inapposite given that Elkton itself is a low-security facility, where Respondents have already determined each prisoner not to present serious safety risks. See ECF No. 1 at ¶ 68.
Yet as another district court recently observed, a single failed element cannot always be enough to deny home confinement outright. Merely adhering to a list of criteria for home confinement does not absolve BOP and its wardens of their overriding constitutional obligation to preserve the lives of their charges. See Martinez-Brooks v. Easter, No. 3:20-cv-00569 (MPS), 2020 WL 2405350, at *22 (D. Conn. May 12, 2020) (“the criteria apparently being used by the Respondents to evaluate inmates for home confinement evidence a disregard for the seriousness
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of the health risk faced by vulnerable inmates”).6 To be sure, BOP is vested with general discretion
over individuals’ place of imprisonment, see 18 U.S.C. § 3621(b), but Respondents’ expanded
authority under the CARES Act to place prisoners on home confinement must still be exercised in
a manner consistent with the Constitution. And as the Martinez-Brooks court noted, district courts
retain jurisdiction to determine that BOP has failed to do so:
Petitioners are not challenging their designation to FCI Danbury. Rather, they are challenging Respondents’ failure adequately to exercise their separate, recently expanded statutory authority under subsection 3624(c)(2) to place inmates on home confinement. While subsection 3621(b) gives the BOP broad, general authority over designations of and transfers to “places of imprisonment” … subsection 3624(c)(2) provides specific, independent authority to place inmates in home confinement. So in finding preliminarily that Respondents are not exercising their authority under subsection 3624(c)(2) in a constitutionally adequate manner, I am not “review[ing]” the BOP’s “designation of a place of imprisonment” under subsection 3621(b). Second, to the extent there is any ambiguity about whether Section 3621(b) or any other statute bars judicial review of the Respondents’ failures to exercise their authority under Section 3624, I would construe it not to do so to avoid the constitutional question that would arise from a wholesale bar on judicial review in the circumstances of this case.
Id. at *15.
Upon such a finding, the Court may take appropriate action to remedy the defective use of
BOP’s authority—including by entry of an order determining that the BOP’s applied criteria for
home confinement must be revised. See id. at 33. For instance, the Martinez-Brooks court
instructed that the BOP and FCI Danbury follow the Attorney General’s directive to maximize
home confinement by, inter alia, eliminating the prohibitions on home confinement for any
individual who has either a prior violent offense or an incident report in the prior 12 months. Id.
6 Notably, in Martinez-Brooks, the respondents disclosed by declaration specific criteria being used at FCI Danbury for home confinement assessment. See 2020 WL 2405350, at *22 & n.23. Here, Respondents have refused, pointing simply to broad governing statutes while refusing to disclose criteria. See ECF No. 48 at 2. While broad statutory authority may set outer boundaries for Respondents’ discretion, it cannot be an exhaustive list of criteria actually in use.
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Respondents’ own produced account of their use, or nonuse, of home confinement confirms their failure to deploy the most powerful tool at their disposal to save the lives of the Medically-Vulnerable Subclass. Indeed, Respondents appear to have seized upon any reason for denial—even reasons not listed in their draconian internal guidelines—rendering the resulting cascade of denials inevitable. For example:
 Numerous entries note a percentage of time served that is less than 50%. That is not a proper basis for denial, even under BOP’s internal guidelines. See ECF No. 10-3 at 7 (percentage of time served is “not a reason for denial”). Respondent Williams, however, has expressly taken the position even during the pendency of this case that where a prisoner “has served less than 50% of his court ordered sentence, he is not eligible for placement on Home Confinement[.]” See Exhibit D (April 21 letter to counsel for an Elkton prisoner).
 Several individuals, many highlighted in orange as “later determined to be ineligible,” appear to have been denied based on vague criteria that are not listed in BOP guidelines. See, e.g., Exhibit A, Row 230 (noting minimal risk, low health care needs, but 40% completion of sentence); Row 316 (“Possible PC for failing to pay child sup”); Row 339 (“Criminal History”); Row 493 (noting a number of victims of the individual’s fraud offense and dollar value in loss, neither of which are factors); Row 642 (“Covid Deny CMA; 29%”); Row 686 (“COVID Deny CMA; “21%”; “Local Fraud Case with 623 Victims”).
 Numerous individuals appear to have been rejected solely based on a “low” risk assessment, rather than “minimal.” See, e.g., Row 290; Row 442; Row 586; Row 600; Row 605; Row 635; Row 644; Row 708; Row 734.
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 Incident reports within the past 12 months appear to suffice for denial. Consistent with Respondents’ position in this case, the severity of the incident appears not to matter. See, e.g., Row 138 (300-level7 incident report only); Row 142 (200-level incident report only); Row 154 (low risk, 74% sentence completion, 300-series incident report); Row 250 (noting pending charges but minimal risk and 300-series incident report).
 Prior violence, a factor dispensed with in Martinez-Brooks, is repeatedly noted and appears to be a dispositive factor. See Row 52 (low risk, but notes robbery from 35 years ago); Row 55 (low risk, but unspecified “history of violence” from 23 years ago); Row 105 (battery charges from 20 years ago); Row 486 (low risk but “prior violence”); Row 489 (same).
 Hundreds of prisoners were denied home confinement simply because they were identified as a “sex offender” without further analysis, including some people who have served over 95% of their sentence. See, e.g., Row 759 (served 97.7% of sentence), 764 (96.8%), 819 (95.3%).
 Some rows simply have no listed rationale. E.g., id. at Row 427; Row 475; Row 480; Row 563; Row 565; Row 627. Respondents’ rigid, blinkered approach to home confinement review has resulted in near-
universal rejection. Petitioners respectfully submit that such an exercise is equivalent to no review at all, and certainly fails to address adequately the crisis in Elkton. Respondents’ approach also fails to serve the ends articulated by this Court in its Order—that is, to prioritize home confinement and similar measures. See ECF No. 22 at 11 (“Petitioners do not seek a commutation of their
7 Incident reports are categorized by severity: greatest (100 level), high (200 level), moderate (300 level), and low (400 level). Moderate and low severity incidents may be resolved informally without being referred to the Discipline Hearing Officer. See Department of Justice, Inmate Discipline Program (Aug. 1, 2011) at 20, https://www.bop.gov/policy/progstat/5270_009.pdf.
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sentences, but rather to serve their sentences in home confinement, parole, or in half-way houses”); id. at 20 (Respondents must “evaluate each subclass member’s eligibility for transfer out of Elkton through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough”).
C. Respondents Have Consistently Fought Compassionate Releases on Technical Grounds
The discovery provided by Respondents also demonstrates that they have utterly failed to comply with the Court’s order to consider compassionate release for prisoners at risk of COVID19. Only 7 subclass members are even “being considered” by BOP for compassionate release, and a side-by-side review of Respondents’ (unredacted) lists indicates that each of these people is simultaneously being considered for home confinement. In contrast, Respondents have denied 232 prisoners compassionate release, stating simply “Does not meet medical criteria,” plus an additional 13 for the cryptic rational “COVID19 only.” See Exhibit B. The remaining nearly 600 prisoners apparently have not been considered at all for compassionate release. As best Petitioners can decipher Respondents’ spreadsheet, it appears not a single subclass member has been approved by the BOP for compassionate release, though they have claimed that one person is awaiting a release plan. See ECF No. 49 at 3.
Respondents’ court filings elsewhere similarly highlight their obstinacy. When a prisoner at Elkton files a motion with a judge seeking a remedy, the Government consistently and reflexively opposes the motion. The Respondents’ position—which has been rejected by several other courts—is that high risk of exposure COVID-19 is simply not grounds for compassionate release. E.g., United States v. Singleton, No. CR 5:13-8-KKC, 2020 WL 2319694, at *2 (E.D. Ky. May 11, 2020). Consistently and automatically denying virtually all subclass members consideration for compassionate release is not consistent with either the statutory guidelines or the
10

Case: 4:20-cv-00794-JG Doc #: 78 Filed: 05/14/20 11 of 17. PageID #: 1052
Court’s order.8 Particularly troubling about Respondents’ wholesale denial is its rationale that
these class members “Do[] not meet medical criteria,” even though the BOP has determined that
they are members of this subclass in putting them on its list, see ECF No. 35-1; Exhibit C, and
thus are by definition at heightened risk for serious complications from COVID-19.9
Respondents’ arguments against compassionate release of class members in courts across
the country have led these courts to conclude that these individuals will have a remedy in this
Court.10 Yet information from Respondents confirms that they also are not granting relief to the
class as directed by this Court.
8 Neither the statute nor the sentencing guidelines require a defendant to have any particular illness to be eligible for compassionate release. 18 U.S.C. § 3582(c)(1)(A)(i); U.S.S.G. 1B1.13, application notes (“there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C) [such as having a terminal illness]”). As numerous courts have concluded, reducing the exposure prisoners at high risk to COVID19 is an extraordinary and compelling reason justifying compassionate release. United States v. Ben-Yhwh, No. 15-830, 2020 WL 1874125, at *5 (D. Haw. Apr. 13, 2020) (collecting cases and concluding, despite government opposition, that prisoner’s advanced age and serious medical conditions, “taken in concert with the COVID-19 public health crisis,” constituted extraordinary and compelling reason to reduce sentence); United States v. McCarthy, No. 3:17CR-0230, 2020 WL 1698732, at *5 (D. Conn. Apr. 8, 2020) (collecting cases and concluding, “The defendant’s age and medical condition, taken in concert taken in concert with the COVID19 public health crisis, constitute an extraordinary and compelling reason to reduce McCarthy’s sentence.”). 9 Other courts have also assumed that BOP is undertaking a careful consideration of individual cases, rather than dismissing them en masse. See, e.g., United States v. Davis, No. 19-CR-64-F, 2020 WL 2465264, at *3 (D. Wyo. May 13, 2020) (discussing a subclass member, “the Court would wish to know the warden’s conclusions based on his or her superior knowledge of Defendant’s behavior in custody, risk to society, and health conditions relative to the rest of FCI Elkton’s inmate population.”) 10 E.g., United States v. Numann, No. 3:16-CR-00025-TMB, 2020 WL 1977117, at *4 (D. Alaska Apr. 24, 2020) (denying compassionate release because it is better brought as a habeas action, and cites this case to advice that “Defendant may file or join a petition challenging the same in the district of his confinement”); United States v. Rodriguez-Collazo, No. 14-CR-00378-JMY, 2020 WL 2126756, at *3 (E.D. Pa. May 4, 2020) (“Such claims must be brought as ones for habeas corpus relief in the jurisdiction where he is confined.”); United States v. Smith, No. 4:15-CR-19, 2020 WL 2063417, at *4 (N.D. Ohio Apr. 29, 2020) (“it appears Smith may be a member of the subclass identified by Judge James S. Gwin in the emergency habeas action of Wilson v. Williams,
11

Case: 4:20-cv-00794-JG Doc #: 78 Filed: 05/14/20 12 of 17. PageID #: 1053
D. Respondents’ Proposal of Transfers to Higher-Security Is Problematic and Will Serve as a Disincentive
The Court’s preliminary injunction requires Respondents (1) to evaluate medically vulnerable prisoners for types of release such as compassionate release, home confinement, furlough, and parole or community supervision, and then (2) to transfer those prisoners who are ineligible for those types of release to other BOP facilities where testing, single-cell placement, or social distancing are possible. ECF No. 22 at 20–21; see also ECF No. 45 at 1. But Respondents’ apparent unwillingness to take anything but the most grudging steps on any change in custody other than transfer, see supra sections I(A)-(C); Mot. to Enforce, ECF No. 51 at 1–7, are effectively converting the measured relief prescribed by the Court into a false and potentially cruel dilemma: accept a transfer to a higher-security prison, presumably to be treated as a higher-security prisoner, or take your chances with COVID-19 at Elkton. This artificial dichotomy puts prisoners to an unfair choice and undermines the terms of this Court’s order.
The Order for good reason treats transfers only as a final outlet for those who could not be given another route out of Elkton. In effect, treating a lower-security prisoner like a higher-security one metes out undeserved punishment: it subjects him to harsher conditions, and a great risk of physical danger, than (by definition) the BOP believes is appropriate in light of his own behavior and history. Cf. 18 U.S.C. § 3621(b) (factors governing designation of prisoner’s placement). This risk becomes especially stark if the prisoner is to be subjected to solitary, near-solitary, or other forms of severely restricted confinement—steps that many prisons have taken in the face of COVID-19. See Cole Decl., ECF 30-2 at 13 (“BOP has severely limited the movement of inmates and detainees among its facilities”); see also May 7 Hearing, ECF No. 55 at 27–28. Such
No. 4:20-cv-794… Smith may secure a compassionate release or transfer to another facility in the near future via the pending habeas action.”).
12

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conditions, research has made clear, “exact a terrible price.” See Davis v. Ayala, 135 S.Ct. 2187, 2210 (2015) (Kennedy, J., concurring); see also, e.g., In re Medley, 134 U.S. 160, 168 (1890) (“A considerable number of the prisoners fell, after even a short [period of solitary] confinement, into a semi-fatuous condition … and others became violently insane; others, still, committed suicide.”); Jeffrey L. Metzner & Jamie Fellner, Solitary Confinement & Mental Illness in U.S. Prisons: A Challenge for Medical Ethics, 38 J. AM. ACAD. PSYCHIATRY & L. 104, 104 (2010) (“[I]solation can be as clinically distressing as physical torture.”); David Cloud et al., The Ethical Use of Medical Isolation—Not Solitary Confinement—to Reduce COVID-19 Transmission in Correctional Settings, AMEND (Apr. 9, 2020), https://amend.us/wpcontent/uploads/2020/04/Medical-Isolation-vs-Solitary_Amend.pdf (noting problems with using isolation to combat COVID-19 in prisons, including dangers of inappropriate treatment of medically isolated prisoners, harms to those prisoners’ health, and failures to detect symptoms).
Respondents’ intractable refusal to consider other forms of release threatens to render these last-resort options only-resort options for the Medically-Vulnerable Subclass. Such a result would be plainly inconsistent with the Court’s order, ECF No. 22 at 20–21; legally uncalled-for, see supra sections I(A)-(C); and in some extreme cases might even risk trading one set of Eighth Amendment problems for another. This Court should make clear that Respondents cannot simply fall back on this last-resort option indiscriminately. II. Respondents’ Search Criteria Demonstrate That Their List of Class Members is
Underinclusive This Court’s preliminary-injunction order required Respondents to evaluate Elkton prisoners who are “65 years or older” or have “documented, pre-existing medical conditions, including heart, lung, kidney, and liver conditions, diabetes, conditions causing a person to be immunocompromised (including, but not limited to cancer treatment, transplants, HIV or AIDS,
13

Case: 4:20-cv-00794-JG Doc #: 78 Filed: 05/14/20 14 of 17. PageID #: 1055
or the use of immune weakening medications), and severe obesity (body mass index of 40 or higher).” ECF No. 22 at 12. Respondents filed a list of 837 prisoners. ECF No. 35-1. While further information from Elkton prisoners themselves will provide deeper insight, Respondents’ search criteria already shows that their initial list was facially underinclusive in several ways.
On May 13, Respondents provided Petitioners with an emailed paragraph listing the criteria that BOP used to compile its initial list of 837 prisoners. Those search criteria are:
(1) over the age of 65; (2) inmates receiving cardiac chronic care; (3) inmates receiving pulmonary chronic care; (4) inmates who are diabetic; (5) inmates with cirrhosis; (6) inmates with Hepatitis B; (7) inmates with Hepatitis C; (8) inmates on dialysis; (9) inmates with a transplant diagnosis; (10) inmates with HIV; (11) inmates prescribed a chemotherapy drug; and/or (12) inmates prescribed an immunosuppressant. See Exhibit C. These criteria were underinclusive for a few reasons, one of which Respondents acknowledged in the same message will require supplementation: their initial list omitted prisoners who are 65 years old. Beyond that oversight, Respondents appear to have searched for “inmates receiving cardiac chronic care” and “pulmonary chronic care” to cover heart and lung disease. These searches ignore the fact that there are prisoners who have “documented, pre-existing medical conditions” of these kinds, see ECF No. 22 at 12, who do not receive “chronic care.” Indeed, two such people are named Petitioners in this case. Petitioner Eric Bellamy, for example, has “a history of heart problems, including one enlarged heart valve and two valves that are regurgitating,” which a doctor has said will require “a stent within a year.” ECF No. 1-7 at 2. He also has hypertension that is serious enough to be causing him to go blind in one eye. Id. Respondents’ presumably missed Mr.
14

Case: 4:20-cv-00794-JG Doc #: 78 Filed: 05/14/20 15 of 17. PageID #: 1056
Bellamy—and many other at-risk prisoners—because such cardiovascular conditions do not entail “cardiac chronic care.”11
Likewise, Petitioner Craig Wilson has “suffered from chronic asthma since childhood, and ha[s] had to use inhalers, steroids, and breathing machines at various times in order to breathe properly.” ECF No. 1-10 at 2. He “use[s] a rescue inhaler regularly” and takes albuterol. Id. Respondents presumably missed Mr. Wilson—and many other at-risk prisoners—because this pulmonary condition (like others) does not entail “pulmonary chronic care.”
Furthermore, Respondents’ search does not appear to have sought to identify prisoners with “[s]evere obesity (body mass index of 40 or higher),” ECF No. 22 at 12, at all. Their list of criteria makes no reference to that condition or anything that appears to be a proxy for it. See Exhibit C. Respondents have offered no explanation as to why they excluded an entire category of medically vulnerable prisoners specified by this Court’s order from their search.12
CONCLUSION For the foregoing reasons, Petitioners respectfully request that this Court take appropriate measures to enforce compliance with its April 22, 2020 Order.

11 Data compiled by New York State show hypertension, hyperlipidemia (high cholesterol),

coronary artery disease, and atrial fibrillation to be among the top 10 comorbidities for COVID-

19

deaths.

See

N.Y.

STATE

DEP’T

OF

HEALTH,

Fatalities,

https://covid19tracker.health.ny.gov/views/NYS-COVID19-Tracker/NYSDOHCOVID-

19Tracker-Fatalities?%3Aembed=yes&%3Atoolbar=no (last visited May 14, 2020).

12 Respondents’ search may also have been underinclusive for liver diseases and kidney diseases,

given that they searched for only three liver diseases and for only those prisoners with kidney

diseases that specifically required dialysis. These and other potential gaps highlight the importance

of surveying prisoners directly.

15

Case: 4:20-cv-00794-JG Doc #: 78 Filed: 05/14/20 16 of 17. PageID #: 1057

Dated: May 14, 2020

Respectfully submitted,

/s/ David J. Carey David J. Carey (0088787) ACLU of Ohio Foundation 1108 City Park Avenue, Ste. 203 Columbus, OH 43206 Phone: (614) 586-1972 Fax: (614) 586-1974 dcarey@acluohio.org
Joseph Mead (0091903) Freda J. Levenson (0045916) ACLU of Ohio Foundation 4506 Chester Avenue Cleveland, OH 44102 Phone: (614) 586-1972 Fax: (614) 586-1974 attyjmead@gmail.com flevenson@acluohio.org

David A. Singleton (0074556) Mark A. Vander Laan (0013297) Michael L. Zuckerman (0097194) Ohio Justice & Policy Center 915 East Ninth Street, Suite 601 Cincinnati, OH 45202 Phone: (513) 421-1108 dsingleton@ohiojpc.org mvanderlaan@ohiojpc.org mzuckerman@ohiojpc.org
Counsel for Petitioners

16

Case: 4:20-cv-00794-JG Doc #: 78 Filed: 05/14/20 17 of 17. PageID #: 1058 CERTIFICATE OF SERVICE
I hereby certify that on May 14, 2020, the foregoing was filed with the Court’s CM/ECF system. Notice of this filing will be sent by operation of that system to all counsel of record.
/s/ David J. Carey David J. Carey (0088787) Counsel for Petitioners
17

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Exhibit A

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 2 of 14. PageID #: 1060

A

1

Register

2

Number

3

4

5

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70

B Name

C Court of Jurisdiction FMN FDCD FDCS FNYW FWVS FMD FMIW FIAN FKYW FINN FWVS FIAN FWVN FMIE FMSN FWVN FWIE FFLS FMN FDE FWVN FND FINN FVAW FMOW FFLN FWVN FILN FIAN FFLN FMN FILS FTNM FPAW FIAS FINN FFLN FDE FFLN FMN FFLN FINN FWIW FINS FDE FIAS FND FILS FVAW FKYE FWIW FMSS FPAW FPAW FWIE FIAN FILS FINS FWVS FINN FIAN FILS FILS FMIW FOHS FALS FILS FILS

D Docket Number

E Offense
18:286,371 FRAUD, OTHER 18:2251-2,2260 OBSCENE MATTR DC SEX CARNAL KNOWLEDGE 21:846 SEC 841-851 ATTEMPT 21:841 SCH II NARCOTC,NONFSA COMMUNICATIONS ACT 18:2113(D) ROBBRY,ASSLT,BANK 21:848 CONT CRIMINL ENTERPRS 18:286,371 FRAUD, OTHER 18:2117 INTRST COMM ACT VIOL 21:841 & 846 SEC 841-851 21:846 SEC 841-851 ATTEMPT 21:841 & 846 SEC 841-851 21:841 & 846 SEC 841-851 21:846 SEC 841-851 ATTEMPT 21:841 & 846 SEC 841-851 21:846 SEC 841-851 ATTEMPT 18:2251-2,2260 OBSCENE MATTR 18:1030 FRAUD COMPUTERS 21:846 SEC 841-851 ATTEMPT 21:841 & 846 SEC 841-851 21:841 SCH II NONNARC,NONFSA 18:922(G) FIREARMS,3 PRI CNV 18:924(C) FIREARMS LAWS 21:846 SEC 841-851 ATTEMPT 18:922(G) FIREARMS,CARR CRIM 18:2251-2,2260 OBSCENE MATTR 18:286,371 FRAUD, OTHER 21:846 SEC 841-851 ATTEMPT 21:846 SEC 841-851 ATTEMPT 18:922(G) FIREARMS,3 PRI CNV 18:2251-2,2260 OBSCENE MATTR OBSCENE MATTER TRANSPORT OBSCENE MATTER TRANSPORT 21:846 SEC 841-851 ATTEMPT 21:841 & 846 SEC 841-851 21:846 SEC 841-851 ATTEMPT 18:2251-2,2260 OBSCENE MATTR 18:2251-2,2260 OBSCENE MATTR 18:2251-2,2260 OBSCENE MATTR 18:2241-2248 SEXUAL ABUSE 21:841 SCH II NARCOTC,NONFSA 21:841 & 846 SEC 841-851 21:841 & 846 SEC 841-851 18:2251-2,2260 OBSCENE MATTR 18:2251-2,2260 OBSCENE MATTR BURGLARY 21:841 SCH II NARCOTC,NONFSA 18:924(C) FIREARMS LAWS 21:841 SCH II NONNARC,NONFSA OBSCENE MATTER TRANSPORT 21:846 SEC 841-851 ATTEMPT 21:841 SCH II NARCOTC,NONFSA 21:841 SCH II NARCOTC,NONFSA 18:286,371 FRAUD, OTHER 21:846 SEC 841-851 ATTEMPT 18:2251-2,2260 OBSCENE MATTR 21:841 & 846 SEC 841-851 18:2251-2,2260 OBSCENE MATTR 21:841 & 846 SEC 841-851 21:841 SCH II NONNARC,NONFSA OBSCENE MATTER TRANSPORT 18:2251-2,2260 OBSCENE MATTR 21:846 SEC 841-851 ATTEMPT 21:846 SEC 841-851 ATTEMPT 18:2251-2,2260 OBSCENE MATTR 21:841 SCH II NARCOTC,NONFSA 18:2251-2,2260 OBSCENE MATTR

F Status/Rationale
Low Risk/Detainer Florida DOC, C/S Sentence, 32.1% t/s PSF Sex Offender PSF Sex Offender 24% time served; Low Risk; STG Hells Angels; Assault on a Police Officer; Last IR 2009 Detainer; Medium Risk; IR 01/16/2020 Use of Drugs, 01/16/2020 Possession 11/2019 Being Absent, 09/2019 Possession Has Active Warrants in NCIC for Grand Theft; Low Risk Level Current Violence - Armed Bank Robbery; 03/2020 IR 218; Low Risk; '76 Manslaughter, '90 Bank Robbery; Numerous Major IRS in NYDOC; Greatest Severity Offense - Leader Organizer; 43% ts; PRD 2033; Broad Publicity; DST for RRC 05/06/2020; Fugitive Most Wanted 9 Years; Prior '98 IR for Assault; Current Violence - Possession of a Pipebomb - manufactured and exploded as a tactic to commit robberies; resulted in death Current Violence/Past Violence Firearms Trafficking; Prior possession of destructive device (pipebomb); prior domestic violence Past violence - assault on LEO (attempted to take F/A); Medium Risk; Medium Risk; 36% ts; 12/2019 - Possessing Cell Phone IR Low Risk; '64 Assault and Battery; PRD 2023; 63% ts Medium Risk; 09/2019 Use of Drugs or Alcohol; 64% ts PRd 12/2020; W CCC Action; High Risk?; Escape History noted History of Minor Escape noted; prior violence; Medium Risk; STG Vice Lords Member Sex Offender Current Violence - Felon In Possesion of a F/A; Prior aggravated robbery '80; Low Risk; 19% ts;G6 reflects detainer not on pscd ?? Low Risk; Past Violence -'93 Robbery; Poor program participation & LS Minor Escape; Prior Violece - Robbery; No FSA assignments 72% ts 54% ts; no Risk assignmnt; 09/2019 Fighting With Another Person High recidivism risk; Prior Violence (1999, 1991, 1984, 1979); IR for Code 112 (January 2020) Medium Risk; Prior violence (1986); Detainer W/ VA DOC Outlaw MC Gang; Escape from LVN SCP (1984); Low Recidivism risk; 36% Low risk; Sex offender and history of violence (1988) Sex Offender; Low recidivism; 42%' Alien; to be reviewed for RIS Low risk; History of Violence (1996 Domestic Assault); 47%; PRD 2037 Medium risk; IR for Code 312 (November 2019) PRD 2033; IR for Code 307 (January 2020); 31% Sex Offender Sex Offender Sex Offender (current and multiple priors) Low risk; History of Violence (multiple domestic assaults); 53% Medium Risk; Prior Violence Criminal Reckless While Armed (1997); 71% Medium risk; IR for Codes 316, 312 (December 2020); 63% Sex Offender Sex Offender Sex Offender Sex Offender Submitted for Home Confinement Awaiting CCC Action 05-03-2020; 62% History of violence for Assault, Pointed Gun at Victm; 71% High risk; Prior Violence Resisting, Robbery, Battery; 84% Sex Offender PPS Sex offender; Medium recidivism risk; 29% Sex Offender due to prior conviction; History of violence for Aggravated Battery (1997); IR for Code 201 (June 2019); High recidivism risk Medium recidivism risk; History of violence for Assault and Battery (1997) History of Violence for Robbery (1985); Low recidivism risk Sex offender; RRC DST on 07-21-2020; IR for Code 312 (July 2019) Low recidivism risk; History of violence for Involuntary Manslaughter Low recidivism risk; History of violence (1997) Medium recidivism risk; History of violence (1976 and 1986) Low recidivism risk; 18% Medium recidivism risk; History of violence for Assault (1991) and Escape for Absconding (1986) Sex offender; Low recidivism risk Medium recidivism risk Sex offender; Low recidivism risk High recidivism risk; IR suspended pending AUSA referral for Code 102A High recidivism risk; IR for Code 331 (March 2020) Sex offender; High recidivism risk; Current and prior sex offenses Sex offender; COVID Refer CMA Low recidivism risk; IR for Code 219 (January 2020) Low recidivism risk Sex Offender - to be reviewed for RIS Medium recidivism risk; History of violence (1998) Sex offender; Low recidivism risk

A 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 3 of 14. PageID #: 1061

B

C

FND

FINS

FWIE

FMD

FWVN

FINN

FPAW

FILS

FINS

FKYW

FWVN

FMIW

FRQ

FKYW

FFLM

FIAN

FWVN

FINS

FILS

FMIW

FINS

FND

FVAW

FPAM

FILC

FINN

FWAW

FKYW

FWIE

FINS

FINS

FWIW

FILS

FWIW

FIAS

FINS

FME

FWIW

FINS

FNYW

FILS

FINS

FKS

FKYE

FKYW

FRI

FRI

FVAW

FINS

FIAN

FVAW

FLAW

FND

FFLN

FMIW

FVAW

FWVN

FDCS

FWIE

FWVN

FINN

FWVN

FMIW

FND

FINS

FWIE

FWVN

FWVN

FWVS

FWVN

D

E

F

21:841 & 846 SEC 841-851

Low recidivism risk: IR for Code 201 (Jul 2019)

18:922(G) FIREARMS,3 PRI CNV

History of violence (1983 and 1995); Medium recidivism risk; IR for Code 212 (April 1, 2020) and 203 (December 2019)

18:2113(D) ROBBRY,ASSLT,BANK

Low recidivism risk; Current violence of Bank Robbery, Prior violence for Robbery

18:2113 ROBBERY BANK

Low recidivism risk; Current and prior violence for Bank Robbery

21:843 USE FICT,REV,SUSP NBR

High recidivism risk; Prior violence; IR for Code 112 (November 2019)

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:1344 BANK FRAUD

High recidivism risk

18:2251-2,2260 OBSCENE MATTR

Sex offender

18:2251-2,2260 OBSCENE MATTR

Sex offender (current and prior convictions)

18:2241-2248 SEXUAL ABUSE

Sex offender (current and prior convictions)

18:922(G) FIREARMS,CARR CRIM

Sex offender due to prior conviction; History of violence for Murder (1997)

21:841 & 846 SEC 841-851

Prior violence 2008; Medium recidivism risk

18:2119 ROBBERY OF AUTO

Current violence offense; Low recidivism risk

18:2251-2,2260 OBSCENE MATTR

Sex offender; History of violence for prior sex offense

21:846 SEC 841-851 ATTEMPT

Low recidivism risk; IR for Code 397 (October 2019); PRD 09-07-2028

18:2251-2,2260 OBSCENE MATTR

Sex offender

21:841 SCH II NONNARC,NONFSA

Low recidivism risk; RRC DST on 09-16-2020

21:846 SEC 841-851 ATTEMPT

Medium recidivism risk; HX of violence for Battery (1997)

21:846 SEC 841-851 ATTEMPT

Low recidivism risk; Escape history for Absconding (2004)

18:286,371 FRAUD, OTHER

Sex offender due to prior convictions; Low recidivism risk

18:2251-2,2260 OBSCENE MATTR

Sex offender; PRD 2035

18:2241-2248 SEXUAL ABUSE

Sex offender

18:922(G) FIREARMS,CARR CRIM

Prior Violence 2003; Medium recidivism risk

18:924(C) FIREARMS LAWS

Low Risk; PRD: 2035

18:1344 BANK FRAUD

Latin King enforcer; PSF Greatest Severity, Current violent offense; Low recidivism risk

18:2251-2,2260 OBSCENE MATTR

Sex offender; Low recidivism risk; History of violence (Battery-1995)

21:846 SEC 841-851 ATTEMPT

Escape from SCP in 2006; Low recidivism risk

18:922(G) FIREARMS,3 PRI CNV

Sex offender due to prior convictions; Low recidivism risk

OBSCENE MATTER TRANSPORT

Sex offender; Low recidivism risk

18:2251-2,2260 OBSCENE MATTR

Sex offender; History of violence for prior sex offense

18:2251-2,2260 OBSCENE MATTR

Sex offender; Low recidivism risk; Current and prior sex offense

18:2251-2,2260 OBSCENE MATTR

Sex offender

18:2251-2,2260 OBSCENE MATTR

Sex offender; Low recidivism risk; History of violence for prior sex offenses

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

IR 8/2010, Domestic Battery (2 charges) 2000,

18:922(G) FIREARMS,3 PRI CNV

IR 2-2020

18:922(G) FIREARMS,CARR CRIM

IR 3/2020

LARCENY/THEFT I/S TRANS

Disorderly conduct 2007, Pattern Score High, 48.9%

18:924(C) FIREARMS LAWS

IR 1/2020

21:841 SCH I NARCOTIC,NONFSA

Resist arrest 1994, firearm discharge 2001, Pattern - Medium, 100%

21:846 SEC 841-851 ATTEMPT

No I/Rs, High Risk, 41, CAR2, 41%, PRD 3/2021

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:922(G) FIREARMS,CARR CRIM

Common assault 1978, Battery 2000,Pattern Medium 80%

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

3rd degree rape 1980, 85%

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:924(C) FIREARMS LAWS

No I/Rs, Current Off: Murder for Hire, Min Risk, 67, CAR2, 51%, 10/2030

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

No I/Rs, MIN Risk, 08/26/2021; Detainer State of Virginia Consecutive Sent.

21:846 SEC 841-851 ATTEMPT

Battery 1997 and 1998, Pattern Medium

21:846 SEC 841-851 ATTEMPT

No I/Rs, LOW Risk, 30, CAR1, 43%, 2/2/2030

21:841 & 846 SEC 841-851

No I/Rs, PV-Aggr Batt w/Deadly Weapon, Batt., Att. Murder w/Deadly Weapon, Low Risk, 71, CAR2, 67%, 06/17/2026

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

No I/Rs, MED Risk, 30, CAR1, 54%, 11/10/2023

18:2251-2,2260 OBSCENE MATTR

Sex Offender; to be reviewed for RIS

DC HOMICIDE MURDER

Detainer - USMS

21:841 SCH I NARCOTIC,NONFSA

MED Risk, 53, CAR2, 66%, 1/7/2024; Distributed Heroin Resulting in Death

18:924(C) FIREARMS LAWS

IR 203 - 2/2020

21:846 SEC 841-851 ATTEMPT

MED Risk, 44, CARE2, 84%, 11/18/2021

18:286,371 FRAUD, OTHER

MIN Risk, 58, CARE2, 95%. 6/6/2020

OBSCENE MATTER TRANSPORT

Sex Offender

18:2241-2248 SEXUAL ABUSE

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

IR 316 1/2020

18:922(G) FIREARMS,CARR CRIM

IR 112 3/2020

21:841 & 846 SEC 841-851

MED Risk, 29, CARE1, 19%, 12/20/2028

A 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 4 of 14. PageID #: 1062

B

C

FWVN

FWVN

FMT

FWVN

FINS

FMN

FKYE

FWVN

FALS

FKYE

FWVN

FWVN

FWVN

FTXS

FFLS

FILC

FTNE

FILS

FILS

FNCM

FINN

FINN

FKYE

FIAN

FPAM

FKYE

FINN

FMN

FIAS

FGAM

FMIW

FWAE

FIAS

FNYW

FMN

FWVS

FCAS

FKYW

FILC

FWVS

FWVS

FMIW

FSC

FIAS

FWVS

FALS

FNYN

FAK

FMN

FWVS

FKYE

FILN

FINS

FIAS

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FWVS

FWVS

FWVS

FILC

FWVS

FINS

FMN

FWVS

FIAS

FWVS

FWVS

FKYE

FWVS

FMD

FMIW

D

E

F

21:841 SCH II NONNARC,NONFSA

HIGH Risk, 29, CARE 1, 15%, 11/17/26

18:922(G) FIREARMS,CARR CRIM

IR 219 11/2019

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NONNARC,NONFSA

IR 113 2/2020

21:841 SCH I NARCOTIC,NONFSA

IR 112 1/2020

21:846 SEC 841-851 ATTEMPT

IR 108 1/2020

21:846 SEC 841-851 ATTEMPT

IR 112 3/2020

18:922(G) FIREARMS,CARR CRIM

HIGH Risk, 28, CARE 2, 15%, 2/1/2023

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

LOW Risk, 43, CARE 1, 48% 7/23/2021; Active Warrants in D.C. full extradition

21:841 SCH II NONNARC,NONFSA

MED Risk, 37, CARE 2, 15%, 9/7/2026 - 04 Domestic Batter, 08 Assault

21:841 & 846 SEC 841-851

LOW Risk, 56, 10/1/2022; 97 Assault Bodily Injury; Several Unknown Disposition

8:1327 ALIEN SMUGGLE/IMPORT

IR 316 11/2019, LOW risk, CARE 2, 33, 74%,11/16/2020

18:2251-2,2260 OBSCENE MATTR

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

18:922(G) FIREARMS,3 PRI CNV

HIGH Risk, 58, CARE 2, 49%, 12-29-2020 Sexual Assault 1978

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2113 ROBBERY BANK

LOW Risk, CARE 2, 56, 54%, 4/24/2021

21:846 SEC 841-851 ATTEMPT

IR 11 2/2020

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NONNARC,NONFSA

LOW Risk, CARE 2, 62, 14%, 4/2031

18:922(G) FIREARMS,CARR CRIM

IR 113 3/2020

21:846 SEC 841-851 ATTEMPT

HIGH Risk, CARE 2, 46, 47%, 4/10/2027

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NONNARC,NONFSA

MIN Risk, 43, CAR1, 68%, 03/2022; Submitted for HC

18:922(G) FIREARMS,CARR CRIM

PV-85 Asslt, MED Risk, 54, Car2, 55%, 03/2029; 4 Firearms in current offense

18:2251-2,2260 OBSCENE MATTR

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:286,371 FRAUD, OTHER

PV-04 Asslt, LOW Risk, 55, CAR2, 20.7%, 07/2025

OBSCENE MATTER TRANSPORT

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

21:841 & 846 SEC 841-851

PV-94 Armed Violence, LOW Risk, 45, CAR2, 65%, 05/2027 Gangster Disciple,

21:841 & 846 SEC 841-851

PV-Asslt, Sexual Assault, Homeless, RRC: 5/19/2020

21:846 SEC 841-851 ATTEMPT

MED Risk, 40, CAR2, 21.4%, 11/2030

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

PV-95 Robbery, 04 Asslt LEO, Detn: 2019 10yrs CC IA DOC, LOW, CAR2

OBSCENE MATTER TRANSPORT

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

18:922(G) FIREARMS,CARR CRIM

Homeless? PV-06 Child Endangerment, 02 Stalking, 00 Asslt, MED Risk, 40, CAR2, 41%, 11/2023

OBSCENE MATTER TRANSPORT

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

PV-Battery LEO, Batt., Mal. Wound., MED Risk, 40, CAR2, 41%, 11/2023

21:846 SEC 841-851 ATTEMPT

Sex Offender - Prior

18:922(G) FIREARMS,CARR CRIM

PV-11 Batt., 92 Robb., MIN Risk, 47, CAR2, 56%. 05/2023; DST - DTH RDAP

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:924(C) FIREARMS LAWS

I/R - 112-11/2019, 331-09/2019, 113-7/2019, HIGH Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH I NARCOTIC,NONFSA

LOW Risk, 43, CAR2, 54%, 3621e date: 1/11/2021 - RDAP Part

21:846 SEC 841-851 ATTEMPT

PV-99 Batt., Med Risk, 42, CAR1, 25%, 04/2033

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH I NARCOTIC,NONFSA

LOW Risk, 23, CAR2, 32%, 10/2021

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2421-29 I/S TRN IMRL PRPS

Sex Offender

21:841 SCH I NARCOTIC,NONFSA

PV-15 Obstr. Officer, 05 Mal. Asslt, Wanton Endangerment, 02 Batt., Dom Viol., 00 Agg. Robb, MED Risk, 40, CAR2, 87%

21:841 & 846 SEC 841-851

LOW Risk, 45, CAR2, 70%, 03/2024

18:2421-29 I/S TRN IMRL PRPS

Sex Offender

18:924(C) FIREARMS LAWS

I/R - 224-02/2020, Homeless

21:846 SEC 841-851 ATTEMPT

PV-00 Agg. Asslt., LOW Risk, 41, CAR1, 76%, 06/2023: Comp Rel on 5/15/20

A 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 5 of 14. PageID #: 1063

B

C

FKYE

FINS

FINS

FINS

FKYW

FALM

FNYN

FINS

FMN

FWIE

FILC

FWIE

FVAE

FINS

FINS

FOKN

FMIW

FKYE

FWIE

FKYE

FIAS

FKYE

FINS

FKYE

FINS

FMIW

FMIW

FNCW

FWIE

FMIW

FSC

FINS

FKYE

FINN

FWIE

FWIE

FMIW

FND

FMIW

FNYN

FOHN

FINN

FINS

FMIW

FMIW

FINN

FMIE

FNCM

FMT

FNYS

FILN

FINN

FIAS

FILC

FWY

FKYE

FTNM

FIAN

FKYE

FINN

FINN

FIAS

FMN

FINN

FINN

FILC

FLAW

FMIW

FKYE

FILN

D

E

F

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

I/R - 113-02/2020 (x2), 108-02/2020 (x2)

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2421-29 I/S TRN IMRL PRPS

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:1962 RACKETEER (RICO)

Current Violence-RICO, GAF: the Mob, MED Risk, 25, CAR1

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:924(C) FIREARMS LAWS

PV-13 Disord. Con, 06 Obstruct, 05 Subst Batt., 02 Escape, MED Risk, 41, CAR2, 63%, 07/2022

OBSCENE MATTER TRANSPORT

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

21:846 SEC 841-851 ATTEMPT

I/R - 108-10/2019, DST: CNK EB1 - 05/12/2020

21:846 SEC 841-851 ATTEMPT

I/R - 310-1/28/2020, PV-08 Criminal reckless, MED Risk, 41, CAR1, 13%, 11/5/2038

21:846 SEC 841-851 ATTEMPT

Residence-Mexico, LOW Risk, 44, CAR2, PSF- Alien, 23%, 06/2029

18:2251-2,2260 OBSCENE MATTR

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

21:846 SEC 841-851 ATTEMPT

LOW Risk, 57, CAR1, 44%. 12/2029

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

MIN Risk, 51, CAR2, 40%, 06/2030

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

I/R - 113-5/5/2020, 331-2/6/2020, MED Risk, 36, CAR1, 83%, 11/2021

18:924(C) FIREARMS LAWS

I/R - 201-3/17/20, HIGH Risk, 33, CAR1, 52%, 10/2022

18:2113 ROBBERY BANK

Current Violence - Accessory After the Fact, MIN Risk, 53, CAR2, 83%, 10/2021

COMMUNICATIONS ACT

PV - 07 Batt. w/Felony, 03 Dom. Battery, LOW Risk, 47, CAR2, 51%, 3621e date: 06/12/2021

OBSCENE MATTER TRANSPORT

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:1956 RACKETEERING

LOW Risk, 36, CAR2, 13%, 03/2024

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2113 ROBBERY BANK

Current Violence - Armed Robbery, PV-Armed Robbery 80,79,65,61, MIN Risk, 77, CAR2, 70%, 06/2022, CV-Deny

18:922(G) FIREARMS,3 PRI CNV

Homeless? PV-1994 Voluntary Manslaughter, MED Risk, 56, CAR2, RRC: CRL 4WR - 7/7/20

21:846 SEC 841-851 ATTEMPT

I/R - 112-3/25/20, MED Risk, 41, CAR2, 14%, 08/2029

21:846 SEC 841-851 ATTEMPT

I/R - 115-11/19/2019, HIGH Risk, 38, CAR2, 55%, 01/2021

18:2113(D) ROBBRY,ASSLT,BANK

Current Violence - Bank Robbery by Force or Violence, RRC: 05/19/2020

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:922(G) FIREARMS,CARR CRIM

MED Risk, 26, CAR2, RRC: CCH 5HY 10/27/2020

21:841 & 846 SEC 841-851

PV - 80 Armed Robbery, 86/95 Resist LEO/BATT, 03 Batt/Dom Viol., MED risk, 57, CAR2, 29%, 05/2038

21:846 SEC 841-851 ATTEMPT

Homeless? 02 Crim.Endangerment, Disorderly Conduct, 01 Fam. Aslt, MED risk, 57, CAR2, 55%, 09/2022

21:846 SEC 841-851 ATTEMPT

PV-76 Aslt&Batt, LOW Risk, 66, CAR2, 64%, 06/2024: Greatest Severity Offense

FRAUD POSTAL

I/R - 310-03/09/2020, 17 Pending Charges; MIN Risk, 63, CAR2, 95%, 10/29/2020

21:841 & 846 SEC 841-851

PV - 78 Rob, 88 Dom Viol., MED Risk, 59, CAR2, 56%, 09/2024

21:841 & 846 SEC 841-851

PV - 94 Att Murder, 95 Battery, MED Risk, 49, CAR2, 28%, 02/2028

18:2251-2,2260 OBSCENE MATTR

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

21:846 SEC 841-851 ATTEMPT

HIGH Risk, 47, CAR2, 33%, 09/2034

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

MIN Risk, 60, CAR2, 3%, 09/2032; Prior Arson; STG Compr Staff, Introd Drugs

21:841 & 846 SEC 841-851

MED Risk, 50, CAR2, 94%, 12/2021; Instant Offense is Violent/ Gang Related

21:846 SEC 841-851 ATTEMPT

PV - Threatened to Kill with brick 15 Disorderly Conduct, MIN Risk, 42%, 2023,

18:499/702 IMPERSONATION

I/Rs - 306 (x2) 10/19 & 8/19, MED Risk, 52, CAR2, 83%, 03/2021, W CCC ACT

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

I/R - 201-9/30/19, PV-02 Batt, Dis. Cond, 04, Resist LEO, Batt., HIGH Risk, 42, CAR1, 80%, 3621e: 08/2021

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

I/Rs - 201-1/23/20, 306(x3)-2020, Homeless, MED Risk, 46, CAR2, 46%, 02/2021

18:2113(D) ROBBRY,ASSLT,BANK

Current Violence-Consp. Bank Robbery, F/A in Violent Crime, LOW Risk, 65, CAR2, 95%, 04/2021

21:841 SCH I NARCOTIC,NONFSA

PV - 02 Armed Robb., 90 Robb., LOW Risk, 53, CAR2, 15%, 09/2032

21:841 SCH II NONNARC,NONFSA

PV - 92 Wanton Endangerment, LOW Risk, 55, CAR2, 46%, 08/2027

18:922(G) FIREARMS,CARR CRIM

Homeless, PV - 00 Armed Robbery (x3), GAF: Black Gangster Disciples, MED Risk, 44, CAR1, 11%, 12/2036

18:924(C) FIREARMS LAWS

Current Violence-Hobbs Act Robbery, F/A, LOW Risk, 31, CAR2, 30%, 08/2024

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

SEX OFFENSES

Sex Offender

18:924(C) FIREARMS LAWS

Compassionate Release - 05/05/2020

21:846 SEC 841-851 ATTEMPT

PV - 98 Dom. Viol., LOW Risk, 50, CAR2, 52%, 04/2025; Pending Charges in OH

21:846 SEC 841-851 ATTEMPT

LOW Risk, 54, CAR2, 42%, 01/2026; Has Pending Charge in Illinois

A 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 6 of 14. PageID #: 1064

B

C

FKYE

FMIW

FMIW

FMIW

FKYE

FKYE

FNCM

FIAS

FKYE

FKYE

FILC

FVAW

FMIW

FMN

FILC

FMIW

FMIW

FILC

FMIW

FVAW

FILN

FNYN

FND

FMIW

FDCD

FILC

FKYE

FKYW

FVAW

FMIW

FVAW

FMIW

FKYE

FGAS

FILC

FMIE

FNYN

FIAS

FMA

FILC

FMIW

FNYN

FNYW

FKYE

FMN

FMN

FKYE

FMN

FTXE

FKYE

FNYW

FKYE

FMN

FTNE

FMN

FKYE

FMIW

FCT

FKYE

FVAW

FILN

FNCW

FNCM

FMIW

FILC

FMIW

FKYE

FKYE

MAR

FNCM

D

E

F

21:846 SEC 841-851 ATTEMPT

PV - 05 Assault No Injury, LOW Risk, 57, CAR2, 49%, 08/2025

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2241-2248 SEXUAL ABUSE

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

PV - 02 Wanton Endangerment, Involving LEO; LOW Risk, 47, CAR1, 74%,

21:846 SEC 841-851 ATTEMPT

I/Rs - 108, 331-01/2020, 219-11/19, PV - 10 Asslt, 01 Aggr. Asslt., MED Risk, 47, CAR2, 78%, 08/2021, DST: GIL

COMMUNICATIONS ACT

I/Rs, 224-02/20, 307, 312-01/20, MIN Risk, 68, CAR2, 55%, 03/2026

21:846 SEC 841-851 ATTEMPT

PV - 99 Common Law Robbery, MED Risk, 42, CAR2, 20%, 07/2030

18:922(G) FIREARMS,CARR CRIM

I/Rs - 112 02/20 & 05/29/19, HIGH Risk, 31, CAR1, 51%, 10/2024

21:846 SEC 841-851 ATTEMPT

LOW Risk, 56, CAR2, 28%, 02/2033

21:846 SEC 841-851 ATTEMPT

I/Rs - 112-10/19, 113-05/19, Homeless, MED Risk, 42, CAR2, 87%, RRC: CCH 5TJ - 9/15/2020

21:846 SEC 841-851 ATTEMPT

I/Rs - 113-01/20, 331-11/19, Homeless? LOW Risk, 42, CAR2, 62%, 3621e: 06/2023

18:2421-29 I/S TRN IMRL PRPS

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH I NARCOTIC,NONFSA

High Risk,STG: BGD, PV-Dom. Violence ('90) (66.6%)

21:846 SEC 841-851 ATTEMPT

PV-Dist the Peace ('12) (59.4%)

21:846 SEC 841-851 ATTEMPT

Approved for HC 5/14/20 (73.7%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (54.2%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (28.9%)

COMMUNICATIONS ACT

Medium Risk, < 12 mo. CC, PV: Kdnap, Apv RRC 10/29/20 (68.5%)

21:846 SEC 841-851 ATTEMPT

Low Risk, STG: People Nation Assoc., Detnr: Murder (95.7%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (63.6%)

21:846 SEC 841-851 ATTEMPT

Low Risk PV: Dom Asst ('01), Dis Con ('05) 32.7 %/> 18 mos.

18:2251-2,2260 OBSCENE MATTR

Sex Offender (81.5%)

18:1962 RACKETEER (RICO)

Medium Risk STG: Escape/Drg Intr, IO incl Murder x 4 (83.4%)

21:846 SEC 841-851 ATTEMPT

Low Risk, STG: BGD (55.5%)

21:846 SEC 841-851 ATTEMPT

Low Risk, 36.5% > 18 mos. PV:Crim Misch ('96)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (18.2%)

21:846 SEC 841-851 ATTEMPT

Medium Risk, PV: A&B ('94), V Prot. Ord ('14) (75.7%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (40.9%)

21:846 SEC 841-851 ATTEMPT

Medium Risk, < 12 mo. CC (104/112), (27.2%)

18:286,371 FRAUD, OTHER

Released to RRC on 4/30/20 (80.1%)

21:846 SEC 841-851 ATTEMPT

Low Risk 33.2% > 18 mos.; Criminal History; Possible Pending Charge; 4/4/29

18:2251-2,2260 OBSCENE MATTR

Sex Offender (76.5%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (81.6%)

FRAUD POSTAL

Possible PC for failing to pay child sup(56.4%)

21:841 & 846 SEC 841-851

Medium risk (48.8%); 01/25/29 PRD

21:841 & 846 SEC 841-851

Low Risk, STG: BGD PV: Current Offense Greatest and priorAgg. Assault ('93) (

18:1512 OBSTRUCT JUSTICE

Low Risk,IO incl stabbing PV:Arm Rob,PC: Asslt to Murdr (39.7%)

21:841 SCH I NARCOTIC,NONFSA

Low Risk, PV: Agg. Asslt, STG: BGD (49.8%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (47.7%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (70.5%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (82.3%)

18:924(C) FIREARMS LAWS

Sex Offender (69.1%)

18:111 ASSLT/RESIST FED OFFR

Approved for RRC 5/19/20 (87.8%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (39.3%)

21:841 SCH I NARCOTIC,NONFSA

33.3% > 18 mos.; Greatest Severity - Victim overdosed and almost died

18:2251-2,2260 OBSCENE MATTR

Sex Offender (32.8%)

21:846 SEC 841-851 ATTEMPT

Medium Risk (81.8%); Serious History of Violence; Tango Blast Gang

21:846 SEC 841-851 ATTEMPT

Low Risk, <12 mos CC (112) (49.8%); In SHU for Use of Drugs; Recent IR

21:846 SEC 841-851 ATTEMPT

Low Risk, PV: Assault ('97), <12 mos. CC (305) (42.7%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (25.6%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (39.8%)

OBSCENE MATTER TRANSPORT

Sex Offender (80.4%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (41.1%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (40.1%)

18:2241-2248 SEXUAL ABUSE

Sex Offender (17.0%)

21:841 & 846 SEC 841-851

High Risk ; 05/20/28 PRD; Criminal History

21:846 SEC 841-851 ATTEMPT

23.3% ; 10/31/30 PRD; Age-; Criminal History

18:2251-2,2260 OBSCENE MATTR

Sex Offender (37.4%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (91.6%)

21:846 SEC 841-851 ATTEMPT

Medium Risk, PV: Vol Manslaughter ('90) (82.0%)

21:841 & 846 SEC 841-851

Medium Risk, STG: Escape (4 hr RRC),19.7% > 18 mos

OBSCENE MATTER TRANSPORT

Sex Offender (32.3%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (21.1%)

18:1201 KIDNAPING

Sex Offender (56.9%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (39.2%)

21:846 SEC 841-851 ATTEMPT

Released to RRC on 4/29/20 (84.8%)

MILITARY COURT SEX OFFENSE

Sex Offender (77.6%)

21:841 & 846 SEC 841-851

Medium Risk, <12 mo CC (108), STG: Bloods, 35.8% > 18 mos

A 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 7 of 14. PageID #: 1065

B

C

FMA

FVAW

FILC

FMIW

FMOW

FNYW

FILN

FILC

FILC

FMIW

FILC

FKYE

FVAW

FMIW

FNYW

FMIW

FMOW

FKYE

FMIW

FKYE

FKYE

FILC

FVAW

FNJ

FFLN

FCT

FOHN

FCAN

FINS

FNCW

FNYW

FMOW

FNCE

FMOW

FMOE

FLAE

FTNW

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FNYN

FMOW

FNM

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FNCM

FNYW

FMD

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FNYW

FTXW

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FFLS

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FALN

FNCM

FSC

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FPAW

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FDCS

FMIE

FOHN

D

E

F

21:846 SEC 841-851 ATTEMPT

Low Risk (76.9%)

21:846 SEC 841-851 ATTEMPT

(10.7%) Age-67; Prescribed medications to Patients; Patients died due to o.d.

18:2251-2,2260 OBSCENE MATTR

Sex Offender (37.2%)

18:924(C) FIREARMS LAWS

Medium Risk, IO incls Brandish FA, 34.7% > 18 mos

18:2251-2,2260 OBSCENE MATTR

Sex Offender (51.3%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (70.1%)

OTHER/UNCLASSIFIABLE

Low Risk, IO inc Murder for Hire, STG: Vice Lords (85.5%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (32.7%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (36.3%)

18:2250 FAIL REG AS SEX OFFN

Sex Offender, Detn (98.5%)

21:841 SCH II NONNARC,NONFSA

Low Risk, PV: Asst w Deadly Wpn ('95), 32.3% > 18 mos

21:841 SCH II NONNARC,NONFSA

Medium Risk, <12 mo CC (331x2) (18.7%)

21:846 SEC 841-851 ATTEMPT

Low Risk, PV: Dom Aslt ('99) Aslt('08), 33.7% > 18 mos

21:841 SCH II NARCOTC,NONFSA

Medium Risk, (8.7%)

21:846 SEC 841-851 ATTEMPT

Medium Risk (46.9%) 06/23/28 PRD; Criminal History

21:846 SEC 841-851 ATTEMPT

PV: Murder ('94), Age -66 (13.1%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (88.9%)

OBSCENE MATTER TRANSPORT

Sex Offender (13.8%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (6.1%)

18:1028 FRAUD IDENTITY THEFT

Low Risk, < 12 mo. CC (201), IO incl Threat Comm (67.9%)

18:924(C) FIREARMS LAWS

High Risk, PV: Robbery/Aslt, > 18 mos remain (24.8%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (28.6%)

18:922(G) FIREARMS,CARR CRIM

Sex Offender (15.4%)

21:846 SEC 841-851 ATTEMPT

Age-69 (78.8%); Minimum Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender (87.2%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (66.9%)

21:846 SEC 841-851 ATTEMPT

High Risk (62.0%)

18:924(C) FIREARMS LAWS

Low Risk, STG: Nortenos, PV: AWDW ('05) (40.3%)

21:846 SEC 841-851 ATTEMPT

Medium Risk, STG: Aslt on CO, PV: Aslt ('05), 39.0% > 18 mos

18:1344 BANK FRAUD

High Risk, STG: Fraud (30.1 %)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (28.1%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (89.8%)

21:841 & 846 SEC 841-851

High Risk, <12 mo. CC (312x2), (69.3%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (89.4%)

21:846 SEC 841-851 ATTEMPT

High Risk, <12 mo. CC (112x2, 224,115) (75.4%)

21:846 SEC 841-851 ATTEMPT

Low Risk, <12 mo. CC (108/113), 41.9% > 18 mos.

OBSCENE MATTER TRANSPORT

Sex Offender (55.1%)

18:922(G) FIREARMS,3 PRI CNV

Low Risk, PV: Aggravated Aslt ('95) (6.9%)

SEX OFFENSES

Sex Offender (51.6%)

21:846 SEC 841-851 ATTEMPT

Released to RRC on 4/30/20 (87.3%)

21:841 & 846 SEC 841-851

High Risk, STG: Forgery (85.9%)

21:846 SEC 841-851 ATTEMPT

Medium Risk, 32.6% > 18 mos. ; Prior Robbery

21:841 & 846 SEC 841-851

High Risk, PV: AWDW ('91), Assault ('96,'04) (77.5%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (67.5%)

21:841 SCH I NARCOTIC,NONFSA

Sex Offender (65.3%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

High Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; Prior Violence

NAT'L DEFENSE SEDITION

Terrorist; Alien; Low Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:922(G) FIREARMS,CARR CRIM

Sex Offender; Low Risk

21:841 & 846 SEC 841-851

High Risk' Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Mffender

18:2251-2,2260 OBSCENE MATTR

Sex offender

COMMUNICATIONS ACT

Low Risk; Prior Violence

21:841 SCH I NARCOTIC,NONFSA

Low Risk; 200-Series IR February 2020

18:2251-2,2260 OBSCENE MATTR

Sex Offender

COMMUNICATIONS ACT

Low Risk

COMMUNICATIONS ACT

High Risk; Prior Violence; Sex Offender

DC SEX OFFENSE

Sex Offender

21:841 & 846 SEC 841-851

High Risk; (2) 300-Series IR April/January 2020

21:846 SEC 841-851 ATTEMPT

Medium Risk; 100-Series IR December 2019

A 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 8 of 14. PageID #: 1066

B

C

FLAE

FNCM

FOHN

FTXN

FOHN

FARE

FMIE

FARE

FOHN

FMD

FOHN

FOHN

FOHN

FOHN

FMOW

FFLM

FPAW

FSC

FOHN

FOHN

FNCM

FPAW

FVAE

FPAW

FNCM

FNCW

FNCW

FNCW

FLAW

FNCW

FMOE

FDCD

FFLM

FNCM

FPAW

FPAW

FPAW

FWAW

FTXS

FPAW

FMIW

FPAW

FMOE

FPAW

FPAW

FVAE

FRQ

FPAW

FPAW

FPAW

FPAW

FPAW

FTXS

FPAW

FPAW

FPAW

FPAW

FPAW

FPAW

FMD

FPAW

FPAW

FPAW

FPAW

FPAW

FPAW

FILN

FMIE

FPAW

FILN

D

E

F

21:841 SCH II NONNARC,NONFSA

High Risk; 100-Series IR February 2020

21:841 & 846 SEC 841-851

Low Risk; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NONNARC,NONFSA

Low Risk; Alien

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2421-29 I/S TRN IMRL PRPS

Sex Offender

18:924(C) FIREARMS LAWS

18:1951 RACKETEER, VIOLENCE

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:1925(B) RACKETEERING

Low Risk; Violent Crime

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NARCOTC,NONFSA

Low Risk

OBSCENE MATTER TRANSPORT

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:922(G) FIREARMS,CARR CRIM

Medium Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH I NON-NARC,NONFSA

Furloughed to RRC 04-29-2020

21:843 USE FICT,REV,SUSP NBR

Low Risk; Prior Violence

18:1028 FRAUD IDENTITY THEFT

High Risk

21:846 SEC 841-851 ATTEMPT

Low Risk

18:924(C) FIREARMS LAWS

Medium Risk

21:846 SEC 841-851 ATTEMPT

Medium Risk; Prior Violence

21:846 SEC 841-851 ATTEMPT

Low Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:924(C) FIREARMS LAWS

Medium Risk; 100-Series IR June 2019

SEX OFFENSES

Sex Offender

18:1028 FRAUD IDENTITY THEFT

Sex offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:331 NARCOTICS

Medium Risk

18:922(G) FIREARMS,CARR CRIM

High Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:1201 KIDNAPING

Violent Crime

21:841 SCH I NON-NARC,NONFSA

Low Risk; Prior Violence

21:841 SCH I NARCOTIC,NONFSA

Medium Risk

18:1701-3,7,8,12,13 LRCN PST

Medium Risk

21:846 SEC 841-851 ATTEMPT

Medium Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

Low Risk; Prior Violence; 200-Series IR March 2020

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; Prior Violence; 100-series IR February 2020

18:922(G) FIREARMS,CARR CRIM

Medium Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

100-Series IR December 2019

18:924(C) FIREARMS LAWS

Prior Violence

18:2113 ROBBERY BANK

Low Risk; Current Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

8:1327 ALIEN SMUGGLE/IMPORT

Low Risk; Current Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NONNARC,NONFSA

21:841 & 846 SEC 841-851

Medium Risk

18:1344 BANK FRAUD

Low Risk; Prior Violence

21:846 SEC 841-851 ATTEMPT

Medium Risk; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

21:846 SEC 841-851 ATTEMPT

Low Risk; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

High Risk; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; Prior Violence

21:846 SEC 841-851 ATTEMPT

RRC DST on 05-06-2020

21:841 & 846 SEC 841-851

High Risk; Prior Violence and Escape; 100-Series IR November 2019

21:846 SEC 841-851 ATTEMPT

Low Risk; Prior Violence

18:286,371 FRAUD, OTHER

Low Risk; Current and Prior Violence

A 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 9 of 14. PageID #: 1067

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FINN

FMOE

FILN

FCAS

FILN

FILN

FILN

FMOE

FNJ

FMIE

FMIE

FLAW

FMIE

FTNE

FILN

FOHN

FMIE

FTNE

FDCS

FTNE

FMIE

FILN

FMOE

FMIE

FILN

FILN

FMIE

FOHS

FRQ

FCO

FMIE

FMIE

FILN

FILN

FOHS

FMIE

FTNE

FWAW

FNV

FMIE

FILN

FTNE

FILN

FGAN

FTNE

FMIE

FTNE

FMIE

FILN

FMIE

FMIE

FTNE

FMIE

FMIE

FMIE

FILN

FMIE

FTNE

FILN

FKYE

FTNE

FMIE

FTNE

FNIE

FMIE

FMIE

FMIE

FMIE

FILN

FMIE

D

E

F

21:841 SCH II NARCOTC,NONFSA

Low Risk

21:841 SCH II NONNARC,NONFSA

Low Risk; Prior Sex offense

FRAUD POSTAL

581 Victims; 59 Million in loss; 48% 07/11/30 PRD

21:841 SCH II NARCOTC,NONFSA

High Risk

OBSCENE MATTER TRANSPORT

Sex Offender - to be reviewed for RIS

OBSCENE MATTER TRANSPORT

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Medium Risk; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

21:841 SCH II NARCOTIC

Medium Risk; Prior Violence; Covid+

OBSCENE MATTER TRANSPORT

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; 200-series IR (Escape) January 2020

21:841 & 846 SEC 841-851

Medium Risk; Prior Violence

18:2113 ROBBERY BANK

HC DST on 05-05-2020

21:846 SEC 841-851 ATTEMPT

High Risk; PRD March 20136

DC SEX RAPE

Sex Offender

21:846 SEC 841-851 ATTEMPT

High Risk; PSF Greatest Severity

18:922(G) FIREARMS,CARR CRIM

High Risk

21:841 & 846 SEC 841-851

Placed on HC on 04-24-2020

18:1962 RACKETEER (RICO)

Low Risk; PSF Greatest Severity

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

High Risk

18:2113 ROBBERY BANK

Current and Prior Violence; Low Risk; 100-Series IR November 2019

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:924(C) FIREARMS LAWS

Covid Deny CMA; Current and Prior Violence

46:1903 MARITIME DRUG

RRC DST on 05-06-2020

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Medium Risk; Prior Violence; Sex Offender

18:922(G) FIREARMS,CARR CRIM

High Risk; Prior Violence

18:1344 BANK FRAUD

Low Risk; 300-Series IR March 2020; Prior Violence

COMMUNICATIONS ACT

Low Risk; Escape from SCP July 2015

21:841 & 846 SEC 841-851

Medium Risk; Prior Violence

21:841 SCH I NARCOTIC,NONFSA

High Risk; Prior Violence and Escape; 100-Series IR November 2019

21:841 SCH I NARCOTIC,NONFSA

100-Series IR March 2020; High Risk; Prior Violence; RRC DST on 07-29-2020

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2250 FAIL REG AS SEX OFFN

Sex Offender

21:841 & 846 SEC 841-851

Medium Risk; Prior Violence

18:924(C) FIREARMS LAWS

Medium Risk; Prior Violence

21:846 SEC 841-851 ATTEMPT

High Risk; Prior Violence; 100-Series IR September 2019

21:846 SEC 841-851 ATTEMPT

Covid Deny CMA; Minimum Risk; Greatest Severity Offense

18:2113 ROBBERY BANK

Medium Risk; Current and Prior Violence

18:924(C) FIREARMS LAWS

Low Risk; Prior Violence/ incident report for Threatening; IR in past 12 months

18:922(G) FIREARMS,GUN CNTL

Sex Offender; Covid+

21:846 SEC 841-851 ATTEMPT

Medium Risk:41%

21:841 & 846 SEC 841-851

High Risk

21:841 SCH I NARCOTIC,NONFSA

Low Risk; 100-Series IR December and September 2019

18:1344 BANK FRAUD

High Risk; 300-series IR September 2019

18:922(G) FIREARMS,CARR CRIM

Medium Risk; PRD December 2020; No RRC

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH I NARCOTIC,NONFSA

Low Risk; 67%; 100-Series IR January 2018

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2250 FAIL REG AS SEX OFFN

Sex Offender

21:846 SEC 841-851 ATTEMPT

Medium Risk; Prior Violence; 200-Series IR October 2019

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Medium Risk; DST to LEW SCP; Fighting IR February 2018

21:846 SEC 841-851 ATTEMPT

Minimum Risk; Care 3 Medical; 25%; DST to BUF

18:2113 ROBBERY BANK

Low Risk; Current and Prior Violence

18:2241-2248 SEXUAL ABUSE

Sex Offender

33:1311 DISCHRG POLLUT

Covid Deny CMA; Intimidated a Witness during instant offense; Prior Assault

21:841 & 846 SEC 841-851

Low Risk; Prior Violence; Prior Murder

18:922(G) FIREARMS,CARR CRIM

Medium Risk; Prior Violence; 100-Series IR April 2020

18:924(C) FIREARMS LAWS

Current and Prior Violence; Sex Offender; Low Risk

A 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 10 of 14. PageID #: 1068

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C

FMIE

FMIE

FMIE

FNCE

FKYE

FMIE

FILN

FILN

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FILN

FILN

FRQ

FTNE

FTNE

FOHN

FILN

FTNE

FILN

FMIE

FTNE

FOHN

FTNE

FTNE

FILN

FILN

FTNE

FTNE

FTNE

FILN

FMD

FMIE

FOHN

FILN

FPAW

FILN

FILN

FWAE

FTNE

FTNE

FTNE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FTNE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

D

E

F

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:286,371 FRAUD, OTHER

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NARCOTC,NONFSA

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH I NARCOTIC,NONFSA

Low Risk; 25%

21:846 SEC 841-851 ATTEMPT

Medium Risk; 100-Series IR September 2019

21:846 SEC 841-851 ATTEMPT

Low Risk; 200-Series IR October 2019

18:1962 RACKETEER (RICO)

Low Risk; Current Violence

18:1957 RACKETEERING

Current Violence; 34%

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:922(A) FIREARMS FED ACT

Low Risk; RRC DST in September 2020; 100-Series IR December 2019

18:1925(A) RACKETEERING

Current Violence; 14%

18:924(C) FIREARMS LAWS

Low Risk; Prior Violence; 29%

21:846 SEC 841-851 ATTEMPT

High Risk; 100-Series IR October 2019

18:922(G) FIREARMS,CARR CRIM

Prior Violence; ; Serious Prior Assault; Several Probation Violations

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NARCOTC,NONFSA

Low Risk; 43%; Instant offense involved selling 2,400 pounds of Explosives

21:846 SEC 841-851 ATTEMPT

Covid Deny CMA; Prior Violence

18:2421-29 I/S TRN IMRL PRPS

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; 38%

18:922(G) FIREARMS,CARR CRIM

Covid Deny CMA; Curent Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:922(G) FIREARMS,CARR CRIM

High Risk; Prior Violence

COMMUNICATIONS ACT

High Risk; Prior Violence

18:2421-29 I/S TRN IMRL PRPS

Sex Offender

21:846 SEC 841-851 ATTEMPT

Mediaum Risk; 18%

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:922(G) FIREARMS,CARR CRIM

High Risk; 14%

21:841 & 846 SEC 841-851

High Risk; Prior Violence

18:2421-29 I/S TRN IMRL PRPS

Sex Offender

18:2113 ROBBERY BANK

Covid Deny CMA; Current Violence; 50%; PRD 2036

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

Medium Risk; Prior Violence

18:924(C) FIREARMS LAWS

Low Risk; 21%

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2250 FAIL REG AS SEX OFFN

Sex Offender

21:841 SCH II NONNARC,NONFSA

Low Risk; Prior Violence; 29%

21:841 & 846 SEC 841-851

Low Risk; 100-Series IR January 2020 and September 2019

21:846 SEC 841-851 ATTEMPT

Low Risk; 11%

21:841 & 846 SEC 841-851

Low Risk; Prior Violence; 17%

21:841 SCH I NARCOTIC,NONFSA

High Risk; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NARCOTC,NONFSA

Minimum Risk; 16%

21:846 SEC 841-851 ATTEMPT

100-Series IR January 2020; 25%

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; PSF Greatest Severity; 36%

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; Prior Violence; 300-Series (tobacco) IR February 2020 and December 2019; Detainer

OBSCENE MATTER TRANSPORT

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:1962 RACKETEER (RICO)

300-Series IR September 2019; IR Pending FBI Code 108

18:924(C) FIREARMS LAWS

Low Risk; Prior Violence; 34%

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

18:924(C) FIREARMS LAWS

Current Violence; Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

A 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 11 of 14. PageID #: 1069

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FMIE

FOHN

FMIE

FMIE

FKYE

FNYW

FMIE

FMIE

FMIE

FOHN

FFLM

FOHN

FMIE

FMIE

FMIE

FMIE

FVAE

FMIE

FMIE

FMIE

FMIE

FMIE

FOHN

FMIE

FNCE

FMIE

FOHN

FMIE

FGAN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FTXN

FOHN

FOHN

FOHN

FOHN

FTXW

FOHN

FOHN

FOHN

FOHN

FPAE

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

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FINS

FINN

FOHN

FOHS

FCAC

FTXW

FMD

FOHN

FNCE

FPAE

FMD

FOHN

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D

E

F

ASSAULT

High Risk; Current Violence; Sex Offender; RRC Date of May 27, 2020

18:922(G) FIREARMS,3 PRI CNV

Low Risk; Prior Violence; Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; 12%

OTHER/UNCLASSIFIABLE

Covid Deny CMA; Current Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:1962 RACKETEER (RICO)

Covid Deny CMA; 29%

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; 52%

18:924(C) FIREARMS LAWS

Medium Risk

18:924(C) FIREARMS LAWS

High Risk; Prior Violence; 23%

21:846 SEC 841-851 ATTEMPT

Medium Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Medium Risk; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

High Risk; Sex Offender; Prior Violence

21:846 SEC 841-851 ATTEMPT

Medium Risk; Prior Violence; 22%

COMMUNICATIONS ACT

Low Risk; 100-series IR December 2019

21:846 SEC 841-851 ATTEMPT

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2421-29 I/S TRN IMRL PRPS

Sex Offender

18:2250 FAIL REG AS SEX OFFN

Sex Offender

21:841 & 846 SEC 841-851

High Risk; Prior Violence; 41%

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2241-2248 SEXUAL ABUSE

Sex Offender

21:841 & 846 SEC 841-851

RRC DST on 05-08-2020

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:922(G) FIREARMS,CARR CRIM

High Risk; PRD May 20, 2020

21:841 SCH II NONNARC,NONFSA

Detainer; Prior Violence; Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender ‐ to be reviewed for RIS

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

Low Risk; Escape History;

21:841 SCH II NONNARC,NONFSA

Medium Risk; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Furloughed to RRC 04-23-2020

21:846 SEC 841-851 ATTEMPT

High Risk; Prior Violence

OTHER/UNCLASSIFIABLE

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

COMMUNICATIONS ACT

Low Risk; Covid+; Detainer State of Ohio

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2113 ROBBERY BANK

Violent Crime; Medium Risk; RRC DST 08-18-2020

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:286,371 FRAUD, OTHER

Covid Deny CMA; 21%; Local Fraud Case with 623 Victims

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Sex Offender; 100-series IR January 2020

21:841 SCH II NARCOTC,NONFSA

Covid Deny CMA; Prior Violence Domestic Assault

18:2119 ROBBERY OF AUTO

RRC on 04-29-2020

21:841 SCH II NARCOTC,NONFSA

Covid Deny CMA; Prior Violence

OBSCENE MATTER TRANSPORT

Sex Offender

21:841 SCH II NONNARC,NONFSA

Low Risk; 22%

18:924(C) FIREARMS LAWS

Medium Risk; Prior Violence

21:846 SEC 841-851 ATTEMPT

Review for Submission

21:846 SEC 841-851 ATTEMPT

Medium Risk; Prior Sex Offense; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; 46%; Covid+; Criminal History and 2 Prior Domestic Violence

A 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 726 727 728 729 730 731 732 733 734 735 736 737 738 739 740 741 742 743 744 745 746 747 748 749 750 751 752 753 754 755 756 757 758 759 760 761 762 763 764 765 766 767 768 769 770

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 12 of 14. PageID #: 1070

B

C

FMD

FMD

FOHN

FOHS

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FPAE

FOHN

FGAN

FMD

FOHN

FOR

FOHN

FOHN

FOHN

FOHS

FNCE

FOHN

FTXN

FOHN

FFLM

FOHN

FOHN

FOHN

FOHN

FNJ

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FFLM

FMIE

FMT

FPAE

FTXS

FOHS

FOHS

FOR

FOHS

FOHS

FNM

FOHS

FOHS

FOHS

FFLM

FOHS

FOHS

FOHS

FPAM

FOHS

FNCE

FNYS

FPAE

D

E

F

21:841 & 846 SEC 841-851

Medium Risk; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

Low Risk; Prior Violence; Detainer; to be reviewed for RIS

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH I NARCOTIC,NONFSA

Low Risk; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

Low Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH I NARCOTIC,NONFSA

High Risk; Prior Violence; Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; 300-Series IR September 2019

21:841 & 846 SEC 841-851

Medium Risk; Prior Violence; 100-Series IR October 2019

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

High Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2113(D) ROBBRY,ASSLT,BANK

Violent Crime

21:841 SCH II NARCOTC,NONFSA

Medium Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NONNARC,NONFSA

Medium Risk; Sex Offender

18:1344 BANK FRAUD

Low Risk; 300-Series IR May 2019

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NON-NARCOTIC

Died 04-26-2020

18:545 CUSTOMS LAWS SMUGGLNG

21:841 & 846 SEC 841-851

High Risk; Detainer

21:841 & 846 SEC 841-851

Medium Risk: 300-Series (Tobacco) IR December 2019

21:846 SEC 841-851 ATTEMPT

Medium Risk; Prior Violence

18:922(G) FIREARMS,CARR CRIM

Low Risk; Prior Violence

18:922(G) FIREARMS,CARR CRIM

Medium Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:922(G) FIREARMS,3 PRI CNV

Low Risk; Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:924(C) FIREARMS LAWS

Medium Risk; 100-Series IR February 2020

18:922(G) FIREARMS,CARR CRIM

Low Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

COMMUNICATIONS ACT

Low Risk

18:922(G) FIREARMS,CARR CRIM

High Risk

18:924(C) FIREARMS LAWS

100-Series IR January 2020

21:846 SEC 841-851 ATTEMPT

High Risk; Served 22.8%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 14.2%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 13.6%

21:846 SEC 841-851 ATTEMPT

Low Risk; 100-Series IR June 2019; Served 44.6%; Past Violence - Battery

21:846 SEC 841-851 ATTEMPT

Low Risk; Served 48.2%; Has Detainer with State of Michigan 40 Sentence for Assault

OBSCENE MATTER TRANSPORT

Sex Offender; Served 42%

18:924(C) FIREARMS LAWS

Low Risk; 100-Series IR February 2020; Served 89.4%

COMMUNICATIONS ACT

Is being reviewed for a compassionate release; trying to develop a release plan

SEX ILLEGAL COHABIT

Sex Offender; Served 94.5%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 77.8%

18:1112-3 HOMICIDE MANSLGHTR

Sex Offender; Violent Crime; Served 57.2%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 75%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 37.1%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 58%

OBSCENE MATTER TRANSPORT

Sex Offender; Served 97.7%

21:846 SEC 841-851 ATTEMPT

Medium Risk; Served 39.8%; Past History of violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 80.5%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 25.1%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 64.7%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 96.8%

21:841(E) DRUGS

Medium Risk; Served 87.6%; Prior Assault with a Dangerous Weapon

OBSCENE MATTER TRANSPORT

Sex Offender; Served 86.9%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 57.9%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 79.1%

21:846 SEC 841-851 ATTEMPT

Low Risk; Served 93.3%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 46.1%

A 771 772 773 774 775 776 777 778 779 780 781 782 783 784 785 786 787 788 789 790 791 792 793 794 795 796 797 798 799 800 801 802 803 804 805 806 807 808 809 810 811 812 813 814 815 816 817 818 819 820 821 822 823 824 825 826 827 828 829 830 831 832 833 834 835 836 837 838 839 840 N = 837

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 13 of 14. PageID #: 1071

B

C

FPAM

FPAE

FFLM

FOHS

FTXW

FPAE

FNJ

FVAE

FOHS

FOHS

FOHS

FOHS

FOR

FPAM

FTXS

FOR

FPAM

FPAE

FOHS

FPAM

FOHS

FOHS

FOHS

FNCW

FOHS

FOHS

FNYE

FINN

FPAE

FOHS

FOHS

FOHS

FOHS

FOHS

FWVS

FOHS

FOHS

FNYS

FOHS

FOHS

FOHS

FOHS

FOHS

FNYS

FOHS

FOHS

FNYE

FPAW

FVAE

FVAE

FNYS

FNYS

FAZ

FAZ

FNYS

FMIE

FVAE

FNYE

FNYS

FNYS

FVAE

FNM

FVAE

FSC

FVAE

FFLS

FPAE

FSC

FTXN

D

E

F

21:841 & 846 SEC 841-851

High Risk; Served 61.3%

18:286,371 FRAUD, OTHER

Low Risk; (4) 300-Series IR October - December 2019

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 9%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 66.5%

21:841 SCH II NONNARC,NONFSA

Low Risk; 100-Series IR February 2020; Served 38.6%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 30.6%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 28%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 15.6%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 69.7%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 70.1%

18:1956 RACKETEERING

Low Risk; Served 59.8%; Prior violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 16.6%

18:2421-29 I/S TRN IMRL PRPS

Sex Offender; served 82.7%

21:841 & 846 SEC 841-851

High Risk: 100-Series IR October 2019; Served 33.9%

18:924(C) FIREARMS LAWS

Committed 6 separate Armed Robberies; Served 89.7%

18:2421-29 I/S TRN IMRL PRPS

Sex Offender; Served 20.2%

21:846 SEC 841-851 ATTEMPT

Sex Offender; Served 68.8%

OBSCENE MATTER TRANSPORT

Sex Offender; Served 27%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 70.5%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 53.4%

21:846 SEC 841-851 ATTEMPT

Medium Risk; Served 57.8%; Past Violence; Robbery; Kidnapping; Assault

18:922(G) FIREARMS,CARR CRIM

High Risk; Releases 5/11/20; Served 100%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 30.3%

21:841 SCH II NONNARC,NONFSA

Medium Risk; Served 52.2%; Prior Simple Assault (org was Sexual Battery)

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 42%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 30.2%

18:1962 RACKETEER (RICO)

Conspiracy to Murder and Assault; Pagans Motorcycle Gang; Served 70.3%

18:1962 RACKETEER (RICO)

Medium Risk; Served 40.6%; Latin King Gang; Supplied Drugs and Weapons to gang

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 38.7%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 37.5%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 15.4%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 37.4%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 19.5%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 36.4%

21:846 SEC 841-851 ATTEMPT

High Risk; Served 34.7%; incident report in past year

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 71.3%

18:922(G) FIREARMS,CARR CRIM

Medium Risk; Prior Attempted Felonious Assault; Served 60.3%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 39.3%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 17.7%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 18.1%

18:1591 SEX TRAFFICK CHILD

Sex Offender; Served 7%

18:922(G) FIREARMS,CARR CRIM

Low Risk; Prior Manlaughter; Served 19.2%

18:924(C) FIREARMS LAWS

Low Risk; 53.8% served; Several violent priors; Domestic Violence and Robbery

21:841 & 846 SEC 841-851

Medium Risk; discpline in past 12 months - cell phone and assault; Served 42.4%

18:1028 FRAUD IDENTITY THEFT

Low Risk; Prior Domestic Violence; Served 37.2%

18:1344 BANK FRAUD

High Risk; Served 6.6%; Prior Robbery

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 65%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 27.2%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 95.3%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 82.1%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 37.8%

COMMUNICATIONS ACT

High Risk; Served 16.4%; 2 100 series incident reports in past 12 months

OBSCENE MATTER TRANSPORT

Sex Offender; Served 75.7%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 34.6%

OBSCENE MATTER TRANSPORT

Sex Offender; Served 89.8%

21:841 SCH I NON-NARC,NONFSA

Medium Risk; Served 82.7%

18:924(C) FIREARMS LAWS

Medium Risk; Served 63%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 28.4%

21:846 SEC 841-851 ATTEMPT

Medium Risk; Served 68.8%; 3 incident report in past 12 months

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 22%

21:846 SEC 841-851 ATTEMPT

High Risk; Served 16.8%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 13.4%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; served 71.6%

21:841 & 846 SEC 841-851

High Risk; 43.6%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 9.3%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 56.1%

18:286,371 FRAUD, OTHER

(2) 300-Series IR February 2020/September 2019; Served 55%

21:846 SEC 841-851 ATTEMPT

Served 48.5%; Wanted Person Full Extradition to GA

OBSCENE MATTER TRANSPORT

Sex Offender; Served 76.2%

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 14 of 14. PageID #: 1072

A

B

C

D

E

F

841

Color Key:

842

SUBMITTED CASES

843

PREVIOUSLY PENDING FURTHER REVIEW

844

I/M Released

845

REVIEWING FOR RIS

846

LATER DETERMINED INELIGIBLE

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 1 of 25. PageID #: 1073
Exhibit B

A 1 Register Number 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 2 of 25. PageID #: 1074

B
Name

C
Court of FMIE FIAN FRQ FINN FOHN FDCD FINS FILN FMN FMIW FTXN FMIW FGAM FOHN FPAE FVAW FMOE FOKN FILS FMIE FWVN FMN FILS FKYE FALS FMIW FVAE FTNE FNCM FMD FNYN FNJ FOHS FNCW FFLN

D
Docket Number

E
RIS Request Made

F
Decision

Yes

Denied

No

No

No

Yes

Denied

No

No

No

No

No

No

No

No

No

Yes

Denied

No

No

Yes

Denied

No

No

Yes

Denied

Yes

Denied

Yes

Denied

No

No

No

Yes

Denied

No

Yes

Denied

No

No

No

No

No

No

G
Denial Reason Does not meet medical criteria
Does not meet medical criteria
Does not meet medical criteria Does not meet medical criteria Does not meet medical criteria Does not meet medical criteria Does not meet medical criteria
Does not meet medical criteria Does not meet medical criteria

A 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 3 of 25. PageID #: 1075

B

C

FVAW

FINS

FNYW

FKYW

FWVN

FNYW

FWVN

FPAW

FOHN

FND

FINS

FOHN

FKYE

FINS

FMIE

FMIE

FMIE

FPAE

FNCM

FOHN

FMIE

FILS

FNYE

FMIE

FINS

FKYW

FPAM

FTXN

FWVS

FOHN

FPAW

FMIE

FWVS

FILC

FMIE

FLAW

D

E

F

G

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

No

No

Being Considered Pending further review

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

A 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 4 of 25. PageID #: 1076

B

C

FMIE

FOHS

MAR

FMIE

FVAW

FILC

FMT

FFLS

FWVN

FILC

FPAW

FPAM

FIAS

FKYE

FILN

FMIW

FARE

FNCM

FILS

FIAN

FVAW

FKYW

FDCS

FPAW

FGAN

FOHN

FPAW

FNYS

FPAW

FOHN

FOHN

FILN

FMIW

FINN

FILN

FOHN

D

E

F

G

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

COVID-19 only

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

COVID-19 only

Yes

Denied

Does not meet medical criteria

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

A 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 5 of 25. PageID #: 1077

B

C

FMOE

FALS

FGAN

FPAW

FNJ

FTNE

FILS

FOHN

FNYW

FWIE

FILS

FILN

FINN

FMIE

FPAW

FIAS

FPAW

FILN

FMOW

FMN

FARE

FINS

FOHN

FND

FTXS

FOR

FAZ

FWVN

FPAE

FILS

FNCW

FPAW

FNCM

FNYE

FMN

FMIE

D

E

F

G

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

COVID-19 only

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

A 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 6 of 25. PageID #: 1078

B

C

FOHN

FINN

FOHN

FMIW

FFLM

FMOE

FILN

FIAS

FOHS

FWVS

FINS

FMIE

FOHN

FINS

FOHN

FILN

FNJ

FLAE

FINN

FVAW

FGAN

FILC

FOHS

FOHN

FVAW

FOHS

FINS

FINN

FIAS

FMOW

FMIW

FWIE

FKYW

FMIE

FRQ

FMD

D

E

F

G

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

Denied

Does not meet medical criteria

No

No

A 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 7 of 25. PageID #: 1079

B

C

FINS

FWY

FOHN

FOHN

FOHS

FTNE

FMIE

FMIE

FOHS

FMIW

FMIE

FVAE

FKYE

FMOE

FMD

FMIE

FNYN

FILC

FSC

FMD

FOHN

FDCS

FILC

FNYN

FVAW

FINS

FKYE

FOHS

FVAE

FOHS

FINS

FOHN

FOHN

FMN

FNYS

FND

D

E

F

G

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

A 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 8 of 25. PageID #: 1080

B

C

FKYE

FNCM

FWVN

FIAS

FOHN

FOHN

FPAE

FKYE

FMN

FWAE

FILC

FTNE

FKYE

FDE

FMD

FOHN

FWIE

FKYE

FMD

FOHN

FNCE

FOHN

FOHN

FNCM

FOHN

FPAE

FMD

FTNE

FAZ

FOHN

FSC

FKYE

FNCM

FMIE

FTXE

FCAS

D

E

F

G

No

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

A 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 9 of 25. PageID #: 1081

B

C

FMN

FCAS

FILN

FFLM

FWVN

FILN

FTXW

FNM

FOHN

FOHN

FMIE

FWIE

FKYE

FTNE

FILN

FWAW

FWVS

FKYE

FMIW

FNYW

FTNE

FPAE

FCAN

FOHN

FOHS

FNYS

FMIE

FWVS

FTNE

FMIE

FPAW

FDCD

FKYE

FKYE

FILN

FOHN

D

E

F

G

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

Being Considered Dependant on family responsibility

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

COVID-19 only

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

A 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 10 of 25. PageID #: 1082

B

C

FDCS

FPAW

FMIW

FALN

FILN

FILC

FTNE

FIAS

FOHN

FNYW

FMIW

FILN

FWVN

FKYE

FKYW

FILC

FMN

FMIE

FOHN

FNCM

FOHS

FTXS

FOHS

FINN

FMIE

FOHN

FTXS

FNYE

FILN

FTNE

FINN

FKYE

FMIE

FWIE

FMIW

FMIW

D

E

F

G

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Being Considered Working on release plan

No

No

No

No

No

No

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

A 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 11 of 25. PageID #: 1083

B

C

FSC

FPAE

FMIE

FMIE

FCAC

FINS

FMN

FKYE

FIAS

FWIW

FINS

FMOW

FMIE

FTNE

FOHN

FNYW

FTNM

FWVS

FMD

FSC

FNCM

FNYN

FOHN

FALS

FTNE

FOHN

FVAE

FIAS

FPAM

FPAM

FINN

FKYW

FINS

FMIE

FMSS

FKYE

D

E

F

G

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

No

No

Being Considered Pending further review

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

No

No

No

A 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 12 of 25. PageID #: 1084

B

C

FTNE

FPAE

FVAE

FMA

FCAE

FOHN

FILC

FOHN

FMIW

FILC

FPAW

FMIE

FMIE

FPAW

FINS

FIAN

FINN

FKYE

FMIE

FOHN

FOHS

FILS

FILN

FVAW

FLAW

FMIE

FLAW

FVAE

FPAM

FKYE

FILC

FTNM

FNCW

FPAW

FPAW

FMIE

D

E

F

G

Yes

Denied

Does not meet medical criteria

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

COVID-19 only

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

COVID-19 only

No

No

No

No

A 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 13 of 25. PageID #: 1085

B

C

FMIE

FINN

FKYE

FCT

FOHN

FILN

FMIE

FWAW

FILN

FWIE

FOHN

FILS

FLAW

FMIE

FPAW

FWVS

FOHS

FMOW

FWVN

FOHS

FMIW

FMIE

FNYW

FMOE

FFLS

FND

FINS

FWIE

FNCW

FWVN

FMIE

FOHN

FINS

FCO

FPAW

FFLS

D

E

F

G

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

COVID-19 only

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

No

A 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 14 of 25. PageID #: 1086

B

C

FTXW

FWVS

FNYW

FMIE

FOHS

FFLN

FTNE

FOHS

FFLN

FMN

FOHS

FWVN

FKYE

FNCE

FOR

FPAM

FNYS

FPAW

FINS

FFLM

FMIE

FMIW

FNCW

FILN

FWVS

FMIW

FOHN

FOHN

FTNE

FOHS

FWAW

FWIE

FMIW

FOHN

FOHN

FNCW

D

E

F

G

No

No

Yes

Denied

Does not meet medical criteria

No

No

Being Considered Working on release plan

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

A 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 15 of 25. PageID #: 1087

B

C

FWIE

FPAW

FOHS

FND

FIAN

FPAE

FINS

FOHN

FTNE

FTNE

FTXN

FTXW

FOHN

FTXS

FMSN

FKYE

FIAN

FPAW

FNYW

FDE

FOHN

FMIE

FMIE

FFLN

FSC

FILN

FILN

FOHN

FMIW

FILC

FMIE

FOHN

FMIW

FOHN

FMIE

FKYE

D

E

F

G

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

COVID-19 only

Yes

Denied

Does not meet medical criteria

No

No

A 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 16 of 25. PageID #: 1088

B

C

FMIW

FTXN

FILN

FOHN

FPAW

FTNE

FMIW

FKYE

FOHN

FOHS

FMIE

FVAE

FWIW

FMIE

FILN

FWVN

FMOW

FINN

FNYW

FWVS

FMIE

FMIE

FINS

FIAS

FILN

FMIW

FMIW

FMIE

FOHS

FPAW

FOHS

FNM

FWVS

FOHN

FNYS

FOHN

D

E

F

G

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

COVID-19 only

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

A 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 17 of 25. PageID #: 1089

B

C

FOHN

FWVN

FNYW

FTNM

FNYS

FILN

FOHS

FMOE

FMN

FOHN

FOHN

FRQ

FILN

FNYW

FPAW

FMD

FNCE

FINN

FMIE

FILN

FWVS

FWVN

FOHN

FNIE

FNV

FMIW

FINS

FINN

FOHS

FVAE

FMT

FPAW

FMIE

FINN

FPAW

FKYE

D

E

F

G

No

No

Being Considered Pending further review

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

COVID-19 only

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

A 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 18 of 25. PageID #: 1090

B

C

FNCM

FOHS

FMIW

FFLM

FWVS

FMD

FFLS

FOHS

FMN

FMIE

FILN

FIAN

FMIW

FVAW

FMD

FNCM

FKYW

FILN

FINN

FINN

FMIW

FMIW

FWIE

FOHN

FNYW

FINN

FMIW

FIAN

FOHS

FPAE

FKYE

FPAW

FMIE

FTNW

FOHN

FNYW

D

E

F

G

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Being Considered Working on release plan

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

A 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 19 of 25. PageID #: 1091

B

C

FWAE

FCT

FVAW

FPAW

FVAW

FMIE

FWVS

FILN

FNCE

FTNE

FILN

FKYE

FNYS

FMOW

FMIE

FNCW

FTXS

FINS

FILN

FWVN

FOHS

FMIE

FND

FOHS

FOHN

FVAE

FILC

FSC

FILC

FWIE

FMIE

FME

FMIE

FNYS

FMIE

FNYW

D

E

F

G

No

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

COVID-19 only

No

No

No

No

No

No

A 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 20 of 25. PageID #: 1092

B

C

FOHN

FWIW

FOHN

FMIE

FOHS

FND

FNYW

FVAE

FILN

FOHN

FFLM

FFLN

FMIW

FMIE

FDCD

FSC

FMIW

FGAS

FOHS

FRI

FMIE

FNCE

FMOW

FWVN

FTNE

FOHN

FMIE

FTNE

FOHN

FILC

FINS

FWVN

FILS

FKYE

FOHN

FFLN

D

E

F

G

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

A 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 21 of 25. PageID #: 1093

B

C

FLAE

FILS

FILC

FKYE

FINS

FKYE

FVAW

FMD

FNCW

FPAW

FMIE

FMIE

FMIE

FMIE

FMIE

FOHN

FMIE

FKYE

FMIE

FMN

FMN

FIAS

FOHS

FOHN

FOHS

FVAE

FWVN

FKYE

FNCE

FMIW

FMIE

FOHN

FMIW

FWVS

FILC

FWVN

D

E

F

G

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

No

No

No

No

No

No

No

No

No

No

A 721 722 723 724 725 726 727 728 729 730 731 732 733 734 735 736 737 738 739 740 741 742 743 744 745 746 747 748 749 750 751 752 753 754 755 756

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 22 of 25. PageID #: 1094

B

C

FWIW

FWVN

FOHS

FOHN

FIAS

FNYS

FMIE

FFLM

FKYE

FKYE

FFLM

FNYN

FINS

FNCM

FINN

FOHS

FOHS

FTXW

FDCS

FWIW

FPAW

FINN

FINN

FPAW

FMIE

FMIE

FOHN

FWIE

FMIE

FMIE

FMIE

FOHS

FKYE

FMIE

FNM

FMIW

D

E

F

G

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

A 757 758 759 760 761 762 763 764 765 766 767 768 769 770 771 772 773 774 775 776 777 778 779 780 781 782 783 784 785 786 787 788 789 790 791 792

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 23 of 25. PageID #: 1095

B

C

FIAS

FTNE

FRQ

FMIW

FOHN

FOHN

FVAW

FND

FTNE

FILC

FMIE

FMIW

FILN

FMIE

FNJ

FIAN

FKYE

FMA

FILN

FOHS

FIAS

FILS

FINS

FVAW

FOHS

FMIE

FNCM

FOHN

FKYE

FMT

FMIE

FMN

FKYE

FOR

FTNE

FWVS

D

E

F

G

No

No

Yes

Denied

COVID-19 only

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

A 793 794 795 796 797 798 799 800 801 802 803 804 805 806 807 808 809 810 811 812 813 814 815 816 817 818 819 820 821 822 823 824 825 826 827 828

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 24 of 25. PageID #: 1096

B

C

FNYN

FMD

FOHS

FMIE

FMIE

FILS

FINS

FMN

FWVS

FKYW

FILN

FPAW

FTNE

FILN

FOHN

FOHS

FOR

FINN

FOHN

FPAW

FILN

FNYS

FMN

FIAN

FPAM

FAK

FKS

FPAW

FTNE

FPAW

FMOW

FWVS

FNYN

FMIE

FRI

FNCW

D

E

F

G

Yes

Denied

COVID-19 only

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

A 829 830 831 832 833 834 835 836 837 838

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 25 of 25. PageID #: 1097

B

C

FMIW

FALM

FFLM

FOHN

FOHN

FMIE

FILN

FINS

FFLN

FDE

D

E

F

G

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

Case: 4:20-cv-00794-JG Doc #: 78-3 Filed: 05/14/20 1 of 3. PageID #: 1098
Exhibit C

Case: 4:20-cv-00794-JG Doc #: 78-3 Filed: 05/14/20 2 of 3. PageID #: 1099

From: To: Cc: Subject: Date:

Bennett, James R. (USAOHN) David Carey DeCaro, Sara (USAOHN); DeVito, David M. (USAOHN) Wilson v. Williams Wednesday, May 13, 2020 2:44:47 PM

**THE INFORMATION IN THIS E-MAIL IS ATTORNEY’S EYES ONLY – SUBJECT TO A PROTECTIVE ORDER***

Dear Mr. Carey:

Pursuant to the Court’s instructions and the stipulated protective order, Respondents are providing counsel for Petitioners with the search criteria that were used to generate the list of inmates (ECF No. 35-1). As we have previously explained, BOP does not maintain a list as described by the Court in its regular course of business. Therefore, this list was generated by BOP using specific criteria and Respondents believe the list to be complete at the time it was created based on the information currently within its medical records system. BOP used the Bureau Electronic Medical Record (BEMR) System to identify inmates who met one or more of the following criteria: (1) over the age of 65; (2) inmates receiving cardiac chronic care; (3) inmates receiving pulmonary chronic care; (4) inmates who are diabetic; (5) inmates with cirrhosis; (6) inmates with Hepatitis B; (7) inmates with Hepatitis C; (8) inmates on dialysis; (9) inmates with a transplant diagnosis; (10) inmates with HIV; (11) inmates prescribed a chemotherapy drug; and/or (12) inmates prescribed an immunosuppressant. Today, BOP ran a list of all inmates who were age 65, and determined there are 20 such inmates currently at Elkton. Eleven of those inmates are already on the list filed with the Court. The remaining 9 inmates who are age 65 are being added to a supplemental list that will be sent to you and filed with the Court once it is complete. Please let me know if you have any questions.

JAMES R. BENNETT II Assistant U.S. Attorney 801 W. Superior Avenue Suite 400 Cleveland, Ohio 44113-1852 (216) 622-3988 (Direct) (216) 522-4982 (Facsimile) james.bennett4@usdoj.gov

WARNING LIMITED OFFICIAL USE ONLY. CONTAINS ATTORNEY-CLIENT AND/OR WORK PRODUCT
PRIVILEGED INFORMATION The information contained in this message, and any and all accompanying documents, constitutes sensitive information protected by the attorney-client privilege and/or the work product privilege and is intended only for the addressee(s). The information is the property of the United States Attorney's Office. If you are not the intended receipient of this information, any disclosure, copying, distribution or the taking of any action in reliance on this information is strictly prohibited. If you receive this message in error, please notified the sender immediately at the above number.

Case: 4:20-cv-00794-JG Doc #: 78-3 Filed: 05/14/20 3 of 3. PageID #: 1100

Case: 4:20-cv-00794-JG Doc #: 78-4 Filed: 05/14/20 1 of 5. PageID #: 1101
Exhibit D

Case: 4:20-cv-00794-JG Doc #: 78-4 Filed: 05/14/20 2 of 5. PageID #: 1102

Case: 4:20-cv-00794-JG Doc #: 78-4 Filed: 05/14/20 3 of 5. PageID #: 1103

Case: 4:20-cv-00794-JG Doc #: 78-4 Filed: 05/14/20 4 of 5. PageID #: 1104
Exhibit 1

Case: 4:20-cv-00794-JG Doc #: 78-4 Filed: 05/14/20 5 of 5. PageID #: 1105

 
 Case: 4:20-cv-00794-JG Doc #: 98 Filed: 05/29/20 1 of 2. PageID #: 1165

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CRAIG WILSON, et al.
Petitioners, v. MARK WILLIAMS, Warden of Elkton Federal Correctional Institution, et al.,
Respondents.

) CASE NO.: 4:20CV794 ) ) ) JUDGE JAMES S. GWIN ) ) ) ) ) RESPONDENTS' EMERGENCY ) MOTION TO STAY ) )

Now come Respondents Mark Williams, Warden of Elkton Federal Correctional Institution and Michael Carvajal, Director of Federal Bureau of Prisons (“Respondents”), and hereby respectfully move this Court for an emergency stay of its order issued on May 19, 2020 (ECF No. 85 PageID # 1123) and further renews its Motion to Stay the Court’s April 22, 2020 Order (ECF No. 22 PageID # 352 ). The grounds for this Motion are more fully set forth in the Memorandum in Support filed contemporaneously herewith.

(Signatures on the following page.)

1

Case: 4:20-cv-00794-JG Doc #: 98 Filed: 05/29/20 2 of 2. PageID #: 1166
Respectfully submitted, JUSTIN E. HERDMAN United States Attorney By: /s/ James R. Bennett II James R. Bennett II (OH #0071663) Sara DeCaro (OH #0072485) David M. DeVito (CA #243695) Assistant United States Attorneys United States Courthouse 801 West Superior Ave., Suite 400 Cleveland, Ohio 44113 216-622-3988 - Bennett 216-522-4982 - Fax James.Bennett4@usdoj.gov Sara.DeCaro@usdoj.gov David.DeVito@usdoj.gov Attorneys for Respondents
2

Case: 4:20-cv-00794-JG Doc #: 98-1 Filed: 05/29/20 1 of 15. PageID #: 1167

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CRAIG WILSON, et al.
Petitioners, v. MARK WILLIAMS, Warden of Elkton Federal Correctional Institution, et al.,
Respondents.

) CASE NO.: 4:20CV794 ) ) ) JUDGE JAMES S. GWIN ) ) ) ) ) MEMORANDUM IN SUPPORT OF ) RESPONDENTS' EMERGENCY ) MOTION TO STAY )

INTRODUCTION Pursuant to Fed. R. Civ. P. 62(d), Respondents Mark Williams, Warden of Elkton Federal Correctional Institution and Michael Carvajal, Director of Federal Bureau of Prisons, in their official capacities (“Respondents”), respectfully request that this Court stay its Order issued on May 19, 2020 [ECF No. 85], pending final resolution of the appeal filed by Respondents on May 27, 2020. (Notice of Appeal, ECF No. 95 PageID # 1160.) Respondents also respectfully renew their request for a stay of this Court’s Order of April 22. Although the Federal Bureau of Prisons (“BOP”) has satisfied several requirements of those orders, it remains under an obligation to 1) release numerous inmates to home confinement under criteria of the Court’s creation, which deviate from BOP’s expert public-safety judgments about recidivism risks; and 2) transfer hundreds of inmates to other institutions, notwithstanding BOP’s careful, expertise-based determination, made unreviewable by statute, placing them at Elkton. Respondents respectfully request an expedited ruling on this motion by 3:00 pm on June 1, 2020.

Case: 4:20-cv-00794-JG Doc #: 98-1 Filed: 05/29/20 2 of 15. PageID #: 1168
BACKGROUND The COVID-19 pandemic has created unprecedented public health risks in this country and around the world. Recognizing the threat posed by COVID-19, BOP quickly developed and implemented a nationwide multiphase action plan, which has consistently been informed by “the guidance and direction of worldwide health authorities.” (Decl. of Sarah Dees, ECF No 10-1 PageID #174 at ¶ 6.) Elkton has implemented BOP’s nationwide COVID-19 response and taken numerous precautions according to the facility’s needs. (Id. at PageID ## 178-179, ¶ 19.) For example, Elkton inmates and staff have been educated about measures to avoid transmitting COVID-19; all common areas are disinfected at least daily; and inmates have personal access to sinks, water, disinfectant, and soap. (Id. at PageID ## 179, 183-84, ¶¶ 20-22, 45-46.) Inmates and staff have been provided protective face masks for daily use and appropriate protective equipment for particular tasks. (Id. at PageID #184, ¶¶ 48-50.) BOP has also taken steps to reduce inmate contact—requiring inmates to pick up meals and return to their housing units to eat, and staggering mealtimes. (Id. ¶¶ 12, 54, PageID ## 176, 185.) BOP has dramatically increased its testing capacity in recent weeks and expects to have collected samples from all Elkton inmates by May 29 for testing. (Declaration of Andrea Burnside (“Burnside Decl.”), attached hereto as Ex. A, at ¶ 14.) Any inmate who has COVID-19 symptoms or tests positive is moved to an isolation area. (Id. at ¶¶ 5-6.) Asymptomatic inmates who have been in contact with symptomatic inmates are quarantined for at least 14 days. (Id. at ¶ 7.) After 14 days, inmates may be released from quarantine if no one in the cohort has reported symptoms or tested positive for COVID-19. (Id.) But if a quarantined inmate presents with symptoms, he is isolated, and the 14-day clock restarts. (Id.) If an inmate’s condition requires hospitalization, he is transported to a local hospital. (See id. ¶ 8.)
2

Case: 4:20-cv-00794-JG Doc #: 98-1 Filed: 05/29/20 3 of 15. PageID #: 1169
Although Elkton continues to experience inmate infections, the efforts by staff appear to have significantly mitigated the risks of COVID-19. (Id. at ¶ 10.) Since early April 2020, the number of hospitalized inmates has been in decline from its April 8 peak of 46 inmates. (Id. at ¶ 9.) From April 12 through May 2 only four inmates were hospitalized for COVID-19 related illness. (Id.) In nearly four weeks since May 2, no other Elkton inmate has been hospitalized for COVID-19-related illness. (Id.)
Despite BOP’s sustained response to the COVID-19 crisis and the progress on the ground at Elkton, this Court has imposed a series of orders upon Respondents. On April 22, 2020, the Court entered a preliminary injunction granting relief to a conditionally certified subclass of older and medically vulnerable inmates on the theory that the conditions at Elkton violated the Eighth Amendment. (Order, ECF No. 22, PageID ##371-72.) Rejecting the government’s arguments that this suit could not proceed under section 2241 and was barred by the Prison Litigation Reform Act (PLRA), and invoking the court’s purported “inherent authority” over inmates’ confinement, the Court ordered Respondents to “determine the appropriate means of transferring” all subclass members “out of Elkton.” (Id. at PageID ## 360-361.)
Respondents filed a notice of appeal to the Sixth Circuit Court of Appeals on April 27, 2020. (Not. of Appeal, ECF No. 26 PageID # 394.) Respondents then requested a stay pending appeal. (Em. Mot. for Stay Pending Appeal, ECF No. 29 PageID # 397.) On May 8, 2020, the Court denied Respondents’ stay motion. (Order, ECF No. 57 PageID ##744-48.) By that time, BOP had satisfied the injunction’s first two requirements. (Status Report, ECF No. 49 PageID ## 678-682.) Petitioners nonetheless filed an emergency motion to enforce the injunction. (Mot. to Enforce, ECF No. 51 PageID ## 693-701.) In response, BOP explained that it had evaluated all inmates in the subclass for the Court’s specified forms of relief, and BOP explained why
3

Case: 4:20-cv-00794-JG Doc #: 98-1 Filed: 05/29/20 4 of 15. PageID #: 1170
inmates had been deemed ineligible—including because many are sex offenders. (Opp’n to Mot. to Enforce, ECF No. 58 PageID ## 754-758.) BOP further explained that it had begun evaluating inmates who were ineligible for other forms of relief for transfer to other BOP facilities, and it documented numerous impediments to transferring inmates. (Id. at PageID ## 758-762.)
On May 19, the Court granted Petitioners’ motion to enforce the injunction. (Order, ECF No. 85 PageID ## 1124, 1126.) The Court ordered BOP “to make full use of the home confinement authority” and revised the Attorney General’s criteria for home confinement. (Id. at PageID ## 1128-1129.) The Court announced, for example, that BOP must “disregard” consideration of a violent offense if it occurred “more than 5 years ago”; and BOP must disregard certain categories of prison disciplinary violations if they constitute the only basis for denial. (Id. at PageID # 1129.)
The Court ordered BOP to reevaluate every subclass member under the Court’s criteria and provide “detailed description[s]” regarding one-third of the subclass every 48 hours, [Order, ECF No 85 PageID # 1129-1130], a requirement BOP has now satisfied, (Burnside Decl. at ¶ 29.) The Court also ordered BOP, within 48 hours, to “clarify” the reasons for any denial of compassionate release, [Order, ECF No. 85 PageID # 1131], a requirement that BOP has likewise satisfied, (Resps.’ First Response, ECF No. 89 PageID # 1142.) And the Court ordered BOP to adjudicate any new applications in just seven days. (Order, ECF No. 85 PageID # 1131.) The order also gave BOP just seven days to “show cause” why any inmate ineligible for home confinement or compassionate release “cannot be transferred to another BOP facility where social distancing is possible.” (Id. at PageID # 1132.)
On May 20, 2020, Respondents filed an application with the Supreme Court to stay the April 22 order pending completion of proceedings in the Sixth Circuit Court of Appeals and, if
4

Case: 4:20-cv-00794-JG Doc #: 98-1 Filed: 05/29/20 5 of 15. PageID #: 1171
necessary, the Supreme Court. (Not. of Filing Resps.’ Application for Stay, ECF No. 87 PageID # 1136.) The Supreme Court denied the application without prejudice on May 26, 2020. The Supreme Court noted that, although Respondents had sought a stay only of the April 22 order, this Court’s May 19 order “enforc[ed] the preliminary injunction and impos[ed] additional measures,” and Respondents had not yet asked for review or stay of the May 19 order. “Particularly in light of that procedural posture,” the Supreme Court “decline[d] to stay the District Court’s April 22 preliminary injunction without prejudice to the Government seeking a new stay if circumstances warrant.” Wilson v. Williams, No. 19A1041, 2020 WL 2644305 (U.S. May 26, 2020). Justices Thomas, Alito, and Gorsuch would have granted the stay application. Id. On May 27, 2020, Respondents appealed to the United States Court of Appeals for the Sixth Circuit from the Order of this Court entered on May 19, 2020. (Notice of Appeal, ECF No. 95 PageID # 1160.)
On May 22, 2020, Elkton staff placed 128 inmates who the Court has deemed to be “medically vulnerable” into quarantine to enable their transfer out of Elkton. (Burnside Decl. at ¶ 19.) Senior BOP officials believe the transfer of inmates out of Elkton is not necessary to protect inmates and may contribute to disease spread to other areas. (Declaration of Andre Matevousian (“Matevousian Decl.”), attached as Exhibit B, at ¶ 14.) Further, BOP officials are also reviewing dozens of inmates who Elkton officials had determined were not suitable for home confinement under criteria established by the Attorney General but now 17 such inmates have been approved for home confinement “[i]n order to comply with” the May 19 order and more may be approved as the review continues. (Declaration of Hugh J. Hurwitz (“Hurwitz Decl.”), attached as Exhibit C, at ¶¶ 27-28.)
ARGUMENT This Court has discretion to stay execution of its judgment pending resolution of an
5

Case: 4:20-cv-00794-JG Doc #: 98-1 Filed: 05/29/20 6 of 15. PageID #: 1172
appeal. Fed. R. Civ. P. 62(d). A. Philip Randolph Institute v. Husted, 907 F.3d 913, 917 (6th Cir. 2018). Courts consider four factors when determining if a stay is warranted: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Id.; Hilton v. Braunskill, 481 U.S. 870, 867-77 (1987); Concerned Pastors for Soc. Action v. Khouri, 844 F.3d 546, 548 (6th Cir. 2016). “These four factors ‘are not prerequisites that must be met, but are interrelated considerations that must be balanced’ together.” Khouri, 844 F.3d at 548 (quoting In re EPA, 803 F.3d 804, 806 (6th Cir. 2015). As demonstrated below, Respondents have met their burden of showing that this Court should exercise its discretion to stay its order pending appellate review, Nken v. Holder, 556 U.S. 418, 433–34 (2008), because a balancing of the factors supports the issuance of a stay pending appeal. Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 156 (6th Cir. 1991). I. RESPONDENTS ARE LIKELY TO SUCCEED ON APPEAL
A. The Court exceeded its authority under 28 U.S.C. § 2241 and the PLRA Petitioners bring this suit as a putative class action under 28 U.S.C. § 2241, challenging the conditions of their confinement at Elkton. They seek relief based on their theory that “incarceration amid the COVID-19 outbreak in Elkton violates their rights to constitutional conditions of confinement” in violation of the Eighth Amendment. (Pet., ECF No. 1 PageID ## 31, 35 (emphasis added; capitalization omitted).) As the Supreme Court has explained, claims for injunctive relief “challenging the fact of [an inmate’s] conviction or the duration of his sentence . . . fall within the core of federal habeas corpus,” but “claims that merely challenge the conditions of a prisoner’s confinement . . . fall outside that core.” Nelson v. Campbell, 541 U.S.
6

Case: 4:20-cv-00794-JG Doc #: 98-1 Filed: 05/29/20 7 of 15. PageID #: 1173
637, 643 (2004). Accordingly, the Sixth Circuit has recognized that a habeas petition under section 2241 “is not the proper vehicle for a prisoner to challenge conditions of confinement.” Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013); Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004).
This Court acknowledged the Sixth Circuit precedent but held that Petitioners’ suit was better characterized as a challenge to the “execution or manner” of Petitioners’ sentences. (Order, ECF No. 22 PageID # 362.) However, the Court’s orders expressly contemplate that inmates may be transferred to another prison, even though such relief is unavailable in habeas. (Id.; see also, Order, ECF No. 85 PageID # 1123.) Relief that addresses whether a federal prisoner temporarily serves his sentence in a particular federal prison or elsewhere does not alter the “fact or duration of [his] confinement,” Preiser v. Rodriguez, 411 U.S. 475, 489 (1973), or “the execution or manner in which the sentence is served,” United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001), nor does it change the court-imposed sentence—the hallmark of habeas relief. See 18 U.S.C. § 3621(b) (BOP, not the sentencing court, “designate[s] the place of the prisoner’s imprisonment”).
Because Petitioners’ suit is not properly cognizable in habeas, Respondents are likely to succeed on the merits that it is inappropriate to rely on “inherent authority” “to ‘enlarge’ the custody of a defendant pending the outcome of a habeas action.” (Order, ECF No. 22 PageID # 359.) The injunctive relief ordered by this Court also looks nothing like the relief in the only cases that support this novel theory, see, e.g., Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990). En masse transfer of hundreds of inmates to other places of confinement is not a preliminary form of the relief that is available in habeas. Cf. De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945).
7

Case: 4:20-cv-00794-JG Doc #: 98-1 Filed: 05/29/20 8 of 15. PageID #: 1174
Further, Petitioners’ requested relief contravenes the strict limits of the Prison Litigation Reform Act. The PLRA creates a carefully reticulated scheme for “the entry and termination of prospective relief in civil actions challenging prison conditions.” Miller v. French, 530 U.S. 327, 331 (2000). It 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.” 18 U.S.C. § 3626(g)(2).
Under the PLRA, BOP’s decisions concerning an inmate’s “designation of a place of imprisonment . . . [are] not reviewable by any court.” 18 U.S.C. § 3621(b). BOP’s administrative judgment about where a prisoner should be housed balances multiple factors within BOP’s unique expertise, including the prisoner’s “history and characteristics,” the “nature and circumstances of [his] offense,” his “security designation,” his “programmatic” and “mental and medical health needs,” and the “resources of [each] facility.” Id. The decision is thus vested in expert prison officials, and “any approach that puts the judicial branch in charge of designating the place of confinement . . . —no matter how well justified on utilitarian grounds— collides with . . . the Attorney General[’s] unfettered authority to decide where to house federal prisoners.” In re Gee, 815 F.2d 41, 42 (7th Cir. 1987). Yet the May 19 order overtly overrules BOP’s determination regarding home-confinement placement and orders transfer of inmates to different facilities.
The PLRA also requires that any “prisoner release order” be “entered only by a threejudge court,” only after specific requirements are met. 18 U.S.C. § 3626(a)(3)(A), (B). The April 22 and May 19 orders are “prisoner release orders,” as they have the “purpose” or “effect” to “reduc[e] or limit[] the prison population.” Id. § 3626(g)(4); Brown v. Plata, 563 U.S. 493, 511 (2011). And even if the orders were not “prisoner release order[s],” they would violate other
8

Case: 4:20-cv-00794-JG Doc #: 98-1 Filed: 05/29/20 9 of 15. PageID #: 1175
PLRA restrictions on “civil action[s] with respect to prison conditions.” 18 U.S.C. § 3626(a). B. Respondents have not violated the Eighth Amendment Respondents are likely to succeed on the merits because Petitioners have failed to
establish an Eighth Amendement violation. To succeed on their conditions-of-confinement claim, Petitioners must demonstrate that BOP has violated the prohibition against “cruel and unusual punishments,” U.S. Const. Amend. VIII, by meeting “two requirements,” one objective, the other subjective. Farmer v. Brennan, 511 U.S. 825, 834, 846 (1994).
On the first, objective requirement, Petitioners must demonstrate that the conditions at Elkton pose “‘sufficiently serious’” health risks that they deny “‘the minimal civilized measure of life’s necessities.’” Farmer, 511 U.S. at 834 (citations omitted). Although COVID-19 poses significant health risks, BOP has assiduously mitigated the risk of serious injuries at Elkton with numerous (and increasing) responses. Petitioners fail to show that the risks at Elkton are “so grave that it [would] violate[] contemporary standards of decency to expose anyone unwillingly to [them].” Helling v. McKinney, 509 U.S. 25, 36 (1993). The risks posed by COVID-19 confront not only prisoners but citizens nationwide, including others who live or work in confined locations. Data bears out BOP’s extensive efforts to address the risks at Elkton: even before the Court entered its April 22 injunction, the number of hospitalized inmates had already peaked and has subsequently declined significantly. (Burnside Decl. at ¶ 9, Ex. A; see also, Dees Decl., ECF No. 58-1 PageID ## 788-790.)
Petitioners have also failed to demonstrate that BOP has acted with “deliberate indifference to inmate health or safety,” “know[ing] of and disregard[ing] an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 834, 837. The COVID-19 pandemic has created unprecedented and rapidly evolving risks throughout the world, and the Eighth Amendment’s
9

Case: 4:20-cv-00794-JG Doc #: 98-1 Filed: 05/29/20 10 of 15. PageID #: 1176
deliberate-indifference standard does not license a court to second-guess prison officials’ policy judgments in response. See Thornburgh v. Abbott, 490 U.S. 401, 407-408 (1989) (courts must provide “considerable deference” to prison administrators given their “expertise,” and “the judiciary is ‘ill equipped’ to deal with the difficult and delicate problems of prison management”). BOP has not been even arguably “deliberately indifferent” to the evolving COVID-19 pandemic. To the contrary, officials have deliberately confronted the risks posed by this public-health crisis. (Dees Decl., ECF No 10-1 PageID ## 174-84 at ¶¶ 6, 12, 19-22. 45-50, 54.)
In its May 19 order, the Court concluded that BOP’s efforts were insufficient and criticized the pace of mass testing BOP had begun to undertake. (Order, ECF No. 85 PageID # 1124.) In fact, BOP has made substantial progress fighting the virus. (Burnside Decl. at ¶ 9, Ex. A; see also, Dees Decl., ECF No. 58-1 PageID ## 788-89.)
In any event, the record does not support a finding of an Eighth Amendment violation: nothing in the record suggests that BOP officials subjectively doubted that their extensive efforts, which track CDC guidance, were a reasonable and appropriate response to the threat posed by COVID-19; and these extensive efforts take into account the practical constraints facing officials trying to run a prison. Numerous courts of appeals have been staying orders like the orders in this case finding that district courts should not assume the role of prison administrator. See, e.g., Valentine v. Collier, 956 F.3d 797, 802 (5th Cir. 2020) (per curiam), mot. to vacate stay denied, No. 19A1034, 2020 WL 2497541 (U.S. May 14, 2020); Swain v. Junior, 958 F.3d 1081 (11th Cir. 2020); Marlowe v. LeBlanc, No. 20-30276, 2020 WL 2043425 (5th Cir. Apr. 27, 2020); see also Roman v. Wolf, No. 20-55436, 2020 WL 2188048 (9th Cir. May 5, 2020).
At minimum, transfer to home confinement is an improper remedy for any alleged Eighth
10

Case: 4:20-cv-00794-JG Doc #: 98-1 Filed: 05/29/20 11 of 15. PageID #: 1177
Amendment violation. Because Petitioners challenge the conditions of their confinement, the only potential relief would be improvement in the conditions at Elkton or, if absolutely necessary, transfer to another facility. If those remedies are available—and they are—there is no basis to mandate home confinement.
C. The Court Improperly Conditionally Certified the Subclass The Respondents are further likely to succeed on the merits because the “conditional class” of more than 800 additional inmates is improper under Federal Rule of Civil Procedure 23(b)(2). The subclass does not satisfy Rule 23’s commonality and typicality requirements— neither the merits nor the requested relief is susceptible to classwide disposition. And although this Court has stated that “the defining characteristic” of mandatory class actions under Rule 23(b)(2) “is the homogeneity of the interests of the members of the class,” Reeb v. Ohio Dep’t of Rehab. & Corr., 435 F.3d 639, 649 (6th Cir. 2006), the interests of the subclass here are anything but homogeneous, as underscored by the individualized evaluation that the preliminary injunction requires, as well as the futile attempt numerous inmates have made to “opt out” of the relief ordered by the Court. II. THE BALANCE OF EQUITIES WARRANT A STAY Harms to BOP and to the public interest “merge,” Nken, 556 U.S. at 435, and if the orders are not stayed, they will continue to inflict irreparable harm on BOP, other BOP inmates, and the public. To begin, the April 22 and May 19 orders usurp BOP’s statutory authority to designate appropriate placements for every inmate, see 18 U.S.C. § 3621(b). As the Supreme Court has recognized, “irreparable harm” occurs when the government “is enjoined by a court from effectuating statutes enacted by representatives of its people.” Maryland v. King, 133 S. Ct. 1, 3
11

Case: 4:20-cv-00794-JG Doc #: 98-1 Filed: 05/29/20 12 of 15. PageID #: 1178
(2012). Here, duly enacted statutes give BOP unreviewable discretion to determine where inmates should be placed, 18 U.S.C. § 3621, and to determine (according to the Attorney General’s guidance) when it is appropriate to place a particular inmate in home confinement.
Section 3621 reflects the self-evident point that expertise to run a prison lies with BOP— not an individual federal judge. The Supreme Court has emphasized: “[i]t is well settled that the decision where to house inmates is at the core of prison administrators’ expertise.” McKune v. Lile, 536 U.S. 24, 39 (2002). The Supreme Court has instructed courts to provide “considerable deference” to prison administrators in light of that “expertise” and cautioned that “the judiciary is ill equipped to deal with the difficult and delicate problems of prison management.” Thornburgh, 490 U.S. at 407-08.
The Court’s May 19 order runs afoul of these principles by requiring that BOP move numerous inmates to home confinement under criteria of the Court’s creation that depart from BOP’s expert-driven, public-safety judgments. The April 22 order likewise mandates that BOP transfer hundreds of inmates to other institutions, notwithstanding BOP’s unreviewable determinations under section 3621 that Elkton is the facility best suited for them. This harm is alone sufficient to justify a stay.
Even if this were not the case, the orders impose several additional irreparable harms on the public, inmates, and BOP. The public may be harmed in at least two ways. First, it may be exposed to additional public safety risks if BOP is forced to place inmates in home confinement that have not been deemed appropriate. Although public safety is a key consideration in BOP’s analysis of home confinement eligibility, see, e.g., Hurwitz Decl. at ¶ 6., the Court’s order requires BOP to “disregard” some of the key factors that might indicate that an inmate poses a threat to public safety, such as the fact that he has a history of violent offenses. (Order, ECF No.
12

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85 PageID # 1129.) Second, BOP has explained that there is a risk that COVID-19 may be transmitted to new areas if inmate transfers occur. (Matevousian Decl. at ¶ 14.)
Inmates, too, may be harmed. Transfers could inadvertently spread COVID-19 to new facilities, despite BOP’s best efforts to the contrary. Class members also may be placed in new facilities that do not suit their needs as well as Elkton. To determine the correct placement for a particular inmate, BOP carefully weighs numerous statutory factors, designed to ensure that each inmate is incarcerated in a location that will maximize public safety and inmate wellbeing. See 18 U.S.C. § 3621(b). BOP can, for example, ensure that an inmate who needs sex-offense or drug-rehabilitation programs be placed at a facility that has them, a reasonable distance from his home, at an appropriate security level, and with available space. (Declaration of Shannon Robbins (“Robbins Decl.”) attached as Exhibit D, at ¶¶ 42-45.) Overriding BOP’s careful inmate placement decisions for the subclass thus threatens inmates’ well-being. (Matevousian Decl. at ¶¶ 12-13 (citing inmates’ security and mental health concerns).) Indeed, when all Elkton inmates were surveyed about their desire to participate in this class-action suit, over 900 inmates responded, and more than 100 inmates specifically indicated that they did not wish to be transferred from Elkton; yet they remain covered by the Court’s injunctive orders, which provide no formal opt-out mechanism (and which cannot do so due to the injunctive-relief-only mandatory nature of the class). Fed. R. Civ. P. 23(b)(2); see also (Respondents’ Opposition to Petitioners’ Emergency Motion to Circulate Notice, ECF No. 60 PageID # 846-847.)
In addition, BOP has been diverted from full implementation of its strategic plan and forced to devote tremendous resources to comply with the Court’s numerous orders requiring status reports on everything from the daily number of tests to the precise nature of inmate separation within the facility. And these orders are in addition to the Court’s mandate to transfer
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800 inmates, which is forcing BOP to reallocate resources it would otherwise use to move the thousands of inmates it has a statutory mandate to receive from custody of the U.S. Marshal’s Service to allow inmates to begin serving their sentences. 18 U.S.C. § 4042; (Robbins Decl. at ¶ 38.)
These harms are irreparable if the Court’s orders are not stayed. Some inmates will have been inappropriately placed in the community through home confinement; inmates will have been moved from their statutorily designated locations, perhaps to higher security institutions; COVID-19 will have potentially spread; inmate treatment programs will have been interrupted; and BOP will have diverted its resources to effectuate judicial orders rather than its strategic response plan for COVID-19.
Moreover, this Court’s Orders ignore the improving condition at Elkton. (Order, ECF No. 22 PageID # 368.) But, even when the Court issued the April 22 order, inmate hospitalizations for COVID-19 had sharply decreased. (Opp’n to Mot. to Enforce, ECF No. 58 PageID #752.) From April 12 to May 2, only four inmates were hospitalized for COVID-19related illnesses, and since May 2, no other Elkton inmate has been hospitalized for COVID-19related illnesses. (Burnside Decl. at ¶ 9.) Moreover, although nine inmates have died from COVID-19, each death resulted from an infection that occurred before April 6. (Id. at ¶ 8.) There have been no deaths based on infections occurring since the district court entered its April 22 Order. Although mass testing at Elkton has revealed the extent of COVID-19 at the facility, BOP has made significant process containing COVID-19 and mitigating the risks.
CONCLUSION For the foregoing reasons, Respondents respectfully urge this Court to stay its May 19 and April 22 orders pending appeal.
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Respectfully submitted, JUSTIN E. HERDMAN United States Attorney By: /s/ James R. Bennett II James R. Bennett II (OH #0071663) Sara DeCaro (OH #0072485) David M. DeVito (CA #243695) Assistant United States Attorneys United States Court House 801 West Superior Ave., Suite 400 Cleveland, Ohio 44113 216-622-3988 - Bennett 216-522-4982 - Fax James.Bennett4@usdoj.gov Sara.DeCaro@usdoj.gov David.DeVito@usdoj.gov Attorneys for Respondents
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GOVERNMENT EXHIBIT
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Inmates sent to Local Hospital for COVID-19
10 9 8 7 6 5 4 3 2 1 0
GOVERNMENT EXHIBIT
AA

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

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Inmates at Local Hospital
50 45 40 35 30 25 20 15 10
5 0

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

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Inmate Deaths
4 3 2 1 0

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Intubations

18 17 17 17 17 17 17
16 16

14 14

14 14

12 12
9 7 66

12 11 10 10 10 10 10
888888888 77 6666666 55555 444444444

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Staff Confirmed Positive COVID-19
Staff Confirmed Positive
49 49 49 49 49 49 49 49 50 50 50 50 50 50 50 50 50 50 50 50 50 50 50 50 50 50 50 50 50 51 51 51 51 5151 46 46 46 47 36 37 37 38 33 30 22 13 14 14 10 10 11 77 2233

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Inmates in Isolation
140 120 100
80 60 40 20
0

FCI

FSL

**Increase in number of inmates in isolation due to mass testing results

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GOVERNMENT EXHIBIT
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t@fficr of t~e Attarnel! ~rneral
llllns~ingfon,1B. QI. 20.5-30
April 3, 2020

MEMORANDUM FOR DIRECTOR OF BUREAU OF PRISONS

FROM: SUBJECT:

THEATTORNEYGENERAW~
Increasing Use ofHome Confinement at Institutions Most Affected by COVID-1 9

The mission of BOP is to administer the lawful punishments that our justice system imposes. Executing that mission imposes on us a profound obligation to protect the health and safety ofall inmates.
Last week, I directed the Bureau of Prisons to prioritize the use of home confinement as a tool for combatting the dangers that COVID-19 poses to our vulnerable inmates, while ensuring we successfully discharge our duty to protect the public. I applaud the substantial steps you have already taken on that front with respect to the vulnerable inmates who qualified for home confinement under the pre-CARES Act standards.
As you know, we are experiencing significant levels of infection at several ofour facilities, including FCI Oakdale, FCI Danbury, and FCI Elkton. We have to move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of these institutions. I would like you to give priority to these institutions, and others similarly affected, as you continue to process the remaining inmates who are eligible for home confinement under pre-CARES Act standards. In addition, the CARES Act now authorizes me to expand the cohort of inmates who can be considered for home release upon my finding that emergency conditions are materially affecting the functioning of the Bureau of Prisons. I hereby make that finding and direct that, as detailed below, you give priority in implementing these new standards to the most vulnerable inmates at the most affected facilities, consistent.with the guidance below.
I. IMMEDIATELY MAXIMIZE APPROPRIATE TRANSFERS TO HOME CONFINEMENT OF ALL APPROPRIATE INMATES HELD AT FCI OAKDALE, FCI DANBURY, FCI ELKTON, AND AT OTHER SIMILARLY SITUATED BOP FACILITIES WHERE COVID-19 IS MATERIALLY AFFECTING OPERATIONS
GOVERNMENT EXHIBIT
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Memorandum from the Attorney General

Page 2

Subject: Increasing Use of Home Confinement at Institutions Most Affected by COVID-19

While BOP has taken extensive precautions to prevent COVID-19 from entering its facilities and infecting our inmates, those precautions, like any precautions, have not been perfectly successful at all institutions. I am therefore directing you to immediately review all inmates who have COVID-19 risk factors, as established by the CDC, starting with the inmates incarcerated at FCI Oakdale, FCI Danbury, FCI Elkton, and similarly situated facilities where you determine that COVID-19 is materially affecting operations. You should begin implementing this directive immediately at the facilities I have specifically identified and any other facilities facing similarly serious problems. And now that I have exercised my authority under the CARES Act, your review should include all at-risk inmates- not only those who were previously eligible for transfer.
For all inmates whom you deem suitable candidates for home confinement, you are directed to immediately process them for transfer and then immediately transfer them following a 14-day quarantine at an appropriate BOP facility, or, in appropriate cases subject to your case-bycase discretion, in the residence to which the inmate is being transferred. It is vital that we not inadvertently contribute to the spread of COVID-19 by transferring inmates from our facilities. Your assessment of these inmates should thus be guided by the factors in my March 26 Memorandum, understanding, though, that inmates with a suitable confinement plan will generally be appropriate candidates for home confinement rather than continued detention at institutions in which COVID-19 is materially affecting their operations.
I also recognize that BOP has limited resources to monitor inmates on home confinement and that the U.S. Probation Office is unable to monitor large numbers of inmates in the community. I therefore authorize BOP to transfer inmates to home confinement even if electronic monitoring is not available, so long as BOP determines in every such instance that doing so is appropriate and consistent with our obligation to protect public safety.
Given the speed with which this disease has spread through the general public, it is clear that time is of the essence. Please implement this Memorandum as quickly as possible and keep me closely apprised of your progress.
II. PROTECTING THE PUBLIC
While we have a solemn obligation to protect the people in BOP custody, we also have an obligation to protect the public. That means we cannot simply release prison populations en masse onto the streets. Doing so would pose profound risks to the public from released prisoners engaging in additional criminal activity, potentially including violence or heinous sex offenses.
That risk is particularly acute as we combat the current pandemic. Police forces are facing the same daunting challenges in protecting the p1;1blic that we face in protecting our inmates. It is impossible to engage in social distancing, hand washing, and other recommend steps in the middle of arresting a violent criminal. It is thus no surprise that many of our police officers have fallen ill with COVID-19, with some even dying in the line of duty from the disease. This pandemic has dramatically increased the already substantial risks facing the men and women who keep us safe, at the same time that it has winnowed their ranks while officers recover from getting sick, or selfquarantine to avoid possibly spreading the disease.

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Memorandum from the Attorney General

Page 3

Subject: Increasing Use of Home Confinement at Institutions Most Affected by COVID-19

The last thing our massively over-burdened police forces need right now is the indiscriminate release of thousands ofprisoners onto the streets without any verification that those prisoners will follow the laws when they are released, that they have a safe place to go where they will not be mingling with their old criminal associates, and that they will not return to their old ways as soon as they walk through the prison gates. Thus, while I am directing you to maximize the use of home confinement at affected institutions, it is essential that you continue making the careful, individualized determinations BOP makes in the typical case. Each inmate is unique and each requires the same individualized determinations we have always made in this context.
I believe strongly that we should do everything we can to protect the inmates in our care, but that we must do so in a careful and individualized way that remains faithful to our duty to protect the public and the law enforcement officers who protect us all.

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

WILSON, ET AL,

*

*

Petitioners

*

CASE NO. 4:20-CV-00794

*

v.

*

*

WILLIAMS, ET AL,

*

JUDGE GWIN

*

Respondents

*

______________________________________________________________________________

DECLARATION OF HUGH J. HURWITZ

I, Hugh J. Hurwitz, do hereby declare, certify and state as follows:

1. I am currently employed by the Federal Bureau of Prisons (BOP) of the United States Department of Justice, as Assistant Director of the Reentry Services Division of the BOP. Throughout this declaration, when I refer to “FCI Elkton” generally, I am referring to both of the

FCI Elkton institutions, the Federal Correctional Institution (FCI) and the Federal Satellite Low (FSL).
2. The Reentry Services Division (RSD) provides the primary coordination for the

BOP’s reentry efforts to assist inmates in preparation for a successful return to their communities. RSD is comprised of the following branches: National Reentry Affairs, Chaplaincy Services, Education Services, Women and Special Populations, Psychology Services,

and Residential Reentry Management. The branches within RSD work with other disciplines, agencies, and organizations to develop programs, resources, and activities designed to facilitation the successful reintegration of inmates into their communities upon release. RSD’s mission is to

enhance oversight and direction for the critical area of reentry. As Assistant Director of RSD, I

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oversee the Division’s branches and mission, and I am the primary coordinator for the BOP’s reentry efforts.
3. I have been asked to discuss the process by which the BOP assesses inmates for home confinement.
The BOP’s Authority to Place Inmates on Home Confinement 4. The BOP’s statutory authority to transfer prisoners to home confinement rests in 18 U.S.C. § 3624(c)(2) and 34 U.S.C. § 60541. The BOP’s policy and procedures regarding home confinement are outlined in BOP Program Statement 7320.01, Home Confinement and BOP Operations Memorandum, Home Confinement under the First Step Act, both of which are available on www.bop.gov via the Resources tab. Both statutes set forth certain limitations with respect to the BOP’s transfer authority. See 18 U.S.C. § 3624(c)(2) and 34 U.S.C. § 60541. However, pursuant to the Attorney General’s directives in light of the COVID-19 pandemic, dated March 26, 2020, and April 3, 2020, infra, and given the surge in positive cases at select sites, the BOP began immediately reviewing all inmates who have COVID-19 risk factors, as described by the Centers for Disease Control and Prevention (CDC), to determine which inmates are suitable for home confinement. Since the release of the Attorney General’s original memorandum dated March 26, 2020, the BOP is prioritizing transfers to home confinement of all suitable inmates as an appropriate response to the COVID-19 pandemic. The Attorney General’s Memorandum for the Director of the Bureau of Prisons,
dated March 26, 2020 5. On March 26, 2020, the Attorney General issued a Memorandum for the Director of the Bureau of Prisons (the March 26, 2020 Memorandum) to ensure that, in light of the COVID19 pandemic, BOP utilizes home confinement, where appropriate, to protect the health and safety
2

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of BOP personnel and people in BOP’s custody. Pursuant to the March 26, 2020 Memorandum, BOP is prioritizing the use of its statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic. It was noted in the March 26, 2020 Memorandum that many inmates will be safer in BOP facilities where the population is controlled and there is ready access to doctors and medical care. But for some eligible inmates, home confinement might be more effective in protecting their health.
6. In assessing whether home confinement should be granted pursuant to the March 26, 2020 Memorandum, the BOP considers the totality of circumstances for each individual inmate, the statutory requirements for home confinement, and the following non-exhaustive list of discretionary factors:
a. The age and vulnerability of the inmate to COVID-19, in accordance with the CDC guidelines;
b. The security level of the facility currently holding the inmate, with priority given to inmates residing in low and minimum security facilities;
c. The inmate’s conduct in prison, with inmates who have engaged in violent or gang-related activity in prison or who have incurred a BOP violation within the last year not receiving priority treatment;
d. The inmate’s score under PATTERN (the Prisoner Assessment Tool Targeting Estimated Risk and Need), with inmates who have anything above a minimum score not receiving priority treatment;
e. Whether the inmate has a demonstrated and verifiable re-entry plan that will prevent recidivism and maximize public safety, including verification that the conditions under which the inmate would be confined upon release would present
3

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a lower risk of contracting COVID-19 than the inmate would face in his or her BOP facility; f. The inmate’s crime of conviction, and assessment of the danger posed by the inmate to the community. Some offenses, such as sex offenses, will render an inmate ineligible for home confinement. Other serious offenses weigh heavily against consideration for home confinement. 7. In addition to setting forth these factors, the March 26, 2020 Memorandum stated that before granting any inmate discretionary release, the BOP Medical Director, or someone he designates, will, based on CDC guidance, make an assessment of the inmate’s risk factors for severe COVID-19 illness, risks of COVID-19 at the inmate’s prison facility, as well as the risk of COVID-19 at the location in which the inmate seeks home confinement. The BOP will not grant home confinement to inmates when doing so is likely to increase their risk of contracting COVID-19. The BOP will grant home confinement only when it has determined -- based on the totality of circumstances for each individual inmate -- that transfer to home confinement is likely not to increase the inmate’s risk of contracting COVID-19. 8. Moreover, the March 26, 2020 Memorandum noted that for the protection of the public, any inmate to whom BOP grants home confinement is to be placed in a mandatory 14day quarantine before that inmate is discharged from a BOP facility to home confinement. Inmates transferred to home confinement under this prioritized process are also subject to location monitoring devices and, where a court order is entered, are subject to supervised release. /// ///
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The CARES Act and the Attorney General’s Memorandum for the Director of the Bureau of Prisons, dated April 3, 2020 9. The Coronavirus Aid, Relief, and Economic Security (CARES) Act, Public Law No. 116-236 (enacted March 27, 2020), authorizes the Attorney General to expand the cohort of inmates who can be considered for home confinement upon his finding of emergency conditions which are materially affecting the function of the BOP. On April 3, 2020, the Attorney General made that finding, and in a Memorandum for the Director of the Bureau of Prisons (April 3, 2020 Memorandum), authorized the Director to immediately maximize appropriate transfers to home confinement of all appropriate inmates held at BOP facilities where the Director determines that COVID-19 is materially affecting operations. 10. The April 3, 2020 Memorandum specifically stated that the BOP must move with dispatch in using home confinement, where appropriate, to move vulnerable inmates out of FCI Oakdale, FCI Danbury, and FCI Elkton, and to give priority to those institutions, and others similarly affected, as the BOP continues to process the remaining inmates who are eligible for home confinement under pre-CARES Act standards. 11. The April 3, 2020 Memorandum directed that the BOP give priority in implementing the new standards to the most vulnerable inmates at the most affected facilities and was explicit that the BOP should begin implementing this directive immediately at the identified facilities and any other facilities at risk of similar problems. The April 3, 2020 Memorandum stated that the review should include 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. The assessment of all inmates remains guided by the factors in the March 26, 2020 Memorandum.
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12. For inmates deemed suitable candidates for home confinement, the April 3, 2020 Memorandum directed the BOP to immediately process these inmates for transfer and then immediately transfer them following a 14-day quarantine at an appropriate BOP facility. The April 3, 2020 Memorandum further authorized BOP to, in appropriate cases, require that the inmate being transferred undergo his or her 14-day quarantine in the residence to which the inmate is being transferred rather than in the BOP facility from which the inmate is being transferred.
13. The April 3, 2020 Memorandum also recognized that the BOP has limited resources to monitor inmates on home confinement and that the U.S. Probation Office is unable to monitor large number of inmates in the community, and authorized the BOP to transfer inmates to home confinement even if electronic monitoring is not available, so long as it determines in every instance that doing so is appropriate and consistent with the obligation to protect public safety.
14. Lastly, the April 3, 2020 Memorandum stated that it is essential for the BOP to continue making determinations for home confinement in a careful and individualized way that remains faithful to the duty of protecting the public and law enforcement officers.
The BOP’s Implementation of the March 26, 2020 and the April 3, 2020 Memoranda
15. The BOP is devoting all available resources to executing the Attorney General’s directives, with such resources tailored and prioritized according to the needs of individual institutions across the country. The BOP is assessing the inmate population to determine which inmates would be appropriate for transfer under this priority program. The BOP is then processing those inmates for transfer as expeditiously as possible.
6

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16. The BOP is also frequently updating its public website to provide information and responses to frequently asked questions regarding its response to the COVID-19 pandemic, including providing information regarding its implementation of the Attorney General’s directives.
17. As of May 27, 2020, the BOP has increased home confinement by over 112% since March 2020, and is continuing to aggressively screen inmates for home confinement. 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 3,183 inmates on home confinement. See www.bop.gov.
18. Inmates do not need to apply to be considered for home confinement. BOP Case Management staff are urgently reviewing all inmates to determine which ones meet the criteria established by the Attorney General. While all inmates are being reviewed for suitability for home confinement, any inmate who believes he or she is eligible may request to be referred to home confinement and provide a release plan to his or her Case Manager.
19. It should be noted that for public safety reasons, in accordance with the March 26, 2020 Memorandum, and to ensure the BOP is deploying its limited resources in the most effective manner, the BOP is currently assessing a number of factors to ensure that an inmate is suitable for home confinement including, but not limited to, reviewing the inmate’s institutional discipline history for the last twelve months; ensuring that the inmate has a verifiable release plan; verifying that the inmate’s primary offense is not violent, a sex offense, or terrorism related; and confirming the inmate does not have a current detainer.
20. In addition, and in order to prioritize its limited resources, the BOP has generally prioritized for home confinement those inmates who have served a certain portion of their
7

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sentences, or who have only a relatively short amount of time remaining in those sentences. While these priority factors are subject to deviation in BOP’s discretion in certain circumstances and are subject to revision as the situation progresses, 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. 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.
21. I, along with Andre Matevousian, Acting Assistant Director, Correctional Programs Division, issued a Memorandum for BOP Chief Executive Officers on May 8, 2020 (BOP May 8, 2020 Memorandum), to provide additional insight regarding the implementation of the Attorney General’s directives regarding home confinement. The BOP May 8, 2020 Memorandum stated, among other things, that in accordance with the March 26, 2020 memorandum and to ensure that the BOP is deploying its limited resources in the most effective manner, the following factors must be assessed to ensure inmates are suitable for home confinement:
a. Reviewing the inmate’s institutional discipline history for the last twelve months (Inmates who have received a 300 or 400 series incident report in the past 12 months may be referred for placement on Home Confinement, if in the Warden’s judgment such placement does not create an undue risk to the community.)
b. Ensure the inmate has a verifiable release plan; c. Verifying the inmate’s primary offense is not violent, a sex offense, or terrorism
related;
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Case: 4:20-cv-00794-JG Doc #: 98-7 Filed: 05/29/20 9 of 12. PageID #: 1217
d. Confirming the inmate does not have a current detainer; e. Priority should be given to inmates residing in Low and Minimum security
facilities; f. Inmates who have anything above a Minimum PATTERN score not receiving
priority treatment; g. And the age and vulnerability of the inmate to COVID-19, in accordance with the
CDC guidelines. 22. The BOP May 8, 2020 Memorandum also noted that if the Warden determined that there is a need to refer an inmate for placement in the community due to COVID-19 risk factors who is outside of the above-listed criteria, then the Warden should forward the home confinement referral to the Correctional Programs Division in Central Office for further review. 23. It should be noted that no single one of the factors noted in this declaration will automatically disqualify an inmate for home confinement. The fact that an inmate’s primary offense was violent, a sex offense, or terrorism related, or that the inmate has a current detainer, would not necessarily be disqualifying; however, the BOP will not deviate from any of these four factors except in the rarest circumstances. The BOP retains discretion to deviate from any factor where appropriate to maximize home confinement placements taking into account public safety and the totality of the circumstances.
The BOP’s Central Office Home Confinement Review Committee 24. As mentioned above, if the Warden determines a need to refer an inmate for home confinement and that inmate does not meet the Attorney General’s and the BOP’s above-outlined criteria, the Warden may refer to the BOP’s Correctional Programs Division in Central Office to be further reviewed for home confinement placement. This additional review is conducted by
9

Case: 4:20-cv-00794-JG Doc #: 98-7 Filed: 05/29/20 10 of 12. PageID #: 1218
the BOP’s Central Office Home Confinement Review Committee (the Committee). The Committee is comprised of BOP officials from various BOP Central Office Divisions and disciplines.
25. As of May 13, 2020, before the Committee gives final approval for an inmate to be placed on home confinement, who does not meet the criteria outlined by the Attorney General, the BOP Correctional Programs Division provides notice of its consideration to the United States Attorney’s Office that prosecuted the inmate. In so doing, the United States Attorney’s Office is given an opportunity to provide additional information, including information from victims, which might be relevant to the decisional process. The United States Attorney’s Office then has three business days to provide any additional information to the BOP. The BOP retains full discretion to make the decision with or without this input based on a flexible consideration of the criteria and the totality of the circumstances, including the risks associated with COVID-19 virus. The notification requirement will not be applied to inmates approved for home confinement prior to this requirement’s adoption on May 13, 2020.
26. As mentioned earlier in this declaration, the BOP is devoting all available resources to faithfully executing the Attorney General's directives. As such, BOP institution staff have been charged with conducting the home confinement assessments for the inmates located at that institution utilizing the Attorney General's directives and BOP guidance to determine which inmates are suitable for home confinement. This allows the BOP to tailor their resources according to the needs of the individual institutions across the county and to conduct the home confinement assessments as expeditiously as possible. The Committee then reviews those cases that have been referred by the institutions' Wardens, based on the reasons stated in paragraph 24, so that the Committee can determine if the individual, despite having deviations from the
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Attorney General's criteria in his or her background, is suitable for home confinement after a multi-disciplinary assessment and additional input from the U.S. Attorney's Office. This entire process ensures that inmates are reviewed for suitability for home confinement in a careful and individualized way that remains faithful to the BOP's duty to protect the public.
Further Assessment of Elkton Inmates by the BOP’s Central Office Home Confinement Review Committee 27. As a result of the above-titled litigation, the Warden of Elkton referred 25 inmates to the Committee. Upon information and belief, the institution’s initial review of these 25 inmates deemed them not suitable for home confinement under the Attorney General’s and BOP’s criteria and guidance based on certain factors which presented themselves during the individualized assessments, including but not limited to, having a low (as opposed to minimum) PATTERN score, having a history of violence, and/or not yet meeting the service of sentence criteria. In order to comply with the Court’s order in the above-titled litigation, the Committee approved 17 of these referred inmates for home confinement placement. In order to comply with the Court’s order in the above-titled litigation, the Committee determined to transfer the other eight inmates to another BOP facility. /// /// /// /// /// ///
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28. On or about May 27, 2020, as a result of the above-titled litigation, FCI Elkton referred another 53 inmates to the Committee. Those inmates are pending review with the Committee.

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

given under penalty of perjury pursuant to 28 U.S.C. § 1746 this 28th day of May, 2020.

RESPECTFULLY SUBMITTED,

HUGH

Digitally signed by HUGH HURWITZ

HURWITZ Date: 2020.05.28 11:03:21
________________-_04_'0_0_' _________

HUGH J. HURWITZ

ASSISTANT DIRECTOR

FEDERAL BUREAU OF PRISONS

WASHINGTON, D.C.

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Case: 4:20-cv-00794-JG Doc #: 98-8 Filed: 05/29/20 1 of 11. PageID #: 1221

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

WILSON, ET AL,

*

*

Petitioners

*

CASE NO. 4:20-CV-00794

*

v.

*

WILLIAMS, ET AL,

* *

JUDGE GWIN

Respondents

*

______________________________________*________________________________________

DECLARATION OF SHANNON ROBBINS I, Shannon Robbins, do hereby make the following declaration: 1. I, Shannon Robbins, am employed by the Federal Bureau of Prisons (BOP) at the Designation and Sentence Computation Center (DSCC) in Grand Prairie, Texas. I have been employed by the Federal Bureau of Prisons (BOP) since 1998. I have been a Section Chief at the DSCC since July 2018 and assumed oversight of the Designations and Transportation Section in January 2020. 2. I currently have overall responsibility for all designation and classification issues, as well as having oversight responsibility of Justice Prisoner and Alien Transportation System (JPATS) and transportation issues. 3. The DSCC is divided into 18 teams of staff, each identified by a name. Seventeen of these teams are organized by sentencing district. Those 17 teams are responsible for all sentence computations and classification of defendants from their sentencing districts.
GOVERNMENT EXHIBIT
D
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4. The remaining team is Hotel Team. The Hotel Team is responsible for initial designations, redesignations, management variable requests, and public safety factor waiver requests. 5. In this position, I have access to official records compiled and maintained by the BOP, including BOP Program Statements, inmate files, and BOP computerized records. 6. Some of the BOP’s computerized records are maintained in a database named SENTRY. SENTRY is a real-time information system consisting of various applications for processing inmate information. Data collected and stored in the SENTRY system includes information related to the classification, discipline, and programs of federal inmates. 7. All records attached to this declaration were made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters. 8. Such records were kept in the course of a regularly conducted business activity of the BOP and/or the DSCC. 9. Such records were made by the BOP and/or the DSCC as a regular practice.
THE BOP’S DESIGNATION AUTHORITY UNDER 18 U.S.C. §3621(b) 10. Attachment A to this declaration is a true and correct copy of BOP Program Statement 5100.08, Inmate Security Designation and Custody Classification (the “Program Statement”). 11. The BOP issued the Program Statement to provide guidance to staff on how to apply Title 18 United States Code (U.S.C.) § 3621(b), which states in pertinent part:
The Bureau of Prisons shall designate the place of the prisoner’s imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering–
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(1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence – (A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or correctional facility as appropriate; and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28. See 18 U.S.C. § 3621(b) (Emphasis added).
OVERVIEW OF THE BOP’S DESIGNATION PROCESS 12. The BOP created the DSCC to centralize all determinations regarding inmate sentence computations and institution placements. 13. Decisions regarding initial institution placements are referred to as designations. 14. Once a defendant is sentenced to a federal term of imprisonment, staff of the United States Probation Office (USPO) upload documents to an electronic system known as eDesignate. For cases involving original sentencing to a term of imprisonment, these documents typically include the Judgement in a Criminal Case and the Presentence Investigation Report (PSR). For cases involving sentencing to a term of imprisonment based upon revocation of a term of supervised release, these documents typically include the order by which the court revoked supervised release and imposed a term of imprisonment, along with the revocation petition, which BOP staff also refer to as the violation report. 15. Once USPO staff have uploaded the relevant documents, the case is transferred in eDesignate to the United States Marshals Service (USMS). Typically, USMS staff then upload a copy of the defendant’s USM-129, Individual Custody/Detention Report, to eDesignate and then use eDesignate to transfer the case to the BOP to request that the DSCC either provide a release date for the defendant (in cases where the defendant received a short sentence and there is not
3

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sufficient time to transport him to a facility before his release date) or designate the defendant to a facility to serve the term of imprisonment. 16. Once a case has been transferred from the USMS to the BOP, staff of the DSCC team assigned to the defendant’s sentencing district will open the case and begin the designation process. When the process has been completed, DSCC staff respond to the USMS request through eDesignate, usually by notifying the USMS where the inmate will serve the term of imprisonment. The USMS then transports the inmate to the designated facility or, if the defendant has been allowed to voluntarily surrender, the USMS will notify the defendant of the facility at which he must appear on the scheduled date.
FACTORS IN THE DESIGNATION PROCESS 17. When making decisions about inmate designations, the BOP follows the guidance contained in the Program Statement which provides:
This Program Statement provides policy and procedure regarding the Bureau of Prisons inmate classification system. The classification of inmates is necessary to place each inmate in the most appropriate security level institution that also meets their program needs and is consistent with the Bureau’s mission to protect society. The Bureau’s classification, designation and redesignation procedures are consistent with the statutory authority contained in 18 U.S.C. § 3621(b). All classification, designation and redesignation decisions are made without favoritism given to an inmate’s social or economic status. Attachment A, PS 5100.08 at page 1. 18. Consistent with the Program Statement, DSCC staff on the team assigned to the defendant’s sentencing district consider the following primary factors when making a designation decision: (1) the level of security and supervision the inmate requires; (2) the level of security and staff supervision the institution is able to provide; and (3) the inmate’s program needs. Attachment A, PS 5100.08 at Chapter 1, page 1. 19. DSCC staff also consider additional factors including, but not limited to:
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● The inmate’s release residence; ● The level of overcrowding at an institution; ● Any security, location or program recommendation made by the
sentencing court; ● Any Central Inmate Monitoring issues (see Program Statement Central
Inmate Monitoring Program); ● Any additional security measures to ensure the protection of
victims/witnesses and the public in general; and, ● Any other factor(s) which may involve the inmate’s confinement; the
protection of society; and/or the safe and orderly management of a BOP facility. Attachment A, PS 5100.08 at Chapter 1, pages 1-2. 20. The designation process involves two parts. First, DSCC staff on the team responsible for the inmate’s sentencing district classify the inmate according to a security level (minimum, low, medium or high) and assign the inmate a custody level (community, out, in, or maximum). Second, DSCC staff on Hotel Team designate the inmate to a particular facility commensurate with their security level and custody level and the factors identified in paragraphs 18, 19, and 42 to 45. 21. An inmate’s security level represents the level of security the inmate requires. It is based on the Criminal History Points as noted in the Presentence Investigation Report, and, if these points are contested, as ruled upon by the Court in the Statement of Reasons. The BOP has created Public Safety Factors and Management Variables which may adjust the inmate’s security level up or down depending on the BOP’s professional judgment. Attachment A, PS 5100.08 at Chapter 5. 22. An inmate’s custody classification represents the amount of staff supervision the inmate requires. It is tied to an inmate’s security level. Attachment A, PS 5100.08 at Chapter 1, page 2 and Chapter 2, page 2.
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23. BOP facilities are identified as follows: Minimum security institutions, also known as Federal Prison Camps (FPCs), have dormitory housing, a relatively low staff-to-inmate ratio, and limited or no perimeter fencing. These institutions are work- and program-oriented. A number of BOP institutions have a small, minimum security camp adjacent to the main facility. These camps, often referred to as Satellite Prison Camps (SCPs), provide inmate labor to the main institution and to off-site work programs. 24. Low security Federal Correctional Institutions (FCIs) have double-fenced perimeters, mostly dormitory or cubicle housing, and strong work and program components. The staff-toinmate ratio in these institutions is higher than in minimum security facilities. 25. Medium security FCIs (and USPs designated to house medium security inmates) have strengthened perimeters (often double fences with electronic detection systems), mostly cell-type housing, a wide variety of work and treatment programs, an even higher staff-to-inmate ratio than low security FCIs, and even greater internal controls. 26. High security institutions, also known as United States Penitentiaries (USPs), have highly secured perimeters (featuring walls or reinforced fences), multiple- and single-occupant cell housing, the highest staff-to-inmate ratio, and close control of inmate movement. 27. Administrative facilities are institutions with special missions, such as the detention of pretrial offenders; the treatment of inmates with serious or chronic medical problems; or the containment of extremely dangerous, violent, or escape-prone inmates. Administrative facilities include Metropolitan Correctional Centers (MCCs),Metropolitan Detention Centers (MDCs), Federal Detention Centers (FDCs), Federal Medical Centers (FMCs),the Federal Transfer Center (FTC), the Medical Center for Federal Prisoners (MCFP), and the Administrative-Maximum
6

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Security Penitentiary (ADX). Administrative facilities, except the ADX, are capable of holding inmates in all security categories.
THE REDESIGNATION PROCESS 28. Under some circumstances, the BOP may transfer an inmate to a different institution following initial designation. This is referred to as a redesignation. Reasons for requesting redesignation include, but are not limited to, disciplinary or closer supervision reasons, institution classification reasons, institution adjustment reasons, medical/psychological reasons, programming or training reasons, or because an inmate is nearing release. Attachment A, PS 5100.08 at Chapter 7, pages 1-12. 29. If institution staff believe an inmate is no longer appropriate for his current institution based on any of the factors identified in Chapter 7 of the Program Statement, they submit a redesignation request to the DSCC. Ordinarily, the DSCC will decide whether to grant or deny the request. DSCC staff will consider redesignation requests using the same factors outlined in paragraphs 18, 19, and 42 to 45. In deciding whether to grant or deny a redesignation request, DSCC staff also carefully review the inmate’s institutional adjustment and program performance. Attachment A, PS 5100.08 at Chapter 1, page 3 and Chapter 7. 30. If the request is granted, the DSCC will designate the inmate to another facility. If the request is denied, the inmate will remain at the same facility.
PRELIMINARY INJUNCTION 31. I am aware the BOP has been ordered by the Court in Wilson, et al. v. Williams, et al., No. 4:20-cv-00794 (N.D. Ohio Apr. 22, 2020), to create a list of inmates at FCI Elkton identified by the CDC as being at higher risk of complications from COVID-19.
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32. I further understand that BOP has been ordered to evaluate each inmate that is identified for transfer out of FCI Elkton through any means, including but, not limited to, compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough within two weeks. 33. I further understand that BOP has been ordered to transfer any identified inmate who is ineligible for compassionate release, home release, parole, or community supervision to another BOP facility. 34. I further understand that BOP has compiled a list of 846 inmates who are over the age 65 and/or have diagnosed medical conditions that are identified by the CDC as making an individual at higher risk of complications from COVID-19. 36. Finally, I understand that inmates transferred from FCI Elkton are to be sent to another BOP facility where measures, such as single-cell placement or social distancing, may be accomplished. 37. In preparation for complying with the Court Order, I am aware that the Correctional Programs Administrator for the Northeast Region developed a plan to transfer these inmates from FCI Elkton beginning on or about June 5, 2020. 38. However, in light of factors external to this litigation, the DSCC has determined that the transfer of these inmates would be managed by the Designations and Transportation Section. This decision was made due to the BOP’s need to move large groups of federal inmates over the next several weeks. Specifically, the BOP and the United States Marshal Service (USMS) agreed that the USMS would begin the transfer of approximately 7,600 new inmates who are currently housed by the USMS in local county and state facilities nationwide to one of the BOP’s three quarantine sites for new inmates or a BOP detention center or jail unit, as well as transfer
8

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approximately 7,000 inmates who are currently housed in BOP facilities awaiting movement to their designated facilities. In addition, the BOP has to find new BOP facilities for 468 inmates who were originally scheduled to be placed at institutions in West Virginia. 39. In order to mitigate the transmission of COVID-19 into the federal prisons system, the BOP has limited internal inmate movement. However, the USMS continues to receive and hold newly sentenced and newly committed inmates in local detention facilities across the country. The BOP and USMS are moving the approximately 15,000 newly committed inmates into BOP custody to alleviate population pressures on the local detention facilities. See Attachment B, U.S. Department of Justice Federal Bureau of Prisons Press Release, Bureau of Prison Announces Update on Inmate Movement, dated May 22, 2020. 40. It should also be noted that these moves have to be scheduled with the cooperation of the USMS, JPATS which is another component of the Department of Justice, but a separate entity from the BOP.1 Additionally, in order to provide for distancing during the course of the transfers, buses will only be able to accommodate 20 inmates per bus and 60 inmates per airlift. This is approximately a 50% decrease of what a transfer would normally be able to accommodate. 41. The Court has ordered that 846 inmates transferred from FCI Elkton be sent to another BOP facility where measures, such as single-cell placement or social distancing, may be accomplished. As previously indicated, the BOP will be moving approximately 15,000 new inmates to various BOP institution over the next several weeks. This movement will impact the amount of single-celled bed space available throughout the BOP’s system.

1

JPATS is responsible for coordinating the transportation of offenders throughout the

country.

9

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42. To designate these 846 inmates from FCI Elkton, the DSCC will consider each prospective institution’s rated capacity and the number of inmates currently assigned to the institution to determine whether there is space to add additional inmates. Ordinarily, the Warden would determine how the available dormitory or cell space is used (single cell, double cell, etc.) to house inmates. In light of the Court’s Order, contact will be made with each institution to ensure the FCI Elkton inmates are placed into single cells. This may result in other inmates at the prospective institution being relocated to different cells or housing units. 43. While the BOP has put in place social distancing measures for the benefit of inmates and staff during the pandemic, an institution’s social distancing measures are highly dependent on the number of inmates and the physical layout of the respective institution. For example, the measures in place at a BOP camp or low security institution would certainly differ from those taken at one of BOP’s medium or maximum security institutions. 44. In addition to bed space capacity and availability of social distancing, the DSCC considers several other factors when re-designating inmates. These include, but are not limited to, programing needs such as the Residential Drug Abuse Program (RDAP) and sex offender treatment programs, location recommendations from the inmate’s sentencing judge, medical and mental health care levels, separation issues, and gang concerns. RDAP and sex offender treatment programs are not available at every BOP institution. RDAP is available at 73 institutions, including FCI Elkton, and sex offender treatment is available at nine institutions, including FCI Elkton. Given the number of USMS inmates who need to be placed and the Court’s restrictions on housing the 846 FCI Elkton inmates, these inmates may not be able to continue participating in RDAP or sex offender treatment programs, thereby causing lapses in and adversely impacting their treatment.
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45. Another factor my office has to consider is the First Step Act of 2018 (FSA). Section 601
of the FSA requires the BOP to place inmate in facilities as close as practicable to their primary
residence, and to the extent practicable, in a facility within 500 driving miles of that residence.
Specifically, the FSA amended 18 U.S.C. § 3621(b) to state: The Bureau of Prisons shall designate the place of the prisoner’s imprisonment, and shall, subject to bed availability, the prisoner’s security designation, the prisoner’s programmatic needs, the prisoner’s mental and medical health needs, any request made by the prisoner related to faith-based needs, recommendations of the sentencing court, and other security concerns of the Bureau of Prisons, place the prisoner in a facility as close as practicable to the prisoner’s primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence. The Bureau shall, subject to consideration of the factors described in the preceding sentence and the prisoner’s preference for staying at his or her current facility or being transferred, transfer prisoners to facilities that are closer to the prisoner’s primary residence even if the prisoner is already in a facility within 500 driving miles of that residence.”
44. All of these factors taken together further limit the number of available options for
transfer.
45. Given the limited availability of single-cell bed space, these inmates will likely have to
be transferred to institutions outside of 500 driving miles of their primary residences, which may
pose additional problems for their families and friends to visit.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and accurate to the best of my knowledge and belief. Executed on this _2_8_ day of May 2020.
____________________________________ Shannon Robbins, Section Chief Designation and Sentence Computation Center Federal Bureau of Prisons Grand Prairie, Texas
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U.S. Department of Justice Federal Bureau of Prisons

CHANGE NOTICE

OPI:

CPD/CPB

NUMBER: 5100.08, CN-1

DATE:

September 4, 2019

Inmate Security Designation and Custody Classification

/s/
Approved: Kathleen Hawk Sawyer Director, Federal Bureau of Prisons

This Change Notice (CN) implements the following changes to Program Statement 5100.08, Inmate Security Designation and Custody Classification, dated September 12, 2006, in light of the FIRST STEP Act.

The highlighted text was added to INTRODUCTION:

The Bureau of Prisons shall designate the place of the prisoner's imprisonment, and shall, subject to bed availability, the prisoner's security designation, the prisoner's programmatic needs, the prisoner's mental and medical health needs, any request made by the prisoner related to faithbased needs, recommendations of the sentencing court, and other security concerns of the Bureau of Prisons, place the prisoner in a facility as close as practicable to the prisoner's primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence.

The highlighted text was added and the deleted text is struck through in Chapter 5, MANAGEMENT VARIABLES AND PUBLIC SAFETY FACTORS:

D

Release Residence. The Bureau of Prisons attempts to place each inmate in an

institution that is reasonably close to the anticipated release area. Ordinarily,

placement within 500 miles of the release area is to be considered reasonable,

regardless of whether there may be an institution closer to the inmate’s release

area. To the extent practicable, placement to the closest facility within 500

driving miles of the release area will be considered reasonable, subject to bed

availability, the prisoner’s security designation, the prisoner’s programmatic

needs, the prisoner’s mental and medical health needs, any request made by the

GOVERNMENT EXHIBIT
DA

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prisoner related to faith-based needs, recommendations of the sentencing court, and other security concerns of the Bureau of Prisons. This MGTV may also apply to inmates who are within 36 months of release.

E

Following are example situations: facility activation; population pressures

affecting available appropriate-level bed space within 500 driving miles of the

inmate’s anticipated release residence; gang/security concerns.

Additionally highlighted text was added and the deleted text is struck through in Chapter 7, Institution Classification Transfers.

2. NEARER RELEASE TRANSFERS (Code 313). Once the inmate has been transferred within 500 driving miles of his or her release residence, no further referrals will be made for nearer release transfer consideration. further referrals can be considered for nearer release transfer consideration subject to bed availability, the prisoner’s security designation, the prisoner’s programmatic needs, the prisoner’s mental and medical health needs, any request made by the prisoner related to faith-based needs, recommendations of the sentencing court, and other security concerns of the Bureau of Prisons.

Case: 4:20-cv-00794-JG Doc #: 98-9 Filed: 05/29/20 3Uo.fS1.10D.ePpaagretImDe#n:t12o3f4 Justice Federal Bureau of Prisons

Program Statement

OPI: NUMBER:
DATE:
SUBJECT:

CPD/CPB P5100.08 9/12/2006
Inmate Security Designation and Custody Classification

1. PURPOSE AND SCOPE. This Program Statement provides policy and procedure regarding the Bureau of Prisons inmate classification system. The classification of inmates is necessary to place each inmate in the most appropriate security level institution that also meets their program needs and is consistent with the Bureau’s mission to protect society.
The Bureau’s classification, designation and redesignation procedures are consistent with the statutory authority contained in 18 U.S.C. § 3621(b). All classification, designation and redesignation decisions are made without favoritism given to an inmate’s social or economic status.
2. PROGRAM OBJECTIVES. The expected results of this Program Statement are:
a. Each inmate will be placed in a facility commensurate with their security and program needs through an objective and consistent system of classification which also allows staff to exercise their professional judgement; and,
b. Staff will systematically and objectively review an inmate’s classification making the environment in which they are housed safer for both inmates and staff while protecting the public from undue risk.
3. SUMMARY OF CHANGES. This revision incorporates Executive Staff decisions 03-04-05 and 99-03-03, as well as other procedural changes such as the movement of most designation/redesignation functions (04-08-17) to the Designation and Sentence Computation Center (DSCC), Grand Prairie, Texas.
a. The scoring item “Type of Prior Commitment” has been replaced with “Criminal History Score.” (Chapter 4, Page 8 and Chapter 6, Page 5)

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P5100.08 9/12/2006
Page 2
b. A new scoring item for inmate “Age” has been added. (Chapter 4, Page 12 and Chapter 6, Page 8)
c. A new scoring item for “Education Level” has been added. (Chapter 4, Page 12 and Chapter 6, Page 8)
d. The “Drug/Alcohol Abuse” scoring item has been added to the BP-337 and has moved from Section C (Custody Scoring) of the BP-338 to Section B (Base Scoring) of the BP-338. (Chapter 4, Page 13 and Chapter 6, Page 9)
e. The “Mental/Psychological Stability” scoring item has been discontinued.
f. The “Responsibility Demonstrated” scoring item has been replaced with “Living Skills” and “Program Participation.” (Chapter 6, Page 10)
g. Instructions for scoring the “Family/Community Ties” scoring item have been clarified. (Chapter 6, Page 13)
h. The floor for the Violent Behavior PSF has been reduced from High to Low Security. (Chapter 5, Page 9)
i. New cutpoints and a new Custody Variance Table have been developed. (Chapter 1, Page 2 and Chapter 6, Page 15)
j. An expiration date for the Greater Security Management Variable has been added. (Chapter 5, Page 5)
k. The criteria for the Deportable Alien PSF has been clarified. (Chapter 5, Page 9)
l. Text has been added that formalizes the Bureau’s past and current practice of continually assessing the effectiveness of its inmate classification process. (Program Statement Section 6)
m. Text has been added that encourages DSCC staff to consider using a Management Variable when designating inmates where age is largely the contributing factor in the inmate’s placement. (Chapter 5, Page 5)
n. Text has been revised that requires the entry of supporting information in the BP-337 “REMARKS SECTION” when there is Pre-Sentence Investigation Report information relevant to that scoring item. (Chapter 4, Page 13)

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o. The DSCC Administrator will ensure that designation/ redesignation decisions are applied consistently on a bureau- wide basis. (Chapter 4, Page 14)

p. DSCC staff must contact the sentencing court if a Statement of Reasons is not received at the time a request for designation is made. (Chapter 3, Page 1)

q. Inmates who currently qualify for unescorted transfer

may be transported by family members via POV from one camp to

another camp.

(Chapter 7, Page 8)

r. The appendices on Sentence Procedures, Institutions Missions and Parolable Institutions have been removed from the manual, but will be available on the CPB website.

s. The Offense Severity Scale, Definition of Roles involved in Drug Offenses and the Special Instructions appendices have been combined into one appendix.

t. All transfer requests under codes 309 - Disciplinary and 323 - Close Supervision will be directed to the Designation and Sentence Computation Center. “W REDES C” has been eliminated and “W REDES D” has been changed to “W REDES R” to reflect routine redesignations. (Chapter 7, Page 2)

u. The female versions of the BP-337 and BP-338 have been discontinued although certain policies and procedures specific to female offenders are maintained i.e. security levels, cutpoints, Public Safety Factors and Management Variables.

v. The “Release on Own Recognizance” scoring item has been discontinued. (Chapter 4, Page 5)

w. The description of Management Variable “U” has been revised to include all long-term detainees. It no longer applies solely to Mariel Cuban Detainees. (Chapter 5, Page 4)

x. The medical transfer code descriptions were revised to include “Level of Care” language. (Chapter 7, Pages 21-22)

y. The criteria for the Prison Disturbance PSF has been clarified. (Chapter 5, Page 10)

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4. DIRECTIVES AFFECTED

a. Directive Rescinded

P5100.07 Security Designation and Custody Classification Manual (9/3/99)

b. Directives Referenced

P5070.10
P5070.11 P5110.15
P5111.03 P5140.35
P5141.02
P5180.04 P5215.05
P5216.05 P5264.07 P5270.07
P5280.08 P5553.07 P5800.13 P7310.04

Responses to Judicial Recommendations and U.S. Attorney Reports (6/30/97) Study and Observation Report (12/31/97) Notifications of Release to State and Local Law Enforcement Officials (8/30/00) Mariel Cuban Detainees (10/25/99) Transfer of a Prisoner to State Custody Prior to Release from the Federal Sentence (9/12/01) Sex Offender Notification and Registration (12/14/98) Central Inmate Monitoring System (8/16/96) Youth Corrections Act (YCA), Inmates and
Programs (3/17/99) Juvenile Delinquents (9/1/99) Telephone Regulations for Inmates (1/31/02) Inmate Discipline and Special Housing Units (12/29/87) Furloughs (2/4/98) Escapes/Deaths Notifications (2/10/06) Inmate Systems Management Manual (6/28/02) Community Corrections Center (CCC) Utilization and Transfer Procedure (12/16/98)

5. STANDARDS REFERENCED

a. American Correctional Association 2nd Edition Standards for

Administration of Correctional Agencies: 2-CO-4B-01
b. American Correctional Association 4th Edition Standards for Adult Correctional Institutions: 4-4132, 4-4296, 4-4300, 44306, and 4-4444

c. American Correctional Association 4th Edition Performance- Based Standards for Adult Local Detention Facilities: 4- ALDF-1A-10, 4-ALDF-2A-31, and 4-ALDF-2A-37

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6. ACTION. All inmate classification decisions and related

actions will be made in accordance with the procedures in this

Program Statement and are effective immediately. Implementation

for each inmate shall occur in accordance with his or her next

regularly scheduled custody review. Those cases that have a

security level increase as a direct result of the initial

implementation of this policy will not ordinarily be

transferred to a higher security facility.

Bureau

institutions may submit lists of these inmates to the DSCC in

lieu of a Request for Management Variable for application of an

appropriate Management Variable.

In accordance with the procedures set forth in this manual, a Transfer Request/Application of Management Variable must be submitted to the DSCC for those cases that have a security level decrease, for transfer to a lesser security level facility or application of an appropriate Management Variable.

This Program Statement authorizes the continuation of the Bureau’s Inmate Classification Workgroup under the direction of the Assistant Director, Correctional Programs Division or his/her designee. The Assistant Director (CPD) will select and replace workgroup members, on an as-needed basis, with subject matter experts in inmate classification and related disciplines who represent institutions, Regional Offices and the Central Office.

The Inmate Classification Workgroup or its subgroups will meet or video conference at least annually to assess the overall effectiveness of the inmate classification system and report as appropriate their findings and recommendations to the Director and the agency’s Executive Staff. Consideration may be given to include institutional staff with experience at various security and custody levels.

/s/ Harley G. Lappin Director

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9/12/2006 Table of Contents
TABLE OF CONTENTS
Introduction . . . . . . . . . . . . . . . . . . . . . Chapter 1 Definitions . . . . . . . . . . . . . . . . . . . . . . Chapter 2 Security Designation Procedures for New Commitments . Chapter 3 Inmate Load and Security Designation Form, BP-337 . . Chapter 4 Management Variables and Public Safety Factors . . .. Chapter 5 Custody Classification Form Instructions, BP-338 . . Chapter 6 Inmate Transfer . . . . . . . . . . . . . . . . . . . Chapter 7 Offense Severity Scale/Definition of Roles involved in Drug Offenses/Special Instructions . . . . . . . . . Appendix A Waiver for Misdemeanants . . . . . . . . . . . . . . Appendix B Standard Abbreviations/Terms (BP-337) . . . . . . . . Appendix C Request for Transfer/Application of Management . . . Appendix D Variable (409)
The Sentence Procedures Appendix, Institution Missions Appendix and the Parolable Institutions Appendix can be found on the Correctional Programs Branch (CPB) web page.
Quarterly updates will be made based upon submissions by the respective regions to the DSCC Administrator.

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INTRODUCTION

Bureau of Prisons (BOP) institutions are classified into one of five security levels: MINIMUM, LOW, MEDIUM, HIGH, and ADMINISTRATIVE based on the level of security and staff supervision the institution is able to provide.

An institution’s level of security and staff supervision is based on the following factors:

! mobile patrol; ! towers; ! perimeter barriers; ! detection devices;

! internal security; ! type of inmate housing; ! inmate-to-staff ratio; and, ! any special institutional mission.

Similarly, BOP inmates are classified based on the following factors:

• The level of security and supervision the inmate requires; and,

• The inmate’s program needs, i.e., substance abuse, educational/vocational training, individual counseling, group counseling, or medical/mental health treatment, etc.

In summary, the initial assignment (designation) of an inmate to a particular institution is based primarily upon:

• The level of security and supervision the inmate requires;

• The level of security and staff supervision the institution is able to provide; and,
• The inmate’s program needs.

Additional factors that are also considered when designating an inmate to a particular institution include, but are not limited to:
• The inmate’s release residence;
• The level of overcrowding at an institution;
• Any security, location or program recommendation made by the sentencing court;

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• Any Central Inmate Monitoring issues (see Program Statement Central Inmate Monitoring Program);
• Any additional security measures to ensure the protection of victims/witnesses and the public in general; and,
• Any other factor(s) which may involve the inmate’s confinement; the protection of society; and/or the safe and orderly management of a BOP facility.
Initial designations to BOP institutions are initiated, in most cases by staff at the Designation and Sentence Computation Center (DSCC), Grand Prairie, Texas, who assess and enter information from the sentencing court, U.S. Marshals Service, U.S. Attorneys Office or other prosecuting authority and the U.S. Probation Office about the inmate into a computer database (SENTRY).
The Bureau of Prisons shall designate the place of the prisoner's imprisonment, and shall, subject to bed availability, the prisoner's security designation, the prisoner's programmatic needs, the prisoner's mental and medical health needs, any request made by the prisoner related to faith-based needs, recommendations of the sentencing court, and other security concerns of the Bureau of Prisons, place the prisoner in a facility as close as practicable to the prisoner's primary residence, and to the extent practicable, in a facility within 500 driving miles of that residence.
SENTRY then calculates a point score for that inmate which (for example, 18 points) is then matched with a commensurate security level institution.

Security Level
MINIMUM
LOW

Custody Level
COMMUNITY and OUT
OUT and IN

MEDIUM

OUT and IN

HIGH

IN and MAXIMUM

ADMINISTRATIVE

All custody levels

Male
0-11 points
12-15 points 16-23 points
24+ points All point
totals

Female
0-15 points
16-30 points *
31+ points All
point

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An inmate’s security point score is not the only factor used in determining a commensurate security level for an inmate. The application of a PSF or MGTV could effect placement at either a higher or lower level institution than the specified point total indicates. (SEE CHAPTER 5 FOR MORE DETAILED INFORMATION)

NOTE:

A security level cannot be assigned by SENTRY without completing an Inmate Load and Security Designation Form. If an inmate has not been assigned a security level, SENTRY will automatically assign “UNKNOWN” as the security level.

* Female security level institutions are classified as Minimum, Low, High and Administrative.

Once all necessary information has been entered into the SENTRY database, a DSCC or Medical Designations Officer, (hereafter, Designator) selects an institution for service of sentence based on all the previously mentioned factors.

Redesignations (transfers) from one Bureau institution to another are considered in much the same manner using many of the same factors used at the time of initial designation. In addition, the inmate’s institutional adjustment and program performance are also carefully reviewed when redesignation is considered.

Finally, an initial custody level (COMMUNITY, IN, OUT, MAXIMUM) is also assigned to the inmate that is consistent with the institutions mission. (See previous chart). An inmate’s custody level within any given security level institution is routinely reviewed and may change for various reasons during the period of incarceration.

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DEFINITIONS
ADMINISTRATIVE INSTITUTION. An institution with a special mission, where inmates are assigned based on factors other than security and/or staff supervision (for example, medical/mental health, pretrial and holdover). Administrative institutions are designed to house all security level inmates.
CENTRAL INMATE MONITORING (CIM). The Bureau monitors and controls the transfer, temporary release, and community activities of certain inmates who present special needs for management. Such inmates, known as Central Inmate Monitoring cases, require a higher level of review prior to any movement outside the institution.
CLASSIFICATION. The systematic subdivision of inmates into groups based on their security and program needs.
COMMUNITY CUSTODY. The lowest custody level assigned to an inmate which affords the lowest level of security and staff supervision. An inmate who has COMMUNITY custody may be eligible for the least secure housing, including any which is outside the institution's perimeter, may work on outside details with minimal supervision, and may participate in community-based program activities if other eligibility requirements are satisfied.
CONTRACT FACILITY. A state or local prison, institution, facility, jail, or other non-federal enterprise that contracts with the Bureau to house federal inmates (i.e., Community Corrections Center). Contract facilities are contracted and supervised by the CCMs.
CRIMINAL HISTORY POINTS. Criminal History Points are used to calculate the Bureau’s Criminal History Score. The Criminal History Points is the calculation, as specified by the U.S. Sentencing Commission Guidelines (Guidelines Manual, Chapter 4), which assigns a numerical value based on the individuals entire criminal record of convictions. Ordinarily, the Criminal History Points are calculated by the United States Probation Office.
CRIMINAL HISTORY SCORE (CHS). The CHS is one of the factors used to calculate the inmate’s security point total. The CHS is derived from the Criminal History Points whereby the Criminal History Points fall into one of six categories.

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CURRENT OFFENSE. For classification purposes, the current offense is the most severe documented instant offense behavior regardless of the conviction offense.
CUSTODY CLASSIFICATION. The review process to assign a custody level based on an inmate’s criminal history, instant offense, and institutional adjustment. A custody level (i.e., COMMUNITY, OUT, IN, and MAXIMUM) dictates the degree of staff supervision required for an individual inmate.
DESIGNATION. An order from the DSCC indicating the initial facility of confinement for an inmate.
DESIGNATION FACILITY (DFCL). Each of the separate missions within an institution for designation purposes. Each DFCL is shown as a separate line on the Population Report and has its own security level and destination (DST) assignment.
Designations are made to a DFCL code rather than to a facility (FACL) code.
JUDGMENT. The official court document (e.g., Judgment and Commitment Order or Judgment in a Criminal Case) which is signed by the Judge. The Judgment contains the offense(s) for which the court imposes its sentence, which ordinarily includes a financial, confinement and supervision obligation.
HISTORY. The inmate's entire background of criminal convictions (excluding the current offense) and institutional disciplinary findings used to assess points related to his/her history of violence and/or history of escape.
IN CUSTODY. The second highest custody level assigned to an inmate which requires the second highest level of security and staff supervision. An inmate who has IN custody is assigned to regular quarters and is eligible for all regular work assignments and activities under a normal level of supervision.
Inmates with IN custody are not eligible for work details or programs outside the institution's secure perimeter.
LEGAL RESIDENCE. The inmate’s local and state address as reported by the United States Probation Office at the time of conviction.
LONG-TERM DETAINEE. A non-U.S. citizen (alien) who has:
• finished serving a local, state, or federal sentence;
• completed immigration proceedings that have resulted in an order of deportation, exclusion, or other means of

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removal by either the Executive Office for Immigration Review (EOIR), or the Bureau of Immigration and Customs Enforcement (ICE), formerly the Immigration and Naturalization Service (INS); and,

• cannot be removed from the country for various reasons.

MANAGEMENT SECURITY LEVEL (MSL). Management Security Level is the security level assigned by the DSCC Administrator or designee to an inmate upon application of any of the following Management Variables:

• PSF Waived;

• Greater Security; and,

• Lesser Security.

Based on these Management Variables, the Management Security Level will normally be one security level greater or lesser than the scored security level.

MANAGEMENT VARIABLE. A Management Variable (MGTVs) reflects and

supports the professional judgment of Bureau staff to ensure

the inmate’s placement in the most appropriate level

institution.

A Management Variable(s) is required when

placement has been made and/or maintained at an institution

level inconsistent with the inmate’s security score — a score

which may not completely/ accurately reflect his or her

security needs.

MAXIMUM CUSTODY. The highest custody level assigned to an inmate requiring the highest level of security and staff supervision. An inmate with MAXIMUM custody requires ultimate control and supervision. This classification is for individuals who, by their behavior, have been identified as assaultive, predacious, riotous, serious escape risks, or seriously disruptive to the orderly running of an institution. Accordingly, quarters and work assignments are assigned to ensure maximum control and supervision. A custody change to or from MAXIMUM custody must be justified thoroughly on the BP-338 form and maintained permanently in the Inmate Central File.

MISDEMEANANT. An inmate convicted of an offense for which the

maximum penalty is one year or less. Such inmates may not be

transferred to a High security institution without first

signing a waiver.

18 U.S.C. § 4083 prohibits

placement of such inmates in "penitentiaries" without their

consent; however, the Bureau broadens that prohibition to

include any High security institution. A sample of the waiver

is provided in Appendix B.

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OUT CUSTODY. The second lowest custody level assigned to an inmate requiring the second lowest level of security and staff supervision. An inmate who has OUT custody may be assigned to less secure housing and may be eligible for work details outside the institution's secure perimeter with a minimum of two-hour intermittent staff supervision.

PAROLE, MANDATORY RELEASE, OR SPECIAL PAROLE TERM VIOLATOR.

Violators are inmates who were released from Bureau custody to

the supervision of a D.C. or U.S. Probation Officer (USPO) and

have violated the conditions of their release. These violators

are returned to Bureau custody and are required to have a

parole hearing within certain time limits.

The purpose of

this is to provide the inmate with an in-person hearing before

the U.S. Parole Commission (USPC) to determine if the inmate

has violated the conditions of parole, mandatory release, or

special parole. Therefore it is necessary to temporarily place

these individuals at parolable institutions in order to

conduct parole hearings.

PRIVATIZED FACILITY. A prison, institution, or other correctional facility that is operated or supervised by a non- governmental entity. Privatized facilities are managed by private organizations or individuals with oversight provided by Bureau staff.

PUBLIC SAFETY FACTOR. There are certain demonstrated behaviors which require increased security measures to ensure the protection of society. There are nine Public Safety Factors (PSFs) which are applied to inmates who are not appropriate for placement at an institution which would permit inmate access to the community (i.e., MINIMUM security). The application of a PSF overrides security point scores to ensure the appropriate security level is assigned to an inmate, based on his or her demonstrated current or prior behavior.

REDESIGNATION. The reassignment of an inmate from one institution to another after initial designation. Unit staff submit a request to the DSCC, and the inmate’s case is reviewed for possible transfer. Approval of a redesignation results in an order from DSCC staff indicating a correctional institution to which an inmate is to be transferred. The actual movement of an inmate from one institution or facility to another is referred to as a transfer.

RELEASE RESIDENCE. The verifiable destination to which an inmate realistically plans to reside upon release from Bureau custody. The inmate must provide proof of residence to his or her unit staff. Staff will rely upon the following references to assist in verification: Presentence Investigation Report/USPO

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verification; telephone and visiting lists; and, incoming and outgoing mail.

SECONDARY DESIGNATION. The second part of a two part designation, usually after a temporary designation to receive medical/mental health treatment or to participate in a specific institutional program or parole hearing.

SECURITY LEVEL. Used to describe the structural variables and inmate-to-staff ratio provided at the various types of Bureau institutions (i.e., Minimum, Low, Medium, High). It also identifies the institution type required to house inmates based on their histories, institutional adjustment, and Public Safety Factors as well as the physical security of the institution to include mobile patrols, gun towers, perimeter barriers, housing, detection devices, inmate-to-staff ratio, and internal security.

STATEMENT OF REASONS. The Statement of Reasons (SOR) is an

attachment to the criminal judgment (Judgment and Commitment

Order; Judgment in a Criminal Case) which indicates the reason

for the court’s final sentence, and other sentencing related

issues (e.g., resolution of disputed issues, changes in

scoring, statements of court intent, etc.). It is required in

every felony case where the sentencing range exceeds 24 months,

or whenever there is a departure from the U.S. Sentencing

Guidelines range.

The court may complete an SOR even if not

required.

STUDY CASE. A study case is an inmate who is committed for a period of study and observation pursuant to 18 U.S.C. §§ 3552(b) or (c)), 4241(b) or (d), 4242(a), 4243(a) or (b), 4244(b), 4245(b), 4246(b), or 4247(b) or (c)). An inmate committed for a study and observation will be referred to the Central Office Medical Designator in the Office of Medical Designations and Transportation (OMDT) for designation to a facility that can complete the study, considering any specific medical or psychiatric issues which should be addressed. The Central Office Medical Designator should attempt to place the inmate in the most suitable facility compatible with the offender's security and custody needs, closest to the court and available resources.

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SECURITY DESIGNATION PROCEDURES FOR NEW COMMITMENTS

The Designation and Sentence Computation Center will ordinarily complete the initial designation within three working days of receiving all the necessary documentation from the U.S. Marshals Service (USMS) and the U.S. Probation Officer (USPO) which includes the following: the Presentence Investigation Report (PSR), Judgment, Statement of Reasons (SOR), and Central Inmate Monitoring (CIM) documentation (in cases where a CIM assignment is necessary).

The DSCC will refer all requests for initial designation with potential medical/mental health concerns to the Office of Medical Designations and Transfers (OMDT), Health Services Division, Washington, D.C. no later than the following work day.

1. DESIGNATION PROCEDURES

The following is the normal chronology of an initial designation.

a. The inmate is sentenced.

b. The Clerk of the Court transmits the Judgment and Commitment Order (old law cases) or Judgment in a Criminal Case (new law cases) to the USMS.

c. The USMS makes a request to the DSCC advising that the inmate is now ready for designation to a facility.

d. If it has not already been provided, DSCC staff must contact the necessary officials (USPO or USMS) for the following: two copies of the PSR, a copy of the Judgment, to include the SOR, and the Individual Custody and Detention Report (USM-129).

If the SOR is not provided with the Judgment, DSCC staff will

make a reasonable effort to obtain a copy by contacting the

Court or USPO.

If no SOR

was prepared for the case or cannot be obtained, DSCC staff

will note this in the “Remarks” section of the BP-337 and

proceed with the designation process. These procedures will

ensure the Bureau is following the intentions of the Court when

designating a facility, as the SOR may contain information

which overrides the PSR and may affect scoring decisions.

Based on a review of the data, DSCC staff will determine whether a non-federal facility should be designated. If a PSR has not been prepared, DSCC staff will complete a National Crime

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Information Center (NCIC) and National Law Enforcement

Telecommunication System (NLETS) criminal history check to

obtain background information.

DSCC staff will then load

appropriate information on the SENTRY Update Security

Designation screen with a notation that no PSR was available.

DSCC staff will contact the USPO and

request that a Postsentence Investigation Report be prepared,

and forwarded to the designated facility.

DSCC staff

will document this contact on the SENTRY Update Security

Designation Screen.

Frequently, in cases involving Reentry after Deportation, Presentence/Postsentence Investigation Reports are not prepared. In those particular cases, a Magistrate Information Sheet may be used. A Magistrate Information Sheet is a document prepared by U.S. law enforcement officials. This document contains a summary of the facts related to the defendant's arrest and prior criminal/personal history. This information is primarily obtained through the arresting officer's report, the FBI Rap Sheet and an interview with the defendant.

If more than six months has elapsed since the PSR was prepared, DSCC staff will contact the USPO to determine if there is any new or significant information that should be considered. If the offender was a study case before final sentencing, DSCC staff will take into consideration the results of that study in completing the designation request. The result of the study may be obtained from a PSR, a summary report, or any other information available.

If offense or background information is not available prior to designation, an inmate must be designated to at least a Low security level institution. When information is obtained, the institution may request redesignation, if appropriate.

e. The DSCC uses classification material and SENTRY to determine if Central Inmate Monitoring (CIM) precautions need to be taken. This includes a name search to determine if the offender was previously confined under the current or previous register number. If new to the Bureau, the inmate must be loaded into SENTRY and "admitted" to the DSCC "facility," with any appropriate CIM assignment(s) entered. DSCC staff will identify the documents used to support CIM assignments and forward the documents to the designated institution.

f. DSCC staff will complete and enter into SENTRY an Inmate Load and Security Designation form (BP-337) on all cases with terms exceeding 30 days. The DSCC staff member loading the data has the discretion to complete a hard copy version or may enter the information directly into SENTRY.

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DSCC staff must determine if there is a break in custody when

the inmate is transferring to federal custody after service of

a state sentence.

The DSCC usually has

access to this type of information for jail credit purposes.

If there is no physical release from custody,

DSCC staff will consider the state offense as part of the

current term of confinement for classification purposes and

will not assign any history points for the state offense.

g. Each work day, DSCC Designation Officers determine which

cases require designation by displaying a SENTRY Daily Log for

a listing of those cases entered the previous day (also to

include weekends and holidays).

The

Designator displays the Initial Designation Data screen and

follows the prompts on the screen. This will lead the

Designator through a display of the “CIM Clearance and

Separatee Data” screen and “Update Security Designation”

screen.

A list of the appropriate security level

facilities will appear in order of proximity to the inmate’s

legal residence (based on mileage calculated by SENTRY). The

final screen in this series requires that the reason for

designation be entered, as well as any clearance remarks by

the DSCC Designator.

The objective of inmate classification is to place each

inmate in the most appropriate facility for service of

sentence.

To

accomplish this, the Designator must consider all relevant

information regarding the inmate.

In accordance with Rule 38(b) of the Federal Rules of Criminal Procedure, when the court of conviction recommends that the inmate be retained in a place of confinement which will allow the inmate to participate in the preparation of the appeal, the Bureau will make every effort to place the inmate in such a facility. If a reason exists for not placing the inmate in that facility, the matter is called to the attention of the court and an attempt is made to arrive at an acceptable place of confinement.

h. SENTRY provides information on the capacity and inmate population in each institution. Specifically, for each facility and each Designation Facility (DFCL), SENTRY provides the Rated Capacity, the Designation Capacity, and the percentage of each that the facility or DFCL currently houses.
• The Rated Capacity is a measure of the capacity for which each DFCL was designed.
• The Designation Capacity is the equitable proportion of the inmates in a particular security level that each

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designation facility having that security level should house.
The Designation Capacity of each DFCL is based on the rated capacities and population totals of all the DFCLs that have the same security level. The Rated Capacity and Designation Capacity for a facility are calculated as the total Rated Capacity and Designation Capacity of all the DFCLs that exist within that facility.
Designators will ordinarily use the Designation Capacity as a guide for maintaining population balance and an equitable distribution of inmates. However, for newly activating institutions, Designators may designate that institution for a percentage of initial designations.
i. The Designator assigns a facility, which may include a privately managed facility, and will make every effort to accommodate recommendations from the courts, ie. RDAP, locality, etc.
j. Upon completion of the initial designation by the DSCC Designator or Central Office Medical Designator, staff in the following areas will make note of the designation by monitoring SENTRY Destination Daily Logs:
(1) The receiving institution;
(2) The federal facility (MCC, Detention Center, etc.) holding the inmate being designated;
(3) The U.S. Marshals Prisoner Transportation Division in Kansas City, Kansas; and,
(4) The DSCC staff in cases where a medical/mental health inmate has been referred to OMDT.
DSCC staff will inform the USMS who has custody of the inmate of the designation by whatever means is appropriate.
If the inmate is a former study case, DSCC staff must also inform, via GroupWise, the Warden of the institution that completed the study of the designation. This alerts that facility to forward the Inmate Central File and other records to the institution designated.
If there is a secondary designation (e.g., Parole, Special Parole Term, Mandatory Release Violator Hearing, or following medical treatment), DSCC staff (or Central Office Medical Designator for

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medical cases) will notify the Warden of the secondary institution. This will alert the secondary institution that the inmate is designated and will be transported after the program or medical treatment is completed. No other designation notation is needed for a secondary designation.

k. When a designation is made, DSCC staff will forward all supporting documents to the designated institution within two working days. If DSCC staff believe that the inmate will arrive at the institution in less than five calendar days, the supporting documentation will be sent to the institution by overnight mail, facsimile, or electronically, within one working day of the designation.

l. The Case Management Coordinator (CMC) will monitor all

pending arrivals at that facility. However, if the institution

has separate DFCLs for specialized programs (i.e., RDAP, Sex

Offender Treatment Program, Life Connections, etc.) or for a

satellite camp, then the CMC may delegate this responsibility

to staff assigned to those specialized programs or populations.

Staff will monitor the Daily Log for that facility, and will

print a hard copy of each designation and maintain a copy on

file for 120 calendar days.

In certain facilities other

methods may be just as effective in monitoring pending

arrivals.

For example, institutions with a large holdover or

pretrial population can be monitored more effectively by running

a daily pipeline roster filtering out all “A-HLD”s and “A-PRE”s.

Staff will also monitor the arrival of classification material, and if such material has not arrived within 10 calendar days following the designation, the DSCC will be contacted to determine the status of that material. Upon arrival of the classification material, the CMC, or designee, will review that material and verify the scoring of the Inmate Load and Security Designation form (BP-337). If a scoring issue and/or error is discovered, the CMC will contact the DSCC Administrator via GroupWise. The CMC may need to fax certain pages of the Presentence Investigation Report to the DSCC so the case can be appropriately reviewed. If the CMC and DSCC agree that an error has been made, the error will be corrected by the DSCC. If the CMC and DSCC do not agree that an error has been made, the Central Office, Correctional Programs Administrator, will make the final determination.

The DSCC will also be advised of any non-scoring errors or concerns. In either circumstance, if the correction requires a new designation, the DSCC will make any necessary changes and will enter a new designation into SENTRY. The DSCC will then notify the appropriate USMS office(s) of the designation change.

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If the original designation is changed, the CMC will forward the classification material to the newly designated institution.

m. The CMC has oversight responsibilities for monitoring the timely arrival of a newly designated inmate. If an inmate serving a term of one year or more has not arrived at the designated institution within 120 calendar days from the date of the designation, or if an inmate serving a term of less than one year has not arrived after 30 calendar days, staff will use SENTRY to determine the inmate's current location:

(1) If the inmate is in a Bureau facility, staff will contact that facility to expedite movement or ascertain the reason for delay, and will verify whether the designation continues to be valid; and,

(2) If the inmate is not in a Bureau facility, staff will contact the DSCC. Upon notification, DSCC staff will contact the appropriate authorities and ascertain why the inmate has not arrived at the designated institution. If DSCC staff decides the designation is no longer valid, the DSCC will cancel the original designation.

If the designation is canceled, the packet will be returned to the DSCC, who then will return the documentation to the originating agency. Prior to canceling a designation, the DSCC will enter a comment on the “CIM Clearance and Separatee Data” screen to document the reason(s) for this action. This comment will be the only retrievable documentation available to answer future questions regarding the processing of the case. It may be necessary to administratively admit the inmate in order to enter the comment. The DSCC will also delete the associated DST assignment.

Staff will maintain records of their efforts to monitor designations. These records will be maintained for a period of 120 calendar days from the date of initial designation.

n. The release to the general public of an inmate's

designation or redesignation information is prohibited, for

security reasons, until the inmate has arrived at the designated

facility. An inmate confined in a Bureau facility however, may

be advised of the destination but will not be advised of the

date or time of the transfer.

However, caution should

be exercised in advising inmates of their destination. The Warden

may define cases where the designation will not be disclosed to

the inmate. Officials such as Judges and members of Congress may

be advised of designations in response to official inquiries for

their official use.

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2. NON-ROUTINE DESIGNATION PROCEDURES

In certain cases, non-routine designation procedures for new commitments are required. Listed below are specific examples of non-routine designations.

a. Study Cases. The DSCC will complete an Inmate Load and Security Designation form (BP-337) and enter it into SENTRY. The DSCC will then notify the Central Office Medical Designator via GroupWise requesting designation. The Central Office Medical Designator will designate an appropriate institution for the study. After completion of the study and final sentencing by the court, the DSCC will enter a new Inmate Load and Security Designation form (BP-337) into SENTRY, based on the actual sentence imposed or other new information.

b. Medical or Mental Health. The DSCC is responsible for receiving and evaluating information pertaining to an initial designation. DSCC staff must attempt to ascertain whether an inmate requires medical or mental health evaluation or treatment. This information is ordinarily obtained from the Presentence Investigation Report or other source documents. If medical or mental health concerns are apparent, DSCC staff will provide comments in the "Remarks" section of the BP-337 and enter Y (yes) in the OMDT REF item. DSCC staff will fax portions of the Presentence Investigation Report pertaining to the medical or mental health concerns, and the Judgment in a Criminal Case, if it includes any judicial recommendations, to the Central Office Medical Designator.

Upon review of the daily log for W DESIG M cases, the Central

Office Medical Designator will access the Inmate Load and

Security Designation form (BP-337) in SENTRY and make a

designation based on the available information, ordinarily

within three working days.

If the Central

Office Medical Designator determines there are no medical or

mental health concerns affecting placement, the DSCC will be

advised.

The DSCC will then complete the designation

to an appropriate institution.

Only the OMDT will make designations for study cases or for cases requiring medical or psychiatric evaluation or treatment. Designation may be made to any Bureau facility having resources to meet the inmate's needs. The Central Office Medical Designator will ensure that whenever a designation is made to an DFCL inconsistent with the inmate's security level, the appropriate Management Variable is entered.
Administrative facilities are excluded from this requirement.

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c. Military Prisoners. The Bureau cooperates with the Security, Force Protection and Law Enforcement Division of the Armed Services for the transfer of military prisoners into the Bureau's custody. These cases are coordinated through the DSCC, in accordance with the provisions contained in Chapter 7, Section 17(d).
d. Parole, Mandatory Release or Special Parole Term Violator Hearing. For designation purposes, the U.S. Parole Commission (USPC) provides the revocation packet and a copy of the alleged violator's Presentence Investigation Report to the DSCC. The DSCC will complete an initial designation to a violator hearing site, and a secondary designation to a post-hearing institution for service of the violator term. The Security Designation Data screen will indicate the inmate is to be housed as a holdover at the violator hearing site.
Once the designation has been completed, the DSCC will notify the U.S. Marshals Office of the designated institution, and mail the violator packet to that institution. The USPC will receive notification via Groupwise.
If after the hearing, new information causes a change in the secondary designation (i.e., short-term parole date), institution staff will contact the DSCC for appropriate action.
• In cases where the projected release date (PRD) is between 60 to 120 days from the date of hearing, the DSCC will consider changing the secondary designation to the nearest appropriate facility.
• In cases where the PRD is 60 days or less from the date of hearing, hearing facility staff will consider having the inmate remain at the hearing facility for release processing purposes.
• If a change in designation is not necessary, institution staff may process the inmate’s transfer to the secondary designation.
Procedures for violators requiring medical treatment are referenced in Chapters 3 and 7. Once the information is reviewed and evaluated by the DSCC, and it is determined that medical or psychiatric treatment is required, the request for designation will be entered into SENTRY and referred to the Central Office Medical Designator for designation. The DSCC will notify the appropriate USMS Office of the inmate’s designated institution, and mail the violator packet to that institution. The USPC will receive notification via LAN.

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Local revocation hearings will be conducted at a site determined by the USPC, normally within commuting distance of where the alleged violation occurred. The USPC may request, in writing, to the DSCC Administrator that an alleged violator be moved to a Bureau institution. Violators who have received their local revocation hearing will not be transported until the USPC Notice of Action has been received and a designation has been determined. In some instances, violators who are granted a short-term release date should be considered for placement in a contract facility.

e. Long-term Detainees. The Detention Services Branch (DSB), Correctional Programs Division, Central Office, is responsible for the initial designation of long-term detainees. Requests for placement into the BOP from the U.S. Immigration and Customs Enforcement (ICE) are sent directly to DSB, where they are completed. If a medical or mental health placement is needed, DSB will refer it to the Central Office Medical Designator.

Long-term detainees are no longer serving a sentence but their detention is indeterminate and they will not, in all probability, be repatriated to their home country.

Long-term detainees are from countries, such as Cuba, that

refuse to accept their return from the U.S. government. The

Detention Services Branch, Correctional Programs Division, will

advise when changes in applicable countries occur. This does

not include citizens from countries that take a significant

amount of time to accept its citizens. Travel orders can be

obtained and they are eventually returned.

ICE requests

the placement of long-term detainees into the BOP and they are

ordinarily designated into a general population.

Long-term detainees include:
• Mariel Cubans, detainees who entered the United States during the Mariel boatlift between April 15, 1980 and October 31, 1980;
• Cubans who entered the United States from other countries, or from Cuba other than during the Mariel boatlift; and,
• Detainees from counties that ICE has identified that refuse to receive its citizens.

Designation procedures for long-term detainees are unique because the detainees are not serving a sentence. Refer to the current

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Program Statement Mariel Cuban Detainees for the designation procedures.

3. DESIGNATIONS TO NON-FEDERAL FACILITIES

The DSCC may designate a federal inmate to a non-federal facility in accordance with the criteria below. An updated Security Designation form (BP-337) will be completed and entered into SENTRY for any sentence exceeding 30 days. When the USMS takes custody of an inmate from state or local custody to begin serving a federal sentence, the same procedures for new commitments will be followed.

When designating an inmate to a non-federal facility for an inmate, Designators shall consider the inmate's religious beliefs, if known as one of the factors in making a designation decision. If possible, a non-federal facility where the inmate's religious beliefs can be accommodated will be designated. If necessary, Designators may consult with Central Office chaplaincy staff in making this designation decision.

4. TYPES OF COMMITMENTS

a. Juvenile Commitments. All inmates committed under the Juvenile Justice and Delinquency Prevention Act (JJDPA) and all inmates under the age of 18 will be designated and housed in accordance with the requirements of Program Statement Juvenile Delinquents, Juvenile Justice and Delinquency Prevention Act.

The CCM will complete a BP-337 for juvenile offenders housed in contract juvenile facilities; however, the CCM does not need to complete the BP-338 while the juvenile is housed there unless it is helpful to do so.

b. Jail Commitments. When funds and appropriate jail space

are available, the DSCC may designate a contract jail or

detention facility for an inmate who is generally sentenced

to one year or less.

If funds and appropriate jail space

are not available or if an inmate has special needs, a

federal institution will be designated through the DSCC.

Prior to placement, DSCC staff must determine whether

any PSF(s) or other circumstances would contradict a jail

designation.

If so, the lowest security level dictated

by the applicable PSF must be satisfied.

However, such designations should also take into consideration underpopulated Bureau facilities prior to placement in a contract facility.

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c. Youth Corrections Act (YCA)/District of Columbia Youth Rehabilitation Act (DCYRA) Offenders. Although the YCA statutes were repealed effective October 12, 1984 (see 18 U.S.C. §§ 5005 through 5026 (repealed)), an offender originally committed under these statutes could be returned to custody as a parole violator. Ordinarily, DCYRA inmates will not be initially designated to non-federal facilities.
d. State Prisoners. 18 U.S.C. § 5003 enables the Director, Bureau of Prisons, to establish contracts to accept state prisoners for boarding in federal institutions. The term "State" as used in this section includes any state, territory, or possession of the United States. The statute does not permit the Bureau to contract placement of state prisoners in third party custody. This includes CCC placements.
When there is a compelling reason for placing a state prisoner in a non-federal facility, institution staff will contact the DSCC Administrator, who may suggest to officials of the state that they may want to make their own direct placement in a non- federal facility.
Once an inmate is accepted into Bureau custody, occasionally, there may be a reason to return the inmate to the original state. In this instance, institutional staff will contact the DSCC Administrator. If the DSCC Administrator determines that it would be appropriate for the inmate to be returned, they will contact state officials.

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INMATE LOAD AND SECURITY DESIGNATION FORM INSTRUCTIONS (BP-337)

INMATE LOAD DATA

The Inmate Load Data section (Items 1 to 25) of the Inmate Load and Security Designation form (BP-337) records the physical and demographic information of inmates entered into SENTRY (the Bureau of Prisons’ on-line database). In practice, inmates are entered into SENTRY whether or not the inmate’s security level is scored (e.g., pre-trial detainees, material witnesses, etc.). Therefore, when the initial security designation data is entered into SENTRY it is essential that the load data is compared to the information contained in the Presentence Investigation Report (PSR), and that the information is updated or reconciled as appropriate.

1. REGISTER NUMBER

2. LAST NAME

6. RACE

7. SEX

10. OFFENSE/SENTENCE

3. FIRST NAME 8. ETHNIC ORIGIN

4. MIDDLE 9. DATE OF BIRTH

5. SUFFIX

11. FBI NUMBER 13. STATE OF BIRTH 16. ADDRESS-STREET

12. SSN NUMBER

14. OR COUNTRY OF BIRTH

15. CITIZENSHIP

17. CITY

21. HEIGHT:FT

IN

25. ARS ASSIGNMENT

18. STATE 22. WEIGHT:

19. ZIP 23. HAIR COLOR

20. OR FOREIGN COUNTRY
24. EYE COLOR

1. REGISTER NUMBER. The U.S. Marshals Service (USM) assigns an eight-digit register number to each inmate with the last three digits denoting the U.S. Marshals’ judicial code. The format is five digits, hyphen, three digits.

2. LAST NAME. Twenty-four spaces are provided for the inmate’s last name, which must match the name on the Judgment. The first character must be a letter. Each subsequent character must be a letter, space, hyphen, or apostrophe.

3. FIRST NAME. Twelve spaces are provided for the inmate’s first name.

NOTE: Only the inmate’s committed name (as it appears in

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the Judgment) will be entered on the “Load Inmate” transaction. All other names (e.g., true name, aliases, nicknames, maiden name, etc.) will be entered into SENTRY using the “Update Nicknames and Aliases” transaction.

4. MIDDLE. Eight spaces are provided for the inmate’s middle name.
5. SUFFIX. Three spaces are provided for any name suffixes (i.e., Jr., Sr., II). Suffix codes are found in the Name Suffix Code section of the SENTRY General Use Technical Reference Manual (TRM).

6. RACE. Standards for the Classification of Federal Data on Race and Ethnicity are set by the Office of Management and Budget. Enter the appropriate code:

CODE

RACE

DEFINITION

A

Asian

A person having origins in any of the Pacific Islands or any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.

B

Black or

A person having origins in any of

African

the black racial groups of Africa.

American

I

American

A person having origins in any of

Indian or

the original peoples of North and

Alaska Native South America (including Central

America), and who maintains tribal

affiliation or community

attachment.

W

White

A person having origins in any of the original peoples of Europe, the Middle East, or North Africa.

7. SEX. Enter M = Male or F = Female.

8. ETHNIC ORIGIN. Enter the appropriate code.

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CODE

ETHNIC ORIGIN DEFINITION

H

Hispanic or A person of Cuban, Mexican, Puerto

Latino

Rican, South or Central American,

or other Spanish culture or origin,

regardless of race.

O

Not Hispanic A person who does not meet the

or Latino

above definition.

9. DATE OF BIRTH. Ten spaces are provided for the inmate’s birth date (MM-DD-YYYY); (e.g., July 2, 1981 = 07-021981). If the inmate's birth date is unknown or not available, enter 01-01-1800.
10. OFFENSE/SENTENCE. The offense(s), sentence imposed, and docket number (as specified in the Judgment) should be entered in the space provided. Additionally, if the inmate is admitted to another SENTRY facility, care should be taken to preserve existing information.
11. FBI NUMBER. Nine spaces are provided for the Federal Bureau of Investigation (FBI) number. The FBI number can be any combination of letters and numbers and must be entered without spaces or dashes. It cannot duplicate an existing FBI number in SENTRY. This field must be left blank if the FBI number is unknown at the time the inmate is loaded.

12. SOCIAL SECURITY NUMBER (SSN). Nine spaces are provided for the inmate’s SSN. The number must be entered without dashes or spaces. It cannot duplicate an existing SSN in SENTRY. If the SSN is unknown, or the inmate has never been issued a SSN this field must be left blank. In cases where the inmate will not be issued a SSN (i.e., illegal aliens) a back slash may be entered.
13. STATE OF BIRTH. Two spaces are provided for the state code for the state in which the inmate was born. If entered, it must be a valid code from the State and Possession Code Table in the SENTRY General Use TRM.
14. COUNTRY OF BIRTH. If entered, it must be a valid code from the Country Code Table in the SENTRY General Use TRM.

NOTE:

SENTRY will not allow “US” to be entered if a “state of birth” is entered (Item 13 above).

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15. CITIZENSHIP. Enter the country code that corresponds to the inmate’s citizenship. This must be a valid code from the Country Code Table in the SENTRY General Use TRM. Do not rely on the inmate’s current place of residence to determine citizenship. Special emphasis must be placed on the accuracy of citizenship at the time of the inmate’s admission.
16. ADDRESS - STREET. At least twenty-eight spaces are provided for the inmate’s street number and name as listed in the PSR as “legal address.” Enter any combination of alphanumeric characters.
17. CITY. Fifteen spaces are provided for the inmate’s city of residence as listed in the PSR as “legal address.” If entered, a state or foreign country must be entered.
18. STATE. Two spaces are provided for the state code. If entered, it must be a valid state code found under State Possession Code, SENTRY General Use TRM. Enter country code under Item 20 if residence is not in the United States or one of its territories or commonwealths.
19. ZIP CODE. Five spaces are provided for the zip code. It must be entered when a state code has been entered. If not available, the city, state, and zip code of the USMS Office assigning the register number will be entered. An accurate zip code is important because it is used by SENTRY to determine mileage between the inmate’s legal residence and designated institution.
20. FOREIGN COUNTRY. Two spaces are provided for the country code. If entered, it must be a valid country code from the Country Code Table of the SENTRY General Use TRM. "US" may not be entered as the country code. This field must be completed if a state or zip code is not entered in the address field (see Items 18 & 19 above).
21. HEIGHT. Height must be entered in a measurement of feet and inches. Values in feet (FT) must be 1 through 9. Values in inches (IN) must be 00 through 11.
22. WEIGHT. Weight values must be 001-999 and represent pounds.
23. HAIR. Two spaces are provided for the color code. If entered, it must be a valid code found under the Hair Color Code, SENTRY General Use TRM.

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24. EYES. Two spaces are provided for the color code. If entered, it must be a valid code found under the Eye Color Code, SENTRY General Use TRM.
25. ARS ASSIGNMENT. Use a valid SENTRY category assignment, SENTRY General Use TRM.

SECURITY DESIGNATION DATA

The Security Designation Data section (Items 1 to 18) of the Inmate Load and Security Designation form (BP-337) records sentencing, programing recommendations, and background information from the Judgment, the Statement of Reasons (SOR), and the PSR. This information is used to determine the inmate’s security level.

1. JUDGE

2. REC FACILITY

3. REC PROGRAM

4. USM OFFICE

1. JUDGE. Enter the sentencing Judge's last name.

2. RECOMMENDED FACILITY. The court may recommend a specific institution or a geographical region for a newly committed inmate. Enter the name of the recommended institution or region. If a specific SENTRY facility code is entered, that facility will appear at the top of the list presented to the Designator for consideration.

3. RECOMMENDED PROGRAM. Enter the name or type of any program recommended by the sentencing Judge.

4. USM OFFICE. Enter the location of the USM Office (e.g., E/VA-NOR).
5. VOLUNTARY SURRENDER

5. VOLUNTARY SURRENDER

0 = NO

(-3) = YES

IF YES, MUST INDICATE: 5a. VOLUNTARY SURRENDER DATE: 5b. VOLUNTARY SURRENDER LOCATION:

This item allows for the subtraction of three points from the Security Point Total, Item 15, when the Judgment indicates the inmate was allowed to voluntarily surrender. For purposes of this item, voluntary surrender means the inmate was not escorted by a law enforcement officer to either the U.S. Marshals Office or the place of confinement. Additionally, this item applies only to post-sentencing voluntary surrender, and does not include cases where the inmate surrendered to the U.S. Marshals on the same day as sentencing. Voluntary Surrender Credit may only be

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applied to the initial term of confinement; it may not be applied to any subsequent Supervised Release, Mandatory Release or parole Violation return to custody.

5a. VOLUNTARY SURRENDER DATE. If the court has provided for

voluntary surrender, enter the date of the voluntary surrender

in this block.

If the court provided for

voluntary surrender but did not provide a specific date for the

surrender, the DSCC will contact the court to establish a

mutually agreeable date.

NOTE:

In cases where the court allows the inmate to voluntarily surrender but the inmate will not receive (-3) points on this item the date will still be entered on this item.

5b. VOLUNTARY SURRENDER LOCATION. The DSCC will note whether the inmate is to voluntarily surrender to the USMS or to the designated institution.

6. MONTHS TO RELEASE

6. MONTHS TO RELEASE

This item reflects the estimated number of months the inmate is expected to be incarcerated. Consecutive federal sentences will be added together for classification purposes. Federal sentences may have different beginning dates, based on the Judgment Order. There may even be a computation in SENTRY with a beginning date in the future. Based on the inmate’s sentence(s), enter the total number of months remaining, less 15% (for sentences over 12 months), and credit for any jail time served. This item is not figured into the security point total but impacts the Sentence Length Public Safety Factor.

Example: An adult convicted of Breaking and Entering under the Sentence Reform Act is sentenced to eight years. The expected length of incarceration is (96 months x 85% = 81.6 months). Round to the nearest whole number to get 82 and subtract any jail time credit (180 days) = 76 months to release.

NOTE:

Enter 540 months for death penalty cases, life sentences, and Parolable life sentences for which a parole date has not been established.

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7. SEVERITY OF CURRENT OFFENSE

7. SEVERITY OF

0 = LOWEST

CURRENT OFFENSE 1 = LOW MODERATE

3 = MODERATE 5 = HIGH

7 = GREATEST

Enter the appropriate number of points that reflect the most severe documented instant offense behavior regardless of the conviction offense. For multiple offenses, the highest score will be used in scoring the current offense. Staff will consider the offense behavior on all sentences, including federal sentences that have a future beginning date or a previous D.C.
or state sentence if there was no physical release from custody.

NOTE:

This will require DSCC staff to make reasonable efforts to obtain documentation.

Severity is determined by using the Offense Severity Scale (Appendix A).

Example: According to the PSR, the individual was involved in an Assault With Serious Injury (Greatest severity level) but pled guilty to a Simple Assault (Moderate severity level). Assign the points on the basis of the more severe documented behavior, i.e., assign 7 points (Greatest severity level).

In determining "Severity of Current Offense" staff must review the Statement of Reasons (SOR) and ensure the information provided is appropriately used in classifying the inmate.

Example: According to the PSR the individual was involved in a drug conspiracy responsible for distribution of 31 grams of Cocaine Base “Crack”, but was individually only responsible for 2 grams, he/she would be scored as Moderate Severity for this item. However, the SOR, indicates the Sentencing Judge found the individual responsible for less than 1 gram; therefore, the appropriate scoring should be Low Moderate severity.
• PROCEDURES FOR PAROLE, MANDATORY RELEASE, SPECIAL PAROLE TERM, OR SUPERVISED RELEASE VIOLATORS

If the violation was the result of new criminal conduct, regardless of conviction status, use the new criminal conduct for scoring "Severity of Current Offense" (see Appendix A). If the violation behavior was a technical violation, score the "Severity of Current Offense" as Low Moderate.

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The original offense behavior which occurred prior to the violation is considered past behavior and is not used in determining "Severity of Current Offense.”
• PROCEDURES FOR PROBATION VIOLATORS

The original offense behavior that resulted in

probation should be used for scoring "Severity of

Current Offense" (see Appendix A).However, if the new

criminal conduct (violation

behavior) is more severe than the original offense

behavior, then use this behavior for scoring "Severity of

Current

Offense.”

The

most severe documented behavior between the original offense

and the violation behavior will be used for scoring "Severity

of Current Offense.”

8. CRIMINAL HISTORY SCORE

8. CRIMINAL HISTORY SCORE

0 = 0-1 2 = 2-3

4 = 4-6 6 = 7-9

8a. SOURCE OF DOCUMENTED - PRESENTENCE INVESTIGATION REPORT

CRIMINAL HISTORY

- NCIC III

8 = 10-12 10 = 13 +

Enter the appropriate number of Criminal History Points(CHP). SENTRY will automatically convert the CHP to the Bureau’s Criminal History Score (CHS).

The CHS is derived from the US Sentencing Guidelines Criminal History Points, as reflected in the final judgment and the SOR. If not found in either the Judgment or SOR, use the points assessed by the USPO in the PSR.

In some cases the Criminal History Points are not available (i.e., when the PSR is waived, on offenses committed prior to November 1, 1987, state cases, and military and D.C. Code offenders). Under these circumstances the Criminal History Score will be derived from the criminal history documented in the NCIC III Report according to the following procedures:

(a)

Add 3 points for each prior sentence of

imprisonment exceeding one year and one

month;

(b)

Add 2 points for each prior sentence of

imprisonment of at least sixty days not counted in

(a);

(c)

Add 1 point for each prior conviction not counted in

(a) or (b), up to a total of 4 points for this

item; and,

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(d)

Add 2 points if the instant offense is a revocation

accompanied by a new state or federal conviction, or

if the instant offense occurred while under federal

supervision including incarceration, probation,

parole or supervised release.

The documentation used to assess the Criminal History Points must be provided as specified in all cases.

9. HISTORY OF VIOLENCE

9. HISTORY OF VIOLENCE

MINOR

SERIOUS

NONE 0 0

>15 YEARS 1 2

10-15 YEARS 1 4

5-10 YEARS 3 6

<5 YEARS 5 7

Enter the appropriate number of points that reflect any history of violence, considering only those acts for which there are documented findings of guilt (i.e., DHO, Court, Parole, Mandatory Release, or Supervised Release Violation). This item includes the individual's entire background of criminal violence, excluding the current term of confinement.

Exception: Any institution disciplinary hearing (UDC or DHO) finding that a prohibited act was committed during the current term of confinement will be scored as a history item. DSCC staff must review the Chronological Disciplinary Record (CDR) for inmates who were previously housed in a federal institution or contract facility. Any violent act(s) reflected on the CDR must be scored as a history item. State disciplinary findings must be scored unless there is documentation that the state disciplinary proceedings did not afford due process protection to the inmate.

Severity of violence is determined by the offense behavior

regardless of the conviction/finding of guilt offense. History

of Violence points combine both seriousness and recency of

prior violent incidents to assess the propensity for future

violence. Therefore, if there is more than one incident of

violence, score the combination of seriousness and recency that

yields the highest point score.

Prior

periods of incarceration will be considered a “history” item if

the inmate was physically released from custody and then

returned to serve either a violation or a new sentence. In

determining time frames, use the date of the documented

behavior.

Documented information from a juvenile, Youth

Corrections Act (YCA) or District of Columbia Youth

Rehabilitation Act (DCYRA) adjudication can be used unless the

record has been expunged or vacated.

Minor History of Violence - Aggressive or intimidating behavior which is not likely to cause serious bodily harm or death (e.g.,

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simple assault, fights, domestic disputes, etc.) There must be a finding of guilt.

Serious History of Violence - Aggressive or intimidating behavior which is likely to cause serious bodily harm or death (e.g., aggravated assault, domestic violence, intimidation involving a weapon, incidents involving arson or explosives, rape, etc.). There must be a finding of guilt.
Example: If an offender was found guilty of homicide 20 years ago and a simple assault 3 years ago, assign 5 points for the simple assault. Or in another case, the offender had guilty findings for homicide 12 years ago; aggravated assault 8 years ago; and fighting 2 years ago, score 6 points for the aggravated assault 8 years ago.

NOTE:

Attempted suicide, self-mutilation and possession of weapons are not applicable behaviors for History of Violence scoring. In addition, verbal threats (such as Code 203- Threatening Bodily Harm) are to be viewed as minor violence.

10. HISTORY OF ESCAPE OR ATTEMPTS

10. HISTORY OF ESCAPE OR

NONE MINOR 0

ATTEMPTS SERIOUS 0

>15 YEARS 1 3(S)

10-15 YEARS 1 3(S)

5-10 YEARS 2 3(S)

<5 YEARS 3 3(S)

Enter the appropriate number of points that reflect the escape history of the individual considering only those acts for which there are documented findings of guilt (i.e., DHO, Court, Parole, Mandatory Release, or Supervised Release Violation).
Escape history includes the individual's entire background of escapes or attempts to escape from confinement, or absconding from community supervision, excluding the current term of confinement.

Exception: Any institution disciplinary hearing (UDC or DHO)

finding that a prohibited act was committed during the current

term of confinement will be scored as a history item. DSCC

staff must review the Chronological Disciplinary Record (CDR)

for inmates who were previously housed in a federal

institution or contract facility.

Any escape(s) or

attempt(s) reflected on the CDR must be scored as a history

item.

State disciplinary findings are to be scored unless

there is documentation that the state disciplinary proceedings

did not afford due process protection to the inmate.

Fleeing or Eluding Arrest, Failure to Appear for traffic violations, Absconding, runaways from foster homes and similar

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behavior should not to be scored under the Escape History item, even if clearly documented, but should be considered on a case- by-case basis under the Management Variable “Greater Security.” Failure to Appear or Flight to Avoid Prosecution for any offense however, must be counted when there is a documented finding of guilt.

In determining time frames, use the date of the documented occurrence. Documented information from a juvenile, YCA, or DCYRA adjudication can be used unless the record has been expunged or vacated.

Minor History of Escape - An escape from an open institution or program (e.g., minimum security facility, CCC, furlough) not involving any actual or threat of violence. Also includes military AWOL, Bail Reform Act, Flight to Avoid Prosecution, and Absconding from Community Supervision. There must be a finding of guilt except as previously noted.

Serious History of Escape - An escape from secure custody with

or without threat of violence.

Also

includes escapes from an open facility or program with actual

threat of violence.

There must be a finding of guilt. S = 3

points and requires application of PSF L.

11. TYPE OF DETAINER

11. TYPE OF DETAINER

0 = NONE 1 = LOWEST/LOW MODERATE

3 = MODERATE 5 = HIGH

7 = GREATEST

Enter the appropriate number of points that reflect detainer status. Refer to the Offense Severity Scale, Appendix A. Determination is based on the offense of the most serious detainer.

• If there is a pending charge, points based on the documented behavior are assigned on the “Type of Detainer” item. If the pending charges or detainer involve a probation violation, use the most severe documented behavior in the original offense as the basis for assigning points in scoring the detainer.

If law enforcement officials indicate a firm intent to lodge a detainer, consider it lodged. Score a concurrent state sentence as a detainer only if it is expected that the state sentence will exceed the federal sentence. However, score consecutive state sentences, lodged state detainers, and/or state parole violation terms/warrants as detainers.

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• Consecutive federal sentences are ordinarily not lodged as detainers because federal sentences are computed as they are received. If there is more than one sentence, the most severe offense will be used as “Severity of Current Offense.”

Example:

For an individual with two detainers for Violation of Firearms Act (Moderate severity level) and one for Extortion (High severity level), use High = 5 points and enter "5".

• No points will be awarded for U.S. Parole Commission warrants (adjudicated or unadjudicated). However, the original offense behavior will be factored into the criminal history points and the violation behavior (including new offense behavior) will be scored as the instant offense.

• No points will be awarded for ICE detainers. However, each case will be carefully reviewed to determine whether the PSF for Deportable Alien is applicable.

12. AGE

12. AGE

0 = 55 and over 2 = 36 through 54

4 = 25 through 35 8 = 24 or less

SENTRY will automatically enter the appropriate number of points based on the inmate’s date of birth. Staff do not have to manually enter an offender’s age or points on the BP-337. If the offenders date of birth is unknown, SENTRY will default to a score of 4 points.
13. EDUCATION LEVEL

13. EDUCATION

0 = Verified High School Degree or GED 1 = Enrolled in and making satisfactory progress in GED Program 2 = No verified High School Degree/GED and not participating in GED
Program

13a. HIGHEST GRADE COMPLETED

Enter the appropriate number of points that reflect the inmate’s verified education level at the time of designation.

In addition to the points assigned for the education level, the highest grade completed (HGC) will also be recorded on the BP337. For example, an inmate who began, but did not complete the 7th grade will be given a 6 in the HGC field. Similarly, a GED
will be given a 12, a college graduate a 16, a Master’s degree an 18, and a Ph.D. a 21 (the maximum allowed) in the HGC field.

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The value entered for the HGC should, unless missing, be consistent with the points assessed for the inmates education level. If missing, enter a “U” for unknown.
14. DRUG/ALCOHOL ABUSE

14. DRUG/ALCOHOL ABUSE

0 = Never/›5 Years

1 = <5 Years

Enter the appropriate number of points that reflect drug or alcohol abuse by the inmate. Examples of drug or alcohol abuse include: a conviction of a drug or alcohol related offense, a parole or probation violation based on drug or alcohol abuse, positive drug test, a DUI, detoxification, etc. Absent any information similar to the above, an inmate’s self-report is sufficient to score this item. If this information is unknown enter a “U” and the item will be scored as zero.
15. SECURITY POINT TOTAL

15. SECURITY POINT TOTAL
Enter the sum of Items 5 through 14. 16. PUBLIC SAFETY FACTORS

16. PUBLIC SAFETY FACTORS

A-NONE

I-SENTENCE LENGTH(males only)

B-DISRUPTIVE GROUP(males only)

K-VIOLENT BEHAVIOR(females only)

C-GREATEST SEVERITY OFFENSE (males only) L-SERIOUS ESCAPE

F-SEX OFFENDER

M-PRISON DISTURBANCE

G-THREAT TO GOVERNMENT OFFICIALS

N-JUVENILE VIOLENCE

H-DEPORTABLE ALIEN

O-SERIOUS TELEPHONE ABUSE

See Chapter 5, pages 7-13 for a description of Public Safety Factors and their application.
17. REMARKS

17. REMARKS

A brief explanation of the current offense(s) is required in

the “Remarks” section.

Similarly,

Pre-Sentence Investigation Report information relevant to

other scoring items that may have an impact on the designation

process or the transportation of the inmate (e.g., medical or

psychiatric information, or arrest behavior with no

conviction) must also be noted in this section. Refer to

Appendix C, Standard Abbreviations/Terms. Also, the

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individual scoring the case will enter his or her initials at the end of the “Remarks” section.
18. OMDT REFERRAL

18. OMDT REFERRAL (YES/NO)

The Medical Designator, Office of Medical Designations

Transportation (OMDT), must review all cases in which there is

a physical or mental health concern. Enter “Y” (yes) or N

(no) in this category.

The response will determine

which daily log will reflect the designation information.

DESIGNATION AND SENTENCE COMPUTATION CENTER ACTION INITIAL DESIGNATION

It is extremely important for Designators to communicate on a regular basis to ensure that designation decisions are consistent. The Correctional Programs Division encourages the need for communication and consistency to all Designators.

1. FACILITY DESIGNATED. Enter the mnemonic code for the institution designated (Refer to "Enter Initial Designation," SENTRY General Use TRM).

2. CUSTODY ASSIGNMENT. Enter the initial custody assignment in accordance with Table 4-1.

Table 4-1

LEVEL OF INSTITUTION INITIALLY DESIGNATED

INITIAL CUSTODY ASSIGNMENT

Minimum

OUT

Low

IN

Medium

IN

High

IN, unless initial designation is to USP Marion or ADX Florence, in which case the initial custody assignment is MAXIMUM.

Administrative

IN, unless inmate is Minimum security level and designation was not for security reasons, in which case the initial custody assignment is OUT.

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3. DESIGNATOR. The Designator will enter his or her initials.

4. REASON FOR DESIGNATION. Designators will use this section to document whether the primary reason for designation was for security reasons or for management reasons.
• Enter "S" if the inmate's security level is the primary reason for designation and the placement is within normal guidelines. If "S" is entered, SENTRY will not permit an entry in the “Management Reason” field.

• Enter "M" if a Management Variable is the primary

reason for designation and placement is outside

normal guidelines.

When "M" is entered, you must

enter the appropriate Management Variable(s) (e.g., B

= Judicial Recommendation, D = Release Residence,

etc.) under the Management Reason item. While one MGTV

is generally sufficient, a maximum of three MGTVs may

be entered into SENTRY. In the unlikely event that an

inmate’s designation facility is inconsistent with

his or her MSL, at least one additional non-MSL MGTV

must be added to support and explain the

inconsistency.

• When it is necessary to place an inmate at a particular institution temporarily in order to receive a parole hearing, a secondary designation is required. The DSCC will notify the Warden of the secondary institution via GroupWise. Following the hearing, the institution where the inmate was first placed should review the secondary designation and contact the DSCC if the results of the hearing indicate that a change in the secondary designation is required.

5. MANAGEMENT VARIABLES. See Chapter 5, pages 1-6 for a description of Management Variables and their application.

6. REMARKS. The Designator will enter any relevant information not already recorded that may have an impact on the designation process or the transportation of the inmate.

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BP-337 INMATE LOAD AND SECURITY DESIGNATION FORM

1. REGISTER NUMBER

2. LAST NAME

6. RACE

7. SEX

10. OFFENSE/SENTENCE

3. FIRST NAME 8. ETHNIC ORIGIN

INMATE LOAD DATA

FEDERAL BUREAU OF PRISONS
4. MIDDLE 9. DATE OF BIRTH

5. SUFFIX

11. FBI NUMBER 13. STATE OF BIRTH 16. ADDRESS-STREET

14. OR COUNTRY OF BIRTH

12. SSN NUMBER 15. CITIZENSHIP

17. CITY

21. HEIGHT FT

IN

25. ARS ASSIGNMENT

1. JUDGE

18. STATE 22. WEIGHT _____ LBS

19. ZIP 23. HAIR COLOR

SECURITY DESIGNATION DATA

2. REC FACILITY

3. REC PROGRAM

20. OR FOREIGN COUNTRY 24. EYE COLOR
4. USM OFFICE

5. VOLUNTARY SURRENDER STATUS

0 = NO

(-3) = YES

IF YES, MUST INDICATE: 5a. VOLUNTARY SURRENDER DATE: __________________ 5b. VOLUNTARY SURRENDER LOCATION: ______________

6. MONTHS TO RELEASE

_______

7. SEVERITY OF CURRENT OFFENSE

0 = LOWEST 1 = LOW MODERATE

3 = MODERATE 5 = HIGH

7 = GREATEST

8. CRIMINAL HISTORY SCORE

0 = 0-1 2 = 2-3

4 = 4-6 6 = 7-9

8 = 10-12 10 = 13 +

8a. SOURCE OF DOCUMENTED ____ - PRESENTENCE INVESTIGATION REPORT or ____ - NCIC III CRIMINAL HISTORY

9. HISTORY OF

NONE

VIOLENCE

MINOR 0

SERIOUS 0

>15 YEARS 1
2

10-15 YEARS 5-10 YEARS

1

3

4

6

<5 YEARS 5
7

10. HISTORY OF

NONE

ESCAPE OR

MINOR 0

ATTEMPTS

SERIOUS 0

>15 YEARS 1
3 (S)

>10 YEARS 5-10 YEARS

1

2

3(S)

3(S)

<5 YEARS 3
3(S)

11. TYPE OF DETAINER

0 = NONE

3 = MODERATE

1 = LOWEST/LOW MODERATE 5 = HIGH

7 = GREATEST

12. AGE

0 = 55 and over 2 = 36 through 54

4 = 25 through 35 8 = 24 or less

13. EDUCATION LEVEL

0 = Verified High School Degree or GED 1 = Enrolled in and making satisfactory progress in GED Program 2 = No verified High School Degree/GED and not participating in GED Program

13a. HIGHEST GRADE COMPLETED ______________

14. DRUG/ALCOHOL ABUSE

0 = Never/>5 Years

1 = <5 Years

15. SECURITY POINT TOTAL

16. PUBLIC SAFETY FACTORS
17. REMARKS

A-NONE B-DISRUPTIVE GROUP (males only) C-GREATEST SEVERITY OFFENSE (males only) F-SEX OFFENDER G-THREAT TO GOVERNMENT OFFICIALS
H-DEPORTABLE ALIEN

I-SENTENCE LENGTH (males only) K-VIOLENT BEHAVIOR (females only) L-SERIOUS ESCAPE M-PRISON DISTURBANCE N-JUVENILE VIOLENCE
O-SERIOUS TELEPHONE ABUSE

18. OMDT REFERRAL (YES/NO) ____

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MANAGEMENT VARIABLES AND PUBLIC SAFETY FACTORS

MANAGEMENT VARIABLES

A Management Variable is required when placement has been made and/or maintained at an institution level inconsistent with the inmate’s scored security level. Application of a Management Variable requires review and approval by the DSCC Administrator. When completing the BP-338, institution staff may only enter a Management Variable which the DSCC previously approved and entered as a management reason. Otherwise, the DSCC is the only office authorized to enter a variable. A maximum of three Management Variables may be entered for each case.

NOTE:

SENTRY will not permit the simultaneous application of the Greater Security and Lesser Security MGTVs.

When a Management Variable no longer applies, institution staff will remove the variable(s) accordingly. When no Management Variable is required, institution staff will insert the letter "A" (NONE) in the space to signify that no MGTV(s) apply. Management Variables entered at initial designation are manually transferred to the BP-338, Custody Classification form.

Request for Management Variable/Management Variable expiration date. All requests to apply a Management Variable (MGTV) or to update the Management Variable Expiration Date (MVED) must be submitted to the DSCC via GroupWise using the 409 form. Requests for Management Variables on WITSEC inmates are to be forwarded to the Inmate Monitoring Section, Central Office, Washington, DC. The following criteria will be utilized:

Only the DSCC or Central Office staff can apply a MGTV and update a MVED, with the exception of "I" (Med/Psych), which will be applied and reviewed by the Central Office Medical Designator and "U" (Long-Term Detainee), which will be applied by the Detention Services Branch, Correctional Programs Division, Central Office.

When requesting a MGTV or an updated MVED, only sections four and six need to be completed on the form 409. This request should normally be made to the DSCC within 21 calendar days following the inmate's scheduled custody review to ensure the DSCC is receiving a current Custody Classification Form, BP-338. After approval by the Warden, the request may be routed from the unit or shared folders, and unit staff must enter a DST assignment using the Update Transaction. Staff will enter W MGTV

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as a DST assignment when the request is routed. DSCC staff will remove the assignment when the decision is made.

When requesting an updated MVED, staff are to indicate the recommended expiration date on the top portion of form 409.

When a case with the MGTV of "I" (Med/Psych) is scheduled

for review and it is anticipated that this MGTV is no longer

applicable, institution staff will complete all sections of

form

409 and forward the request to the Central Office Medical

Designator and the DSCC. The Central Office Medical Designator

will review the case for continuation or deletion of this

MGTV. If this MGTV is no longer appropriate, the Central

Office Medical Designator will remove the MGTV. After the

Central Office Medical Designator removes the MGTV "I," the

DSCC will review the case for transfer.

If a transfer is

not appropriate, another MGTV is to be applied.

Expiration dates will be assigned in accordance with Table 51. The DSCC Administrator must evaluate the information on the form 409 to determine the appropriate expiration date for all applicable Management Variables. At the established expiration date, case management staff will review the current Management Variable(s) to determine appropriateness. In the rare instance when more than one MGTV is applied, all expiration dates will be displayed on the BP-338. When running a SENTRY roster, each MGTV and corresponding MVED will be displayed.

Management Security Level (MSL). Upon application of any of the

following Management Variables: PSF Waived; Greater Security;

Lesser Security, the DSCC is to apply an overriding Management

Security Level (MSL) to reflect the inmate’s assessed security

needs. This MSL takes precedence over the security level

reflected in SENTRY which is based upon the scored security

level and the application of Public Safety Factors.

Designation must be made to a DFCL commensurate with the

inmate’s security needs as reflected in the Management Security

Level.

If there is an extenuating

circumstance in which an inmate’s designation facility is

inconsistent with his or her MSL, at least one additional non-

MSL MGTV must be added to support and explain the inconsistency.

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A

None. No Management Variables apply. Institution

staff are permitted to enter this item.

B

Judicial Recommendation. The sentencing court may

recommend a specific institution or program. When

consistent with policies or when such actions are

consistent with sound correctional management, the

Bureau of Prisons attempts to satisfy judicial

recommendations. When this is not feasible, the court

is notified in writing with an explanation outlining

the reasons for not satisfying that recommendation.

D

Release Residence. The Bureau of Prisons attempts to

place each inmate in an institution that is reasonably

close to the anticipated release area. Ordinarily,

placement within 500 miles of the release area is to be

considered reasonable, regardless of whether there may

be an institution closer to the inmate’s release area.

To the extent practicable, placement to the closest

facility within 500 driving miles of the release area

will be considered reasonable, subject to bed

availability, the prisoner’s security designation, the

prisoner’s programmatic needs, the prisoner’s mental

and medical health needs, any request made by the

prisoner related to faith-based needs, recommendations

of the sentencing court, and other security concerns of

the Bureau of Prisons. This MGTV may also apply to

inmates who are within 36 months of release.

E

Population Management. Situations may occur in which

an inmate requires housing in a facility which is not

commensurate with his or her security level. Following

are example situations: facility activation;

population pressures affecting available appropriate-

level bed space within 500 driving miles of the

inmate’s anticipated release residence; gang/security

concerns.

G

Central Inmate Monitoring Assignment. Pursuant to the

CIM Program Statement, some inmates, for specified

reasons, need to be monitored or separated from

others. Sometimes these special management concerns

limit the options for placement.

I

Medical or Psychiatric. An inmate who has a history of

or is presently exhibiting psychiatric problems may

need an initial designation to a psychiatric referral

center. Similarly, documented information reflecting

that the inmate may need medical or surgical treatment

may require a designation to a medical referral

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N

Program Participation. Occasionally, inmates become

involved in specialized programs which are only

available on a limited basis, or at specific

institutions; in such instances, it might be

appropriate to delay transfer pending completion of

the program. Likewise, an inmate’s ability to

participate in a unique program may require placement

at an institution not commensurate with his or her

security level. Accordingly, when an inmate's

security level changes during participation in a

special program not likely to be available in another

appropriate facility, causing placement outside

normal guidelines, this MGTV will apply.

R

Work Cadre. At secure facilities without satellite

camps, the Regional Director may authorize a certain

number of work cadre inmates to perform work outside

the perimeter of the institution. The DSCC will apply

the MGTV upon request of the institution.

S

PSF Waived. An inmate may receive up to three Public

Safety Factors (PSFs). PSFs may be waived after review

and approval by the DSCC Administrator. When Public

Safety Factors are waived causing placement outside

normal guidelines, this MGTV will apply. Application

of this MGTV mandates that the DSCC Administrator

determine the most appropriate level of security

required by the inmate and apply a Management Security

Level (MSL). The MSL must be at least one level less

than the scored security level which is based on the

Security Total and PSF(s).

Request for Public Safety Factor Waiver. Only the DSCC Administrator is authorized to waive a PSF. A request for waiver of a PSF will be submitted to the DSCC via form 409, available on SALLYPORT. The form 409 will indicate that the request is for waiver of a Public Safety Factor. Items 1 through 7 must be completed when submitting a request for waiver of a PSF.

U

Long-term Detainee. Long-term detainees are given an

initial custody and security level. However, Custody

Classification Forms are not to be completed on

long- term detainees due to the unavailability

or non- applicability of certain data (i.e.,

current term of confinement, length of time

remaining to serve, accurate criminal history).

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Therefore, transfers for positive or negative behavior may cause placement in a facility different from his or her scored security or custody level. When needed, this MGTV will be applied by the Detention Services Branch, Correctional Programs Division, Central Office.

Long-term criminal detainees whose security or custody level does not match that of their facility will have this Management Variable applied. This applies as well if an inmate rolls over to the status of a long-term detainee after being ordered detained upon expiration of the federal sentence and the security or custody level does not match that of the designated facility.

V

Greater Security. There may be security concerns which

are not adequately reflected in the classification

scheme. In circumstances where an inmate represents a

greater security risk (i.e., pending charges,

detainer, escape risk, etc.) than their assigned

security level, they may be placed in an institution

outside normal guidelines, and this MGTV will apply.

When this MGTV is applied based on institutional

behavior which is not supported by a UDC/DHO finding

of guilt, staff will ensure compliance with the

criteria as set forth in the Program Statement on

Inmate Discipline and Special Housing Units.

Application of this MGTV mandates the DSCC

Administrator determine the most appropriate level of

security required by the inmate and apply a

Management Security Level (MSL). Designation will

then be made to a DFCL commensurate with the inmate’s

Management Security Level. The MSL must be at least

one level greater than the scored security level

which is based on the Security Total and Public

Safety Factor(s).

This MGTV requires up to a

24 month expiration date.

W

Lesser Security. There may be security concerns which

are not adequately reflected in the classification

scheme. In circumstances where an inmate represents a

lesser security risk (i.e., detainer removed, positive

adjustment, etc.) than the assigned security level,

the inmate may be placed in an institution outside

normal guidelines. For example, where age is largely

the contributing factor in the inmate’s placement,

this Management Variable will apply.

Application of this MGTV mandates the DSCC Administrator to determine the most appropriate level of security required by the inmate and apply a Management Security Level (MSL). The MSL must be at least one level less than the scored

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security level which is based on the Security Total and Public Safety Factor(s).

DISCONTINUED MANAGEMENT VARIABLES. The following Management Variables have been discontinued: C - Age, F - Racial Balance, H - Voluntary Surrender, J - Custody, K - Detainer, L Discipline, M - Grandfather Clause, O - Security, P - Sentence Limitation, and Q - Sliding Scale.

Table 5-1

CODE A None

MANAGEMENT VARIABLE EXPIRATION TABLE

DESCRIPTION

LENGTH

N/A

B Judicial Recommendation N/A

D Release

N/A

Residence/Planning

E Population Management

Up to 18 months**

G Central Inmate

N/A

Monitoring Assignment

I Medical/Psychiatric

6 months

N Program Participation

Up to 18 months, at the discretion of the Regional Director**

R Work Cadre

N/A

S PSF Waived*

N/A (However, if an inmate is transferred to a more secure institution based on behavior related to the waived PSF, this MGTV will be removed.)

U Long-Term Detainee

N/A

V Greater Security*

Up to 24 months**

W Lesser Security*

N/A

* requires application of a Management Security Level (MSL) ** if no expiration date is entered, SENTRY will default to an
expiration date 12 months in advance

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PUBLIC SAFETY FACTORS

A Public Safety Factor (PSF) is relevant factual information

regarding the inmate’s current offense, sentence, criminal

history or institutional behavior that requires additional

security measures be employed to ensure the safety and

protection of the public.

Public Safety Factors are

normally applied on the Inmate Load and Security Designation

Form (BP-337) prior to an inmate’s initial assignment to an

institution, however, additions or deletions may be made at

anytime there after via the Custody Classification Form, (BP-

338).

A maximum of three PSFs may be applied, however

if more than three apply, those which would provide the greatest

security and public safety will be utilized.

CODE

PSF - DESCRIPTION

A

None. No Public Safety Factors apply.

B

Disruptive Group. A male inmate who is a validated

member of a Disruptive Group identified in the

Central Inmate Monitoring System will be housed in

a High security level institution, unless the PSF

has been waived.

At the time of initial designation, if the

Presentence Investigation Report or other

documentation identifies the inmate as a possible

member of one of the Central Inmate Monitoring

Disruptive Groups, DSCC staff will enter a PSF on the

BP-337.

However, DSCC staff will not

enter the CIM assignment "Disruptive Group."

Upon

loading this PSF on a not-yet-validated member, DSCC

staff will (1) make a notation in the Remarks Section

to indicate the need for validation upon arrival at

the institution, and (2) notify the Central Office

Intelligence Section, via GroupWise, to advise them

of the inmate’s status.

Upon the inmate's arrival

at the designated institution, the intake screener

will notify the institution's Special Investigation

Supervisor of the inmate's PSF, to initiate the

validation process.

C

Greatest Severity Offense. A male inmate whose current

term of confinement falls into the "Greatest Severity"

range according to the Offense Severity Scale

(Appendix

A) will be housed in at least a Low security

level institution, unless the PSF has been

waived.

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F

Sex Offender. A male or female inmate whose behavior

in the current term of confinement or prior history

includes one or more of the following elements will be

housed in at least a Low security level institution,

unless the PSF has been waived. A conviction is not

required for application of this PSF if the

Presentence Investigation Report (PSR), or other

official documentation, clearly indicates the

following behavior occurred in the current term of

confinement or prior criminal history. If the case was

dismissed or nolle prosequi, application of this PSF

cannot be entered.

However, in the case where an inmate was charged

with an offense that included one of the following

elements, but as a result of a plea bargain was not

convicted, application of this PSF should be

entered.

Example: According to the PSR, the inmate was specifically described as being involved in a Sexual Assault but pled guilty to Simple Assault.
Based on the documented behavior, application of this PSF should be entered:

(1) Engaging in sexual contact with another person without obtaining permission to do so (forcible rape, sexual assault or sexual battery);

(2) Possession, distribution or mailing of child pornography or related paraphernalia;

(3) Any sexual contact with a minor or other person physically or mentally incapable of granting consent (indecent liberties with a minor, statutory rape, sexual abuse of the mentally ill, rape by administering a drug or substance);

(4) Any sexual act or contact not identified above that is aggressive or abusive in nature (e.g., rape by instrument, encouraging use of a minor for prostitution purposes, incest, etc.). Examples may be documented by state or Bureau of Prisons’ incident reports, clear NCIC entries, or other official documentation;

(5) Attempts are to be treated as if the sexual act or contact was completed; and/or,

(6) Any offense referenced in the Sex Offender Notification and Registration Program Statement.

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CODE

PSF - DESCRIPTION

G

Threat to Government Officials. A male or female

inmate classified with a Central Inmate Monitoring

assignment of Threat to Government Official will

be housed in at least a Low security level

institution, unless the PSF has been waived.

H

Deportable Alien. A male or female inmate who is not a

citizen of the United States. All long-term detainees

will have this PSF applied. When applied, the inmate

or the long-term detainee shall be housed in at least

a Low security level institution.

The PSF shall not be applied, or shall be removed when

the U.S. Immigration and Customs Enforcement (ICE) or

the Executive Office for Immigration Review (EOIR)

have determined that deportation proceedings are

unwarranted or there is a finding not to deport at the

completion of deportation proceedings. The Institution

Hearing Program CMA of NO IHP or IHP CMP ND will then

be applied.

Additionally, the PSF

shall not be applied if the inmate has been

naturalized as a United States citizen.

I

Sentence Length. A male inmate with more than ten

years remaining to serve will be housed in at least

a Low security level institution unless the PSF has

been waived.

A male inmate with more than 20 years remaining to serve will be housed in at least a Medium security level institution, unless the PSF has been waived.

A male inmate with more than 30 years remaining to serve (including non-parolable LIFE sentences) will be housed in a High security level institution unless the PSF has been waived.

K

Violent Behavior. A female inmate whose current term

of confinement or history involves two convictions

(or findings of commission of a prohibited act by the

DHO) for serious incidents of violence within the

last five years will be assigned to at least a Low

security level institution, unless the PSF has been

waived.

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L

Serious Escape. A female inmate who has been involved

in a serious escape within the last ten years,

including the current term of confinement, will be

assigned to the Carswell Administrative Unit, unless

the PSF has been waived.

A male inmate who has escaped from a secure facility (prior or instant offense) with or without the threat of violence or who escapes from an open institution or program with a threat of violence will be housed in at least a Medium security level institution, unless the PSF has been waived.

M

Prison Disturbance. A male or female inmate who was

involved in a serious incident of violence within

the institution and was found guilty of the

prohibited act(s) of Engaging, Encouraging a Riot,

or acting in furtherance of such as described in,

but not limited to institution disciplinary codes

such as 103, 105, 106,

107, 212, 213 or 218. Such a finding must be in

conjunction with a period of simultaneous

institution disruptions. Males will be housed in at

least a HIGH security level institution and females

will be assigned to the Carswell Administrative

Unit, unless the PSF has been waived.

N

Juvenile Violence. A male or female offender,

currently of juvenile age, who has any documented

single instance of violent behavior, past or present,

which resulted in a conviction, a delinquency

adjudication, or finding of guilt. Violence is defined

as aggressive behavior causing serious bodily harm or

death or aggressive or intimidating behavior likely to

cause serious bodily harm or death (e.g., aggravated

assault, intimidation involving a weapon, or arson).

O

Serious Telephone Abuse. A male or female inmate who

utilizes the telephone to further criminal activities

or promote illicit organizations and who meets the

criteria outlined below, must be assigned a PSF for

Serious Telephone Abuse. A conviction is not required

for the PSF if the Presentence Investigation Report

(PSR) or other official documentation clearly

indicates that the above behavior occurred or was

attempted.

An inmate who meets this

criteria must be housed in at

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least a Low security level institution, unless the PSF is waived.

The PSF should be entered if any one of the following criteria applies.

(1) PSR or comparable documentation reveals the inmate was involved in criminal activity facilitated by the telephone who:
• meets the definition of a leader/organizer or primary motivator; or

• utilized the telephone to communicate threats of bodily injury, death, assaults, or homicides; or

• utilized the telephone to conduct significant fraudulent activity (actual or attempted) in an institution; or

• leader/organizer who utilized the telephone to conduct significant fraudulent activity (actual or attempted) in the community; or,
• arranged narcotic/alcohol introductions while confined in an institution.

(2) Federal law enforcement officials or a U.S. Attorney’s Office notifies the Bureau of Prisons of a significant concern and need to monitor an inmate’s telephone calls;

(3) The inmate has been found guilty of a 100 or 200 level offense code for telephone abuse.

NOTE:

200 level offense codes will be reviewed on a case-by-case basis.

(4) A Bureau of Prisons official has reasonable suspicion and/or documented intelligence supporting telephone abuse.

NOTE:

Any inmate who is assigned the Serious Telephone Abuse PSF may be subject to telephone restriction in accordance with the Telephone Regulations for Inmates Program Statement.

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DISCONTINUED PUBLIC SAFETY FACTORS

D Firearms

E High Drug

J Designation Assessment

Table 5-2

SECURITY DESIGNATION TABLE (MALES)

INMATE SECURITY LEVEL ASSIGNMENTS BASED ON CLASSIFICATION SCORE AND PUBLIC SAFETY FACTORS

Securit y Point

Public Safety Factors

Inmate Security
Level

0 - 11

No Public Safety Factors Deportable Alien Juvenile Violence Greatest Severity Offense Sex Offender Serious Telephone Abuse Threat to Government Officials Sentence Length
Time remaining > 10 Yrs Time remaining > 20 Yrs Time remaining > 30 Yrs (Includes non-parolable LIFE and Death penalty cases) Serious Escape Disruptive Group Prison Disturbance

Minimum Low Low Low Low Low Low
Low Medium
High
Medium High High

12 - 15

No Public Safety Factors Serious Escape Sentence Length
Time remaining > 20 Yrs Time remaining > 30 Yrs (Includes non-parolable LIFE and Death penalty cases) Disruptive Group Prison Disturbance

Low Medium
Medium High
High High

16 - 23

No Public Safety Factors Disruptive Group Prison Disturbance Sentence Length
Time remaining > 30 Yrs (Includes non-parolable LIFE and Death penalty cases)

Medium High High
High

24 +

High

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Table 5-3

SECURITY DESIGNATION TABLE (FEMALES)

INMATE SECURITY LEVEL ASSIGNMENTS BASED ON CLASSIFICATION SCORE AND PUBLIC SAFETY FACTORS

Security Point Total

Public Safety Factors

Inmate Security
Level

0 - 15

No Public Safety Factors Deportable Alien Juvenile Violence Serious Telephone Abuse Sex Offender Threat to Government Officials Violent Behavior Prison Disturbance Serious Escape

Minimum Low Low Low Low Low Low High High

16 - 30

No Public Safety Factors Prison Disturbance Serious

Low High High

31 +

High

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CUSTODY CLASSIFICATION FORM INSTRUCTIONS (BP-338)

INTRODUCTION. Custody classification is a procedure whereby an inmate is assigned a level of supervision according to their criminal history and institutional behavior/adjustment. An inmate’s custody level is an indication of how much staff supervision an inmate requires within and beyond the confines of the institution.

An inmate’s first custody classification will be scored at the first program review following initial classification (approximately 7 months after arrival at an institution). Subsequent reviews will occur at least every 12 months, but may be conducted earlier in order to enable progress toward community activities. Custody classification will ordinarily occur every 12 months at a regularly scheduled program review.
Only changes which increase or decrease the overall security level assignment of the inmate, i.e. FRP refuse, incident report(s), new sentence, sentence reduction etc., should be scored outside of the 12 month cycle.

When transferring to another institution, inmates normally retain their custody assignments. If the custody level is inconsistent with that authorized at the receiving institution, the sending institution will change the inmate's custody prior to transfer. Holdovers will retain their initial custody level assignments until their first regularly scheduled custody review at their designated facility for service of sentence.

At each annual custody review, a new Custody

Classification Form (BP-338) will be completed, even

though the scoring elements

may not have changed from the previous form. Only the most

current BP-338 form will be retained in the Inmate Central

File, except for those forms that must be retained to

document appropriate review and approval for custody

reductions (e.g., custody reductions for exception cases

require the Warden, or designee, to sign the Custody

Classification Form.

The form should

be maintained to document the review and approval). As set

forth in the definition of “Maximum” custody, Chapter 2, a

BP-338 form changing an inmate’s custody to or from “Maximum”

custody must be permanently maintained.

It should be clearly understood that the Custody Classification Form only recommends an inmate's custody. The Unit Team and/or Warden is the final review authority. The intent of the Custody Classification system is to permit staff to use professional judgment within specific guidelines. Custody changes are not

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dictated solely by the point total. However, when the Unit Team decides not to follow the recommendation of the point total, they must document the reason(s) for this decision in writing on the Custody Classification Form, and inform the inmate.

A. IDENTIFYING DATA

1. INSTITUTION CODE 4. NAME

2. UNIT

3. DATE 5. REGISTER NUMBER

6. MANAGEMENT A - NONE VARIABLES B - JUDICIAL RECOMMENDATION D - RELEASE RESIDENCE/PLANNING E - POPULATION MANAGEMENT

G - CIMS I - MED/PSYCH TREATMENT N - PROGRAM PARTICIPATION R - WORK CADRE

S - PSF WAIVED U - LONG-TERM DETAINEE V - GREATER SECURITY W - LESSER SECURITY

7. PUBLIC SAFETY FACTORS

A - NONE B - DISRUPTIVE GROUP (males only) C - GREATEST SEVERITY OFFENSE (males only) F - SEX OFFENDER G - THREAT TO GOVERNMENT OFFICIALS H - DEPORTABLE ALIEN

I - SENTENCE LENGTH (males only) K - VIOLENT BEHAVIOR (females only) L - SERIOUS ESCAPE M - PRISON DISTURBANCE N - JUVENILE VIOLENCE O - SERIOUS TELEPHONE ABUSE

1. INSTITUTION CODE. (Automatically displayed by SENTRY.)

2. UNIT. (Automatically displayed by SENTRY.)

3. DATE. (Automatically displayed by SENTRY.)

4. NAME. (Automatically displayed by SENTRY.)

5. REGISTER NUMBER. (Automatically displayed by SENTRY.)

6. MANAGEMENT VARIABLES. See Chapter 5, pages 1-6.

7. PUBLIC SAFETY FACTORS. See Chapter 5, pages 7-13.

B. BASE SCORING

1. TYPE OF DETAINER

1. TYPE OF DETAINER

0 = NONE 1 = LOWEST/LOW MODERATE

3 = MODERATE 5 = HIGH

7 = GREATEST

Enter the appropriate number of points that reflect the inmate’s detainer status. Refer to the Offense Severity Scale (Appendix A). If multiple detainers have been filed, enter the point value for the most serious charge. Frequency and sentence length are not considered.

The scoring of detainers on the Inmate Load and Security Designation Form (BP-337) may differ from the score received on the Custody Classification Form (BP-338). If there is a pending charge, points based on the documented behavior are assigned on

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the type of detainer item; if the pending charge involves a probation violation, use the most severe documented behavior from the original offense as the basis for assigning points in the detainer scoring. Only formally filed detainers are considered on the Custody Classification Form after the second regularly scheduled custody review.
• Score consecutive state sentences, lodged state detainers and/or state parole violation terms/warrants as detainers. Inmates should be informed that it is vitally important that all pending charges and detainers be resolved as quickly as possible so that institution programming and release planning can occur.
• Score concurrent state sentences, as a detainer only if it is expected that the state sentence will exceed the federal sentence and the state has formally filed a detainer. Other formally filed state pending charges, consecutive sentences, and/or parole violation term/warrants will be scored as detainers. Points will be assigned the same as they would be for a federal violation (see page 4 of this Chapter for further instructions).
• No points will be awarded for U.S. Parole Commission warrants (adjudicated or unadjudicated). However, the original offense behavior will be factored into the criminal history points and the violation behavior (including new offense behavior) will be scored as the current offense.
• No points will be assigned for ICE detainers. However, each case will be carefully reviewed to determine whether the PSF for Deportable Alien is applicable.
• If a formally filed detainer involves a probation violation, use the most severe documented behavior in the original offense as the basis for assigning points in the detainer scoring chart above.
2. SEVERITY OF CURRENT OFFENSE

2. SEVERITY OF CURRENT 0 = LOWEST

OFFENSE

1 = LOW MODERATE

3 = MODERATE 5 = HIGH

7 = GREATEST

Enter the appropriate number of points that reflect the most

severe documented instant offense behavior. For multiple

offenses, the highest score will be used when scoring the

current offense.

Staff will consider

the offense behavior of all sentences, including federal

sentences that have a future

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beginning date or a prior state or D.C. sentence if there was no physical release from custody.
Severity is determined by using the Offense Severity Scale (Appendix A). Do not use instant offense behavior to also assign points on the “history” items on the Custody Classification Form.
Example: According to the Presentence Investigation Report, the individual was involved in an Assault With Serious Injury (Greatest severity level) but pled guilty to a Simple Assault (Moderate severity level). Assign the points on the basis of the more severe documented behavior, i.e., assign 7 points (Greatest severity level). Do not use the current term of confinement information to assign points on the “history” items (numbers 5 and 6 on the Security Designation Data section of the BP-337).
In determining "Severity of Current Offense" staff must review the Statement of Reasons, (attachment to the Judgment) and ensure the information provided is appropriately used in classifying the inmate.
Example: According to the Presentence Investigation Report the individual was involved in a drug conspiracy responsible for distribution of 31 grams of cocaine base “Crack”, but was individually only responsible for 2 grams, he/she would be scored as Moderate Severity in this category. However, the STATEMENT OF REASONS, indicates the Judge found the individual responsible for less than 1 gram; therefore, the appropriate scoring should be Low Moderate Severity.
• Procedures for Parole, Mandatory Release, Special Parole Term, or Supervised Release Violator
If the violation was the result of new criminal conduct, regardless of conviction status, use the new criminal conduct for scoring "Severity of Current Offense" (see Appendix A). If the violation behavior was a technical violation, score the "Severity of Current Offense" as Low Moderate Severity.
The original offense behavior which occurred prior to the violation is considered past behavior and is not used in determining "Severity of Current Offense."

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• Procedures for Probation Violator
The original offense behavior that resulted in probation should be used for scoring "Severity of Current Offense" (see Appendix A).
However, if the new criminal conduct (violation behavior) is more severe than the original offense behavior, then use this behavior for scoring "Severity of Current Offense." The most severe documented behavior between the original offense and the violation behavior is to be used for scoring "Severity of Current Offense."
3. MONTHS TO RELEASE DATE
3. MONTHS TO RELEASE
If there is a current and valid sentence computation in SENTRY, SENTRY will automatically enter the number of months remaining into this field. If however, there is not a complete Sentence Computation/Projected Release Date in SENTRY, this entry must be manually computed. This item is not figured into the security point total but impacts the Sentence Length Public Safety Factor.
4. CRIMINAL HISTORY SCORE

4. CRIMINAL HISTORY SCORE

0 = 0-1 2 = 2-3

4 = 4-6 6 = 7-9

8 = 10-12 10 = 13 +

SENTRY will automatically insert the score that was entered for this item on the BP-337. If this item was not entered on the BP337, insert the appropriate number of points that reflect the Criminal History Score. For further details on Criminal History Score see Chapter 4, Section 8.

5. HISTORY OF ESCAPE OR ATTEMPTS

5. HISTORY OF ESCAPE

NONE

OR ATTEMPTS

MINOR

0

SERIOUS 0

>15 YEARS 10-15 YEARS

1

1

3(S)

3(S)

5-10 YEARS 2 3(S)

<5 YEARS 3 3(S)

Enter the appropriate number of points that reflect the escape history of the individual, considering only those acts for which there are documented findings of guilt (i.e., DHO, Court, Parole, Mandatory Release, or Supervised Release Violation).
Escape History includes the individual's entire background of escapes or attempts to escape from confinement, or absconding from community supervision, excluding the current term of confinement.

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EXCEPTION:

Any institution disciplinary hearing (UDC or DHO) finding that a prohibited act was committed during the current term of confinement will be scored as a history item.

State disciplinary findings are scored unless there is documentation that the state disciplinary proceedings did not afford due process protection to the inmate.

Fleeing or Eluding Arrest, Failure to Appear for traffic violations, runaways from foster homes and similar behavior should not be scored under the Escape History item, even if clearly documented, but should be considered on a case-by-case basis under the Management Variable “Greater Security.” Failure to Appear or Flight to Avoid Prosecution for any offense however, must be counted when there is a documented finding of guilt.

In determining time frames, use the date of the documented occurrence. Documented information from juvenile or YCA adjudications can be used unless the record has been expunged or vacated.

Minor History of Escape - An escape from an open institution or program (e.g., minimum security facility, CCC, furlough) not involving any actual or threat of violence. Also includes military AWOL, Bail Reform Act, Flight to Avoid Prosecution, and Absconding from Community Supervision. There must be a finding of guilt.

Serious History of Escape - An escape from secure custody with

or without threat of violence.

Also

includes escapes from an open facility or program with actual

threat of violence.

There must be a finding of guilt. S = 3

points and requires application of PSF L.

6. HISTORY OF VIOLENCE

6. HISTORY OF VIOLENCE

NONE MINOR 0 SERIOUS 0

>15 YEARS 10-15 YEARS

1

1

2

4

5-10 YEARS 3 6

<5 YEARS 5 7

Enter the appropriate number of points that reflect any history of violence, considering only those acts for which there are documented findings of guilt (i.e., DHO, Court, Parole, Mandatory Release, or Supervised Release Violation). This item includes the individual's entire background of criminal violence, excluding the current term of confinement.

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EXCEPTION:

Any institution disciplinary hearing (UDC or DHO) finding that a prohibited act was committed during the current term of confinement will be scored as a history item.

State disciplinary findings are scored unless there is documentation that the state disciplinary proceedings did not afford due process protection to the inmate.

Severity of violence is determined by the offense behavior regardless of the conviction/finding of guilt offense. History of Violence points combine both seriousness and recency of prior violent incidents to assess the propensity for violent behavior, where more points mean greater risk. Therefore, if there is more than one incident of violence, score the combination of seriousness and recency that yields the highest point score. Prior periods of incarceration will be considered a “history” item if the inmate was physically released from custody and then returned to serve either a violation or a new sentence.
In determining time frames, use the date of the documented behavior. Documented information from juvenile or YCA adjudication can be used unless the record has been expunged or vacated.

Minor History of Violence - Aggressive or intimidating behavior which is not likely to cause serious bodily harm or death (e.g., simple assault, fights, domestic disputes, etc.) There must be a finding of guilt.

Serious History of Violence - Aggressive or intimidating behavior which is likely to cause serious bodily harm or death (e.g., aggravated assault, domestic violence, intimidation involving a weapon, incidents involving arson or explosives, rape, etc.). There must be a finding of guilt.

Example: If an offender was found guilty of homicide 20 years ago and a simple assault 3 years ago, assign 5 points for the simple assault. Or in another case, the offender had guilty findings for homicide 12 years ago; aggravated assault 8 years ago; and fighting 2 years ago, score 6 points for the aggravated assault 8 years ago.

NOTE:

Attempted suicide, self-mutilation and possession of weapons are not applicable behaviors for History of Violence scoring. In addition, verbal threats (such as Code 203- Threatening Bodily Harm) are to be viewed as minor violence.

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7. VOLUNTARY SURRENDER

7. VOLUNTARY SURRENDER

0 = NOT APPLICABLE

(-3) = VOLUNTARY SURRENDER

This item allows for the subtraction of three points from the “Base Score” (Item 11 below), when the Judgement indicates the inmate was ordered to voluntarily surrender. Enter the appropriate number of points. For purposes of this item, voluntary surrender means the inmate was not escorted by a law enforcement officer to either the U.S. Marshals Office or the place of confinement.

NOTE:

Supervised Release, Mandatory Release, and Parole Violators will not receive credit for Voluntary Surrender even if it is approved by the court.

8. AGE

8. AGE

0 = 55 and over 2 = 36 through 54

4 = 25 through 35 8 = 24 or less

SENTRY will automatically cross-reference the inmate’s date of birth and assign the appropriate number of points that reflect his or her age. Staff do not have to manually enter an offender’s age.

9. EDUCATIONAL LEVEL

9. EDUCATION LEVEL

0 = Verified High School Degree/GED 1 = Enrolled in and making satisfactory progress in GED Program 2 = No verified High School Degree/GED & not participating in GED
Program

Enter the appropriate number of points, that reflect the inmate’s education level as verified by the Education Department.

NOTE:

The scoring of this item on the Custody Classification form differs from the scoring on the Security Designation form. Therefore, unit staff must reconcile information obtained since the inmate’s previous score on this item.

In addition to the points assigned for the education level, the highest grade completed (HGC) will also be recorded on the BP337. For example an inmate who began but did not complete the 7th grade will be given a 6 in the HGC field. Similarly, a GED
will be given a 12, a college graduate a 16, a Master’s degree an 18, and a Ph.D. a 21 (the maximum allowed) in the HGC field.

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10. DRUG/ALCOHOL ABUSE

10. DRUG/ALCOHOL ABUSE 0 = Never/>5 Years

1 = <5 Years

Enter the appropriate number of points that reflect drug or alcohol abuse by the inmate. Examples of drug or alcohol abuse include: a conviction of a drug or alcohol related offense, a parole or probation violation based on drug or alcohol abuse, positive drug test, a DUI, detoxification, etc. Absent any information similar to the above, an inmate’s self report is sufficient to score this item. If this information is unknown, enter a “U” and the item will be scored as zero.
11. BASE SCORE

11. BASE SCORE (ADD B. ITEMS 1 - 10)
SENTRY will compute the base score based upon the points entered for Items 1 - 10 (excluding Item 3). In cases where the total results in a negative number the base score will be set at zero.

C. CUSTODY SCORING

1. PERCENTAGE OF TIME SERVED

1. PERCENTAGE OF TIME SERVED

3 = 0-25% 4 = 26-75%

5 = 76-90% 6 = 91+%

Enter the number of points that reflect the percentage of time the inmate has already served on the present commitment at the time of the review. To determine the percent, divide the number of months already served on the present sentence by the number of months of incarceration the inmate will have served upon reaching his/her projected release date. If applicable, give credit for jail time.

Example: An inmate has served 15 months (14 months at the institution, plus credit for one month jail time) of an anticipated total of 78 months of confinement.

Actual Time Served

=

Anticipated Time in Confinement =

15= 19.2% 78

Enter "3" , since 3 represents a range of 0 to 25%.

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2. PROGRAM PARTICIPATION

2. PROGRAM PARTICIPATION

0 = POOR

1 = AVERAGE

2 = GOOD

Enter the appropriate number of points that reflect the

inmate’s level of initiative in programming.

This

is based on the inmate’s active program involvement, eg. RPP,

FRP, Drug education or Treatment Programs, education programs,

or any other suitable programs as recommended by the Unit Team.

Unit Teams should score

this area at the time of the custody review so input may be

gained from all classification team members.

NOTE:

Inmates in “FRP Refuse”, “RPP Refuse”, or who refuse to participate in mandatory drug education or treatment programs will be scored with 0 points regardless of any other programs achievements. Otherwise, assign points as follows:

GOOD - The inmate actively participates in multiple recommended programs.

AVERAGE - The inmate could be participating in multiple recommended programs but chooses to be involved in one at a time. This also includes inmates who are on official waiting lists for programs recommended by the Unit Team.

POOR - No program involvement, refuses to participate, or poor participation in programs in which he/she is enrolled.
3. LIVING SKILLS

3. LIVING SKILLS

0 = POOR

1 = AVERAGE

2 = GOOD

Enter the appropriate number of points that reflect the inmate’s

living skills during the past 12 months. This is based on the

inmate’s demeanor, attitude, personal accountability and nature

of interaction with staff and other inmates. Incident Reports in

and of themselves are not the determining factor in assessing

the points on this item;

however, the underlying

behavior(s) may influence the scoring of this item. Unit Teams

should score this item at the time of the custody review so

input may be gained from all classification team members.

NOTE:

Inmates in “FRP Refuse”, “RPP Refuse”, or who refuse to participate in mandatory drug education or treatment programs will be scored with 0 points regardless of any other programs achievements. Otherwise, assign points as follows.

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GOOD - The inmate fully complies with staff expectations. He/she consistently receives outstanding sanitation and work reports and impresses staff as a “model inmate” in all other aspects of adjustment. He/she has developed a good rapport with staff. This high level of responsibility is consistent throughout the year.

While behavior(s) of a minor concern may occur occasionally, they do not detract from the inmate’s overall favorable performance. He/she is perceived by staff as attempting to program in a positive manner. Some examples of such behavior(s) are as follows:

• Rare property/sanitation related counseling necessary; however, not as the result of or leading to an Incident Report or extra duty;

• Work reports that are excellent overall, though not all evaluation elements are rated as “outstanding;” and,

• Uncharacteristic instances of staff reported negative interactions or behavior that do not result in Incident Reports.

AVERAGE - The inmate generally complies with staff

expectations although falls short of providing a full and

complete effort.

He/she has been counseled about sanitation, work performance

and/or other aspects of adjustment; however, the inmate is

not viewed as problematic. The inmate’s rapport with staff

is satisfactory.

The inmate presents well personally;

however, he/she fails to display any significant motivation

for

self-improvement.

POOR - The inmate consistently fails to meet staff expectations as evidenced by poor quarters sanitation, personal hygiene, negative interaction with staff/peers, or poor work reports.

4. TYPE AND NUMBER OF MOST SERIOUS INCIDENT REPORT(S)

4. TYPE & NUMBER 0 = ANY GREAT (100) IN PAST 10 YRS 3(A)= 1 MOD (300) IN PAST YR

OF MOST 1 = > 1 HIGH (200) IN PAST 2 YRS 3(B)= >1 LOW MOD (400) IN PAST YR SERIOUS

2(A)= 1 HIGH (200) IN PAST 2 YRS 4 = l LOW MOD (400) IN PAST YR INCIDENT RPT

2(B)= > 1 MOD (300) IN PAST YR

5 = NONE

Enter the points that reflect the most serious Incident Report(s) received by the inmate. This is determined by using the Institution Disciplinary Codes and Sanctions Severity Scale. Points are assigned based on the most severe Incident Report(s) for which the inmate has been found guilty by either

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NOTE:

Disciplinary findings while an inmate is housed under BOP authority in non-BOP correctional facilities should be scored if received during the current period of incarceration unless there is documentation that the disciplinary proceeding(s) did not afford due process protection to the inmate.

Example: If an inmate has been found guilty of three HIGH severity Incident Reports within the past two years, he/she would receive a score of "1." If the inmate has only received one HIGH severity incident report within the past two years, the inmate would receive a score of "2(a)."

NOTE: Greatest severity Incident Reports merit a score of "0" regardless of the total number received in the last ten years.

The letter characters assigned to numerical scores 2 and 3 are merely used to differentiate between these items which have identical numerical values. The letter character is not used for computation.

NOTE:

For supervised release, mandatory release, and parole violators, Incident Reports received during a previous period of confinement should be used, if they apply, for scoring "History of Escape or Violence,” and "Drug/Alcohol Abuse." However, Incident Reports received during a previous period of confinement will not be counted when scoring "Type and Number of Most Serious Incident Reports" and "Frequency of Incident Reports" since this behavior occurred during a previous period of confinement. Only Incident Reports received during the current supervised release and parole violator term will be counted in these categories.

5. FREQUENCY OF INCIDENT REPORTS

5. FREQUENCY OF INCIDENT REPORTS (IN PAST YEAR)

0 = 6+ 1 = 2 THRU 5

2 = ONE 3 = NONE

Enter the appropriate number of points that reflect the frequency of Incident Reports.

This is determined by assigning points based on the number of Incident Reports for which the inmate has been found guilty by

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either the Unit Discipline Committee or the Discipline Hearing Officer during the past 12 months.
6. FAMILY/COMMUNITY TIES

6. FAMILY/COMMUNITY TIES 3 = NONE OR MINIMAL

4 = AVERAGE OR GOOD

Enter the number of points that reflect the level of family and community ties. This is based on the inmate’s efforts to build, maintain and strengthen family/community ties rather than the unilateral efforts of the family/community to provide support and assistance to the inmate. Consideration should be given to the following:
• Financial support (not to include FRP participation);
• Visiting (consider inmate’s efforts in establishing visiting list, frequency of visits, and who is visiting);
• Development of phone list with focus on family, employment, and community;
• Sending and receiving regular correspondence;
• Participation in Institution Release Preparation Program and institution sponsored mock job fairs;
• Involvement in parenting program and other family oriented activities;

• Contacts with social service providers to promote/enhance family stability (i.e., school guidance counselors, welfare workers, treatment providers);
• Contact with Prisoner Visitation Services;
• Participation in institution sponsored community service opportunities (i.e., Toys for Tots, Make a Wish Foundation, community gardens, Special Olympics); and,
• Voluntary involvement with community activities.

Score each inmate based on his/her unique circumstances while focusing on what the inmate does to maintain, build or strengthen these ties. To best accomplish this, Unit Teams should score this item at the custody review so input can be gained from all classification team members and possibly even the inmate.

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Examples:
Inmates who demonstrate no initiative to further and/or enhance relationships with supportive parents/spouse/children should be scored as “none or minimal.” (e.g., visiting and phone lists that do not include family members, no effort to provide financial support for children);
Inmates with limited financial resources who have parents/spouse/children living significant distances from their designated facilities, and request to have these family members placed on their visiting and phone lists, and send and receive frequent letters from family and make phone calls to them when funds are available. These inmates score as “average or good;” and,
Inmates with no surviving parents, siblings, spouse, or children may receive an “average or good” rating by developing contacts through Prisoner Visitation Services (PVS) and participation in community based activities and community service opportunities.
7. CUSTODY TOTAL
7. CUSTODY TOTAL (ADD C. 1 - 6)
Add the points in items 1 through 6, Section C, and enter the sum in this block.
8. CUSTODY VARIANCE
8. CUSTODY VARIANCE (FROM APPROPRIATE TABLE ON BP-338, PAGE 2)
The Custody Variance adjusts the inmate's total security points as specified in Tables 6-1(M) and 6-1(F) based upon the inmates custody score. If the appropriate table indicates a value other than zero the application of the Custody Variance will:
• add points to the base score, thus raising the security level and increasing the custody (when the value is positive); or,
• subtract points from the base score, thus lowering the security level and decreasing the custody (when the value is negative).

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Table 6-1(M)

Male Custody

CUSTODY TOTAL

Variance

Table

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

B S

0-11 +4 +4 +3 +3 +2 +1 +1 +1 0 0 -1 -1 -2 -3 -4 -5 -5

A C

S O

12-15 +4 +4 +3 +3 +2 +1 +1 +1 0 0 0 -1 -2 -3 -4 -5 -5

E R

E

16-23 +8 +6 +5 +4 +4 +3 +2 +1 +1 0 0 0 -1 -1 -2 -2 -3

24+

+8 +6 +5 +4 +4 +3 +2 +1 +1 +1 0 0 0 -1 -1 -2 -3

Example: A male inmate has a Base Score of 17 points and a Custody Total of 11 points. By using the Custody Variance Matrix, the intersecting point for these two items is +3. Thus, +3 is the Custody Variance score that will be entered on Item 8, Section C.

Table 6-1(F)

Female Custody Variance Table

CUSTODY TOTAL 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

B S 0-15

+15 +11 +7 +4 +3 +2 +1 +1 0

0

0

0 -2 -4 -8 -12 -16

A C

S O 16-30 +15 +11 +7 +4 +3 +2 +1 +1 0

0

0

0

0 -4 -8 -12 -16

E R

E 31+

+15 +11 +7 +4 +3 +2 +1 +1 0

0

0

0

0

0 -1 -5 -8

Example: A female inmate has a Base Score of 17 points and a Custody Total of 11 points. By using the Custody Variance Matrix, the intersecting point for these two items is +2. Thus, +2 is the Custody Variance score that will be entered on Item 8, Section C.
9. SECURITY TOTAL
9. SECURITY TOTAL (ADD OR SUBTRACT CUSTODY VARIANCE (C.8) TO BASE SCORE (B.10))
Apply the Custody Variance Score to the Base Score, and enter the result on Item 10, Section C.
Example: An inmate has a Base Score of 16 and a Custody Variance Score of +4. By applying +4 to 16, a Security Total of 20 is obtained and entered on Item 9, Section C.

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NOTE:

If the Custody Variance score is 0, the figure entered will be exactly the same as the Base Score. If the application of the Custody Variance to the Base Score results in a negative number, use 0.

10. SCORED SECURITY LEVEL

10. SCORED SECURITY LEVEL

An inmate's Security Level is determined by the Security Total and any applicable Public Safety Factors (see Chapter 5).
11. MANAGEMENT SECURITY LEVEL (MSL)

11. MANAGEMENT SECURITY LEVEL

A Security Level which is entered by the DSCC or Central Office upon application of any of the three MSL Management Variables (PSF Waived, Greater Security, Lesser Security). The MSL overrides the inmate’s scored security level. If there was a previously entered MSL, it will automatically appear in this position.
12. CUSTODY CHANGE CONSIDERATION
To determine eligibility for a custody change, the following procedures apply:
• If the Custody Variance Score (Section C, Item 8) is in the positive (+) range, consider a custody increase;
• If the Custody Variance Score (Section C, Item 8) is 0, the inmate's present custody is continued; or,
• If the Custody Variance Score (Section C, Item 8) is in the negative (-) range, consider a custody decrease.

SECTION D. INSTITUTION ACTION

1. TYPE OF REVIEW

1. TYPE OF REVIEW (EXCEPTION OR REGULAR)
An inmate should be handled as an exception case if there is documentation of the following:

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• Public Safety Factors. Any inmate with a PSF. If the PSF has been waived the case is still considered an exception;
• Central Inmate Monitoring Assignment. An inmate with a CIM assignment, excluding state prisoners and separation cases; or,
• Other. The Warden may specify in writing other offenses or cases that require exception review.

If the inmate does not meet any of the above criteria the

“Type of Review” will be “Regular.”

For Regular Cases,

the Unit Team has authority to make custody assignments, and

the Unit Manager is the signature authority on the BP-338.

For Exception Cases, the Warden or designee is the approving

official and retains signature authority for the BP-338

whenever there is a decrease in custody. Unit staff will

indicate on the BP-338 form the reason for the Exception Case,

only in those instances in which the unit team will make a

recommendation for a reduction in custody level.

2. CURRENT CUSTODY

2. CURRENT CUSTODY (MAXIMUM, IN, OUT, COMMUNITY)
Checkthe proper code for the inmate's current custody: MAX = MAXIMUM, IN = IN, OUT = OUT, COM = COMMUNITY
3. NEW CUSTODY

3. NEW CUSTODY (MAXIMUM, IN, OUT, COMMUNITY)
Check the proper code for the inmate’s new custody:
MAX = MAXIMUM, IN = IN, OUT = OUT, COM = COMMUNITY
As indicated below, the Custody Classification Form only recommends; the final decision rests with the review authority. With the exceptions noted previously in Item 1, Type of Review, the Unit Team has the following options:

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Table 6-2

BP-338 FORM RECOMMENDS
Custody Increase(+)
range
Custody Decrease(-)
range
Continue Present Custody

CLASSIFICATION TEAM OPTIONS
Increase custody one level or
Continue same custody assignment and document why
Decrease custody one level or
Continue same custody assignment and document why
Continue same custody assignment or
(Refer to the Warden, see below)

The custody level should normally be reduced or increased by only one level (i.e., a reduction of IN would be to OUT, not to COMMUNITY; an increase from COMMUNITY would be to OUT, not to IN). However, an exception regarding increases can be made for disciplinary cases involving prohibited acts of the Greatest Severity or escape, provided it is justified by the Unit Team in a memo to the inmate's central file with a copy to the inmate.

Additionally, transfer to a CCC may require the custody level to be decreased more than one level. If the inmate is receiving a custody reduction solely for the purpose of transferring to a CCC, a new Custody Classification Form (BP338) does not need to be completed. Approval for a decrease to COMMUNITY custody is granted by virtue of the Warden’s approval and signature on the Institution Referral for CCC Placement (BP-210).

While it is mandatory that COMMUNITY custody be effected at the time of transfer, it may not be appropriate to reduce the inmate’s custody level prior to the date of transfer (e.g., it would not be appropriate for an IN custody inmate at a MEDIUM security level institution to have COMMUNITY custody while still housed at the institution). In such cases, upon receipt of a CCC acceptance date, a SENTRY future assignment would be established for the date of transfer. The effective time for the reduction would be 12:01 AM. An inmate must be assigned COMMUNITY custody status prior to transfer to a CCC.

If the Custody Variance (Section C, Item 8) is zero (Continue Present Custody), and the Unit Team believes that there is a compelling reason to change the inmate's custody, the Unit Team will refer the case to the Warden, who is the deciding official.

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4. ACTION

4. ACTION:

(APPROVE, DISAPPROVE)

For exception cases only, the Warden or designee should check

the appropriate box indicating either approval or disapproval

of the Unit Team's decision.

If the Warden

disagrees with the form, he/she will indicate the reasons on

the

338 form.

For regular cases, the Unit Manager will

take this action.

5. DATE OF NEXT REVIEW

5. DATE OF NEXT REVIEW
Enter the month and year of the next scheduled review. 6. CHAIRPERSON

6. CHAIRPERSON

NAME AND SIGNATURE

The Unit Manager will print his or her name and sign the form in the space provided.
7. EXCEPTION REVIEW

7. EXCEPTION REVIEW

NAME (WARDEN OR DESIGNEE) AND SIGNATURE

This item is reserved for the Warden or designee's printed name and signature if the inmate is an exception case as defined in Item 1 of this section. If the Warden or designee disapproves, the reason will be documented on the Custody Classification Form (BP-338) and a copy provided to the inmate.
8. SUMMARY OF FINAL ACTION

8. SUMMARY OF FINAL ACTION:

SECURITY LEVEL CUSTODY

After all action is complete (exception cases signed off, etc.,) the final outcome will be entered. Upon completion, the form is to be filed in the Inmate Central File, Section 2, and the appropriate custody assignment updated in SENTRY.

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BP-338 CUSTODY CLASSIFICATION FORM PAGE 1

U.S. DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS

A .

I D E N T I F Y I N G

D A T A

1. INSTITUTION CODE

2. UNIT

3. DATE

4. NAME
6. MANAGEMENT A - NONE VARIABLES B - JUDICIAL RECOMMENDATION D - RELEASE RESIDENCE/PLANNING E - POPULATION MANAGEMENT

5. REGISTER NUMBER

G - CIMS I - MED/PSYCH TREATMENT
N - PROGRAM PARTICIPATION R - WORK CADRE

S - PSF WAIVED U - LONG TERM DETAINEE
V - GREATER SECURITY W - LESSER SECURITY

7. PUBLIC SAFETY FACTORS

A - NONE B - DISRUPTIVE GROUP (males only) C - GREATEST SEVERITY OFFENSE (males only)
F - SEX OFFENDER G - THREAT TO GOVERNMENT OFFICIALS H - DEPORTABLE ALIEN

I - SENTENCE LENGTH (males only) K - VIOLENT BEHAVIOR (females only) L - SERIOUS ESCAPE
M - PRISON DISTURBANCE N - JUVENILE VIOLENCE O - SERIOUS TELEPHONE ABUSE

B .

B A S E

S C O R I N G

1. TYPE OF DETAINER

0 = NONE 1 = LOWEST/LOW MODERATE

3 = MODERATE 5 = HIGH

7 = GREATEST

2. SEVERITY OF CURRENT 0 = LOWEST

OFFENSE

1 = LOW MODERATE

3 = MODERATE 5 = HIGH

7 = GREATEST

3. MONTHS TO RELEASE

___________

4. CRIMINAL HISTORY SCORE

0 = 0-1 2 = 2-3

4 = 4-6 6 = 7-9

8 = 10-12 10 = 13 +

5. HISTORY OF ESCAPE

OR ATTEMPTS

MINOR

SERIOUS

NONE 0
0

>15 YEARS 1 3(S)

10-15 YEARS 1 3(S)

5-10 YEARS 0 <5 YEARS

2

3

3(S)

3(S)

6. HISTORY OF VIOLENCE

NONE

MINOR

0

SERIOUS

0

>15 YEARS 1 2

10-15 YEARS 1 4

5-10 YEARS 3 6

<5 YEARS 5 7

7. VOLUNTARY SURRENDER STATUS 0 = NOT APPLICABLE

(-3 ) = VOLUNTARY SURRENDER

8. AGE 9. EDUCATION LEVEL

0 = 55 and over 2 = 36 through 54

4 = 25 through 35 8 = 24 or less

0 = Verified High School Degree/GED 1 = Enrolled in and making satisfactory progress in GED Program 2 = No verified High School Degree/GED & not participating in GED Program

10. DRUG/ALCOHOL ABUSE 0 = Never/>5 Years

1 = <5 Years

11. BASE SCORE (ADD §B. ITEMS 1 - 10)

C. CUSTODY SCORING

1. PERCENTAGE OF TIME SERVED

3 = 0-25% 4 = 26-75%

2. PROGRAM PARTICIPATION

0 = POOR

5 = 76-90% 6 = 91+%
1 = AVERAGE

2 = GOOD

3. LIVING SKILLS

0 = POOR

1 = AVERAGE

2 = GOOD

4. TYPE & NUMBER OF MOST
SERIOUS INCIDENT RPT

0 = ANY GREAT (100) IN PAST 10 YRS

1 = > 1 HIGH (200) IN PAST 2 YRS

2(A) =

1 HIGH (200) IN PAST 2 YRS

2(B) = > 1 MOD (300) IN PAST YR

5. FREQUENCY OF INCIDENT REPORTS
(IN PAST YEAR)

0 = 6+ 1 = 2 THRU 5

6. FAMILY/COMMUNITY TIES

3 = NONE OR MINIMAL

7. CUSTODY TOTAL (ADD § C. 1 - 6)

3(A) = 1 MOD

(300) IN PAST YR

3(B) = >1 LOW MOD (400) IN PAST YR

4

= l LOW MOD (400) IN PAST YR

5 = NONE

2 = ONE 3 = NONE

4 = AVERAGE OR GOOD

8. CUSTODY VARIANCE (FROM APPROPRIATE TABLE ON BP-338, PAGE 2)

9. SECURITY TOTAL (ADD OR SUBTRACT CUSTODY VARIANCE (§ C.8) TO BASE SCORE (§ B.11)

10. SCORED SECURITY LEVEL ______________

11. MANAGEMENT SECURITY LEVEL ______________

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BP-338 CUSTODY CLASSIFICATION FORM PAGE 2

U.S. DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS

SECTION D: INSTITUTION ACTION

1. TYPE OF REVIEW:

(EXCEPTION OR REGULAR)

2. CURRENT CUSTODY: (MAXIMUM, IN, OUT, COMMUNITY)

3. NEW CUSTODY: (MAXIMUM, IN, OUT, COMMUNITY)

4. ACTION:

(APPROVE, DISAPPROVE)

5. DATE OF NEXT REVIEW

6. CHAIRPERSON

_______________________________________ NAME AND SIGNATURE

7. EXCEPTION REVIEW

_______________________________________ NAME (WARDEN OR DESIGNEE) AND SIGNATURE

8. SUMMARY OF FINAL ACTION:

SECURITY LEVEL

CUSTODY

CUSTODY CHANGE RECOMMENDATIONS BASED ON CUSTODY VARIANCE

IF CUSTODY VARIANCE IS IN THE (+) RANGE

CONSIDER A CUSTODY INCREASE

IF CUSTODY VARIANCE IS IN THE (-) RANGE

CONSIDER A CUSTODY DECREASE

IF CUSTODY VARIANCE IS ZERO

CONTINUE PRESENT CUSTODY

Male Custody Variance Table

CUSTODY

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

S B C A O S R E E

0-11 12-15 16-23 24+

+ 4

+ 4

+ 3

+ 3

+ 2

+ 1

+ 1

+ 1

0

0

- 1

- 1

- 2

- 3

- 4

- 5

- 5

+ 4

+ 4

+ 3

+ 3

+ 2

+ 1

+ 1

+ 1

0

0

0

- 1

- 2

- 3

- 4

- 5

- 5

+ 8

+ 6

+ 5

+ 4

+ 4

+ 3

+ 2

+ 1

+ 1

0

0

0

- 1

- 1

- 2

- 2

- 3

+ 8

+ 6

+ 5

+ 4

+ 4

+ 3

+ 2

+ 1

+ 1

+ 1

0

0

0

- 1

- 1

- 2

- 3

Female Custody Variance Table

S B C A O S R E E

0-15 16-30 31+

CUSTODY

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

+15 +11 +7

+ 4

+ 3

+ 2

+ 1

+ 1

0

0

0

0

- 2

- 4

- 8

-12 -16

+15 +11 +7

+ 4

+ 3

+ 2

+ 1

+ 1

0

0

0

0

0

- 4

- 8

-12 -16

+15 +11 +7

+ 4

+ 3

+ 2

+ 1

+ 1

0

0

0

0

0

0

- 1

- 5

- 8

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INMATE TRANSFER
TRANSFER PROCEDURES. Transfers (also known as redesignations) are used to move inmates from one institution to another as needed, with each type of transfer having a specific objective. The following are some of the more frequent reasons for a transfer:
• institution classification; • nearer release; • disciplinary/close supervision; • adjustment; • medical/psychological treatment; • temporary transfers; • training purposes/program participation; • Institution Hearing Program; • pre-release; and, • transfers from CCC’s.
After review and approval by the Unit Team, a transfer request is submitted via the Request for Transfer/Application of Management Variable (409) to the DSCC. The procedures for completing the 409 are outlined below and may only be waived or modified with the approval of the Assistant Director, Correctional Programs Division, Washington, D.C. or his/her designee.
1. Inmate’s Medical Status. Include current, complete, and accurate available information concerning any medical problem that might affect redesignation;
2. Institution Adjustment. Include a brief description of the inmate's adjustment during this period of incarceration with emphasis on recent adjustment;
3. Rational for Referral. Include a complete, specific justification and support for the requested action;
4. Parole Hearing Scheduled. Indicate whether or not the inmate is eligible for a parole hearing. If yes, indicate the date of the hearing. (See SALLYPORT for a current listing of parole/non-parole institutions).
5. Past or Present Behavior and/or Management Concerns. Note any past or present behavior and/or management concerns which may affect placement (i.e., history of arrests or disruptive behavior

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which may not have resulted in a conviction, inmates preference regarding this request, etc.). Also note any Security Threat Group concerns/associations. In addition, it is necessary for staff to closely review each case submitted for any CIM concerns. Any CIM concerns should be noted on the 409 if applicable. However, it is not necessary for staff to route a Request for CIM Activity Clearance with each transfer request since CIM activity clearance is included in the redesignation for all CIM assignments except WITSEC cases. Redesignations between same security level institutions are discouraged, except for CIM purposes, nearer release purposes, or other unusual circumstances. Copies of all transfer requests for Disruptive Group Members will be forwarded to the Intelligence Section, Central Office, via GroupWise upon approval of the transfer. Additionally, the institution Special Investigative Supervisor should also receive a copy of the transfer request; and

6. BP-337/BP-338 Discrepancies. Include a brief description of any scoring changes between the BP-337 and BP-338.

Complete all required information, then route the request

through normal institutional review channels for approval by

the CEO.

After approval by the CEO, it may be routed

to the DSCC Administrator from the unit’s mailbox. The Unit

Team will enter the appropriate “DST” assignment (see below)

into SENTRY as confirmation that a redesignation request has

been submitted to the DSCC or OMDT.

Enter this SENTRY

assignment under the "DST" category using the “Update Inmate

Assignment” transaction.

• Enter “W REDES R” if the transfer request is for a routine transfer.

• Enter “W REDES M” if the transfer request requires a review by the OMDT (Medical Designator).

Once the e-mail requesting redesignation is received, DSCC staff will at a minimum review the following SENTRY transactions to determine if the inmate is appropriate for redesignation:

CIM Clearance and Separatee Data; Inmate Load Data; Inmate Profile; Custody Classification Form; Security/Designation Data Form; and, Chronological Disciplinary Record.
If the transfer is approved, DSCC staff will enter the information and the appropriate destination (DST) assignment in

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P5100.08 9/12/2006 Chapter 7, Page 3 SENTRY on the “Enter Redesignation” screen and will also note the approved institution transfer code. The method of transportation is at the discretion of the Warden. Should a change in DST be required, DSCC staff will make the change in SENTRY prior to the inmate’s arrival at the designated institution.
If the transfer is denied, DSCC staff will indicate the denial on the “Update Inmate Remarks” screen and will also delete the “W REDES” from SENTRY. Unit staff should closely monitor SENTRY for deletions of the “W REDES” transaction.
1. INSTITUTION CLASSIFICATION TRANSFERS. These transfers are typically referred to as either “Lesser Security” (Code 308) transfers or “Greater Security” (Code 307) transfers.
a. Security Level Changes
(1) When a decrease in the inmate’s security level is indicated by the Custody Classification Form, transfer of the inmate to a lower security level institution should be considered.
(2) Likewise, an increased security level may be indicated in a similar fashion. The security total may increase to a higher security level range.
If an updated security scoring, combined with Public Safety Factors, indicate that an inmate is rated at a different security level, the inmate must be referred to the DSCC for either transfer or application of a Management Variable. For example, if an inmate in a Low security level institution is reclassified to Minimum security, the case must be referred for transfer or application of a Management Variable. If transfer is denied, DSCC staff will apply an appropriate Management Variable and add a Management Security Level, if applicable.
b. Custody Level Changes. During an inmate's custody review, a custody level may be increased or decreased (ordinarily, only one level at a time) indicating a transfer is appropriate. For example:
(1) A Medium security level inmate has OUT custody, and becomes eligible for COMMUNITY custody. If the Unit Team decides to reduce custody, the inmate would normally be referred for redesignation to a Low or Minimum security level facility, since Medium security level institutions do not house COMMUNITY custody inmates. If approved for transfer by the DSCC, the Management Variable of Lesser Security will be applied and the Management Security Level will be changed accordingly.

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(2) An inmate's transfer to a higher security

institution could be triggered by an increase in custody

needs. For example, a Medium security level inmate with

IN custody becomes eligible for a custody increase. The

team agrees to increase the custody to Maximum.

Since

Medium security level facilities are not authorized to

house Maximum custody inmates, the inmate must be

referred for transfer to a High security level

institution and the MSL changed in accordance with the

application of an MGTV.

2. NEARER RELEASE TRANSFERS (Code 313). Nearer release transfers move the inmate closer to their legal residence or release destination, consistent with their security level. Inmates may be considered for a nearer release transfer only after serving 18 consecutive months of clear conduct in a general population. Nearer release transfers should be incorporated with “Lesser Security” transfers whenever possible. Once the inmate has been transferred within 500 driving miles of his or her release residence, no further referrals will be made for nearer release transfer consideration. further referrals can be considered for nearer release transfer consideration subject to bed availability, the prisoner’s security designation, the prisoner’s programmatic needs, the prisoner’s mental and medical health needs, any request made by the prisoner related to faith- based needs, recommendations of the sentencing court, and other security concerns of the Bureau of Prisons.

Transfer to a facility in an area other than the inmate's legal residence or sentencing district may be considered by the inmate's Unit Team provided the inmate can provide strong evidence of community and/or family support. Institution staff should use sound correctional judgment when reviewing such requests for transfer to ensure the transfer is consistent with guidelines established in this chapter.

Inmates with an Order for Deportation, an Order of Removal, an ICE detainer for an unadjudicated offense(s) or an ICE detainer for a hearing will not be transferred for nearer release purposes since they will be returning to the community outside, rather than inside, the United States upon release.

3. WITSEC TRANSFERS. All movement of Witness Security cases is

coordinated exclusively through the Inmate Monitoring Section

of the Correctional Programs Branch, Central Office. Witness

Security cases will not be transferred without authorization

from that office.

Witness Security inmates who require

medical or mental health treatment at a medical center must

also be approved by the Medical Designator.

If the inmate is classified as a WITSEC case, a copy of the medical referral will be sent simultaneously to the Inmate

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P5100.08 9/12/2006 Chapter 7, Page 5 Monitoring Section (IMS) and the Medical Designator. The Inmate Monitoring Section will coordinate with the OMDT regarding an appropriate placement. Placement will be based on available medical resources, security needs, bed space availability, and the inmate's need for medical care. IMS will enter activity clearances for WITSEC cases.
4. DISCIPLINARY/CLOSE SUPERVISION TRANSFERS (Codes 309/323). An act(s) of documented institution misconduct may result in an inmate’s transfer to another institution, normally of greater security, for disciplinary reasons. Wardens may recommend same security level transfers only when placement at a greater security level institution is not possible or other overriding circumstances exist.
Disciplinary or Close Supervision transfer requests will be sent electronically to the DSCC Administrator and contain the following information:
(a) Request for Transfer/Application of Management Variable (must be thorough and specific);
(b) Close Supervision investigation report, if requested; and,
(c) Intelligence data or supporting memorandum if requested.
Institution staff should carefully review the management of 309/323 cases on an individual basis, applying sound correctional judgment that considers the safety and security of the inmate, the institution and its staff and the community.
5. ADJUSTMENT TRANSFERS (Code 330). All transfer referrals submitted as Code 330 transfers for adjustment purposes will be reviewed by the DSCC. Adjustment purposes transfer requests will be sent electronically to the DSCC Administrator via Form 409. DSCC staff will ensure that the transfer does not meet the requirements of an unverified protection transfer, Code 323.
6. MEDICAL AND PSYCHIATRIC TRANSFERS (Codes 331-336 and 338, 339). Medical designations and transfers are approved by the Central Office Medical Designator, Office of Medical Designations and Transportation (OMDT). The Central Office Medical Designator assigns inmates to Medical Referral Centers (MRC), institutions with medical resources, or nonBureau community care centers to provide needed medical services. Medical redesignations are initiated for inmates with acute medical, surgical, or psychiatric condition, or for those inmates who have chronic care needs that cannot be addressed at the parent institution. Transfers will be classified as either

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P5100.08 9/12/2006 Chapter 7, Page 6 (a) Emergency, (b) Routine/Urgent, or (c) Routine.

If an inmate objects, either in writing or through his or her attorney, to a transfer for psychiatric/mental health treatment, the provisions of 18 U.S.C. § 4245 may apply. Staff will suspend transfer action in such cases and refer the matter to their Regional Counsel for review. The Regional Counsel will notify the institution when the transfer action can be re-instituted.

a. Emergency Transfer - An emergency transfer is a medical, surgical, or psychiatric situation determined by medical/mental health staff that requires immediate, direct transportation. This includes inmates not medically or psychiatrically capable of transport via routine BOP air/surface transportation, e.g., bus, commercial air, or USMS/Bureau airlift. Direct transportation is defined as air ambulance, air charter, or ground ambulance and, in some instances, an institution vehicle may be utilized.

b. Routine/Urgent Transfer - A routine/urgent transfer is initiated for medical, surgical, or psychiatric treatment that is not an emergency, however must be transported directly to a MRC, typically within two to three weeks of designation.

Routine urgent transfers require direct transfer to the MRC because of the acuity of their medical, surgical, or psychiatric condition, or because MRC-based services need to be initiated within an appropriate time frame. Holdover housing at a county jail or Bureau general population institution is not permissible.

c. Routine Transfer - A routine transfer is initiated for medical, surgical, or psychiatric treatment that is not an emergency and time en-route is not a major factor.
Routine transfers may travel by any available means.

d. Procedures for Initiating Emergency, Routine/Urgent,

and Routine Transfer Requests.

All transfer

requests for medical, surgical, or psychiatric designations

will be initiated via GroupWise on the Medical/Surgical and

Psychiatric Referral Request Form (BP-770) available on

SALLYPORT.

The HSA, with input from the

Clinical Director and other providers involved with the

inmate’s care (e.g., mid-level providers, psychologists,

consultant physicians), is responsible for completing the BP-

770. The referring institution Warden must review the BP-770

and authorize the request for transfer.

The BP-770 serves as the redesignation, transportation, and security worksheet from which the actual redesignation is made. It will also serve as the emergency referral request form, documentation of the inmate’s condition and the reason

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for transfer. Accordingly, it is essential that the BP-770 be completed thoroughly and accurately.
The Medical Designator will review each request for redesignation and approve or deny the requested transfer. Based on clinical information and in consultation with the Medical Director, the Medical Designator may change the urgency level of the request.

OMDT will authorize CIM clearance (if appropriate) and enter approved transfers to an appropriate BOP facility in SENTRY on the “Enter Redesignation” screen.

e. Completion of Treatment - All requests for redesignation to the parent facility upon completion of Medical/Surgical or Psychiatric treatment, or to another medical facility for continuation of treatment, will be initiated by the facility currently housing the inmate via GroupWise on the Discharge Transfer Summary form. This form serves as the designation, transportation, and security worksheet from which the redesignation is made.

Medical cases are normally returned to their parent facility unless the DSCC approves a change in the parent facility based on clinical justification provided prior to redesignation by the Medical Designator.

7. TEMPORARY TRANSFERS. It is sometimes necessary to

temporarily transfer an inmate to a contract facility or other

Bureau institution. This is normally for security reasons, when

the current institution does not have a Special Housing Unit. In

such cases, institution staff will forward a request for

temporary transfer approval from the Warden to the DSCC. The

request will include the rationale for transfer, with assurance

that the receiving facility is in agreement with the temporary

transfer. Transfer approval must be obtained prior to the

transfer during normal working hours, or if after hours, the

next work day.

A copy of this request will be routed to the

appropriate CCM office, if the transfer is to a contract

facility.

8. TRANSFERS FOR TRAINING PURPOSES OR PROGRAM PARTICIPATION. An inmate is ordinarily only transferred for specialized national programs not offered at the parent facility to include:

(a) Residential Drug Treatment Program; (b) Life Connections Program; (c) Special Management Unit; and (d) Sex Offender Programs.
When placement for program participation is inconsistent with the assigned security level, the appropriate Management Variable must be applied by the DSCC. Ordinarily, the inmate will be

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P5100.08 9/12/2006 Chapter 7, Page 8 returned to the referring institution upon completion of the specialized training or program if the inmate has 18 months or more remaining until the inmate’s release date at the time of the transfer. Further, if the program facility is nearer to the inmate’s release residence, than is the referring institution, the inmate may remain at the program facility.

9. INSTITUTION HEARING PROGRAM TRANSFERS. The Institution

Hearing Program (IHP) is a coordinated effort by the Bureau,

ICE, and the EOIR to provide deportation or exclusion

proceedings to sentenced aliens as expeditiously as possible

after the date of conviction.

Eligibility,

designation, classification, and transfer procedures are

specifically outlined in Bureau directives. IHP sites have been

established for male and female non-U.S. citizens who are

serving federal sentences to ensure a deportation or exclusion

hearing is conducted early in their sentence instead of at the

end of their sentence.

10. TRANSFERS TO SATELLITE CAMPS. The Warden of an institution

with a satellite camp may transfer an inmate from the main

institution to the camp if the inmate is assigned an

appropriate security and/or custody level. The Camp

Administrator of a satellite camp adjacent to a Low or Medium

security level institution may temporarily transfer the inmate

to the main institution for disciplinary purposes (i.e.,

disciplinary segregation).

If a need for an immediate

redesignation arises, the inmate may be placed as a holdover in

Administrative Detention at the main institution while approval

is sought from the DSCC for redesignation to that institution

or another institution.

An inmate may travel via “unescorted transfer” from a low or

minimum security level institution to a minimum security level

institution if the inmate is a minimum security level inmate

and has OUT or COMMUNITY custody.

The inmate’s

family (on the approved visiting list) may provide

transportation to the receiving institution only if the inmate

is transferring from a minimum security level institution to

another minimum security level institution, and if approved by

the Warden.

The inmate’s family is expected

to bear all transportation costs.

The inmate

must go directly from the sending institution to the receiving

institution.

The Warden may authorize clearance for the transfer of a CIM Case, with the exception of WITSEC cases, to the satellite camp of the parent facility provided established regulations for regular transfer authority have been met. (Refer to the CIM Manual for more specific details).

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11. PRE-RELEASE TRANSFERS. Inmates in federal and contract institutions may be transferred to CCCs in accordance with the Program Statement Community Corrections Center (CCC) Utilization and Transfer Procedure. Inmates who have been approved for CCC referral and are otherwise appropriate for camp placement are to be transferred to a camp for intermediate placement if at all practicable. Inmates should be encouraged to complete all or most of the Institution Release Preparation Program at the parent institution prior to transfer.

The parent institution is to complete the CCC referral packet and the camp should be closer to the inmate’s release residence. This process should be completed to allow the inmate a minimum of a 60-day placement at the camp prior to the reporting date at the CCC. CCC referrals may be made 12 to 18 months in advance of an anticipated reporting date with the concurrence of local CCM offices. A notation that the CCC referral was made with a specific projected placement date should be included in the request for institution transfer, and the transfer request should be prepared at the same time as the CCC referral.

12. TRANSFERS FROM CCC’S. When an inmate fails to meet the conditions of CCC placement, the CCM should designate the inmate to the parent institution with consideration given to the following criteria for designation:

(a) local manday detention rates; (b) availability of Bureau Detention Centers; (c) budgetary constraints; (d) projected release date; and, (e) distance to parent facility.

When returning the inmate to the parent institution is not

cost effective, the Community Corrections Office will refer the

case to the DSCC for designation.

DSCC staff, will

make the designation, and should consider the closest

institution commensurate with the inmate’s security needs. When

the DSCC designates the inmate to a facility, DSCC staff will

notify the parent institution to facilitate the forwarding of

the central file.

13. LONG-TERM DETAINEES. The authority for the redesignation of long-term detainees rests with the Detention Services Branch, Correctional Programs Division, Central Office. Refer to the current Program Statement Mariel Cuban Detainees for transfer procedures. Transfers for medical or mental health treatment however, shall be referred to the Central Office Medical Designator. Mariel Cubans who are sentenced, and therefore not detainees, are handled in a routine fashion by DSCC staff.

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14. IN-TRANSIT DATA FORM

a. Upon notice that an inmate is being transferred or temporarily released to an authorized law enforcement officer (e.g., U.S. Marshal, state law enforcement officer, or Bureau bus officer), the Unit Manager will ensure the following:

• The top portion of the SENTRY automated InTransit Data Form is accurate and the bottom portion is completed;

• CIM, YCA, DCYRA and any other important information is included in the space for "Non-Routine Security Needs;"

• CIM separation information is accurate, up-to-date and the SENTRY generated "CIM Clearance and Separatee Data" is attached to the In-Transit Data Form; and,

• The In-Transit Data Form is signed, dated, and forwarded to ISM staff who will attach a current inmate photograph and provide the form to the transporting officer.

NOTE:

The most recent In-Transit Data Form is maintained in the Inmate Central File. The “CIM Clearance and Separatee Data” display will not be filed with the In-Transit Data Form.

b. Upon receipt of the In-Transit Data Form, ISM staff will ensure the following:

• The information indicated on the top portion of the form is correct. SENTRY update functions should be executed in the event that the data is not accurate;

• The Sentencing Remarks should include the offenses and the length of sentence as noted on the Judgment. If this information is not accurate, the load data should be updated;

• The Detainer Remarks should indicate all active detainers and the charge or offense. If the detainer has been litigated, information regarding the sentence imposed or time remaining to serve should be listed. If this information is not current, the commitment should be updated; and,

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• Initials are placed below the detainer remarks indicating that the information has been confirmed and is accurate and up-to-date.

15. TRANSFER CODES. The reason for transfer, as shown by one of the codes listed at the end of this chapter, must be provided in the top portion of the Transfer Order. If there is more than one reason for transfer, the most pertinent code should be used. Note that all Unescorted Transfers are Discharge Code FURL TRANS for Furlough Transfer.
16. SPECIAL REQUIREMENTS

a. An inmate having a detainer or pending charge may be transferred to any institution for which he or she properly classifies; however, generally when there is a formally filed detainer, the inmate is not to be transferred to an institution more distant from the detaining authority unless there is substantial reason to believe the detainer will be dropped or the pending charge will not be prosecuted.

An inmate who indicates an intention to oppose extradition is not to be transferred within the last 30 calendar days prior to release to an institution in the state that placed the detainer. Such cases, and others in which there are legal or jurisdictional problems, are to be referred to the Regional Correctional Programs Administrator (See Program Statement Inmate Systems Management Manual.

b. When there is reason to transfer an inmate to a nonfederal institution for concurrent service of federal and state sentences, the Warden will refer the case to the DSCC Administrator. Refer to the Program Statement, Transfer of a Prisoner to State Custody Prior to Release from the Federal Sentence, for procedures.

17. RELATIONSHIPS WITH OTHER AGENCIES

a. U.S. Parole Commission. Parolable inmates must be housed at a parolable institution in accordance with their parole hearing requirements unless a hearing is no longer required.

b. Administrative Office of the U.S. Courts. The court of

conviction may recommend to the Attorney General or the Bureau

that the defendant be retained at, or transferred to, a place

of confinement near the place of trial or the court of appeals,

for a period reasonably necessary to permit the defendant to

assist in the preparation of his or her appeal. Upon receiving

this recommendation, the Bureau will make every effort to place

the inmate in such a facility.

If a reason exists for

not placing the inmate in that facility, the court must be

notified of the situation and an attempt will be made to arrive

at an acceptable place of confinement.

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Ordinarily, complicated jurisdictional or legal problems should be resolved before transfer. Ordinarily, the sending Case Management Coordinator will determine if an inmate has legal action pending in the district in which confined. If so, the individual should not be transferred without prior consultation with the appropriate U.S. Attorney or Regional Counsel, or both. Under Rule 23(a) of the Federal Rules of Appellate Procedures, an inmate may not be transferred, pending review of a Habeas Corpus proceeding commenced before a court, without the approval of the court.
Approval for transfer should be sought through the U.S. Attorney or Regional Counsel in cases where a Habeas Corpus petition is pending.
c. Non-Federal Authorities. The decision to accept a state prisoner in the Bureau is the responsibility of the DSCC Administrator. When notifying the state authority of acceptance, the state's contract code will be identified.
The Office of Procurement, Central Office is responsible for negotiating contracts for housing state prisoners. If it is necessary to transfer a federal inmate to a local jail, the sending institution must immediately notify the U.S. Marshals and the CCM, preferably prior to the transfer.
d. Military Inmates. The DSCC will accept a military or Coast Guard inmate recommended for transfer to federal custody if, after examination of all available information, the Bureau can provide appropriate resources for the inmate's needs. The DSCC will be responsible for the designation and redesignation of all military and Coast Guard inmates accepted for service of their sentence in Bureau custody.
In some cases, special agreements or Memoranda of Understanding (MOU) have been established with various military branches. These MOUs give direction to Bureau staff regarding which Bureau regulations and policies apply to the military inmates. Pursuant to 10 U.S.C. § 858, staff should be aware that military or Coast Guard inmates confined in Bureau institutions are subject to the same discipline and treatment as other inmates in those institutions.
Additionally, the Bureau will accept the sentence computation provided by the military or Coast Guard authorities with the exception that the Bureau will release such inmates, if not paroled, under the provisions of 18 U.S.C. § 4164 provided they have accrued good time deductions in excess of 180 days. DSCC staff will refer to the appropriate military or Coast Guard authorities for resolution of suspected sentence computation errors or discrepancies, or challenges to the sentence computation by the inmate or his or her representative, or both.

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Once a military inmate comes into Bureau custody, all notifications and requirements apply as if he or she were a Bureau inmate, i.e., VWP notification, VCCLEA notification, Sex Offender Notification, and IFRP requirements. Notification to the military is also required at least 30 days prior to the inmate’s release.

18. STATE PLACEMENT. Inmates who have exhausted available resources within the Bureau, should be referred for placement in an appropriate non-federal facility under contract with the Bureau. Preparation of a transfer referral to merely “exhaust" all BOP resources is not required when the inmate is clearly not appropriate for any facility within the Bureau.

a. Placement Procedures. The Warden will prepare a memorandum to the DSCC Administrator outlining the reasons for state placement of a federal inmate. This memorandum will be forwarded along with supporting documentation and classification material that will, at a minimum, include the following:

(1) Presentence Investigation Report;

(2) Two copies of the Judgment;

(3) Relevant SENTRY data;

(4) Current Progress Report; and,

(5) Any Disciplinary or SIS Reports.

If the DSCC Administrator approves an inmate for state

placement, DSCC staff will select a state correctional

system for referral.

The system

selected will be based on the type of facilities within the

system; available bed space; court status (state systems that

are under injunction because of overcrowding or violations of

inmates' civil rights will not be used), and the state’s

willingness to accept federal boarders.

Once a suitable

state correctional system has been identified, DSCC staff will

forward the transfer packet to the appropriate Community

Corrections Regional Administrator, overseeing the state in

which the DSCC Administrator has identified for possible

placement.

DSCC staff may make up to two referrals per inmate at a time,

and continue this process until an appropriate placement is

secured. The CCRA will work through the local CCM office which

will refer the case for state placement. The CCM office will

advise the CCRA of the response from the state

authority/Department of Corrections. If approved for

placement, the CCRA will initiate SENTRY redesignation

procedures, and forward the inmate file to the CCM office. If

not approved for placement the CCRA will

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advise the DSCC Administrator, who will continue to secure a suitable state placement.

The CCM office with state monitoring authority in which the inmate is eventually housed assumes full responsibility for the inmate, including biennial reviews and subsequent transfer authority. State placement materials containing, at a minimum, a Progress Report, Presentence Investigation Report, and all memoranda pertaining to the state placement, will be forwarded to and maintained by the CCM office after the inmate has been approved for placement.

If an inmate is approved for permanent return to the Bureau,

the place of confinement will be determined by the DSCC. If an

inmate is returned to the Bureau for medical treatment, the

inmate will be returned to the state when the medical

treatment is completed.

Occasionally,

returning the inmate to the originating state may not be

appropriate. In such cases, the DSCC will obtain a new place

of incarceration for the inmate, after consultation with the

Office of Medical Designation and Transportation.

b. Post-Placement Monitoring. After a federal inmate has been placed in a state contract facility, the appropriate CCM will review the case every two years beginning from the date of the inmate’s arrival to determine whether the inmate is still appropriate for state placement. The CCM's cover memorandum containing a recommendation and a Progress Report provided by the state contract facility will be forwarded to DSCC staff who will make a determination for continued state placement or return to Bureau custody.

If the inmate requires continued placement in that state facility, DSCC staff will enter a notation on the SENTRY “CIM Clearance and Separatee Data” screen indicating such. However, if state placement is no longer necessary, the inmate will be redesignated to Bureau custody by the DSCC.

Inmates serving a sentence of Death will also be reviewed for continued state placement. Information received from Community Corrections staff during the review of the contract may be used to make a determination for continued state placement.

The DSCC is responsible for monitoring and tracking state placement requests received from BOP institutions. The CCRA will prepare a quarterly report (statistical/narrative) which will be forwarded to the DSCC Administrator.

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19. SECONDARY DESIGNATION. Upon initial designation, an inmate may be designated specifically for a parole hearing or program participation, and as a result, may require a secondary designation upon completion of the activity. If upon completion of the activity, staff determine that the secondary designation is no longer appropriate, the DSCC will be notified for reconsideration. Otherwise, when the conditions of the initial designation are met, institution staff will prepare a Transfer Order for signature of the sending institution Warden and arrangements will be made for movement of the inmate through routine procedures.
A secondary designation will not normally be made for cases designated for medical or psychiatric treatment. The medical center or reviewing institution will notify the Medical Designator upon completion of evaluation or treatment. Approval will be given for a secondary designation at that time. This approval will be based on medical requirements of the inmate and resources of the secondary designation.
20. POPULATION MANAGEMENT. The Assistant Director, Correctional Programs Division periodically reviews each institution’s Rated and Designation Capacities. Occasionally, it is necessary to impose a moratorium or population cap on a particular institution to avoid or reduce overcrowding. The Assistant Director, Correctional Programs Division, with the approval of the Population Management Subcommittee of the Executive Staff, may impose a moratorium on other facilities including the Medical Referral Center general population units. The Assistant Director, Health Services Division, with the approval of the Population Management Subcommittee of the Executive Staff, may authorize a moratorium or population cap for Medical Referral Centers (excluding general population).
a. Referral Procedures
(1) The Warden of the institution recommends to the Regional Director that a moratorium or population cap be established.
(2) The Regional Director reviews the request, and if in agreement, contacts the Assistant Director, Correctional Programs Division, or the Assistant Director, Health Services Division, and either requests a population cap or total moratorium.
A population cap places a ceiling on the number of inmates that can be designated to a facility. A total moratorium is defined as a complete cessation of all initial designations and redesignations to an institution or DFCL assignment.

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In extreme circumstances, the Assistant Director, Correctional Programs or Health Services Division with concurrence of the Subcommittee may direct that inmates en route to a facility be redesignated. When a moratorium or population cap is imposed, a termination date will be established. The cap or moratorium will be terminated on that date unless the Regional Director contacts the appropriate Assistant Director, Correctional Programs or Health Services Division, and obtains an extension.

(3) The appropriate Assistant Director will issue a GroupWise e-mail notifying the DSCC Administrator and Chief Executive Officers of the cap or moratorium.

21. INSTITUTIONS WITH SPECIAL MISSIONS

a. FCI Oakdale. The Bureau, ICE, and the Executive Office for Immigration Review (EOIR) work closely together to meet the requirements of the Immigration Reform and Control Act of 1986, by ensuring the expeditious review of criminal aliens for deportation. Beds are available for federally sentenced aliens, who are subject to administrative proceedings under the Immigration and Naturalization Act. Such inmates are transferred to FCI Oakdale for disposition of their ICE detainer prior to completion of their federal sentence.

Mexican and Cuban nationals are not eligible for the Oakdale Criminal Alien Program. The following procedures apply for the actual selection and designation of inmates to the Oakdale Criminal Alien Program.

(1) The ICE Officer in Charge at FCI Oakdale will monitor

the inmate male population via SENTRY to identify criminal

aliens appropriate for the program at FCI Oakdale. After they

have been identified, ICE staff will place a detainer on these

individuals through the DSCC.

Each week DSCC staff

will compile a list of the criminal aliens who are to be

released within the next year. A courtesy list will be

submitted, via GroupWise, to FCI Oakdale for monitoring

purposes.

(2) ICE staff at FCI Oakdale will forward to DSCC staff information on alien inmates via GroupWise to assist in the movement of inmates to FCI Oakdale at a later date. The movement of inmates to FCI Oakdale will be authorized and coordinated by the DSCC. DSCC staff will ensure CIM clearance is obtained and the Custody Classification form reflects appropriate use of any Management Variable.

(3) Inmates will be redesignated no later than seven months from a firm projected release date. Once approved for transfer,

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institution and transportation staff will immediately schedule the inmate for movement to FCI Oakdale. Institution staff will notify the Oakdale CMC if the inmate is not en route within 15 working days of the transfer approval. The central file should contain a current Progress Report and all pertinent case management activities should be completed prior to transfer including fines and the ordering of parole certificates, when applicable, or preparation of other release documents as required.

(4) ISM staff will ensure any other detainers lodged against those inmates approved for transfer are resolved and the detaining authority notified before the inmate is transferred to FCI Oakdale.

(5) Because of unforeseen circumstances, some criminal

aliens may be inappropriate for transfer to FCI Oakdale. ICE

staff at FCI Oakdale will notify DSCC staff when this occurs

and will advise of any additional action necessary to

coordinate the resolution of the inmate's citizenship/release

status. Conversely, institution staff are to contact DSCC staff

if they believe a transfer should not occur.

If the

transfer is deemed inappropriate, DSCC staff will delete the

Oakdale "DST" transfer approval.

(6) The Detention Services Branch, Correctional Programs Division, Central Office will assist with coordination of the Oakdale Criminal Alien Program and will act as the primary liaison with ICE and EOIR Headquarters on matters of mutual interest affecting the program's development and/or modification. Any questions regarding these matters should be directed to that office.

b. USP Marion/ADX Florence. USP Marion/ADX Florence general population units are designed for male inmates who have demonstrated an inability to function in a less restrictive environment without being a threat to others, or to the secure and orderly operation of the institution.

(1) Referral Procedures and Criteria. Prior to referring an inmate to USP Marion or ADX Florence, redesignation to another high security institution should be considered first.
If transfer to another institution is not appropriate, Wardens will refer the proposed USP Marion or ADX Florence case to North Central Regional Director. The North Central Region will designate the inmate as appropriate.

Assignment to USP Marion or ADX Florence will ordinarily be made without regard for such factors as release destination or

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program needs, such as education and vocational training. Prior to transfer to USP Marion or ADX Florence, staff at the sending institution will ensure that the inmate is assigned Maximum custody. While in transit to USP Marion or ADX Florence, inmates will be housed and provided visiting, correspondence, and telephone privileges as if confined at USP Marion or ADX Florence.

Inmates currently diagnosed as suffering from serious psychiatric illnesses should not be referred for placement at either USP Marion or ADX Florence.

(2) Referral Packet for USP Marion or ADX Florence. The referral packet for either USP Marion or ADX Florence general population will include the following items:

(a) A memorandum from the Warden to the North

Central Regional Director with the specific

rationale

supporting

the

institution's

recommendation;

(b) Copies of all disciplinary reports, investigative materials or other official documentation related to the behavior prompting the referral;

(c) A current Progress Report;

(d) A copy of the inmate's latest Presentence Investigation Report; and,

(e) A recent psychiatric or mental health evaluation.

Inmates with severe or chronic behavior patterns that cannot be addressed in any other Bureau institution should be referred to ADX Florence general population, and those who are somewhat less problematic should be referred to USP Marion. In describing the reasons underlying the referral, the Warden should explain why he or she has selected USP Marion or ADX Florence, respectively.

(3) Acceptance or Rejection of Referrals. The North

Central Regional Director has final review authority for

referrals to the USP Marion and ADX Florence general

population units.

In some cases,

the Regional Director may approve placement at USP Marion

when a referral has been submitted for ADX Florence and vice

versa.

A response to a recommendation for USP Marion or ADX Florence placement will ordinarily be made by the North Central Regional Director within 60 calendar days after receiving the

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referral packet from the referring institution. Approval or denial will be noted in SENTRY on the inmate's “CIM Clearance and Separatee Data” screen, with a brief memorandum from the North Central Regional Director to the requesting Warden to follow.

(4) Transfer from USP Marion or ADX Florence. Once an

inmate successfully completes the USP Marion or ADX Florence

program, the Warden will submit a transfer request to the North

Central Regional Director. Upon the North Central Regional

Director’s approval the request will be forwarded to the DSCC

for determination of an appropriate facility.

Inmates will

ordinarily be transferred from USP Marion or ADX Florence using

Code 308 - Lesser Security. Ordinarily, inmates completing the

ADX Florence program will be transferred to a High Security

facility, other than USP Marion.

(5) USP Marion Failures. Inmates who continue to exhibit disruptive misconduct at USP Marion may be considered for referral to ADX Florence general population or the Control Unit.

c. FMC Carswell Administrative Unit

(1) Initial Designations. Initial designations may only occur in extraordinary situations by DSCC staff.

(2) Redesignation Criteria. The FMC Carswell Administrative Unit is designed to house females exhibiting any of the following:
• A history of escape or attempted escape from a secure institution;

• Demonstrated repeated incidents of assaultive or predatory behavior;

• Demonstrated chronic behavior problems; and/or • Special management concerns.

(3) Referral for transfer to the FMC Carswell Administrative Unit will be submitted via the Request for Transfer/Application of Management Variable (409) to the DSCC Administrator.

(4) Acceptance or Rejection of Referrals. The DSCC Administrator has final review authority for referrals to FMC Carswell Administrative Unit.

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CODE 276 307 308 309
313
314 315 316 317 318 319 320 321 322 323
324 325
326
327

TRANSFER CODES
DESCRIPTION FURLOUGH TRANSFER: Unescorted furlough transfer to a CCC.
INSTITUTION CLASSIFICATION: Transfer to an institution with greater security (e.g., Low to Medium).
INSTITUTION CLASSIFICATION: Transfer to an institution with less security (e.g., High to Medium).
DISCIPLINARY: Transfer as a result of an act(s) of misconduct related to documented poor institutional adjustment. See Program Statement on Discipline and Special Housing Unit.
NEARER RELEASE: Transfer for the purpose of placing an inmate in an institution nearer the release destination or to facilitate the release process.
TRAINING PURPOSES: Discontinued (Use Code 324).
TRAINING COMPLETED: Discontinued (Use Code 325).
TEMPORARY TRANSFER: Transfer to the custody of U.S. Marshals or local authority.
RELIEVE OVERCROWDING: Transfer to relieve overcrowding at a facility.
INCREASE POPULATION: Transfer to build a population, usually upon activation of a new facility.
DRUG ABUSE PROGRAM: Transfer to participate in a specialized Drug Abuse Program.
WORK/STUDY RELEASE: Discontinued.
TRANSFER TO CONTROL UNIT: Transfer to Control Unit (see Chapter 7, Section 4).
TRANSFER FROM CONTROL UNIT: Transfer from Control Unit (See Chapter 7, Section 4).
CLOSE SUPERVISION CASE: Transfer as a result of an investigation that indicates a safety, security, or escape risk. Includes verified and unverified protection cases.
PROGRAM PARTICIPATION: Transfer for a parole hearing or to participate in a specialized program.
PROGRAM COMPLETED/WITHDRAWAL/REMOVAL: Return to the original institution following the completion, withdrawal, or removal from a specialized program.
CONCURRENT SERVICE IN NON-FEDERAL FACILITY: Transfer to nonfederal facility (excluding CCC) for service of concurrent federal and state sentences.
BOARDING IN NON-FEDERAL FACILITY: Transfer to non-federal facility (excluding CCC) for service of federal sentences only.

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CODE 328 330
331 332 333 334 335 336 337 338
339
369

TRANSFER CODES
DESCRIPTION RETURN FROM NON-FEDERAL FACILITY: Return from non-federal facility to federal institution for service of federal sentence only.
ADJUSTMENT PURPOSES: Transfer for the purpose of placing the inmate in a new setting due to poor institutional adjustment or CIM concerns. This code differs from a 323 Close Supervision Transfer in that an SIS investigation is not normally conducted.
TRANSFER FOR MEDICAL TREATMENT: Transfer from general population for the purpose of obtaining medical/physical treatment in a Medical Referral Center. Requires a change to a CARE 4 assignment.
MEDICAL TREATMENT COMPLETED: Return from Medical Referral Center to general population after treatment for medical/physical treatment. Requires a change from CARE 4 assignment to a lesser care level assignment.
TRANSFER FOR PSYCHOLOGICAL/PSYCHIATRIC EVALUATION: Transfer from general population for the purpose of obtaining psychiatric treatment in a Medical Referral Center. Requires a change to a CARE 4 assignment.
PSYCHOLOGICAL/PSYCHIATRIC EVALUATION COMPLETED: Return from a Medical Referral Center to general population after obtaining psychiatric treatment. Requires a change from CARE 4 assignment to a lesser care level assignment.
TRANSFER FOR HOSPITALIZATION AND TREATMENT: Transfer between BOP Medical Referral Centers for continued medical/physical or psychiatric treatment. (SPG to BUT). CARE 4 assignment remains intact.
HOSPITALIZATION AND TREATMENT COMPLETED: Discontinued (See Code 332).
OTHER: This category may be used only when no other transfer code above applies. (DISCONTINUED)
DECREASE IN MEDICAL CARE LEVEL: Transfer used when there has been a decrease in the inmate’s medical care level and the inmate no longer requires the higher level of medical services. This code is to be used when the transfer occurs between non-MRC institutions and when there is a decrease from the CARE assignments 2 and 3 only.
INCREASE IN MEDICAL CARE LEVEL: Transfer used when there has been an increase in the inmate’s medical care level and inmate is being transferred for the sole purpose of requiring increased medical resources. This code is to be used when the transfer occurs between non-MRC institutions and when there is an increase from the CARE assignments 1 and 2 only.
FACILITY REORGANIZATION: Transfer based on a mission change of the institution.

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OFFENSE SEVERITY SCALE
GREATEST SEVERITY
Aircraft Piracy - placing plane or passengers in danger Arson - substantial risk of death or bodily injury Assault - serious bodily injury intended or permanent or
life threatening bodily injury resulting) Car Jacking - any Drug Offense - see criteria below* Escape - closed institution, secure custody, force or
weapons used Espionage - treason, sabotage, or related offenses Explosives - risk of death or bodily injury Extortion - weapon or threat of violence Homicide or Voluntary Manslaughter - any Kidnaping - abduction, unlawful restraint, demanding
or receiving ransom money Robbery - any Sexual offenses - rape, sodomy, incest, carnal
knowledge, transportation with coercion or force for commercial purposes Toxic Substances/Chemicals: - weapon to endanger human life Weapons - distribution of automatic weapons, exporting sophisticated weaponry, brandishing or threatening use of a weapon
* Any drug offender whose current offense includes the following criteria will be scored in the Greatest severity category:
The offender was part of an organizational network and he or she organized or maintained ownership interest/profits from large-scale drug activity,
***AND*** The drug amount equals or exceeds the amount below:
Cocaine - greater than or equal to 10,000 gm, 10 K, or 22 lb Cocaine Base "Crack" - greater than or equal to 31 gm Hashish - greater than or equal to 250,000 gm, 250 K, or 551 lb Marijuana - greater than or equal to 620,000 gm, 620 K, or 1,367 lb PCP - greater than or equal to l00,000 mg, 100 gm, or 20,000 dosage units Heroin or Opiates - greater than or equal to 2,000 gm, 2 K, or 4.4 lb Methamphetamine - greater than or equal to 16,000 gm, 17 K, or 35 lbs Other illicit drugs: - Amphetamine, Barbiturates, LSD, etc. greater than or equal to 250,000 dosage units

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HIGH SEVERITY
Arson - other Cruelty to Children - any Drugs (For Females only)
Cocaine - greater than or equal to 10,000 gm, 10 K, Or 22 lb Cocaine Base “Crack” - greater than or equal to 31 gm Hashish - greater than or equal to 250,000 gm, 250 K, Or 551 lb Marijuana - greater than or equal to 620,000 gm, 620 K, Or 1,367 lb PCP - greater than or equal to 100,000 mg, 100 gm, or 20,000 dosage units Heroin or Opiates - greater than or equal to 2,000 gm, 2 K, or 4.4 lb Methamphetamine - greater than or equal to 16,000 gm, 17 K, or 35 lb Other illicit drugs - Amphetamine, Barbiturates, LSD etc. - greater than or equal to 250,000 dosage units Explosives - other Extortion - other Involuntary manslaughter - includes vehicular homicide Residential Burglary - with evidence that occupants were in dwelling during the commission of the offense Rioting - any Sexual Offenses - sexual exploitation of children, unlawful sexual conduct with a minor, pornography Stalking - any Threatening Communications - with conduct evidencing intent to carry out such threat Toxic Substances/Chemicals - other

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MODERATE SEVERITY
Assault - other Auto Theft - any Breaking and Entering - any Burglary - other Child Abandonment - any Contempt of Court - criminal contempt Drugs Cocaine - greater than or equal to 400 gm, .4 K, or .88 lb
Cocaine Base "Crack" - greater than or equal to 1 gm Hashish - greater than or equal to 11,000 gm, 11 K, or 24 lb Marijuana - greater than or equal to 25,000 gm, 25 K, or 55 lb PCP - greater than or equal to 4,000 mg, 4 gm, or .14 oz Heroin or Opiates - greater than or equal to 80 gm, .08 K, or .18 lb Methamphetamine - greater than or equal to 667 gm, .67 K, or 1.47 lb Other illicit drugs - Amphetamine, Barbiturates, LSD, etc. greater than or equal to 10,000 dosage units, .05 K, or .11 lb Escape - walkaway from open institution, failure to appear/bail reform act, no threat of violence involved Immigration Offenses - transportation of unlawful aliens Obstruction of Justice - any Property Offenses - over $250,000, includes theft, fraud, tax evasion, forgery, currency offenses Sexual Offenses - other Weapons - other
LOW-MODERATE SEVERITY
Bigamy - Polygamy Drugs Cocaine - less than 400 gm, .4 K, or .88 lb
Cocaine Base "Crack" - less than 1 gm Hashish - less than 11,000 gm, 11 K, or 24 lb Marijuana - less than 25,000 gm, 25 K, or 55 lb PCP - less than 4,000 mg, 4 gm, or .14 oz Heroin or Opiates - less than 80 gm, .08 K, or .18 lb Methamphetamine - less than 667 gm, .67 K, or 1.47 lb Other illicit drugs - Amphetamine, Barbiturates, LSD, etc., less than 10,000 dosage units, .05 K, or .11 lb Indecent Exposure - indecent acts, lewd behavior Immigration Offenses - other Post-Release Supervision Violation - technical, administrative Property Offenses - valued between $2,000 and $250,000)

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LOWEST SEVERITY
Drugs - personal use Gambling Law Violation - any Liquor Law Violation - any Property Offenses - less than $2,000 Suspicion - any Traffic Laws - any Vagrancy - any Vandalism - any

MARIJUANA EQUIVALENT CHART

DRUG 1 gm of Heroin

MARIJUANA EQUIVALENT 1000 gm

1 gm of Cocaine Powder

200 gm

1 gm of Methamphetamine

2000 gm

1 gm of LSD

100,000 gm

1 gm of “crack” cocaine

20,000 gm

1 gm of Hashish Oil

50 gm

For other drug equivalents, please refer to the U.S. Sentencing Commission Guidelines Manual.

MEASUREMENT CONVERSION TABLE

1 oz = 28.35 gm 1 lb = 453.6 gm 1 lb = 0.4536 kg 1 gal = 3.785 liters 1 qt = 0.946 liters

1 gm = 1 ml (liquid) 1 liter = 1,000 ml 1 kg = 1,000 gm 1 gm = 1,000 mg 1 grain = 64.8 mg

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DEFINITION OF ROLES INVOLVED IN DRUG OFFENSES
To determine whether an individual involved with a drug offense rose to the level of an organizer or leader, read the “Offense Conduct” section of the Presentence Investigation Report, and any other available information (i.e., Statement of Reasons, U.S. Attorney Report, etc.) to determine what the individual’s role was in the criminal activity. The role definitions below are grouped into two categories: Those that rise to the level of organizer/leader; and, those that do not.
ORGANIZER/LEADER
Importer/High-Level Supplier: imports or otherwise supplies large quantities of drugs; is at or near the top of the distribution chain; has ownership interest in drugs (not merely transporting drugs for another individual); usually supplies drugs to other drug distributors and does not deal in retail amounts; may employ no or very few subordinates.
Organizer/Leader: organizes, leads, directs, or otherwise runs a drug distribution organization. Receives the largest share of the profits and has the greatest decision-making authority.
Grower/Manufacturer: grows, cultivates, or manufactures a controlled substance, and is the principal owner of the drugs. (Keep in mind, the intent of this definition is to capture the individual who has the capability to manufacture enormous amounts of drugs in his garage/lab for example, and not the individual who is growing only five marijuana plants in his basement.)
Financier/Money Launderer: provides money for purchase, importation, manufacture, cultivation, transportation, or distribution of drugs; launders proceeds of drug sales or purchases.
Aircraft Pilot/Vessel Captain: pilots vessel or aircraft; requires special skill; does not include inmate who is the only participant directing a small boat (i.e., a speed boat) onto which drugs had been loaded from a “mother ship” (such person is a courier).

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NOT A DRUG ORGANIZER/LEADER
Manager: serves as a lieutenant to assist one of the above; manages all or a significant portion of the manufacturing, importation, or distribution operation; takes instructions from one of the above and conveys to subordinates; directly supervises at least one other co-participant in an organization of at least five co-participants.
Bodyguard/Strongman/Debt Collector: provides physical and personal security for another co-participant in the offense; collects debts owed, or punishes recalcitrant persons.
Chemists/Cooks/Chemical Supplier: produces LSD, methamphetamine, crack cocaine, or other illegal drugs, but does not qualify as a Grower/Manufacturer because he/she is not the principal owner of the drugs. Chemical supplier does not handle drugs themselves but engages in the unlawful diversion, sale, or furnishing of listed chemicals or equipment used in the synthesis or manufacturing of controlled substances.
Supervisor: supervises at least one other co-participant, however, has limited authority and does not qualify as a Manager.
Street-Level Dealer: distributes retail quantities directly to the user.
Broker/Steerer/Go-Between: arranges for two parties to buy/sell drugs, or directs potential buyer to a potential seller.
Courier: transports or carries drugs with the assistance of a vehicle or other equipment. Includes situations where individual, who is otherwise considered to be a crew member, is the only participant directing a vessel (e.g., a speed boat) onto which drugs had been loaded from a “mother ship”.
Mule: transports or carries drugs internally or on their person, often by airplane, or by walking across a border. Also includes an individual who only transports or carries drugs in baggage, souvenirs, clothing, or otherwise.
Renter/Storer: provides (for profit/compensation) own residence, structures (barns, storage bins, buildings), land, or equipment for use to further the offense. This inmate is distinguished from the enabler because he/she is paid (in some way) for his/her services.

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Money runner: transports/carries money and/or drugs to and from the street-level dealer.
Off-loader/Loader: performs the physical labor required to put large quantities of drugs into storage, hiding, or onto some mode of transportation.
Gopher/Lookout/Deckhand/Worker/Employee: performs very limited, low-level function in the offense (whether or not ongoing); includes running errands, answering the telephone, receiving packages, packaging the drugs, manual labor, acting as lookout to provide early warnings during meetings, exchanges, or offloading, or acting as deckhand/crew member on vessel or aircraft used to transport large quantities of drugs.
Enabler (Passive): plays no more than a passive role in the offense, knowingly permitting a certain unlawful criminal activity to take place without actually being involved with the activity; may be coerced or unduly influenced to play such a function (e.g., a parent or grandparent threatened with displacement from a home unless they permit the activity to take place), or may do so as “a favor” (without compensation).
User Only: possessed small amount of drugs apparently for personal use only; no apparent function in any conspiratorial criminal activity.
Wholesaler: sells more than retail/user-level quantities (greater than one ounce) in a single transaction.

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SPECIAL INSTRUCTIONS
In the case of an offense involving marijuana plants, one plant equals 100 grams (or the actual weight of the useable marijuana, whichever is greater).
If the offense includes several types of drugs, compute the marijuana equivalent and total the sum to arrive at a grand total. For example, if the inmate has marijuana, cocaine, and heroin, compute the cocaine and heroin to an equivalent amount of marijuana and hold the inmate accountable for the sum total of the equivalent amount of marijuana.
Offenses not listed will be assigned a severity category according to the most comparable listed offense.
Score any attempt, aiding and abetting, conspiracy, misprision of a felony, and accessory after the fact in the same severity category as the underlying offense. Total offense behavior is to be considered, utilizing the most serious offense or act committed. However, in drug conspiracy cases, the individual will be held accountable as documented by the Judge in the Statement of Reasons. If the Statement of Reasons is not attached, the Case Manager will review the Presentence Investigation Report to determine the individual’s specific reported behavior, and not hold the individual accountable for the entire drug conspiracy empire.
If committed as a parole, mandatory release, special parole term, or supervised release violator as a result of a new conviction, use that new offense behavior for scoring "Severity of Current Offense."
If committed as a probation violator, use the most severe documented behavior between the original offense that prompted probation and the new criminal conduct (violation behavior) for scoring "Severity of Current Offense."
For this Program Statement’s purposes, sentences with a specific finding of “withheld adjudication” will be considered the same as if the Judge made a finding of guilt.

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9/12/2006 Appendix A, Page 9
WAIVER FOR MISDEMEANANTS

I, (Name of Inmate)
have been convicted under

, (Register Number)
(Offense Code and Title)

and committed to the custody of the Attorney General or the Bureau of Prisons for service of a misdemeanor sentence, do hereby waive my right as a misdemeanant offender to serve my sentence in a facility other than a high security level institution. I understand my conviction could entitle me to be placed in a Minimum, Low, or Medium level institution, as deemed appropriate by the Bureau of Prisons; however, I voluntarily waive my right to such placement. I further understand that this waiver does not prevent the Federal Bureau of Prisons from transferring me to a Minimum, Low, or Medium security level institution in the future, if appropriate.

Inmate's Signature Witness Witness

Date

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STANDARD ABBREVIATIONS/TERMS (BP-337)

ADW ALC ATT BRA CC CC FRD COC CONSP CRK CS D/DS DETN DRG DUI DWI DWOL DWP/DWIP ESS
F/A FTA GD GTA H/G HX IR ISS
ITSMV JTC LOC LOP M/MOS MH MJ PBJ PC PED PLIO PROB PSY PWITD PV

Assault with a Deadly Weapon Alcohol
Attempt Bail Reform Act (constitutes escape) Concurrent Credit Card Fraud Cocaine Conspiracy Crack Consecutive Day/days Detainer Drug Driving under the influence Driving while influenced Driving without a License Dismissed without/with Prejudice Execution of Sentence Suspended (If part of the sentence was imposed score as prior. If the entire sentence was suspended, do not count as prior, HOWEVER, if the offense involved escape or violence, score under appropriate history item.) Firearm Failure to Appear (constitutes escape) Good Grand Theft Auto Handgun History Incident Report Imposition of Sentence Suspended (If part of the sentence was imposed score as prior. If the entire sentence was suspended, do not count as prior, HOWEVER, if the offense involved escape or violence, score under appropriate history item.) Interstate Transportation of Stolen Motor Vehicle Jail Time Credit Lack of Cooperation Loss of Privileges Month/months Mental health Marijuana Probation Before Judgment Pending Charge Parole Eligibility Date Pled to Lesser Instant Offense Probation Psychological/Psychiatric Possession with Intent to Distribute Parole Violation

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STANDARD ABBREVIATIONS/TERMS (BP-337)

SRV TRD UUV VOP WPN
Y/YRS

Supervised Release Violation Tentative Release Date Unauthorized Use of a Vehicle Violation of Probation Weapon
Year/years

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Form 409, REQUEST FOR TRANSFER/APPLICATION OF MANAGEMENT VARIABLE is available on BOPDOCS

Case: 4:20-cv-00794-JG Doc #: 98-10 Filed: 05/29/20 1 of 1. PageID #: 1342
U.S. Department of Justice Federal Bureau of Prisons

FOR IMMEDIATE RELEASE May 22, 2020

Contact: Office of Public Affairs 202-514-6551

BUREAU OF PRISONS ANNOUNCES UPDATE ON INMATE MOVEMENT Expanded Testing Capabilities to be Deployed for Safe Movement of Recently Sentenced Prisoners

WASHINGTON – The Bureau of Prisons (Bureau) and the United States Marshals Service (USMS) announced today that they will begin movement of approximately 6,800 new inmates who have been committed to the Bureau in recent months.

The Bureau, in coordination with the USMS, has decreased internal movement of inmates by 90% as compared to this time last year. While inmate movement was significantly curtailed for several months, newly sentenced and newly admitted inmates have been held in local detention facilities across the country. As the federal judiciary has continued to process new criminal cases and begins to phase-in expanded operations, the Bureau must, on a limited basis, move these inmates to alleviate population pressures in these local detention centers and allow inmates to begin serving their sentences. The Bureau and the USMS are coordinating carefully to transport and transfer federal inmates into the Bureau's custody while taking proactive steps, including aggressive testing, to mitigate the transmission of COVID-19 into the federal prison environment. The Bureau will process all newly-sentenced Bureau inmates through one of three quarantine sites - - FCC Yazoo City, MS; FCC Victorville, CA; and FTC Oklahoma City, OK, - - or through a Bureau detention center/jail unit. The Bureau will test all inmates upon arrival at a Bureau detention center/ jail unit or at one of the three quarantine sites. All inmates will be tested again before movement to their designated Bureau facility.

"We believe our proactive approach, including our expanded inmate testing capacity, will aid the Bureau to further combat the introduction and spread of the virus within our prison system," said Bureau of Prisons Director Michael Carvajal. "We are grateful for the continued hard work of all our staff as we manage this pandemic, as well as our partnerships with the Centers for Disease Control and Prevention, local health authorities, the U.S. Marshals Service, and various other community organizations who have teamed up to help."

Movement of an additional 7,000 inmates who are already housed in Bureau facilities and pending regular movement to their designated facilities, will begin at a later date.

Seventy of the Bureau's 122 prison facilities remain unaffected by COVID-19. There are 1594 federal inmates in Bureau facilities and Residential Reentry Centers (RRCs) and 194 Bureau staff who have confirmed positive test results for COVID-19 nationwide. Currently, 3047 inmates and 394 staff have recovered. Since the release of the Attorney General's original memo to Bureau on March 26, 2020 instructing Bureau to prioritize home confinement in response to the COVID-19 pandemic, the Bureau has placed an additional 3,179 inmates on home confinement; an increase of 111 percent.

Find more information about the Bureau’s response to COVID-19 at www.bop.gov/coronavirus/index.jsp.

###

GOVERNMENT EXHIBIT
DB

 
 Case: 4:20-cv-00794-JG Doc #: 102 Filed: 05/30/20 1 of 18. PageID #: 1349

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

CRAIG WILSON, ERIC BELLAMY, KENDAL NELSON, and MAXIMINO NIEVES, on behalf of themselves and those similarly situated,

Case No. 20-cv-0794 Judge James Gwin

Petitioners, v.

MARK WILLIAMS, warden of Elkton Federal Correctional Institutions; and MICHAEL CARVAJAL, Federal Bureau of Prisons Director, in their official capacities,

Respondents. MEMORANDUM IN OPPOSITION TO
RESPONDENTS’ EMERGENCY MOTION TO STAY INTRODUCTION
The deadly outbreak at Elkton Federal Correctional Institution (“Elkton”) continues to take its toll. Though trumpeting a supposed decline in hospitalizations—a statistic that means little, 2d Goldenson Decl. ¶ 13 (Exhibit B)—Respondents were forced to amend their motion, mere hours after its filing, to retract their assertions. See ECF 101 (supplement noting that an additional Elkton prisoner was hospitalized). Indeed, with continued delays in testing, the full extent of the infection still remains unknown, but is plainly extreme. See ECF 100 (status report showing 312 COVID-positive results in recent weeks).
Meanwhile, Respondents’ efforts to comply with this Court’s April 22 injunction and May 19 enforcement order proceed slowly, yielding unimpressive numbers of people deemed even potentially eligible for home confinement, much less actually moved. See ECF 98-7 at 11. Respondents’ simultaneous efforts to resist and undo this Court’s orders, however, continue to suffer from no such lethargy. This Court’s original injunction was entered on April 22. While

1

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Respondents resisted the Court’s initial instruction to produce a class list, see ECF 32 (order granting motion to compel), they moved both this Court and the Sixth Circuit for a stay pending appeal on April 28 and 30, respectively. ECF 30, 34. Both were denied. Subsequent proceedings revealed that Respondents had failed to comply with the Court’s April 22 injunction in the meantime, prompting this Court’s enforcement order on May 19. ECF 85; see id. at PageID# 1129.
Respondents reacted with an emergency application for stay to the Supreme Court on May 20—nominally challenging the April 22 order, but arguing both it and the May 19 order. The Supreme Court denied the stay on May 26, observing that Respondents had “not sought review of or a stay of the May 19 order in the U.S. Court of Appeals for the Sixth Circuit.” No. 19A1041.
Yesterday, Respondents finally took the step of asking this Court to stay that order—and also asks it again to stay the April 22 order, which this Court has already observed that it is not at liberty to do under law of the case. See ECF 57. That motion is accompanied by several new selfserving declarations, but Respondents, despite having waited ten days after the May 19 enforcement order, claim they have no time to allow this Court to review and weigh them. Instead, they seek to have the Sixth Circuit—and failing that, the Supreme Court—exercise the fact-finding role, by filing a stay request on appeal less than an hour later. The motion before the Sixth Circuit threatens that, absent immediate relief there, Respondents will again seek Supreme Court intervention.1
1 Though this Court gave Petitioners until Monday, June 1 to respond here, the Sixth Circuit has ordered that any response in that court be submitted today. Petitioners maintain that Respondents’ approach of a 10-day delayed “evidence dump” on this Court, apparently to enable them to cite new factual material on appeal, is inappropriate. Nonetheless, in order to ensure that their rights are preserved on appeal, Petitioners must respond in kind, by submitting contrary
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Respondents “bear[] the burden” to show that this Court should exercise its discretion to issue a stay. Nken v. Holder, 556 U.S. 418, 433–34 (2009) (internal quotations omitted). Part of Respondents’ appeal is improper, and the remaining part is foreclosed by previous rulings. But more important to the motion before this Court, Respondents’ arguments are meritless. This Court has properly exercised jurisdiction and invoked a remedy under 28 U.S.C. § 2241; deliberate indifference is well-documented and legally supported; and the balance of equities plainly favors Petitioners.
BACKGROUND Respondents’ narrative presents a highly one-sided account of the facts and procedural history of this action, as it stood on April 22, May 19, and today. On April 22, this Court entered the preliminary injunction, finding that “the only truly effective remedy to stop the spread is to separate individuals,” which was “impossible without the release of a portion of the population.” PI Order, ECF 22, PageID# 361. Elkton is a lowsecurity facility where prisoners are housed in units of about 150 men. 1st Novisky Decl., ECF 1-3, PageID# 51. Petitioner Wilson’s unit (representative of Elkton) is divided into bunks, about 8 by 9 feet and not enclosed, which sleep two or three men. Wilson Decl., ECF 1-10, PageID# 90. Men are not separated inside units, where they share recreation space, sinks, and showers. Id., PageID# 91. This Court was already aware of the BOP’s so-called “multiphase action plan.” ECF 98-1 (hereinafter “Stay Mot.”) at 2, PageID# 1168. Phase 2, implemented on March 13, started a grab-
evidence to this Court for its consideration and for subsequent citation on appeal. Petitioners therefore respectfully submit additional expert testimony and other evidence in support of this Opposition. See Exhibit A, 2d Novisky Declaration; Exhibit B, 2d Goldenson Declaration; Exhibit C, Questionnaires.
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and-go meal system, for example. Dees Decl., ECF 10-1, PageID# 175–76. When prisoners get meals, “[s]ocial distancing is out the window,” as they line up “to get through a 4-6 foot wide door.” Arzola Decl., ECF 1-11, PageID# 96. And Phase 5, implemented on March 31, secured prisoners within these shared units. Dees Decl., ECF 10-1, PageID# 177. At “any given moment,” prisoners in a unit are next to someone else. Bellamy Decl., ECF 1-7, PageID# 78. Phase 6, implemented on April 13, simply kept the measures in place. Dees Decl., ECF 10-1, PageID# 178.
This Court was also aware that these measures could not stop the spread of COVID-19. They left in place “shared spaces for bathing, eating, and sleeping,” meaning “social distancing would be impossible to implement at Elkton.” 1st Novisky Decl., ECF 1-3, PageID# 51. Staff continued to circulate in and out of the community and among prisoners. Id., PageID# 52–53. When Petitioners sued on April 13, three prisoners had died. Petn., ECF 1, PageID# 2. Nine days later, that number had doubled. PI Order, ECF 22, PageID# 370.
And this Court had before it clear evidence that Respondents had not used the tools at their disposal to move prisoners. The Attorney General had “direct[ed]” BOP to “maximize appropriate transfers” of vulnerable prisoners out of Elkton. Apr. 3 Barr Memo, ECF 10-3, PageID# 197.2 Yet no prisoners had been moved. PI Tr., ECF 40, PageID# 586 (six identified as eligible but not transferred to home confinement; 32 denied).
2 Respondents state that the Attorney General provided criteria to implement this directive. BOP’s Acting Senior Deputy Assistant Director issued the guidance document they rely on. Brewer Memo, ECF 10-3, PageID# 200–01. Respondents do not acknowledge that the Attorney General’s guidance does not deem, for example, “prior violent offenses” (at 5) disqualifying. Mar. 26 Barr Memo, ECF 10-3, PageID# 196. Nor do they acknowledge that the Brewer guidance was superseded, and current guidance does not deem any prisoner categorically ineligible for home confinement. Hurwitz Memo, ECF 80-1, PageID# 1113.
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This Court entered a preliminary injunction on that record. It limited the injunction to a subclass of medically-vulnerable prisoners—those at highest risk, using the CDC’s definition. PI Order, ECF 22, PageID# 363. For these prisoners, “continued imprisonment at Elkton is unconstitutional given the COVID-19 outbreak,” rendering their claim “cognizable under 28 U.S.C. § 2241.” Id., PageID# 362. The “failure to separate” prisoners was deliberate indifference to the thread of spreading COVID-19. Id., PageID# 367.
The equities favored preliminary relief. Petitioners sought only “moving vulnerable inmates to various other types of confinement” where they would be safer. Id., PageID# 369. A 14-day quarantine policy already in place meant that transfers posed no risk. Id.; Apr. 3 Barr Memo, ECF 10-3, PageID# 197. And stopping the spread of COVID-19 would protect prisoners, staff, and the community around Elkton where the staff lives. PI Order, ECF 22, PageID# 369.
The scope of the relief was also limited. Petitioners did not ask “to throw open the gates” at Elkton, and this Court expressly did not do that. Id., PageID# 369. It required Respondents to identify the prisoners in the medically-vulnerable subclass. Id., PageID# 371. Then, it required Respondents to evaluate their eligibility for release by May 7. Id. If members were ineligible, it ordered Respondents to transfer them “to another BOP facility where appropriate measures” to avoid COVID-19, “may be accomplished.” Id., PageID# 371–72.3
Three courts declined to stay the April 22 preliminary injunction. When the Sixth Circuit and this Court did so, they rejected many of the same arguments Respondents raise now. The Sixth Circuit agreed with this Court that Petitioners’ claims are properly raised on habeas; found that this Court did not abuse its discretion on the record before it; and that Respondents had forfeited their class certification challenge. May 4 Order, at 5. This Court followed suit, based on
3 Respondents concede that the deadlines for the first two requirements have passed.
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both the law-of-the-case doctrine and the merits. Stay Order, ECF 57. And the Supreme Court did so because Respondents also sought to stay the May 19 enforcement order, without seeking relief from this Court first. Order, No. 19A1041.
This Court entered that enforcement order on a record that showed Respondents had “thumb[ed] their nose” at the preliminary injunction. Enforcement Order, ECF 85, PageID# 1129. Respondents identified 837 members of the medically-vulnerable subclass. Id., PageID# 1126. It deemed five eligible for home confinement, with six more “maybe” qualifying. Id. A hearing revealed that this was the result of Respondents deeming whole categories of the subclass categorically ineligible for home confinement. Tr., ECF 76, PageID# 1004–05, 1026; Spreadsheet, ECF 78-1, PageID# 1060–72. As for other mechanisms—furlough, compassionate release, or transfer—Respondents identified no members “whose confinement has actually been enlarged” because of the preliminary injunction. Enforcement Order, ECF 85, PageID# 1126.
Yet the risks had not diminished. Respondents had run 524 COVID-19 tests (about 22% of the Elkton population, on the unlikely assumption no prisoner has been tested twice). It had results for only 230, with 24% testing positive. Id., PageID# 1124. By then, nine prisoners had died of COVID-19. The Court thus entered a limited order to enforce. As to home confinement, it ordered Respondents to re-evaluate subclass members without treating certain factors as categorical barriers to relief. Id., PageID# 1124.4 Respondents had until May 25 to comply. Id., PageID# 1129-30. As to compassionate release, it ordered Respondents to clarify bare-bones explanations for denying members’ requests by May 21, and to act on new ones within 7 days.
4 Respondents claim that the order required them to “disregard” certain factors. But the order speaks in terms of “requirement[s]” and being “deemed ineligible.” Enforcement Order, ECF 85, PageID# 1129. That reading is bolstered by BOP’s own guidance, which does not deem any factor as a categorical bar. See supra note 2. Of course, this Court is best positioned to resolve disputes over what its order means.
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Id., PageID# 1131.5 And as to any members ineligible for that relief, it ordered Respondents to show cause by May 26 why it could not transfer them to a safer facility. Id., PageID# 1132.6
Respondents ask this Court to enter a stay based on a disputed, evolving record with little time to consider abruptly-added new evidence. Just hours after moving for a stay, for example, Respondents had to revise their statement to note that another Elkton prisoner has been transferred to the hospital. ECF 101. To assert that conditions at Elkton have improved, they cite contested materials submitted only one business day before they demand a ruling. ECF 98-2 through 98-10. So too with a new conclusory “[u]pon information and belief” declaration underlying their implication that the few subclass members it has finally identified as eligible for home confinement do not meet BOP’s guidance. Hurwitz Decl. ¶ 27. Even the meaning of the enforcement order Respondents seek to stay appears to be disputed, but rather than asking this Court to clarify or modify it, they have rushed to appeal.
ARGUMENT I. Respondents Have Failed to Demonstrate a Strong Likelihood of Success on Appeal
A. Respondents’ Motion Is Improper As to the April 22 order, the legal and factual questions presented by Respondents’ motion are governed by the law of the case. See ECF 57. They have been weighed and reviewed on appeal, and the Sixth Circuit has held that this Court did not abuse its discretion. Indeed, every level of the federal judiciary has ruled that the April 22 preliminary injunction will not be stayed pending appeal, and are bound by appropriate principles of deference and law of the case.
5 Without a decision from BOP, prisoners must wait 30 days to file a compassionate release motion in the sentencing court. 18 U.S.C. § 3582(c)(1).
6 Respondents concede (at 8) these deadlines have mostly passed. The requirement to decided compassionate release applications within 7 days remains.
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Respondents also did not timely seek a stay of the May 19 order in this Court. Indeed, they waited ten days, and then imposed upon this Court a manufactured emergency requiring a ruling in one business day. See ECF 98-1 at PageID# 1. And they gave this Court no time to consider the motion by filing a motion almost immediately in the Court of Appeals. Regardless, as discussed above and below, Respondents’ raft of tired arguments and new declarations offer no basis for this Court to stay its own rulings.
B. Petitioners’ Claim Is Properly Brought Under § 2241, Rendering the Prison Litigation Reform Act (PLRA) Inapplicable
Habeas corpus allows prisoners to challenge unlawful confinement. 28 U.S.C. § 2241; Preiser v. Rodriguez, 411 U.S. 475, 498 (1973). When such a challenge is based on “the execution or manner in which the sentence is served,” it is properly brought under § 2241. United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001).
As the Sixth Circuit held, Petitioners are “challenging the fact of the[ir] confinement.” Order at 3 (May 4, 2020). Releasing medically-vulnerable prisoners from Elkton is “the only truly effective remedy” for the unfolding harm. PI Order, ECF 22, PageID# 361. Petitioners therefore properly brought their claim under § 2241, because they challenge the “execution or manner” of their sentences (serving them amid an inadequately-addressed disease outbreak, in a place where social distancing is impossible) and because “no set of conditions would be constitutionally sufficient” to fix the problem. Order at 3 (May 4, 2020); see Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011); see also Terrell v. United States, 564 F.3d 442, 446–48 (6th Cir. 2009).
That Petitioners have used the phrase “conditions of confinement” to describe the problem is irrelevant. Although Sixth Circuit precedent holds that “§ 2241 is not the proper vehicle for a prisoner to challenge conditions of confinement,” Luedtke v. Berkebile, 704 F.3d
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465, 466 (6th Cir. 2013), as just explained, Petitioners have consistently maintained—and this Court found—that it would be impossible to fix the conditions within Elkton. The only remedy is release from confinement at Elkton. See Adams, 644 F.3d at 483; Terrell, 564 F.3d at 446–48.
Respondents argue that Petitioners’ requested relief would not “change the court-imposed sentence.” Stay Mot. at 7, PageID# 1173. But nothing in the law suggests that all habeas claims must challenge the sentence itself. See, e.g., Bailey v. Wainwright, 951 F.3d 343, 347 (6th Cir. 2020). Section 2241 claims need do no such thing. See Terrell, 564 F.3d at 448 (claim seeking in-person parole hearing cognizable under § 2241); Luedtke, 704 F.3d at 466 (same, challenging exclusion from “Inmate Financial Responsibility Program”); see also United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991) (place-of-confinement challenges properly brought via § 2241).
Because Petitioners’ claim is proper under § 2241, this Court correctly noted its “enlargement” authority. PI Order, ECF 22, PageID# 359; see Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990); 28 U.S.C. § 2243 (“The court shall … dispose of the matter as law and justice require.”). It did not abuse its discretion with such interim relief, but correctly concluded that Petitioners’ claims are “substantial,” PI Order, ECF 22, PageID# 359–62, and that the “circumstances” of Elkton’s COVID-19 outbreak are “exceptional,” Dotson, 900 F.2d at 79. Its order did not require the release of any particular prisoner or “throw open the gates.” PI Order, ECF 22, PageID# 369; see id., PageID# 370–72.
Because this is a “habeas corpus proceeding[] challenging the fact or duration of confinement in prison,” the PLRA is inapplicable. 18 U.S.C. § 3626(g)(2)). Respondents’ passing suggestion, meanwhile, that 18 U.S.C § 3621(b) might bar jurisdiction is baseless. Petitioners do not ask this Court to “decide where to house” them, nor has this Court done so, but rather claim that their confinement at Elkton is unconstitutional. That challenge is consistent with
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18 U.S.C. § 3621(b), cf. id. (assignments must “meet[] minimum standards of health and habitability”), which in any event cannot divest federal courts of power to remedy unlawful detention, see U.S. Const. art. I, § 9, cl. 2; Boumediene v. Bush, 553 U.S. 723, 771 (2008); Martinez-Brooks v. Easter, No. 3:20-cv-00569, 2020 WL 2405350, at *15 (D. Conn. May 12, 2020) (“I am not ‘review[ing]’ the BOP’s ‘designation of a place of imprisonment’ under subsection 3621(b),” and “to the extent there is any ambiguity about whether Section 3621(b) or any other statute bars judicial review … I would construe it not to do so to avoid the constitutional question that would arise from a wholesale bar on judicial review in the circumstances of this case.”).
C. This Court Did Not Abuse Its Discretion In Finding Petitioners Likely to Show Deliberate Indifference
Prisons may not knowingly incarcerate prisoners “under conditions posing a substantial risk of serious harm,” Farmer v. Brennan, 511 U.S. 825, 834 (1994), including from infectious disease, Helling v. McKinney, 509 U.S. 25, 33 (1993). Respondents are unlikely to succeed on appeal of this matter, as this Court did not abuse its discretion in finding both the objective and subjective components of deliberate indifference satisfied.
For the objective standard, a prisoner must show that he was “incarcerated under conditions posing a substantial risk of serious harm.” Richko v. Wayne Cty., 819 F.3d 907, 917 (6th Cir. 2016) (citation omitted). That test is met where prisons failed to provide toothpaste, Flanory v. Bonn, 604 F.3d 249, 255 (6th Cir. 2010), and exposed prisoners to tobacco smoke, Helling, 509 U.S. at 35; Talal v. White, 403 F.3d 423, 427 (6th Cir. 2005). COVID-19 kills slowly and painfully, while those who survive may sustain permanent organ damage. Six Elkton prisoners have died since this case was filed. That risks exist “nationwide,” Stay Mot. at 9, PageID# 1175, changes nothing: prisons are dangerous settings for COVID-19, and this Court
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concluded that Elkton is uniquely dangerous among prisons. See PI Order, ECF 22, PageID# 354–357; see also 1st Novisky Decl., ECF 1-3, PageID# 50–52; 1st Goldenson Decl., ECF 1-4, PageID# 64–66. “Petitioners obviously satisfy this component,” PI Order, ECF 22, PageID# 367.
This Court also properly exercised discretion in finding Petitioners likely to satisfy the subjective prong. “A prisoner is not required to show that he was literally ignored by the staff … only that his serious medical needs were consciously disregarded.” Rouster v. Cty. of Saginaw, 749 F.3d 437, 448 (6th Cir. 2014) (cleaned up). Custodians are deliberately indifferent if they persist in a course of action that they know to be ineffective. See, e.g., Richmond v. Huq, 885 F.3d 928, 944 (6th Cir. 2018); Darrah v. Krisher, 865 F.3d 361, 369 (6th Cir. 2017); Phillips v. Roane Cty., 534 F.3d 531, 541 (6th Cir. 2008); Greene v. Bowles, 361 F.3d 290, 294 (6th Cir. 2004).
Respondents knew about the risks within Elkton, yet never addressed them adequately. They continued forcing prisoners to live in crowded units where social distancing is impossible, making the continued spread of COVID-19 a foregone conclusion. E.g., PI Order, ECF 22, PageID# 356; 1st Novisky Decl., ECF 1-3, PageID# 48–52; Nelson Decl., ECF 1-5, PageID# 70; Nieves Decl., ECF 1-8, PageID# 82; Wilson Decl, ECF 1-10, PageID# 91; Arzola Decl., ECF 111, PageID# 95–96. Even when the Attorney General directed BOP to “move with dispatch” to move Elkton prisoners to home confinement, Apr. Barr Mem., ECF 10-3, PageID# 197, Respondents took no meaningful steps to move these low-security prisoners to safety, see Cole Decl., ECF 10-2, PageID# 189, 193; Transcript, ECF 40, PageID# 586, while conducting virtually no testing at Elkton, see Dees Decl., ECF 10-1, PageID# 183.
Nothing had happened to change this assessment when this Court entered the May 19 enforcement order. Respondents had made “paltry” grants of home confinement, “thumbing their
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nose at” their enhanced authority and the Attorney General’s exhortations and treating whole categories of the subclass as ineligible. Enforcement Order, ECF 85, PageID# 1129; see id., PageID# 1126; Transcript, ECF 76, PageID# 1004–05, 1026; Spreadsheet, ECF 78-1, PageID# 1060–72. They had opposed nearly any compassionate release, and made no use of furloughs. Enforcement Order, ECF 85, PageID# 1126. After testing had lacked “for months,” still only 524 tests had been performed, and results were delayed. Id., PageID# 1124 (no results for more than 96 hours). Petitioners remained likely to succeed on their deliberate-indifference claim, underscored by Respondents’ intransigence.
Post-order record materials provided by Respondents do not change the equation. Indeed, the picture is less rosy than the one Respondents paint. Their testing suffers from a weeklong lag, Status Report, ECF 88, PageID# 1139, and “does not identify individuals who are infected but presymptomatic … [or] those who will become infected.” 2d Goldenson Decl. ¶ 13, obliterating its usefulness for monitoring infections meaningfully and directing quarantines. Contrary to Respondents’ argument, a short-term decline in hospitalizations does not show that the infection is under control, 2d Goldenson Decl. ¶ 13, and, as they disclosed after filing, their motion omitted a prison hospitalized on Friday, ECF 101. Their meager testing data shows that 20-25% of the population is still testing positive. See Status Report, ECF 97. Compare also Federal Bureau of Prisons, COVID-19, https://bit.ly/bopcovid (last visited May 30, 2020) (332 current infections, second highest among federal facilities), with Burnside Decl., R. 98-2, PageID# 1188 (484 total positive tests as of May 27, with “a significant number” “still pending”). The inevitable movement and lack of social-distancing between prisoners within units—as well as prisoners’ lack of social distancing with staff moving between units—facilitates spread and
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leaves Elkton prisoners subject to an inordinately high ongoing risk of infection. 2d Novisky Decl. ¶¶ 7-8; 2d Goldenson Decl. ¶ 11.
Meanwhile, Respondents still refuse to protect medically-vulnerable prisoners. One court, watching closely, concluded this week that Respondents may never comply. United States v. Guzman, No. 13-CR-576-1, 2020 WL 2781713 (N.D. Ill. May 28, 2020). Indeed, Respondents now argue for the first time that “transfer to home confinement is an improper remedy.” Stay Mot. at 10, PageID# 1176. They offer no legal basis for this assertion, likely because there is none. Congress (via the CARES Act) and the Attorney General, see Apr. Barr Mem., ECF 10-3, PageID# 197, authorized and encouraged this tool. Respondents’ distaste for it underscores their conscious disregard for the substantial risk of serious harm to medically-vulnerable prisoners. II. The Remaining Factors Weigh Against a Stay
For irreparable harm,7 Respondents offer the audacious claim that their discretion over prisoner placement supersedes prisoners’ constitutional rights. See Stay Mot. at 11–12, PageID# 1177–78. That position (which is also incorrect with regard to jurisdiction, see section I.C, supra) is absurd; judicial review to protect constitutional rights is not irreparable harm. See Martinez-Brooks, 2020 WL 2405350, at *15; cf. U.S. Const. art. I, § 9, cl. 2; Boumediene, 553 U.S. at 771; cf. also 18 U.S.C. § 3621(b) (prison assignments must “meet[] minimum standards of health and habitability”). There is simply no basis for the radical suggestion that federal-court review of unconstitutional confinement in a federal prison constitutes irreparable harm to the confiners.
7 Respondents are incorrect that its interest and the public’s “merge.” Stay Mot. at 11, PageID# 1177 (citing Nken v. Holder, 556 U.S. 418, 435 (2009)). The interests merge when the government is opposing a stay, 556 U.S. at 435, because that posture implicates the public’s interest in “prompt execution” of valid orders. Id. at 436. Here, the same reasoning cuts in the opposite direction. Respondents must show both irreparable harm and that a stay is in the public interest.
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Nor is this Court intruding on Respondents’ discretion. Rather, Petitioners respectfully submit that the May 19 Order was no more than was absolutely necessary in light of Respondents failure to comply in good faith with the April 22 preliminary injunction. Respondents have “forfeited the advantage of deference” after a “pattern of delays” and “new objections substituted for old ones.” Battista v. Clarke, 645 F.3d 449, 455 (1st Cir. 2011); see Enforcement Order, ECF 85 at PageID# 1129 (“By thumbing their nose at their authority to authorize home confinement, Respondents threaten staff and they threaten low security inmates.”). “Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.” Brown v. Plata, 563 U.S. 493, 511 (2011); see also Hutto v. Finney, 437 U.S. 678, 689 n. 9 (1978).
Respondents’ security concern over home confinement is ill-founded. First, the Court has ordered no one released, as it clarified repeatedly in the April 22 order. PI Order, ECF 22, PageID# 359, 370, 371. Second, every prisoner in Elkton is low-security, and the MedicallyVulnerable Subclass is, by definition, disproportionately elderly or infirm. Third, Respondents have not shown that any prisoner to be transferred under the May 19 order is actually dangerous. Compare 2d Novisky Decl. ¶ 11 (noting that “subclass identified in this case [is] a low public safety threat”). Respondents maintain authority to determine—based on recidivism risk score, outstanding detainers, institutional conduct, and other factors—that a prisoner cannot be released.
In addition, the May 19 order’s primary effect is to halt Respondents’ practice of improper automatic rejections based solely on criteria that are not dispositive of home confinement—such as a minor incident report, or where “the only basis for denial is a prior violent offense.” See Enforcement Order, ECF 85, PageID# 1129. Compare, e.g., Notice of
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Home Confinement Criteria, ECF 80, PageID# 1110 (“Inmates who have received a 300 or 400 series incident report in the past 12 months may be referred for placement”); Hurwitz Decl., ECF 98-7, PageID# 1216–17 (no mention of prior violence as a dispositive factor), with Home Confinement Spreadsheet, ECF 78-1 at Row 52 (prior to May 19 order, low-risk prisoner rejected based on robbery 35 years ago); Row 55 (low-risk prisoner rejected, “history of violence” 23 years ago); Row 486, 489 (low risk, “prior violence”); Rows 713, 724 (low risk, 2019 300-series incident reports).
Elkton prisoners are not “harmed” by being transferred away from a deadly outbreak. This Court ordered that if Respondents receive requests to remain at Elkton, it must consider them.8 Mitigation of any “harm” is thus in Respondents’ hands. Enforcement Order, ECF 85, PageID# 1132. Many prisoners who have requested to stay at Elkton did so only because they fear Respondents will move them to higher-security prison punitively. See Questionnaires, Exhibit C.
Nor would transfers unduly risk spreading COVID-19. Pre-transfer quarantines alleviate that concern, PI Order, ECF 22, PageID# 369; 2d Goldenson Decl. ¶ 12, as does testing. The Court did not abuse its discretion in concluding that the greater risk lies in leaving Elkton as a source of infection to the surrounding community. See 1st Goldenson Decl., ECF 1-4, ¶ 32; 1st Novisky Decl, ECF 1-4, ¶ 13 (“staff can easily carry the infection from the community to the
8 Such requests are consistent with class members’ rights and class-wide relief, just as, for example, not every class member will wish to pursue every treatment made available for a disease. See, e.g., Postawko v. Missouri Dep’t of Corr., No. 2:16-CV-04219-NKL, 2017 WL 3185155, at *14 (W.D. Mo. July 26, 2017), aff’d, 910 F.3d 1030 (8th Cir. 2018). This Court has discretion to fashion such mechanisms. See Fed. R. Civ. P. 23(d); e.g., Eubanks v. Billington, 110 F.3d 87, 94 (D.C. Cir. 1997); McReynolds v. Richards-Cantave, 588 F.3d 790, 800 (2d Cir. 2009).
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prison and vice versa”). Indeed, the BOP continues to transfer prisoners for reasons far less compelling than saving lives. 2d Novisky Decl. ¶ 10; Robbins Decl. ¶¶ 38-39.
The administrative inconvenience of a life-saving injunction is vastly outweighed by the value of lives saved. It was hardly an abuse of discretion for this Court to hold otherwise. Cf. Sampson v. Murray, 415 U.S. 61, 90 (1974) (temporary loss of income generally insufficient); Stay Order, ECF 57, PageID# 747. To the extent that Respondents’ refusal to move prisoners to home confinement costs additional resources in needing to transfer them to other prisons instead, its injury is self-inflicted.
Respondents are wrong to argue that that the disease is under control, or that their testing is sufficient. See section I.C, supra. Further, testing has only come after this Court repeatedly ordered Respondents to answer for its absence. See PI Order, ECF 22, PageID# 354 (“paltry” testing); Enforcement Order, ECF 85, PageID# 1124 (“the tests’ progress creeps”); Transcript (May 14), ECF 76, PageID# 1011–17 (extensive discussion of testing and requiring daily updates). Respondents cannot claim that their testing is a basis for a stay, Stay Mot. at 14, PageID# 1180, when the Court’s orders and oversight are what prompted that testing.
CONCLUSION For the foregoing reasons, Petitioners respectfully request that this Court deny Respondents’ Emergency Motion to Stay.
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Dated: May 30, 2020

Respectfully submitted,
/s/ David J. Carey David J. Carey (0088787) ACLU of Ohio Foundation 1108 City Park Avenue, Ste. 203 Columbus, OH 43206 Phone: (614) 586-1972 Fax: (614) 586-1974 dcarey@acluohio.org
Joseph Mead (0091903) Freda J. Levenson (0045916) ACLU of Ohio Foundation 4506 Chester Avenue Cleveland, OH 44102 Phone: (614) 586-1972 Fax: (614) 586-1974 attyjmead@gmail.com flevenson@acluohio.org

David A. Singleton (0074556) Mark A. Vander Laan (0013297) Michael L. Zuckerman (0097194) Ohio Justice & Policy Center 915 East Ninth Street, Suite 601 Cincinnati, OH 45202 Phone: (513) 421-1108 dsingleton@ohiojpc.org mvanderlaan@ohiojpc.org mzuckerman@ohiojpc.org
Counsel for Petitioners

17

Case: 4:20-cv-00794-JG Doc #: 102 Filed: 05/30/20 18 of 18. PageID #: 1366
CERTIFICATE OF SERVICE I hereby certify that on May 30, 2020, the foregoing was filed with the Court’s CM/ECF system. Notice of this filing will be sent by operation of that system to all counsel of record.
/s/ David J. Carey David J. Carey

Case: 4:20-cv-00794-JG Doc #: 102-1 Filed: 05/30/20 1 of 6. PageID #: 1367
Exhibit A

Case: 4:20-cv-00794-JG Doc #: 102-1 Filed: 05/30/20 2 of 6. PageID #: 1368
Declaration of Meghan Novisky, PhD
1. I am an Assistant Professor of Criminology in the Department of Criminology, Anthropology, and Sociology at Cleveland State University.
2. My research investigates the consequences of carceral contact on health, factors related to the conditions of confinement, and the collateral consequences of criminal justice policy. I have worked since 2009 with the University of Cincinnati's Corrections Institute (UCCI) as an evidence based programming consultant and trainer. In this role I have worked with correctional staff in 17 U.S. states and trained them on the implementation of researchinformed programs and policies to help lower their recidivism rates. I received my PhD in Sociology from Kent State University, with a joint focus on Criminology and Medical Sociology. The focus of my dissertation involved identifying barriers to health care access that exist in prisons, specifically among older adults.
3. My publications on health and incarcerated people have appeared in numerous peer-reviewed journals, including Criminology, Justice Quarterly, and Victims & Offenders. I also serve as a regular reviewer for multiple peer-reviewed journals, including Criminology, Justice Quarterly, the Journal of Criminal Justice, the Journal of Interpersonal Violence, and the International Journal of Offender Therapy and Comparative Criminology. In 2020, I received the Early Career Investigator Award from the Academic Consortium on Criminal Justice Health (ACCJH), and I serve as Chair of the Annual Awards Committee of the American Society of Criminology (ASC), Division of Corrections and Sentencing. Prior to the pandemic, I served the ASC with several other colleagues by organizing a series of research panels focused on the intersection of criminal justice and health for the annual (2020) meeting.

Case: 4:20-cv-00794-JG Doc #: 102-1 Filed: 05/30/20 3 of 6. PageID #: 1369
4. The current situation at Elkton FCI is dire. Based on the Federal Bureau of Prison’s current estimates, Elkton FCI has a total of 339 active cases of COVID-19, including infections among 332 prisoners and 7 staff.1 Elkton maintains a current population of 2,295 prisoners.2 This means at least 14 percent of the current prisoner population, roughly 1 in 7 prisoners, are infected with COVID-19. Importantly, this estimate is conservative considering testing results have either not been completed or have not been released publicly for Elkton’s entire population. Elkton is also either not completing or not releasing publicly testing results for their entire population of staff.
5. Only one prison under BOP jurisdiction, Forrest City FCI in Arkansas, has more prisoners infected with COVID-19 than Elkton.3 Of all 1,610 federal prisoners currently infected with COVID-19 across the United States, 21 percent of them (n = 332) are concentrated at Elkton FCI.4
6. Thus far, nine Elkton prisoners have died of COVID-19. All nine deceased men had pre-existing medical conditions that the CDC lists as risk factors for developing more severe COVID-19 disease. The average age of the men who died was 61, with 8 out of 9 men being over the age of 50. All nine men who died were tested and confirmed positive for COVID-19 only upon arrival at a hospital, meaning no proactive testing at Elkton was available or utilized to identify these men prior to their respective hospitalizations. In sum, these men had multiple identifiable and predictable vulnerabilities for hospitalization and death, including their preexisting health conditions, their ages, and the lack of testing they received prior to their conditions worsening to the point they required transfer to a hospital because of inabilities to
1 https://www.bop.gov/coronavirus/ 2 https://www.bop.gov/locations/institutions/elk/ 3 https://www.bop.gov/coronavirus/ 4 https://www.bop.gov/coronavirus/

Case: 4:20-cv-00794-JG Doc #: 102-1 Filed: 05/30/20 4 of 6. PageID #: 1370
maintain oxygen saturation. This information is available in each of the nine memos released by the BOP detailing each prisoner’s death.5 6 7 8 9 10 11 12 13
7. There is only one intervention that is likely to effectively lower risks of further deaths of Elkton prisoners: identification and transfer of the medically vulnerable to a nonCOVID-19 hotspot. Should the BOP fail to identify and transfer the medically vulnerable, it is likely that additional medical complications, hospitalizations, and deaths of prisoners will follow.
8. Elkton does not have the capacity to sufficiently lower risks for COVID-19 without transfer. It remains physically impossible to maintain 6 feet of physical distance within groups of people who share sleeping areas, showers, and toilets. Personal protective equipment and cleaning supplies only have limited effectiveness under those conditions.
9. BOP has also not claimed that it is regularly or consistently testing staff. Rather, “enhanced screening of staff” at BOP locations includes “self-reporting and temperature checks,”14 both of which are insufficient for detecting asymptomatic or pre-symptomatic positive cases of COVID-19 among staff. Without mass testing of staff, Elkton is not even capable of knowing the scope of infection among its staff, who continue to filter in and out of the facility each day and bring anything they are exposed to in the community back into the prison and vice versa. Considering that correctional staff must be in close contact with prisoners in the course of their regular jobs to enforce security protocols, escort prisoners across cell blocks and units,
5 https://www.bop.gov/resources/news/pdfs/20200402_press_release_elk.pdf 6 https://www.bop.gov/resources/news/pdfs/20200403_press_release_elk.pdf 7 https://www.bop.gov/resources/news/pdfs/20200404_press_release_elk.pdf 8 https://www.bop.gov/resources/news/pdfs/20200414_press_release_elkton.pdf 9 https://www.bop.gov/resources/news/pdfs/20200414_press_release_elk.pdf 10 https://www.bop.gov/resources/news/pdfs/20200416_press_release_elk.pdf 11 https://www.bop.gov/resources/news/pdfs/20200426_press_release_elk.pdf 12 https://www.bop.gov/resources/news/pdfs/20200509_press_release_elk.pdf 13 https://www.bop.gov/resources/news/pdfs/20200509_pres_rel_elk.pdf 14 https://www.bop.gov/coronavirus/covid19_status.jsp

Case: 4:20-cv-00794-JG Doc #: 102-1 Filed: 05/30/20 5 of 6. PageID #: 1371
administer medications, and supervise meal distribution, for example, not knowing COVID-19 statuses of Elkton’s staff represents a significant oversight as far as the safety risks posed to the institution. Unless Elkton staff are quarantined and prevented from continuing to cycle in and out of the prison to return to the community following each shift, risks for COVID-19 transmission must be assumed to remain without testing to confirm otherwise.
10. Although CDC recommends against unnecessary transfers between prisons, movement can be done safety and is often necessary. The BOP continues to transfer for various reasons, including continued processing of criminal cases, forensic studies, writs, interstate agreements on detainers (IAD), RRC placements, and management of overcrowding.15
11. As far as risks for recidivism, Elkton maintains a low security custody level, meaning that individuals placed at Elkton are already classified as lower risk individuals. The most common reason for which people are incarcerated within the BOP (46 percent of all convicting offenses) is drug activity16, which is a non-violent crime. In total, at least 62% of convicting offenses within the BOP are non-violent (Drugs = 45.8%; Extortion, Fraud, Bribery = 5.7%; Property crimes = 5%; Immigration = 5.3%; Banking and Insurance, Counterfeit, and Embezzlement = .2%)17. Though 10.5% of those under BOP custody are convicted of sex offenses, research shows that these individuals have generally low risks for recidivism, especially when convicted of no-contact sex offenses. For example, a 2012 report to Congress by the U.S. Sentencing Commission18 found that only 7 percent of individuals convicted of possession or distribution of child pornography went on to be arrested or convicted of a new sex offense after being released from BOP custody, despite people in the study being out of prison
15 https://www.bop.gov/coronavirus/covid19_status.jsp 16 https://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp 17 https://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp 18 https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federalchild-pornography-offenses/Full_Report_to_Congress.pdf

Case: 4:20-cv-00794-JG Doc #: 102-1 Filed: 05/30/20 6 of 6. PageID #: 1372
for an average of 8 years.19 Combined with the fact that recidivism declines exponentially with age, these factors make the subclass identified in this case a low public safety threat. This is especially the case considering that BOP will maintain correctional supervision of these individuals, either at another prison or through community supervision.
12. In sum, it is essential for BOP to identify and transfer those prisoners with medical vulnerabilities immediately so as to avoid additional medical complications, hospitalizations, and death. With BOP’s available resources and ability to maintain continued custody of the prisoners in question, this can be accomplished without imposing undue safety risks to the community.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
_______________________ Meghan Novisky, PhD Date: 5/30/2020
19 https://www.ned.uscourts.gov/internetDocs/jpar/RGK-FSR2014Recidivism%20By%20Child%20Pornography%20Offenders.pdf

Case: 4:20-cv-00794-JG Doc #: 102-2 Filed: 05/30/20 1 of 6. PageID #: 1373
Exhibit B

Case: 4:20-cv-00794-JG Doc #: 102-2 Filed: 05/30/20 2 of 6. PageID #: 1374
Declaration of Joe Goldenson, MD 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/monitor at Cook County Jail in Chicago and Los Angeles County Jail, at other jails in Washington, Texas, and Florida, and at prisons in Illinois, Ohio, and Wisconsin. 5. On April 11, 2020, I signed a declaration that I understand was submitted in this case. The statements below supplement my April 11 declaration. 6. 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, is significantly higher in

Case: 4:20-cv-00794-JG Doc #: 102-2 Filed: 05/30/20 3 of 6. PageID #: 1375
prisons than in the community. Close, poorly ventilated, living quarters and often overcrowded conditions in these facilities foster the rapid transmission of infectious diseases, particularly those transmitted by airborne droplets through sneezing, speaking, or coughing. In these congregate settings, large numbers of people are closely confined and forced to share living spaces, bathrooms, eating areas, and other enclosed spaces. They are physically unable to practice social distancing, which the Centers for Disease Control and Prevention (“CDC”) has identified as the “cornerstone of reducing transmission of respiratory diseases such as COVID19.”1 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.
7. The most commonly used test for the diagnosis of COVID-19 detects viral RNA (RT-PCR). In most individuals with symptomatic COVID-19, the test becomes positive at the time of the onset of symptoms2 (2-14 days after infection). It does not identify individuals who are infected but presymptomatic. Furthermore, it obviously does not identify those who will become infected. To determine whether an individual is at risk for spreading COVID19, they must be regularly retested.
8. A testing protocol that only applies to prisoners and does not involve the regular (weekly or bi-weekly) testing of other individuals, such as staff, who enter and exit the facility, will not be effective in identifying contagious individuals or preventing further spread of COVID19 within the facility.
9. It is my understanding that Elkton uses open bay / dorm housing units with multiple-occupancy cells, and a limited number of segregation units. It also my understanding
1 https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html
2 Sethuraman, et al, Interpreting Diagnostic Tests for SARS-CoV-2, JAMA, 5/6/20, https://jamanetwork.com

Case: 4:20-cv-00794-JG Doc #: 102-2 Filed: 05/30/20 4 of 6. PageID #: 1376
that Elkton has approximately 2,300 detainees between the Elkton federal correction institution and the low security satellite prison on any given day; that staff that enter and leave the facility regularly; and that detainees share restroom and shower facilities and eat communally prepared food.
10. It is also my understanding that Elkton officials claim that they are providing masks and soap to prisoners. Further, I understand that Elkton officials claim that any prisoner who complains of symptoms is given a test, and will be placed in isolation only if they test positive.
11. However, because prisoners at Elkton continue to live in congregate settings where they cannot stay 6 feet away from others, they remain at high risk of continued infection.
12. I understand that before an individual is moved out of Elkton, they undergo the following procedure: if they test negative, they are placed in quarantine for 14 days, and are tested again 24 hours prior to being moved to another location. If either test is positive, they will be placed in isolation and their movement will be delayed. In addition, I understand that if one prisoner in quarantine tests positive, the 14-day clock resets for the entire cohort of other prisoners quarantined with the person who tested positive. If this procedure is followed, an individual being moved out of Elkton will pose a minimal risk of infecting others.
13. The only way to determine whether a facility’s response is effective is to study the rates of new infections over time. This requires longitudinal data and frequent retesting of prisoners who previously tested negative. Without these data, a facility cannot claim that the contagion is under control or that its response has been effective in preventing further spread of the disease. A short-term decline in hospitalizations does not by itself indicate a decline in infections.

Case: 4:20-cv-00794-JG Doc #: 102-2 Filed: 05/30/20 5 of 6. PageID #: 1377
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. Executed this 30th day of May 2020 in Alameda County, CA __________________________________ Joe Goldenson, MD

Case: 4:20-cv-00794-JG Doc #: 102-2 Filed: 05/30/20 6 of 6. PageID #: 1378
References 1. Dolan K, Wirtz A, Maazen B., et al. Global Burdern of HIV, viral hepatitis, and tuberculosis in prisoners and detainees. The Lancet, July 14, 2016. Stuckler D, Basu S, McKee M, King I. Mass incarceration can explain population increases in TB and multi-drug resistant TB in European and Central Asian countries. Proceedings of the National Academy of Science USA, 2008. 105:13280-85. 2. Beyrer C, Kamarulzaman A, McKee M; Lancet HIV in Prisoners Group. Prisoners, prisons, and HIV: time for reform. The Lancet. 2016 Jul 14. pii: S01406736(16)30829-7. doi: 10.1016/S0140-6736(16)30829-7. [Epub ahead of print] No abstract available. PMID: 27427447. 3. Marusshak LM, Sabol W, Potter R, Reid L, Cramer E. Pandemic Influenza and Jail Facilities and Populations. American Journal of Public Health. 2009 October; 99(Suppl 2): S339–S344. 4. Rubenstein LS, Amon JJ, McLemore M, Eba P, Dolan K, Lines R, Beyrer C. HIV, prisoners, and human rights. The Lancet. 2016 Jul 14. pii: S0140-6736(16)30663-8. doi: 10.1016/S0140-6736(16)30663-8 5. Wang J, Ng, CY, Brook R. Response to COVID-19 in Taiwan: Big Data Analytics, New Technology, and Proactive Testing. March 3, 2020. JAMA. Published online March 3, 2020. doi:10.1001/jama.2020.3151. 6. CDC, COVID-19, People Who are at Higher Risk, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/asthma.html

Case: 4:20-cv-00794-JG Doc #: 102-3 Filed: 05/30/20 1 of 9. PageID #: 1379
Exhibit C

Case: 4:20-cv-00794-JG Doc #: 102-3 Filed: 05/30/20 2 of 9. PageID #: 1380
IN RESPONSE TO THE CORONAVIRUS (COVID-19) PANDEMIC, A FEDERAL JUDGE HAS ORDERED THAT CERTAIN MEDICALLY VULNERABLE PRISONERS BE TRANSFERRED OUT OF FCI ELKTON. WE WANT TO KNOW IF YOU ARE PART OF THE GROUP THAT CAN GET
TRANSFERRED.
The ACLU of Ohio and the Ohio Justice & Policy Center want to learn who is covered by the Court's order as part of a class action lawsuit. Please fill out this letter only if:
1. You are 65 years old or older OR
2. You have one or more documented medical conditions listed on the back of this page that puts you at high risk for getting very sick from COVID-19.
If you are in one of those 2 groups, please: • Answer the questions on the back AND fill out the attached medical release form . Put the letter AND the form in the envelope and return it.
If you are not in one of those 2 groups, please do not return this letter.

Name

BOP

Age: 5-t,

Your Current Release Date: 2/2. 7ZS

Your Lawyer's Name: iu/4

Your Lawyer's Phone or Email:

Check this box only if you do NOT have a iawyer, and you cannot afford to pay for one:

Have you asked the Warden for compassionate release? Dyes If yes, when did you apply? '9/'2D 22

J No

If yes, have you gotten a response?

E[ Yes

No

What response did you get? cdoe3 i'i-I- fM444

The ACLU of Ohio and the Ohio Justice & Policy Center are not your attorneys as an individual, though we do seek to represent the class of people seeking transfer, as a whole. If you think you might be eligible for compassionate release, you should contact your lawyer or ask for compassionate release in writing to the Warden.

TURN OVER

Case: 4:20-cv-00794-JG Doc #: 102-3 Filed: 05/30/20 3 of 9. PageID #: 1381

Your medically documented, pre-existing condition (circle all that apply):

Heart Disease

Liver Disease
(including Hepatitis C)

Kidney Disease
(whether on dialysis or not)

Lung Disease

Diabetes

(including asthma an~tPD D)

Severe Obesity (BMI of 40 or higher)

Other/Please Specify:

Any details about your condition:

Immunocompromised
(cancer treatment, transplants, HIV/AIDS, or medications that weaken the immune system)

What treatment have you had for your condition?

Does FCI Elkton have access to medical records for your condition?

EYes

No

If you believe you may have a condition that puts you at risk, it is your responsibility to provide all medical records to the prison so that you can be included. We recommend that you contact your attorney. If you choose to provide information using this letter, we may share it with other attorneys, consultants, or attorneys for the Bureau of Prisons as part of our efforts to pursue relief for the class.

You Can Choose to Stay at Elkton If You Want The judge's order in the class action lawsuit applies to all prisoners age 65 or older
R with certain medical conditions that put them at higher risk from the coronavirus. These people may be eligible for home confinement, furlough, compassionate release, or transfer out of Elkton to a different prison.

It is possible that the Warden, the Bureau of Prisons, or the court may find that you are not eligible for home confinement, furlough, or release, and that your only choice is to move to a different prison or stay at Elkton. That other prison could be higher security than Elkton, but would be better than Elkton for social distancing. IF THAT HAPPENS, YOU CAN DECIDE LATER TO STAY AT ELKTON.

Even though you can decide later, would you like to decide to stay at Elkton now

anyway? Checking "Yes" means you would NOT obtain any kind of release or

transfer as a result of this lawsuit.

E]~Yes

No
TI'S

py Oj

ACLU
Ohio

Case: 4:20-cv-00794-JG Doc #: 102-3 Filed: 05/30/20 4 of 9. PageID #: 1382
IN RESPONSE TO THE CORONAVIRUS (COVID-19) PANDEMIC, A FEDERAL JUDGE HAS ORDERED THAT CERTAIN MEDICALLY VULNERABLE PRISONERS BE TRANSFERRED OUT OF FCI ELKTON. WE WANT TO KNOW IF YOU ARE PART OF THE GROUP THAT CAN GET
TRANSFERRED.
The ACLU of Ohio and the Ohio Justice & Policy Center want to learn who is covered by the Court's order as part of a class action lawsuit. Please fill out this letter only if:
1. You are 65 years old or older OR 2. You have one or more documented medical conditions listed on the back
of this page that puts you at high risk for getting very sick from COVID-19. If you are in one of those 2 groups, please:
• Answer the questions on the back AND fill out the attached medical release form
• Put the letter AND the form in the envelope and return it. If you are not in one of those 2 groups, please do not return this letter.

Your Current Release Date: 7 18 Z7
Your Lawyer's Name:

Age: 4t:

Your Lawyer 's Phone or Email:

Check this box only if you do NOT have a lawyer, and you cannot afford to pay for one:

Have you asked the Warden for compassionate release? 1 Yes

No

If yes, when did you apply? 4 1 ZI1 10

If yes, have you gotten a response?

jJ Yes

Vo

What response did you get?

The ACLU of Ohio and the Ohio Justice & Policy Center are not your attorneys as an individual, though we do seek to represent the class of people seeking transfer, as a whole. If you think you might be eligible for compassionate release, you should contact your lawyer or ask for compassionate release in writing to the Warden.

TURN OVER

Case: 4:20-cv-00794-JG Doc #: 102-3 Filed: 05/30/20 5 of 9. PageID #: 1383

Your medically documented, pre-existing condition (circle all that apply):

Heart Dise se

Liver Disease
(including Hepatitis C)

Kidney Disease
(whether on dialysis or not)

Lung Disease

Diabetes

(including asthma and COPD)

Severe Obesity
(BMI of 40 or higher)

Other/Please Specify:

Any details about your condition:

Immunocompromised
(cancer treatment, transplants, HIV/AIDS, or medications that weaken the immune system)

What treatment have you had for your condition?

Does FCI Elkton have access to medical records for your condition?

'Yes

No

If you believe you may have a condition that puts you at risk, it is your responsibility to provide all medical records to the prison so that you can be included. We recommend that you contact your attorney. If you choose to provide information using this letter, we may share it with other attorneys, consultants, or attorneys for the Bureau of Prisons as part of our efforts to pursue relief for the class.

You Can Choose to Stay at Elkton If You Want The judge's order in the class action lawsuit applies to all prisoners age 65 or older
R with certain medical conditions that put them at higher risk from the coronavirus.
These people may be eligible for home confinement, furlough, compassionate release, or transfer out of Elkton to a different prison.

It is possible that the Warden, the Bureau of Prisons, or the court may find that you are not eligible for home confinement, furlough, or release, and that your only choice is to move to a different prison or stay at Elkton. That other prison could bethiher security than Elkton, but would be better than Elkton for social distancing. IF THAT TIAPPENS, YOU CAN DECIDE LATER TO STAY AT ELKTON.

Even though you can decide later, would you like to decide to stay at Elkton now

anyway? Checking "Yes" means you would NOT obtai any kind of release or

trans as a result of this lawsuit.

hy

Dovlt 44t

Ohio

Case: 4:20-cv-00794-JG Doc #: 102-3 Filed: 05/30/20 6 of 9. PageID #: 1384
IN RESPONSE TO THE CORONAVIRUS (COVID-19) PANDEMIC, A FEDERAL JUDGE HAS ORDERED THAT CERTAIN MEDICALLY VULNERABLE PRISONERS BE TRANSFERRED OUT OF FCI ELKTON. WE WANT TO KNOW IF YOU ARE PART OF THE GROUP THAT CAN GET
TRANSFERRED.
The ACLU of Ohio and the Ohio Justice & Policy Center want to learn who is covered by the Court's order as part of a class action lawsuit. Please fill out this letter only if:
1. You are 65 years old or older OR 2. You have one or more documented medical conditions listed on the back
of this page that puts you at high risk for getting very sick from COVID-19. If you are in one of those 2 groups, please:
. Answer the questions on the back AND fill out the attached medical release form
. Put the letter AND the form in the envelope and return it. If you are not in one of those 2 groups, please do not return this letter.

BOP #:

Age: 22

Your Current Release Date:

Your Lawyer's Name:

Your Lawyer's Phone or Email:

Check this box only if you do NOT have a lawyer, and you cannot afford to pay for
0 one:

Have you asked the Warden for compassionate release?

Yes

No

If yes, when did you apply?

/0 , tLtTE- k,')L24, -'

If yes, have you gotten a response?

Yes ID No

What response did you get?

The ACLU of Ohio and the Ohio Justice & Policy Center are not your attorneys as an
individual, though we do seek to represent the class of people seeking transfer, as a whole. If you think you might be eligible for compassionate release, you should contact your lawyer or ask for compassionate release in writing to the Warden.

TURN OVER

Case: 4:20-cv-00794-JG Doc #: 102-3 Filed: 05/30/20 7 of 9. PageID #: 1385

Your medically documented, pre-existing condition (circle all that apply):

Heart Disease

Liver Disease
(including Hepatitis C)

Kidney Disease
(whether on dialysis or not)

(i Lung Disease

Diabetes

ncII iL ~ng as t h manad LCL OPD)~

L

Severe Obesity (BMI of 40 or higher)
Any details about your condition:

Immunocompromised
(cancer treatment, transplants, HIV/AIDS, or medications that weaken the immune system)
z
-

What treatment have you had for your condition?

Does FCI Elkton have access to medical records for your condition?

171 IA.I

F1 LAI

No

-

If you believe you may have a condition that puts you at risk, it is your responsibility to provide all medical records to the prison so that you can be included. We recommend that you contact your attorney. If you choose to provide Information using this letter, we may share it with other attorneys, consultants, or attorneys for the Bureau of Prisons as part of our efforts to pursue relief for the class.

You Can Choose to Stay at Elkton If You Want The judge's order in the class action lawsuit applies to all prisoners age 65 or older OR with certain medical conditions that put them at higher risk from the coronavirus. These people may be eligible for home confinement, furlough, compassionate release, or transfer out of Elkton to a different prison.

It is possible that the Warden, the Bureau of Prisons, or the court may find that you are not eligible for home confinement, furlough, or release, and that your only choice is to move to a different prison or stay at Elkton. That other prison could be higher security than Elkton, but would be better than Elkton for social distancing. IF THAT HAPPENS, YOU CAN DECIDE LATER TO STAY AT ELKTON.

Even though you can decide later, would you like to decide to stay at Elkton now

anyway? Checking "Yes" means you would NOT obtain any kind of release or

transfer as a result of this lawsuit.

DYes

No

oJ p,

ACW
Ohio

Case: 4:20-cv-00794-JG Doc #: 102-3 Filed: 05/30/20 8 of 9. PageID #: 1386
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 Case: 4:20-cv-00794-JG Doc #: 107 Filed: 06/02/20 1 of 3. PageID #: 1403

Nos. 20-3447/3547

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

CRAIG WILSON, on behalf of themselves and all )

others similarly situated, et al.,

)

)

Petitioners-Appellees,

)

)

v.

)

)

MARK WILLIAMS, in his official capacity as

)

Warden of Elkton Federal Correctional Institution, )

et al.,

)

)

Respondents-Appellants.

)

FILED
Jun 01, 2020 DEBORAH S. HUNT, Clerk
O R D E R

Before: COLE, Chief Judge; GIBBONS and COOK, Circuit Judges.
Petitioners, on behalf of themselves and other inmates housed or to be housed at the Elkton Federal Correctional Institution and its low-security satellite prison FSL Elkton, filed a petition under 28 U.S.C. § 2241 to obtain enlargement of their custody to limit their exposure to the COVID-19 virus. Following a hearing, the district court entered a preliminary injunction directing Respondents to take certain steps for a medically-vulnerable subclass. Respondents appealed, No. 20-3447, and moved to stay the injunction pending resolution of their appeal. We denied a stay. Since then, the district court granted Petitioners’ motion for enforcement of the injunction and imposed further standards for compliance. Respondents appealed, No. 20-3547. Respondents now renew their motion to stay the preliminary injunction in No. 20-3447 and

Case: 4:20-cv-00794-JG Doc #: 107 Filed: 06/02/20 2 of 3. PageID #: 1404 Nos. 20-3447/3547 -2-
move to stay the district court’s order enforcing the injunction in No. 20-3547. Petitioners oppose a stay, and Respondents reply.
We balance four factors to determine whether, in our discretion, a stay is appropriate: (1) whether the movant “has made a strong showing that he is likely to succeed on the merits”; (2) whether the movant “will be irreparably injured absent a stay”; (3) whether issuance of a stay will “substantially injure” other interested parties; and (4) “where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009) (citation omitted). Respondents reiterate their prior arguments in renewing their motion to stay the preliminary injunction and moving to stay the enforcement order, with citations to recently issued decisions from other circuits in similar cases. Having considered these additional authorities, we conclude the respondents have not met the criteria for a stay, given the deference owed to the district court. Whatever the merits of that argument, we decline to review Respondents’ brief assertion that transfer to home confinement is an improper remedy for any alleged Eighth Amendment violation because we will not generally consider “[i]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation.” United States v. Sandridge, 385 F.3d 1032, 1035 (6th Cir. 2004) (citation omitted).)
Irreparable harm requires more than “some possibility of irreparable injury.” Id. The district court’s injunction, broad in scope, requires Respondents to fast-track review of more than 800 Elkton inmates for enlargement. “Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough.” Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991) (citation omitted). We recognize that when state “officials undertake[] to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad.” S. Bay United

Case: 4:20-cv-00794-JG Doc #: 107 Filed: 06/02/20 3 of 3. PageID #: 1405 Nos. 20-3447/3547 -3-
Pentecostal Church v. Newsom, No. 19A1044, at *2 (U.S. May 29, 2020) (Roberts, C.J., concurring) (internal citation and quotation marks omitted). The inmates quarantined in preparation for transfer will remain so for several more days. At this point, a decision on the merits will benefit all parties. We have expedited No. 20-3447 for briefing and submission, on the schedule suggested by the parties. The parties have already filed their principal briefs, and Respondents’ reply brief is due on Monday, June 1, 2020. We will conduct a Video Argument on Friday, June 5, 2020, at 2:30 p.m. (ET), and we anticipate a decision will soon follow.
The motion to stay is DENIED. ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk

 
 Case: 4:20-cv-00794-JG Doc #: 109 Filed: 06/04/20 1 of 6. PageID #: 1408

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

:

CRAIG WILSON, et al.,

:

:

Petitioners,

:

:

vs.

:

:

MARK WILLIAMS, et al.,

:

:

Respondents.

:

:

CASE NO. 4:20-cv-00794
ORDER [Resolving Doc. 98]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
Respondents, officials at Elkton Federal Correctional Institution, move for a stay pending the outcome of their appeal from the Court’s May 19, 2020, Order enforcing the preliminary injunction.1 Respondents also renew their request for a stay of the Court’s April 22, 2020, Order. For the following reasons, the Court DENIES Respondents’ motion for a stay.
I. Background The case’s background has been recounted in the Court’s previous orders. In
summary, Respondents house large numbers of low security inmate in compact dormitories with little or no ability to separate inmates. Respondents’ recent testing effort shows that almost twenty percent of tested inmates are COVID-19 positive.2 Consistent with the federal prison populations everywhere, large inmate percentages are older or have significant medical conditions.3

1 Doc. 98. 2 Doc. 108. 3 Care Level Classifications for Medical and Mental Health Conditions or Disabilities, Federal Bureau of Prisons (May 2019), https://www.bop.gov/resources/pdfs/care_level_classification_guide.pdf (“Inmates have a higher prevalence

Case: 4:20-cv-00794-JG Doc #: 109 Filed: 06/04/20 2 of 6. PageID #: 1409 Case No. 4:20-cv-00794 Gwin, J.
Germane to this order, on April 22, 2020, this Court granted a preliminary
injunction. The preliminary injunction ordered Respondents to identify subclass members;
evaluate each subclass member’s eligibility for transfer within two weeks (by May 6),
prioritizing the most medically vulnerable inmates; and transfer vulnerable inmates that
Respondents found ineligible for home placement, furlough or compassionate release to another BOP facility.4
On April 27, Respondents filed an interlocutory appeal.5 On April 28, Respondents requested a stay pending appeal.6
On April 29, 2020, Respondents moved for the Sixth Circuit to stay this Court’s
order. On April 30, 2020, the Sixth Circuit denied Respondents’ request for an administrative stay.7 On May 4, 2020 the Sixth Circuit again denied Respondents’ request for a stay pending appeal.8
This Court subsequently also denied Respondents’ motion for a stay.9
On May 19, 2020 the Court granted Petitioner’s motion to enforce the preliminary
injunction and required Respondents to take steps to comply with the preliminary injunction.10
On May 20, Respondents petitioned the Supreme Court for a stay of the Court’s
of chronic medical and mental health conditions than the general population.”); Inmate Age, Federal Bureau of Prisons, https://www.bop.gov/about/statistics/statistics_inmate_age.jsp (last visited June 3, 2020).
4 Doc. 22. 5 Doc. 26. 6 Doc. 30. 7 Doc. 38. 8 Doc. 46. 9 Doc. 57. 10 Doc. 85.
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Case: 4:20-cv-00794-JG Doc #: 109 Filed: 06/04/20 3 of 6. PageID #: 1410 Case No. 4:20-cv-00794 Gwin, J. May 19 Order.11 On May 26, the Supreme Court denied the request. On May 27, 2020, Respondents filed another appeal with the Sixth Circuit.12 This second appeal mostly targeted this Court’s May 19, 2020, order. On May 29, Respondents filed a motion to stay with the Sixth Circuit.13 That motion was also denied.14 II. Discussion A. April 22 Order Respondents renew their request to stay the Court’s April 22, 2020 Order. The Court’s Order denying Respondents’ initial April 22, 2020 Order stay request discussed the impact of the law of the case doctrine in light of the Sixth Circuit’s stay denial. As explained previously, the Sixth Circuit already decided the legal issues this Court must also consider when weighing a motion to stay. The law of the case doctrine stops this Court from reconsidering issues identical to those already considered, whether the issue was explicitly or implicitly decided.15 The Respondents’ motion to stay the April 22 Order is therefore denied. Furthermore, the Court continues to believe that Respondents are not entitled to a stay of the April 22 preliminary injunction Order for the reasons stated in the May 8 Order. B. May 19 Order The Respondents also request a stay of the Court’s May 19 Order. Just as with the Respondents’ request to stay the April 22 Order, the Sixth Circuit has already denied a request from Respondents to stay the Order at issue. Specifically, the Sixth Circuit found
11 Doc. 87. 12 Doc. 95. 13 Doc. 99. 14 Doc. 107. 15 Hanover Ins. Co. v. American Engineering Co., 105 F.3d 306, 312 (6th Cir. 1997).
-3-

Case: 4:20-cv-00794-JG Doc #: 109 Filed: 06/04/20 4 of 6. PageID #: 1411 Case No. 4:20-cv-00794 Gwin, J. that “the respondents have not met the criteria for a stay, given the deference owed to the district court.”16 The law of the case doctrine therefore likely prevents this Court from contradicting the Sixth Circuit’s findings as to the individual factors weighed when considering a stay. In any event, the Court agrees with the Sixth Circuit that Respondents have not met the criteria for a stay. The Court considers four factors when evaluating whether a stay is warranted: (1) the applicant’s likelihood of success on the merits; (2) whether the applicant will be irreparably injured without a stay; (3) whether the others will be injured by the stay; and (4) public interest.17 Respondents’ Likelihood of Success: The Court continues to find that Petitioners’ claims most similar to habeas claims, that the PLRA does not bar this action, and that Petitioners have shown a likelihood of success on the merits. Respondents’ Potential Injury: Respondents argue that they are harmed by what they characterize as this Court’s usurpation of the BOP’s statutory authority.18 Surely Respondents do not suggest, however, that BOP’s statutory “unreviewable discretion to determine where inmates should be placed” is immune from constitutional challenges such as this one. In any event, any harm to Respondents in having to exercise their discretionary authority to prevent medical complications and potential death for vulnerable inmates in their charge is slight, especially in light of the Attorney General’s instruction to
16 Doc. 107 at 2. 17 Cooey v. Strickland, 589 F.3d 210, 218 (6th Cir. 2009). 18 Doc. 98-1 at 11.
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Case: 4:20-cv-00794-JG Doc #: 109 Filed: 06/04/20 5 of 6. PageID #: 1412 Case No. 4:20-cv-00794 Gwin, J.
“immediately maximize appropriate transfer to home confinement of all appropriate
inmates held at . . . FCI Elkton.”19
Petitioners’ Potential Injury: As stated in the Court’s previous stay denial Order,
Petitioners’ potential injuries far outweigh Respondents’ potential injuries. As shown by
the test results and the recent movement of an Elkton inmate to an outside hospital,20
Elkton’s fight against COVID-19 is far from over and inmates are still at risk.
Public Interest: Respondents argue that public safety will be harmed by the
placement of certain individuals in home confinement and that transferring prisoners will
transmit COVID-19 to new areas.21 But Elkton’s inmates by definition have lower security
risks than inmates at other facilities. Additionally, the subclass members that would be
transferred are either 65 years old or older and/or suffer from serious health conditions.
Recidivism risk falls significantly for inmates in these populations. As reported by the
United States Sentencing Commission, during eight years following release, “13.4 percent
of offenders age 65 or older at the time of release were rearrested compared to 67.6
percent of offenders younger than age 21 at the time of release.”22
Finally, the Court’s April 22 Order requires the quarantining of inmates pre-
transfer23 and BOP has publicly stated that it is doing so separate from that Order for all
19 Attorney General William P. Barr, Memorandum for Director of Bureau of Prisons, Re: Increasing Use of Home Confinement at Institutions Most Affected by COVID-19, Office of the Attorney General (Apr. 3, 2020), https://www.bop.gov/coronavirus/docs/bop_memo_home_confinement_april3.pdf.
20 Doc. 101. 21 Doc. 98-1 at 12-13. 22 The Effects of Aging on Recidivism Among Federal Offenders, United States Sentencing Commission (Dec. 2017), https://www.ussc.gov/research/research-reports/effects-aging-recidivism-among-federaloffenders#:~:text=Report%20Highlights,at%20the%20time%20of%20release. The Sentencing Commission also reports: “Age exerted a strong influence on recidivism across all sentence length categories. Older offenders were less likely to recidivate after release than younger offenders who had served similar sentences, regardless of the length of sentence imposed.” Id. 23 Doc. 22.
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Case: 4:20-cv-00794-JG Doc #: 109 Filed: 06/04/20 6 of 6. PageID #: 1413 Case No. 4:20-cv-00794 Gwin, J. pre-home confinement inmates.24 Respondents also have the ability to mitigate the risk further by extensively testing inmates that are transferred to other facilities and quarantining them when they arrive. Finally, the Respondent classified the Petitioners as low or minimal security risks. Even at these low security levels, they each cost the public about $37,000 each year to house.25 III. Conclusion For the foregoing reasons, the Court denies Respondents’ Emergency Motion for Stay Pending Appeal.

IT IS SO ORDERED. Dated: June 4, 2020

s/

James S. Gwin

JAMES S. GWIN

UNITED STATES DISTRICT JUDGE

24 BOP Implementing Modified Operations, Federal Bureau of Prisons, https://www.bop.gov/coronavirus/covid19_status.jsp (last visited June 3, 2020) (“Inmates being released to community custody are quarantined for 14 days prior to release.”).
25 Annual Determination of Average Cost of Incarceration Fee, 84 FR 63891 (Nov. 19, 2019) (In fiscal year 2018, the cost of incarceration fee for Bureau of Prisons inmates was $37,449.00).
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 No. 19A-_______ ________________________________________________________________ ________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES _______________
MARK WILLIAMS, WARDEN OF ELKTON FEDERAL CORRECTIONAL INSTITUTION, AND MICHAEL CARVAJAL, DIRECTOR OF THE FEDERAL
BUREAU OF PRISONS, APPLICANTS v.
CRAIG WILSON, ET AL. _______________
APPLICATION FOR A STAY OF THE INJUNCTION ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO AND FOR AN ADMINISTRATIVE STAY _______________
NOEL J. FRANCISCO Solicitor General Counsel of Record Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217
________________________________________________________________ ________________________________________________________________

PARTIES TO THE PROCEEDING Applicants (respondents-appellants below) are Mark Williams, in his official capacity as Warden of Elkton Federal Correctional Institution; and Michael Carvajal, in his official capacity as the Federal Bureau of Prisons Director. Respondents (petitioners-appellees below) are Craig Wilson, Eric Bellamy, Kendal Nelson, and Maximino Nieves, on behalf of themselves and all others similarly situated.

IN THE SUPREME COURT OF THE UNITED STATES _______________
No. 19A-_______ MARK WILLIAMS, WARDEN OF ELKTON FEDERAL CORRECTIONAL INSTITUTION, AND MICHAEL CARVAJAL, DIRECTOR OF THE FEDERAL
BUREAU OF PRISONS, APPLICANTS v.
CRAIG WILSON, ET AL. _______________
APPLICATION FOR A STAY OF THE INJUNCTION ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO AND FOR AN ADMINISTRATIVE STAY _______________
Pursuant to Rule 23 of the Rules of this Court and the All Writs Act, 28 U.S.C. 1651, the Solicitor General, on behalf of the federal applicants, respectfully applies for a stay of the preliminary injunction issued on April 22, 2020, by the United States District Court for the Northern District of Ohio (App., infra, 8a28a), pending appeal of that injunction to the United States Court of Appeals for the Sixth Circuit and, if the court of appeals affirms the injunction, pending the filing and disposition of a petition for a writ of certiorari and any further proceedings in this Court. Applicants also respectfully request an administrative stay pending disposition of this application.
The COVID-19 pandemic has created extraordinary public health risks in this country and around the world. The Federal Bureau of Prisons (BOP) is working assiduously to mitigate those risks within its facilities by implementing a multi-phase plan it developed in January 2020. Prison officials at Elkton Correctional Institution

2 (FCI-Elkton) have implemented the BOP’s system-wide plan. They have minimized social interactions; distributed necessary cleaning supplies, masks, and protective equipment; and established quarantine, testing, and treatment protocols. Furthermore, when Elkton experienced a number of confirmed cases of COVID-19, prison officials worked to both limit transmission of the virus and ensure that those affected receive adequate medical treatment.
Respondents are four individuals who represent a conditionally certified subclass of older and medically vulnerable Elkton inmates. Respondents brought a purported habeas corpus challenge under 28 U.S.C. 2241, seeking a preliminary injunction that would secure their removal from Elkton based on allegations that COVID19 has created “unconstitutional conditions of confinement” at the facility. App., infra, 87a (capitalization and emphasis omitted).
Despite acknowledging BOP’s “good efforts” to “limit the virus’s spread” at Elkton, App., infra, 12a, the court determined that respondents were likely to succeed on their Eighth Amendment claim because the court viewed BOP’s “testing” and “social distancing” efforts to be inadequate, id. at 9a, 23a. It therefore granted a preliminary injunction requiring BOP to identify subclass members within one day; evaluate all members’ eligibility for “transfer out of Elkton through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough within two (2) weeks,” and then use those means, or transfers to other BOP facilities, to remove all subclass members from Elkton “until the threat of the virus is abated or until a vaccine is available.” Id. at 27a-28a.

3 The government unsuccessfully sought a stay of the injunction from the district court and the Sixth Circuit. App., infra, 1a5a, 29a. Meanwhile, BOP complied with the first two requirements of the injunction, identifying 837 subclass members and evaluating them for different means of transfer out of Elkton. Id. at 142a. Respondents, however, moved to enforce the injunction the same day BOP reported the results of its evaluation. Id. at 42a. The district court granted that motion on May 19, 2020. App., infra, 42a-52a. It determined that BOP had not found enough subclass members eligible for transfer out of Elkton through “home confinement” and “compassionate release.” Id. at 47a. It therefore imposed revisions to BOP’s home confinement criteria -requiring, for example, that BOP “disregard” some inmates’ violent offenses -- and ordered BOP to reevaluate all class members under the revised criteria. Id. at 48a. If BOP finds any class member ineligible under the court’s standards, it must provide a detailed, individualized explanation. Ibid. BOP must complete this entire process for the first third of the class (approximately 300 people) by May 21, 2020; the next third 48 hours later; and the final third 48 hours thereafter. Id. at 48a-49a. Also within 48 hours of the order, BOP must provide individualized explanations for every instance in which it has denied a class members’ compassionate release petition, id. at 50a, and identify and add new inmates to the class, id. at 51a. Within a week, it must “show cause” why any remaining class members are deemed ineligible for transfer to other facilities. Ibid.

4 This Court’s intervention is urgently needed. The district court’s injunction is deeply flawed and should be stayed pending appeal and, if necessary, further proceedings in this Court. The flaws are deepened and the need for relief made especially urgent by the district court’s extraordinary May 19 order enforcing the injunction. All the relevant factors support a stay. First, if the Sixth Circuit were to uphold the injunction, there is at least a reasonable probability that this Court would grant certiorari. A judicial order peremptorily requiring the removal of over 800 inmates from a federal prison based on an alleged Eighth Amendment violation -- in the midst of a pandemic -- presents extraordinarily significant questions and should not be imposed without this Court’s review. Both the Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No. 104-134, § 101[(a)], Tit. VIII, 110 Stat. 1321-66, and the contours of the Eighth Amendment itself dictate that such relief could be available only in the very rarest of circumstances. The importance of review is further underscored by the recommendation of the Centers for Disease Control and Prevention (CDC) that correctional institutions suspend transfers to the maximum extent possible to avoid the risk of spreading COVID-19. See CDC, Dep’t of Health and Human Servs., Interim Guidance on Management of Coronavirus Disease 2019 (COVID19) in Correctional and Detention Facilities 14 (Mar. 27, 2020)(CDC Interim Guidance), https://www.cdc.gov/coronavirus/2019-ncov/ downloads/guidance-correctional-detention.pdf (App., infra, 214a). And certiorari is also likely because the rulings below implicate an established conflict regarding the availability of

5 habeas corpus to challenge prison conditions, and a burgeoning disagreement regarding Eighth Amendment claims in the face of a pandemic.
Second, there is more than a fair prospect that the Court would vacate the injunction. Respondents’ sole claim for relief is an assertion of “unconstitutional conditions of confinement,” App., infra, 87a (capitalization and emphasis omitted). Yet the district court recharacterized the suit as a challenge to the “fact or duration” of respondents’ confinement. Id. at 17a-18a, 26a. That led the court to permit the suit to proceed under 28 U.S.C. 2241, despite this Court’s precedents recognizing that challenges to the “conditions of a prisoner’s confinement * * * fall outside” the “core” of federal habeas corpus. Nelson v. Campbell, 541 U.S. 637, 643 (2004). It also led the court to eschew the strict limitations on injunctive relief in general -- and on “prisoner release orders” in particular -- established by the PLRA.
The district court’s Eighth Amendment analysis is also contrary to this Court’s precedents, which have admonished against invoking that Amendment to engage in judicial second guessing of prison officials’ response to difficult and evolving situations. Farmer v. Brennan, 511 U.S. 825, 834, 836-837 (1994). Respondents have fallen far short of establishing both that they have been deprived of “the minimal civilized measure of life’s necessities,” and that any such deprivation results from prison officials’ “deliberate indifference,” as the Eighth Amendment requires. Id. at 834 (citations omitted). This extraordinary pandemic poses risks to those inmates, but it also poses risks to the population as a

6 whole, and BOP has worked diligently to mitigate the risks at Elkton.
Third, the balance of equities strongly favors a stay. If allowed to stand, the district court’s injunction -- now augmented by the court’s sweeping May 19 order -- would undermine BOP’s systemic response to the COVID-19 pandemic; intrude the Judicial Branch on policy decisions that have been assigned to expert prison administrators; and require BOP to defy the CDC’s guidance to restrict prisoner movements during the pandemic to avoid unnecessary risk of spreading the virus. While the court found its injunction appropriate based on the presence of COVID-19 at Elkton, its concerns regarding testing and social distancing cannot justify its dramatic imposition on a correctional institution.
Because all three of the stay factors are readily met, this Court should stay the injunction. In addition, because the injunction and May 19 order enforcing it require BOP immediately to evaluate under judicial supervision hundreds of Elkton inmates for home confinement under revised criteria the district court fashioned without authority or expertise and then to remove over 800 inmates from Elkton, the government respectfully requests that this Court enter an administrative stay.
STATEMENT 1. In January 2020, the first cases of illness caused by COVID-19 were reported in the United States. App., infra, 93a ¶ 6. Recognizing the threat, BOP quickly developed and began implementing a multiphase action plan, which has consistently been

7 informed by changing circumstances and “the guidance and direction of worldwide health authorities.” Ibid.
In its first phase, BOP gathered its existing pandemic resources and new information regarding the specific nature of COVID-19 and “best practices to mitigate its transmission.” App., infra, 93a ¶ 7. BOP also formed a task force to conduct Bureauwide “strategic planning” in coordination with “subject-matter experts,” and it began “implementing guidance and directives” from the CDC and other expert bodies. Ibid.
BOP implemented the second phase of its action plan on March 13, 2020, instituting restrictions at all BOP facilities. App., infra, 94a ¶ 8. Consistent with CDC guidance regarding the need to severely restrict inmate movements between facilities and within communities, CDC Interim Guidance 14 (App., infra, 214a), BOP suspended facility transfers. App., infra, 94a ¶ 8. It also suspended visits and contractor access. Ibid. And BOP instituted enhanced health screening for inmates and staff, as well as quarantine procedures for certain newly arriving inmates, again consistent with CDC guidance. Id. ¶¶ 9-10.
From March 18 to April 13, 2020, BOP implemented several further phases of its action plan, requiring (among other things) that all newly admitted inmates -- even those who are asymptomatic -- be quarantined for 14 days and that inmates displaying symptoms of COVID-19 be placed in isolation until testing negative or meeting CDC criteria. App., infra, 96a ¶ 15. BOP also restricted inmate gatherings and secured all inmates in their assigned living quarters to decrease virus transmission. Id. at 96a-97a ¶¶ 16-

8 17; see also id. at 125a-127a ¶ 38. In addition, all BOP staff and inmates have been given appropriate sanitation materials, face coverings, and other personal protective equipment where necessary. Id. at 125a-127a ¶ 38; see p. 8, infra.
2. FCI-Elkton is a low-security facility in Ohio, in which approximately 2500 inmates are incarcerated in dormitory style housing. App., infra, 106a ¶ 3; id. at 104a ¶ 54 (150-man units), 112a-113a ¶ 22 (units have 250-300 inmates, separated in half).
a. Like all BOP institutions, Elkton has implemented BOP’s nationwide COVID-19 response, and taken numerous precautions in accordance with the facility’s particular needs. App., infra, 97a-98a ¶ 19. For example, Elkton staff and officials have, since the beginning of the pandemic, educated inmates and staff about measures to avoid transmitting COVID-19. Id. at 98a ¶¶ 20-22. All common areas are cleaned at least daily with a disinfectant that kills human coronavirus. Id. at 103a ¶ 46. The disinfectant is also available to all inmates so that they can clean their personal areas, and they have access to sinks, water, and soap at all times. Id. at 102a-103a ¶¶ 45-46.
Elkton inmates and staff have been provided protective face masks for daily use and appropriate protective equipment as necessary for particular tasks. App., infra, 103a ¶¶ 48-50. BOP has also taken steps to reduce inmate contact. For example, inmates are required to pick up meals and return to their housing units to eat, and mealtimes are staggered so that only a single housing unit moves within the facility at any time. Id. at 95a ¶

9 12; see id. at 104a ¶ 54. Inmates may also receive medications and visit the commissary during these periods. Id. at 95a ¶ 12.
Elkton staff carefully monitor the health of the inmate population. Early on, staff reviewed medical records to identify inmates who are considered high-risk under CDC guidelines. App., infra, 99a-100a ¶¶ 30-31. Any inmate who reports symptoms consistent with COVID-19 is evaluated by BOP medical providers and, if symptoms are confirmed, moved to an isolation area. Id. at 99a-100a, 103a-104a ¶¶ 29, 34, 51. When testing was limited, medical providers decided whether to test an inmate for COVID-19 based on a number of criteria, including symptoms, potential exposure and whether the inmate was high-risk or on a work detail requiring interaction with other inmates or staff. Id. at 102a ¶ 41; see also id. at 101a-102a ¶ 39 (describing CDC’s “priority levels” for COVID-19 testing).
b. Despite BOP’s extensive efforts, Elkton has unfortunately experienced significant levels of infection, and, as of May 8, 2020, nine inmates have died from the virus. App., infra, 176a ¶ 47. From the outset, Elkton staff have responded with urgency to the presence of COVID-19, engaging in extensive efforts to limit transmission of the virus and to ensure proper care for those infected. Id. at 184a-186a ¶ 83-86.
Staff have continued to screen all inmates who report symptoms and to isolate them as appropriate. App., infra, 101a-104a ¶¶ 3941, 51-52. Asymptomatic inmates who have been in contact with symptomatic inmates during the incubation period (up to 14 days) are quarantined in a housing unit for at least 14 days. Id. at

10 104a ¶ 52. After 14 days, inmates may be released from quarantine if no one in the cohort has developed confirmed or suspected COVID19. Ibid. But if a quarantined inmate presents with symptoms, he is isolated, and the 14-day clock restarts. Ibid.
In order to ensure adequate medical treatment, Elkton staff have been working 12-hour shifts to provide inmates with 24-hour access to on-site medical services. App., infra, 184a-185a ¶ 83. If an inmate’s condition requires hospitalization, he is transported to a local hospital. Id. at 103a-104a ¶ 51. Returning inmates are placed in Elkton’s infirmary, where they remain until they have been fever-free for 72 hours and ten days have passed since their symptoms appeared. Id. at 178a ¶¶ 53-54.
BOP has evaluated Elkton inmates for alternate placement in home confinement, in keeping with statutory authorization and guidance from the Attorney General. App., infra, 111a-112a ¶¶ 1719; 122a-123a ¶¶ 25-26. In general, BOP is authorized to place a prisoner in “home confinement” for no more than the final “[six] months” of his sentence. 18 U.S.C. 3624(c)(2). But, under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. L. No. 116-136, 134 Stat. 281, Congress permitted BOP to extend the amount of time an individual may be placed in home confinement, if the Attorney General “finds that emergency conditions” justify that extension, and “as the Director [of BOP] determines appropriate.” Div. B, Tit. II, § 12003(b)(2), 134 Stat. 516.

11 The Attorney General has made the requisite findings. App., infra, 111a-112a ¶¶ 18-19. He has also directed BOP to prioritize the consideration of inmates at Elkton and two other facilities, and provided criteria for determining an inmate’s eligibility, including that “primary or prior violent offenses” and “sex offenses” are generally disqualifying. Ibid. BOP officials have implemented that guidance at Elkton. Ibid.; see also id. at 120a121a ¶ 22 (elaborating on criteria used for evaluation). BOP has also considered numerous requests from Elkton inmates for “compassionate release,” a statutory procedure through which BOP may request an inmate’s sentencing court to reduce his term of imprisonment because “extraordinary and compelling reasons warrant such a reduction.” 18 U.S.C. 3582(c)(1)(A). Congress has not, however, adjusted the compassionate release procedures in light of COVID-19, nor has it adjusted the necessary qualifications or procedures for other statutory mechanisms to alter inmate placements. For example, it has not made the COVID-19 pandemic an independent basis for furlough under 18 U.S.C. 3622, which authorizes BOP to temporarily release an inmate for specified purposes like “obtaining medical treatment not otherwise available,” “participating in training,” or “work.” 18 U.S.C. 3622(a)(3), (b), and (c). 3. On April 13, 2020, respondents filed a habeas corpus petition pursuant to 28 U.S.C. 2241 on behalf of themselves and a putative class of all current or future Elkton inmates, and a subclass of medically-vulnerable inmates. App., infra, 53a-90a.

12 Their sole claim was that they are being subject to “unconstitutional conditions of confinement in violation of the Eighth Amendment.” Id. at 87a (capitalization and emphasis omitted). As relief, they sought -- among other things -- a preliminary injunction requiring BOP to remove all “[m]edically-[v]ulnerable” inmates from Elkton through means such as home confinement, transfer furlough to another facility, or non-transfer furlough to the community, id. at 54a n.2, 88a, and an order requiring BOP to institute a COVID-19 mitigation plan supervised by the court and “a qualified public health expert,” id. at 88a-89a.
On April 22, 2020, the district court entered a preliminary injunction granting relief to a conditionally certified subclass of older and medically vulnerable inmates. App., infra, 27a-28a. Invoking what the court viewed as its “inherent authority” over an inmate’s confinement, the court ordered BOP to “determine the appropriate means of transferring” all subclass members “out of Elkton.” Id. at 15a-16a.
The district court first determined that it had jurisdiction under 28 U.S.C. 2241, but only as to the subclass of medically vulnerable inmates. App., infra, 16a-18a. Although the putative class of all Elkton inmates and the medically vulnerable subclass were pursuing the same Eighth Amendment claim for “unconstitutional conditions of confinement,” id. at 87a (capitalization and emphasis omitted), the court held that the subclass could proceed in habeas and the class as a whole could not because the subclass was seeking “immediate release” from Elkton through home confinement and other mechanisms, while the class as a whole was merely

13 seeking “an alteration to the confinement conditions.” Id. at 18a. The court also found that the subclass “likely meets” the requirements for class certification under Federal Rule of Civil Procedure 23, see App., infra, 22a.
The court then determined that respondents were likely to succeed on their Eighth Amendment claim because they identified a “very serious medical need to be protected from the virus” and because the court believed BOP had been deliberately indifferent to that need. Id. at 23a. While acknowledging that BOP had made “certain prison-practice changes” to protect inmates, the court nonetheless concluded that respondents had demonstrated deliberate indifference. Ibid. The court focused on what it viewed as “paltry * * * test[ing]” and the fact that inmates had not been “separat[ed] * * * at least six feet apart.” Id. at 10a, 23a.
Turning to the balance of harms, the district court held that respondents had demonstrated irreparable harm because “it is more than mere speculation that the virus will continue to spread and pose a danger to inmates.” App., infra, 24a. The court further concluded that the relief it intended to order -- the wide-scale transfer of hundreds of inmates out of Elkton -- would not impose undue harms and would be in the public interest. Id. at 24a-26a. And the court rejected BOP’s argument that the court’s ability to award that relief was constrained by the PLRA, which mandates that only a three-judge court may issue a release order in a suit challenging prison conditions. Id. at 26a-27a. In the court’s view, the PLRA did not apply because respondents were pursuing “habeas corpus proceedings challenging the fact or duration of

14 confinement in prison,” which the statute exempts. Id. at 26a (citation omitted). And it further observed that its preliminary injunction would not qualify as a “release order” in any event because “the inmates will remain in BOP custody, but the conditions of their confinement will be enlarged.” Id. at 27a.
The court entered an order requiring that BOP “identify, within one (1) day all members of the subclass”; “evaluate each subclass member’s eligibility for transfer out of Elkton through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or nontransfer furlough within two (2) weeks”; and then ensure that “[s]ubclass members who are ineligible for compassionate release, home release, or parole or community supervision” are “transferred to another BOP facility [after required quarantine] where appropriate measures, such as testing and single-cell placement, or social distancing, may be accomplished.” App., infra, 27a-28a. Subclass members “may not be returned to the facility until the threat of the virus is abated or until a vaccine is available.” Id. at 28a.
4. The government filed a notice of appeal on April 27, 2020; moved the district court for a stay pending appeal the following day, D. Ct. Doc. 30; and filed a stay motion with the Sixth Circuit on April 29, 2020, C.A. Doc. 9-1.
On May 4, 2020, the Sixth Circuit denied the stay in a brief per curiam order. App., infra, 1a-5a. The court agreed with the district court that the invocation of Section 2241 was “proper” and that the PLRA did not apply. Id. at 3a. The court of appeals

15 also determined that the district court had not “abused its discretion” in finding that respondents were likely to succeed on their Eighth Amendment claim. Id. at 3a-4a. Finally, the court rejected BOP’s argument that the subclass could not satisfy Rule 23, and dismissed BOP’s account of the inordinate burden of implementing the order. Id. at 4a-5a (citation omitted).
On May 8, 2020, the court of appeals granted the government’s motion to expedite briefing on the appeal, App., infra, 6a-7a, but rejected the government’s proposed schedule, which would have permitted a decision by May 22, 2020, C.A. Doc. 28. Instead, briefing will not conclude until June 1, 2020, and “the merits panel will determine whether it will expedite oral argument or a decision.” App., infra, 7a.
5. a. On May 8, 2020, the district court also denied the government’s stay motion. App., infra, 29a-33a. By that time, the government had already fulfilled the injunction’s first two requirements and, on May 6, had submitted a status report indicating that it had identified and evaluated all subclass members’ eligibility for the forms of relief specified in the preliminary injunction. Id. at 142a-147a. The same day, respondents filed an emergency motion to enforce the injunction, alleging that BOP’s efforts did not suffice. D. Ct. Doc. 51.
On May 8, 2020, BOP opposed the motion and submitted declarations confirming that it had evaluated all inmates in the subclass for the forms of relief specified by the court, detailing the criteria it had used, and explaining some of the reasons why the vast majority of inmates had been deemed ineligible. App., infra,

16 153-157a. BOP explained, for example, that many subclass members are sex offenders, and that under established BOP criteria, reinforced by the Attorney General’s recent COVID-19 guidance, an inmate generally cannot qualify for home confinement if he has a “primary or prior sex offense.”. Id. at 153a-154a. In addition, BOP emphasized that it had evaluated every application for compassionate release that it had received from a class member, but that -- by statute -- only a sentencing judge can make a final determination of eligibility for that form of relief. Id. at 155a156a.
BOP further explained that it had begun evaluating inmates who were ineligible for other forms of relief for transfer to other BOP facilities, and it documented the numerous impediments it faced in implementing that transfer order. App., infra, 157a-161a. It explained that CDC guidance calls for detention facilities to “suspend all transfers unless absolutely necessary, if there is a suspected or confirmed case of COVID-19 at” a facility. Id. at 161a. It also noted that the facilities that met the court’s social distancing requirements were largely higher-security institutions, and that transferring Elkton inmates to them would raise “serious security concerns.” Id. at 159a-160a.
Finally, BOP reported that it had entered into a contract for mass COVID-19 testing of all Elkton inmates. App., infra, 150a. It further observed that, as of May 8, 2020, there had been a “substantial[]” decrease in hospitalizations and improvement in a number of other key metrics. Id. at 150a-152a.

17 b. The district court did not rule on the motion to enforce until May 19, 2020. In the interim, it issued several orders requiring BOP to produce daily status reports on testing as well as additional information regarding its efforts to evaluate inmates for transfer. D. Ct. Doc. 76 (May 14, 2020). But the court acknowledged that some inmates who are members of the Rule 23(b)(2) subclass may not wish to be transferred from Elkton, particularly if they would be moved to a higher security prison or transferred further from their homes. D. Ct. Doc. 55, at 13-14, 26-27 (May 7, 2020). The court therefore directed respondents to survey all Elkton inmates, through a questionnaire distributed by BOP, to both ensure that all eligible class members have been identified and to determine which wished to “optout” and remain at Elkton. Ibid. Respondents provided copies of the responses to BOP at approximately 1:30 p.m. on May 19, 2020. BOP intended to process the results within two days, so that it could use the information to begin quarantining class members on Friday, May 22, 2020, as required to prepare them for transfer. c. At 3:30 p.m. on May 19, 2020, the district court granted respondents’ motion to enforce the injunction. App., infra, 42a52a. The court acknowledged that BOP had begun to implement mass testing at Elkton, id. at 43a, and that it had reported evaluating all subclass members for the various forms of relief dictated in the court’s order, id. at 45a. But the court noted that testing had yielded positive results for a number of inmates. Id. at 43a. And it found BOP’s evaluation efforts insufficient because only five members were “pending [home confinement] community

18 placement,” and an additional six reportedly “might” qualify. Ibid.
In the district court’s view, more inmates should be eligible for home confinement and compassionate release. App., infra, 45a. Therefore, after surveying the existing guidance from the Attorney General and BOP, the court ordered five revisions to the criteria for home confinement. Id. at 47a-48a. For example, the court announced that BOP must “disregard” consideration of a violent offense if it occurred “more than 5 years ago” or if it is the “only basis [f]or denial,” and BOP must wholly disregard certain categories of prison disciplinary violations. Id. at 48a.
On this basis, the district court, to enforce its injunction, ordered BOP to reevaluate every subclass member under the revised criteria, and offer a detailed explanation for any denial. App., infra, 48a. BOP must complete this process for the first third of the subclass by May 21, 2020; the next third 48 hours later; and the final third 48 hours after that. Id. at 48a-49a. In addition, within 48 hours, BOP must “clarify” the reasons for any denial of compassionate release. Id. at 50a. And, even though the statute affords BOP 30 days to evaluate any application for such release, the court gave BOP just seven days to adjudicate any new applications. Id. at 50a. It also gave BOP seven days to “show cause” why any inmate ineligible for home confinement or compassionate release “cannot be transferred to another BOP facility where social distancing is possible.” Id. at 51a.

19 ARGUMENT The government respectfully requests that this Court stay the district court’s preliminary injunction pending completion of further proceedings in the court of appeals and, if necessary, this Court. The government further requests that the Court grant an administrative stay pending its consideration of this application. A stay pending the disposition of a petition for a writ of certiorari is appropriate if there is (1) “a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari”; (2) “a fair prospect that a majority of the Court will conclude that the decision below was erroneous”; and (3) “a likelihood that irreparable harm will result from the denial of a stay.” Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers) (brackets, citation, and internal quotation marks omitted). All of the requirements are met here.
I. A REASONABLE PROBABILITY EXISTS THAT THIS COURT WOULD GRANT CERTIORARI IF THE COURT OF APPEALS WERE TO UPHOLD THE INJUNCTION If the court of appeals ultimately upholds the district
court’s injunction in this case, there is, at the very least, a reasonable probability that the Court will grant certiorari.
This Court has recognized that, even in normal times, an order requiring the release or transfer of “prisoners in large numbers * * * is a matter of undoubted, grave concern.” Brown v. Plata, 563 U.S. 493, 501 (2011). Such orders carry a high risk of jeopardizing public safety and inappropriately interjecting the Judicial Branch into difficult decisions regarding prison security

20 and administration, despite the deference that is owed “to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of convicted criminals.” Id. at 511. That is all the more so when prison administrators must address the impact of a pandemic affecting the Nation at large, and must do so across the prison system.
A decision upholding this injunction would also implicate two conflicts in the courts of appeals. The circuits are divided as to whether a prisoner may pursue a challenge to his conditions of confinement under Section 2241. The Third, Seventh, Eighth, and Tenth Circuits have all held that suits challenging conditions of confinement are not cognizable in habeas. See, e.g., Spencer v. Haynes, 774 F.3d 467, 469-470 (8th Cir. 2014); Cardona v. Bledsoe, 681 F.3d 533, 535-537 (3d Cir.), cert. denied, 568 U.S. 1077 (2012); Palma-Salazar v. Davis, 677 F.3d 1031, 1035-1038 (10th Cir. 2012); Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005). By contrast, the D.C. and Second Circuits have permitted petitioners to bring conditions of confinement claims under Section 2241. Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014); Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008), cert. denied, 555 U.S. 1118 (2009).
As for the court of appeals below, although the Sixth Circuit has previously held that Section 2241 “is not the proper vehicle for a prisoner to challenge conditions of confinement,” Luedtke v. Berkebile, 704 F.3d 465, 466 (2013), it largely nullified that rule in its stay denial in this case by treating respondents’ suit -- which seeks removal from Elkton because of allegedly

21 unconstitutional conditions -- as a cognizable habeas challenge to “the fact of the confinement,” App., infra, 3a.
In addition, there is burgeoning disagreement in the circuits regarding the appropriate standards for issuing an injunction against the administrators of a detention facility based on allegedly unconstitutional conditions created by COVID-19. The Sixth Circuit declined to stay such an injunction in this case, but several other circuits have reached a contrary conclusion.
For example, in Valentine v. Collier, 956 F.3d 797 (2020) (per curiam), mot. to vacate stay denied, No. 19A1034 (May 14, 2020), this Court recently declined to lift the Fifth Circuit’s stay of an injunction granting relief to a class of “disabled and high-risk” inmates in a state “prison for the elderly and infirm” that had experienced an outbreak of COVID-19 and several related deaths, id. at 799. The district court injunction in question did not order release or transfer, but instead imposed a series of requirements such as increased cleaning and the provision of additional sanitizers and paper products. Id. at 799-800. Nonetheless, the Fifth Circuit held that the “intrusive order[]” inflicted irreparable harm on both the State and the public by diverting resources from the prison system’s implementation of a systemic response to the pandemic. Id. at 803-804. And it found it apparent that the district court had erred in finding an Eighth Amendment violation. Although it recognized that “the district court might do things differently,” the Fifth Circuit made clear that such disagreement with the officials’ actions demonstrated no deliberate indifference to inmate welfare. Id. at 803; see also

22
Marlowe v. LeBlanc, No. 20-30276, 2020 WL 2043425, at *2-*3 (5th Cir. Apr. 27, 2020) (per curiam) (unpublished) (staying a COVID19 based preliminary injunction involving a “particularly vulnerable” inmate in a facility where “the virus has spread”).
The Eleventh Circuit similarly stayed a COVID-19 injunction obtained by prisoners purporting to represent “a ‘medically vulnerable’ subclass of inmates” at a jail where “several inmates * * * ha[d] tested positive for the virus” in Swain v. Junior, No. 20-11622, 2020 WL 2161317, at *1 (11th Cir. May 5, 2020) (per curiam). Like the Fifth Circuit, the Swain court determined that prison officials were likely to succeed on appeal because the district court’s focus on the facility’s “increase in COVID-19 infections” to show that officials “deliberately disregarded an intolerable risk” had misunderstood the Eighth Amendment inquiry and the requirements for a preliminary injunction. Id. at *4.1
If the Sixth Circuit affirmed the injunction in this case, it would place the court on the wrong side of both conflicts. It would also place the circuit in direct conflict with this Court’s decisions addressing what constitutes a habeas challenge to the “fact or duration” of confinement, congressionally established limits on prisoner litigation in the PLRA, and the constitutional
1 In a somewhat different context, the Ninth Circuit has largely stayed a preliminary injunction directing the release of immigration detainees and imposing numerous other requirements based on a parallel COVID-19 claim of deliberate indifference under the Due Process Clause. Roman v. Wolf, No. 20-55436, 2020 WL 2188048 (May 5, 2020) (unpublished); see Roman v. Wolf, No. 20cv-768, 2020 WL 1952656, *10-*12 (C.D. Cal. Apr. 23, 2020).

23 standards for claims under the Eighth Amendment, as we demonstrate below. In these circumstances, there is more than a “reasonable probability” that the Court will grant certiorari. Conkright, 556 U.S. at 1402 (citation omitted).
II. THERE IS AT LEAST A FAIR PROSPECT THAT THE COURT WOULD VACATE THE INJUNCTION IN WHOLE OR IN PART This Court is also likely to vacate the injunction because it
cannot be squared with this Court’s precedents regarding habeas corpus, the PLRA, and the Eighth Amendment.
A. As a threshold matter, the district court’s order mischaracterized this suit as a habeas challenge to “the fact or duration of confinement,” App., infra, 26a, rather than a challenge to prison conditions. This Court has repeatedly drawn a line between “two broad categories of prisoner petitions: (1) those challenging the fact or duration of confinement itself; and (2) those challenging the conditions of confinement.” McCarthy v. Bronson, 500 U.S. 136, 140 (1991). Challenges to the fact or duration of confinement are those in which the prisoners’ success would “necessarily imply the invalidity of their convictions or sentences.” Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) (brackets and citation). By contrast, challenges to the conditions of confinement are those in which petitioners “allege[] unconstitutional treatment of them while in confinement.” Preiser v. Rodriguez, 411 U.S. 475, 499 (1973).
1. The categorization of a prisoner’s challenge has two important consequences. First, it determines whether the prisoner’s avenue for relief is through a petition for habeas corpus or

24 a civil rights action. “[W]here an inmate seeks injunctive relief challenging the fact of his conviction or the duration of his sentence,” that claim “fall[s] within the ‘core’ of federal habeas.” Nelson v. Campbell, 541 U.S. 637, 643 (2004) (citation omitted). “By contrast, constitutional claims that merely challenge the conditions of a prisoner’s confinement, whether the inmate seeks monetary or injunctive relief, fall outside of that core.” Nelson, 541 U.S. at 643. State prisoners may bring such claims under 42 U.S.C. 1983, and federal prisoners may pursue such claims in appropriate circumstances under the APA or through an implied cause of action in equity, see, e.g., Simmat v. United States Bureau of Prisons, 413 F.3d 1225, 1231-1232 (10th Cir. 2005).
Second, the distinction determines whether certain PLRA restrictions apply. The PLRA creates a carefully reticulated scheme for “the entry and termination of prospective relief in civil actions challenging prison conditions.” Miller v. French, 530 U.S. 327, 331 (2000). And it broadly defines a “civil action with respect to prison conditions” as “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,” while excluding “habeas corpus proceedings challenging the fact or duration of confinement in prison.” 18 U.S.C. 3626(g)(2). As this Court has explained, the PLRA tracks the basic distinction between habeas suits challenging the “fact or duration of confinement itself,” and civil actions “challenging the conditions of confinement.” Porter v. Nussle, 534 U.S. 516, 527-528 (2002) (citation omitted).

25 2. Respondents’ suit plainly constitutes a challenge to prison conditions that cannot proceed through habeas and must be governed by the restrictions in the PLRA. In their habeas petition, respondents’ only claim is an assertion of “Unconstitutional Conditions of Confinement.” App., infra, 87a (emphasis omitted); see also, e.g., id. at 66a (alleging that they are suffering from “current crowded conditions” at Elkton); id. at 74a (asserting that the “concentration of infected prisoners in unsafe conditions within * * * Elkton is dangerous”). In their briefing, respondents have further disclaimed any “quarrel * * * with the validity of their sentences,” asserting only that the conditions at Elkton violate the Eighth Amendment. Resp. C.A. Stay Opp. 11. The district court, too, has described the suit as focusing on allegedly “dangerous conditions within the prison created by the [COVID-19] virus.” App., infra, 17a (emphasis added). The bulk of the analysis in the injunction order also treats the case as a conditions-of-confinement challenge. For example, the court found that respondents have a likelihood of success based on its assessment of conditions related to “testing” and the inability to “separate [Elkton] inmates.” Id. at 23a. And the court did not order the traditional habeas relief of “simple release,” Munaf v. Geren, 553 U.S. 674, 693 (2008). Instead, it purported to “enlarge[]” the “conditions of [respondents’] confinement,” by requiring them to be “transfer[red] out of Elkton through any means,” including transfer to “another BOP facility.” App., infra, 27a-28a (emphasis added).

26 Nonetheless, the district court characterized the action as a “habeas corpus proceeding[] challenging the fact or duration of confinement” App., infra, 26a, because -- while respondents challenge the “conditions within the prison,” id. at 17a -- they also “seek immediate release” from “continued imprisonment at Elkton,” id. at 18a. But if respondents succeed on the merits, it would not remotely “imply” that their “convictions or sentences” are invalid. Wilkinson, 544 U.S. at 82 (brackets and citation omitted). Nor would success entitle them to release, but only to the improvement of the challenged conditions. Indeed, respondents do not even seek release “from custody”; they request release “from the physical confines of Elkton,” which could include a “transfer furlough * * * to another facility,” App., infra, 54a n.2 (emphasis added). In any event, seeking release cannot automatically convert a suit to a habeas “fact or duration” challenge because the PLRA clearly contemplates that actions challenging “prison conditions” may lead to release in rare circumstances where the conditions cannot be redressed, because the statute sets out detailed requirements governing how and when such a “prisoner release order” may be issued. 18 U.S.C. 3626(a). In Brown v. Plata, this Court considered the proper application of those PLRA provisions to two cases in which California prisoners alleged that overcrowding and deficiencies in medical care constituted an Eighth Amendment violation that entitled them to orders granting the release or transfer of a portion of the state prison population. 563 U.S. at 507-508, 511. The Court never once questioned that the suit was

27 a challenge “to prison conditions” that was squarely governed by the PLRA. Id. at 530; see also Nussle, 534 U.S. at 532 (recognizing that the PLRA covers “all inmate suits about prison life”).
3. a. Because this suit constitutes a challenge to conditions of confinement, respondents should not have been permitted to proceed in habeas at all. In denying a stay, the Sixth Circuit observed that this Court has never “foreclosed” the availability of habeas for conditions-of-confinement challenges. App., infra, 3a. But this Court has held that a prisoner who is not “seeking a judgment at odds with his conviction or with the State’s calculation of time to be served” is not raising a claim “on which habeas relief could [be] granted on any recognized theory.” Muhammad v. Close, 540 U.S. 749, 754–755 (2004) (per curiam). It has also repeatedly reiterated that injunctive suits challenging the “conditions of a prisoner’s confinement” are not displaced by the specific habeas remedy precisely because they fall outside of habeas’ “core.” Nelson, 541 U.S. at 643; see Preiser, 411 U.S. at 489.
b. Moreover, even if this Court were to hold that respondents may pursue their conditions-of-confinement challenge through habeas, the district court’s order would still be defective because it does not adhere to the requirements of the PLRA. That statute exempts only “habeas corpus proceedings challenging the fact or duration of confinement.” 18 U.S.C. 3626(g)(2) (emphasis added).
i. Because this suit challenges prison conditions, the district court should have adhered to the PLRA’s restrictions on injunctive relief, which require a court to find that an injunction

28 “extend[s] no further than necessary to correct the harm the court finds requires preliminary relief,” and that the order is the “least intrusive means necessary to correct that harm.” 18 U.S.C. 3626(a)(2). The district court made no such findings, a failure that alone entitles the government to “immediate termination” of the district court’s order. 18 U.S.C. 3626(b)(2). And even had it recognized those procedural requirements, the court could not have made the requisite findings because the release or transfer of one-third of Elkton’s inmates was not “narrowly drawn,” minimally “intrusive,” or “necessary to correct the harm” the court identified. 18 U.S.C. 3626(a)(2). BOP has shown that its policies have appropriately mitigated the risk of COVID-19 at Elkton, and it has further demonstrated that it is capable of mass testing. App, infra, 149a-150a. Further, far from being appropriate to correct a harm, the dramatic remedy the court ordered is directly contrary to the CDC guidance to avoid transfers to the maximum extent possible. CDC Interim Guidance 13 (App, infra, 213a).
ii. The preliminary injunction is also incompatible with the PLRA because it is a “prisoner release order” that does not comply with any of the statute’s mandates regarding such relief. A “prisoner release order” may be “entered only by a three-judge court,” and only after “a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation * * * sought to be remedied” and “the defendant has had a reasonable amount of time to comply with” that order. 18 U.S.C. 3626(a)(3)(A) and (B). None of that occurred here.

29 The district court contended that its injunction would not fall afoul of the PLRA, if it applied, because it is not a “release” order, but only an order “enlarg[ing]” or altering the “place of custody” “pending the outcome of a habeas action.” App., infra, 15a. The district court cited no cases in support of its novel claim of authority to “enlarge” respondents’ “place of custody” in this way.2 Under 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.” 18 U.S.C. 3626(g)(4). And Brown recognized that an order that permitted state officials to “comply by * * * transferring prisoners to [other] facilities,” was still a “prisoner release order” because it had the “‘effect of reducing or limiting the prison population.’” 563 U.S. at 511 (quoting 18 U.S.C. 3626(g)(4)). B. In any event, this Court likely would reject respondents’ Eighth Amendment claim on the merits. In a conditions-ofconfinement case like this, a prison official violates the prohibition against “cruel and unusual punishments,” U.S. Const. Amend. VIII, “only when two requirements” -- one objective, the other subjective -- “are met.” Farmer v. Brennan, 511 U.S. 825, 834, 846 (1994). Respondents have established neither.
2 The lack of precedent on “enlargement” via transfer may be due to another federal statute that explicitly mandates that “[n]otwithstanding any other provision of law, a designation of a place of imprisonment * * * is not reviewable by any court.” 18 U.S.C. 3621(b).

30 1. First, challenged prison conditions must be, “objectively, ‘sufficiently serious’” that they deny “‘the minimal civilized measure of life’s necessities.’” Farmer, 511 U.S. at 834 (citations omitted); see Hudson v. McMillian, 503 U.S. 1, 9 (1992). Where the conditions pose health risks, “the seriousness of the potential harm” and probability that it will “actually” occur must at least present “an unreasonable risk of serious damage to [an inmate’s] future health.” Helling v. McKinney, 509 U.S. 25, 3536 (1993). In addition, “today’s society” must judge that risk “so grave that it [would] violate[] contemporary standards of decency to expose anyone unwillingly to [it].” Id. at 36. Respondents have not met that standard. The government acknowledges that COVID-19 poses significant health risks. But BOP has mitigated the risk of serious injuries at Elkton by its numerous and increasing responses. See pp. 7-11, 16, supra. Data from Elkton, filed in response to respondent’s motion to enforce, reflects that the efforts have significantly mitigated the risk. See App., infra, 187a-189a (charts). Even before the district court entered its April 22 injunction, the number of inmates transferred to a local hospital had peaked and dropped to nearly zero (with only one subsequent hospitalization), the number of inmates in the hospital had similarly peaked and was in steady decline, and the number of staff members with confirmed infections had plateaued and flattened. See id. at 187a, 189a. And although

31
three inmates died after April 22, their deaths reflect the effects of the virus’s spread before April 6.3
Respondents have also failed to show that the mitigated health risk at Elkton is “so grave” that it would “violate[] contemporary standards of decency to expose anyone unwillingly to [it],” Helling, 509 U.S. at 36. COVID-19 poses risks confronting not only prisoners but law abiding citizens nationwide, including front-line workers and vulnerable nursing home patients. The CDC has issued guidance for appropriately mitigating the risks in correctional facilities, explaining that inmates may continue to be detained in “housing units” in which bunks “ideally” are separated by at least six feet, but that such separation and other “social distancing strategies” involving recreation, meals, and other activities “need to be tailored to the individual space in the facility.” CDC Interim Guidance 11 (App, infra, 211a) (emphasis omitted). That expert guidance is contrary to the view that risks at Elkton are such that contemporary societal standards wholly forbid them.
The district court concluded that respondents established the Eighth Amendment’s objective requirement because respondents have a “very serious medical need to be protected from the virus.”
3 See BOP, Inmate Death at FCI Elkton (May 8, 2020) (announcing death of inmate who had been hospitalized in early April), https:// www.bop.gov/resources/news/pdfs/20200509_pres_rel_elk.pdf; BOP, Inmate Death at FCI Elkton (May 6, 2020) (same), https://www. bop.gov/resources/news/pdfs/20200509_press_release_elk.pdf; BOP, Inmate Death at FCI Elkton (Apr. 26, 2020) (same), https://www. bop.gov/resources/news/pdfs/20200426_press_release_elk.pdf.

32 App., infra, 22a-23a. But while that need is relevant, see ibid., it is not sufficient to establish a risk that contemporary standards of decency would condemn, particularly in the context of a pandemic that led health officials to advise everyone to remain in place to the extent possible and to issue guidance to correctional facilities in particular not to transfer inmates.
2. Respondents have also failed to show that the subjective “intent” of Elkton’s officials transforms Elkton’s conditions into Eighth Amendment “punishment.” Where challenged conditions are “not formally meted out as punishment by the statute or the sentencing judge,” officials will impose “punishment” only if they “act with a sufficiently culpable state of mind,” Wilson v. Seiter, 501 U.S. 294, 298, 300 (1991), which is demonstrated “only [by] the unnecessary and wanton infliction of pain,” Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 297); see, e.g., Estelle v. Gamble, 429 U.S. 97, 104 (1976). Nothing remotely suggests that Elkton’s officials -- who have affirmatively sought to mitigate COVID-19’s risks -- are wantonly “punishing” respondents.
Whether an official’s conduct can be deemed “‘wanton’ depends upon the constraints facing the official.” Wilson, 501 U.S. at 303 (emphasis omitted); see Whitley v. Albers, 475 U.S. 312, 320 (1986). “[D]eliberate indifference” can constitute “wanton” intent in prison-conditions contexts because -- “as a general matter” -- the government’s responsibility to rectify dangerous conditions “‘does not ordinarily clash with other equally important governmental responsibilities’” or implicate unusual “constraints” on its action. Wilson, 501 U.S. at 302-303 (quoting

33 Whitley, 475 U.S. at 320). Like the criminal-law “mens rea requirement” for “subjective recklessness,” that standard requires proof that officials “know[] of and disregard[] an excessive risk of inmate health or safety,” Farmer, 511 U.S. at 836-837, 839-840, i.e., they must “‘consciously disregard’” that risk by subjectively recognizing it while failing to “respond[] reasonably.” Id. at 839, 844 (brackets and citation omitted); see Wilson, 501 U.S. at 299 (A “lack of due care” or other “error in good faith” is insufficient.) (citation and emphasis omitted). That subjective inquiry “incorporates due regard for [officials’] ‘unenviable task of keeping dangerous men in safe custody under humane conditions,’” Farmer, 511 U.S. at 845 (citation omitted), by “leav[ing] ample room for professional judgment, constraints presented by the institutional setting, and the need to give latitude to administrators who have to make difficult trade-offs as to risks and resources,” Battista v. Clarke, 645 F.3d 449, 453 (1st Cir. 2011). This Court has thus emphasized that courts must use “caution” in exercising their equitable power and warned that they may not “‘enmesh[]’” themselves “‘in the minutiae of prison operations.’” Farmer, 511 U.S. at 846-847 (citation omitted).
BOP officials have not even arguably been “deliberately indifferent” to the evolving COVID-19 pandemic. To the contrary, they have deliberately confronted the risks posed by this public health crisis by, among other things, providing inmates with masks and continuous access to soap, water, and sinks; providing additional protective equipment as necessary; limiting inmate movements and group gatherings by modifying meal, recreation,

34 commissary, and other procedures; educating inmates and staff on preventing contraction and transmission of the virus; implementing measures to screen and quarantine incoming inmates; conducting COVID-19 testing in accordance with CDC guidelines; isolating inmates who present with COVID-19-like symptoms; quarantining asymptomatic inmates who have contracted the virus; implementing enhanced daily cleaning of common areas; and providing inmates with disinfectant cleaners. See pp. 7-10, supra; App., infra, 93a-105a, 165a-186a.
In the preliminary injunction order, the district court recognized that Elkton’s officials “have sought to reduce [COVID19] risks” and that their actions reflect “good efforts,” but it suggested that such mitigation could “only be so effective” and that “despite their efforts, the Elkton officials fight a losing battle.” App., infra, 9a, 12a, 23a. The court also deemed Elkton’s level of COVID-19 testing inadequate and criticized Elkton’s lowsecurity physical design (which consists of dormitory-style housing), concluding that those factors gave BOP “little chance of obstructing the spread of the virus.” Id. at 10a-13a. The court then held -- without further analysis -- that Elkton’s officials had been “deliberately indifferent.” Id. at 23a. That legal conclusion is fundamentally flawed. Nothing suggests that officials subjectively believed their extensive efforts, which track the CDC’s guidance, were not a reasonable and appropriate response to the threat posed by COVID-19. In holding otherwise, the district court failed to account for the practical constraints facing officials, and by focusing on what it perceived to be

35 “inadequate measures” that it deemed “dispositive of [officials’] mental state,” it erroneously applied a standard that has no grounding in this Court’s Eighth Amendment jurisprudence. Valentine, 956 F.3d at 802. Moreover, prospective relief would have been warranted only if respondents had established not only that BOP officials’ “‘attitudes and conduct’” were subjectively wanton “at the time suit [wa]s brought,” but also that the officials currently are “knowingly and unreasonably disregarding an objectively intolerable risk of harm” and “will continue to do so * * * into the future” absent relief. Farmer, 511 U.S. at 845-846 (quoting Helling, 509 U.S. at 36). Respondents failed to do so.
For its part, the court of appeals, in denying a stay, failed even to address the subjective component of the Eighth Amendment claim, disregarding respondents’ burden to establish “deliberate indifference” by those working to combat the risks of COVID-19. See App., infra, 4a. That court’s exclusive focus on the clearerror standard for factual findings, ibid., wholly disregards the significant legal flaws in the district court’s analysis. III. THE BALANCE OF EQUITIES SUPPORTS A STAY
1. The third stay requirement is met because “irreparable harm will result from the denial of a stay.” Conkright, 556 U.S. at 1402 (brackets and citation omitted). The harms to BOP and to the public interest “merge” when relief is sought against the government, Nken v. Holder, 556 U.S. 418, 435 (2009), and the public interest here plainly favors a stay.
a. In Brown, this Court recognized that the “mistaken or premature release of even one prisoner can cause injury and harm.”

36 Brown, 563 U.S. at 501. The risk of harm from the court’s order in this case is greatly magnified for at least two reasons.
First, the CDC has recommended that correctional facilities “[r]estrict transfers of incarcerated/detained persons to and from other jurisdictions and facilities” in all but the most essential circumstances to “reduce the risk of transmission and severe disease from COVID-19.” CDC Interim Guidance 2, 9 (App., infra, 202a, 209a) (emphasis omitted). Indeed, it has broadly cautioned against unnecessary travel even by the civilian population. See CDC, Coronavirus and Travel in the United States (May 8, 2020), https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-inthe-us.html (“[t]ravel increases your chances of getting and spreading COVID-19”). And, as BOP has documented, travel by federal inmates provides particular challenges because -- while the inmate transfer process has been altered to address the pandemic -- inmates are still likely to come into contact with others during transfer, including for lengthy periods while they are being transported in vehicles. App., infra, 140a ¶ 7.
Second, the district court gave insufficient attention to the risk that its orders might improperly place dangerous offenders within the community. In its May 19 order, for example, the court explicitly revised the BOP’s and the Attorney General’s expert guidance regarding when it is safe to place a prisoner in home confinement, forcing BOP to “disregard” highly relevant information like a prior “violent offense.” See p. 18, supra.
b. The district court’s order also inflicts harm on BOP and the public by inappropriately interjecting the judiciary into

37 sensitive areas of prison administration. The preliminary injunction and the court’s numerous subsequent orders force BOP to divert its resources from its systemic efforts to combat COVID19. Instead of working to accomplish the priorities established by “subject-matter experts” in accordance with CDC and WHO guidance, App., infra, 93a ¶ 7, BOP must put its efforts into adhering to the court’s dictates.
In staying more moderate preliminary injunctions on prison administrators, the Fifth and Eleventh Circuits have recognized the harm that diverting prison resources can inflict on overall attempts to stem the tide of infection in a pandemic. See Valentine, 956 F.3d at 803 (order improperly “interfere[d] with the rapidly changing and flexible system-wide approach that [the Texas Department of Criminal Justice] has used to respond to the [COVID-19] pandemic”); Swain, 2020 WL 2161317, at *5 (order would impose irreparable harm by precluding state from “allocat[ing] scarce resources among different * * * operations necessary to fight the pandemic”). Here, BOP has documented the extensive output of staff time and resources required to evaluate and transfer over 800 inmates, let alone in the manner and timeframe imposed by the May 19 order. See, e.g., App., infra, 129a ¶ 48, 132a-136a ¶¶ 9-17, 21-22.
c. The district court apparently believed that any harms imposed by its order were outweighed by the harms that would ensue from keeping subclass members incarcerated at Elkton. But the specific circumstances it relied on -- the general threat of COVID19 coupled with what it viewed as inadequate testing and social

38 distancing -- could not remotely justify the peremptory order to remove more than 800 inmates from Elkton. In any event, several of the premises of the court’s order have proved erroneous. For example, while the district court apparently believed it would be simple to transfer inmates from Elkton to other facilities where “single-cell placement, or social distancing” may occur, App., infra, 28a, Elkton’s dormitory style is typical of low-security federal facilities. App, infra, 197a ¶ 29. Accordingly, transferring Elkton inmates to institutions meeting the district court’s requirements may necessitate moving them to highersecurity facilities, which poses “significant security concerns.” Id. at 199a ¶ 37.
IV. AT A MINIMUM, THE COURT SHOULD STAY THE INJUNCTION TO THE EXTENT IT GRANTS CLASSWIDE RELIEF This Court has reserved the question whether habeas claims
may ever be pursued as a class action. See Jennings v. Rodriguez, 138 S. Ct. 830, 858 n.7 (2018) (Thomas, J., concurring in part and concurring in the judgment). But regardless of how that question is answered, the court-defined class in this case does not satisfy the commonality and typicality requirements of Federal Rule of Civil Procedure 23(a). See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 n.5 (2011). Thus, at the very least, the injunction should be stayed to the extent it grants classwide relief.
Even if the four individual respondents themselves could demonstrate an Eighth Amendment violation, each member of the class has not suffered “the same injury,” as is required for commonality, Dukes, 564 U.S. at 350 (citation omitted), because each has

39 different medical needs and presents a distinct risk profile for contracting COVID-19, see, e.g., Kress v. CCA of Tennessee, LLC, 694 F.3d 890, 893 (7th Cir. 2012). Respondents also cannot demonstrate typicality because different class members would be entitled to “different injunction[s] or declaratory judgment[s]” depending on their needs. Dukes, 564 U.S. at 360. The injunction reflects as much, because it requires BOP to make individualized assessments about the form of relief or transfer necessary for each class member. And the court has even directed respondents to survey the entire class to determine whether some members wish to remain at Elkton. See p. 17, supra.
CONCLUSION For the foregoing reasons, this Court should stay the preliminary injunction pending the completion of further proceedings in the court of appeals and, if necessary, this Court. Alternatively, the Court should stay the injunction to the extent it affords class-wide relief. The Court should also grant an administrative stay pending resolution of this application. Respectfully submitted.
NOEL J. FRANCISCO Solicitor General
MAY 2020

 
 No. 19A1041
IN THE
Supreme Court of the United States

MARK WILLIAMS, WARDEN OF ELKTON FEDERAL CORRECTIONAL INSTITUTION, AND MICHAEL CARVAJAL, DIRECTOR OF THE FEDERAL BUREAU OF PRISONS, Applicants, v.
CRAIG WILSON, et al., Respondents.

OPPOSITION TO APPLICATION FOR A STAY OF THE INJUNCTION ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO AND FOR AN ADMINISTRATIVE STAY

David J. Carey AMERICAN CIVIL LIBERTIES UNION OF OHIO FOUNDATION 1108 City Park Avenue, Ste. 203 Columbus, OH 43206
Joseph Mead Freda J. Levenson AMERICAN CIVIL LIBERTIES UNION OF OHIO FOUNDATION 4506 Chester Avenue Cleveland, OH 44102
Kirti Datla HOGAN LOVELLS US LLP 555 13th Street, NW Washington, DC 20004

David D. Cole Counsel of Record
David C. Fathi AMERICAN CIVIL LIBERTIES UNION FOUNDATION 915 15th Street, NW Washington, DC 20005 212-549-2611 dcole@aclu.org
Jennesa Calvo-Friedman AMERICAN CIVIL LIBERTIES
UNION FOUNDATION 125 Broad Street New York, NY 10004
Counsel for Respondents

INTRODUCTION In few places is the deadly threat of COVID-19 more amplified than in the cramped, overcrowded environment of prisons. And among federal prisons, the Attorney General himself has singled out the facility at Elkton, Ohio, as one of the worst. Guidance from public health experts, including the Centers for Disease Control and Prevention, instructs that the cornerstone of any effort to contain this infectious disease is the ability to “[s]tay at least 6 feet (about 2 arms’ length) from other people,” to not “gather in large groups,” and to “[s]tay out of crowded places.”1 But at the lowsecurity Elkton Federal Correctional Institution (“FCI Elkton”) and its low-security satellite camp (“FSL Elkton”) (collectively, “Elkton”), such fundamental measures are flatly impossible. Prisoners at Elkton are, by definition, those “with lower institutional and public risk factors.” Enforcement Order, Gov. App. 45a. But while they are low-risk, the threat to their health from COVID-19 is decidedly not. They are housed, cheek by jowl, in dormitory-style rooms of approximately 150 persons each. Though well aware that social distancing is an indispensable means of protecting themselves, they are powerless to use it. The result has been a severe COVID-19 outbreak lasting months, causing the deaths—so far—of at least nine people and infecting hundreds more among prisoners and staff.
1 Ctrs for Disease Control and Prevention, Social Distancing, (May 6, 2020) https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/socialdistancing.html
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Congress has provided the Federal Bureau of Prisons with a collection of tools to attempt to ameliorate situations like Elkton’s, including recently expanded authority to move prisoners to home confinement. Nearly two months ago, Attorney General William Barr exhorted the wardens of the BOP’s three worst COVID-19 hotspots, including Elkton, to use these tools “with dispatch” to move as many people as possible to safety. But the Government did not do so. By the time this case was filed, on April 13, three Elkton prisoners were dead. By the end of this case’s first week, the death toll had doubled.2 By May 8, it grew to 9. Now, 20 more people are hospitalized and 8 intubated. And nearly 1 in 4 prisoners (of those who have been tested) are infected.
Recognizing that the unmitigated deadly risks to Elkton prisoners warrant relief, the District Court crafted a carefully circumscribed preliminary injunction to implement the habeas remedy of enlargement, affording substantial discretion to prison officials, using nothing but countermeasures already available to the Government. On April 22, the District Court ordered the Government to identify members of the subclass of medically vulnerable prisoners, and to “evaluate each subclass member’s eligibility for transfer within two weeks [by May 6], prioritizing the most medically vulnerable inmates. It ordered the Government to evaluate their eligibility for home confinement, compassionate release, furloughs, or a transfer to a safer facility. Where the Government determined that prisoners were, in fact, eligible
2 At the time of the preliminary injunction hearing in this matter, the number of deaths in Elkton matched the number of people who had been moved to home confinement. Hearing Transcript, D.Ct. ECF 40 at 27–28.
2

for relief, the court ordered them to provide it. This was no mass release order; indeed, the District Court repeatedly stressed that it was not ordering the release of anyone. Gov. App. 15a (“the BOP maintains custody over the defendant, but the place of custody is altered by the court”); 26a (“it bears repeating that the Petitioners are not asking the Court to dump inmates out into the streets”); 27a (“the Court is not ordering the release of the prisoners.”).
That was a month ago. Since then, though the infections and deaths continue to mount, no prisoner has received relief as a result of the preliminary injunction. Despite the Government’s protestations, their own testing demonstrates that COVID-19 continues to spread within Elkton (even though, because of the Government’s failure even to test the vast majority of the prisoners, much less effectively quarantine them, we cannot know the full extent of the spread).3
On May 19, having seen so little progress from the Government, the District Court issued a second order, finding the Government delinquent, noting that, out of 837, only “5 subclass members were ‘pending [home confinement] community placement’ and even they have not in fact been released. Six inmates were identified as maybe qualifying for home confinement. No inmates were deemed eligible for furlough transfer.” Gov. App. 45a. And as to compassionate release, the Government was only “working on a release plan”—and that only for one prisoner. The Court
3 This opposition refers to the Government as “Applicants” or “the Government,” and will refer to the prisoners as “Petitioners.”
3

concluded, “Such results do not comply with this Court’s previous Order.” Id. It issued a new order to enforce compliance with the preliminary injunction.
The preliminary injunction the Government seeks to stay here was issued on April 22. The Court of Appeals denied the Government’s stay motion on May 4. Now, after more than two weeks have passed, it asks this Court to stay the April 22 order on an emergency basis. It has not come close to meeting its demanding burden to show a stay is warranted here. Where a case is pending before the court of appeals, this Court’s practice is “to grant stay applications only upon the weightiest considerations.” Fargo Women’s Health Org. v. Schafer, 113 S. Ct. 1668, 1669 (1993) (O’Connor, J., concurring) (internal quotation marks omitted). The Government offers none: The deadlines in the preliminary injunction order have passed; the situation on the ground remains unchanged; and the two-week plus delay in seeking a stay forecloses any serious argument for this Court’s intervention.
The weakness of its case for staying the April 22 preliminary injunction explains why the Government does not base its case for a stay on that order. It directs its complaints not at the April 22 preliminary injunction that it has appealed, but at the new order, issued May 19, that it has not appealed. This Court does not entertain stay applications where—as here—the applicant did not first request relief below. Sup. Ct. R. 23(3). The Government makes no attempt to explain its choice not to appeal or to seek a stay of the May 19 order below. See id. This Court does not usually review arguments in the first instance. There is no reason to do so here.
4

Even if the May 19 order were properly before this Court, it threatens no imminent, much less irreparable, harm to the Government. It requires no one to be released. Rather, it merely directs the Government to reconsider its initial evaluation of the prisoners the Government itself has identified as medically vulnerable, to determine whether they are eligible for enlargement to home confinement or some other location. The Government’s claim that the Court has ordered transfers that violate the CDC’s guidance is doubly flawed. The Government’s practice of quarantining for 14 days anyone it does intend to transfer eliminates any risk. And the CDC guidelines do not direct the Government to keep medically vulnerable prisoners in harm’s way. They merely advise against transfers that are not otherwise necessary.
Finally, the Government has not shown a likelihood that certiorari will be granted. The court below properly exercised habeas corpus jurisdiction because, under the circumstances of Elkton, the only relief available to respond to the risks of contagion and death faced by medically vulnerable inmates is enlargement, a traditional form of habeas relief. As such, the limitations of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, are inapplicable, as they do not govern petitions for habeas corpus. And the asserted “splits” in authority identified by the Government are not implicated by the facts of this case, or are not splits at all.
The Government has demonstrated for months that it will not take the necessary action at Elkton to save the lives of its charges. As of today, despite the lack of mass testing, there are 128 confirmed and currently active cases of COVID-19
5

among Elkton prisoners, plus 8 more among staff.4 The true number is likely far higher. Yet not a single prisoner, no matter how vulnerable, has been transferred out. The District Court’s order is essential to resolving this crisis. The Government’s request for a stay should be denied.
STATEMENT 1. 2,357 prisoners are incarcerated at Elkton.5 As a low-security facility, many prisoners “share cells, sleeping areas, supplies, bathing areas, and other living spaces.” App., infra, 2a, ¶3 . Petitioner Wilson, for example, lives in a housing unit of 150 people. The unit is divided into cubicles meant for two to three people, each “about 8 feet by 9 feet, with a 5-foot wall in between.” App., infra, 44a, ¶3. The bunks are close together, “definitely less than six feet in all directions.” His unit has “10 sinks, 18 showers, 6 toilets, and 6 urinals” for 150 people. Id. Prisoners in the unit are “forced to get in tight lines for all meals and medications.” Id. The rest of Elkton is the same. See, e.g., App., infra, 24a, ¶2 (“There are 170 men in my pod, living 3 to a cell in spaces that were made for single occupancy.”); App., infra, 29a, ¶2 (“Every day, all day, we’re in the dorm clustered in around each other, and it doesn’t change.”); App., infra, 49a, ¶2 (“We’re overcrowded like cattle.”). The BOP’s descriptions of risk-prevention measures at Elkton tell only part of the story. The BOP states that it has “secured all inmates in their assigned living
4 Federal Bureau of Prisons, COVID-19, (accessed May 21, 2020) https://www.bop.gov/coronavirus/ 5 Federal Bureau of Prisons, FCI Elkton, (accessed May 21, 2020) https://www.bop.gov/locations/institutions/elk/
6

quarters to decrease virus transmission.” Stay Appl. 7. But because of the layout of Elkton’s units, that does not amount to social distancing. At “any given moment,” prisoners are next to someone else. App., infra, 32a, ¶2 (“I can move around and walk around the cubes, but I’m bumping up against people wherever I go.”). The BOP states that “mealtimes are staggered so that only a single housing unit moves within the facility at any time” and meals are grab-and-go, with prisoners returning to units to eat. Stay Appl. 8. But here, too, “[s]ocial distancing is out the window,” as prisoners line up to try “to get through a 4-6 foot wide door.” App., infra, 49a, ¶3; 32a, ¶ 2 (“[W]e have 5 minutes to get up, get dressed, and get to the building where we get our food boxes. Men are clustered together in line, because there’s no space to spread out.”).
The same goes for access to cleaning and sanitation supplies. The BOP states that prisoners “have access to sinks, water, and soap at all times.” Stay Appl. 8. The prisoners report that Elkton has not provided “dispensers” for soap or hand sanitizer. App., infra, 44a, ¶4. Instead, prisoners receive one four-ounce bottle of “‘3-in-1’ soap” per week. Id. Prisoners in a unit share a “big jug of watered-down antibacterial spray” and “have access to one shared area for hot water.” Id. The shared “sinks are so close to each other that . . . the splash from the next man’s toothpaste hits you, and you’re bumping elbows.” App., infra, 49a, ¶3. The BOP states that prisoners “have been provided protective face masks for daily use.” Stay Appl. 8. Prisoners were given two disposable masks to be reused over several weeks. App., infra, 44a, ¶4.
Even were it otherwise, no amount of sanitation would compensate for the inability to maintain distancing within Elkton. See App., infra, 2a, ¶6. BOP states
7

that it has “educated inmates and staff about measures to avoid transmitting COVID19.” Stay Appl. 8. But no matter how “educated” they are, staff and inmates cannot possibly adhere to the social distancing required by the CDC and all health authorities. App., infra, 2a, ¶6 (“Correctional staff must be in close contact with prisoners in the course of their regular jobs to enforce security protocols, escort prisoners across cell blocks and units, administer medications, and supervise meal distribution.”). No amount of education will matter where compliance with recommended safety measures is “not possible.” App., infra, 40a, ¶ 3.
It is, in short, “impossible to spread out or social distance” at Elkton. App., infra, 29a, ¶2; 2a, ¶5 (“With continued functioning of shared spaces for bathing, eating, and sleeping, quarantine and social distancing would be impossible to implement at Elkton”). Prisoners live in fear for their lives because “it seems like it’s only a matter of time until [they] get this virus.” App., infra, 44a, ¶4. Being at Elkton during this pandemic “feels like” being “handed a death sentence.” Id. For too many, that fear has proven true. Prisoners at Elkton face a disproportionate risk from COVID-19 due to the lack of social distancing. Nine prisoners have died. They represent more than 15% of the reported deaths of prisoners in all of BOP custody, 58 in total, though Elkton houses less than 2% of BOP prisoners.6
While prisoners at Elkton are confined to the facility, the risks of COVID-19 are not. The BOP reports that even its far from adequate testing has already
6 See Federal Bureau of Prisons, COVID-19, https://bit.ly/bopcovid (last visited May 21, 2020).
8

identified 52 staff members with COVID-19, of whom 44 have recovered, and eight remain infected.7 The staff at Elkton—potentially asymptomatic carriers—are traveling to and from Elkton in the surrounding communities. Gov. App. 73a. See also App., infra, 13a, ¶6 (“With institutional staff filtering in and out of Elkton on a daily basis, staff can easily carry the infection from the community to the prison and vice versa.”). As a result, hospitals in these communities, “some of them very small rural community hospitals,” according to U.S. Representative Bill Johnson, are at risk of being overrun. Gov. App. 71a; see also Gov. App. 73a-74a (limited hospital and ICU capacity).
Given these realities, there is only one route to decreasing the risk to prisoners and staff at Elkton. “Significantly reducing the prison population at Elkton as rapidly as possible is the best line of defense to maintain the public health interests of persons incarcerated at Elkton, correctional staff who work at Elkton, and the Ohio community.” App., infra, 4a, ¶7. Those measures need not result in a release from BOP custody, but do require transfer out of Elkton. See id. at ¶7–8 (discussing home confinement).
The Government itself has reached this same conclusion. On April 3, 2020, The United States Attorney General recognized the “significant level of infection” at Elkton and directed that BOP officials “immediately maximize appropriate transfers to home confinement” of prisoners at Elkton. App., infra, 54a. This directive was not implemented at Elkton. Petitioner Nieves, for example, resides in FSL Elkton, the
7 See id. 9

low-security satellite camp. He has only about 6 percent—approximately 11 months—of his sentence remaining, and has a stable residence awaiting him upon release. Gov. App. 79a. After being told he was eligible for release to home confinement, he was placed back in the camp population without explanation. Gov. App. 80a. There was no evidence that any prisoners had been released as the April 3 memo directed. Id.
2. Petitioners thus filed a Section 2241 petition to obtain enlargement of their custody in order to limit their exposure to COVID-19. They are four prisoners at Elkton. Gov. App. 56a–57a. Three Petitioners, Craig Wilson, Eric Bellamy, and Kendal Nelson have risk factors that the CDC identifies as high-risk for COVID. Id. (discussing Wilson’s chronic asthma, Bellamy’s enlarged heart valve and additional heart problems, and Nelson’s asthma, heart disease, and kidney disease). The fourth Petitioner, Maximino Nieves, faces a risk of contracting COVID due to his inability to distance from other prisoners at Elkton. Gov. App. 57a.
Petitioners sought to represent themselves and a class of all current and future people in post-conviction custody at Elkton and a subclass of “persons who, by reason of age or medical condition, are particularly vulnerable to injury or death if they were to contract COVID.” Gov. App. 81a. The initial proposed definition of the subclass included those age 50 or over and those with certain underlying health conditions. Gov. App. 81a.8 This would later be narrowed by the District Court, which
8 See Centers for Disease Control and Prevention, People Who Are at Higher Risk for Severe Illness (accessed May 21, 2020) available at https://bit.ly/cdcrisks.
10

conditionally certified a class that paralleled the CDC’s guidance delineating the categories of people at highest risk from COVID-19: those age 65 or over, or with specified, documented underlying health conditions. Gov. App. 19a.
Petitioners sought a preliminary injunction, supported by expert declarations from Dr. Meghan Novisky, who studies the consequences of carceral contact on health, and Dr. Joe Goldenson, a physician who has worked inside the prison system as a medical director and outside the prison system as a court monitor. App., infra, 2a, ¶1; 12a, ¶1. These declarations established that Elkton, by its very design as a low-security facility where prisoners are housed and recreate together, cannot accommodate recommended social distancing. App., infra, 4a ¶5. And they established that, when social distancing is not available, mitigating the risk from COVID-19 requires reducing the prison’s population, quickly. App., infra, 13a, ¶10. Petitioners also offered seven declarations from prisoners at Elkton, including the named Petitioners, which uniformly attested to the impossibility of social distancing at Elkton and the unavailability of basic necessities like soap and protective masks.
The BOP did not rebut this evidence. Nor could it have, as this record evidence aligns with the Government’s own statements about the actions that should be taken at facilities like Elkton. The CDC’s guidance urges prison administrators to take action to prevent overcrowding at facilities during an outbreak. The guidance emphasizes that social distancing is “a cornerstone of reducing transmission of
11

respiratory disease such as COVID-19.”9 The guidance does caution against transfers to and from facilities, as Applicants note, but that caution comes with an express carve-out, one that Applicants omit: CDC does not recommend restricting transfers where a transfer is “necessary . . . to prevent overcrowding.”10
The hearing on the preliminary injunction supported what Petitioners had told the District Court. Applicants confirmed that prisoners at FCI-Elkton are housed in groups of approximately 150, “in essentially cubicles, which are two-person or threeperson cubicles where they have a roommate or another.” PI Tr. at 8. The cubicles are open air: “essentially cinder blocks that are about six feet high.” Id. And each unit has a common area where prisoners congregate. Id. Prisoners at FSL-Elkton are housed “in bunk beds, not cubes within the unit.” Id. at 9. There is nothing stopping prisoner-to-prisoner spread of COVID-19 within a unit, given prisoners’ inability to maintain social distancing. See id. at 9–10. Applicants confirmed that no prisoners had been moved into home confinement, despite the Attorney General’s directive. See id. at 25 (noting that six prisoners—the same number of deaths at Elkton at the time—had been identified as eligible for home confinement but had not been released due to quarantine and that 32 had been denied “for a variety of reasons”).
9 See Ctrs. for Disease Control and Prevention, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional And Detention Facilities at 4 (“CDC Correctional Guidance”) (Mar. 23, 2020), https://bit.ly/cdcdetentioninterim. Applicants rely heavily on this document, though they did not raise it before the District Court during the preliminary injunction briefing. 10 See id. at 9.
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3. Crediting this evidence, the District Court granted a limited preliminary injunction. It started by explaining why Petitioners’ claim was properly brought in a habeas petition. As the court recognized, generally “challenges to the fact or duration of confinement that seek release sound in habeas whereas actions challenging the conditions of confinement raise concerns properly addressed under § 1983.” Gov. App. 17a. How that general rule applies in a given case is a heavily fact-dependent inquiry. Just so here. For prisoners in the medically vulnerable subclass, the court recognized that “continued imprisonment at Elkton is unconstitutional given the COVID-19 outbreak,” which rendered their claim “closer to a challenge to the manner in which the sentence is served and [ ] therefore cognizable under 28 U.S.C. § 2241.” Id. at 18a. For the remaining prisoners, who sought relief in the form of supervision of prison conditions by a public-health expert, the court concluded that the claims “sound more as a confinement conditions claim” and are not cognizable on habeas. Id.
The District Court then conditionally certified the medically vulnerable subclass. It narrowed the proposed subclass definition, as noted above. Gov. App. 19a. It then explained that the requirements of Rule 23 were met. As to Rule 23(a), it found that the subclass contains hundreds of prisoners (numerosity); the central question in the litigation is whether the risk created by COVID-19 at Elkton violates the prisoners’ rights absent transfers to allow for social distancing (commonality); three of the named Petitioners have underlying medical conditions or age-related risk factors that define the subclass (typicality); and the subclass has a shared interest in obtaining social distancing that counsel will represent (adequacy). Id. at 21a–22a. As
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to Rule 23(b), it concluded that the Government’s “failure to protect the inmates * * * applies to the entirety of the subclass generally and injunctive relief is appropriate as to the subclass,” satisfying Rule 23(b)(2). Id. at 22a.
Assessing the traditional injunctive relief factors, the District Court concluded that they weighed in favor of preliminary relief. “[A]t this preliminary stage * * * Petitioners have sufficiently met the threshold for showing that [Applicants] have been deliberately indifferent.” Id. at 23a. Applicants had, for example, “altogether failed to separate” prisoners in line with the CDC guidance that had been in place for some time. Id. The subclass faced irreparable harm without preliminary relief, as “more than 1 in 4” prisoner deaths nationwide had occurred at Elkton. Id. at 24a. And the public interest also pointed to preliminary relief. Petitioners had not asked the court “to throw open the gates” at Elkton; instead, Petitioners had asked only for an evaluation of eligibility for “‘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.” Id. at 24a–25a. Applicants’ unchallenged policy of quarantining any prisoner from Elkton for 14 days before transfer would avoid any risk to the community. Id. at 25a. Mitigating the spread of COVID-19 inside Elkton would mean mitigating its spread outside too, which would benefit the community that staffs and supports the facility. See id. And it would mean conserving the financial resources that would be dedicated to the intensive medical care that COVID-19 patients, especially those with risk factors, require. See id.
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The April 22 preliminary injunction order did not grant the medicallyvulnerable subclass the full relief sought. The court took pains to ensure that Applicants would retain control and discretion over the process of “release.” The order required Applicants first “to identify * * * all members of the subclass” by April 23— that is, those who are medically vulnerable under CDC criteria (with the exception of a history of smoking). Id. at 27a. It then required Applicants to “evaluate each subclass member’s eligibility for transfer out of Elkton through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough,” prioritizing members with higher medical threat levels, within two weeks, that is, by May 7. Id. If Applicants identified a set of subclass members who were justifiably ineligible for any of those forms of “release,” the order required that they be “transferred to another BOP facility where appropriate measures, such as testing and single-cell placement, or social distancing, may be accomplished.” Id. at 28a. The injunction does not order release of any prisoner to the public at large. Id.
4. Applicants appealed the preliminary injunction on April 27, and sought a stay pending appeal before the District Court on April 28, and sought the same relief before the Sixth Circuit on April 29. See Stay Appl. 14.
The Sixth Circuit denied a stay on May 4. Stay Appl. 1a. The court began by agreeing that Petitioners’ claims are properly brought in habeas. The District Court had found that nothing short of reducing the prison population could mitigate the risk of COVID-19. The Sixth Circuit explained that “[w]here a petitioner claims no
15

set of conditions would be constitutionally sufficient, [it] construe[s] the petitioner’s claim as challenging the fact of the confinement.” Gov. App. 3a. This “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.” Id. (quoting 18 U.S.C. § 3626(g)(2)).
The court then concluded that the District Court had not “abused its discretion” in weighing the factors that govern the availability of preliminary injunctive relief. Id. at 3a. It noted that the COVID-19 infection was “rampant among inmates and staff,” that the rate of infection was higher at Elkton than other BOP facilities, and that Applicants “lack adequate tests to determine if inmates have COVID-19.” Id. at 4a. Based on the “limited evidentiary record” at this preliminary stage, “at this juncture and given [the] deferential standard of review on motions to stay,” the court found that the District Court’s findings were proper.
The Sixth Circuit found that Applicants had not sought to appeal the conditional class certification and that their “perfunctory” claim in passing that it was improper was forfeited for failure to develop the argument. Gov. App. 4a (internal quotation marks omitted).
As to the equities, the court noted that Applicants had argued only that compliance with the order would take up BOP resources. But “money, time and energy necessarily expended in the absence of a stay are not enough” to establish irreparable harm. Id. at 4a–5a (internal quotation marks omitted). And the District Court’s April 22 order had given Applicants two weeks to evaluate the subclass for
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eligibility for release. “Assuming [Applicants] have been complying * * * their time to comply [wa]s about to expire, rendering any remaining harm slight.” Id.11
After the stay was denied, Applicants sought and received expedited briefing before the Sixth Circuit.12 Applicants filed their opening brief one week ago, on May 15. Petitioners’ response brief is due on May 29, one week from today. And Applicants’ reply brief is due three days later on June 1. Cir.Ct. ECF No. 24.
5. Although Applicants did not secure a stay, they did not promptly seek a stay from this Court. Instead, in the four weeks since the April 22 preliminary injunction order, Applicants “have made limited efforts to reduce the COVID-19 risks for subclass members within the prison.” Enforcement Order, Gov. App. 43a. Applicants report that only 524 COVID-19 tests have been run, meaning that nearly 80 percent of the population has not been tested at all.13 Id. Applicants have results for only 230 of those tests, with 55 prisoners testing positive—24%. Id. Applicants are running tests only two days a week, Monday and Tuesday. Id. “Presumably, the results do not include the inmates who had previously tested positive.” Id.
The active cases Applicants reported as of May 19, confirmed that the COVID risks at Elkton remain high. They reported 135 active cases among inmates, and 8
11 On May 8, the District Court entered an order denying a stay, explaining that the Sixth Circuit’s ruling was law of the case and that, even if it were not, Applicants had not met their burden to show a stay was warranted. Gov. App. 31a. 12 Applicants did not mention any forthcoming stay application to this Court in that motion. 13 This number would represent 22% of the Elkton population, on the unlikely assumption that no inmate has been tested twice. Enforcement Order, Gov. App. 43a.
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active cases among staff members. See id. at 44a.14 The actual numbers are certainly much higher, given the failure to test the vast majority of the inmates. See id.
On the metric that matters—social distancing—Applicants have made no progress whatsoever. They had identified 837 inmates as being over 65 years old or as having health conditions making them especially vulnerable to COVID-19 and thus falling within the medically vulnerable subclass. Id. at 45a. Of those, five prisoners were “pending home community confinement placement,” and Applicants had deemed six others to “maybe” qualify for such release. Id. at 45a (internal alteration and quotation marks omitted). None were deemed eligible for furlough transfer. See id.
All of this means that, to date, despite ongoing community spread of COVID19, and over 800 vulnerable inmates, Applicants “have not identified any inmates whose confinement has actually been enlarged as a consequence of the preliminary injunction.” Id.
To address this noncompliance, Petitioners moved to enforce the April 22 preliminary injunction order. D.Ct. ECF 51. The District Court held a hearing shortly after, during which Applicants conceded that they were deeming whole categories of prisoners categorically ineligible for relief. See May 14 Tr. at 4–5 (“the nature of the offense and the security level that are the two primary disqualifying factors under home confinement”); id. at 26 (stating that Applicants were not giving “the
14 As the court noted, Applicants had previously stated that as of May 8, 130 inmates and 50 staff members had tested positive. Gov. App. 44a.
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justification for disqualifying somebody” for compassionate release and so the court could not determine whether the denials represented compliance with the injunction). In the meantime, Applicants had produced spreadsheets cataloguing their bases for denying each subclass member for home confinement and compassionate release, confirming their practice of categorical exclusions. See App., infra, 61a-99a.
Granting the motion to enforce, the District Court concluded that the Government’s actions since April 22 “do not comply” with the preliminary injunction. Gov. App. 45a; see also Gov. App. 30a (“Respondents have failed to comply with the preliminary injunction.”).
Finding that Applicants had been “thumbing their nose at their authority to authorize home confinement,” the District Court again ordered them “to make full use of the home confinement authority.” Id. at 48a. This time, based on data the Applicants provided, the Court identified criteria that Applicants appeared to be using unjustifiably as categorical bars to relief. See id. For example, it appeared that any recent incident report was a disqualifier, and so the court ordered Applicants to eliminate that categorical disqualifier for “any incident reports at the low or moderate severity levels (300 or 400 levels).” Id.; see also D.Ct. ECF No. 80-1 (memo from H. Hurwitz, Assistant Director Reentry Services Division) (“Inmates who have received a 300 or 400 series incident report in the past 12 months may be referred for placement on Home Confinement.”). A 300-series incident includes, for example, “[b]eing unsanitary or untidy,” “[i]nsolence towards a staff member,” “[p]articipating in an unauthorized meeting, “[p]ossession of money or currency unless specifically
19

authorized,” and “[c]irculating a petition.” 28 C.F.R. § 541.1 A 400-series incident includes, for example, “[f]eigning illness” and “[u]sing obscene language.” Id. In Applicants’ view, each of these was a breach worthy of denying a move to safety through home confinement.
Similarly, it appeared that having a certain proportion of time remaining on a sentence was a disqualifier, and so the court ordered Applicants to eliminate that categorical disqualifier as well. Id. None of these disqualifications are statutorily based following enactment of the CARES Act, see Pub. L. No. 116-136, § 12003(b)(2) (2020), which, now that it has been “activated” by Attorney General Barr, authorizes home confinement in any case. Rather, they were simply imposed by the Government unilaterally. The District Court simply concluded that, when weighted against the risk of COVID-19, these considerations were not sufficient excuses to refuse to transfer an inmate, and so it required the Government to reevaluate the inmates without using these criteria as categorical bars.
As with the preliminary injunction order, the District Court proceeded cautiously. While Applicants may not deem prisoners within the subclass categorically ineligible for home confinement based on certain identified criteria that the Court found unjustified in the face of COVID-19’s risks, they may still conclude that a prisoner “does not meet the home confinement requirements.” Id. 48a. Applicants were ordered to conduct this new review for at least a third of the subclass by the end of the day on May 21. Another third is due tomorrow.
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The District Court followed a similar path for compassionate release. Applicants had denied prisoners within the subclass compassionate release with reasons such as “’does not meet medical criteria’ or ‘COVID 19 only.’” Id. 50a. The court ordered Applicants, by May 21, “to clarify these descriptions with individual explanations for each inmate.” Id. And it ordered Applicants to adjudicate subclass members’ applications for compassionate release within 7 days, to permit them to raise the motion with a court on a timely basis. See id.
For the remaining members of the subclass, the District Court again proceeded by asking Applicants to explain their inaction. Within seven days—by May 26— Applicants must show cause why any prisoner deemed ineligible for other forms of relief “cannot be transferred to another BOP facility where social distancing is possible.” Id.
The District Court did not in its initial injunction or its May 19 order require Applicants to release any particular prisoners, whether to home confinement, to furlough, to compassionate release, or to a transfer. Instead, both orders merely require the Government to identify its medically vulnerable inmates, evaluate them for particular forms of enlargement, and if they are ineligible for any other form of release, transfer them to a facility where they do not face the risk of COVID-19 that Elkton presents. The May 19 enforcement order simply directs Applicants to provide more information as to why, despite the April 22 preliminary injunction, no member of the subclass has received relief under that injunction. Put differently, the District
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Court has simply sought more information so that it can evaluate compliance with its preliminary injunction.
6. Now, sixteen days after the Sixth Circuit declined to stay the preliminary injunction issued on April 22, Applicants filed this application asking this Court to do just that. The application contains no explanation for the delay between May 4, when the Sixth Circuit denied the stay, and now. What the application does say is that Applicants do not just seek a stay of the April 22 preliminary injunction order that they have appealed to the Sixth Circuit; they seek a stay of the May 19 order to enforce that injunction. Gov. App. 4 (claiming the need for a stay is “especially urgent” to address the May 19 order). Applicants have not sought a stay of that May 19 order before the District Court, nor have they sought a stay of that May 19 order before the Sixth Circuit. Applicants have not even appealed the May 19 order to the Sixth Circuit. Applicants ask this Court to address that order in the first instance.
ARGUMENT The Government is not entitled to the extraordinary remedy of a stay from this Court. A stay pending appeal is available “only under extraordinary circumstances.” Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1316 (1983) (Blackmun, J., in chambers). Accordingly, this Court “rarely grant[s]” a stay before the lower court has decided the merits. INS v. Legalization Assistance Project, 510 U.S. 1301, 1302 (1993) (O’Connor, J., in chambers). Applicants seek a stay of the preliminary injunction not just pending appeal, but also pending any petition for certiorari to this Court. Stay Appl. 19. They must
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show not just that they are likely to succeed before the Sixth Circuit, but also—if they do not—that four Justices are likely to grant certiorari, and that a majority of the Court will vote to reverse that judgment. See Nken v. Holder, 556 U.S. 418, 434 (2009) (pending an appeal); Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam) (pending a petition for certiorari). They must also show they are likely to suffer irreparable harm absent a stay and that the balance of the equities favor a stay. See Nken, 556 U.S. at 434; Hollingsworth, 558 U.S. at 190.
As the District Court and Sixth Circuit concluded, Applicants cannot show that these factors support the extraordinary remedy of a stay here. As to the likelihood of certiorari, this case does not implicate any split that warrants this Court’s review. As to the merits, Petitioners’ claims for enlargement are properly brought on habeas; the preliminary injunction record established deliberate indifference to the risks of COVID-19; and conditional certification of the medically vulnerable subclass was appropriate, and in any event, not appealed by the Government. The Government has not identified any actual harm from the preliminary injunction order itself, which is narrowly tailored to redress the constitutional violation while respecting prison officials’ discretion by giving them authority to decide how best to treat each at-risk prisoner. And the balance of the equities counsels strongly against the stay in light of the risk to the subclass, the risk to staff, and the possibility of community spread to the areas around Elkton where staff work if the situation at Elkton is not addressed promptly.
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A stay is particularly unwarranted because it would effectively grant Applicants a victory on the merits and moot Petitioners’ claims. The record makes clear that, without the preliminary injunction, Applicants will not release prisoners, social distancing will remain impossible, and the risks to the subclass of contracting COVID-19 at Elkton will persist. Once a subclass member contracts COVID-19, that cannot be undone.
I. THE GOVERNMENT SEEKS TO STAY AN ORDER IT HAS NOT APPEALED OR SOUGHT TO STAY BELOW.
The Government styles its application as seeking a stay of the April 22 preliminary injunction, but its real complaint lies with the May 19 enforcement order. See, e.g., Stay Appl. 4, 6 (identifying the May 19 order as a reason it seeks relief); 36, 37 (referring to the May 19 order when discussing its burden to demonstrate irreparable harm). But any request to stay that order is not properly before this Court. The Government did not seek a stay of that order below; indeed, the Government has not even appealed that order.
As this Court has said time and again, it is a “court of review, not of first view.” McLane Co. v. EEOC, 137 S. Ct. 1159, 1170 (2017). That does not change when this Court hears a stay application. The rules are clear: “Except in the most extraordinary circumstances,” this Court will not entertain “an application for a stay * * * unless the relief requested was first sought in the appropriate court or courts below.” S. Ct. R. 23(3). The Government did not seek a stay of the May 19 order from either the District Court or from the Sixth Circuit. Yet it does not acknowledge this rule, much less explain the decision not to comply with it.
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Stranger still, the Government claims this Court’s intervention is “made especially urgent” because of the May 19 order, but it has not appealed that order. It has not filed a notice of appeal. And it has not moved to amend its notice to appeal the April 22 preliminary injunction order, which was filed on April 27. The Government thus seeks a stay pending appeal—and potentially a petition for certiorari—of an order that it has not appealed.
This case proves the value of this Court’s rule. The Government’s application, filed the day after the May 19 order, gets the details wrong. The Government claims, for example, that the May 19 order “revised” guidance from the Attorney General and BOP. Stay Appl. 36. But it did no such thing. As the order acknowledges, the Attorney General’s March 26 memo outlined a “non-exhaustive list of discretionary factors” to consider when evaluating a prisoner’s eligibility for home confinement. Gov. App. 47a, id. at 42a-53a. The memo directed BOP to consider “the totality of the circumstances.” Id. But after reviewing the Government’s submissions outlining why it had denied all but a handful of prisoners home confinement, the District Court determined that the Government was—for prisoners in the medically vulnerable subclass—denying home confinement by treating certain factors as dispositive. Gov. App. 48a. And so it ordered the Government to do what the Attorney General had said it should, to evaluate prisoners’ eligibility without the use of categorical disqualifications. Id. In the normal course, a lower court would be able to sort through these misstatements and present this Court with a clean picture of what happened below. To grant the Government relief on an emergency basis without the benefit of some screen to ensure
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an accurate view of the record risks granting a stay where one is not warranted and where doing so puts Petitioners at serious risk of harm. And where, as here, neither the April 22 or May 19 orders directs release of anyone, there is no warrant for the extraordinary intervention of a stay.
II. THIS COURT IS UNLIKELY TO GRANT REVIEW AND REVERSE.
It is doubtful that the Court will grant review in this case. Applicants claim that this case implicates two splits among the lower courts. It does not. Applicants first claim that courts are divided over the question whether a prisoner may challenge a condition of confinement via habeas under Section 2241. Stay Appl. 20a. But as the District Court and the Sixth Circuit held, Petitioners here seek to be removed from Elkton, as it is the only remedy available for the Eighth Amendment violation they have identified. In any event, the Government itself has told this Court in other cases that the split it now claims is not a genuine split. And Applicants’ description of the second alleged split speaks for itself. A “burgeoning disagreement” among a handful of lower courts, mostly district courts, addressing an evolving pandemic is not a split, and different outcomes in applying the same “appropriate standards” for issuing an injunction to address COVID-19 at detention facilities with widely disparate circumstances is precisely the kind of context-specific, fact-bound question that does not warrant this Court’s review.
Further, if the Court does grant review, it is unlikely to vacate the injunction. Petitioners’ claims for enlargement are properly brought on habeas. And the preliminary injunction record established Applicants’ deliberate indifference to the
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risks of COVID-19, an Eighth Amendment violation that can be redressed only by

enlargement.

A.

This Case Does Not Present A Question Worthy Of Review.

1. Applicants claim that this case implicates a split among the courts of

appeals over whether a prisoner may challenge a condition of confinement in a habeas

petition under Section 2241. Stay Appl. 20. But that argument fails for two reasons.

First, as the courts below recognized, the only remedy available to remedy the

constitutional violation here, given the physical circumstances at Elkton, is

enlargement, a traditional form of habeas relief. Accordingly, the courts below did not

rule on whether habeas is an appropriate vehicle to challenge conditions of

confinement; they held that this petition sought a form of release, not a change in the

conditions of confinement. Moreover, as the Government itself has previously argued

in opposing writs of certiorari raising the issue, none of the cases in this alleged split

resemble each other, much less this one.

There is no disagreement on the basic rule. In Preiser v. Rodriguez, this Court

explained that cases at the “heart of habeas corpus”—where a prisoner is “challenging

the fact or duration of his physical confinement itself”—must be brought in habeas.

411 U.S. 475, 498 (1973). It left open the question of what additional cases could be

brought in habeas. See id. at 499 (“This is not to say that habeas corpus may not also

be available to challenge * * * prison conditions.”). The courts of appeals—all of the

courts in the Applicants’ alleged split—have developed a consistent shorthand for this

principle. Challenges to the fact or duration of confinement that seek release are for

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habeas; actions that seek to reform the conditions of confinement are for Section 1983. See, e.g., Aamer v. Obama, 742 F.3d 1023, 1030 (D.C. Cir. 2014) (“[P]etitioners challenge neither the fact nor the duration of their detention, claims that would lie at the heart of habeas corpus. Instead, they attack the conditions of their confinement, asserting that their treatment while in custody renders that custody illegal—claims that state and federal prisoners might typically raise in federal court pursuant to 42 U.S.C. § 1983 * * * * .” (citation omitted)); Glaus v. Anderson, 408 F.3d 382, 388 (7th Cir. 2005) (similar); Boutwell v. Keating, 399 F.3d 1203, 1209 (10th Cir. 2005) (similar); Williams v. Hopkins, 130 F.3d 333, 335 (8th Cir. 1997) (similar); Moorish Sci. Temple of Am., Inc. v. Smith, 693 F.2d 987, 989 (2d Cir. 1982) (similar); Jamieson v. Robinson, 641 F.2d 138, 141 (3d Cir. 1981) (similar).
Thus, there is broad agreement, not a split, on the rule. Nor can the Government identify any disagreement on how that rule should apply here. As the Sixth Circuit held, where, as here, “a petitioner claims no set of conditions would be constitutionally sufficient,” it deems “petitioner’s claim as challenging the fact of the confinement.” Gov. App. 3a. And all courts agree that a challenge to the fact of confinement is proper in habeas.
None of the cases that make up the alleged split resemble this one. In two, the prisoner challenged a transfer to a more restrictive setting. See Cardona v. Bledsoe, 681 F.3d 533, 534 (3d Cir.), cert. denied, 568 U.S. 1077 (2012) (petitioner argued that the BOP had “illegally referred him to the Special Management Unit * * * of the penitentiary * * * as punishment for filing numerous lawsuits against the BOP);
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Palma-Salazar v. Davis, 677 F.3d 1031, 1035-1038 (10th Cir. 2012) (prisoner challenged a “garden variety prison placement”). In another, a prisoner was denied medical treatment and sought a transfer to obtain that treatment. See Glaus, 408 F.3d at 388 (prisoner “requested transfer to a prison medical facility for a new course of Peg–Interferon or * * * release to the community” to “receive treatment from a local Veterans Affairs hospital”). And the others involved allegations of mistreatment. See Spencer v. Haynes, 774 F.3d 467, 469 (8th Cir. 2014) (allegation of being placed in four-point restraints an extended period of time); Aamer, 742 F.3d at 1026–27 (challenge by Guantanamo detainees to the policy of force feeding inmates on hungry strikes); Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008), cert. denied, 555 U.S. 1118 (2009) (challenge to being denied kosher food and access to the prison library). None of these cases even resembles this one, much less conflicts with it.
And even on its own terms, the Government overstates the split. As it has previously represented to this Court, (but conveniently fails to say here), the Second Circuit’s discussion of this issue was in dicta only. See Thompson, 525 F.3d at 209 (“we need not rest on this ground to conclude that the district court erred in dismissing these claims”); Br. in Opp. at 9, Robinson v. Sherrod, 565 U.S. 941 (2011) (cert. denied). And the only other court it cites as on the Second Circuit side of the “split,” the D.C. Circuit, has described the distinction between “a place of confinement claim” and “a conditions of confinement claim” as “largely illusory,” indicating its disagreement with formalistic labels rather than with the outcomes reached by other courts. See Aamer, 742 F.3d at 1035.
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Even if this split were implicated, this case would not be the vehicle to address it. The line between a challenge to the fact or duration of confinement and a challenge to the conditions of confinement is “hazy.” Cardona, 681 F.3d at 536 (internal quotation marks omitted). This Court has declined to address it several times over. See, e.g., Preiser, 411 U.S. at 499 (leaving open the contours of habeas relief); Bell v. Wolfish, 441 U.S. 520, 527 n.6 (1979) (leaving “to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement”); Boumediene v. Bush, 553 U.S. 723, 792 (2008) (“we need not discuss the reach of the writ with respect to claims of unlawful conditions of treatment or confinement.”). A preliminary injunction addressing a unique and evolving pandemic is not a suitable vehicle to address this question. “The Court has denied certiorari to multiple petitions raising th[is] issue * * * and it should follow the same course here.” Gov’t Br. in Opp. at 12, Rodriguez v. Ratledge, 139 S. Ct. 77 (2018) (citing Robinson and Stanko v. Quay, 562 U.S. 844 (2010) (No. 09-10182)).
2. The Government’s second proposed split is not a split of any kind. It claims there is a “burgeoning disagreement” in the circuits over the “appropriate standards for issuing an injunction against the administrators of a detention facility based on allegedly unconstitutional conditions created by COVID-19.” Stay Appl. 21. By its own words, there is not yet a split for this Court to resolve. That is hardly surprising, given that COVID-19 is a recent phenomenon in the nation and its prisons, making the claim that a clear split in the circuits has already developed wholly unfounded.
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In fact, each case the Government points to applied the traditional injunction and stay factors to the case before it. See, e.g., Valentine v. Collier, 956 F.3d 797, 801 (5th Cir. 2020) (“When considering a stay, a court considers four factors * * * .” (internal quotation marks omitted)); Swain v. Junior, No. 20-11622-C, 2020 WL 2161317, at *3 (11th Cir. May 5, 2020) (“A court considering whether to issue a stay considers four factors * * * * .” (internal quotation marks omitted)).15 The Sixth Circuit did too. Gov. App. 2a (“We balance four factors * * * *.”). There is thus no disagreement among the courts about the “appropriate standards” for issuing an injunction or stay. The fact that different courts reached different results applying the same standard to different claims and circumstances is not a split.
Each case the Government points to is different from this one, and from the others. As for the Fifth Circuit, the plaintiffs sought increased safety measures at a prison, and the district court granted them that relief. See Valentine, 956 F.3d at 799– 800 (stating that the injunction required the defendants to clean the facility, to provide plaintiffs with protective equipment, and to prohibit new prisoners during the pandemic, among others). The Eleventh Circuit faced a similar preliminary injunction. See Swain, 2020 WL 2161317, at *2–*3 (stating that the injunction
15 The Ninth Circuit’s one-paragraph order granting a stay pending appeal in part and denying it in part did not discuss this standard, though there is no indication it did not apply the traditional standard, nor does the Government claim otherwise. See Roman v. Wolf, No. 20-55436, 2020 WL 2188048, at *1 (9th Cir. May 5, 2020) (declining to lift the preliminary injunction “to the extent” it “requires substantial compliance with [CDC] guidelines * * * for correctional and detention facilities”); see also Doe #1 v. Trump, 957 F.3d 1050 (9th Cir. 2020) (“we apply the familiar standard set forth by the Supreme Court in Nken * * * *.”).
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required prison staff to “wear personal protective equipment” and “wash their hands” and that prisoners be provided with “face masks”). Petitioners here—whose claims in contrast are in habeas—do not seek any of that relief. The weighing of the equities in these cases has no bearing on, much less conflicts with, the Sixth Circuit’s decision here.
B. A Habeas Petition Is The Proper Vehicle For Petitioners’ Claims.
In any event, the courts below properly exercised habeas jurisdiction in this case, because, as noted above, the only relief available is a form of release. And for the same reason, the Prison Litigation Reform Act, which does not apply to habeas petitions, is inapplicable here.
“Habeas is at its core a remedy for unlawful executive detention.” Munaf v. Geren, 553 U.S. 674, 693 (2008); see also Hamama v. Adducci, 912 F.3d 869, 875 (6th Cir. 2018) (“The traditional remedy provided by habeas is ‘removing the injury of unjust and illegal confinement.’ ” (quoting 3 William Blackstone, Commentaries on the Laws of England 137 (1768))). It allows prisoners to challenge “the fact or duration of [their] confinement.” Wilkinson v. Dotson, 544 U.S. 74, 78 (2005).
The Great Writ is provided by the Constitution, 28 U.S.C. § 2241, and the common law. Although limits have been placed on habeas corpus in the context of reviewing state detention, see, e.g., 28 U.S.C. § 2254, statutory authority to review detention by the Executive Branch of the United States remains substantively unchanged by Congress for more than 150 years. The language broadly provides a remedy to a person “in custody in violation of the Constitution or laws or treaties of
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the United States.” 28 U.S.C. § 2241. As the Supreme Court has noted: “This legislation is of the most comprehensive character. It brings within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary to the national constitution, treaties, or laws. It is impossible to widen this jurisdiction.” Ex parte Burrus, 136 U.S. 586, 592 (1890) (quotation omitted). This is by design: “The terms in which [this provision] was described by its proponent, Representative Lawrence of Ohio, leave little doubt of the breadth of its intended scope: ‘the effect of * * * (bill No. 605) is to enlarge the privilege of the writ of hobeas (sic) corpus, and make the jurisdiction of the courts and judges of the United States coextensive with all the powers that can be conferred upon them. It is a bill of the largest liberty.’” Fay v. Noia, 372 U.S. 391, 417 (1963) (quoting Cong. Globe, 39th Cong., 1st Sess. 4151 (1866)), abrogated by Wainwright v. Sykes, 433 U.S. 72 (1977), and Coleman v. Thompson, 501 U.S. 722 (1991)).
Applicants point to no holding of this Court or any other that precludes habeas in this case. While holding that, in some circumstances, the availability of habeas precludes relief under Section 1983, this Court has repeatedly declined to impose rigid limits on the use of habeas. E.g., Boumediene v. Bush, 553 U.S. 723, 792 (2008) (“we need not discuss the reach of the writ with respect to claims of unlawful conditions of treatment or confinement.”); Bell v. Wolfish, 441 U.S. 520, 527 n.6 (1979) (leaving “to another day the question of the propriety of using a writ of habeas corpus to obtain review of the conditions of confinement”); Vikram David Amar, Grounds for Writ—In General, 17B Fed. Prac. & Proc. Juris. § 4263 (3d ed.) (“[Habeas] may be
33

used to challenge the conditions under which the prisoner is confined, although a civil rights action under 42 U.S.C. § 1983 is also available as a remedy in many of those cases”). To the contrary, as noted above, this Court and the universal consensus among the courts of appeals recognize that habeas is an appropriate vehicle when the relief being sought would alter the fact or duration of confinement. See, e.g., Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (holding that when “victory on [the prisoner’s] claims will lead to speedier release from prison,” the case “attack[ed] the duration of their confinement; hence, such a claim may only be brought through a habeas corpus action.” (quotation in original)).
The Government seeks to cloud this straightforward theory of the case by seizing on any use of the word “conditions” to characterize this lawsuit as one seeking to alter the “conditions of confinement.” Stay Appl. at 27. Yet Petitioners have stated plainly from the outset of this action that they are challenging the “fact or duration of [their] confinement,” Wilkinson v. Dotson, 544 U.S. 74, 78 (2005), precisely because in this extraordinary moment, no set of conditions available at Elkton would be constitutionally sufficient. See Gov. App. 66a-71a, ¶ 35 (“there is no realistic set of internal conditions or practices that FBOP can use that will prevent additional infections”), ¶¶ 36–46 (social distancing is impossible); Gov. App. 81a, ¶ 71 (“expedited release * * * is needed not only to prevent irreparable harm to members of the medically-vulnerable subclass, but also to * * * ensure proper social distancing to reduce transmission for all class members, staff, and the wider public”). As the Sixth Circuit reasoned, “[w]here a petitioner claims no set of conditions would be
34

constitutionally sufficient, we construe the petitioner’s claim as challenging the fact of the confinement.” Gov. App. 3a; see also Gov. App. 15a-18a (limiting injunctive relief to only those claims where Petitioners seek enlargement rather than “alteration to the confinement conditions”).
Contrary to the Government’s protestations, habeas is a flexible remedy that easily encompasses the interim relief provided by the District Court. See 28 U.S.C. § 2243 (“The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.”). Sometimes described as “enlargement,” release on recognizance, bail, or other, altered custodial status is a long recognized temporary remedy available to courts exercising habeas jurisdiction. See, e.g., Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001) (“federal courts have inherent power to release on bail a habeas petitioner who challenges his detention”); 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); Landano v. Rafferty, 970 F.2d 1230, 1239 (3d Cir. 1992); see also Declaration of Professor Judith Resnik Regarding Provisional Remedies for Detained Individuals at 8, Money v. Jeffreys, No. 1:20-cv-02094 (N.D. Ill. Apr. 4, 2020), D.Ct. ECF No. 243. Numerous district courts have concluded that an enlargement remedy is appropriate given the peculiar dangers of COVID-19. See, e.g., Martinez-Brooks v. Easter, No. 3:20-CV-00569 (MPS), 2020 WL 2405350 (D. Conn. May 12, 2020) (“Petitioners do not seek release from custody. Instead, they seek (among other relief) enlargement to home confinement”) (cleaned up); Chavez Garcia v. Acuff, No. 20-CV357-NJR, 2020 WL 1987311 (S.D. Ill. Apr. 27, 2020) (“[T]he Court exercises its
35

inherent authority in habeas corpus and under Federal Rule of Civil Procedure 65(b) to grant Petitioner Alfredo Chavez Garcia bail pending the resolution of his Petition for Writ of Habeas Corpus.”).
The government’s invocation of the PLRA does not change the analysis. By its own terms, the PLRA does not apply here. 18 U.S.C. § 3626(g)(2) (noting PLRA limits do not apply to “habeas corpus proceedings challenging the fact or duration of confinement in prison”). Even were it otherwise, the Government’s argument that the PLRA’s requirements are not met here would fail. See Stay Appl. at 27-28. Principally, the Government argues that the District Court must extend the injunction “no further than necessary to correct the harm” in question. Id. (quoting 18 U.S.C. § 3626(a)(2)). Yet the preliminary injunction at issue reflects just such a limitation. The District Court sharply limited Petitioners’ claims, providing relief only for a medically-vulnerable subset of the larger class. See Gov. App. 17a–18a. It declined to provide in its initial order the requested oversight of a public health expert. Id. It restricted the scope of the medically-vulnerable class to match CDC guidance. Gov. App. 19a. And its April 22 preliminary injunction provided only that the Government must identify and review each subclass member’s eligibility for various mechanisms of transfer—many of which, as the District Court knew, the Government was already under instruction to evaluate “immediately” and “with dispatch” by the Attorney General. See Gov. App. 27a; App., infra, 54a-56a. Any more circumscribed order would have failed to address the core constitutional injury. And that April 22 injunction is the only one properly before the Court.
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Moreover, it was only when the Government failed to comply even with the limited April 22 order—by refusing to conduct good-faith evaluations for home confinement, compassionate release, or institutional transfer “[a]gainst a backdrop where approximately one out of every four Elkton inmates have tested positive for COVID-19,” and where the death toll had tripled since the case was filed—that the District Court took further steps to reconcile the Government’s home confinement evaluation criteria with its constitutional obligations. Gov. App. 46a–48a. Indeed, contrary to the Government’s bald assertion (at 28) that “its policies have appropriately mitigated the risk of COVID-19,” the District Court observed that active COVID-19 cases had increased in the week prior to its May 19 order, that 24% of COVID-19 tests were positive, and that since testing was being done in batches within partitioned housing units, further spread was likely to be observed. See Gov. App. 43a-44a. Thus, even if the May 19 order were properly before this Court, nothing about that order is inconsistent with § 3626(b)(2); quite the opposite.
C. Elkton Prisoners Face An Unconstitutional Risk From COVID-19.
The Court of Appeals correctly found that the District Court did not abuse its discretion in concluding that Petitioners are likely to prevail on their Eighth Amendment claim. By forcing prisoners to live in overcrowded congregate living spaces and refusing to take available steps to meaningfully reduce that risk, the Government is continuing to confine prisoners at Elkton in a manner that poses a known, heightened risk of infection suffering and death from COVID-19.
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COVID-19 poses a particularly acute danger at Elkton, where prisoners are forced to live in a single dormitory room along with approximately 150 other people. See Gov. App. 12a. The Government has limited the ability of Petitioners to maintain adequate distance from each other, requiring them to sleep, eat, and live, just a few feet from other potentially contagious prisoners. Id. The District Court had more than ample facts in front of it to make this determination—as did the prison itself. See App., infra, 24a, ¶¶ 4–5 (“keeping our distance is impossible,” and “[w]hen it’s time to eat * * * [w]e have to wait in a line where we’re bunch up right behind each other”); 29a, ¶ 6 (“The racks are 2-3 to a cell” in housing areas, and “[w]hen we go to eat * * * [w]e walk there at our own risk with no spacing”); 36a, ¶¶ 3–4 (“In the cubes, the person on the other side sleeps above where you read. In the TV rooms, the tables are right on top of each other. We’re about 2 feet away from each other where we sleep. * * * The phones are on top of each other too”); 45a, ¶ 6 (“We’re piled on top of each other and left to fend for ourselves.”); 49a-50a, ¶¶ 4–6 (We’re overcrowded like cattle,” and “when we go to eat[,] [i]t’s a stampede of people trying to get through a 4-6 foot wide door. Social distancing is out the window.”).
Despite knowing that this arrangement puts everyone at heightened risk of infection, the Government has refused to lower the risk by moving appropriate individuals to available safer locations. The Eighth Amendment prohibits the unnecessary exposure to a heightened risk of infection, and as both the District Court and the Sixth Circuit recognized, Petitioners are likely to prevail on their argument
38

that this risk is objectively serious, and that the Government subjectively knew of this risk yet refused to take reasonable steps to reduce it.
The objective prong of the Eighth Amendment is met when a prisoner “is incarcerated under conditions posing a substantial risk of serious harm,” Farmer v. Brennan, 511 U.S. 825, 834 (1994), including when prisoners are exposed to a substantial risk of infection. Helling v. McKinney, 509 U.S. 25, 33 (1993) (“crowd[ing] [prisoners] into cells [where] some of them had infectious maladies such as hepatitis and venereal disease[] was one of the prison conditions for which the Eighth Amendment required a remedy” (citing Hutto v. Finney, 437 U.S. 678, 682 (1978)). The threat of COVID-19 in Elkton easily clears this bar. It kills slowly and painfully, after weeks of hospitalization, as the patient struggles to breathe. Since this case was filed, it has claimed the lives of 6 additional prisoners at Elkton. Even those who survive it can face significant suffering and permanent organ damage. This “physical torture or a lingering death [were] the evils of most immediate concern to the drafters of the Amendment.” Estelle v. Gamble, 429 U.S. 97 (1976) (quotation omitted). The Government “acknowledges that COVID-19 poses significant health risks” Br. At 30, but argues that it shouldn’t matter because these “risks confront[] not only prisoners but law abiding citizens nationwide.” That is a non sequitur.
First, the uncontested evidence before the District Court established that prisons such as Elkton are uniquely dangerous places during the COVID-19 pandemic. See App., infra, 2a-6a, ¶¶ 4–11; See also App., infra, 54a-56a (noting the high infection rate at Elkton). Second, having imposed “limitations * * * on
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[prisoners’] freedom to act on [their] own behalf,” DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 200 (1989), prisons may not disregard a potential harm simply because it exists outside of prison walls as well as within. For example, risk of sexual assault, Farmer, 511 U.S. at 834, harm from secondhand smoke, Helling v. McKinney, 509 U.S. 25, 33 (1993), and serious medical conditions, Estelle v. Gamble, 429 U.S. 97 (1976), are not dangers unique to prisons, but the Eighth Amendment still requires prisons to address them. By forcing Petitioners to live in close quarters with 150 other people, and preventing them from maintaining a safe distance from others, the Government has deprived them of any chance to comply with the directives from the CDC, the State of Ohio, and uniform public health guidance.
The Government fares no better on the subjective prong, which requires only a showing of “consciousness of a risk.” Farmer, 511 U.S. at 840. The Government concedes it is aware of the risk COVID-19 poses, but claims the steps it has taken absolve it from Eighth Amendment liability. There is conflicting evidence as to whether the Government has, in fact, taken the steps that they claim, see Declarations, App., infra, 21a-51a, but even treating their assertions as true, they are manifestly insufficient. For example, even if masks and soap were provided to prisoners, the risk of infection remains extremely high. Asymptomatic but contagious prisoners mingle in close settings with 150 others in a single dormitory room. See Gov. App. 43a-45a. Prisoners are forced to sleep, eat, and live within a few feet of others, or less. These are dangerous conditions, and given the overwhelming medical evidence and the rising infections and death toll at Elkton, there is no serious
40

contention that the Government was unaware of these risks. See Helling v. McKinney, 509 U.S. 25, 34 (1993) (citing approvingly a case that “held that inmates were entitled to relief under the Eighth Amendment when they proved threats to personal safety from exposed electrical wiring, deficient firefighting measures, and the mingling of inmates with serious contagious diseases with other prison inmates.”).
Indeed, the Attorney General himself specifically recognized the risks posed by COVID-19 to prisoners at Elkton and the inadequacy of existing measures. App., infra, 52a (noting that many prisoners “might be safer serving their sentences in home confinement,” and that this “might be more effective in protecting their health”); App., infra, 54a (noting the outbreak at Elkton). Thus, he directed Petitioners to “immediately maximize” movement of at-risk prisoners out of Elkton to safer locations. App., infra, 52a; see also id. (in light of “significant levels of infection” at Elkton, “We have to move with dispatch in using home confinement, where appropriate, to move vulnerable inmates”). Yet the Bureau of Prisons disregarded the risk that the Attorney General noted, and did not take meaningful steps to move prisoners to safety. The existence of these “obvious, easy alternatives” suggest that the Government’s response “is not reasonable.” Turner v. Safley, 482 U.S. 78, 90 (1987).
The Government asks the Court to excuse its failure to take available action despite knowing the risk because “[n]othing suggests that officials subjectively believed their extensive efforts, which track the CDC’s guidance, were not a reasonable and appropriate response to the threat posed by COVID-19.” Stay Appl.
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34. This standard appears nowhere in Supreme Court cases. The question under deliberate indifference is whether government officials acted reasonably to respond to known risks, not whether they “subjectively believed” that their response was reasonable. In any event, it beggars belief that officials “subjectively believed” that their response has been appropriate. See Gov. App. 44a-45a (“In considering the adequacy of Respondent’s compliance, context is important. * * * Respondents have made only minimal effort to get at-risk inmates out of harm’s way.”); see also id. at 43a-44a (noting rising numbers of infected in recent weeks, and that “so far the data demonstrates that almost one in four inmates at Elkton has been infected—an unacceptable number.”).
Although this Court’s review is limited to whether the District Court erred when it issued the preliminary injunction based on the evidence before it on April 22, developments since the injunction underscore the Government’s gratuitous exposure of prisoners to needless risks. See Farmer v. Brennan, 511 U.S. 825, 846 (1994) (“[P]rison officials who state during the litigation that they will not take reasonable measures to abate an intolerable risk of which they are aware” may not “claim to be subjectively blameless for purposes of the Eighth Amendment”). The preliminary injunction was issued a month ago, and the Sixth Circuit denied a stay two weeks ago. Yet, as the District Court has twice noted, the Government has failed to comply with the preliminary injunction during that time. See Order Denying Stay, D.Ct. ECF No. 57 at 2 (“Respondents have failed to comply with the preliminary injunction.”); Order to Enforce at 4 (The Government’s acts “do not comply with this Courts’
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previous Order [granting the preliminary injunction].”). Indeed, as the District Court found, government officials have “thumb[ed] their nose at their authority to authorize home confinement,” an option specifically directed by both the Attorney General. Op. to Enforce at 7. The continued refusal to respond to the known risk of infection, or even to comply with the preliminary injunction, underscores the Government’s deliberate indifference.
D. Conditional Certification Was Proper. The Government also challenges the District Court’s granting relief on a classwide basis. The Court of Appeals declined to consider the argument because the Government did not appeal the class certification and referenced it in its motion to stay only “in a perfunctory manner, unaccompanied by some effort at developed argumentation.” Gov. App. 4a (quoting United States v. Sandridge, 385 F.3d 1032, 1035 (6th Cir. 2004)); see also United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (noting presumption that courts should only reach issues raised by parties). Having failed to preserve this issue when seeking a stay before the Court of Appeals, the Petitioners should not be permitted to raise it here. In any event, there is no basis for the objection. “[A] common use of Rule 23(b)(2) is in prisoner actions brought to challenge various practices or rules in the prisons on the ground that they violate the constitution.” Wright & Miller § 1776.1, 7AA Fed. Prac. & Proc. Civ. § 1776.1 (3d ed.). The Government has exposed the entire class to the same unnecessary risk, and the entire class will benefit if the preliminary injunction is upheld and that risk is mitigated. This is a straightforward application of Rule 23(b)(2). Fed. R. Civ. P. 23(b)(2) (“The party opposing the class has acted or
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refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”).
The Government resists this conclusion by arguing that each class member “presents a distinct risk profile for contracting COVID-19,” Stay Appl. At 39, but fails to explain whether any such variation is relevant to the legal claims. Under the Eighth Amendment, “it does not matter * * * whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk.” Farmer v. Brennan, 511 U.S. 825, 843 (1994); see also Helling v. McKinney, 509 U.S. 25, 33 (1993) (exposure to infection violates the Eighth Amendment, “even though the possible infection might not affect all of those exposed.”). The commonality of the risk analysis for purposes of the Eighth Amendment makes this case particularly well suited for classwide resolution. Similarly, classwide relief is needed to reduce the collective risk common to all medically vulnerable prisoners. See, e.g., Postawko v. Missouri Dep't of Corr., 910 F.3d 1030, 1038–39 (8th Cir. 2018) (“Plaintiffs assert that the failure of the Defendants to screen properly for a life-threatening disease and provide appropriate treatment exposes all inmates suffering from chronic HCV to the same unconstitutional injury … Here the physical symptoms eventually suffered by each class member may vary, but the question asked by each class member is susceptible to common resolution.” (collecting cases)).
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III. THE EQUITIES STRONGLY WEIGH AGAINST STAYING THE INJUNCTION.
A. Applicants Will Not Be Harmed If A Stay Is Denied. As the party seeking a stay, the Government must show “a likelihood that
‘irreparable harm [will] result from the denial of the stay.” Conkright v. Frommert,
556 U.S. 1401, 1402 (2009) (internal citation omitted). It has not.16
1. The Government complains of irreparable harm from what it
characterizes (Stay Appl. at 35-36) as “release” of prisoners. But as noted above, the
April 22 preliminary injunction orders no release, and nor does the May 19 order.
Rather, the District Court ordered the Government to identify vulnerable
individuals¸ consider whether they are eligible for home confinement, compassionate
release, and if not, transfer them to a facility that would not pose the extreme risks
that Elkton presents. The Government’s reliance on Brown v. Plata, 563 U.S. 493
(2011), is accordingly misplaced. Brown held that “mistaken or premature” release of
a prisoner “can” cause injury and harm. Brown, 563 U.S. at 500-01 (2011). The
District Court here ordered nothing of the kind. Gov. App. 15a (“Petitioners seek an
‘enlargement.’ Enlargement is not release * * * the BOP maintains custody over the
16 The Government incorrectly suggests that, for the purpose of weighing the equities, its interest and the public interest are the same. Stay Appl. 35. This statement misreads Nken. There, this Court held that “when the Government is the opposing party,” the harms to a government agency merge with the public interests. Nken, 556 U.S. at 435. That is because that posture implicates the public’s interest in “prompt execution” of valid orders, id. at 436, and “valid law[s],” Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 571 U.S. 1061, 1062 (2013). Here, the Government is seeking a stay, not opposing it. It must therefore show both that it will suffer an irreparable harm and that a stay is in the public’s interest.
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defendant, but the place of custody is altered by the court.”); 26a (“it bears repeating that the Petitioners are not asking the Court to dump inmates out into the streets”); 27a (“the Court is not ordering the release of the prisoners. Instead, the inmates will remain in BOP custody, but the conditions of their confinement will be enlarged.”). Further, the District Court’s order leaves intact the Government’s discretion over whether a prisoner is to be moved to home confinement, and merely requires that BOP conduct a prioritized review “for transfer out of Elkton through any means,” to another BOP facility if no other mechanism is at hand. Gov. App. 27a–28a.
2. Any harm to the Government from effectuating enlargement is speculative. First, the Government’s repeated claim (see, e.g., Stay Appl. at 36) that any transfer will risk spreading COVID-19 in violation of CDC guidance is baseless. The District Court’s order cautions BOP to comply with its own policy of a 14-day pretransfer quarantine. Id. The Government gives no basis to conclude that postquarantine transfer presents any risk. Further, it claims to have since acquired mass testing capability at Elkton, which could presumably expedite the process of assessing whether any potential for contagion even exists. See Gov. App. 150a. And the Government does not and could not contend that the CDC guidelines require BOP to keep medically vulnerable prisoners in conditions that put them at direct risk of COVID-19. Its guidance addresses transfers generally, and simply provides that “unnecessary” travel and routine shuffling of prisoners from place to place should be avoided. Stay Appl. at 36. It does not by any stretch counsel against transfer where, as here, it is the only way to protect a vulnerable individual from infection.
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Second, the Government’s administrative burden in conducting life-saving transfers—its “extensive output of staff time and resources” (Stay Appl. at 37)—is not irreparable harm. See Sampson v. Murray, 415 U.S. 61, 90 (1974) (“Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough.”). The Government’s passing complaint (at 36–37) about the District Court “interjecting” itself into prison operations simply describes the role of a court in adjudicating a constitutional violation within a prison. See Martinez-Brooks v. Easter, No. 3:20-cv-00569 (MPS), 2020 WL 2405350, at *15 (D. Conn. May 12, 2020) (“to the extent there is any ambiguity about whether Section 3621(b) or any other statute bars judicial review of the [Government’s] failures to exercise their authority * * * I would construe it not to do so to avoid the constitutional question that would arise from a wholesale bar on judicial review in the circumstances of this case”). Indeed, had the BOP been following its own internal directives from the Attorney General, at least some parts of the April 22 order would not have been necessary. For example, Attorney General Barr had ordered federal prisons to “prioritize the use of your various statutory authorities to grant home confinement,” see App., infra, 52a, and had specifically singled out Elkton and two other COVID-19 hotspots to “move with dispatch” to “move vulnerable inmates out of” their institutions. App., infra, 56a.
Nor has the Government identified any other particular area of BOP activity that might suffer from the diversion of resources that complying with the District Court’s April 22 order might entail. Stay Appl. at 37. The record citations in its Stay
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Application do not point to any concerns over lapses in security, loss of ability to perform basic daily activities, or anything of a similar nature—merely that “[s]ignificant work is needed” to comply with the District Court’s order. Gov. App. 129a, ¶ 48; id. at 132a–136a at ¶ 19 (explaining why compliance with the April 22 order, which the Government now claims it has done, was “impossible” and that a review would “take between 30-40 minutes per inmate on average”). It is not and cannot be the law that the resources necessary to comply with a life-saving court order constitute irreparable harm; yet stripped of its unfounded rhetoric, that is the core of the Government’s position here. See Stay Appl. 37.
In any event, the compliance period to expend those resources to conduct evaluations under the April 22 order has passed. The requirements of the May 19 order are not properly before this Court, but simply require more of the same. And, at the time of this filing, the Government is already approximately halfway through the six-day period for evaluations under the May 19 order. See Gov. App. 48a–49a.
3. The Government further argues that compliance with the District Court’s orders—evaluating Elkton prisoners in good faith for transfer, and for any deemed ineligible, stating the reason—will endanger the community. Stay Appl. 36. Because no one has been ordered released, this concern is entirely unfounded. Effectively, the Government claims the mantle of irreparable harm unless there can be a guarantee that no transferred prisoner will cause harm. It “might as well be arguing against the release of any inmate, at any time, for any reason, because even in the best of circumstances the country’s criminal system has no way, short of life
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imprisonment, of ensuring former prisoners do not recidivate.” Gov. App. 25a. All Elkton prisoners are already housed in a low-security facility specifically identified by the Attorney General as suitable for “immediately maximize[ing]” transfers to home confinement. App., infra, 54a (emphasis added). Disregarding a prior violent offense, as the Government complains it has been instructed to do, see Stay Appl. 36, may simply mean considering home confinement for a prisoner who has a low recidivism risk, but committed a robbery 35 years ago. See App., infra, 62a (Government’s list of rationales for denial of home confinement) at Row 52.
B. A Stay Will Exacerbate The Threats To Prisoners And The Public.
In contrast to the lack of harm to the Government of keeping the preliminary injunction in place pending appeal, the harm to Petitioners and to the larger public interest are staggering. One in four prisoners at Elkton is testing positive for COVID19, and for the medically vulnerable subclass the risks of COVID-19 are literally life threatening. If members of the subclass contract COVID-19 and suffer the complications their age and underlying health conditions put them at risk for, they will be irreparably harmed, not just from the trauma of fighting the disease but also, if they recover, from the lasting effects of the disease. These “relative harms” to the subclass as well as to the Elkton staff and community surrounding Elkton and to the public at large weigh heavily against a stay. Conkright, 556 U.S. at 1402.
1. The risk of harm to Petitioners is substantial in probability, devastating in character, and unavoidable by any course of action other than swift transfers. They face infection, severe illness, and a high risk of death after “agonizing days under
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intensive care.” Gov. App. 26a. Even in the wider population, approximately one out of five COVID-19 patients require hospitalization.17 App., infra, 13a, ¶7. Among those who develop more serious disease, some 30% will progress to Acute Respiratory Distress Syndrome (ARDS), which in turn has a 30% mortality rate overall. Id. ¶ 8. The overall mortality rate rises with age, and surpasses 5% for those in the medicallyvulnerable group. Id. The entire subclass in this action faces that risk.
That risk is omnipresent within Elkton. Though social distancing is the cornerstone of any effort to slow respiratory disease, see CDC Guidance, Gov. App. 204a, it is impossible to practice in the dormitory-style housing of Elkton. In every aspect of their daily lives, prisoners are “bunched up together * * * You can’t even walk around, much less maintain distance.” App., infra, 24a, ¶ 4; see also 29a ¶ 6; 32a, ¶3; 36a¶ 3; 40a, ¶4; 45a, ¶ 6; 49a, ¶4 (“there is no way in the world” to practice social distancing in “a 10,000 square foot warehouse” partitioned into open “cubes that measure 8 by 10 feet” for three men apiece). As the District Court has repeatedly found, distancing by enlargement is “the institution’s best hope,” Gov. App. 44a, with all other measures repeatedly proven to fail. Gov. App. 13a (“the education about hygiene and social distancing Respondents tout is only effective if the inmates have the supplies and physical space to put such knowledge into practice”).
People are continuing to die. When this action was filed in mid-April, three Elkton prisoners had died. Gov. App. 54a. Three more died within the week. See
17 Ctrs. For Disease Control and Prevention, Morbidity and Mortality Weekly Report (Mar. 27, 2020) https://www.cdc.gov/mmwr/volumes/69/wr/mm6912e2.htm?s_cid= mm6912e2_w).
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Reply, D.Ct. ECF No. 18 at 1. The toll reached nine on May 8. The Government’s complaint of administrative inconvenience cannot outweigh the risk of severe illness and death to Petitioners in prison. Cf. Bucklew v. Precythe, 139 S.Ct. 1112, 1146 (2019) (“the equities in a death penalty case will almost always favor the prisoner”); Hollingsworth v. Perry, 558 U.S. 183, 185 (2010) (death threats constituted irreparable harm). See Gov. App. 32a (“it would be hard to overstate how much more serious the potential injuries to Petitioners are compared to those cited by Respondents”).
2. It is always in the public interest to prevent a violation of constitutional rights. See, e.g., Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 383 (1979). That purpose can only be effectuated here by denial of a stay.
3. To do otherwise would allow infections to continue unabated, not only among the medically-vulnerable class, but among other prisoners, correctional officers, and staff at Elkton, all of whom are exposed daily to infection. See Gov. App. 4a (“COVID-19 infections are rampant among inmates and staff”); 10a (“With the shockingly limited available testing and the inability to distance inmates, COVID-19 is going to continue to spread, not only among the inmate population, but also among the staff”); id. (46 staff members infected as of April 22). Reducing the prison population at Elkton is “the best line of defense [for] correctional staff who work at Elkton[.]”App., infra, 15a, ¶ 17. The class of individuals to be transferred out comprises approximately 844, including the 837 original class members, Gov. App. 45a, plus nine initially omitted by the Government, Gov. App. 51a, minus at least two
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class members who have died since the list was created. Stay Opp., D.Ct. ECF No. 37

at 1; Mot. To Enforce, ECF No. ECF 51 at 1.

Similarly, defusing the threat at Elkton will mitigate the threat it presents to

the surrounding community. Prisons are not closed environments; staff and other

individuals coming and going from the prison will serve as vectors for further spread.

App., infra, 19a-20a, ¶ 32 (“the infection in Elkton would not stay limited to the

facility, but would worsen infection rates in the broader community.”); App., infra,

6a, ¶ 13 (“staff can easily carry the infection from the community to the prison and

vice versa”). Further spread, both within the prison and in the wider community, also

risks overwhelming available medical facilities. Gov. App. 74a–75a. (discussing local

and statewide medical capacity).

CONCLUSION

The application should be denied.
David J. Carey AMERICAN CIVIL LIBERTIES UNION
OF OHIO FOUNDATION 1108 City Park Avenue, Ste. 203 Columbus, OH 43206
Joseph Mead Freda J. Levenson AMERICAN CIVIL LIBERTIES UNION
OF OHIO FOUNDATION 4506 Chester Avenue Cleveland, OH 44102
Kirti Datla HOGAN LOVELLS US LLP 555 13th Street, NW Washington, DC 20004

Respectfully submitted,
/s/ David Cole
David D. Cole Counsel of Record
David C. Fathi AMERICAN CIVIL LIBERTIES
UNION FOUNDATION 915 15th Street, NW Washington, DC 20005 212-549-2611 dcole@aclu.org
Jennesa Calvo-Friedman AMERICAN CIVIL LIBERTIES
UNION FOUNDATION 125 Broad Street New York, NY 10004
Dated: May 22, 2020

52

53

APPENDIX

APPENDIX
Declaration of Dr. Meghan Novisky (Apr. 13, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . 1a Declaration of Dr. Joe Goldenson (Apr. 11, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11a Declaration of Kendal Nelson (Apr. 12, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23a Declaration of Eric McReynolds (Apr. 11, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28a Declaration of Eric Bellamy (Apr. 12, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31a Declaration of Maximino Nieves (Apr. 11, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35a Declaration of Howard Jackson (Apr. 11, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39a Declaration of Craig Wilson (Apr. 10, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43a Declaration of Arsenio Arzola (Apr. 13, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48a Memorandum from Attorney General Barr for Director of Bureau of Prisons
regarding prioritization of home confinement as appropriate in response to COVID-19 pandemic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52a Memorandum from Attorney General Barr for Director of Bureau of Prisons regarding increasing use of home confinement at institutions most affected by Covid-19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54a Memorandum from Acting Senior Deputy Assistant Director Brewer for Correctional Program administrators regarding furlough and home confinement additional guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57a Government’s status report (May 20, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59a Government’s list of rationales for denial of home confinement . . . . . . . . . . . . . . . . 61a Government’s list of rationales for denial of compassionate release . . . . . . . . . . . . 75a

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Declaration of Meghan Novisky, PhD
1. I am an Assistant Professor in the Department of Criminology, Anthropology, and Sociology at Cleveland State University.
2. My research investigates the consequences of carceral contact on health, factors related to the conditions of confinement, and the collateral consequences of criminal justice policy. I have worked since 2009 with the University of Cincinnati's Corrections Institute (UCCI) as an evidence based programming consultant and trainer. In this role I have worked with correctional staff in 17 U.S. states and trained them on the implementation of research-informed programs and policies to help reduce their recidivism rates. I received my PhD in Sociology from Kent State University, where the focus of my dissertation involved identifying the barriers to health care access that exist in prisons, specifically among older adults.
3. My publications on health and incarcerated people have appeared in numerous peer-reviewed journals, including Criminology, Justice Quarterly, and Victims & Offenders. In 2020, I received the Early Career Investigator Award from the Academic Consortium on Criminal Justice Health (ACCJH), and I serve on the Executive Board of the Academy of Criminal Justice Sciences (Section on Corrections), and as Chair of the Annual Awards Committee of the American Society of Criminology, Division of Corrections and Sentencing.
4. One of the greatest challenges facing prisons regarding the provision of health services is that prisons, by their very nature, are high risk sites for the spread of infectious disease. Close proximity of many people (made worse by overcrowding), shared equipment tied to risky health behaviors such as tattooing, compromised abilities
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to maintain general hygiene, substandard health care services, and lack of awareness about infection status combine to aggravate risk factors associated with the spread of infectious disease.1
5. High levels of stress exposure can also weaken the immune system,2 thereby increasing the susceptibility of exposure among incarcerated persons as well as recovery prognosis. Of course, these factors are all greatly exacerbated in the event of a global pandemic such as COVID-19 given that prisons in the U.S. are already underresourced, understaffed, and chronically overcrowded.
6. On Tuesday, March 24th, the Federal Bureau of Prisons (FBOP) issued a press release stating the Bureau was “taking aggressive steps to protect the safety and security of all staff and inmates, as well as visitors and members of the public.”3 The memo further stated “this response is the Bureau’s top priority.” Yet, the measures outlined in the memo lacked the vision necessary to adequately contain and minimize spread of COVID-19. For example, the memo stated “facilities have been directed to designate available space for isolation and quarantine for inmates who have been exposed to or have symptoms of the virus.” Given that asymptomatic people can still be contagious, it would be impossible for institutions to definitively identify those exposed. Further, isolation of symptomatic prisoners does nothing to address those who are contagious but not symptomatic, nor does it address the threats contagious staff members pose to the incarcerated. As of the time of this filing, there now exist 541 confirmed cases
1 https://www.ecdc.europa.eu/sites/default/files/documents/Active-case-finding-communicable-diseases-inprisons.pdf 2 Fali, T., Vallet, H., and Sauce, D. (2018). “Impact of stress on aged immune system compartments: overview from fundamental to clinical data. Experimental Gerontology 105, 19-26. 3https://www.bop.gov/resources/news/pdfs/20200324_bop_press_release_covid19_update.pdf
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of COVID-19 across 40 FBOP facilities, including 352 prisoner and 189 staff diagnoses.4 Nine prisoners confined to FBOP institutions have died due to COVID-19. These statistics make it clear that current measures being taken by the FBOP are not sufficient in strength nor impact to adequately protect its staff, its prisoners, or the public.
7. On Monday March 30th prisoners at FCI Elkton, a low security male prison, began testing positive for COVID-19. As of April 12, 2020, Elkton has 35 confirmed cases of COVID-19, including 24 prisoner and 11 staff diagnoses. 5The FBOP released consecutive memos on 4/2/20,6 4/3/20,7 and 4/4/20,8 announcing the deaths of Elkton prisoners Woodrow Taylor (53 y/o), Margarito Garcia-Fragoso (65 y/o), and Frank McCoy (76 y/o), respectively. The medically established progression of COVID19, combined with the pre-existing health conditions of all 3 men, makes it likely these individuals suffered tremendously leading up to their deaths.
8. Based on my expertise on the health related risks associated with incarceration, it is my belief that if serious action is not taken swiftly, prisons under the jurisdiction of the FBOP, including Elkton, will escalate further, serving as hotspots for COVID-19 much like would be the case if people were forced to live on a crowded cruise ship during a pandemic. To be clear, without drastic intervention, many more incarcerated individuals and staff will become infected and will face elevated risks for medical complications and morality. This is due to the presence of factors that aggravate the spread of COVID-19, including lack of social distancing, concentrations of
4 https://www.bop.gov/coronavirus/ 5 https://www.bop.gov/coronavirus/ 6 https://www.bop.gov/resources/news/pdfs/20200402_press_release_elk.pdf 7 https://www.bop.gov/resources/news/pdfs/20200403_press_release_elk.pdf 8 https://www.bop.gov/resources/news/pdfs/20200404_press_release_elk.pdf
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immunocompromised, vulnerable adults, and lack of access to proper sanitation. All of these risk factors are important in assessing Elkton’s practical capacity to properly address risks for COVID-19.
9. The volume of prisoners incarcerated at Elkton alone severely limits its capabilities to implement social distancing practices. Elkton maintains a current population of 2,417 male prisoners; 1,999 at the low security FCI/Federal Correctional Institution, and 418 at the FSL/adjacent low security satellite prison.9 To keep all 2,417 prisoners (plus their population of staff) a minimum of 6 feet apart at all times is incredibly impractical.
10. It is my understanding that many prisoners in custody at Elkton share cells, sleeping areas, supplies, bathing areas, and other living spaces, compromising Elkton’s abilities to follow CDC physical distancing guidelines. Like most low security prisons, it is likely that Elkton has only a limited percentage of its cell capacity devoted to administering solitary living conditions (i.e., one person per cell with no shared living space), as low security prisons are not intended to function like maximum or supermaximum security prisons with high capacities for solitary confinement. With continued functioning of shared spaces for bathing, eating, and sleeping, quarantine and social distancing would be impossible to implement at Elkton.10 These factors, in combination with the high stress environment of incarceration in general, increase risks of infectious disease exposure in this institution dramatically.11
9 https://www.bop.gov/locations/institutions/elk/ 10 https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html 11 Massoglia, M. (2008). Incarceration as exposure: the prison, infectious disease, and other stress-related illnesses. Journal of Health and Social Behavior, 49, 56-71.
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11. Even if attempts were made to increase physical distance between prisoners at Elkton, this would fail to adequately address the regular contact that exists between Elkton staff and prisoners. Correctional staff must be in close contact with prisoners in the course of their regular jobs to enforce security protocols, escort prisoners across cell blocks and units, administer medications, and supervise meal distribution, for example.
12. Further, it is difficult (if not impossible) for prisoners to follow recommended sanitation procedures. While each Elkton prisoner is likely to have access to a rationed supply of soap, for example, disinfectant cleaning supplies and hand sanitizers would not typically be provided to each incarcerated person, at least not in the quantities necessary, as such supplies are likely to be considered contraband due to their alcohol content.
13. While Elkton has halted prisoner visitations, this will not stop the transmission of the virus between the prisoner population and the community. With institutional staff filtering in and out of Elkton on a daily basis, staff can easily carry the infection from the community to the prison and vice versa. Thus, unless Elkton staff are quarantined and prevented from continuing to cycle in and out of the prison to return to the community following each shift, this risk remains.
14. Further exacerbating the risk of infection to the surrounding community is that medical facilities in prisons are typically inadequate to provide the intensive care needed to handle serious cases of COVID19. Prisoners therefore require transport to community hospitals for care, increasing risks of infection and reducing the capacity of local hospitals to respond to other members of the community. These circumstances also
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increase risks for the correctional officers who must not only transport sick, incarcerated individuals to the hospital, but supervise them while they are hospitalized.
15. The FBOP population also includes a significant number of older adults. Over nineteen percent of the prison population (n = 33,817) is over the age of 50, making this group particularly vulnerable to COVID-19 based on age alone.12 Assuming Elkton’s population is representative of the national FBOP demographic data, roughly 1 in 5 prisoners at Elkton would be especially vulnerable to COVID-19 based on age. Furthermore, older incarcerated adults suffer from disproportionately more chronic health conditions than the general population of adults,13,14 including respiratory problems, making it likely this group will face medical complications should they continue to become infected. In fact, all 3 deaths at Elkton thus far have been prisoners that meet these categorical criteria: older than 50 years of age with pre-existing chronic health problems.
16. Given the structure, operations, and current conditions at Elkton, there is no realistic set of internal conditions or practices that FBOP can use that will prevent additional infection of prisoners and staff given the current number of prisoners living at Elkton.
17. Significantly reducing the prison population at Elkton as rapidly as possible is the best line of defense to maintain the public health interests of persons incarcerated at Elkton, correctional staff who work at Elkton, and the Ohio community. It
12 https://www.bop.gov/about/statistics/statistics_inmate_age.jsp 13 Loeb, S.J. and AbuDagga, A. (2006). Health-Related Research on Older Inmates: An Integrative Review. Research in Nursing and Health, 29, 556-565. 14 Bedard, R., Metzger, L., & Williams, B. (2016). Ageing prisoners: An introduction to geriatric healthcare challenges in correctional facilities. International Review of the Red Cross, 98, 917–939.
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is my recommendation that all prisons under the jurisdiction of the FBOP should do the same. Based on the existing evidence about COVID-19, failing to do so will have grave consequences and long-term traumatic impacts for many.
18. There are several measures that can be taken to safely reduce the prison population at Elkton. Most important among them is to release as many older incarcerated adults from the prison as possible. Doing so will not only help to significantly reduce the prison population, but will remove the individuals most at risk for infection and complications likely to elevate mortality risks. Older adults have significantly reduced risks for recidivism compared with younger adults, so doing this is unlikely to come at the expense of public safety. The most common convicting offenses among people incarcerated in FBOP jurisdiction are in fact drug offenses (n =73,759).15 Of course, aggravated cases where public safety is a concern need to be considered.
19. Efforts should also be made to release those at the prison with pre-existing chronic health conditions, most importantly those with respiratory conditions, cancer, heart disease, diabetes, kidney disease, HIV, and blood disorders. Because of their preexisting immunocompromised statuses, failing to do so will leave these individuals not only especially vulnerable to COVID-19, but less likely to recover from it should they become infected.
20. Notably, the FBOP has the option to implement these measures while still maintaining correctional custody. The FBOP could do so by increasing existing efforts to transfer supervision from institutions like Elkton to home confinement in the community.
15 https://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp
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In fact, they have been encouraged to do so by the Attorney General of the U.S. as of March 26, 2020.16
21. Specifically, the Attorney General recommended consideration of the following factors for home release: age and vulnerability of the prisoner to COVID-19; the security level of the facility, “with priority given to inmates residing in low and minimum security facilities,” and convicting offense/danger posed to the community. Elkton’s status as a low security prison confirms it is a prime candidate for rapidly downsizing its population in order to best protect the health of the prison population, its staff, and the Ohio community.
22. These actions are both meaningful and necessary. They would enable Elkton to free up needed space, thereby increasing competencies to develop and implement social distancing options not currently available. Doing so would also help to ensure already limited medical supplies and resources at Elkton do not become overwhelmed and that mortality risks are kept as low as possible.
23. Although the FBOP delay has already meant numerous prisoners and staff at Elkton have been infected (some of whom have died), it is not too late to take these steps, which can help prevent the situation from further deteriorating and causing unnecessary suffering to those who remain.
24. I have read the descriptions of the living conditions at Elkton contained in declarations from Elkton prisoners. The descriptions I read are consistent with my understanding of what the conditions of the prison are likely to be at this time based on the resources Elkton has, the structure of the facility itself, the currently limited actions
16 https://www.bop.gov/resources/news/pdfs/20200405_covid-19_home_confinement.pdf
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Case: 4:20-cv-00794 Doc #: 1-3 Filed: 04/13/20 10 of 10. PageID #: 56 taken at Elkton to address the risks presented by COVID-19, and the current number of confirmed cases (n = 35) and mortalities (n = 3) attributed to Elkton custody. Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct. _______________________ Meghan Novisky, PhD Date: 4/13/2020
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Declaration of Joe Goldenson, MD

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/monitor

at Cook County Jail in Chicago and Los Angeles County Jail, at other jails in Washington, Texas, and

Florida, and at prisons in Illinois, Ohio, and Wisconsin.

The nature of COVID-19

5. The SARS-nCoV-2 virus, and the human infection it causes, COVID-19 disease,

is a global pandemic and has been termed a global health emergency by the WHO. Cases first

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began appearing sometime between December 1, 2019 and December 31, 2019 in Hubei Province, China. Most of these cases were associated with a wet seafood market in Wuhan City.
6. On January 7, 2020, the virus was isolated. The virus was analyzed and discovered to be a coronavirus closely related to the SARS coronavirus which caused the 20022003 SARS epidemic.
7. COVID-19 is a serious disease. The overall case fatality rate has been estimated to range from 0.3 to 3.5%, which is 5-35 times the fatality associated with influenza infection. COVID-19 is characterized by a flu-like illness. While more than 80% of cases are self-limited and generally mild, overall some 20% of cases will have more severe disease requiring medical intervention and support.
8. The case fatality rate varies significantly depending on the presence of certain demographic and health factors. The case fatality rate varies significantly with advancing age, rising after age 50, and above 5% (1 in 20 cases) for those with pre-existing medical conditions including cardio-vascular disease, respiratory disease, diabetes, and immune compromise.
9. People with moderate to severe asthma may be at higher risk of getting very sick from COVID-19. COVID-19 can affect your respiratory tract (nose, throat, lungs), cause an asthma attack, and possibly lead to pneumonia and acute respiratory disease.
10. Among patients who have more serious disease, some 30% will progress to Acute Respiratory Distress Syndrome (ARDS) which has a 30% mortality rate overall, higher in those with other health conditions. Some 13% of these patients will require mechanical ventilation, which is why intensive care beds and ventilators have been in insufficient supply in Italy, Iran, and in parts of China.
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11. COVID-19 is widespread. Since it first appeared in Hubei Province, China, in late 2019, outbreaks have subsequently occurred in more than 160 countries and all populated continents, heavily affected countries include Italy, Spain, Iran, South Korea, and the US. The U.S. is now the world’s most affected country. As of April 11, 2020, there have been 1,524,161 confirmed human cases globally and 92,941 known deaths. The pandemic has been termed a global health emergency by the WHO. It is not contained and cases are growing exponentially.
12. In the United States alone, the CDC reports 459,165 cases and 16,570 deaths as of April 10, 2020. The Ohio Department of Health reports 5,836 cases and 227 dead as of April 10. All these numbers are likely underestimates because of limited availability of testing.
13. SARS-nCoV-2 is now known to be fully adapted to human-to-human spread. This is almost certainly a new human infection, which also means that there is no preexisting or “herd” immunity, allowing for very rapid chains of transmission once the virus is circulating in communities.
14. The U.S. CDC estimates that the reproduction rate of the virus, the R0, is 2.4-3.8, meaning that each newly infected person is estimated to infect on average 3 additional persons. This is highly infectious and only the great influenza pandemic of 1918 (the Spanish Flu as it was then known) is thought to have higher infectivity. This again is likely a function of all human populations currently being highly susceptible. The attack rate given an exposure is also high, estimated at 20-30% depending on community conditions, but may be as high as 80% in some settings and populations. The incubation period is thought to be 2-14 days, which is why isolation is generally limited to 14 days.
15. There is currently no vaccine for COVID-19, and no cure. The only know ways to prevent the spread of SARS-nCoV-2 involve measures such as thorough handwashing, frequent
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decontamination of surfaces, and maintaining six feet of physical distance between individuals (“social distancing”).
The risks of COVID-19 in detention facilities 16. COVID-19 poses a serious risk to prisoners, workers, and anyone else in detention facilities. Detention facilities, including prisons like Elkton, have long been associated with high transmission probabilities for infectious diseases, including tuberculosis, multi-drug resistant tuberculosis, MRSA (methicillin resistant staph aureus), and viral hepatitis. 17. The severe epidemic of Tuberculosis in prisons in Central Asia and Eastern Europe was demonstrated to increase community rates of Tuberculosis in multiple states in that region, underscoring the risks prison outbreaks can lead to for the communities surrounding a prison. 18. Infections that are transmitted through droplets, like influenza and SARS-nCoV-2 virus, are particularly difficult to control in detention facilities, as social distancing and proper decontamination of surfaces is virtually impossible. 19. For example, several deaths were reported in the US in immigration detention facilities associated with ARDS following influenza A, including a 16-year old male immigrant child who died of untreated ARDS in custody in May 2019. 20. 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. A number of features of these facilities can heighten risks for exposure, acquisition, transmission, and clinical complications of these infectious diseases. These include physical/mechanical risks such as overcrowding; population density in close confinement; insufficient ventilation; shared toilet,
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shower, and eating environments; and limits on hygiene and personal protective equipment such as masks and gloves in some facilities. Shared spaces and equipment (such as telephones) are commonly not adequately disinfected, especially during the current pandemic when more frequent cleaning and disinfecting are required. Limits on soap (copays are common) and recommended hand sanitizers, since they contain alcohol, are also risks for spread. The nationwide shortage of personal protective equipment (PPE), as well as ancillary products (such as cleaning supplies and thermometer probes) further impacts the ability of correctional facilities to implement necessary precautions.1
21. 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, is significantly higher in jails, prisons, and detention centers than in the community. Close, poorly ventilated, living quarters and often overcrowded conditions in these facilities foster the rapid transmission of infectious diseases, particularly those transmitted by airborne droplets through sneezing, speaking, or coughing. In these congregate settings, large numbers of people are closely confined and forced to share living spaces, bathrooms, eating areas, and other enclosed spaces. They are physically unable to practice social distancing, which the Centers for Disease Control and Prevention (“CDC”) has identified as the “cornerstone of reducing transmission of respiratory diseases such as COVID-19.”2 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.
22. 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
1 Study of COVID-19 in Correctional Facilities, Harvard University and National Commission on Correctional Health Care, April 9, 2020 2 https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctionaldetention.html
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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. Detainees and inmates are often transferred between housing units, to other facilities, and to and from Court. This further increases the likelihood of transmission of COVID-19.
23. It has long been known that jails, prisons, and detention centers can be hotbeds of disease transmission. 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.
24. In addition to the nature of the prison environment, prison and jail populations are also at additional risk due to high rates of chronic health conditions, substance use, mental health issues, and, particularly in prisons, aging and chronically ill populations who may be vulnerable to death or severe illnesses after infection from COVID-19 disease.
25. While every effort should be made to reduce exposure in detention facilities through internal mitigation efforts, this may be extremely difficult to achieve and sustain quickly enough. It is therefore an urgent priority in this time of national public health emergency to reduce the number of persons in detention as quickly as possible.
26. Given the experience in China as well as the literature on infectious diseases in jail, additional outbreaks of COVID-19 among the U.S. jail and prison populations are inevitable, as evidenced in Elkton. Releasing as many inmates as possible is important to protect the health of inmates, correctional facility staff, health care workers at jails and other detention
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facilities, 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.”3
27. For these reasons, the pandemic has prompted prisoner releases around the world. France has announced it will free 5,000 inmates4, and in the United States, California officials are planning to release up to thousands of prisoners.5 In Britain, the Ministry of Justice is planning to grant thousands of prisoners early release within weeks in an effort to contain the spread of the virus in cells and facilities where it said social distancing rules are impossible to maintain .6 Many cities and counties across the US, including San Francisco, Los Angeles, Chicago, Cleveland and New York, are also releasing prisoners to reduce the risk of COVID19.7
28. It is difficult to overstate the devastation that a COVID-19 outbreak could inflict on a correctional facility such as FCI Elkton. At Rikers Island in New York, between April 1, 2020, and April 15, 2020, the number of COVID-19 positive incarcerated individuals and staff members grew by 104 and 114 people, respectively, upping the jail’s total numbers of confirmed cases to 288 among the incarcerated population, 488 among correction staff, and 78 among
3 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), http://www.euro.who.int/__data/assets/pdf_file/0019/434026/Preparedness-prevention-and-control-of-COVID-19inprisons.pdf. 4 Coronavirus: Low-risk prisoners set for early release, BBC News (Apr. 4, 2020), https:// www.bbc.com/news/uk-52165919. 5 Paige St. John, California to release 3,500 inmates early as coronavirus spreads inside prisons, L.A. Times (Mar. 31, 2020), https://www.latimes.com/california/story/2020-03-31/coronaviruscaliforniarelease-3500-inmates-prisons. 6 Britain plans to free many inmates early as it reports a on-day death toll, New York Times, 4/3/20. 7 Timothy Williams et al., ‘Jails Are Petri Dishes’: Inmates Freed as the Virus Spreads Behind Bars, N.Y. Times (Mar. 30, 2020), https://www.nytimes.com/2020/03/30/us/coronavirusprisonsjails.html.
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health care workers.8,9 The first known case of COVID-19 at Rikers was confirmed on Wednesday, March 18,10 illustrating just how quickly this disease can and will overwhelm detention facilities. The Cook County jail in Chicago has emerged as the largest-known source of U.S. coronavirus infections, according to data compiled by The New York Times. At least 387 cases can be linked to the jail, including 272 inmates.
29. According to the Bureau of Prisons, three prisoners have died of COVID-19 at FCI Elkton and its adjacent low security satellite prison. Given the way the disease has progressed elsewhere, we can expect the death toll to mount rapidly.
30. From news reports, it is also my understanding that 43 detainees have been hospitalized outside the prison with COVID or suspected COVID, as have some staff members. Of those, 15 are on ventilators. Dozens more have symptoms. Even these dozens may represent the tip of the iceberg, since newly-infected people typically do not show symptoms for 2-14 days, and since the infection spreads rapidly to additional people.
31. It is my understanding that Elkton uses open bay / dorm housing units with multiple-occupancy cells, and a limited number of segregation units. It also my understanding that Elkton has roughly 2,400 detainees between the Elkton federal correction institution and the low security satellite prison on any given day; that staff that enter and leave the facility regularly; and that detainees share restroom and shower facilities and eat communally prepared food.
32. Based on these understandings, it is my opinion that the exponential infection of rate for COVID-19 we already see in the community would be magnified within Elkton.
8 Julia Craven, Coronavirus Cases Are Spreading Rapidly on Rikers Island, Slate (Apr. 2, 2020), https://slate.com/news-and-politics/2020/04/rikers-coronavirus-cases-increase.html. 9 Jan Ranson, Jailed on a Minor Parole Violation, He Caught the Virus and Died, N.Y. Times (Apr. 10, 2020) 10 As Testing Expands, Confirmed Cases of Coronavirus in N.Y.C. Near 2,000 (Mar. 18, 2020), N.Y. Times, https://www.nytimes.com/2020/03/18/nyregion/coronavirus-new-york-update.html.
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Adequate social distancing would be impossible to maintain. What’s more, the infection in Elkton would not stay limited to the facility, but would worsen infection rates in the broader community. The death rate will increase substantially before it starts to diminish without major interventions. This is why leaving implementation in the hands of local officials alone, who lack the expertise and resources and were incapable of preventing the outbreak in the first place or treating those who eventually died, is insufficient.
33. It is my public health recommendation that everyone who is medically-vulnerable to severe symptoms and death from COVID-19, as defined in this lawsuit,11 be released from FCI Elkton and FCL Elkton immediately, taking precautions that they are released to a place where they can maintain medically appropriate isolation for at least 14 days and receive any necessary and available testing healthcare for underlying chronic conditions.
34. It is my public health recommendation that a public health expert be appointed to oversee operations related to preventing further spread of COVID-19 in Elkton, which may include authorizing further staggered release of detainees until it is possible to maintain consistent social distancing and appropriate hygiene within the facility.
Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing is true and correct.
11 “Persons held at Elkton over the age of 50 , as well as all current and future persons held at Elkton of any age who experience (a) lung disease, including asthma, chronic obstructive pulmonary disease (e.g. bronchitis or emphysema), or other chronic conditions associated with impaired lung function; (b) heart disease, such as congenital heart disease, congestive heart failure and coronary artery disease; (c) chronic liver or kidney disease (including hepatitis and dialysis patients); (d) diabetes or other endocrine disorders; (e) epilepsy; (f) hypertension; (g) compromised immune systems (such as from cancer, HIV, receipt of an organ or bone marrow transplant, as a side effect of medication, or other autoimmune disease); (h) blood disorders (including sickle cell disease); (i) inherited metabolic disorders; (j) history of stroke; (k) a developmental disability; and/or (l) a current or recent (last two weeks) pregnancy.”
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Case: 4:20-cv-00794 Doc #: 1-4 Filed: 04/13/20 11 of 12. PageID #: 67 Executed this  day of April 2020 in Alameda County, CA __________________________________ Joe Goldenson, MD
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References 1. Dolan K, Wirtz A, Maazen B., et al. Global Burdern of HIV, viral hepatitis, and tuberculosis in prisoners and detainees. The Lancet, July 14, 2016. Stuckler D, Basu S, McKee M, King I. Mass incarceration can explain population increases in TB and multi-drug resistant TB in European and Central Asian countries. Proceedings of the National Academy of Science USA, 2008. 105:13280-85. 2. Beyrer C, Kamarulzaman A, McKee M; Lancet HIV in Prisoners Group. Prisoners, prisons, and HIV: time for reform. The Lancet. 2016 Jul 14. pii: S01406736(16)30829-7. doi: 10.1016/S0140-6736(16)30829-7. [Epub ahead of print] No abstract available. PMID: 27427447. 3. Marusshak LM, Sabol W, Potter R, Reid L, Cramer E. Pandemic Influenza and Jail Facilities and Populations. American Journal of Public Health. 2009 October; 99(Suppl 2): S339–S344. 4. Rubenstein LS, Amon JJ, McLemore M, Eba P, Dolan K, Lines R, Beyrer C. HIV, prisoners, and human rights. The Lancet. 2016 Jul 14. pii: S0140-6736(16)30663-8. doi: 10.1016/S0140-6736(16)30663-8 5. Wang J, Ng, CY, Brook R. Response to COVID-19 in Taiwan: Big Data Analytics, New Technology, and Proactive Testing. March 3, 2020. JAMA. Published online March 3, 2020. doi:10.1001/jama.2020.3151. 6. CDC, COVID-19, People Who are at Higher Risk, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/asthma.html
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Case: 4:20-cv-00794 Doc #: 1-11 Filed: 04/13/20 4 of 4. PageID #: 97

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51a

Case: 4:20-cv-00794-JG Doc #: 10-3 Filed: 04/17/20 1 of 7. PageID #: 19G5OVERNMENT
EXHIBIT
C
52a

Case: 4:20-cv-00794-JG Doc #: 10-3 Filed: 04/17/20 2 of 7. PageID #: 196 53a

Case: 4:20-cv-00794-JG Doc #: 10-3 Filed: 04/17/20 3 of 7. PageID #: 197 54a

Case: 4:20-cv-00794-JG Doc #: 10-3 Filed: 04/17/20 4 of 7. PageID #: 198 55a

Case: 4:20-cv-00794-JG Doc #: 10-3 Filed: 04/17/20 5 of 7. PageID #: 199 56a

Case: 4:20-cv-00794-JG Doc #: 10-3 Filed: 04/17/20 6 of 7. PageID #: 200 57a

Case: 4:20-cv-00794-JG Doc #: 10-3 Filed: 04/17/20 7 of 7. PageID #: 201 58a

Case: 4:20-cv-00794-JG Doc #: 86 Filed: 05/20/20 1 of 2. PageID #: 1134

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CRAIG WILSON, et al.,
Petitioners, v. MARK WILLIAMS, Warden of Elkton Federal Correctional Institution, et al.,
Respondents.

) CASE NO.: 4:20cv794 ) ) ) JUDGE JAMES S. GWIN ) ) ) ) ) RESPONDENTS’ STATUS REPORT ) ) )

Pursuant to the Court’s May 14, 2020 non-document Order, Respondents respectfully submit the following status report, providing COVID-19 testing data for Federal Correctional Institution Elkton (“Elkton”), this data includes the main facility and the Federal Satellite Low. ABBOTT RAPID TESTS
Abbott Tests for May 19, 2020 are as follows:

TESTS PERFORMED POSITIVE NEGATIVE

DAILY
10 (1 test invalid results) 2 7

TOTAL (since May 14, 2020)
47 5 41

59a

Case: 4:20-cv-00794-JG Doc #: 86 Filed: 05/20/20 2 of 2. PageID #: 1135

MASS TESTING – QUEST DIAGNOSTICS The following data is for May 19, 2020:
Swabs taken/sent to Quest Diagnostics - 140

TESTS PERFORMED POSITIVE NEGATIVE

RESULTS
140 1 0

TOTAL (since May 11, 2020)
664 53 141

Respectfully submitted,
JUSTIN E. HERDMAN United States Attorney
By: /s/ James R. Bennett II James R. Bennett II (OH #0071663) Sara E. DeCaro (OH #0072485) David M. DeVito (CA #243695) Assistant United States Attorneys United States Courthouse 801 West Superior Ave., Suite 400 Cleveland, Ohio 44113 216-622-3988 - Bennett 216-522-4982 - Fax James.Bennett4@usdoj.gov Sara.DeCaro@usdoj.gov
Attorneys for Respondents

2

60a

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 1 of 14. PageID #: 1059
Exhibit A
61a

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 2 of 14. PageID #: 1060

A

1

Register

2

Number

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

55

56

57

58

59

60

61

62

63

64

65

66

67

68

69

70

B Name

C Court of Jurisdiction FMN FDCD FDCS FNYW FWVS FMD FMIW FIAN FKYW FINN FWVS FIAN FWVN FMIE FMSN FWVN FWIE FFLS FMN FDE FWVN FND FINN FVAW FMOW FFLN FWVN FILN FIAN FFLN FMN FILS FTNM FPAW FIAS FINN FFLN FDE FFLN FMN FFLN FINN FWIW FINS FDE FIAS FND FILS FVAW FKYE FWIW FMSS FPAW FPAW FWIE FIAN FILS FINS FWVS FINN FIAN FILS FILS FMIW FOHS FALS FILS FILS

D Docket Number

E Offense
18:286,371 FRAUD, OTHER 18:2251-2,2260 OBSCENE MATTR DC SEX CARNAL KNOWLEDGE 21:846 SEC 841-851 ATTEMPT 21:841 SCH II NARCOTC,NONFSA COMMUNICATIONS ACT 18:2113(D) ROBBRY,ASSLT,BANK 21:848 CONT CRIMINL ENTERPRS 18:286,371 FRAUD, OTHER 18:2117 INTRST COMM ACT VIOL 21:841 & 846 SEC 841-851 21:846 SEC 841-851 ATTEMPT 21:841 & 846 SEC 841-851 21:841 & 846 SEC 841-851 21:846 SEC 841-851 ATTEMPT 21:841 & 846 SEC 841-851 21:846 SEC 841-851 ATTEMPT 18:2251-2,2260 OBSCENE MATTR 18:1030 FRAUD COMPUTERS 21:846 SEC 841-851 ATTEMPT 21:841 & 846 SEC 841-851 21:841 SCH II NONNARC,NONFSA 18:922(G) FIREARMS,3 PRI CNV 18:924(C) FIREARMS LAWS 21:846 SEC 841-851 ATTEMPT 18:922(G) FIREARMS,CARR CRIM 18:2251-2,2260 OBSCENE MATTR 18:286,371 FRAUD, OTHER 21:846 SEC 841-851 ATTEMPT 21:846 SEC 841-851 ATTEMPT 18:922(G) FIREARMS,3 PRI CNV 18:2251-2,2260 OBSCENE MATTR OBSCENE MATTER TRANSPORT OBSCENE MATTER TRANSPORT 21:846 SEC 841-851 ATTEMPT 21:841 & 846 SEC 841-851 21:846 SEC 841-851 ATTEMPT 18:2251-2,2260 OBSCENE MATTR 18:2251-2,2260 OBSCENE MATTR 18:2251-2,2260 OBSCENE MATTR 18:2241-2248 SEXUAL ABUSE 21:841 SCH II NARCOTC,NONFSA 21:841 & 846 SEC 841-851 21:841 & 846 SEC 841-851 18:2251-2,2260 OBSCENE MATTR 18:2251-2,2260 OBSCENE MATTR BURGLARY 21:841 SCH II NARCOTC,NONFSA 18:924(C) FIREARMS LAWS 21:841 SCH II NONNARC,NONFSA OBSCENE MATTER TRANSPORT 21:846 SEC 841-851 ATTEMPT 21:841 SCH II NARCOTC,NONFSA 21:841 SCH II NARCOTC,NONFSA 18:286,371 FRAUD, OTHER 21:846 SEC 841-851 ATTEMPT 18:2251-2,2260 OBSCENE MATTR 21:841 & 846 SEC 841-851 18:2251-2,2260 OBSCENE MATTR 21:841 & 846 SEC 841-851 21:841 SCH II NONNARC,NONFSA OBSCENE MATTER TRANSPORT 18:2251-2,2260 OBSCENE MATTR 21:846 SEC 841-851 ATTEMPT 21:846 SEC 841-851 ATTEMPT 18:2251-2,2260 OBSCENE MATTR 21:841 SCH II NARCOTC,NONFSA 18:2251-2,2260 OBSCENE MATTR

F Status/Rationale
Low Risk/Detainer Florida DOC, C/S Sentence, 32.1% t/s PSF Sex Offender PSF Sex Offender 24% time served; Low Risk; STG Hells Angels; Assault on a Police Officer; Last IR 2009 Detainer; Medium Risk; IR 01/16/2020 Use of Drugs, 01/16/2020 Possession 11/2019 Being Absent, 09/2019 Possession Has Active Warrants in NCIC for Grand Theft; Low Risk Level Current Violence - Armed Bank Robbery; 03/2020 IR 218; Low Risk; '76 Manslaughter, '90 Bank Robbery; Numerous Major IRS in NYDOC; Greatest Severity Offense - Leader Organizer; 43% ts; PRD 2033; Broad Publicity; DST for RRC 05/06/2020; Fugitive Most Wanted 9 Years; Prior '98 IR for Assault; Current Violence - Possession of a Pipebomb - manufactured and exploded as a tactic to commit robberies; resulted in death Current Violence/Past Violence Firearms Trafficking; Prior possession of destructive device (pipebomb); prior domestic violence Past violence - assault on LEO (attempted to take F/A); Medium Risk; Medium Risk; 36% ts; 12/2019 - Possessing Cell Phone IR Low Risk; '64 Assault and Battery; PRD 2023; 63% ts Medium Risk; 09/2019 Use of Drugs or Alcohol; 64% ts PRd 12/2020; W CCC Action; High Risk?; Escape History noted History of Minor Escape noted; prior violence; Medium Risk; STG Vice Lords Member Sex Offender Current Violence - Felon In Possesion of a F/A; Prior aggravated robbery '80; Low Risk; 19% ts;G6 reflects detainer not on pscd ?? Low Risk; Past Violence -'93 Robbery; Poor program participation & LS Minor Escape; Prior Violece - Robbery; No FSA assignments 72% ts 54% ts; no Risk assignmnt; 09/2019 Fighting With Another Person High recidivism risk; Prior Violence (1999, 1991, 1984, 1979); IR for Code 112 (January 2020) Medium Risk; Prior violence (1986); Detainer W/ VA DOC Outlaw MC Gang; Escape from LVN SCP (1984); Low Recidivism risk; 36% Low risk; Sex offender and history of violence (1988) Sex Offender; Low recidivism; 42%' Alien; to be reviewed for RIS Low risk; History of Violence (1996 Domestic Assault); 47%; PRD 2037 Medium risk; IR for Code 312 (November 2019) PRD 2033; IR for Code 307 (January 2020); 31% Sex Offender Sex Offender Sex Offender (current and multiple priors) Low risk; History of Violence (multiple domestic assaults); 53% Medium Risk; Prior Violence Criminal Reckless While Armed (1997); 71% Medium risk; IR for Codes 316, 312 (December 2020); 63% Sex Offender Sex Offender Sex Offender Sex Offender Submitted for Home Confinement Awaiting CCC Action 05-03-2020; 62% History of violence for Assault, Pointed Gun at Victm; 71% High risk; Prior Violence Resisting, Robbery, Battery; 84% Sex Offender PPS Sex offender; Medium recidivism risk; 29% Sex Offender due to prior conviction; History of violence for Aggravated Battery (1997); IR for Code 201 (June 2019); High recidivism risk Medium recidivism risk; History of violence for Assault and Battery (1997) History of Violence for Robbery (1985); Low recidivism risk Sex offender; RRC DST on 07-21-2020; IR for Code 312 (July 2019) Low recidivism risk; History of violence for Involuntary Manslaughter Low recidivism risk; History of violence (1997) Medium recidivism risk; History of violence (1976 and 1986) Low recidivism risk; 18% Medium recidivism risk; History of violence for Assault (1991) and Escape for Absconding (1986) Sex offender; Low recidivism risk Medium recidivism risk Sex offender; Low recidivism risk High recidivism risk; IR suspended pending AUSA referral for Code 102A High recidivism risk; IR for Code 331 (March 2020) Sex offender; High recidivism risk; Current and prior sex offenses Sex offender; COVID Refer CMA Low recidivism risk; IR for Code 219 (January 2020) Low recidivism risk Sex Offender - to be reviewed for RIS Medium recidivism risk; History of violence (1998) Sex offender; Low recidivism risk

62a

A 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 3 of 14. PageID #: 1061

B

C

FND

FINS

FWIE

FMD

FWVN

FINN

FPAW

FILS

FINS

FKYW

FWVN

FMIW

FRQ

FKYW

FFLM

FIAN

FWVN

FINS

FILS

FMIW

FINS

FND

FVAW

FPAM

FILC

FINN

FWAW

FKYW

FWIE

FINS

FINS

FWIW

FILS

FWIW

FIAS

FINS

FME

FWIW

FINS

FNYW

FILS

FINS

FKS

FKYE

FKYW

FRI

FRI

FVAW

FINS

FIAN

FVAW

FLAW

FND

FFLN

FMIW

FVAW

FWVN

FDCS

FWIE

FWVN

FINN

FWVN

FMIW

FND

FINS

FWIE

FWVN

FWVN

FWVS

FWVN

D

E

F

21:841 & 846 SEC 841-851

Low recidivism risk: IR for Code 201 (Jul 2019)

18:922(G) FIREARMS,3 PRI CNV

History of violence (1983 and 1995); Medium recidivism risk; IR for Code 212 (April 1, 2020) and 203 (December 2019)

18:2113(D) ROBBRY,ASSLT,BANK

Low recidivism risk; Current violence of Bank Robbery, Prior violence for Robbery

18:2113 ROBBERY BANK

Low recidivism risk; Current and prior violence for Bank Robbery

21:843 USE FICT,REV,SUSP NBR

High recidivism risk; Prior violence; IR for Code 112 (November 2019)

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:1344 BANK FRAUD

High recidivism risk

18:2251-2,2260 OBSCENE MATTR

Sex offender

18:2251-2,2260 OBSCENE MATTR

Sex offender (current and prior convictions)

18:2241-2248 SEXUAL ABUSE

Sex offender (current and prior convictions)

18:922(G) FIREARMS,CARR CRIM

Sex offender due to prior conviction; History of violence for Murder (1997)

21:841 & 846 SEC 841-851

Prior violence 2008; Medium recidivism risk

18:2119 ROBBERY OF AUTO

Current violence offense; Low recidivism risk

18:2251-2,2260 OBSCENE MATTR

Sex offender; History of violence for prior sex offense

21:846 SEC 841-851 ATTEMPT

Low recidivism risk; IR for Code 397 (October 2019); PRD 09-07-2028

18:2251-2,2260 OBSCENE MATTR

Sex offender

21:841 SCH II NONNARC,NONFSA

Low recidivism risk; RRC DST on 09-16-2020

21:846 SEC 841-851 ATTEMPT

Medium recidivism risk; HX of violence for Battery (1997)

21:846 SEC 841-851 ATTEMPT

Low recidivism risk; Escape history for Absconding (2004)

18:286,371 FRAUD, OTHER

Sex offender due to prior convictions; Low recidivism risk

18:2251-2,2260 OBSCENE MATTR

Sex offender; PRD 2035

18:2241-2248 SEXUAL ABUSE

Sex offender

18:922(G) FIREARMS,CARR CRIM

Prior Violence 2003; Medium recidivism risk

18:924(C) FIREARMS LAWS

Low Risk; PRD: 2035

18:1344 BANK FRAUD

Latin King enforcer; PSF Greatest Severity, Current violent offense; Low recidivism risk

18:2251-2,2260 OBSCENE MATTR

Sex offender; Low recidivism risk; History of violence (Battery-1995)

21:846 SEC 841-851 ATTEMPT

Escape from SCP in 2006; Low recidivism risk

18:922(G) FIREARMS,3 PRI CNV

Sex offender due to prior convictions; Low recidivism risk

OBSCENE MATTER TRANSPORT

Sex offender; Low recidivism risk

18:2251-2,2260 OBSCENE MATTR

Sex offender; History of violence for prior sex offense

18:2251-2,2260 OBSCENE MATTR

Sex offender; Low recidivism risk; Current and prior sex offense

18:2251-2,2260 OBSCENE MATTR

Sex offender

18:2251-2,2260 OBSCENE MATTR

Sex offender; Low recidivism risk; History of violence for prior sex offenses

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

IR 8/2010, Domestic Battery (2 charges) 2000,

18:922(G) FIREARMS,3 PRI CNV

IR 2-2020

18:922(G) FIREARMS,CARR CRIM

IR 3/2020

LARCENY/THEFT I/S TRANS

Disorderly conduct 2007, Pattern Score High, 48.9%

18:924(C) FIREARMS LAWS

IR 1/2020

21:841 SCH I NARCOTIC,NONFSA

Resist arrest 1994, firearm discharge 2001, Pattern - Medium, 100%

21:846 SEC 841-851 ATTEMPT

No I/Rs, High Risk, 41, CAR2, 41%, PRD 3/2021

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:922(G) FIREARMS,CARR CRIM

Common assault 1978, Battery 2000,Pattern Medium 80%

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

3rd degree rape 1980, 85%

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:924(C) FIREARMS LAWS

No I/Rs, Current Off: Murder for Hire, Min Risk, 67, CAR2, 51%, 10/2030

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

No I/Rs, MIN Risk, 08/26/2021; Detainer State of Virginia Consecutive Sent.

21:846 SEC 841-851 ATTEMPT

Battery 1997 and 1998, Pattern Medium

21:846 SEC 841-851 ATTEMPT

No I/Rs, LOW Risk, 30, CAR1, 43%, 2/2/2030

21:841 & 846 SEC 841-851

No I/Rs, PV-Aggr Batt w/Deadly Weapon, Batt., Att. Murder w/Deadly Weapon, Low Risk, 71, CAR2, 67%, 06/17/2026

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

No I/Rs, MED Risk, 30, CAR1, 54%, 11/10/2023

18:2251-2,2260 OBSCENE MATTR

Sex Offender; to be reviewed for RIS

DC HOMICIDE MURDER

Detainer - USMS

21:841 SCH I NARCOTIC,NONFSA

MED Risk, 53, CAR2, 66%, 1/7/2024; Distributed Heroin Resulting in Death

18:924(C) FIREARMS LAWS

IR 203 - 2/2020

21:846 SEC 841-851 ATTEMPT

MED Risk, 44, CARE2, 84%, 11/18/2021

18:286,371 FRAUD, OTHER

MIN Risk, 58, CARE2, 95%. 6/6/2020

OBSCENE MATTER TRANSPORT

Sex Offender

18:2241-2248 SEXUAL ABUSE

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

IR 316 1/2020

18:922(G) FIREARMS,CARR CRIM

IR 112 3/2020

21:841 & 846 SEC 841-851

MED Risk, 29, CARE1, 19%, 12/20/2028

63a

A 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 4 of 14. PageID #: 1062

B

C

FWVN

FWVN

FMT

FWVN

FINS

FMN

FKYE

FWVN

FALS

FKYE

FWVN

FWVN

FWVN

FTXS

FFLS

FILC

FTNE

FILS

FILS

FNCM

FINN

FINN

FKYE

FIAN

FPAM

FKYE

FINN

FMN

FIAS

FGAM

FMIW

FWAE

FIAS

FNYW

FMN

FWVS

FCAS

FKYW

FILC

FWVS

FWVS

FMIW

FSC

FIAS

FWVS

FALS

FNYN

FAK

FMN

FWVS

FKYE

FILN

FINS

FIAS

FINS

FWVS

FWVS

FWVS

FILC

FWVS

FINS

FMN

FWVS

FIAS

FWVS

FWVS

FKYE

FWVS

FMD

FMIW

D

E

F

21:841 SCH II NONNARC,NONFSA

HIGH Risk, 29, CARE 1, 15%, 11/17/26

18:922(G) FIREARMS,CARR CRIM

IR 219 11/2019

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NONNARC,NONFSA

IR 113 2/2020

21:841 SCH I NARCOTIC,NONFSA

IR 112 1/2020

21:846 SEC 841-851 ATTEMPT

IR 108 1/2020

21:846 SEC 841-851 ATTEMPT

IR 112 3/2020

18:922(G) FIREARMS,CARR CRIM

HIGH Risk, 28, CARE 2, 15%, 2/1/2023

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

LOW Risk, 43, CARE 1, 48% 7/23/2021; Active Warrants in D.C. full extradition

21:841 SCH II NONNARC,NONFSA

MED Risk, 37, CARE 2, 15%, 9/7/2026 - 04 Domestic Batter, 08 Assault

21:841 & 846 SEC 841-851

LOW Risk, 56, 10/1/2022; 97 Assault Bodily Injury; Several Unknown Disposition

8:1327 ALIEN SMUGGLE/IMPORT

IR 316 11/2019, LOW risk, CARE 2, 33, 74%,11/16/2020

18:2251-2,2260 OBSCENE MATTR

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

18:922(G) FIREARMS,3 PRI CNV

HIGH Risk, 58, CARE 2, 49%, 12-29-2020 Sexual Assault 1978

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2113 ROBBERY BANK

LOW Risk, CARE 2, 56, 54%, 4/24/2021

21:846 SEC 841-851 ATTEMPT

IR 11 2/2020

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NONNARC,NONFSA

LOW Risk, CARE 2, 62, 14%, 4/2031

18:922(G) FIREARMS,CARR CRIM

IR 113 3/2020

21:846 SEC 841-851 ATTEMPT

HIGH Risk, CARE 2, 46, 47%, 4/10/2027

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NONNARC,NONFSA

MIN Risk, 43, CAR1, 68%, 03/2022; Submitted for HC

18:922(G) FIREARMS,CARR CRIM

PV-85 Asslt, MED Risk, 54, Car2, 55%, 03/2029; 4 Firearms in current offense

18:2251-2,2260 OBSCENE MATTR

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:286,371 FRAUD, OTHER

PV-04 Asslt, LOW Risk, 55, CAR2, 20.7%, 07/2025

OBSCENE MATTER TRANSPORT

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

21:841 & 846 SEC 841-851

PV-94 Armed Violence, LOW Risk, 45, CAR2, 65%, 05/2027 Gangster Disciple,

21:841 & 846 SEC 841-851

PV-Asslt, Sexual Assault, Homeless, RRC: 5/19/2020

21:846 SEC 841-851 ATTEMPT

MED Risk, 40, CAR2, 21.4%, 11/2030

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

PV-95 Robbery, 04 Asslt LEO, Detn: 2019 10yrs CC IA DOC, LOW, CAR2

OBSCENE MATTER TRANSPORT

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

18:922(G) FIREARMS,CARR CRIM

Homeless? PV-06 Child Endangerment, 02 Stalking, 00 Asslt, MED Risk, 40, CAR2, 41%, 11/2023

OBSCENE MATTER TRANSPORT

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

PV-Battery LEO, Batt., Mal. Wound., MED Risk, 40, CAR2, 41%, 11/2023

21:846 SEC 841-851 ATTEMPT

Sex Offender - Prior

18:922(G) FIREARMS,CARR CRIM

PV-11 Batt., 92 Robb., MIN Risk, 47, CAR2, 56%. 05/2023; DST - DTH RDAP

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:924(C) FIREARMS LAWS

I/R - 112-11/2019, 331-09/2019, 113-7/2019, HIGH Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH I NARCOTIC,NONFSA

LOW Risk, 43, CAR2, 54%, 3621e date: 1/11/2021 - RDAP Part

21:846 SEC 841-851 ATTEMPT

PV-99 Batt., Med Risk, 42, CAR1, 25%, 04/2033

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH I NARCOTIC,NONFSA

LOW Risk, 23, CAR2, 32%, 10/2021

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2421-29 I/S TRN IMRL PRPS

Sex Offender

21:841 SCH I NARCOTIC,NONFSA

PV-15 Obstr. Officer, 05 Mal. Asslt, Wanton Endangerment, 02 Batt., Dom Viol., 00 Agg. Robb, MED Risk, 40, CAR2, 87%

21:841 & 846 SEC 841-851

LOW Risk, 45, CAR2, 70%, 03/2024

18:2421-29 I/S TRN IMRL PRPS

Sex Offender

18:924(C) FIREARMS LAWS

I/R - 224-02/2020, Homeless

21:846 SEC 841-851 ATTEMPT

PV-00 Agg. Asslt., LOW Risk, 41, CAR1, 76%, 06/2023: Comp Rel on 5/15/20

64a

A 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 5 of 14. PageID #: 1063

B

C

FKYE

FINS

FINS

FINS

FKYW

FALM

FNYN

FINS

FMN

FWIE

FILC

FWIE

FVAE

FINS

FINS

FOKN

FMIW

FKYE

FWIE

FKYE

FIAS

FKYE

FINS

FKYE

FINS

FMIW

FMIW

FNCW

FWIE

FMIW

FSC

FINS

FKYE

FINN

FWIE

FWIE

FMIW

FND

FMIW

FNYN

FOHN

FINN

FINS

FMIW

FMIW

FINN

FMIE

FNCM

FMT

FNYS

FILN

FINN

FIAS

FILC

FWY

FKYE

FTNM

FIAN

FKYE

FINN

FINN

FIAS

FMN

FINN

FINN

FILC

FLAW

FMIW

FKYE

FILN

D

E

F

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

I/R - 113-02/2020 (x2), 108-02/2020 (x2)

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2421-29 I/S TRN IMRL PRPS

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:1962 RACKETEER (RICO)

Current Violence-RICO, GAF: the Mob, MED Risk, 25, CAR1

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:924(C) FIREARMS LAWS

PV-13 Disord. Con, 06 Obstruct, 05 Subst Batt., 02 Escape, MED Risk, 41, CAR2, 63%, 07/2022

OBSCENE MATTER TRANSPORT

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

21:846 SEC 841-851 ATTEMPT

I/R - 108-10/2019, DST: CNK EB1 - 05/12/2020

21:846 SEC 841-851 ATTEMPT

I/R - 310-1/28/2020, PV-08 Criminal reckless, MED Risk, 41, CAR1, 13%, 11/5/2038

21:846 SEC 841-851 ATTEMPT

Residence-Mexico, LOW Risk, 44, CAR2, PSF- Alien, 23%, 06/2029

18:2251-2,2260 OBSCENE MATTR

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

21:846 SEC 841-851 ATTEMPT

LOW Risk, 57, CAR1, 44%. 12/2029

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

MIN Risk, 51, CAR2, 40%, 06/2030

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

I/R - 113-5/5/2020, 331-2/6/2020, MED Risk, 36, CAR1, 83%, 11/2021

18:924(C) FIREARMS LAWS

I/R - 201-3/17/20, HIGH Risk, 33, CAR1, 52%, 10/2022

18:2113 ROBBERY BANK

Current Violence - Accessory After the Fact, MIN Risk, 53, CAR2, 83%, 10/2021

COMMUNICATIONS ACT

PV - 07 Batt. w/Felony, 03 Dom. Battery, LOW Risk, 47, CAR2, 51%, 3621e date: 06/12/2021

OBSCENE MATTER TRANSPORT

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:1956 RACKETEERING

LOW Risk, 36, CAR2, 13%, 03/2024

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2113 ROBBERY BANK

Current Violence - Armed Robbery, PV-Armed Robbery 80,79,65,61, MIN Risk, 77, CAR2, 70%, 06/2022, CV-Deny

18:922(G) FIREARMS,3 PRI CNV

Homeless? PV-1994 Voluntary Manslaughter, MED Risk, 56, CAR2, RRC: CRL 4WR - 7/7/20

21:846 SEC 841-851 ATTEMPT

I/R - 112-3/25/20, MED Risk, 41, CAR2, 14%, 08/2029

21:846 SEC 841-851 ATTEMPT

I/R - 115-11/19/2019, HIGH Risk, 38, CAR2, 55%, 01/2021

18:2113(D) ROBBRY,ASSLT,BANK

Current Violence - Bank Robbery by Force or Violence, RRC: 05/19/2020

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:922(G) FIREARMS,CARR CRIM

MED Risk, 26, CAR2, RRC: CCH 5HY 10/27/2020

21:841 & 846 SEC 841-851

PV - 80 Armed Robbery, 86/95 Resist LEO/BATT, 03 Batt/Dom Viol., MED risk, 57, CAR2, 29%, 05/2038

21:846 SEC 841-851 ATTEMPT

Homeless? 02 Crim.Endangerment, Disorderly Conduct, 01 Fam. Aslt, MED risk, 57, CAR2, 55%, 09/2022

21:846 SEC 841-851 ATTEMPT

PV-76 Aslt&Batt, LOW Risk, 66, CAR2, 64%, 06/2024: Greatest Severity Offense

FRAUD POSTAL

I/R - 310-03/09/2020, 17 Pending Charges; MIN Risk, 63, CAR2, 95%, 10/29/2020

21:841 & 846 SEC 841-851

PV - 78 Rob, 88 Dom Viol., MED Risk, 59, CAR2, 56%, 09/2024

21:841 & 846 SEC 841-851

PV - 94 Att Murder, 95 Battery, MED Risk, 49, CAR2, 28%, 02/2028

18:2251-2,2260 OBSCENE MATTR

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

21:846 SEC 841-851 ATTEMPT

HIGH Risk, 47, CAR2, 33%, 09/2034

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

MIN Risk, 60, CAR2, 3%, 09/2032; Prior Arson; STG Compr Staff, Introd Drugs

21:841 & 846 SEC 841-851

MED Risk, 50, CAR2, 94%, 12/2021; Instant Offense is Violent/ Gang Related

21:846 SEC 841-851 ATTEMPT

PV - Threatened to Kill with brick 15 Disorderly Conduct, MIN Risk, 42%, 2023,

18:499/702 IMPERSONATION

I/Rs - 306 (x2) 10/19 & 8/19, MED Risk, 52, CAR2, 83%, 03/2021, W CCC ACT

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

I/R - 201-9/30/19, PV-02 Batt, Dis. Cond, 04, Resist LEO, Batt., HIGH Risk, 42, CAR1, 80%, 3621e: 08/2021

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

I/Rs - 201-1/23/20, 306(x3)-2020, Homeless, MED Risk, 46, CAR2, 46%, 02/2021

18:2113(D) ROBBRY,ASSLT,BANK

Current Violence-Consp. Bank Robbery, F/A in Violent Crime, LOW Risk, 65, CAR2, 95%, 04/2021

21:841 SCH I NARCOTIC,NONFSA

PV - 02 Armed Robb., 90 Robb., LOW Risk, 53, CAR2, 15%, 09/2032

21:841 SCH II NONNARC,NONFSA

PV - 92 Wanton Endangerment, LOW Risk, 55, CAR2, 46%, 08/2027

18:922(G) FIREARMS,CARR CRIM

Homeless, PV - 00 Armed Robbery (x3), GAF: Black Gangster Disciples, MED Risk, 44, CAR1, 11%, 12/2036

18:924(C) FIREARMS LAWS

Current Violence-Hobbs Act Robbery, F/A, LOW Risk, 31, CAR2, 30%, 08/2024

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

SEX OFFENSES

Sex Offender

18:924(C) FIREARMS LAWS

Compassionate Release - 05/05/2020

21:846 SEC 841-851 ATTEMPT

PV - 98 Dom. Viol., LOW Risk, 50, CAR2, 52%, 04/2025; Pending Charges in OH

21:846 SEC 841-851 ATTEMPT

LOW Risk, 54, CAR2, 42%, 01/2026; Has Pending Charge in Illinois

65a

A 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 6 of 14. PageID #: 1064

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C

FKYE

FMIW

FMIW

FMIW

FKYE

FKYE

FNCM

FIAS

FKYE

FKYE

FILC

FVAW

FMIW

FMN

FILC

FMIW

FMIW

FILC

FMIW

FVAW

FILN

FNYN

FND

FMIW

FDCD

FILC

FKYE

FKYW

FVAW

FMIW

FVAW

FMIW

FKYE

FGAS

FILC

FMIE

FNYN

FIAS

FMA

FILC

FMIW

FNYN

FNYW

FKYE

FMN

FMN

FKYE

FMN

FTXE

FKYE

FNYW

FKYE

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FTNE

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FCT

FKYE

FVAW

FILN

FNCW

FNCM

FMIW

FILC

FMIW

FKYE

FKYE

MAR

FNCM

D

E

F

21:846 SEC 841-851 ATTEMPT

PV - 05 Assault No Injury, LOW Risk, 57, CAR2, 49%, 08/2025

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2241-2248 SEXUAL ABUSE

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

PV - 02 Wanton Endangerment, Involving LEO; LOW Risk, 47, CAR1, 74%,

21:846 SEC 841-851 ATTEMPT

I/Rs - 108, 331-01/2020, 219-11/19, PV - 10 Asslt, 01 Aggr. Asslt., MED Risk, 47, CAR2, 78%, 08/2021, DST: GIL

COMMUNICATIONS ACT

I/Rs, 224-02/20, 307, 312-01/20, MIN Risk, 68, CAR2, 55%, 03/2026

21:846 SEC 841-851 ATTEMPT

PV - 99 Common Law Robbery, MED Risk, 42, CAR2, 20%, 07/2030

18:922(G) FIREARMS,CARR CRIM

I/Rs - 112 02/20 & 05/29/19, HIGH Risk, 31, CAR1, 51%, 10/2024

21:846 SEC 841-851 ATTEMPT

LOW Risk, 56, CAR2, 28%, 02/2033

21:846 SEC 841-851 ATTEMPT

I/Rs - 112-10/19, 113-05/19, Homeless, MED Risk, 42, CAR2, 87%, RRC: CCH 5TJ - 9/15/2020

21:846 SEC 841-851 ATTEMPT

I/Rs - 113-01/20, 331-11/19, Homeless? LOW Risk, 42, CAR2, 62%, 3621e: 06/2023

18:2421-29 I/S TRN IMRL PRPS

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH I NARCOTIC,NONFSA

High Risk,STG: BGD, PV-Dom. Violence ('90) (66.6%)

21:846 SEC 841-851 ATTEMPT

PV-Dist the Peace ('12) (59.4%)

21:846 SEC 841-851 ATTEMPT

Approved for HC 5/14/20 (73.7%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (54.2%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (28.9%)

COMMUNICATIONS ACT

Medium Risk, < 12 mo. CC, PV: Kdnap, Apv RRC 10/29/20 (68.5%)

21:846 SEC 841-851 ATTEMPT

Low Risk, STG: People Nation Assoc., Detnr: Murder (95.7%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (63.6%)

21:846 SEC 841-851 ATTEMPT

Low Risk PV: Dom Asst ('01), Dis Con ('05) 32.7 %/> 18 mos.

18:2251-2,2260 OBSCENE MATTR

Sex Offender (81.5%)

18:1962 RACKETEER (RICO)

Medium Risk STG: Escape/Drg Intr, IO incl Murder x 4 (83.4%)

21:846 SEC 841-851 ATTEMPT

Low Risk, STG: BGD (55.5%)

21:846 SEC 841-851 ATTEMPT

Low Risk, 36.5% > 18 mos. PV:Crim Misch ('96)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (18.2%)

21:846 SEC 841-851 ATTEMPT

Medium Risk, PV: A&B ('94), V Prot. Ord ('14) (75.7%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (40.9%)

21:846 SEC 841-851 ATTEMPT

Medium Risk, < 12 mo. CC (104/112), (27.2%)

18:286,371 FRAUD, OTHER

Released to RRC on 4/30/20 (80.1%)

21:846 SEC 841-851 ATTEMPT

Low Risk 33.2% > 18 mos.; Criminal History; Possible Pending Charge; 4/4/29

18:2251-2,2260 OBSCENE MATTR

Sex Offender (76.5%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (81.6%)

FRAUD POSTAL

Possible PC for failing to pay child sup(56.4%)

21:841 & 846 SEC 841-851

Medium risk (48.8%); 01/25/29 PRD

21:841 & 846 SEC 841-851

Low Risk, STG: BGD PV: Current Offense Greatest and priorAgg. Assault ('93) (

18:1512 OBSTRUCT JUSTICE

Low Risk,IO incl stabbing PV:Arm Rob,PC: Asslt to Murdr (39.7%)

21:841 SCH I NARCOTIC,NONFSA

Low Risk, PV: Agg. Asslt, STG: BGD (49.8%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (47.7%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (70.5%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (82.3%)

18:924(C) FIREARMS LAWS

Sex Offender (69.1%)

18:111 ASSLT/RESIST FED OFFR

Approved for RRC 5/19/20 (87.8%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (39.3%)

21:841 SCH I NARCOTIC,NONFSA

33.3% > 18 mos.; Greatest Severity - Victim overdosed and almost died

18:2251-2,2260 OBSCENE MATTR

Sex Offender (32.8%)

21:846 SEC 841-851 ATTEMPT

Medium Risk (81.8%); Serious History of Violence; Tango Blast Gang

21:846 SEC 841-851 ATTEMPT

Low Risk, <12 mos CC (112) (49.8%); In SHU for Use of Drugs; Recent IR

21:846 SEC 841-851 ATTEMPT

Low Risk, PV: Assault ('97), <12 mos. CC (305) (42.7%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (25.6%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (39.8%)

OBSCENE MATTER TRANSPORT

Sex Offender (80.4%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (41.1%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (40.1%)

18:2241-2248 SEXUAL ABUSE

Sex Offender (17.0%)

21:841 & 846 SEC 841-851

High Risk ; 05/20/28 PRD; Criminal History

21:846 SEC 841-851 ATTEMPT

23.3% ; 10/31/30 PRD; Age-; Criminal History

18:2251-2,2260 OBSCENE MATTR

Sex Offender (37.4%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (91.6%)

21:846 SEC 841-851 ATTEMPT

Medium Risk, PV: Vol Manslaughter ('90) (82.0%)

21:841 & 846 SEC 841-851

Medium Risk, STG: Escape (4 hr RRC),19.7% > 18 mos

OBSCENE MATTER TRANSPORT

Sex Offender (32.3%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (21.1%)

18:1201 KIDNAPING

Sex Offender (56.9%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (39.2%)

21:846 SEC 841-851 ATTEMPT

Released to RRC on 4/29/20 (84.8%)

MILITARY COURT SEX OFFENSE

Sex Offender (77.6%)

21:841 & 846 SEC 841-851

Medium Risk, <12 mo CC (108), STG: Bloods, 35.8% > 18 mos

66a

A 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 7 of 14. PageID #: 1065

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C

FMA

FVAW

FILC

FMIW

FMOW

FNYW

FILN

FILC

FILC

FMIW

FILC

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FVAW

FMIW

FNYW

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FMOW

FKYE

FMIW

FKYE

FKYE

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FFLN

FCT

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FCAN

FINS

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FMD

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FFLS

FMOW

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FALN

FNCM

FSC

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FPAW

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FDCS

FMIE

FOHN

D

E

F

21:846 SEC 841-851 ATTEMPT

Low Risk (76.9%)

21:846 SEC 841-851 ATTEMPT

(10.7%) Age-67; Prescribed medications to Patients; Patients died due to o.d.

18:2251-2,2260 OBSCENE MATTR

Sex Offender (37.2%)

18:924(C) FIREARMS LAWS

Medium Risk, IO incls Brandish FA, 34.7% > 18 mos

18:2251-2,2260 OBSCENE MATTR

Sex Offender (51.3%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (70.1%)

OTHER/UNCLASSIFIABLE

Low Risk, IO inc Murder for Hire, STG: Vice Lords (85.5%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (32.7%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (36.3%)

18:2250 FAIL REG AS SEX OFFN

Sex Offender, Detn (98.5%)

21:841 SCH II NONNARC,NONFSA

Low Risk, PV: Asst w Deadly Wpn ('95), 32.3% > 18 mos

21:841 SCH II NONNARC,NONFSA

Medium Risk, <12 mo CC (331x2) (18.7%)

21:846 SEC 841-851 ATTEMPT

Low Risk, PV: Dom Aslt ('99) Aslt('08), 33.7% > 18 mos

21:841 SCH II NARCOTC,NONFSA

Medium Risk, (8.7%)

21:846 SEC 841-851 ATTEMPT

Medium Risk (46.9%) 06/23/28 PRD; Criminal History

21:846 SEC 841-851 ATTEMPT

PV: Murder ('94), Age -66 (13.1%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (88.9%)

OBSCENE MATTER TRANSPORT

Sex Offender (13.8%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (6.1%)

18:1028 FRAUD IDENTITY THEFT

Low Risk, < 12 mo. CC (201), IO incl Threat Comm (67.9%)

18:924(C) FIREARMS LAWS

High Risk, PV: Robbery/Aslt, > 18 mos remain (24.8%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (28.6%)

18:922(G) FIREARMS,CARR CRIM

Sex Offender (15.4%)

21:846 SEC 841-851 ATTEMPT

Age-69 (78.8%); Minimum Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender (87.2%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (66.9%)

21:846 SEC 841-851 ATTEMPT

High Risk (62.0%)

18:924(C) FIREARMS LAWS

Low Risk, STG: Nortenos, PV: AWDW ('05) (40.3%)

21:846 SEC 841-851 ATTEMPT

Medium Risk, STG: Aslt on CO, PV: Aslt ('05), 39.0% > 18 mos

18:1344 BANK FRAUD

High Risk, STG: Fraud (30.1 %)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (28.1%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (89.8%)

21:841 & 846 SEC 841-851

High Risk, <12 mo. CC (312x2), (69.3%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (89.4%)

21:846 SEC 841-851 ATTEMPT

High Risk, <12 mo. CC (112x2, 224,115) (75.4%)

21:846 SEC 841-851 ATTEMPT

Low Risk, <12 mo. CC (108/113), 41.9% > 18 mos.

OBSCENE MATTER TRANSPORT

Sex Offender (55.1%)

18:922(G) FIREARMS,3 PRI CNV

Low Risk, PV: Aggravated Aslt ('95) (6.9%)

SEX OFFENSES

Sex Offender (51.6%)

21:846 SEC 841-851 ATTEMPT

Released to RRC on 4/30/20 (87.3%)

21:841 & 846 SEC 841-851

High Risk, STG: Forgery (85.9%)

21:846 SEC 841-851 ATTEMPT

Medium Risk, 32.6% > 18 mos. ; Prior Robbery

21:841 & 846 SEC 841-851

High Risk, PV: AWDW ('91), Assault ('96,'04) (77.5%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender (67.5%)

21:841 SCH I NARCOTIC,NONFSA

Sex Offender (65.3%)

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

High Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; Prior Violence

NAT'L DEFENSE SEDITION

Terrorist; Alien; Low Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:922(G) FIREARMS,CARR CRIM

Sex Offender; Low Risk

21:841 & 846 SEC 841-851

High Risk' Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Mffender

18:2251-2,2260 OBSCENE MATTR

Sex offender

COMMUNICATIONS ACT

Low Risk; Prior Violence

21:841 SCH I NARCOTIC,NONFSA

Low Risk; 200-Series IR February 2020

18:2251-2,2260 OBSCENE MATTR

Sex Offender

COMMUNICATIONS ACT

Low Risk

COMMUNICATIONS ACT

High Risk; Prior Violence; Sex Offender

DC SEX OFFENSE

Sex Offender

21:841 & 846 SEC 841-851

High Risk; (2) 300-Series IR April/January 2020

21:846 SEC 841-851 ATTEMPT

Medium Risk; 100-Series IR December 2019

67a

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Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 8 of 14. PageID #: 1066

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C

FLAE

FNCM

FOHN

FTXN

FOHN

FARE

FMIE

FARE

FOHN

FMD

FOHN

FOHN

FOHN

FOHN

FMOW

FFLM

FPAW

FSC

FOHN

FOHN

FNCM

FPAW

FVAE

FPAW

FNCM

FNCW

FNCW

FNCW

FLAW

FNCW

FMOE

FDCD

FFLM

FNCM

FPAW

FPAW

FPAW

FWAW

FTXS

FPAW

FMIW

FPAW

FMOE

FPAW

FPAW

FVAE

FRQ

FPAW

FPAW

FPAW

FPAW

FPAW

FTXS

FPAW

FPAW

FPAW

FPAW

FPAW

FPAW

FMD

FPAW

FPAW

FPAW

FPAW

FPAW

FPAW

FILN

FMIE

FPAW

FILN

D

E

F

21:841 SCH II NONNARC,NONFSA

High Risk; 100-Series IR February 2020

21:841 & 846 SEC 841-851

Low Risk; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NONNARC,NONFSA

Low Risk; Alien

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2421-29 I/S TRN IMRL PRPS

Sex Offender

18:924(C) FIREARMS LAWS

18:1951 RACKETEER, VIOLENCE

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:1925(B) RACKETEERING

Low Risk; Violent Crime

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NARCOTC,NONFSA

Low Risk

OBSCENE MATTER TRANSPORT

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:922(G) FIREARMS,CARR CRIM

Medium Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH I NON-NARC,NONFSA

Furloughed to RRC 04-29-2020

21:843 USE FICT,REV,SUSP NBR

Low Risk; Prior Violence

18:1028 FRAUD IDENTITY THEFT

High Risk

21:846 SEC 841-851 ATTEMPT

Low Risk

18:924(C) FIREARMS LAWS

Medium Risk

21:846 SEC 841-851 ATTEMPT

Medium Risk; Prior Violence

21:846 SEC 841-851 ATTEMPT

Low Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:924(C) FIREARMS LAWS

Medium Risk; 100-Series IR June 2019

SEX OFFENSES

Sex Offender

18:1028 FRAUD IDENTITY THEFT

Sex offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:331 NARCOTICS

Medium Risk

18:922(G) FIREARMS,CARR CRIM

High Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:1201 KIDNAPING

Violent Crime

21:841 SCH I NON-NARC,NONFSA

Low Risk; Prior Violence

21:841 SCH I NARCOTIC,NONFSA

Medium Risk

18:1701-3,7,8,12,13 LRCN PST

Medium Risk

21:846 SEC 841-851 ATTEMPT

Medium Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

Low Risk; Prior Violence; 200-Series IR March 2020

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; Prior Violence; 100-series IR February 2020

18:922(G) FIREARMS,CARR CRIM

Medium Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

100-Series IR December 2019

18:924(C) FIREARMS LAWS

Prior Violence

18:2113 ROBBERY BANK

Low Risk; Current Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

8:1327 ALIEN SMUGGLE/IMPORT

Low Risk; Current Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NONNARC,NONFSA

21:841 & 846 SEC 841-851

Medium Risk

18:1344 BANK FRAUD

Low Risk; Prior Violence

21:846 SEC 841-851 ATTEMPT

Medium Risk; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

21:846 SEC 841-851 ATTEMPT

Low Risk; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

High Risk; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; Prior Violence

21:846 SEC 841-851 ATTEMPT

RRC DST on 05-06-2020

21:841 & 846 SEC 841-851

High Risk; Prior Violence and Escape; 100-Series IR November 2019

21:846 SEC 841-851 ATTEMPT

Low Risk; Prior Violence

18:286,371 FRAUD, OTHER

Low Risk; Current and Prior Violence

68a

A 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 9 of 14. PageID #: 1067

B

C

FINN

FMOE

FILN

FCAS

FILN

FILN

FILN

FMOE

FNJ

FMIE

FMIE

FLAW

FMIE

FTNE

FILN

FOHN

FMIE

FTNE

FDCS

FTNE

FMIE

FILN

FMOE

FMIE

FILN

FILN

FMIE

FOHS

FRQ

FCO

FMIE

FMIE

FILN

FILN

FOHS

FMIE

FTNE

FWAW

FNV

FMIE

FILN

FTNE

FILN

FGAN

FTNE

FMIE

FTNE

FMIE

FILN

FMIE

FMIE

FTNE

FMIE

FMIE

FMIE

FILN

FMIE

FTNE

FILN

FKYE

FTNE

FMIE

FTNE

FNIE

FMIE

FMIE

FMIE

FMIE

FILN

FMIE

D

E

F

21:841 SCH II NARCOTC,NONFSA

Low Risk

21:841 SCH II NONNARC,NONFSA

Low Risk; Prior Sex offense

FRAUD POSTAL

581 Victims; 59 Million in loss; 48% 07/11/30 PRD

21:841 SCH II NARCOTC,NONFSA

High Risk

OBSCENE MATTER TRANSPORT

Sex Offender - to be reviewed for RIS

OBSCENE MATTER TRANSPORT

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Medium Risk; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

OBSCENE MATTER TRANSPORT

Sex Offender

21:841 SCH II NARCOTIC

Medium Risk; Prior Violence; Covid+

OBSCENE MATTER TRANSPORT

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; 200-series IR (Escape) January 2020

21:841 & 846 SEC 841-851

Medium Risk; Prior Violence

18:2113 ROBBERY BANK

HC DST on 05-05-2020

21:846 SEC 841-851 ATTEMPT

High Risk; PRD March 20136

DC SEX RAPE

Sex Offender

21:846 SEC 841-851 ATTEMPT

High Risk; PSF Greatest Severity

18:922(G) FIREARMS,CARR CRIM

High Risk

21:841 & 846 SEC 841-851

Placed on HC on 04-24-2020

18:1962 RACKETEER (RICO)

Low Risk; PSF Greatest Severity

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

High Risk

18:2113 ROBBERY BANK

Current and Prior Violence; Low Risk; 100-Series IR November 2019

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:924(C) FIREARMS LAWS

Covid Deny CMA; Current and Prior Violence

46:1903 MARITIME DRUG

RRC DST on 05-06-2020

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Medium Risk; Prior Violence; Sex Offender

18:922(G) FIREARMS,CARR CRIM

High Risk; Prior Violence

18:1344 BANK FRAUD

Low Risk; 300-Series IR March 2020; Prior Violence

COMMUNICATIONS ACT

Low Risk; Escape from SCP July 2015

21:841 & 846 SEC 841-851

Medium Risk; Prior Violence

21:841 SCH I NARCOTIC,NONFSA

High Risk; Prior Violence and Escape; 100-Series IR November 2019

21:841 SCH I NARCOTIC,NONFSA

100-Series IR March 2020; High Risk; Prior Violence; RRC DST on 07-29-2020

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2250 FAIL REG AS SEX OFFN

Sex Offender

21:841 & 846 SEC 841-851

Medium Risk; Prior Violence

18:924(C) FIREARMS LAWS

Medium Risk; Prior Violence

21:846 SEC 841-851 ATTEMPT

High Risk; Prior Violence; 100-Series IR September 2019

21:846 SEC 841-851 ATTEMPT

Covid Deny CMA; Minimum Risk; Greatest Severity Offense

18:2113 ROBBERY BANK

Medium Risk; Current and Prior Violence

18:924(C) FIREARMS LAWS

Low Risk; Prior Violence/ incident report for Threatening; IR in past 12 months

18:922(G) FIREARMS,GUN CNTL

Sex Offender; Covid+

21:846 SEC 841-851 ATTEMPT

Medium Risk:41%

21:841 & 846 SEC 841-851

High Risk

21:841 SCH I NARCOTIC,NONFSA

Low Risk; 100-Series IR December and September 2019

18:1344 BANK FRAUD

High Risk; 300-series IR September 2019

18:922(G) FIREARMS,CARR CRIM

Medium Risk; PRD December 2020; No RRC

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH I NARCOTIC,NONFSA

Low Risk; 67%; 100-Series IR January 2018

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2250 FAIL REG AS SEX OFFN

Sex Offender

21:846 SEC 841-851 ATTEMPT

Medium Risk; Prior Violence; 200-Series IR October 2019

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Medium Risk; DST to LEW SCP; Fighting IR February 2018

21:846 SEC 841-851 ATTEMPT

Minimum Risk; Care 3 Medical; 25%; DST to BUF

18:2113 ROBBERY BANK

Low Risk; Current and Prior Violence

18:2241-2248 SEXUAL ABUSE

Sex Offender

33:1311 DISCHRG POLLUT

Covid Deny CMA; Intimidated a Witness during instant offense; Prior Assault

21:841 & 846 SEC 841-851

Low Risk; Prior Violence; Prior Murder

18:922(G) FIREARMS,CARR CRIM

Medium Risk; Prior Violence; 100-Series IR April 2020

18:924(C) FIREARMS LAWS

Current and Prior Violence; Sex Offender; Low Risk

69a

A 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 10 of 14. PageID #: 1068

B

C

FMIE

FMIE

FMIE

FNCE

FKYE

FMIE

FILN

FILN

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FILN

FILN

FRQ

FTNE

FTNE

FOHN

FILN

FTNE

FILN

FMIE

FTNE

FOHN

FTNE

FTNE

FILN

FILN

FTNE

FTNE

FTNE

FILN

FMD

FMIE

FOHN

FILN

FPAW

FILN

FILN

FWAE

FTNE

FTNE

FTNE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FTNE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

FMIE

D

E

F

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:286,371 FRAUD, OTHER

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NARCOTC,NONFSA

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH I NARCOTIC,NONFSA

Low Risk; 25%

21:846 SEC 841-851 ATTEMPT

Medium Risk; 100-Series IR September 2019

21:846 SEC 841-851 ATTEMPT

Low Risk; 200-Series IR October 2019

18:1962 RACKETEER (RICO)

Low Risk; Current Violence

18:1957 RACKETEERING

Current Violence; 34%

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:922(A) FIREARMS FED ACT

Low Risk; RRC DST in September 2020; 100-Series IR December 2019

18:1925(A) RACKETEERING

Current Violence; 14%

18:924(C) FIREARMS LAWS

Low Risk; Prior Violence; 29%

21:846 SEC 841-851 ATTEMPT

High Risk; 100-Series IR October 2019

18:922(G) FIREARMS,CARR CRIM

Prior Violence; ; Serious Prior Assault; Several Probation Violations

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NARCOTC,NONFSA

Low Risk; 43%; Instant offense involved selling 2,400 pounds of Explosives

21:846 SEC 841-851 ATTEMPT

Covid Deny CMA; Prior Violence

18:2421-29 I/S TRN IMRL PRPS

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; 38%

18:922(G) FIREARMS,CARR CRIM

Covid Deny CMA; Curent Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:922(G) FIREARMS,CARR CRIM

High Risk; Prior Violence

COMMUNICATIONS ACT

High Risk; Prior Violence

18:2421-29 I/S TRN IMRL PRPS

Sex Offender

21:846 SEC 841-851 ATTEMPT

Mediaum Risk; 18%

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:922(G) FIREARMS,CARR CRIM

High Risk; 14%

21:841 & 846 SEC 841-851

High Risk; Prior Violence

18:2421-29 I/S TRN IMRL PRPS

Sex Offender

18:2113 ROBBERY BANK

Covid Deny CMA; Current Violence; 50%; PRD 2036

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

Medium Risk; Prior Violence

18:924(C) FIREARMS LAWS

Low Risk; 21%

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2250 FAIL REG AS SEX OFFN

Sex Offender

21:841 SCH II NONNARC,NONFSA

Low Risk; Prior Violence; 29%

21:841 & 846 SEC 841-851

Low Risk; 100-Series IR January 2020 and September 2019

21:846 SEC 841-851 ATTEMPT

Low Risk; 11%

21:841 & 846 SEC 841-851

Low Risk; Prior Violence; 17%

21:841 SCH I NARCOTIC,NONFSA

High Risk; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NARCOTC,NONFSA

Minimum Risk; 16%

21:846 SEC 841-851 ATTEMPT

100-Series IR January 2020; 25%

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; PSF Greatest Severity; 36%

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; Prior Violence; 300-Series (tobacco) IR February 2020 and December 2019; Detainer

OBSCENE MATTER TRANSPORT

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:1962 RACKETEER (RICO)

300-Series IR September 2019; IR Pending FBI Code 108

18:924(C) FIREARMS LAWS

Low Risk; Prior Violence; 34%

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

18:924(C) FIREARMS LAWS

Current Violence; Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

70a

A 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 11 of 14. PageID #: 1069

B

C

FMIE

FOHN

FMIE

FMIE

FKYE

FNYW

FMIE

FMIE

FMIE

FOHN

FFLM

FOHN

FMIE

FMIE

FMIE

FMIE

FVAE

FMIE

FMIE

FMIE

FMIE

FMIE

FOHN

FMIE

FNCE

FMIE

FOHN

FMIE

FGAN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FTXN

FOHN

FOHN

FOHN

FOHN

FTXW

FOHN

FOHN

FOHN

FOHN

FPAE

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FCAE

FINS

FINN

FOHN

FOHS

FCAC

FTXW

FMD

FOHN

FNCE

FPAE

FMD

FOHN

FOHN

D

E

F

ASSAULT

High Risk; Current Violence; Sex Offender; RRC Date of May 27, 2020

18:922(G) FIREARMS,3 PRI CNV

Low Risk; Prior Violence; Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; 12%

OTHER/UNCLASSIFIABLE

Covid Deny CMA; Current Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:1962 RACKETEER (RICO)

Covid Deny CMA; 29%

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; 52%

18:924(C) FIREARMS LAWS

Medium Risk

18:924(C) FIREARMS LAWS

High Risk; Prior Violence; 23%

21:846 SEC 841-851 ATTEMPT

Medium Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Medium Risk; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

High Risk; Sex Offender; Prior Violence

21:846 SEC 841-851 ATTEMPT

Medium Risk; Prior Violence; 22%

COMMUNICATIONS ACT

Low Risk; 100-series IR December 2019

21:846 SEC 841-851 ATTEMPT

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2421-29 I/S TRN IMRL PRPS

Sex Offender

18:2250 FAIL REG AS SEX OFFN

Sex Offender

21:841 & 846 SEC 841-851

High Risk; Prior Violence; 41%

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2241-2248 SEXUAL ABUSE

Sex Offender

21:841 & 846 SEC 841-851

RRC DST on 05-08-2020

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:922(G) FIREARMS,CARR CRIM

High Risk; PRD May 20, 2020

21:841 SCH II NONNARC,NONFSA

Detainer; Prior Violence; Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender ‐ to be reviewed for RIS

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

Low Risk; Escape History;

21:841 SCH II NONNARC,NONFSA

Medium Risk; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Furloughed to RRC 04-23-2020

21:846 SEC 841-851 ATTEMPT

High Risk; Prior Violence

OTHER/UNCLASSIFIABLE

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

COMMUNICATIONS ACT

Low Risk; Covid+; Detainer State of Ohio

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2113 ROBBERY BANK

Violent Crime; Medium Risk; RRC DST 08-18-2020

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:286,371 FRAUD, OTHER

Covid Deny CMA; 21%; Local Fraud Case with 623 Victims

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Sex Offender; 100-series IR January 2020

21:841 SCH II NARCOTC,NONFSA

Covid Deny CMA; Prior Violence Domestic Assault

18:2119 ROBBERY OF AUTO

RRC on 04-29-2020

21:841 SCH II NARCOTC,NONFSA

Covid Deny CMA; Prior Violence

OBSCENE MATTER TRANSPORT

Sex Offender

21:841 SCH II NONNARC,NONFSA

Low Risk; 22%

18:924(C) FIREARMS LAWS

Medium Risk; Prior Violence

21:846 SEC 841-851 ATTEMPT

Review for Submission

21:846 SEC 841-851 ATTEMPT

Medium Risk; Prior Sex Offense; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; 46%; Covid+; Criminal History and 2 Prior Domestic Violence

71a

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Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 12 of 14. PageID #: 1070

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FMD

FMD

FOHN

FOHS

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FPAE

FOHN

FGAN

FMD

FOHN

FOR

FOHN

FOHN

FOHN

FOHS

FNCE

FOHN

FTXN

FOHN

FFLM

FOHN

FOHN

FOHN

FOHN

FNJ

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FOHN

FFLM

FMIE

FMT

FPAE

FTXS

FOHS

FOHS

FOR

FOHS

FOHS

FNM

FOHS

FOHS

FOHS

FFLM

FOHS

FOHS

FOHS

FPAM

FOHS

FNCE

FNYS

FPAE

D

E

F

21:841 & 846 SEC 841-851

Medium Risk; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

Low Risk; Prior Violence; Detainer; to be reviewed for RIS

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH I NARCOTIC,NONFSA

Low Risk; Prior Violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

Low Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH I NARCOTIC,NONFSA

High Risk; Prior Violence; Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk; 300-Series IR September 2019

21:841 & 846 SEC 841-851

Medium Risk; Prior Violence; 100-Series IR October 2019

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 & 846 SEC 841-851

High Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2113(D) ROBBRY,ASSLT,BANK

Violent Crime

21:841 SCH II NARCOTC,NONFSA

Medium Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NONNARC,NONFSA

Medium Risk; Sex Offender

18:1344 BANK FRAUD

Low Risk; 300-Series IR May 2019

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:841 SCH II NON-NARCOTIC

Died 04-26-2020

18:545 CUSTOMS LAWS SMUGGLNG

21:841 & 846 SEC 841-851

High Risk; Detainer

21:841 & 846 SEC 841-851

Medium Risk: 300-Series (Tobacco) IR December 2019

21:846 SEC 841-851 ATTEMPT

Medium Risk; Prior Violence

18:922(G) FIREARMS,CARR CRIM

Low Risk; Prior Violence

18:922(G) FIREARMS,CARR CRIM

Medium Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

21:846 SEC 841-851 ATTEMPT

Low Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:922(G) FIREARMS,3 PRI CNV

Low Risk; Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:924(C) FIREARMS LAWS

Medium Risk; 100-Series IR February 2020

18:922(G) FIREARMS,CARR CRIM

Low Risk

18:2251-2,2260 OBSCENE MATTR

Sex Offender

18:2251-2,2260 OBSCENE MATTR

Sex Offender

COMMUNICATIONS ACT

Low Risk

18:922(G) FIREARMS,CARR CRIM

High Risk

18:924(C) FIREARMS LAWS

100-Series IR January 2020

21:846 SEC 841-851 ATTEMPT

High Risk; Served 22.8%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 14.2%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 13.6%

21:846 SEC 841-851 ATTEMPT

Low Risk; 100-Series IR June 2019; Served 44.6%; Past Violence - Battery

21:846 SEC 841-851 ATTEMPT

Low Risk; Served 48.2%; Has Detainer with State of Michigan 40 Sentence for Assault

OBSCENE MATTER TRANSPORT

Sex Offender; Served 42%

18:924(C) FIREARMS LAWS

Low Risk; 100-Series IR February 2020; Served 89.4%

COMMUNICATIONS ACT

Is being reviewed for a compassionate release; trying to develop a release plan

SEX ILLEGAL COHABIT

Sex Offender; Served 94.5%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 77.8%

18:1112-3 HOMICIDE MANSLGHTR

Sex Offender; Violent Crime; Served 57.2%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 75%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 37.1%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 58%

OBSCENE MATTER TRANSPORT

Sex Offender; Served 97.7%

21:846 SEC 841-851 ATTEMPT

Medium Risk; Served 39.8%; Past History of violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 80.5%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 25.1%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 64.7%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 96.8%

21:841(E) DRUGS

Medium Risk; Served 87.6%; Prior Assault with a Dangerous Weapon

OBSCENE MATTER TRANSPORT

Sex Offender; Served 86.9%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 57.9%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 79.1%

21:846 SEC 841-851 ATTEMPT

Low Risk; Served 93.3%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 46.1%

72a

A 771 772 773 774 775 776 777 778 779 780 781 782 783 784 785 786 787 788 789 790 791 792 793 794 795 796 797 798 799 800 801 802 803 804 805 806 807 808 809 810 811 812 813 814 815 816 817 818 819 820 821 822 823 824 825 826 827 828 829 830 831 832 833 834 835 836 837 838 839 840 N = 837

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 13 of 14. PageID #: 1071

B

C

FPAM

FPAE

FFLM

FOHS

FTXW

FPAE

FNJ

FVAE

FOHS

FOHS

FOHS

FOHS

FOR

FPAM

FTXS

FOR

FPAM

FPAE

FOHS

FPAM

FOHS

FOHS

FOHS

FNCW

FOHS

FOHS

FNYE

FINN

FPAE

FOHS

FOHS

FOHS

FOHS

FOHS

FWVS

FOHS

FOHS

FNYS

FOHS

FOHS

FOHS

FOHS

FOHS

FNYS

FOHS

FOHS

FNYE

FPAW

FVAE

FVAE

FNYS

FNYS

FAZ

FAZ

FNYS

FMIE

FVAE

FNYE

FNYS

FNYS

FVAE

FNM

FVAE

FSC

FVAE

FFLS

FPAE

FSC

FTXN

D

E

F

21:841 & 846 SEC 841-851

High Risk; Served 61.3%

18:286,371 FRAUD, OTHER

Low Risk; (4) 300-Series IR October - December 2019

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 9%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 66.5%

21:841 SCH II NONNARC,NONFSA

Low Risk; 100-Series IR February 2020; Served 38.6%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 30.6%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 28%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 15.6%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 69.7%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 70.1%

18:1956 RACKETEERING

Low Risk; Served 59.8%; Prior violence

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 16.6%

18:2421-29 I/S TRN IMRL PRPS

Sex Offender; served 82.7%

21:841 & 846 SEC 841-851

High Risk: 100-Series IR October 2019; Served 33.9%

18:924(C) FIREARMS LAWS

Committed 6 separate Armed Robberies; Served 89.7%

18:2421-29 I/S TRN IMRL PRPS

Sex Offender; Served 20.2%

21:846 SEC 841-851 ATTEMPT

Sex Offender; Served 68.8%

OBSCENE MATTER TRANSPORT

Sex Offender; Served 27%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 70.5%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 53.4%

21:846 SEC 841-851 ATTEMPT

Medium Risk; Served 57.8%; Past Violence; Robbery; Kidnapping; Assault

18:922(G) FIREARMS,CARR CRIM

High Risk; Releases 5/11/20; Served 100%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 30.3%

21:841 SCH II NONNARC,NONFSA

Medium Risk; Served 52.2%; Prior Simple Assault (org was Sexual Battery)

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 42%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 30.2%

18:1962 RACKETEER (RICO)

Conspiracy to Murder and Assault; Pagans Motorcycle Gang; Served 70.3%

18:1962 RACKETEER (RICO)

Medium Risk; Served 40.6%; Latin King Gang; Supplied Drugs and Weapons to gang

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 38.7%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 37.5%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 15.4%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 37.4%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 19.5%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 36.4%

21:846 SEC 841-851 ATTEMPT

High Risk; Served 34.7%; incident report in past year

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 71.3%

18:922(G) FIREARMS,CARR CRIM

Medium Risk; Prior Attempted Felonious Assault; Served 60.3%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 39.3%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 17.7%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 18.1%

18:1591 SEX TRAFFICK CHILD

Sex Offender; Served 7%

18:922(G) FIREARMS,CARR CRIM

Low Risk; Prior Manlaughter; Served 19.2%

18:924(C) FIREARMS LAWS

Low Risk; 53.8% served; Several violent priors; Domestic Violence and Robbery

21:841 & 846 SEC 841-851

Medium Risk; discpline in past 12 months - cell phone and assault; Served 42.4%

18:1028 FRAUD IDENTITY THEFT

Low Risk; Prior Domestic Violence; Served 37.2%

18:1344 BANK FRAUD

High Risk; Served 6.6%; Prior Robbery

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 65%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 27.2%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 95.3%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 82.1%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 37.8%

COMMUNICATIONS ACT

High Risk; Served 16.4%; 2 100 series incident reports in past 12 months

OBSCENE MATTER TRANSPORT

Sex Offender; Served 75.7%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 34.6%

OBSCENE MATTER TRANSPORT

Sex Offender; Served 89.8%

21:841 SCH I NON-NARC,NONFSA

Medium Risk; Served 82.7%

18:924(C) FIREARMS LAWS

Medium Risk; Served 63%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 28.4%

21:846 SEC 841-851 ATTEMPT

Medium Risk; Served 68.8%; 3 incident report in past 12 months

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 22%

21:846 SEC 841-851 ATTEMPT

High Risk; Served 16.8%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 13.4%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; served 71.6%

21:841 & 846 SEC 841-851

High Risk; 43.6%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 9.3%

18:2251-2,2260 OBSCENE MATTR

Sex Offender; Served 56.1%

18:286,371 FRAUD, OTHER

(2) 300-Series IR February 2020/September 2019; Served 55%

21:846 SEC 841-851 ATTEMPT

Served 48.5%; Wanted Person Full Extradition to GA

OBSCENE MATTER TRANSPORT

Sex Offender; Served 76.2%

73a

Case: 4:20-cv-00794-JG Doc #: 78-1 Filed: 05/14/20 14 of 14. PageID #: 1072

A

B

C

D

E

F

841

Color Key:

842

SUBMITTED CASES

843

PREVIOUSLY PENDING FURTHER REVIEW

844

I/M Released

845

REVIEWING FOR RIS

846

LATER DETERMINED INELIGIBLE

74a

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 1 of 25. PageID #: 1073
Exhibit B
75a

A 1 Register Number 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 2 of 25. PageID #: 1074

B
Name

C
Court of FMIE FIAN FRQ FINN FOHN FDCD FINS FILN FMN FMIW FTXN FMIW FGAM FOHN FPAE FVAW FMOE FOKN FILS FMIE FWVN FMN FILS FKYE FALS FMIW FVAE FTNE FNCM FMD FNYN FNJ FOHS FNCW FFLN

D
Docket Number

E
RIS Request Made

F
Decision

Yes

Denied

No

No

No

Yes

Denied

No

No

No

No

No

No

No

No

No

Yes

Denied

No

No

Yes

Denied

No

No

Yes

Denied

Yes

Denied

Yes

Denied

No

No

No

Yes

Denied

No

Yes

Denied

No

No

No

No

No

No

G
Denial Reason Does not meet medical criteria
Does not meet medical criteria
Does not meet medical criteria Does not meet medical criteria Does not meet medical criteria Does not meet medical criteria Does not meet medical criteria
Does not meet medical criteria Does not meet medical criteria

76a

A 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 3 of 25. PageID #: 1075

B

C

FVAW

FINS

FNYW

FKYW

FWVN

FNYW

FWVN

FPAW

FOHN

FND

FINS

FOHN

FKYE

FINS

FMIE

FMIE

FMIE

FPAE

FNCM

FOHN

FMIE

FILS

FNYE

FMIE

FINS

FKYW

FPAM

FTXN

FWVS

FOHN

FPAW

FMIE

FWVS

FILC

FMIE

FLAW

D

E

F

G

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

No

No

Being Considered Pending further review

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

77a

A 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 4 of 25. PageID #: 1076

B

C

FMIE

FOHS

MAR

FMIE

FVAW

FILC

FMT

FFLS

FWVN

FILC

FPAW

FPAM

FIAS

FKYE

FILN

FMIW

FARE

FNCM

FILS

FIAN

FVAW

FKYW

FDCS

FPAW

FGAN

FOHN

FPAW

FNYS

FPAW

FOHN

FOHN

FILN

FMIW

FINN

FILN

FOHN

D

E

F

G

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

COVID-19 only

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

COVID-19 only

Yes

Denied

Does not meet medical criteria

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

78a

A 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 5 of 25. PageID #: 1077

B

C

FMOE

FALS

FGAN

FPAW

FNJ

FTNE

FILS

FOHN

FNYW

FWIE

FILS

FILN

FINN

FMIE

FPAW

FIAS

FPAW

FILN

FMOW

FMN

FARE

FINS

FOHN

FND

FTXS

FOR

FAZ

FWVN

FPAE

FILS

FNCW

FPAW

FNCM

FNYE

FMN

FMIE

D

E

F

G

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

COVID-19 only

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

79a

A 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 6 of 25. PageID #: 1078

B

C

FOHN

FINN

FOHN

FMIW

FFLM

FMOE

FILN

FIAS

FOHS

FWVS

FINS

FMIE

FOHN

FINS

FOHN

FILN

FNJ

FLAE

FINN

FVAW

FGAN

FILC

FOHS

FOHN

FVAW

FOHS

FINS

FINN

FIAS

FMOW

FMIW

FWIE

FKYW

FMIE

FRQ

FMD

D

E

F

G

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

Denied

Does not meet medical criteria

No

No

80a

A 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 7 of 25. PageID #: 1079

B

C

FINS

FWY

FOHN

FOHN

FOHS

FTNE

FMIE

FMIE

FOHS

FMIW

FMIE

FVAE

FKYE

FMOE

FMD

FMIE

FNYN

FILC

FSC

FMD

FOHN

FDCS

FILC

FNYN

FVAW

FINS

FKYE

FOHS

FVAE

FOHS

FINS

FOHN

FOHN

FMN

FNYS

FND

D

E

F

G

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

81a

A 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 8 of 25. PageID #: 1080

B

C

FKYE

FNCM

FWVN

FIAS

FOHN

FOHN

FPAE

FKYE

FMN

FWAE

FILC

FTNE

FKYE

FDE

FMD

FOHN

FWIE

FKYE

FMD

FOHN

FNCE

FOHN

FOHN

FNCM

FOHN

FPAE

FMD

FTNE

FAZ

FOHN

FSC

FKYE

FNCM

FMIE

FTXE

FCAS

D

E

F

G

No

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

82a

A 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 9 of 25. PageID #: 1081

B

C

FMN

FCAS

FILN

FFLM

FWVN

FILN

FTXW

FNM

FOHN

FOHN

FMIE

FWIE

FKYE

FTNE

FILN

FWAW

FWVS

FKYE

FMIW

FNYW

FTNE

FPAE

FCAN

FOHN

FOHS

FNYS

FMIE

FWVS

FTNE

FMIE

FPAW

FDCD

FKYE

FKYE

FILN

FOHN

D

E

F

G

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

Being Considered Dependant on family responsibility

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

COVID-19 only

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

83a

A 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 10 of 25. PageID #: 1082

B

C

FDCS

FPAW

FMIW

FALN

FILN

FILC

FTNE

FIAS

FOHN

FNYW

FMIW

FILN

FWVN

FKYE

FKYW

FILC

FMN

FMIE

FOHN

FNCM

FOHS

FTXS

FOHS

FINN

FMIE

FOHN

FTXS

FNYE

FILN

FTNE

FINN

FKYE

FMIE

FWIE

FMIW

FMIW

D

E

F

G

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Being Considered Working on release plan

No

No

No

No

No

No

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

84a

A 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 11 of 25. PageID #: 1083

B

C

FSC

FPAE

FMIE

FMIE

FCAC

FINS

FMN

FKYE

FIAS

FWIW

FINS

FMOW

FMIE

FTNE

FOHN

FNYW

FTNM

FWVS

FMD

FSC

FNCM

FNYN

FOHN

FALS

FTNE

FOHN

FVAE

FIAS

FPAM

FPAM

FINN

FKYW

FINS

FMIE

FMSS

FKYE

D

E

F

G

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

No

No

Being Considered Pending further review

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

No

No

No

85a

A 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 12 of 25. PageID #: 1084

B

C

FTNE

FPAE

FVAE

FMA

FCAE

FOHN

FILC

FOHN

FMIW

FILC

FPAW

FMIE

FMIE

FPAW

FINS

FIAN

FINN

FKYE

FMIE

FOHN

FOHS

FILS

FILN

FVAW

FLAW

FMIE

FLAW

FVAE

FPAM

FKYE

FILC

FTNM

FNCW

FPAW

FPAW

FMIE

D

E

F

G

Yes

Denied

Does not meet medical criteria

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

COVID-19 only

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

COVID-19 only

No

No

No

No

86a

A 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 13 of 25. PageID #: 1085

B

C

FMIE

FINN

FKYE

FCT

FOHN

FILN

FMIE

FWAW

FILN

FWIE

FOHN

FILS

FLAW

FMIE

FPAW

FWVS

FOHS

FMOW

FWVN

FOHS

FMIW

FMIE

FNYW

FMOE

FFLS

FND

FINS

FWIE

FNCW

FWVN

FMIE

FOHN

FINS

FCO

FPAW

FFLS

D

E

F

G

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

COVID-19 only

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

No

87a

A 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 14 of 25. PageID #: 1086

B

C

FTXW

FWVS

FNYW

FMIE

FOHS

FFLN

FTNE

FOHS

FFLN

FMN

FOHS

FWVN

FKYE

FNCE

FOR

FPAM

FNYS

FPAW

FINS

FFLM

FMIE

FMIW

FNCW

FILN

FWVS

FMIW

FOHN

FOHN

FTNE

FOHS

FWAW

FWIE

FMIW

FOHN

FOHN

FNCW

D

E

F

G

No

No

Yes

Denied

Does not meet medical criteria

No

No

Being Considered Working on release plan

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

88a

A 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 15 of 25. PageID #: 1087

B

C

FWIE

FPAW

FOHS

FND

FIAN

FPAE

FINS

FOHN

FTNE

FTNE

FTXN

FTXW

FOHN

FTXS

FMSN

FKYE

FIAN

FPAW

FNYW

FDE

FOHN

FMIE

FMIE

FFLN

FSC

FILN

FILN

FOHN

FMIW

FILC

FMIE

FOHN

FMIW

FOHN

FMIE

FKYE

D

E

F

G

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

COVID-19 only

Yes

Denied

Does not meet medical criteria

No

No

89a

A 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 16 of 25. PageID #: 1088

B

C

FMIW

FTXN

FILN

FOHN

FPAW

FTNE

FMIW

FKYE

FOHN

FOHS

FMIE

FVAE

FWIW

FMIE

FILN

FWVN

FMOW

FINN

FNYW

FWVS

FMIE

FMIE

FINS

FIAS

FILN

FMIW

FMIW

FMIE

FOHS

FPAW

FOHS

FNM

FWVS

FOHN

FNYS

FOHN

D

E

F

G

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

COVID-19 only

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

90a

A 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 17 of 25. PageID #: 1089

B

C

FOHN

FWVN

FNYW

FTNM

FNYS

FILN

FOHS

FMOE

FMN

FOHN

FOHN

FRQ

FILN

FNYW

FPAW

FMD

FNCE

FINN

FMIE

FILN

FWVS

FWVN

FOHN

FNIE

FNV

FMIW

FINS

FINN

FOHS

FVAE

FMT

FPAW

FMIE

FINN

FPAW

FKYE

D

E

F

G

No

No

Being Considered Pending further review

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

COVID-19 only

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

91a

A 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 18 of 25. PageID #: 1090

B

C

FNCM

FOHS

FMIW

FFLM

FWVS

FMD

FFLS

FOHS

FMN

FMIE

FILN

FIAN

FMIW

FVAW

FMD

FNCM

FKYW

FILN

FINN

FINN

FMIW

FMIW

FWIE

FOHN

FNYW

FINN

FMIW

FIAN

FOHS

FPAE

FKYE

FPAW

FMIE

FTNW

FOHN

FNYW

D

E

F

G

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Being Considered Working on release plan

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

92a

A 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 19 of 25. PageID #: 1091

B

C

FWAE

FCT

FVAW

FPAW

FVAW

FMIE

FWVS

FILN

FNCE

FTNE

FILN

FKYE

FNYS

FMOW

FMIE

FNCW

FTXS

FINS

FILN

FWVN

FOHS

FMIE

FND

FOHS

FOHN

FVAE

FILC

FSC

FILC

FWIE

FMIE

FME

FMIE

FNYS

FMIE

FNYW

D

E

F

G

No

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

COVID-19 only

No

No

No

No

No

No

93a

A 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 20 of 25. PageID #: 1092

B

C

FOHN

FWIW

FOHN

FMIE

FOHS

FND

FNYW

FVAE

FILN

FOHN

FFLM

FFLN

FMIW

FMIE

FDCD

FSC

FMIW

FGAS

FOHS

FRI

FMIE

FNCE

FMOW

FWVN

FTNE

FOHN

FMIE

FTNE

FOHN

FILC

FINS

FWVN

FILS

FKYE

FOHN

FFLN

D

E

F

G

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

94a

A 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 21 of 25. PageID #: 1093

B

C

FLAE

FILS

FILC

FKYE

FINS

FKYE

FVAW

FMD

FNCW

FPAW

FMIE

FMIE

FMIE

FMIE

FMIE

FOHN

FMIE

FKYE

FMIE

FMN

FMN

FIAS

FOHS

FOHN

FOHS

FVAE

FWVN

FKYE

FNCE

FMIW

FMIE

FOHN

FMIW

FWVS

FILC

FWVN

D

E

F

G

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

No

No

No

No

No

No

No

No

No

No

95a

A 721 722 723 724 725 726 727 728 729 730 731 732 733 734 735 736 737 738 739 740 741 742 743 744 745 746 747 748 749 750 751 752 753 754 755 756

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 22 of 25. PageID #: 1094

B

C

FWIW

FWVN

FOHS

FOHN

FIAS

FNYS

FMIE

FFLM

FKYE

FKYE

FFLM

FNYN

FINS

FNCM

FINN

FOHS

FOHS

FTXW

FDCS

FWIW

FPAW

FINN

FINN

FPAW

FMIE

FMIE

FOHN

FWIE

FMIE

FMIE

FMIE

FOHS

FKYE

FMIE

FNM

FMIW

D

E

F

G

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

96a

A 757 758 759 760 761 762 763 764 765 766 767 768 769 770 771 772 773 774 775 776 777 778 779 780 781 782 783 784 785 786 787 788 789 790 791 792

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 23 of 25. PageID #: 1095

B

C

FIAS

FTNE

FRQ

FMIW

FOHN

FOHN

FVAW

FND

FTNE

FILC

FMIE

FMIW

FILN

FMIE

FNJ

FIAN

FKYE

FMA

FILN

FOHS

FIAS

FILS

FINS

FVAW

FOHS

FMIE

FNCM

FOHN

FKYE

FMT

FMIE

FMN

FKYE

FOR

FTNE

FWVS

D

E

F

G

No

No

Yes

Denied

COVID-19 only

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

No

97a

A 793 794 795 796 797 798 799 800 801 802 803 804 805 806 807 808 809 810 811 812 813 814 815 816 817 818 819 820 821 822 823 824 825 826 827 828

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 24 of 25. PageID #: 1096

B

C

FNYN

FMD

FOHS

FMIE

FMIE

FILS

FINS

FMN

FWVS

FKYW

FILN

FPAW

FTNE

FILN

FOHN

FOHS

FOR

FINN

FOHN

FPAW

FILN

FNYS

FMN

FIAN

FPAM

FAK

FKS

FPAW

FTNE

FPAW

FMOW

FWVS

FNYN

FMIE

FRI

FNCW

D

E

F

G

Yes

Denied

COVID-19 only

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

No

Yes

Denied

Does not meet medical criteria

No

No

Yes

Denied

Does not meet medical criteria

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

98a

A 829 830 831 832 833 834 835 836 837 838

Case: 4:20-cv-00794-JG Doc #: 78-2 Filed: 05/14/20 25 of 25. PageID #: 1097

B

C

FMIW

FALM

FFLM

FOHN

FOHN

FMIE

FILN

FINS

FFLN

FDE

D

E

F

G

No

No

No

Yes

Denied

Does not meet medical criteria

No

Yes

Denied

Does not meet medical criteria

No

No

No

No

99a

 
 No. 19A1041 ________________________________________________________________ ________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES _______________
MARK WILLIAMS, WARDEN, ET AL., APPLICANTS v.
CRAIG WILSON, ET AL. _______________
REPLY IN SUPPORT OF APPLICATION FOR A STAY _______________
NOEL J. FRANCISCO Solicitor General Counsel of Record Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217
________________________________________________________________ ________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES _______________
No. 19A1041 MARK WILLIAMS, WARDEN, ET AL., APPLICANTS
v. CRAIG WILSON, ET AL.
_______________
REPLY IN SUPPORT OF APPLICATION FOR A STAY _______________
Since the outset of the national emergency created by the COVID-19 pandemic, the Federal Bureau of Prisons (BOP) has worked tirelessly to protect inmates and staff from the threat posed by the novel coronavirus, while also preserving the safety of the public as a whole. To accomplish those goals, BOP has brought all of its resources to bear to implement a systemic pandemic response that it developed with a team of internal and external subjectmatter experts, and in accordance with the guidance of the Centers for Disease Control and Prevention (CDC) and other expert health authorities. But now, at FCI Elkton, in the midst of the pandemic and BOP efforts to respond, BOP has been forced to turn its efforts to removing more than 800 inmates from that facility through an elaborate set of procedural steps imposed by the district court, all ultimately resulting in the transfer of subclass members to other placements. The resulting disruption at Elkton and in broader prison administration demonstrates that the court has

2

become improperly and deeply “‘enmeshed in the minutiae of prison

operations’” at Elkton without any legal justification for that

involvement. Farmer v. Brennan, 511 U.S. 825, 846-847 (1994)

(citation omitted).

Respondents assert that BOP has violated the Eighth Amendment

by housing prisoners in low-security dormitory-style units at

Elkton because those structures “limit the ability of [respon-

dents] to maintain adequate distance from each other.” Resp. Opp.

to Appl. for Stay (Opp.) 38. And they contend that the only way

to remedy the constitutional violation for subclass members is to

remove them from Elkton. Opp. 34 (alleging that, because “no set

of conditions at Elkton would be constitutionally sufficient,” the

only viable relief is “expedited release” from Elkton) (citation

omitted). If that theory were accepted, it would mean that every

prisoner who, like the members of the subclass in this case, is in

a dormitory-style detention facility in which there are confirmed

cases of COVID-19 has a constitutional right to be removed from

that facility (or at least to have some of his fellow inmates

removed). That plainly is not the law.

Nor is that the only legal deficiency in respondents’ suit.

They protest that their claim is properly brought in habeas because

it is a challenge to the “fact or duration” of their confinement,

but they conspicuously ignore that their own habeas petition

brought only a single claim for “unconstitutional conditions of

confinement.”

Stay Appl. App. (Stay App.) 17a-18a, 87a

(capitalization and emphasis omitted). They also contend that

(Opp. 32), regardless of the nature of their claim, their suit

3 must be cognizable in habeas because “the only relief available is a form of release,” but the “release” they request (a potentially temporary transfer to an alternative placement) looks nothing like traditional habeas relief.
Moreover, because respondents cannot reasonably characterize their challenge as anything but an action “with respect to prison conditions,” 18 U.S.C. 3626(g)(2), they cannot avoid the application of the Prison Litigation Reform Act of 1995 (PLRA), Pub. L. No. 104-134, § 101, Tit. VIII, 110 Stat. 1321-66. That is fatal to their claims because the preliminary injunction indisputably violates the PLRA’s restrictions on “prisoner release orders,” which the stay opposition does not even mention.
Respondents allege that, regardless of the legal shortcomings, there is no need for this Court to grant a stay because the government “will not be harmed if a stay is denied.” Opp. 45 (capitalization and emphasis omitted). That contention is meritless. The government is currently being forced to divert its focus and turn its resources to complying with a series of increasingly onerous and exacting orders that are contrary to CDC guidance, and which the district court lacked authority or expertise to issue. Those orders require BOP to transfer inmates from Elkton to other placements or ultimately to other facilities that are inconsistent with BOP’s placement designations for them. Those measures usurp BOP’s expertise and statutorily conferred authority to designate an inmate’s place of confinement, and they inflict harms on both inmates and the public. See pp. 17-19, infra.

4
As the Fifth Circuit recently explained in addressing the harms in an analogous suit against a state detention facility, misconceived district court orders designed to mitigate the effects of the pandemic do the opposite by imposing “intrusive” burdens “‘in terms of time, expense, and administrative red tape,’” and by “interfer[ing] with [officials’] rapidly changing and flexible system-wide approach” to the COVID-19 emergency. Valentine v. Collier, 956 F.3d 797, 803 (2020) (per curiam) (citation omitted).
Finally, respondents complain (Opp. 4, 25) that the government did not seek relief as soon as the district court issued its initial order, and that the government should not have sought relief from this Court without seeking a stay in the lower courts of the May 19 enforcement order. Neither contention is sound.
The government is currently facing numerous suits challenging conditions of confinement in federal prisons across the Nation. It has prevailed in many, and -- in the rare instance where temporary relief was granted -- it has consistently attempted to address the harms to its operations without needing to pursue relief from this Court.1 In this case, too, the government did
1 See, e.g., Jones v. Bergami, No. EP-20-cv-132, 2020 WL 2575566 (W.D. Tex. May 21, 2020) (dismissing suit brought by inmates at BOP’s La Tuna Federal Correctional Institution); Baez v. Moniz, No. 20-cv-10753, 2020 WL 2527865 (D. Mass. May 18, 2020) (denying motion to dismiss, as well as inmates’ request for preliminary injunctive relief, for habeas petition brought by inmates at the Plymouth County Correctional Facility); MartinezBrooks v. Easter, No. 3:20-cv-569, 2020 WL 2405350 (D. Conn. May 12, 2020) (granting a temporary restraining order to inmates at Danbury Federal Correctional Institution, requiring BOP to

5
not immediately seek a stay from this Court after the April 22
order because it first attempted to obtain relief from the district
court itself and from the Sixth Circuit, by requesting a stay, by
seeking expedited briefing on appeal, by informing the district
court of the numerous impediments to enforcement of its injunction,
and finally by waiting to determine what the district court’s
response would be to respondents’ motion to enforce the injunction,
in light of those impediments and changing circumstances. When
the court then entered its May 19 order enforcing the injunction
-- by imposing ever more demanding conditions requiring
reassessment of every class member under the court’s standards for
home confinement, and individualized justifications for every
denial of a reevaluation for compassionate release and inability
to transfer –- the government sought a stay of the injunction in
this Court the next day.
accelerate its evaluation of inmates’ eligibility for home confinement); Grinis v. Spaulding, No. 20-cv-10738, 2020 WL 2300313 (D. Mass. May 8, 2020) (denying preliminary injunctive relief for habeas petition brought by inmates at the BOP’s Federal Medical Center Devens); Livas v. Myers, No. 2:20-cv-422, 2020 WL 1939583 (W.D. La. Apr. 22, 2020) (dismissing habeas petition brought by inmates at BOP’s Oakdale Federal Correctional Institution); Furando v. Ortiz, No. 20-cv-3739, 2020 WL 1922357 (D.N.J. Apr. 21, 2020) (dismissing habeas petition challenging conditions at BOP’s Fort Dix correctional facility); Nellson v. Barnhart, No. 20-cv-756, 2020 WL 1890670 (D. Colo. Apr. 16, 2020) (denying a temporary restraining order to inmates at United States Penitentiary in Florence, Colorado); Chunn v. Edge, No. 20-cv1590, 2020 WL 1872523 (E.D.N.Y. Apr. 15, 2020) (denying temporary restraining order in challenge to conditions at BOP’s Metropolitan Detention Center).

6 Contrary to respondents’ protestations, the government was not required to first seek a stay of the May 19 enforcement order in the lower courts. To be sure, that order does vividly underscore and intensify the degree of judicial intrusion into prison operations and the resulting disruptions and harms resulting from the injunction. But the government seeks a stay of the April 22 injunction, and its legal and factual arguments in the stay application centered on that order. Staying it will indeed necessarily deprive the court’s additional order enforcing the injunction of its operative effect, but that does not mean that the government was required to separately seek relief with respect to that order. See Nken v. Holder, 556 U.S. 418, 428-429 (2009) (noting that a stay “suspend[s] the source of authority to act” by “‘suspend[ing] judicial alteration of the status quo’”) (citation omitted).
I. THERE IS A REASONABLE PROBABILITY THIS COURT WOULD GRANT CERTIORARI AND VACATE THE INJUNCTION Respondents assert that this Court would be unlikely to grant
certiorari because the suit does not implicate any conflict in the circuits. Opp. 26. That is incorrect. As the stay application explained, the suit implicates two disagreements in the circuits. Stay Appl. 20-23. But even if it did not, this Court would still likely grant certiorari because a district court order that requires the government to remove more than 800 prisoners from a facility and transfer many to various other facilities unsuitable for their placement -- all in the midst of a pandemic -undoubtedly raises issues of fundamental importance that merit

7 this Court’s review. And the Court is likely to vacate that order because it conflicts with the precedents of this Court, the statutory requirements of the PLRA, and the requirements of the Eighth Amendment.
A. 1. There is a well-established division in the circuits regarding whether prisoners may bring conditions of confinement challenges through habeas. Stay Appl. 20-21. Respondents assert that the split is not implicated because this suit is properly deemed a challenge to the “fact * * * of [their] confinement,” a form of claim that all circuits agree may proceed through habeas. Opp. 27. But respondents themselves characterized their claim as a challenge to their “unconstitutional conditions of confinement” in their habeas petition, Stay App. 87a, and that is precisely what it is: They allege that they are subject to unconstitutional conditions at Elkton because they cannot maintain social distancing. See, e.g., Opp. 34, 38.
Respondents nonetheless protest that their suit must be a “fact or duration” challenge because they seek a “form of release,” which is a traditional kind of habeas relief. Opp. 32. But elsewhere in their own brief, respondents acknowledge that they are not seeking release, and that they are merely seeking to “enlarge[]” the “conditions of their confinement.” Opp. 46 (quoting Stay App. 27a). In fact, their petition requests “release” but defines that only as discharge “from the physical confines of Elkton,” including through transfers to another facility and mechanisms that would allow for their return to Elkton once the threat of the virus abates. Stay App. 54a n.2. That is

8 not a form of relief cognizable in habeas; this court has explained that habeas relief inevitably involves “terminat[ing] custody, accelerat[ing] the future date of release from custody, [or] reduc[ing] the level of custody,” Skinner v. Switzer, 562 U.S. 521, 534 (2011) (quoting Wilkinson v. Dotson, 544 U.S. 74, 86 (2005) (Scalia, J., concurring)). The Great Writ vindicates a prisoner’s right to freedom from custody, not his request for one prison rather than another.
Respondents also assert that the government “overstates” the split regarding whether challenges to conditions of confinement are cognizable in habeas because only the D.C. Circuit has held that they are. Opp. 29. But, even if true, that makes it all the more likely the Court would grant certiorari. In this case, the court allowed a conditions-of-confinement suit to proceed in habeas, despite the great weight of precedent to the contrary.
2. Respondents contend (Opp. 30-31) that there is no conflict with respect to the viability of Eighth Amendment claims against detention facilities in the face of the COVID-19 pandemic because the government has pointed exclusively to decisions in the stay posture. That, however, is because the COVID-19 pandemic is an extremely recent phenomenon. The fact that multiple courts have already addressed it, even through stay opinions, is therefore further evidence of the importance of the questions presented. And the stay orders of the Fifth and Eleventh Circuits rejected judicial intrusions into prison administration in connection with COVID-19 that did not remotely resemble the injunction in this case, which requires the transfer of more than 800 inmates under

9 minutely fashioned procedural requirements to be applied to every inmate in the class. As respondents concede, in both the Fifth and Eleventh Circuit cases, the district courts had imposed requirements like “clean[ing] the facility,” or providing prisoners with “face masks.” Opp. 31-32 (citing Valentine v. Collier, 956 F.3d 797, 799-800 (2020) (per curiam), and Swain v. Junior, No. 20-11622, 2020 WL 2161317, at *2-*3 (11th Cir. May 5, 2020) (per curiam)). BOP already meets those requirements at Elkton, see Stay App. 103a ¶¶ 46-50, but the district court nonetheless determined that BOP had violated the Eighth Amendment such that more than 800 prisoners must be removed from Elkton. The Sixth Circuit’s refusal to stay that remedy is in sharp contrast to the relief issued by its sister circuits. See also Roman v. Wolf, No. 20-55436, 2020 WL 2188048 (9th Cir. May 5, 2020) (unpublished).
B. Respondents further assert that they are likely to succeed on the merits, but that is plainly mistaken.
1. As noted, respondents’ suit is properly characterized (sometimes by respondents themselves, Stay App. 87a) as a challenge to the conditions of their confinement. Those challenges are not cognizable in habeas, and the suit should have been dismissed for that reason alone. See Muhammad v. Close, 540 U.S. 749, 754–755 (2004) (per curiam) (A prisoner who is not “seeking a judgment at odds with his conviction or with the State’s calculation of time to be served” is not raising a claim “on which habeas relief could [be] granted on any recognized theory.”); see also Nelson v. Campbell, 541 U.S. 637, 643 (2004) (describing different

10 categories of actions that may be brought through 1983 claims as opposed to habeas).
In any event, even if such habeas challenges were permitted, they would be governed by the PLRA because they fit squarely within that statute’s definition of a “civil action with respect to prison conditions.” See Stay App. 24 (quoting 18 U.S.C. 3626(g)(2)). Respondents’ primary argument to the contrary is premised chiefly on the observation that the statute exempts habeas challenges to “the fact or duration of confinement in prison.” Opp. 36 (quoting 18 U.S.C. 3626(g)(2)). But this suit does not match that description, see pp. 7-8, supra, and because the PLRA applies, the court’s injunctive relief is improper. Indeed, respondents do not even address the fact that the district court’s injunction qualifies as a “prisoner release order,” and therefore violates the extensive requirements -- such as the need for a three-judge court -- that the PLRA imposes as prerequisites to such relief.
Respondents do briefly assert (Opp. 36) that the injunction could satisfy the requirements that the PLRA imposes for lesser injunctions, such as narrow tailoring. They do not, however, suggest that the court actually made the findings the PLRA requires, a failure that the Act mandates should lead to the “immediate termination” of the order. 18 U.S.C. 3626(b)(2). And their narrow tailoring argument rests primarily on the observation that the district court gave them less than the full relief they requested because it declined to grant relief to a larger class of all Elkton inmates. But that scarcely turns a dramatic order

11 requiring BOP to remove more than 800 inmates into an appropriately limited form of injunctive relief.
2. Further, there is no legal basis for issuing relief of any kind in this suit. Respondents fail to address (Opp. 37-43) the fundamental defects in their Eighth Amendment claim. They cannot satisfy the objective requirement for a valid claim, much less the subjective one. See Stay Appl. 29-35.
First, respondents cannot show that, objectively, the risk posed by COVID-19 after BOP’s mitigation efforts has denied them “the minimal civilized measure of life’s necessities,” Farmer v. Brennan, 511 U.S. at 834 (citation omitted), or that “today’s society” would judge the circumstances “so grave that it [would] violate[] contemporary standards of decency to expose anyone unwillingly to [it],” Helling v. McKinney, 509 U.S. 25, 36 (1993) (emphasis omitted).
The core of respondents’ Eighth Amendment claim is that Elkton’s “very design as a low-security facility” creates an unconstitutional condition of confinement because Elkton’s structure “cannot accommodate recommended social distancing” and the 150man housing units have thus “deprived [respondents] of any chance to comply with the directives of the CDC.” Opp. 11, 40. But the CDC’s guidance for prisons states that while social distancing strategies should “ideally” increase distancing to six feet by, for instance, having inmates sleep “head to foot” in “bunks,” the guidance makes clear that “[n]ot all strategies will be feasible” and “will need to be tailored to the individual space in the facility and the needs of the population and staff.” Stay App.

12 211a. Respondent’s position, if correct, would impose a constitutional six-feet-at-all-times rule that would require the release of inmates from low-security facilities even where prison officials have taken extensive efforts to mitigate the risk of spread, and even while most law-abiding citizens in today’s society cannot guarantee themselves such protections at all times. Nothing supports such a rule, which is inconsistent with the decisions of courts of appeals properly analyzing similar Eighth Amendment claims. See Stay Appl. 21-22.
To bolster their claims, respondents focus on the initial spike of COVID-19 hospitalizations and nine resulting deaths, but they ignore BOP’s continuing and increasing efforts to suppress the virus at Elkton and their critiques are unfounded. Even before district court’s April 22 injunction, and in light of BOP’s extensive mitigation efforts that follow CDC’s expert guidance for detention facilities, new hospitalizations were brought to nearly zero (with only one post-injunction admission); and the few inmates who have since died were inmates who became ill before April 6. Stay Appl. 30-31 & n.3; see Stay App. 187a-189a. It is the district court’s succession of orders requiring the substantial diversion of BOP’s limited resources that jeopardizes BOP’s ability to focus on ongoing efforts to combat the virus. See pp. 15-17, infra.
Second, respondents fail to show that Elkton officials have the subjective intent to expose them to “punishment” within the meaning of the Eighth Amendment. Stay Appl. 32-35. Respondents assert (Opp. 40-41) that officials’ actions have been “manifestly insufficient” and the existence of (unspecified) “obvious, easy

13

alternatives” show that officials are acting with deliberate

difference. But respondents cannot have it both ways: If the

very fact of Elkton’s low-security design prevents what

respondents claim is constitutionally required, there are no

obvious and easy alternatives.

Moreover, whether prison

officials’ actions are “‘wanton’ depends upon the constraints facing

the official,” Wilson, 501 U.S. at 303 (emphasis omitted), yet

respondents fail to account for the practical constraints facing

prison administrators managing the Nation’s prison system during

a public-health emergency, and ignore the actual and extensive

steps that they have taken to protect inmates from the risk of

infection within those constraints. Those actions belie any

colorable claim of subjective recklessness constituting wanton

behavior. Stay Appl. 33-34. Respondents and the district court’s

simple disagreement about the sufficiency of actions taken by BOP

officials in accordance with CDC guidance fails to establish

negligence, much less the type of deliberative indifference

necessary to conclude that those officials are subjectively

imposing “punishment” prohibited by the Eighth Amendment.

C. Respondents also cannot prevail on the merits because

their claims should never have been certified for class relief.

Respondents’ primary response to this argument is that it was

waived, but –- contrary to that assertion -- the government

addressed this argument in its Sixth Circuit stay briefing. See

Gov’t C.A. Stay Mot. 18; Gov’t C.A. Stay Reply 8. And it is

plainly meritorious. As explained in the stay application,

respondents cannot establish typicality or commonality, as

14 required by Rule 23(a). Stay Appl. 38-39. Moreover, the district court certified this as a Rule 23(b)(2) class. But a Rule 23(b)(2) class action for injunctive relief is appropriate only if “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2) (emphasis added). As such, “[t]he key to the (b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy,’” which by definition precludes “claims for individualized relief” and applies only if challenged “‘conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011) (citation omitted).
Here, however, the district court has enforced its injunction by requiring individualized evaluations to be reported for its review, Stay App. 48a, a requirement which itself speaks to the fundamental defect in its purported grant of classwide injunctive relief to a putative class under Rule 23(b)(2). The court has further recognized that some members of the class may ask to “remain[] at Elkton for family proximity or other reasons,” Stay App. 51a, and thus required respondents to survey inmates to determine whether they wish to opt out from the class relief, an option that some have already selected. See id. at 37a (proposed class notice); id. at 38a-39a (order approving notice). That too is further evidence that this suit is incompatible with Rule 23(b)(2).

15
II. THE DISTRICT COURT’S ORDER IS ALREADY INFLICTING SEVERE HARMS Respondents boldly assert that the district court’s order
does not inflict any harms on the government or the public. But the order has already forced BOP to divert extensive resources from its systemic efforts to fight COVID-19, and that burden is only growing worse. More fundamentally, the order intrudes on BOP’s exclusive authority to determine the most appropriate placement for all inmates, and in the process it inflicts harm on the public and Elkton inmates alike.
A. The district court’s series of orders has imposed a severe burden on BOP that has interfered with its efforts to combat COVID-19. The court’s April 22 order imposed a sweeping preliminary injunction that required BOP to identify members of a subclass within 24 hours, to evaluate every one of the more than 800 subclass members for at least four different kinds of relief, and then to remove all subclass members from Elkton until the threat of the virus has ended. Stay App. 27a-28a. Since then, the court has issued multiple additional orders requiring BOP to provide explanations of its process and the basis for its denials. Id. at 34a, 41a.2 And on May 19, the district court ordered BOP to
2 The district court’s intrusive orders have not been limited to mandates regarding the evaluations and transfers. On May 8, the court ordered BOP to begin providing daily status reports detailing the number of COVID-19 tests performed that day, the results, and the cumulative testing data. Stay App. 41a. Just yesterday, the court ordered an additional report -- to be submitted by close of business the same day -- explaining why BOP had “not yet received or reported test results for tests that were

16 reevaluate every class member for home confinement -- and to provide a detailed, individualized explanation for any denials –all at a rate of approximately 300 inmates per 48 hours. Id. at 48a-49a. Merely complying with the first of these 48-hour deadlines required BOP to divert staff from its Central Office; Mid-Atlantic, Northeast, and Western Regional Offices; and another federal correctional institution. Meeting the next two deadlines is anticipated to take similar efforts.
Attempting to arrange transfers for those ineligible for these forms of release has diverted yet more staff time. As BOP has explained, transferring an inmate to a new facility (or “redesignation”) generally involves a careful process of analyzing a variety of factors such as where he will be close to his home, where he will be able to obtain the treatment programs he needs, and where he may be kept without jeopardizing the safety of himself or others. Stay App. 194a, 196a-197a. This analysis is greatly complicated in this case by the volume of inmates who must be transferred; the district court’s requirement that any new facility must have single cells or increased social distancing; and the demands of the ongoing pandemic, in which any form of travel (and inmate transfers in particular) is discouraged by the CDC. Moreover, because of the scarcity of facilities that meet the district court’s requirements, BOP will likely be required to relocate some of the inmates that are currently in those
completed more than 48 hours ago.” 5/21/20 Order (entered on docket sheet).

17 facilities, requiring yet another set of complicated redesignation analyses, and yet more movement between facilities in the midst of a pandemic. Id. at 198a ¶ 33.
Ensuring that class members are appropriately quarantined before any transfers imposes additional burdens as well. In order to find space to quarantine class members before they leave Elkton, BOP has been forced to convert Elkton’s chapel and gymnasium for this purpose. D. Ct. Doc. 89, at 5 (May 21, 2020). The first set of class members began quarantining today, but because there is space for only approximately 180 class members to quarantine at one time, these make-shift quarantine facilities will likely be occupied for many more weeks, unless this Court intervenes.
B. Compliance with the district court’s orders does not, however, merely harm inmates, staff, and the public by imposing substantial burdens on and diverting the focus of prison administrators who must implement BOP’s systemic COVID-19 response. It also harms the public and inmates alike by interfering with BOP’s statutorily committed discretion to determine the appropriate placement for all federal inmates under all the circumstances, including during a pandemic and in light of CDC guidance.
1. The district court’s orders ignore the authority and expertise of BOP with respect to housing decisions, threatening public safety in the process. In its May 19 order, the court rewrote the BOP’s established criteria and the Attorney General’s guidance regarding when it is safe and appropriate to place an inmate in home confinement, requiring BOP to -- among other things

18 -- “disregard” certain violent offenses and disciplinary infractions, in an attempt to ensure that more inmates are eligible for this form of relief. Stay App. 48a. But, as the Attorney General’s recent memorandum expanding home confinement explained, the pandemic makes it particularly important for BOP to “continue making the careful, individualized [eligibility] determinations BOP makes in a typical case” because BOP’s typical analysis ensures that those in home confinement “will follow the laws * * * and that they will not return to their old ways.” D. Ct. Doc. 10-3, at 5 (reproducing memorandum dated April 3, 2020). Indeed, ensuring that BOP does not place individuals in home confinement if they will be a risk to the community or the other adults (and often children) in the homes in which they might be placed is particularly important during the pandemic because the virus has led to “over-burdened police forces.” Ibid.
Respondents insist (Opp. 25) that the district court’s order did not revise any guidance from the Attorney General because the Attorney General memoranda have merely outlined discretionary factors that BOP should continue to use in making determinations, while the district court merely ordered BOP “to do what the Attorney General had said it should.” It is not the court’s role to oversee BOP’s implementation of an Attorney General’s policy memorandum, and indeed Congress has foreclosed review of placement decisions. 18 U.S.C. 3621(b) (BOP’s “designation of a place of imprisonment under this subsection is not reviewable by any court.”).

19 In any event, respondents are mistaken in describing both the Attorney General’s memoranda and what the district court ordered. The Attorney General’s guidance expressly states that BOP is “to consider” a list of discretionary factors including “[t]he inmate’s crime of conviction, and assessment of the danger posed by the inmate to the community.” D. Ct. Doc. 10-3, at 1-2 (reproducing memorandum dated March 26, 2020). And the March 26 memorandum further indicates that “[s]ome offenses” will “render an inmate ineligible for home detention.” Id. at 2. The district court, however, stated -- among other things -- that BOP must altogether “disregard” some offenses, including prior violent offenses if they are the only reason the inmate had previously been deemed ineligible. Stay App. 48a. This vividly demonstrates that the district court has become increasingly engaged in matters of day-to-day prison management that are committed to expert prison administrators. 2. There are other consequences as well of the district court’s usurping of BOP’s authority to determine where they should be placed. Those inmates who must be moved to another facility would likely be housed in more restrictive, medium security institutions because low-security facilities like Elkton generally share the dorm-style housing the district court found inadequate for social distancing. Stay App. 197a-198a ¶¶ 29-31. The new facilities may also be much further from their homes, id. at 199a ¶ 36, and they are unlikely to have the same treatment programs and mental health services that Elkton offers. For example, Elkton offers specialized sex-offender and drug-treatment programs that

20 are not available at most institutions, id. at 200a ¶¶ 38-39. The disruption of these treatment programs may affect not only an inmate’s well-being, but also his “eligibility for an early release pursuant to 18 U.S.C. § 3621(e).” Id. at ¶ 39.
In short, the district court’s April 22 order will impose profound harms on BOP, the public, and some of the very inmates it is intended to assist. The balance of equities therefore clearly tilts in favor of the government.
CONCLUSION This Court should stay the district court’s preliminary injunction pending the completion of further proceedings in the court of appeals and, if necessary, this Court. Respectfully submitted.
NOEL J. FRANCISCO Solicitor General
MAY 2020

 
 (ORDER LIST: 590 U.S.)

TUESDAY, MAY 26, 2020

19A1041

ORDER IN PENDING CASE WILLIAMS, WARDEN, ET AL. V. WILSON, CRAIG, ET AL.

The application for stay presented to Justice Sotomayor and by her referred to the Court is denied.
The Government is seeking a stay only of the District Court’s April 22 preliminary injunction. But on May 19, the District Court issued a new order enforcing the preliminary injunction and imposing additional measures. The Government has not sought review of or a stay of the May 19 order in the U.S. Court of Appeals for the Sixth Circuit. Particularly in light of that procedural posture, the Court declines to stay the District Court’s April 22 preliminary injunction without prejudice to the Government seeking a new stay if circumstances warrant.
Justice Thomas, Justice Alito, and Justice Gorsuch would grant the application.

 
 No. 19A1047 ________________________________________________________________ ________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES _______________
MARK WILLIAMS, WARDEN, ET AL., APPLICANTS v.
CRAIG WILSON, ET AL. _______________
REPLY IN SUPPORT OF APPLICATION FOR A STAY _______________
NOEL J. FRANCISCO Solicitor General Counsel of Record Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217
________________________________________________________________ ________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES _______________
No. 19A1047 MARK WILLIAMS, WARDEN, ET AL., APPLICANTS
v. CRAIG WILSON, ET AL.
_______________
REPLY IN SUPPORT OF APPLICATION FOR A STAY _______________
Congress has vested the federal Bureau of Prisons (BOP), under the Attorney General’s supervision, with authority to designate where prisoners are incarcerated and to determine when it is appropriate to use home confinement. BOP has used that authority and its expertise to address the “‘medical and scientific uncertainties’” presented by the COVID-19 pandemic. South Bay United Pentecostal Church v. Newsom, No. 19A1044 (May 29, 2020), slip op. 2 (Roberts, C.J., concurring in denial of application for injunctive relief) (citation omitted). With the aid of internal and external subject-matter experts, BOP has implemented a multi-phase strategic response that prescribes measures for inmates at the prisons where they are housed and places inmates in home confinement when consistent with the Attorney General’s guidance. The district court’s April 22 and May 19 orders undermine that response, replacing the policy formulated by expert, politically accountable officials with one fashioned by a single judge that lacks any

2 grounding in the Eighth Amendment’s text or this Court’s precedent. In doing so, the orders inflict irreparable harm on BOP, the inmates, and the public as a whole.
Respondents minimize that usurpation of Executive prerogatives, asserting that those orders extend the “utmost deference to [BOP’s] discretion,” Resp. Opp. to Appl. for Stay (Opp.) 2, and that large portions of the orders “would not have been necessary” if BOP had “follow[ed] its own internal directives from the Attorney General,” id. at 67. That assertion is fundamentally wrong.
Contrary to respondents’ repeated suggestions, neither Congress nor the Attorney General has provided for BOP to place large numbers of Elkton inmates in home confinement in response to COVID19. In the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. L. No. 116-136, 134 Stat. 281, Congress merely addressed the amount of time inmates may spend in, not which inmates are suitable for, home confinement. § 12003(b)(2), 134 Stat. 516. That Act thus did not disturb BOP’s authority, unreviewable by the courts, to determine where an inmate should serve his sentence. See 18 U.S.C. 3621(b); 18 U.S.C. 3624(c)(2) and (4). The Attorney General’s guidance implementing the CARES Act similarly does not require BOP to place any inmate in home confinement. It instead directed BOP to “immediately review” all inmates for such relief. Memorandum from William P. Barr, Att’y Gen., for Dir. of Bureau of Prisons, Increasing Use of Home Confinement at Institutions Most Affected by COVID-19 2 (Apr. 3, 2020) (April 3 Memo), https://www.justice.gov/file/1266661/download. And it specifically instructed that home confinement is generally

3 appropriate only if an inmate is “non-violent and pose[s] minimal likelihood of recidivism,” adding that sex offenses in particular “will render an inmate ineligible.” Memorandum from William P. Barr, Att’y Gen., for Dir. of Bureau of Prisons, Prioritization of Home Confinement As Appropriate in Response to COVID-19 Pandemic 1-2 (Mar. 26, 2020), https://www.justice.gov/file/1262731/download.
BOP promptly evaluated all subclass members for eligibility for home confinement under this guidance. Stay Appl. App. (Stay App.) 235a. But almost half had committed sex offenses, rendering them ineligible. See Opp. App. 62a-73a (listing “sex offender” or “sex offense” as a reason for denial for approximately 400 subclass members). Another large swath had a history of violence that led to their denial. See ibid. In the end, BOP determined that almost none of the subclass members qualified for home confinement under the criteria it was charged with implementing. Stay App. 235a.
Unsatisfied with that result, the district court required BOP to reevaluate every subclass member for home confinement under criteria expressly revised by the court to mandate, for example, that BOP “disregard” certain prior violent offenses. Stay App. 47a-48a. And similarly unsatisfied with BOP’s decision to keep inmates at Elkton when they do not qualify for home confinement, the district court required BOP to transfer more than 800 subclass members to alternate BOP facilities. The court thereby overrode BOP’s determination –- made pursuant to its unreviewable statutory authority, 18 U.S.C. 3621(b) -- that Elkton is the facility most suited to the subclass members’ needs.

4 Accordingly, there is no sense in which the district court’s orders extend deference to BOP’s statutory authority or the Attorney General’s guidance. Instead, the district court has supplanted the determinations of these expert, politically accountable officials. And in doing so, the court has ignored that this Court’s “deliberate indifference” standard for Eighth Amendment claims provides no authority for it to police BOP’s adherence to the Attorney General’s home confinement criteria or to second guess inmate placement decisions that Congress vested in the Executive’s discretion.1 Absent a stay, as a result of the district court’s unfounded orders, BOP must begin transferring over 800 inmates out of Elkton on June 5. Approximately 50 of those inmates would be transferred to home confinement, even though almost all were deemed unsuitable by BOP under the Attorney General’s criteria. Stay Appl. 16. BOP has recommended one inmate for compassionate release. Id. at 17. And the vast majority must be transferred to other BOP facilities that in many instances present increased risks to the inmates and in all instances differ from the one determined by BOP to meet the inmates’ needs. Stay App. 245a-247a ¶¶ 8-10, 12-13, 270a ¶ 42. Respondents nonetheless assert that this case presents nothing more than a fact-bound dispute about whether a stay is appropriate. But the district court’s orders are predicated on multiple legal
1 The district court this morning again denied a stay pending appeal, stating that it was bound by and agreed with the court of appeals’ stay denial. 6/4/20 Order 3-4.

5 errors that have profound implications not only for this case and similar COVID-19 litigation, but for prisoners’ Eighth Amendment challenges in general. Respondents’ challenge to the conditions of their confinement is not properly cognizable in habeas corpus; the district court did not even attempt to conform its relief to the clear limits established in the Prison Litigation Reform Act (PLRA); BOP’s robust efforts to combat COVID-19 at Elkton do not come close to constituting an Eighth Amendment violation; the orders are not appropriate Eighth Amendment relief; and the remedies they require are inconsistent with Rule 23(b). Respondents have no satisfactory response to any of these points.
Respondents also err in asserting that a stay is unwarranted based on the conditions at Elkton. As previously explained (Stay Appl. 10, 27-28), those conditions had begun to improve before the district court’s April 22 injunction, with only two hospitalizations since April 19. Respondents urge the Court to ignore those improvements because BOP’s mass testing efforts have produced a number of positives. But the sharp and sustained decrease in hospitalizations over a two-month period illustrates that these test results, which reflect an increase in testing capability, do not contradict the improvement of the circumstances at Elkton.
The assertion that the government unduly delayed in seeking a stay lacks merit. Respondents contend that the government should have sought a stay of the April 22 order when the Sixth Circuit declined to stay that order on May 8. But respondents’ motion to enforce the injunction was then pending, see D. Ct. Doc. 51, and the district court had ordered respondents to survey all Elkton

6 inmates to determine whether they wished to participate in the suit, Stay App. 36a-40a. That posture created uncertainty both as to how the district court would enforce its order and the subclass’s contours. The government appropriately waited until the district court issued its May 19 order to enforce, which made clear that a stay was necessary. The next day, the government sought a stay of the April 22 order from this Court and –- when the Court indicated that the government should first seek relief from the May 19 order in the lower courts –- the government promptly did so. On the same day the court of appeals denied that relief, the government filed its renewed stay application in this Court.
Nor is there any force to respondents’ contention that a stay is unnecessary because the court of appeals has stated that it expects to issue a decision soon after a June 5 oral argument. BOP will begin transferring the first set of 128 inmates on June 5, even before the Sixth Circuit holds oral argument. An immediate stay is therefore necessary and warranted.
I. THERE IS A REASONABLE PROBABILITY THIS COURT WOULD GRANT CERTIORARI AND VACATE THE ORDERS Respondents assert that this Court would be unlikely to grant
certiorari because the district court’s orders do not implicate any disagreements in the circuits. Opp. 29. In fact, they implicate two. Stay Appl. 19-21. And the Court would likely grant review in any event because the orders requiring the government to remove more than 800 prisoners from a federal institution, release them on home confinement under standards fashioned by a single judge, or transfer them to facilities unsuitable for them -- all

7 in the midst of a pandemic and without regard to the PLRA -- raise issues of fundamental importance meriting review. And the Court would be likely to vacate the orders because they disregard this Court’s precedents and the PLRA’s and Eighth Amendment’s requirements.
A. 1. There is a well-established circuit conflict regarding whether prisoners may bring conditions-of-confinement challenges through habeas. Stay Appl. 19. Respondents assert that the split is not implicated because this suit is properly deemed a challenge to the “fact of [their] confinement” cognizable in habeas. Opp. 31 (citation omitted). But that contention is belied by any fair reading of respondents’ claims: They allege that they are subject to unconstitutional conditions at Elkton because they cannot maintain social distancing there. See, e.g., Opp. 39, 42.
Respondents protest that their suit must be a “‘fact or duration’” challenge because they seek a “form of release” or “enlargement,” and accuse the government of “recharacteriz[ing]” their suit as focused on “conditions of confinement.” Opp. 35-38 (citation omitted). But it is respondents’ own habeas petition that confirms the nature of this suit. Their sole claim for relief is entitled “Unconstitutional Conditions of Confinement in Violation of the Eighth Amendment,” and respondents define the “form of relief” they seek as discharge “from the physical confines of Elkton, not necessarily release from custody.” Stay App. 54a n.2, 87a (emphasis omitted); see also, e.g., id. at 66a (alleging they are suffering from “current crowded conditions”). And here, that relief entails transfer to other BOP facilities, including higher-

8 security facilities where inmates enjoy fewer day-to-day freedoms. Neither that form of relief nor transfer to home confinement has any basis in the Great Writ, which involves “terminat[ing] custody, accelerat[ing] the future date of release from custody, [or] reduc[ing] the level of custody.” Skinner v. Switzer, 562 U.S. 521, 534 (2011) (quoting Wilkinson v. Dotson, 544 U.S. 74, 86 (2005) (Scalia, J., concurring)).
Respondents also assert that the split regarding whether challenges to conditions of confinement are cognizable in habeas is “not real” because “[e]very court” agrees that “[c]hallenges to the fact or duration of confinement are for habeas; actions that seek to reform the conditions of confinement are for Section 1983.” Opp. 30. But that assertion makes it all the more likely the Court would grant certiorari, because the district court allowed a conditions-of-confinement suit to proceed in habeas despite the weight of precedent to the contrary.
2. Respondents contend (Opp. 33-34) that there is no conflict with respect to the viability of Eighth Amendment claims regarding detention facilities in the face of the COVID-19 pandemic because the government has pointed to decisions in the stay posture. But the fact that multiple courts of appeals have already addressed the recent phenomenon of the COVID-19 pandemic in prisons, even through stay opinions, is evidence of the importance of the questions presented. And, as respondents themselves acknowledge, the stay orders in the Fifth and Eleventh Circuits rejected judicial intrusions into prison administration that were far less onerous than the orders in this case. Opp. 34 (citing

9 Valentine v. Collier, 956 F.3d 797, 799-800 (2020) (per curiam), and Swain v. Junior, No. 20-11622, 2020 WL 2161317, at *2-*3 (11th Cir. May 5, 2020) (per curiam)). The Sixth Circuit’s refusal to stay the orders in this case is in sharp contrast to the response by those other circuits. See also Roman v. Wolf, No. 20-55436, 2020 WL 2188048 (9th Cir. May 5, 2020) (staying injunction concerning immigration detention).
B. Respondents further assert that they are likely to succeed on the merits, but that is plainly incorrect.
1. As noted, respondents’ suit is properly characterized as a challenge to the conditions of their confinement. Such challenges are not cognizable in habeas, and the suit should have been dismissed for that reason alone. See Muhammad v. Close, 540 U.S. 749, 754–755 (2004) (per curiam) (A prisoner who is not “seeking a judgment at odds with his conviction or with the State’s calculation of time to be served” is not raising a claim “on which habeas relief could [be] granted on any recognized theory.”); see also Nelson v. Campbell, 541 U.S. 637, 643 (2004). Indeed, respondents themselves admit that a proper Section 2241 action must challenge “the fact of custody.” Opp. 37; see also id. at 40 (habeas applies if relief seeks to “alter the fact or duration of confinement”).
Even if the challenge here were permitted in habeas, it would be governed by the PLRA because it fits squarely within that Act’s definition of a “civil action with respect to prison conditions.” See Stay Appl. 22 (quoting 18 U.S.C. 3626(g)(2)). Respondents’ sole contrary argument -- in one short paragraph of their 68-page opposition -- is that the PLRA exempts habeas challenges to “the

10 fact or duration of confinement in prison.” Opp. 41 (quoting 18 U.S.C. 3626(g)(2)). But this suit simply does not match that description, see pp. 7-8, supra, and respondents’ allegations are instead materially indistinguishable from those in Brown v. Plata, 563 U.S. 493 (2011). See Stay Appl. 24. Respondents point out that the issue of “release only arose” in Brown because “no further conditions change [in prison] could remedy the constitutional violations,” Opp. 38, but that is precisely what respondents allege here concerning Elkton. That respondents requested “a form of release” from the outset of their suit does not exempt their action from the PLRA. Opp. 39-40. To the contrary, the PLRA expressly contemplates that challenges to prison conditions may in rare circumstances result in “prisoner release orders” but imposes stringent procedural requirements on those very orders. 18 U.S.C. 3626(a). Respondents appear to have now abandoned any argument that the district court’s orders satisfied those requirements or any others in the PLRA. Compare 19A1041 Stay Opp. 36.
The PLRA was passed to prevent the very sort of judicial intrusion and disruption the district court’s orders impose on Elkton, with broader adverse consequences for the prison system as a whole and its inmates. See Woodford v. Ngo, 548 U.S. 81, 93 (2006) (“[t]he PLRA attempts to eliminate unwarranted federalcourt interference with the administration of prisons”); Miller v. French, 530 U.S. 327, 339 (2000) (“curbing the equitable discretion of district courts was one of the PLRA’s principal objectives”). Recognizing the “intrusive nature and harmful consequences to the public” of prisoner release orders, the PLRA permits those orders

11 only when issued by a three-judge court and only after lesser measures have failed. H.R. Rep. No. 21, 104th Cong., 1st Sess. 25 (1995); see 18 U.S.C. 3626(a)(3)(A) and (B). The PLRA’s constraints serve to ensure that plaintiffs must convincingly demonstrate that any relief sought -- especially release from the prison where they are housed -- is required by the Constitution. The district court disregarded those requirements, and respondents have not made that showing.
2. In any event, there is no substantive legal basis for the district court’s sweeping orders. Respondents’ Eighth Amendment argument (Opp. 41-52) suffers from fundamental defects. They cannot satisfy the objective requirement for a valid claim, much less the subjective one. See Stay Appl. 26-34.
a. The Eighth Amendment prohibits “cruel and unusual” punishment, U.S. Const. Amend. VIII, and respondents ignore significant portions of the corresponding objective test. See Opp. 43-44. Respondents disregard entirely the requirement that a potential risk of serious harm must be “so grave” that in “today’s society” “it violates contemporary standards of decency.” Helling v. McKinney, 509 U.S. 25, 36 (1993). That requirement is particularly salient in the context of a pandemic that poses varying risks and implicates evolving challenges and responses throughout society. Respondents have made no attempt to show, as it was their burden to do, that standards in society during the unfolding pandemic would condemn the significantly mitigated risk of COVID-19 that exists at Elkton.

12 Respondents contend that Elkton’s very “design[]” as a “lowsecurity facility” creates an unconstitutional condition of confinement because Elkton’s structure cannot accommodate recommended social distancing and the 150-man housing units have thus “deprived [respondents] of any chance to comply with the directives of the CDC.” Opp. 6, 44; see Opp. 7, 11. The CDC’s guidance for prisons, however, states that while social distancing strategies should “ideally” increase distancing to six feet by, for instance, having inmates sleep “head to foot” in “bunks,” “[n]ot all strategies will be feasible” and “will need to be tailored to the individual space in the facility and the needs of the population and staff.” Stay App. 211a. Respondents’ position, if correct, would impose a constitutionally mandated six-feet-atall-times rule that would require the removal of inmates from lowsecurity facilities even where prison officials have taken extensive efforts to mitigate the risk of spread that has confronted institutions and individuals in varying ways throughout the Nation. Nothing supports such a rule, which is inconsistent with the decisions of courts of appeals properly analyzing similar Eighth Amendment claims. See Stay Appl. 21-22. b. Respondents also err in contending (Opp. 41, 44-52) that “the Government is knowingly exposing prisoners at Elkton to a known, heightened risk” and, for that reason, BOP officials are “subjectively” imposing punishment on Elkton’s inmates within the meaning of the Eighth Amendment.

13 Respondents first dispute (Opp. 50) the standard for determining whether officials are “subjectively” imposing such punishment. But it is well settled that punishment not mandated by statute or a court judgment can exist under this Court’s Eighth Amendment precedents “only” if an official inflicts “unnecessary and wanton infliction of pain,” Farmer, 511 U.S. at 834 (citation omitted), and the official’s subjective intent can be judged only in light of “the constraints facing the official,” Wilson v. Seiter, 501 U.S. 294, 303 (1991) (emphasis omitted); see Stay Appl. 29-30. Where, as here, officials have taken extensive steps to mitigate a known risk, their actions cannot constitute “punishment” unless the officials can be fairly charged with understanding that they have not taken still further steps that are compelled in light of all the circumstances they confront. Respondents identify nothing that carries their burden of proving such subjective belief, which at the very least requires a showing of “subjective recklessness” by officials who “know[] of and disregard[] an excessive risk to inmate health or safety,” Farmer, 511 U.S. at 836-837, 839-840. In light of the prompt and increasing efforts at Elkton, respondents have not shown that officials knowingly disregarded such a risk. Respondents assert (Opp. 45) that Elkton’s mitigation measures “were already proven and known not to work.” But that assertion does not reflect the actual mitigation efforts that were still evolving when Elkton experienced its initial two-week spike (March 26 to April 8) in hospitalizations. And significantly, respondents make no effort to square their assertion with the

14
evidence showing the substantially mitigated heath impacts at Elkton over the subsequent two-month period. The record demonstrates that those impacts at Elkton -- after an initial spike -have been significantly mitigated in the face of BOP’s expanding efforts.2 After the initial two-week spike that occurred before Elkton had fully implemented its action plan, only four inmates were hospitalized in the next ten days (April 9-18), after which hospitalizations have dropped to nearly zero, with only two additional hospitalizations in the ensuing six-plus weeks. Stay App. 238a; Stay Appl. 10. And not one Elkton inmate infected after April 6 -- nearly two months ago -- has died from COVID-19-related complications. Stay Appl. 28; Stay App. 230a.
Respondents encourage this Court to disregard those improvements, asserting that 461 inmates are “currently” infected and that nearly 25% have been infected “at some point.” Opp. 1, 5-6, 24 (emphasis omitted).3 But the record shows that Elkton places all inmates who test positive into isolation to mitigate further transmissions. Stay App. 99a-100a, 152a, 173a, 178a-179a. Moreover, the two-month decrease in hospitalizations and the absence of deaths resulting from infections contracted after April 6 must reflect either that Elkton’s full COVID-19 action plan has
2 Respondents assert (Opp. 59) that the government’s evidence showing dramatic reductions in hospitalization was just filed May 29. That is incorrect. Only the updated information was filed recently. The initial evidence documenting the improvements was filed well before the district court’s May 19 order. See, e.g., Stay App. 179a; id. at 187a-189a (charts).
3 BOP has more recently reported test results for 1731 of the 1888 viral tests performed at Elkton, of which 315 (18%) were positive. D. Ct. Doc. 108 (June 3, 2020).

15 mitigated the virus’s risks or that “the rate [of] COVID-19” transmission at Elkton (Opp. 28) was so rapid that the virus largely had run its course even before the district court’s injunction. Either way, the evidence fails to show that the significantly mitigated risks deny “‘the minimal civilized measure of life’s necessities,’” still less establish “deliberate indifference.” Farmer, 511 U.S. at 834 (citation omitted).
Respondents also argue (Opp. 49) that the initially low levels of testing support their assertion of an Eighth Amendment violation because the government has failed to show that it faced constraints that limited its access to test kits. But it is petitioner’s burden to prove that subjective component constituting punishment. And regardless, the evidence showed that Elkton initially lacked enough tests to test all inmates, was receiving 25 rapid-test cassettes per week, and deployed its available tests using the priorities in CDC guidance. Stay App. 101a-102a. In the same Act respondents invoke in seeking home confinement, Congress recognized BOP’s initial difficulty in obtaining tests in the marketplace. Stay Appl. 32. Elkton made sustained efforts to obtain additional testing and ultimately contracted to enable mass testing. Stay App. 146a, 149a, 176a. Although the State of Ohio was apparently able to obtain tests for a state prison (Opp. 49), the fact that the State succeeded in the marketplace where facilities were then competing for limited resources does not show that Elkton’s officials were recklessly ignoring the virus’s known risks.
c. In any event, the district court’s orders, and especially its mandated use of home confinement under standards of its own

16
formulation, do not constitute proper Eighth Amendment relief. Stay Appl. 33-34. Even if respondents could show that the mitigated risk of harm from COVID-19 at Elkton constituted cruel and unusual punishment, at most that would entitle them to an order for BOP to ameliorate the challenged conditions. The Eighth Amendment does not grant inmates the right to home confinement or any particular alternate placement.
II. THE DISTRICT COURT’S ORDERS ARE ALREADY CAUSING SEVERE HARMS As the government has consistently explained, the district
court’s orders cause irreparable harm to BOP, inmates, and the public by “inappropriately interjecting the judiciary into sensitive areas of prison administration,” 19A1041 Stay Appl. 3637, and by usurping BOP’s statutory authority to determine suitable placements for inmates and to decide when home confinement is appropriate, Stay Appl. 38-39. “[T]he inability to enforce its duly enacted plans clearly inflicts irreparable harm” on the government, Abbot v. Perez, 138 S. Ct. 2305, 2324 n.17 (2018), and here that harm is compounded by the adverse effects on inmate wellbeing and threats to public safety posed by the district court’s orders regarding home confinement and transfer.
A. Respondents primarily assert that BOP is not harmed by the district court’s usurpation of its statutory authority because “the preliminary injunction did little more than echo the Attorney General’s instruction” to “move at-risk prisoners out of Elkton.” Opp. 62. But the Attorney General has never suggested that BOP should transfer more than 800 inmates out of Elkton through any

17 means necessary, as the district court directed. Instead, the Attorney General merely directed BOP to “immediately review” inmates with COVID-19 risk factors to determine whether they are “suitable candidates for home confinement,” and to “start[] with the inmates” at Elkton and three other facilities. April 3 Memo 2 (emphasis added). And in doing so, the Attorney General emphasized BOP’s “obligation to protect the public” by conducting a “careful” review to prevent the “profound risks” that arise when inmates are inappropriately released to home confinement only to offend again. Id. at 2-3.
Respondents suggest that if BOP was faithfully adhering to that guidance, it would have deemed far more inmates eligible for home confinement. But that overlooks the numerous class members who are ineligible under the plain terms of the Attorney General’s memoranda because of their sex offenses or history of violence. See p. 3, supra. Respondents’ argument also overlooks that, in order to increase the number of inmates it thought should be deemed eligible for home confinement, the district court explicitly revised the criteria in the Attorney General’s guidance by –- for example –- requiring BOP to “disregard” certain violent offenses. Stay App. 48a. And it ignores the unrebutted evidence that applying those judicially crafted standards improperly forced BOP to approve over 50 otherwise-ineligible inmates for home confinement. Stay Appl. 16-17. While respondents contend that the fact of confinement at a low-security prison like Elkton is a sign that an inmate can be safely released, BOP’s prison-security designations primarily reflect the “level of security and supervision the inmate

18
requires” in prison, not his risks to the public –- which can be
a salient distinction for, among others, sex offenders. See BOP,
Inmate Security Designation and Custody Classification,
https://www.bop. gov/policy/progstat/5100_008cn.pdf (Sept. 4,
2019). The threat to public safety is clear.4
B. Respondents also ignore entirely the harm to subclass
members who, under the district court’s orders, will be transferred
away from the facility that BOP has determined best-suited to their
needs. As the government demonstrated, transferring subclass
members to facilities where greater social distancing measures are
feasible could place them farther from their homes, interrupt their
sex-offender, mental-health, drug, and other rehabilitative
programming, and lead to their placement in higher security
facilities where they will face heightened levels of intra-inmate
violence. Stay Appl. 36. Unsurprisingly, many putative subclass
4 Respondents barely offer any argument regarding compassionate release, perhaps recognizing that relief must come from a sentencing court. They do erroneously assert that “the Government has taken the position” that the threat of “COVID-19 is entirely irrelevant to the consideration of compassionate release.” Opp. 48. The Department of Justice has taken the position in litigation that, under present circumstances, an inmate’s diagnosis with a medical condition that the CDC has identified as a risk factor for COVID-19, and from which the inmate is not expected to recover, presents an “extraordinary and compelling reason[]” that may warrant compassionate release if other criteria are also met. 18 U.S.C. 3582(c)(1)(A); see, e.g., United States v. Pabon, No. 17-CR-165, 2020 WL 2112265, at *3 (E.D. Pa. May 4, 2020) (noting and agreeing with Government’s position); see also Sentencing Guidelines § 1B1.13(2) (court must also determine that the inmate “is not a danger to the safety of any other person or to the community”); 18 U.S.C. 3582(c)(1)(A) (court must consider the 18 U.S.C. 3553(a) factors, as “applicable,” as part of its analysis); United States v. Chambliss, 948 F.3d 691, 694 (5th Cir. 2020).

19 members do not want that. D. Ct. Doc. 98-1, at 13. Respondents -- themselves only four individuals who as conditional class representatives seek to require BOP to impose those consequences on hundreds of their fellow inmates through an improperly certified class action -- offer no response.
C. Ultimately, the district court’s orders have “lock[ed] in place a set of policies for a crisis that defies fixed approaches,” Valentine, 956 F.3d at 803 (5th Cir.), and the results are, predictably, unwarranted. Although the evidence indicates that BOP is making gains against the pandemic at Elkton, the prison will now be forced to devote its resources to transferring hundreds of inmates to alternative prisons that are often higher security. The transfer process is resource-intensive and risks spreading infection, at a time when the Nation’s law enforcement resources are stretched thin. And the transferred inmates may find themselves in new facilities with heightened levels of violence and diminished freedom and programming, all for the uncertain benefit of leaving Elkton when the virus is relenting there. In contexts like the COVID-19 pandemic, which are “‘fraught with medical and scientific uncertainties,’” “politically accountable officials” must be allowed to do their jobs without inappropriate “secondguessing by an ‘unelected federal judiciary.’” South Bay United Pentecostal Church, slip op. 2 (Roberts, C.J., concurring in denial of application for injunctive relief) (citations omitted). That

20 reasoning applies with special force to prison administration in the midst of a pandemic, and it amply warrants a stay here.
CONCLUSION This Court should stay the district court’s orders pending the completion of further proceedings in the court of appeals and, if necessary, this Court. Respectfully submitted.
NOEL J. FRANCISCO Solicitor General
JUNE 2020

 
 Supreme Court of the United States
No. 19A1047
MARK WILLIAMS, WARDEN, ET AL., Applicants
v.
CRAIG WILSON, ET AL.

O R D E R

UPON CONSIDERATION of the application of counsel for the applicants, the response filed thereto, and the reply,
IT IS ORDERED that the District Court’s April 22 and May 19 orders are hereby stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Sixth Circuit and further order of the undersigned or of the Court.

Dated this 4th day of June, 2020.

/s/ Sonia Sotomayor Associate Justice of the Supreme
Court of the United States

 
 Case: 4:20-cv-00794-JG Doc #: 117 Filed: 06/11/20 1 of 28. PageID #: 1440

RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0179p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CRAIG WILSON, ERIC BELLAMY, KENDAL NELSON, and ┐

MAXIMINO NIEVES, on behalf of themselves and all │

others similarly situated,

│

Petitioners-Appellees,

│
>

│

v.

│

│

│

MARK WILLIAMS, in his official capacity as Warden of │

Elkton Federal Correctional Institution; MICHAEL │

CARVAJAL, in his official capacity as the Federal │

Bureau of Prisons Director,

│

Respondents-Appellants. │

┘

No. 20-3447

Appeal from the United States District Court for the Northern District of Ohio at Youngstown. No. 4:20-cv-00794—James S. Gwin, District Judge.

Argued: June 5, 2020

Decided and Filed: June 9, 2020

Before: COLE, Chief Judge; GIBBONS and COOK, Circuit Judges.

_________________

COUNSEL

ARGUED: Sarah Carroll, UNITED STATES DEPARTMENT OF JUSTICE, for Appellants. David J. Carey, ACLU OF OHIO FOUNDATION, Columbus, Ohio, for Appellees. ON BRIEF: Sarah Carroll, Abby C. Wright, Casen B. Ross, UNITED STATES DEPARTMENT OF JUSTICE, for Appellants. David J. Carey, ACLU OF OHIO FOUNDATION, Columbus, Ohio, Joseph Mead, Freda J. Levenson, ACLU OF OHIO FOUNDATION, Cleveland, Ohio, David A. Singleton, Mark A. Vander Laan, Michael L. Zuckerman, OHIO JUSTICE & POLICY CENTER, Cincinnati, Ohio, Kirti Datla, HOGANS LOVELLS US LLP, Washington, D.C., for Appellees. Laura Osseck, DISABILITY RIGHTS

Case: 4:20-cv-00794-JG Doc #: 117 Filed: 06/11/20 2 of 28. PageID #: 1441

No. 20-3447

Wilson, et al. v. Williams, et al.

Page 2

OHIO, Columbus, Ohio, Subodh Chandra, THE CHANDRA LAW FIRM LLC, Cleveland, Ohio, for Amici Curiae.
GIBBONS, J., delivered the opinion of the court in which COOK, J., joined, and COLE, C.J., joined in part. COLE, C.J. (pp. 21–28), delivered a separate opinion concurring in part and dissenting in part.
_________________
OPINION _________________
JULIA SMITH GIBBONS, Circuit Judge. Petitioners, four inmates housed in the low-security Elkton Federal Correctional Institution and its satellite facility FSL Elkton (collectively “Elkton”), on behalf of themselves and others housed or to be housed there, filed a petition under 28 U.S.C. § 2241 to obtain release from custody to limit their exposure to the COVID-19 virus. They sought to represent all current and future inmates, including a subclass of inmates who—through age and/or certain medical conditions—were particularly vulnerable to complications, including death, if they contracted COVID-19. The district court entered a preliminary injunction on April 22, 2020, directing Respondents Mark Williams, Elkton’s warden, and Michael Carvajal, the Director of the Federal Bureau of Prisons (“BOP”) (together “BOP”), to (1) evaluate each subclass member’s eligibility for transfer out of Elkton by any means, including compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough within two weeks; (2) transfer those deemed ineligible for compassionate release to another BOP facility where testing is available and physical distancing is possible; and (3) not allow those transferred to return to Elkton until certain conditions were met.
On appeal, the BOP argues that (1) the district court lacked jurisdiction under 28 U.S.C. § 2241 and that the suit must comply with the Prison Litigation Reform Act (“PLRA”); (2) petitioners have not shown a likelihood of success on the merits of their Eighth Amendment claim; and (3) the district court abused its discretion in granting the injunction.
We hold that jurisdiction was proper under § 2241, although § 2241 does not permit some of the relief petitioners seek. However, because the district court erred in concluding that petitioners have shown a likelihood of success on the merits of their Eighth Amendment claim,

Case: 4:20-cv-00794-JG Doc #: 117 Filed: 06/11/20 3 of 28. PageID #: 1442

No. 20-3447

Wilson, et al. v. Williams, et al.

Page 3

we conclude that the district court abused its discretion in granting the preliminary injunction. We thus vacate the injunction.
I. Petitioners filed a petition under 28 U.S.C. § 2241 seeking release due to the impact of the COVID-19 pandemic at the Elkton facilities. “Our task is . . . to review the record that was before the district court at the time the preliminary injunction was entered.” Johnson v. City of Memphis, 444 F. App’x 856, 860 n.2 (6th Cir. 2011); see also Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 673 (2004).
A.
The COVID-19 virus is highly infectious and can be transmitted easily from person to person. COVID-19 fatality rates increase with age and underlying health conditions such as cardiovascular disease, respiratory disease, diabetes, and immune compromise. If contracted, COVID-19 can cause severe complications or death. Because there is no current vaccine, the Centers for Disease Control and Prevention (“CDC”) recommends preventative measures to decrease transmission such as physical distancing, mask wearing, and increasing focus on personal hygiene such as additional hand washing.
B.
Elkton is a low-security prison in Lisbon, Ohio, designed to house approximately 2,000 inmates at the main facility and 500 inmates at the satellite facility. The main facility consists of three buildings with six dormitory-style housing units; each unit holds approximately 300 inmates split between two sides. The satellite facility has two housing units, each with approximately 250 inmates. Each side of a housing unit contains approximately 150 bunks resulting in two to three inmates sharing a cube and sleeping a few feet away from each other.
In response to the pandemic, the BOP began a phased approach nationwide. Phase One of its action plan began in January 2020 and involved creating a strategic response plan. On March 13, 2020, the BOP implemented Phase Two, which suspended social and legal visits, inmate facility transfers, staff travel and training, contractor access, and volunteer visits.

Case: 4:20-cv-00794-JG Doc #: 117 Filed: 06/11/20 4 of 28. PageID #: 1443

No. 20-3447

Wilson, et al. v. Williams, et al.

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Elkton began implementing Phase Two health screening of arriving inmates and staff for COVID-19 symptoms and risk factors on March 22. Additionally, the BOP modified operations to maximize physical distancing, including staggering meal and recreation times, instating graband-go meals, and establishing quarantine and isolation procedures. Phase Three involved inventorying the BOP’s cleaning, sanitation, and medical supplies. In Phase Four, beginning on March 26, the BOP expanded its initial screening procedures to mandate use of a screening tool and temperature check, and require asymptomatic arrivals to be placed in quarantine for fourteen days and symptomatic arrivals to be isolated until they tested negative for COVID-19 or were cleared by medical staff.
On March 31, the BOP implemented Phase Five. Phase Five required all inmates to be secured to their quarters for a fourteen-day period with limited access to the commissary, laundry, showers, telephone, and other services. The BOP also coordinated with the U.S. Marshals Service to decrease incoming arrivals during this period. Phase Six, ordered on April 13, extended Phase Five through May 18.
In addition to complying with nationwide directives, Elkton also provided inmate and staff education through Frequently Asked Questions bulletins, provided staff training on using Personal Protective Equipment, ordered enhanced cleaning, and took other preventative measures. Elkton also began, but quickly ended, daily temperature screening of inmates. For inmates deemed to have “essential” work details requiring movement throughout the building, such as food service and cleaning orderlies, Elkton implemented enhanced screening before and after assigned work details. Inmates are encouraged to self-monitor and report symptoms and are screened for symptoms and exposure to risk factors.
Elkton avers that “[a]ll inmates have access to sinks, water, and soap at all times” and “inmates may receive new soap weekly” or “upon request.” DE 10-1, Dees Decl., PageID 183–84. And staff have consistent access to soap and hand sanitizer. Elkton provided personal protective equipment to staff to be used in designated locations such as quarantine areas and isolation units. Staff and inmates were provided two surgical face masks for daily use.

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Elkton’s “[m]edical staff determine if COVID-19 testing is necessary based on applicable guidelines and community standards.” Id. at 185. Elkton initially received fifty-five testing swabs to test inmates and staff, and as of April 15 had eighteen swabs remaining. In addition, Elkton received an Abbott rapid-testing machine with twenty-five screening test cassettes and hoped to receive twenty-five additional cassettes each week. As of April 22, fifty-nine inmates and forty-six staff members tested positive for COVID-19, and six inmates had died.
Petitioners contend that the BOP’s approach and procedures are limited in effectiveness due to the dormitory-style housing at Elkton making it impossible to maintain physical distance and because there are insufficient supplies. Inmates were issued two disposable masks but have no ability to clean them after repeated use. Inmates are also issued a weekly four-ounce bottle of 3-in-1 soap, so inmates frequently run out of soap. There are few shower and bathroom facilities, so inmates are in close proximity to each other when they use those facilities. Additionally, inmates are unable to physically distance when moving within the facility to pick up meals, use phones and computers, or move within the housing unit itself. Moreover, some inmates circulate through the prison as “essential workers” interacting with others outside their housing unit. Several features of the Elkton facilities “heighten risks for exposure, acquisition, transmission, and clinical complications,” including: “overcrowding; population density in close confinement; insufficient ventilation; shared toilet, shower, and eating environments; and limits on hygiene and personal protective equipment such as masks and gloves in some facilities.” DE 1-4, Goldenson Decl., PageID 61–62; see also DE 1-3, Novisky Decl., PageID 50–51.
C.
Petitioners, on behalf of themselves and current and future inmates at Elkton, allege that their confinement in the midst of the COVID-19 outbreak violates the Eighth Amendment. Specifically, petitioners claim that “there is no set of internal protocols or practices that, in light of the current conditions and population levels, Elkton can use that will prevent further disease and death inside the prison.” DE 1, Habeas Pet., PageID 2. Therefore, petitioners sought class certification and a preliminary injunction ordering the BOP to identify and release all inmates ages fifty or older and those that are medically vulnerable. Beyond the release of the initial

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subclass, petitioners seek specific mitigation efforts to prevent spread of COVID-19 within Elkton.
On April 22, the district court granted petitioners’ motion in part. The district court recognized the measures Elkton put in place in response to the COVID-19 pandemic but found that “Elkton officials fight a losing battle. A losing battle for staff. A losing battle for inmates.” DE 22, Order, PageID 353–54. Because of the BOP’s limited testing capacity and “the prison’s ‘dorm-style’ design,” “inmates remain in close proximity” and “COVID-19 is going to continue to spread.” Id. at 354. Despite screening measures, “once the virus is inside the prison, as it already is at Elkton, screening measures can only be so effective.” Id. at 356. The district court found Elkton’s “modified operations” to be “[b]etter practices, but not enough.” Id.
On the merits of petitioners’ motion for a preliminary injunction, the district court held that “the exceptional circumstances at Elkton and petitioners’ substantial claims, that are likely to succeed at the merits stage, necessitate the exercise of [the district court’s enlargement] authority and that such a relief is proper for members of the [medically-vulnerable subclass].”1 Id. at 359– 60. First, the district court held that it had jurisdiction under § 2241 over petitioners’ claims regarding the medically-vulnerable subclass because they sought release and “ultimately [sought] to challenge the fact or duration of confinement as well.” Id. at 361. However, the district court found that the claims of the other inmates at Elkton were conditions of confinement claims properly brought under 42 U.S.C. § 1983.2
The district court conditionally certified a medically-vulnerable subclass and determined that the subclass was likely to succeed on the merits of the Eighth Amendment claim. The district court limited the subclass to inmates sixty-five and older and those with medical conditions posing additional risk of severe harm from COVID-19. Because the subclass consisted of hundreds of inmates who were subject to the same dangerous conditions at Elkton
1The district court relied on Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990) and Mapp v. Reno, 241 F.3d 221, 226 (2d Cir. 2001) for this “enlargement” authority. We are skeptical that either Mapp or Dotson supports the district court’s expansive use of such authority here.
2We note that the district court’s observation about the availability of a § 1983 claim appears mistaken. Section 1983 provides no cause of action against the federal BOP respondents because they are not acting under color of state law. Irvin v. United States, 845 F.2d 126, 127 n.1 (6th Cir. 1988).

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and petitioners have serious medical issues commensurate with the rest of the subclass, the court held that petitioners met the requirements of Federal Rule of Civil Procedure 23(b).
Balancing the potential harms and public interest, the district court granted the preliminary injunction and required the BOP to (1) identify all members of the subclass within one day; (2) “evaluate each subclass member’s eligibility for transfer out of Elkton through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough within two [] weeks”; and (3) to not return any subclass member transferred out of the facility to Elkton “until the threat of the virus is abated or until a vaccine is available and Elkton obtains sufficient vaccine supplies to vaccinate its population, whichever occurs first.” Id. at 370–72.
On April 27, the BOP filed a notice of interlocutory appeal. On April 28, the BOP filed an emergency motion for an administrative stay and stay pending appeal to the district court and this court. Both this panel and the district court denied the motions to stay.
On May 6, petitioners filed an emergency motion to enforce the preliminary injunction. The district court granted the motion to enforce on May 19, concluding that the BOP’s actions did not comply with the preliminary injunction.
On May 20, the BOP filed an application for a stay of the district court’s April 22 preliminary injunction order and May 19 enforcement order to the Supreme Court. Williams v. Wilson, No. 19A1041, Application for Stay (May 20, 2020). The Supreme Court denied the application for a stay in light of the fact that the BOP had not sought review or a stay of the May 19 order in this court. Williams v. Wilson, No. 19A1041, Order (May 26, 2020).
On May 27, the BOP filed a notice of appeal from the May 19 enforcement order. On May 29, the BOP requested a stay of the same order. We denied that motion. On June 1, the BOP filed another application for a stay of the May 19 enforcement order to the Supreme Court. Williams v. Wilson, No. 19A1047, Application for Stay (June 1, 2020). On June 4, the Supreme Court granted the BOP’s request for an administrative stay pending disposition of this appeal and further order of the Court. Williams v. Wilson, No. 19A1047, Order (June 4, 2020).

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II.
“A district court must balance four factors in determining whether to grant a preliminary injunction: ‘(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction.’” Am. Civil Liberties Union Fund of Mich. v. Livingston County, 796 F.3d 636, 642 (6th Cir. 2015) (quoting Bays v. City of Fairborn, 668 F.3d 814, 818–19 (6th Cir. 2012)). “These factors are not prerequisites, but are factors that are to be balanced against each other.” Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002). However, “the likelihood of success on the merits often will be the determinative factor.” Liberty Coins, LLC v. Goodman, 748 F.3d 682, 689 (6th Cir. 2014) (quoting Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012)).
“[T]he party seeking a preliminary injunction bears the burden of justifying such relief.” Livingston County, 796 F.3d at 642 (quoting McNeilly v. Land, 684 F.3d 611, 615 (6th Cir. 2012)); see also Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 546 n.2 (6th Cir. 2007) (“[I]n seeking a preliminary injunction, a federal plaintiff has the burden of establishing the likelihood of success on the merits.”).
A movant’s likelihood of success on the merits is a question of law reviewed de novo, but we review for abuse of discretion the district court’s ultimate conclusion as to whether the preliminary injunction factors weigh in favor of granting or denying preliminary injunctive relief. Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011). Abuse of discretion “is a highly deferential standard, and the ‘district court’s determination will be disturbed only if the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.’” Gale v. O’Donohue, 751 F. App’x 876, 881–82 (6th Cir. 2018) (quoting Tenke Corp., 511 F.3d at 541).
III.
The BOP argues that the district court’s decision should be reversed because the district court lacked jurisdiction to consider the petition, incorrectly concluded that petitioners were

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likely to succeed on the merits, and abused its discretion in granting the preliminary injunction. We disagree with the BOP’s assertion that the district court lacked jurisdiction. To the extent petitioners argue the alleged unconstitutional conditions of their confinement can be remedied only by release, 28 U.S.C. § 2241 conferred upon the district court jurisdiction to consider the petition. We agree with the BOP, however, that the district court erred in concluding that petitioners were likely to succeed on the merits of their Eighth Amendment claim. And, because petitioners are unlikely to succeed on the merits, we must also conclude that the district court abused its discretion by granting petitioners a preliminary injunction.
A.
We must initially address whether the district court properly invoked jurisdiction under 28 U.S.C. § 2241 over petitioners’ claims. We conclude that petitioners’ claims are properly brought under § 2241 because they challenge the fact or extent of their confinement by seeking release from custody. However, because petitioners bring their claims under § 2241, the relief available is circumscribed.
Section 2241 provides jurisdiction to district courts over habeas petitions when a petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).
Petitioners seek release from Elkton and allege that there are “no mitigation efforts that Elkton could undertake that would prevent the risk of contraction—and possible later spread to the non-prison community—to any acceptable degree, other than immediate release of the Medically-Vulnerable Subclass.” DE 1, Habeas Pet., PageID 33. Rather than arguing that there are particular procedures or safeguards that the BOP should put in place to prevent the spread of COVID-19 throughout Elkton, petitioners contend that there are no conditions of confinement sufficient to prevent irreparable constitutional injury at Elkton. They therefore seek release. Our precedent supports the conclusion that where a petitioner claims that no set of conditions would be constitutionally sufficient the claim should be construed as challenging the fact or extent, rather than the conditions, of the confinement. See Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011); cf. Terrell v. United States, 564 F.3d 442, 446−48 (6th Cir. 2009). The Supreme

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Court has held that release from confinement—the remedy petitioners seek here—is “the heart of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 498 (1973).
The BOP’s attempts to classify petitioners’ claims as “conditions of confinement” claims, subject to the PLRA, are unavailing. The BOP is correct that conditions of confinement claims seeking relief in the form of improvement of prison conditions or transfer to another facility are not properly brought under § 2241. See Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013). The BOP relies primarily on Martin v. Overton, 391 F.3d 710 (6th Cir. 2004), to argue that petitioners’ claims are properly characterized as conditions of confinement claims. In Martin, the petitioner sought “transfer to a different prison facility for the purpose of medical treatment and civil damages resulting from the alleged delay and denial of that treatment.” 391 F.3d at 714.
Because petitioners outside the medically-vulnerable subclass sought improvement in the conditions at Elkton rather than release, the district court correctly concluded that the claims by these inmates were conditions of confinement claims not appropriately considered under § 2241.
In contrast, petitioners in the medically-vulnerable subclass bring claims that are readily distinguishable from those in Martin, because “[p]etitioners challenge the extent of their custody and seek release from their confinement at Elkton” rather than transfer to another facility to receive different medical care. CA6 R. 40, Appellee Br., PageID 33. Petitioners also point out that the petitioner in Martin could have any constitutional claims remedied without a change in his custody. Petitioners here, however, contend that the constitutional violations occurring at Elkton as a result of the pandemic can be remedied only by release. The BOP’s framing of the requested relief as seeking transfer or improvement to the BOP’s COVID-19 response procedures overlooks the fact that petitioners in the subclass seek release. Because petitioners seek release from confinement, “the heart of habeas corpus,” Preiser, 411 U.S. at 498, jurisdiction is proper under § 2241.
However, the decision to bring a habeas claim, rather than one challenging the conditions of confinement, limits the type of relief available to petitioners. A district court reviewing a

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claim under § 2241 does not have authority to circumvent the established procedures governing the various forms of release enacted by Congress.
The district court’s preliminary injunction order primarily grants relief consistent with statutory limitations and procedures. The district court ordered the BOP to “evaluate each subclass member’s eligibility for transfer out of Elkton through any means, including but not limited to compassionate release, parole or community supervision, transfer furlough, or nontransfer furlough within two (2) weeks.” DE 22, Order, PageID 371. The preliminary injunction order requires the BOP to evaluate these forms of release and determine if any of the subclass members are eligible. The district court’s order to “prioritize the review [of petitioners] by the medical threat level” is not to the contrary. We decline to set forth a comprehensive list of permissible forms of relief, but we note that the district court’s order requiring transfer from Elkton to another BOP facility was not proper under § 2241. See Martin, 391 F.3d at 714.3
Because petitioners’ claims are properly brought under § 2241, the BOP’s argument that the claims are foreclosed by the PLRA fails. The PLRA does not apply in habeas proceedings. See 18 U.S.C. § 3626(g)(2).
B.
Turning to the preliminary injunction, we focus our analysis on petitioners’ likelihood of success on the merits of their Eighth Amendment claim, as this prong of the preliminary injunction framework is often dispositive.

3We disagree with petitioners’ argument that United States v. Jalili, 925 F.2d 889 (6th Cir. 1991), supports the conclusion that transfer is an available remedy under § 2241. Jalili addressed whether a district court had jurisdiction under 28 U.S.C. § 2255 over a challenge to the BOP’s designation of facility. Id. at 893. The court concluded that the district court did not have jurisdiction under § 2255 because Jalili was challenging “the manner in which the sentence was being executed, rather than the validity of the sentence itself.” Id. at 893–94. Jalili was not simply requesting transfer to another BOP facility, he was arguing that he should not be placed in a higher-security facility contrary to the district court’s explicit direction that he serve his sentence at a community treatment center. Id. at 891. This was properly a challenge to the execution of the district court’s sentence and not an invitation for any petitioners seeking transfer to another facility to bring a claim under § 2241.

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1.
We turn first to petitioners’ likelihood of success on their Eighth Amendment claim. The Eighth Amendment protects all people from “cruel and unusual punishments.” U.S. Const. amend. VIII.
[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well being . . . . The rationale for this principle is simple enough: when 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., food, clothing, shelter, medical care, and reasonable safety—it transgresses the substantive limits on state action set by the Eighth Amendment . . . .
Helling v. McKinney, 509 U.S. 25, 32 (1993) (quoting DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199–200 (1989)).
“The Constitution ‘does not mandate comfortable prisons,’ but neither does it permit inhumane ones, and . . . ‘the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.’” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (first quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981), then quoting Helling, 509 U.S. at 31). “A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Id. at 828.
The Eighth Amendment’s deliberate indifference framework includes both an objective and subjective prong. Id. at 834; Helling, 509 U.S. at 35–37. To satisfy the objective prong, an inmate must show “that he is incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834. Under the subjective prong, an official must “know[] of and disregard[] an excessive risk to inmate health or safety.” Id. at 837. “[I]t is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Id. at 842. “It is, indeed, fair to say that acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk.” Id. at 836. “[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Id. at 844.

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The ultimate fact of whether the BOP’s conduct could constitute deliberate indifference is a mixed question of law and fact that we review de novo. See Williams v. Mehra, 186 F.3d 685, 690 (6th Cir. 1999) (en banc).
Here, the objective prong is easily satisfied. In assessing the objective prong, we ask whether petitioners have provided evidence that they are “incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834. The COVID-19 virus creates a substantial risk of serious harm leading to pneumonia, respiratory failure, or death. The BOP acknowledges that “[t]he health risks posed by COIVD-19 are significant.” CA6 R. 35, Appellant Br., PageID 42. The infection and fatality rates at Elkton have borne out the serious risk of COVID-19, despite the BOP’s efforts. The transmissibility of the COVID-19 virus in conjunction with Elkton’s dormitory-style housing—which places inmates within feet of each other—and the medically-vulnerable subclass’s health risks, presents a substantial risk that petitioners at Elkton will be infected with COVID-19 and have serious health effects as a result, including, and up to, death. Petitioners have put forth sufficient evidence that they are “incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511 U.S. at 834.
Turning to the subjective prong, the question is whether petitioners have demonstrated that the BOP’s response to the COVID-19 pandemic has been deliberately indifferent to this serious risk of harm. We conclude that petitioners are unlikely to succeed on the merits of their Eighth Amendment claim because, as of April 22, the BOP responded reasonably to the known, serious risks posed by COVID-19 to petitioners at Elkton.
There is no question that the BOP was aware of and understood the potential risk of serious harm to inmates at Elkton through exposure to the COVID-19 virus. As of April 22, fifty-nine inmates and forty-six staff members tested positive for COVID-19, and six inmates had died. “We may infer the existence of this subjective state of mind from the fact that the risk of harm is obvious.” Hope v. Pelzer, 536 U.S. 730, 738 (2002). The BOP acknowledged the risk from COVID-19 and implemented a six-phase plan to mitigate the risk of COVID-19 spreading at Elkton.

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The key inquiry is whether the BOP “responded reasonably to th[is] risk.” Farmer, 511 U.S. at 844. The BOP contends that it has acted “assiduously to protect inmates from the risks of COVID-19, to the extent possible.” CA6 R. 35, Appellant Br., PageID 42. These actions include
implement[ing] measures to screen inmates for the virus; isolat[ing] and quarantin[ing] inmates who may have contracted the virus; limit[ing] inmates’ movement from their residential areas and otherwise limit[ing] group gatherings; conduct[ing] testing in accordance with CDC guidance; limit[ing] staff and visitors and subject[ing] them to enhanced screening; clean[ing] common areas and giv[ing] inmates disinfectant to clean their cells; provid[ing] inmates continuous access to sinks, water, and soap; educat[ing] staff and inmates about ways to avoid contracting and transmitting the virus; and provid[ing] masks to inmates and various other personal protective equipment to staff.
Id. at 42–43. The BOP argues that these actions show it has responded reasonably to the risk posed by COVID-19 and that the conditions at Elkton cannot be found to violate the Eighth Amendment. We agree.
Here, while the harm imposed by COVID-19 on inmates at Elkton “ultimately [is] not averted,” the BOP has “responded reasonably to the risk” and therefore has not been deliberately indifferent to the inmates’ Eighth Amendment rights. Farmer, 511 U.S. at 844. The BOP implemented a six-phase action plan to reduce the risk of COVID-19 spread at Elkton. Before the district court granted the preliminary injunction at issue, the BOP took preventative measures, including screening for symptoms, educating staff and inmates about COVID-19, cancelling visitation, quarantining new inmates, implementing regular cleaning, providing disinfectant supplies, and providing masks. The BOP initally struggled to scale up its testing capacity just before the district court issued the preliminary injuction, but even there the BOP represented that it was on the cusp of expanding testing. The BOP’s efforts to expand testing demonstrate the opposite of a disregard of a serious health risk.
This court has found similar responses by prison officials and medical personnel to be reasonable responses to serious risks of harm. In Wooler v. Hickman County, this court held that a jail nurse “clean[ing] every cell, quarantin[ing] the infected inmates, and distribut[ing] information about [a bacterial disease]”—“consistent efforts to reduce th[e] risk”—“preclude[d]

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a finding of deliberate indifference.” 377 F. App’x 502, 506 (6th Cir. 2010); see also Rouster v. County of Saginaw, 749 F.3d 437, 448–49 (6th Cir. 2014) (holding that a prison nurse prescribing over-the-counter medication and placing an inmate in an observation cell were “appropriate steps” even if she “could have and should have done more”); Harrison v. Ash, 539 F.3d 510, 519–20 (6th Cir. 2008) (holding that the officers “reasonably responded to the substantial risk to [the inmate’s] health” when they summoned medical support). “An inmate’s ‘disagreement with the testing and treatment he has received . . . does not rise to the level of an Eighth Amendment violation.’” Rhinehart v. Scutt, 894 F.3d 721, 740 (6th Cir. 2018) (quoting Dodson v. Wilkinson, 304 F. App’x 434, 440 (6th Cir. 2008)).
Our sister circuits have concluded that similar actions by prison officials demonstrate a reasonable response to the risk posed by COVID-19. See Swain v. Junior, 958 F.3d 1081 (11th Cir. 2020) (per curiam); Valentine v. Collier, 956 F.3d 797 (5th Cir. 2020) (per curiam); Marlowe v. LeBlanc, No. 20-30276, 2020 WL 2043425 (5th Cir. Apr. 27, 2020) (per curiam).
In Swain, the Eleventh Circuit granted a stay of a preliminary injunction pending appeal on state inmates’ Eighth Amendment claims. 958 F.3d at 1085. The Eleventh Circuit held that “the inability to take a positive action likely does not constitute ‘a state of mind more blameworthy than negligence,’” and “the evidence supports that [Metro West Detention Center (“MWDC”) is] taking the risk of COVID-19 seriously.” Id. at 1088–90 (citation omitted). In response to the pandemic in early March, MWDC began “cancelling inmate visitation; screening arrestees, inmates, and staff; and advising staff of use of protective equipment and sanitation practices” and, after reviewing further CDC guidance, began “daily temperature screenings of all persons entering Metro West, establish[ed] a ‘COVID-19 Incident Command Center and Response Line’ to track testing and identify close contacts with the virus, develop[ed] a social hygiene campaign, and mandate[d] that staff and inmates wear protective masks at all times.” Id. at 1085–86. The Eleventh Circuit held that, because MWDC “adopted extensive safety measures such as increasing screening, providing protective equipment, adopting [physical] distancing when possible, quarantining symptomatic inmates, and enhancing cleaning procedures,” MWDC’s actions likely did not amount to deliberate indifference. Id. at 1090.

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Similarly, the Fifth Circuit granted stays of two preliminary injunctions in Valentine and Marlowe. In Valentine, inmates at Texas’s Wallace Pack Unit filed a class action suit against the Texas Department of Criminal Justice (“TDCJ”) alleging violations of the Eighth Amendment. 956 F.3d at 799. In response to the COVID-19 pandemic, TDCJ had taken preventative measures such as providing “access to soap, tissues, gloves, [and] masks,” implementing “regular cleaning,” “quarantin[ing] of new prisoners,” and ensuring “[physical] distancing during transport.” Id. at 802. The Fifth Circuit determined that the district court applied the wrong legal standard by “collaps[ing] the objective and subjective components of the Eighth Amendment inquiry” by “treating inadequate measures as dispositive of the Defendants’ mental state” under the subjective prong and held that “accounting for the protective measures TDCJ has taken” the plaintiffs had not shown deliberate indifference. Id. at 801–03. In Marlowe, the Fifth Circuit relied on its reasoning in Valentine and again reiterated that there was “little basis for concluding that [the correctional center’s] mitigation efforts,” which included “providing prisoners with disinfectant spray and two cloth masks[,] . . . limiting the number of prisoners in the infirmary lobby[,] and painting markers on walkways to promote [physical] distancing,” were insufficient. 2020 WL 2043425, at *2–3.
Petitioners, and the dissent, urge us to conclude that the BOP was deliberately indifferent to petitioners’ health and safety because the BOP’s actions have been ineffective at preventing the spread of COVID-19 at Elkton and the BOP “has chosen not to take available action to meaningfully address the risk.” CA6 R. 40, Appellee Br., PageID 46–48.4 Petitioners argue that the BOP “taking measures that it knows will fail is [not] enough to pass constitutional muster.” Id. at 46–47. Relying on Richmond v. Huq, 885 F.3d 928 (6th Cir. 2018), Darrah v. Krisher, 865 F.3d 361 (6th Cir. 2017), and Phillips v. Roane County, 534 F.3d 531 (6th Cir. 2008), petitioners assert that prison officials “are still deliberately indifferent if they take or persist in a course of action that they know to be ineffective.” CA6 R. 40, Appellee Br., PageID 47–48.
4The dissent contends that the BOP’s procedures are inadequate “half-measures” and the supplies provided “reveal[] deep inadequacies.” We note, however, that the district court did not hold a hearing prior to granting the preliminary injunction and did not attempt to resolve factual discrepancies in the declarations provided by petitioners and the BOP. For example, the dissent states, “the record reflects that inmates received four ounces of soap per week,” but the BOP also explained that “inmates may receive new soap weekly” and additional soap “upon request.” DE 10-1, Dees Decl., PageID 183–84.

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Additionally, petitioners fault the BOP for failing to make use of the various options for reducing the population at Elkton to enable physical distancing, such as through home confinement or furlough.
First, petitioners’ argument that the BOP’s response to the COVID-19 virus has been so ineffective as to constitute deliberate indifference fails. The BOP has not shown the same sense of disregard by prison officials as in our cases finding deliberate indifference. Richmond, Darrah, and Phillips are not to the contrary.
In Richmond, the plaintiff’s claims “center[ed] around the Jail staff’s failure to change her dressings as prescribed, to provide her with pain medication as prescribed, and to provide her with psychiatric medication for the first three weeks of her incarceration in spite of their knowledge that she had been taking such medication prior to her incarceration.” 885 F.3d at 938. Assessing whether a doctor attending to Richmond was deliberately indifferent to her medical needs, the court concluded that summary judgment was inappropriate because Richmond’s medical chart showed that her medical dressing had not been changed six out of sixteen days and she had missed ten dosages of her medication. Id. at 939–41. Because reviewing the medical chart would have made the doctor aware of the jail staff’s failure to provide care and the doctor took no action to ensure the treatment plan was being followed, the court held that a jury could find the doctor was deliberately indifferent to Richmond’s serious medical needs. Id. at 940–41. But Richmond explained that an official will likely not be found to be deliberately indifferent if they took some action, even if that action was inadequate. Id. at 939; see also id. (“[W]here medical care is merely inadequate, this Court is ‘generally reluctant to second guess medical judgments.’” (quoting Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011))). Here, even if the BOP’s response has been inadequate, it has not disregarded a known risk or failed to take any steps to address the risk, like the doctor in Richmond, such that its response falls below the constitutional minimum set by the Eighth Amendment.
Similarly, petitioners point to the claim in Darrah that continued treatment with an ineffective drug constituted deliberate indifference. 865 F.3d at 368. This court concluded that because “the only affirmative action that [the doctor] took was to increase the dosage of [the drug],” the medical treatment was “essentially the equivalent of no treatment at all.” Id. at

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369–70. The BOP, in contrast, has taken many affirmative actions to not only treat and quarantine the inmates at Elkton who have tested positive, but also to prevent widespread transmission of COVID-19. These actions have evolved as new guidance has emerged. The BOP’s ongoing and dynamic response to a novel threat can hardly be compared to the doctor’s lack of response in the face of no improvement in the inmate’s condition in Darrah.
Additionally, in Phillips, this court found evidence of deliberate indifference when officials disregarded certain prison protocols requiring officials to transport an inmate to a medical center for evaluation. 534 F.3d at 541. The court concluded that the officials’ failure to comply with the protocols and transport the inmate to the medical center, for over two weeks, sufficed to show evidence of deliberate indifference. Id. In contrast, here the BOP has not turned a blind eye or deaf ear to a known problem that would indicate such a lack of concern for petitioners’ welfare. The BOP has in fact put in place and updated its protocols to address the novel risks from COVID-19. The BOP’s steps to prevent and mitigate COVID-19 spread at Elkton are likely reasonable responses to this serious risk.
Second, petitioners contend that the BOP’s response was not a reasonable response to the virus because the BOP had not made full use of the tools available to remove inmates from Elkton, such as temproary release, furlough, or home confinement. But our precedents do not require that prison officials take every possible step to address a serious risk of harm. See Rouster, 749 F.3d at 448–49; Jones v. Muskegon County., 625 F.3d 935, 944–46 (6th Cir. 2010); Wilkinson, 304 F. App’x at 440. And we must take into account the “constraints facing the official[s].” Wilson v. Seiter, 501 U.S. 294, 303 (1991) (emphasis omitted). For example, although the BOP has the ability to recommend compassionate release, only the sentencing court is authorized to reduce a term of imprisonment. 18 U.S.C. § 3582(c). Similarly, the BOP has authority under 18 U.S.C. § 3622 to temporarily release an inmate for a period up to thirty days, but the bases for granting this release are limited to a delineated list of reasons including obtaining medical treatment, visiting a dying relative, or “engaging in any other significant activity consistent with the public interest.” 18 U.S.C. § 3622(a). Finally, as the BOP explains, there are significant risks to inmates and staff when transferring inmates to another facility. The BOP intentionally stopped inmate facility transfers under Phase Two of its response. In light of

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the BOP’s other measures to prevent the spread of COVID-19, and given the limitations on the BOP’s authority to release inmates, its failure to make robust use of transfer, home confinement, or furlough to remove inmates in the medically-vulnerable subclass from Elkton does not constitute deliberate indifference.
We conclude that petitioners have not provided sufficient evidence to show that the BOP was deliberately indifferent to the serious risk of harm presented by COVID-19 at Elkton. This conclusion is dispositive. “[O]ur cases warn that a court must not issue a preliminary injunction where the movant presents no likelihood of merits success.” Daunt v. Benson, 956 F.3d 396, 421–22 (6th Cir. 2020) (quoting La.-Pac. Corp. v. James Hardie Bldg. Prod., Inc., 928 F.3d 514, 517 (6th Cir. 2019)); see also Cooey v. Strickland, 604 F.3d 939, 946 (6th Cir. 2010). The district court erred in holding that petitioners had demonstrated a likelihood of success on their Eighth Amendment claim.
2.
Although petitioners’ failure to demonstrate a likelihood of success on the merits is dispositive, we briefly note that the district court’s consideration of the other preliminary injunction factors was incomplete. The district court correctly noted that inmates at Elkton face a risk of irreparable injury if they are infected by COVID-19. However, the district court gave scant attention to the harms the BOP argued would result from the injunction and ignored the Supreme Court’s instruction that the harm to the opposing party and the public interest factors “merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). For example, the BOP argued that release of inmates “‘would cause substantial damage to others’ because there is no assurance that the inmates can care for themselves upon release.” DE 22, Order, Page ID 368. The district court dismissed this argument, noting that “[p]etitioners do not ask this Court to throw open the gates to the prison.” Id. at 368–69. That may be true, but the injunction would result in release of some prisoners, and the district court’s response does not address the BOP’s concerns about how the released inmates would look after themselves. The district court’s response to the BOP’s concerns about the impact on the public from release of inmates is similarly insufficient. The district court rejected the BOP’s argument that prisoners might have no safe place to go upon release and return to their criminal activities upon release by

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saying that the BOP “might as well be arguing against the release of any inmate[] at any time.” Id. That response does not address the legitimate concerns about public safety the BOP raised. In granting a preliminary injunction without adequately addressing the remaining preliminary injunction factors, the district court abused its discretion.
IV.
Because petitioners have not shown a likelihood of success on the merits of their Eighth Amendment claim, the district court abused its discretion in granting the preliminary injunction. We accordingly vacate the district court’s April 22, 2020 preliminary injunction.

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_______________________________________________________
CONCURRING IN PART AND DISSENTING IN PART _______________________________________________________
COLE, Chief Judge, concurring in part and dissenting in part. COVID-19 is not only highly infectious but also devastating to those unfortunate enough to contract it. It attacks the nose, throat, and lungs of its victims, resulting in effects ranging from flu-like symptoms, to pneumonia, to acute respiratory disease, to death. The likelihood of more severe effects increases dramatically for those who are of an advanced age or who have any number of preexisting conditions, including cardio-vascular disease, respiratory disease, asthma, diabetes, and diseases that compromise the immune system. The inmates whom this preliminary injunction addresses all have characteristics that make them more likely to suffer and die should COVID-19 infect them.
To combat the spread of the virus, the government has recommended that Americans “socially distance” from each other by staying home whenever possible and controlling the nature and extent of their interactions with others to minimize the risk of exposure. But that precaution, which has become routine for so many seeking to guard against infection over the past few months, is unavailable to inmates. Instead, prisoners have been placed in a deadly predicament: prevented by the fact of their confinement from taking recommended precautions, they are left exceptionally exposed to a deadly virus. This reality is particularly concerning for medically vulnerable inmates like those in the subclass.
This predicament has already had deadly consequences at Elkton, which has become an epicenter of the pandemic within the federal prison system. There, groups of roughly 150 inmates continue to be housed together in close quarters. Perhaps predictably, the virus had spread rapidly among inmates and staff alike at the prison by the time the district court issued its preliminary injunction on April 22, 2020. By that time, six inmates at the prison had already died, and more clung to life only with the aid of ventilators, all while the BOP failed to take action to allow the 837 medically vulnerable inmates in its charge at Elkton to follow public health guidelines by maintaining an appropriate distance between themselves and their fellow

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inmates. This failure left these inmates in a perilous situation, which the district court sought to address through the preliminary injunction before us today. Upon review of the record, I conclude that the district court did not abuse its discretion in granting the preliminary injunction. I therefore respectfully dissent from the majority’s opinion finding that it did so.
I.
For the reasons it thoughtfully explains, I concur with the majority’s determination that the district court properly had jurisdiction in this case under 28 U.S.C. § 2241, as the petitioners seek to challenge the fact or extent of their confinement. See Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011). For that reason, I also agree that the PLRA is inapplicable to this case. I disagree, however, with the conclusion that the district court lacked jurisdiction to order the transfer of inmates to another BOP facility, as I read United States v. Jalili, to suggest that such relief is available in a § 2241 claim. See 925 F.2d 889, 893–94 (6th Cir. 1991). Moreover, I do not see our decision in Martin v. Overton as being in tension with this conclusion, as that case, unlike this one, involved a conditions-of-confinement claim rather than a fact-of-confinement one. 391 F.3d 710, 714 (6th Cir. 2004).
II.
Our review of a district order granting a preliminary injunction is “highly deferential.” Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 219, 233 (6th Cir. 2011) (internal quotation marks and citation omitted). We review factual determinations for clear error, legal conclusions de novo, and the overall decision to grant a preliminary injunction for abuse of discretion. Champions Golf Club, Inc. v. The Champions Golf Club, Inc., 78 F.3d 1111, 1116 (6th Cir. 1996). As the majority notes, the district court considers four factors in determining whether to grant a preliminary injunction:
(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction.

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E.g., City of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (per curiam).
The majority vacates the preliminary injunction based on its assessment of the petitioners’ likelihood of succeeding on the merits of their Eighth Amendment claims. I agree with the majority that the threat of COVID-19 to medically vulnerable inmates in our nation’s prisons is an objectively serious one, even more so at a facility like Elkton where prisoners are kept in large groups where they cannot practice social distancing. I disagree, however, with the conclusion that the petitioners are unlikely to succeed in showing that the BOP was deliberately indifferent in responding to that threat.
Our case law is clear: we do not turn a blind eye to prison conditions when the treatment prison officials provide in response to a serious medical need is “so woefully inadequate as to amount to no treatment at all.” Alspaugh v. McConnell, 643 F.3d 162, 169 (6th Cir. 2011) (internal quotation marks and citation omitted). Relying on this principle, we found officials to be deliberately indifferent when they persisted in treating an inmate’s medical condition with medication that was known to be ineffective instead of an alternative that had proven to be much more effective in addressing the condition. See Darrah v. Krisher, 865 F.3d 361, 369 (6th Cir. 2017).
The circumstances here are analogous to those that we considered in Darrah. Here, the BOP says that it relied on guidelines from the Centers for Disease Control (“CDC”) in crafting its response to the spread of COVID-19 at Elkton. Those guidelines provide that social distancing is “a cornerstone of reducing transmission of respiratory disease.” CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities at 4 (Mar. 23, 2020) https://www.cdc.gov/coronavirus/2019ncov/downloads/guidance-correctional-detention.pdf. Yet, the BOP’s multiphase response does not include a single phase that allows for meaningful social distancing. Like the officials in Darrah, the BOP persisted with ineffective measures when an effective one was readily available. The fact that the ineffective measures here came in the form of multiple actions instead of a single one does not excuse the BOP’s choice to ignore methods that address this “cornerstone” of respiratory-disease management. That failure is more jarring when one

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considers that both Congress and Attorney General Barr went out of their way to urge the BOP to take more aggressive measures to address the virus in its facilities.
First, Congress passed the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, which allowed the Attorney General to expand the BOP’s ability to move prisoners to home confinement. See CARES Act, Pub. L. No. 116-136, § 12003(b)(2) (2020). Next, the Attorney General expanded the availability of transfers to home confinement. Then, on April 3, 2020, the Attorney General turned his attention directly to Elkton and other facilities where the COVID-19 outbreak had become particularly severe. He expressly directed the BOP to “immediately maximize appropriate transfers to home confinement of all appropriate inmates” being held at Elkton and the other facilities where COVID-19 was “materially affecting operations.” (R. 10-3, PageID 197.)
Nineteen days passed between the Attorney General’s directive to the BOP regarding the use of home confinement for Elkton inmates and the district court’s order issuing the preliminary injunction that is at issue in this appeal. During that time, the record does not reflect a substantial effort on the part of the BOP to evaluate for home confinement even the 837 medically vulnerable inmates who make up the subclass. That inexplicable delay had dire consequences. By the time the district court issued its order, six Elkton inmates had already succumbed to COVID-19, with others left hospitalized with severe conditions. That number of cases is even more striking when one considers that the most recent BOP figures show that 78 inmates in federal custody have died from the virus to date, meaning that nearly 8% of all inmate deaths over three months occurred at Elkton—a low-security facility that houses less than 2% of all federal inmates—within the first month of the pandemic. BOP, COVID-19 Cases, https://www.bop.gov/coronavirus/. I am left with the inescapable conclusion that the BOP’s failure to make use of its home confinement authority at Elkton, even as it stared down the escalating spread of the virus and a shortage of testing capacity, constitutes sufficient evidence for the district court to have found that petitioners were likely to succeed on their Eighth Amendment claim.
This conclusion is not inconsistent with the decisions of other circuits. In Swain v. Junior, 958 F.3d 1081 (11th Cir. 2020), the Eleventh Circuit considered an Eighth Amendment

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claim arising out of a state jail and found the efforts that officials at the jail had undertaken were sufficient to preclude a finding of deliberate indifference. 958 F.3d at 1089. Some of the steps taken by those officials mirror the measures employed by the BOP here, including cancellation of inmate visitation, screening, use of personal protective equipment, and sanitation practices. Id. at 1085–86. There was, however, one crucial difference. The Eleventh Circuit observed that the officials had implemented social distancing efforts, including changing the position of bunks to maximize social distancing. Id. This record does not reveal similar efforts at Elkton, where inmates still sleep in close proximity in units of 150 prisoners.
The Fifth Circuit also confronted a similar challenge regarding a state facility in Valentine v. Collier, 956 F.3d 797 (5th Cir. 2020). There, the court did not reach the merits of the deliberate indifference issue, as it found that the district court had misapplied the Eighth Amendment standard altogether. Id. at 802. The Fifth Circuit seemed particularly troubled that the officials in Valentine did not have a basis to conclude that their actions were inadequate. Id. In contrast, the BOP here had a memorandum from the Attorney General highlighting the severity of the outbreak at Elkton and detailing specific steps to address it. In Marlowe v. LeBlanc, the Fifth Circuit also rejected an argument that an increased infection rate alone shows deliberate indifference. No. 20-30276, 2020 WL 2043425 at *3 (5th Cir. Apr. 27, 2020). But that argument is not the one we consider today, as petitioners rely on far more than the infection rate to make their case.
The BOP casts its overall response to COVID-19 as a “multiphase action plan.” See BOP Br. at 4. That phrase sounds good on paper; it conveys the message that the BOP is doing all that it possibly can to address the outbreak at Elkton. But it means little until we look behind the curtain and examine whether the plan’s phases move the BOP closer to keeping the inmates safe. Such an examination here reveals that the BOP’s six-phase plan to address COVID-19 is far less impressive than its title suggests. That plan consists of two different phases addressing the screening of inmates, an entire phase consisting of only taking inventory of the BOP’s cleaning supplies, a phase where the BOP confined inmates to their quarters where they cannot socially distance, and a final phase that just extended the previous one. (R. 10-1, PageID 174–78.) It turns out, then, that the “six-phase” plan is, for practical purposes, a four-phase plan where one

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phase is taking inventory of supplies and another involves the locking of inmates in 150-person clusters where they cannot access the principal method of COVID-19 prevention. Suffice to say, with stakes this high, the specifics matter far more than the headline. As another court observed, “[t]he government’s assurances that the BOP’s ‘extraordinary actions’ can protect inmates ring hollow given that these measures have already failed to prevent transmission of the disease.” United States v. Rodriguez, 2020 WL 1627331 at *8 (E.D. Pa. 2020).
Similar scrutiny of the personal protective equipment and cleaning supplies provided to inmates also reveals deep inadequacies. The BOP says that it provided inmates with soap, personal protective equipment, and disinfectant. At first glance, these certainly seem to be positive steps to prevent the spread of the virus. But the record reflects that inmates received four ounces of soap per week and only two disposable masks, and that the disinfectant provided was “watered down.” (R. 1-10, PageID 92; R. 1-11, PageID 95.)
The flaws inherent in the half-measures employed by the BOP are amplified by the BOP’s inability to test inmates for COVID-19. At the time of the preliminary injunction, the BOP had only obtained 75 tests for roughly 2,500 inmates at Elkton. (R. 19, PageID 262–63.) The fact that more than two-thirds of those tests came back positive suggests an extremely high infection rate, but the BOP’s testing shortage ensured that the record would not reflect the precise figure. (Id.) The BOP’s failure to test inmates cannot be blamed on a general inability for prison officials to procure tests either. By that same date, Marion Correctional Institution, a comparably sized state facility in Ohio, had tested nearly all of its inmates. (R. 22, PageID 355.)
The measures the BOP took to address the virus, along with those it failed to take, lead me to the conclusion that it did not respond reasonably to the outbreak of COVID-19 at Elkton. As such, the petitioners are likely to succeed on the merits of their Eighth Amendment claim.
III.
I also find that the balance of the other preliminary injunction factors decidedly favors the petitioners.

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The petitioners will be irreparably harmed without an injunction. In the fight against the spread of COVID-19, time is plainly of the essence. Each day spent in detention at Elkton increases the threat to the inmates’ health and life. Such an ongoing medical risk—particularly in light of the medical vulnerabilities of the subclass—cautions against vacating the preliminary injunction. Concerned Pastors for Soc. Action v. Khouri, 844 F.3d 546, 549 (6th Cir. 2016) (per curiam). The district court recognized that this virus is spreading through Elkton so quickly that current testing capacity cannot keep up. The court accordingly directed the BOP to identify vulnerable inmates at Elkton and begin the process of evaluating available arrangements to protect them from the spread of the virus. It is quite possible that, absent a preliminary injunction, the ultimate success of these claims might come too late for vulnerable inmates who could die if forced to remain at Elkton as litigation proceeds.
The BOP argues that it and the public interest are harmed by the preliminary injunction. These arguments fail. The BOP’s recitation of the harms that the injunction purportedly causes vaguely refers to unspecified disruptions to its operations required by the devotion of resources to complying with the injunction. But the Supreme Court tells us that “[m]ere injuries, however substantial, in terms of money, time and energy necessarily expended . . . are not enough” to demonstrate irreparable harm. Sampson v. Murray, 415 U.S. 61, 90 (1974) (quoting Va. Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958)). And even if compliance with the order detracts from other functions, there is no higher and better use of BOP resources than to fulfill its legal and moral obligation to care for the lives of those in its custody. See Estelle v. Gamble, 429 U.S. 97, 103–04 (1976).
The BOP’s concerns about the challenges caused by affording inmates access to the alternative arrangements contemplated by the preliminary injunction are unsupported by the record. The BOP does not to point to any evidence that releasing inmates who are eligible for home confinement pursuant to the updated guidance provided in the CARES Act and by the Attorney General will somehow be unable to care for themselves or pose a threat to the public interest. Indeed, Congress’s decision to update the requirements for home confinement suggests that, if anything, the public interest is served by more eligible prisoners being released to home confinement. Finally, the BOP’s claim that the inability to maintain social distancing during

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transfer poses a threat lacks support, as the inmates who would be transferred are already being held in a situation where they cannot engage in social distancing. A transfer process with imperfect social distancing in the short term to achieve a better situation until the pandemic abates or an effective vaccine comes to market is not a greater threat to the public interest than the indefinite confinement of the same prisoners in a facility where they cannot practice social distancing at all.
With the balance of the harms favoring the petitioners, I conclude that the district court did not abuse its discretion in issuing the preliminary injunction.
IV.
All observers of good conscience can agree that the spread of COVID-19 in jails and prisons is an urgent problem. To address that problem in federal prisons, we rely on the BOP to take measures to protect its inmates, a task that requires consistent, dedicated effort from prison administrators. To be sure, acting more swiftly and thoroughly may require the BOP to spend additional time and resources to keep its inmates safe. But when the government “takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general wellbeing.” DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 199–200 (1989). For the sake of the 837 medically vulnerable prisoners who depend on the BOP to maintain their health and safety, it is my hope that as the BOP continues its efforts to manage the COVID-19 outbreak at Elkton, it will increase its efforts to live up to that responsibility.
For these reasons, I respectfully dissent.

Case: 4:20-cv-00794-JG Doc #: 117-1 Filed: 06/11/20 1 of 1. PageID #: 1468

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 20-3447

CRAIG WILSON, ERIC BELLAMY, KENDAL NELSON, and MAXIMINO NIEVES, on behalf of themselves and all others similarly situated,
Petitioners - Appellees,
v.
MARK WILLIAMS, in his official capacity as Warden of Elkton Federal Correctional Institution; MICHAEL CARVAJAL, in his official capacity as the Federal Bureau of Prisons Director,
Respondents - Appellants.

FILED
Jun 09, 2020
DEBORAH S. HUNT, Clerk

Before: COLE, Chief Judge; GIBBONS and COOK, Circuit Judges.
JUDGMENT
On Appeal from the United States District Court for the Northern District of Ohio at Youngstown.
THIS CAUSE was heard on the record from the district court and was argued by counsel.
IN CONSIDERATION THEREOF, it is ORDERED that the district court’s April 22, 2020 preliminary injunction is VACATED.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
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FILED
12:51 pm Jun 10 2020 Clerk U.S. District Court
Northern District of Ohio Cleveland

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 Case: 4:20-cv-00794-JG Doc #: 30 Filed: 04/28/20 1 of 2. PageID #: 445

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CRAIG WILSON, et al., Petitioners,
v. MARK WILLIAMS, Warden of Elkton Federal Correctional Institution, et al.,
Respondents.

) CASE NO.: 4:20cv794 ) ) JUDGE JAMES S. GWIN ) ) ) ) CORRECTED EMERGENCY ) MOTION FOR STAY ) PENDING APPEAL ) )

Now come Respondents Mark Williams, Warden of Elkton Federal Correctional Institution and Michael Carvajal, Director of Federal Bureau of Prisons (“Respondents”), and, pursuant to Fed. R. Civ. P. 62(d), hereby respectfully move this Court to stay its Order and suspend the preliminary injunction contained therein issued on April 22, 2020 [ECF No. 22], pending final resolution of the appeal filed by Respondents on April 27, 2020. (Notice of Appeal, ECF No. 26 PageID # 394.) The grounds for this Motion are more fully set forth in the Memorandum in Support filed contemporaneously herewith.

(Signatures on the following page.) 1

Case: 4:20-cv-00794-JG Doc #: 30 Filed: 04/28/20 2 of 2. PageID #: 446
Respectfully submitted, JUSTIN E. HERDMAN United States Attorney By: /s/ James R. Bennett II James R. Bennett II (OH #0071663) Sara DeCaro (OH #0072485) Assistant United States Attorneys United States Courthouse 801 West Superior Ave., Suite 400 Cleveland, Ohio 44113 216-622-3988 - Bennett 216-522-4982 - Fax James.Bennett4@usdoj.gov Sara.DeCaro@usdoj.gov Attorneys for Respondents
2

Case: 4:20-cv-00794-JG Doc #: 30-1 Filed: 04/28/20 1 of 18. PageID #: 447

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CRAIG WILSON, et al.,
Petitioners, v. MARK WILLIAMS, Warden of Elkton Federal Correctional Institution, et al.,
Respondents.

) CASE NO.: 4:20cv794 ) ) ) JUDGE JAMES S. GWIN ) ) ) ) CORRECTED MEMORANDUM ) IN SUPPORT OF ) EMERGENCY MOTION TO STAY ) ) )

Case: 4:20-cv-00794-JG Doc #: 30-1 Filed: 04/28/20 2 of 18. PageID #: 448
Pursuant to Fed. R. Civ. P. 62(d), Respondents Mark Williams, Warden of Elkton Federal Correctional Institution and Michael Carvajal, Director of Federal Bureau of Prisons (“Respondents”) hereby respectfully request that this Court stay its Order and suspend the preliminary injunction contained therein issued on April 22, 2020 [ECF No. 22], pending final resolution of the appeal filed by Respondents on April 27, 2020, including any further requirement to publish the names on the list compiled by BOP. (Notice of Appeal, ECF No. 26 PageID # 394.) Respondents further respectfully request that the Court stay the briefing schedule for class certification and any hearing related thereto because it will conserve judicial resources and prevent a ruling in a case in which the court of appeals may determine that this Court lacks jurisdiction. Respondents submit that a stay is appropriate in this matter because they are likely to succeed on the merits on appeal and because the preliminary injunction inflicts significant harms on the public and the government that greatly outweigh any potential harm to Petitioners from a stay. Further, Respondents respectfully request an expedited ruling on this motion by 4:00 p.m. on April 30, 2020, because, if this Court does not grant a stay, Respondents will need to seek such relief in the Court of Appeals at that time to ensure meaningful relief in advance of upcoming deadlines and requirements imposed by the Court.
BACKGROUND On April 22, 2020, the Court issued a preliminary injunction requiring that Respondents (1) identify within one day all members of a “subclass” that the Court defined to include Elkton inmates who are considered to be at high risk according to guidelines of the Centers for Disease Control and Prevention (CDC), (2) evaluate each subclass member’s eligibility for transfer out of Elkton through any means, including, but not limited to, compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough within two weeks; and (3)
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transfer subclass members who are ineligible for compassionate release, home release, or parole or community supervision to another BOP facility where appropriate measures, such as testing and single-cell placement, or social distancing, may be accomplished. (ECF# 22 PageID # 37172.)
In compliance with the Court’s order, BOP compiled a list of 837 inmates who are over the age of 65 and/or have diagnosed medical conditions identified by the CDC as making an individual at higher risk of complications from COVID-19. (See, Second Declaration of Kristy Cole (“Cole-2 Decl.”), attached hereto as Exhibit A, at ¶ 46.). Compilation of the list satisfied the first requirement of the Court’s preliminary injunction. Because inclusion on the list discloses that an inmate has one or more potential risk factors, Respondents moved to seal the list to protect this highly personal and privileged information of hundreds of third-parties. (Mot. to Seal, ECF No. 24 PageID # 389.) The Court denied the Motion on April 27, 2020. (Minutes of Status Conference, ECF No. 27, PageID # 395.)
Under the terms of the Court’s preliminary injunction order, BOP estimates that it will take in excess of 418 man-hours to preliminarily evaluate all the inmates on the list for transfer. (Cole-2 Decl. at ¶ 47.) After the preliminary evaluation, significant work is needed to further evaluate and process each inmate prior to the inmate leaving Elkton. (Id. at ¶ 48.) This includes developing a release plan; conducting multiple checks, victim/witness notifications; and considering inmate health issues. (Id.) Many other offices within the Department of Justice— who are not named respondents here–would be required to be involved in the transport release process, including United States Probation Offices, United States Attorneys’ Offices, sentencing courts, and the United States Marshal Service. (Id.) The same BOP staff needed to comply with the Court’s Order are currently tasked with considering requests made by inmates across the
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country who are not on the newly generated list, their normal operational duties, and additional duties already asked of staff in responding to the COVID-19 pandemic. (Id. at ¶ 47.)
Even before the Petitioners brought this action and before the Court issued a preliminary injunction, the BOP was acting urgently to mitigate the risks of COVID-19 within its facilities and to reduce prison populations, to the extent possible and authorized by Congress. The BOP was, for example, already prioritizing the use of home confinement as a tool for combatting the dangers that COVID-19 poses to vulnerable inmates pursuant to the Attorney General’s March 26, 2020 and April 3, 2020 Memoranda. (ECF No. 10-2 PageID # 192 at ¶ 17.) The BOP has also been assessing and, in appropriate instances, recommending that an inmate’s sentencing court reduce a term of imprisonment under 18 U.S.C. § 4205.
In addition to reducing prison populations, BOP has taken extensive measures to reduce the spread of COVID-19 among the inmates at Elkton, including providing inmate and staff education; conducting inmate and staff screening; testing, quarantine, and isolation procedures; enhanced cleaning and sanitization protocols; providing soap, cleaning supplies, and personal protective equipment (PPE) to inmates; and restricting inmates to their residential area with only one pod moving at a time. (ECF# 10-1 PageID # 178-185 at ¶¶ 19-54). These efforts have been working as the number of new cases has been reduced.
On April 27, 2020, Respondents filed a Notice of Appeal to the Sixth Circuit from the Court’s preliminary injunction, including the Court’s determination that it has jurisdiction over this case. (Not. of Appeal, ECF No. 26 PageID # 394.) For the reasons discussed below, Respondents respectfully request this Court to stay its Order and suspend the preliminary injunction contained therein issued on April 22, 2020 [ECF No. 22]. On addition, Respondents further request that the Court stay its instruction to file the names of inmates identified by BOP
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on the public docket and also stay briefing on class certification. ARGUMENT
This Court has discretion to stay execution of its judgment pending resolution of an appeal. Fed. R. Civ. P. 62(d). A. Philip Randolph Institute v. Husted, 907 F.3d 913, 917 (6th Cir. 2018). Courts consider four factors when determining if a stay is warranted: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Id.; Hilton v. Braunskill, 481 U.S. 870, 867-77 (1987); Concerned Pastors for Soc. Action v. Khouri, 844 F.3d 546, 548 (6th Cir. 2016). “These four factors ‘are not prerequisites that must be met, but are interrelated considerations that must be balanced’ together.” Khouri, 844 F.3d at 548 (quoting In re EPA, 803 F.3d 804, 806 (6th Cir. 2015). As demonstrated below, Respondents have met their burden of showing that this Court should exercise its discretion to stay its order pending appellate review, Nken v. Holder, 556 U.S. 418, 433–34 (2008), because a balancing of the factors supports the issuance of a stay pending appeal. Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 156 (6th Cir. 1991). I. RESPONDENTS ARE LIKELY TO SUCCEED ON APPEAL
Respondents are likely to succeed on the merits of the appeal because binding Circuit precedent precludes habeas relief in these circumstances, the Prison Litigation Reform Act (PLRA) prohibits the Court from requiring transfer or release of prisoners, and the Petitioners have failed to establish an Eighth Amendment violation. Success on the merits is supported by other courts who have rejected arguments like those made by Petitioners. See, e.g. Livas v. Myers, No. 2:20-cv-00422-TAD-KK, 2020 WL 1939583 (W.D. La. Apr. 22, 2020) (Doughty, J.)
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(dismissing complaint with prejudice for lack of subject-matter jurisdiction, explaining that designation and classification decisions “fall[] squarely within BOP’s authority and outside the purview of this Court,” and noting that a contrary reading would make the court a “de facto ‘super’ warden of Oakdale”) Furando v. Ortiz, No. 1:20-cv-03739-RMB, 2020 WL 1922357 (D.N.J. Apr. 20, 2020) (Bumb, J.) (dismissing habeas petition for failure to exhaust administrative remedies as set forth in 28 CFR §§ 542.10 to 542.19); Plata v. Newsom, No. 01cv-01351, 2020 WL 1908776 (N.D. Cal. Apr. 17, 2020) (Tigar, J.) (holding that the State of California, which had taken measures similar to BOP, had not exhibited “deliberate indifference” even though it could not provide for social distancing and holding that the court would lack authority to release prisoners in any event because only a three-judge court can release prisoners to cure a systemic violation of the Eighth Amendment) A movant “need not always establish a high probability of success on the merits” and a stay is granted with a showing of “serious questions going to the merits” when the movant demonstrates irreparable harm that decidedly outweighs harm to Petitioners. Griepentrog, 945 F.2d at 153-54.
A. Habeas Relief Is Improper As this Court recognized in its April 22, 2020 order, it is well-settled in the Sixth Circuit that a habeas petition under 28 U.S.C. § 2241 “is not the proper vehicle for a prisoner to challenge conditions of confinement.” Luedtke v. Berkebile, 704 F.3d 465, 466 (6th Cir. 2013). It is plain that Petitioners here challenge the conditions of their confinement at Elkton. Indeed, Petitioners’ own characterization of their claim is that “incarceration amid the COVID19 outbreak at Elkton violates their rights to constitutional conditions of confinement.” (Pet., ECF No. 1 PageID # 31 (emphasis added; capitalization omitted). The theory of relief is not that there is a defect in Petitioners’ convictions or sentences or that they are entitled to release from
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BOP custody, but rather that they should be allowed to complete their terms of custody in a different setting because they believe the conditions at the facility where they are currently being held are unconstitutional. These claims are no different from a suit brought under 42 U.S.C. § 1983 alleging that an inmate’s conditions of confinement violate the Eighth Amendment because the inmate is not receiving necessary medical care.
The Sixth Circuit held as much in Martin v. Overton, 391 F.3d 710, 714 (6th Cir. 2004), where an inmate “sought a transfer to a different prison facility for the purpose of medical treatment.” The court noted that the inmate had improperly asserted that claim under section 2241 because he “did not challenge the terms or validity of his state prison term,” and held that “the district court should have dismissed the petition without prejudice to allow [the inmate] to raise his potential civil rights claim properly as a § 1983 action.” Id.
This Court has acknowledged that “[i]nmates challenging BOP’s COVID-19 response challenge the dangerous conditions within the prison created by the virus.” Order, ECF No. 22 PageID # 361 (emphasis added). The Court’s decision to grant habeas relief to allegedly medically-vulnerable inmates and require transfer to a different facility directly conflicts with the reasoning in Martin that habeas relief is not available—the claims of the subclass here are indistinguishable from the claim in Martin. Respondents are therefore likely to establish on appeal that this Court lacks jurisdiction to grant relief under § 2241.
B. The PLRA Precludes the Relief Ordered Respondents are also likely to succeed in establishing that the preliminary injunction contravenes the Prison Litigation Reform Act’s (“PLRA”) strict limits on the release of prisoners and litigation designed to reduce prison populations or challenge conditions of confinement. The PLRA applies to “any civil proceeding arising under Federal law with respect to the conditions
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of confinement or the effects of actions by government officials on the lives of persons confined in prison, but . . . not . . . habeas corpus proceedings challenging the fact or duration of confinement in prison.” 18 U.S.C. § 3626(a)(2). This suit challenging health conditions at Elkton plainly falls within this broad provision.
Because the PLRA applies to this suit, any preliminary injunction must “be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.” 18 U.S.C. § 3626(a)(2). This Court made no finding that its broad preliminary injunction satisfies those requirements. Nor did the Court comply with the PLRA’s requirements that a “prisoner release order”—that is, “any order . . . 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”—may “be entered only by a three-judge court,” and only after “a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation . . . sought to be remedied” and “the defendant has had a reasonable amount of time to comply with the previous court orders.” Id. § 3626(a)(3)(A), (B), (g)(4).
In this case, the Court has required BOP to either release subclass members or transfer them to another BOP facility, (Order, ECF No. 22 PageID # 371-72.)—an order that clearly seeks to “limit[]the prison population” at Elkton without satisfying the PLRA’s requirements. The Court has also directed the “nonadmission of prisoners” to Elkton by ordering that “[a]ny subclass members transferred out of Elkton may not return until the threat of the virus is abated or until a vaccine is available,” making the PLRA’s applicability even clearer.
The Court’s only justification for disregarding the PLRA was its conclusion that “the subclass’s claims are properly before the Court as a habeas action.” Dkt. 22 at 19-20. As
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explained, however, petitioners’ claims are not cognizable in habeas, and even if they were, they do not “challeng[e] the fact or duration of confinement,” as is necessary to avoid the PLRA’s requirements. 18 U.S.C. § 3626(g)(2).1 This is no mere technicality: by failing to abide by the PLRA’s restrictions in order to superintend BOP’s response at Elkton to COVID-19, the Court’s order violated Congress’s intent “to oust the federal judiciary from day-to-day prison management.” Inmates of Suffolk Cty. Jail v. Rouse, 129 F.3d 649, 655 (1st Cir. 1997). As the Supreme Court has emphasized, “[c]ourts must be sensitive to the State’s interest in punishment, deterrence, and rehabilitation, as well as the need for deference to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of convicted criminals.” Brown v. Plata, 563 U.S. 493, 511 (2011).
It should be noted that the Court justifies its order in this case based on its belief that “[d]istrict courts have inherent authority to grant enlargement to a defendant….” (ECF No. 22 PageID # 359.) The Court explained that when “a court exercises its power to ‘enlarge’ the custody of a defendant pending the outcome of a habeas action, the BOP maintains custody over the defendant, but the place of custody is altered by the court.” (Id.) However, the Court lacks authority to alter the place of custody because BOP has the sole discretion to determine where to confine inmates. 18 U.S.C § 3621. In fact, the Court’s concept of enlargement whereby it can alter the place of custody is specifically rejected by 18 U.S.C. § 3621(b) which provides “[n]otwithstanding any other provision of law, a designation of a place of imprisonment under this subsection is not reviewable by any court.” 18 U.S.C § 3621(b)(emphasis added). See also Livas, 2020 WL 1935583, at *8 (“[D]esignation and/or classification falls squarely within BOP’s
1 As we have demonstrated, this suit concerns prison “conditions” and therefore cannot be brought as a habeas action, but must be brought as a civil rights action. Such civil rights actions require exhaustion of administrative remedies under 42 U.S.C. § 1997e. See Lavista v. Beeler, 195 F.3d 254, 256-57 (6th Cir. 1999).
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authority and outside the purview of this Court. To rule otherwise would make this Court a de facto “super” warden of Oakdale.”); McKune v. Lile, 536 U.S. 24, 39 (2002) (“It is well settled that the decision where to house inmates is at the core of prison administrators’ expertise.”); Fullenwiley v. Wiley, No. 98-CV-1698, 1999 WL 33504428, at *1 (N.D.N.Y. Oct. 5, 1999) (“[D]iscretionary decisions by the BOP made pursuant to its authority under § 3621(b) are not subject to judicial review”); see also 18 U.S.C. § 3625. Although the Court relied on the concept of “enlargement” of a sentence to construe the relief requested by Petitioners as falling within § 2241, that concept is inapplicable here. “Enlargement” is essentially bail pending the adjudication of a habeas petition, but the Sixth Circuit has made clear that “there will be few occasions where a prisoner will meet th[e] standard” for that relief. Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990).
C. BOP Has Not Violated the Eighth Amendment Petitioners are also unlikely to prevail on appeal because the BOP has not violated the Eighth Amendment—the only basis for Petitioners’ claims for relief. To succeed on their Eighth Amendment claims, petitioners must satisfy two requirements. First, they must show that they suffer a deprivation that is, “objectively, sufficiently serious,” “result[ing] in the denial of the minimal civilized measure of life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second, they must show that BOP is acting with “deliberate indifference to inmate health or safety,” “know[ing] of and disregard[ing] an excessive risk to inmate health or safety.” Id. at 834, 837; see also Whitley v. Albers, 475 U.S. 312, 319 (1986) (“[O]nly the unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment.”).
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As to the first, objective requirement, Petitioners are not being denied the “minimal civilized measure of life’s necessities.” Farmer, 511 U.S. at 834. Respondents are acutely aware of the dangers that COVID-19 creates around the world. But risk of exposure to a communicable disease in prison raises Eighth Amendment concerns only if the threat is so severe that it would be “contrary to current standards of decency for anyone to be so exposed.” Helling v. McKinney, 509 U.S. 25, 35 (1993). COVID-19 puts prisoners and all other members of the public at unfortunate risk, and the record reflects the numerous steps that BOP has taken and continues to take to protect inmates from those risks to the extent possible. The record establishes that, among other things, BOP has implemented measures for screening inmates for the virus; isolating and quarantining inmates who may have contracted it; conducting testing in accordance with CDC guidelines; limiting and screening staff and visitors; cleaning common areas and giving inmates disinfectant to clean their cells; giving inmates continuous access to sinks, water, and soap; educating staff and inmates about ways to avoid contracting the virus; providing masks to inmates and various other PPE to staff; and limiting inmates’ movement from their residential areas (Cole Decl. ¶ 38; Dees Decl. ¶¶ 19-54). COVID-19 can have tragic effects both within and outside prisons, and “[u]nless 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.” Hines v. Youssef, No. 13-cv-357, 2015 WL 164215, at *4 (E.D. Cal. Jan. 13, 2015). Petitioners are thus unlikely to establish that they have been deprived of “the minimal civilized measure of life’s necessities.” Farmer, 511 U.S. at 834.
As to the second, subjective requirement, the Respondents have not acted with deliberate
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indifference to inmates’ health and safety. BOP has taken numerous steps to protect inmate health. More specifically, Elkton implemented each of the six phases of the BOP’s national Action Plan (Dees Decl. ¶ 7-18), provides inmate and staff education; conducts inmate and staff screening; put into place testing, quarantine, and isolation procedures in accordance with BOP policy and CDC guidelines; and obtained enhanced cleaning and medical supplies. (Id. at ¶ 19.) Additionally, Elkton implemented the “modified operations” in a number of ways, including: “grab and go” meals for inmates, meaning that inmates are permitted to pick up pre-packaged meals at designated times, but must return to their housing units in order to eat; scheduled staggered mealtimes, so that only a single housing unit (approximately 150 inmates) are moving within the facility at any particular time, controlled medication dispensing and commissary are accomplished during these times as well. (Id. at ¶ 12.) In addition to the measures BOP is taking to prevent, identify, and treat COVID-19 at Elkton, the BOP is diligently reviewing Elkton inmates’ motions for compassionate release and is undertaking, consistent with the Attorney General’s directives, identification of inmates who may be transferred to home confinement. (Cole Decl. ¶ 21-37). The record shows the agency’s extensive efforts to protect inmates given the inherent constraints of a prison setting and available resources. (Cole Decl. ¶ 38; Dees Decl. ¶ 19-54).
And, as the Supreme Court explained in Wilson v. Seiter, 501 U.S. 294, 302-303 (1991), the Eighth Amendment inquiry “depends upon the constraints facing the official”; as demonstrated here, BOP is faced with unprecedented constraints on its resources in responding to the COVID-19 crisis. In light of those constraints, BOP cannot be said to have acted with anything approaching deliberate indifference.
D. The Court Improperly Conditionally Certified the Subclass
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The Court recognized that petitioners’ definition of a subclass of medically vulnerable inmates “is likely too broad” and limited the subclass to “those identified by the CDC as being at higher risk.” Dkt. 22 at 12 & n.50. But the court erred in ordering class-wide relief even on that narrower subclass definition.
To qualify as a class, the members of petitioners’ subclass must have met the requirements of Federal Rule of Civil Procedure 23(a) for commonality and typicality. To satisfy the commonality requirement, petitioners must “demonstrate that the class members have suffered the same injury” and assert claims that “depend upon a common contention . . . of such a nature that it is capable of classwide resolution.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). And to satisfy the typicality requirement, petitioners must demonstrate that “a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct.” Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007). Whether an inmate is entitled to release or transfer is inherently individualized, requiring consideration of the inmate’s history and circumstances. See Money, 2020 WL 1820660, at *14-15; (see also Cole Decl. ¶¶ 15-19, 30, 35-37). Members of the subclass have been convicted of different offenses, have different disciplinary histories, present different safety risks, have different medical concerns, and have different resources and supports available if they are released from prison. Indeed, the Court acknowledged that “the [p]etitioners seek varied relief that allows the BOP to make individualized determination as to where each subclass member should be” and that “‘release’ might look different for different inmates.” Dkt. 22 at 14. Although the Court attempted to frame the case as raising the common question “whether the BOP’s failure to create safe conditions for inmates with especially vulnerable health has violated those inmates’ rights,” id. at
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13, the Court ignored that both the objective-risk and subjective-indifference prongs of the Eighth Amendment inquiry may differ among subclass members. II. THE EQUITIES AND PUBLIC INTEREST WARRANT A STAY PENDING APPEAL
A consideration of the equities also supports a stay of the preliminary injunction. In cases involving the government, the harms to the BOP and to the public interest “merge,” Nken, 556 U.S. at 435, as demonstrated by the widespread harms to the public and inmates at other institutions if respondents must comply with the Court’s order.
In this case, Respondents and the public will be greatly harmed without a stay. As explained above, in order to comply with the terms of the preliminary injunction, BOP estimates that it will take in excess of 418 man-hours to preliminarily evaluate all the inmates on the list for transfer. (Cole-2 Decl. at ¶ 47.) This is the equivalent of more than five staff members of Elkton’s Case Management Coordinator office working full time to comply with the Court’s order for two weeks. (Id.) After the preliminary evaluation, significant work is needed to further evaluate and process each inmate prior to the inmate leaving the institution. (Id. at ¶ 48.) This includes developing a release plan conducting multiple checks, notifying victims and witnesses, and considering inmate health issues. (Id.) Many other offices who are not are before the Court would necessarily be involved in that transport-release process, including United States Probation Offices, United States Attorneys’ Offices, sentencing courts, and the United States Marshal Service. (Id.) The same BOP staff needed to comply with the Court’s Order are also currently tasked with considering requests made by inmates who are not on the list, normal operational duties, and additional duties already asked of staff in responding to the COVID-19 pandemic. (Id. at ¶ 47.) BOP lacks the resources to both comply with the order, as well as fulfill its mission-critical functions. BOP further lacks the ability to compel other federal offices to
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comply with the Court’s mandates. The preliminary injunction further requires transferring potentially hundreds of inmates
who are ineligible for release to other BOP facilities. Transferring (or redesignation) of an inmate is, even under normal circumstances, an extremely burdensome process. The BOP must consider, inter alia, level of security the inmate requires, the level of security and staff supervision the institution is able to provide, the inmate’s program needs, safe and orderly management of the facilities, and protection of the inmate, victims, prison officials, and the public in general. (Cole-2 Decl. at ¶ 11-19; see also, Exhibit B, Declaration of Cory Clark (“Clark Decl.”) at ¶¶ 9-17.) As explained in Mr. Cole’s declaration, transferring so many inmates to comply with the Court’s order is virtually impossible. (Clark Decl. at ¶¶ 19-22.) Redesignating so many inmates at once would create a cascade of concerns and threats at exponentially more BOP facilities across the country that would irreparably harm the BOP’s nationwide operations, and disrupt its ongoing response to the COVID-19 pandemic.
Further, the mechanics and costs of complying with the Court’s preliminary injunction order creates great harm to the BOP. (Exhibit C, Declaration of Peter Pottios (“Pottios Decl.”),at ¶¶ 4-10.) As Mr. Pottios explains, it :would be exceptionally difficult if not impossible” to comply with the order. (Id. at ¶ 4.) All of the inmates could not be sent to one facilty. (Id. at ¶ 5.) Further, there would be a limited number of facilities with space, programing needs, and the ability to separate inmates. (Id. at ¶ 6.) Even transporting the inmates creates risk of the spread of COVID-19. (Id. at ¶ 7.) Not only does this create enormous practical problems, it also would be cost prohibitive. (Id. at ¶ 8-10.)
The preliminary injunction, coupled with the Court’s instruction on the record to publish the list of inmates, further causes irreparable harm by requiring the names of medically
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vulnerable inmates to be published publicly. The preliminary injunction requires BOP to identify inmates who are at higher risk for serious complications from COVID-19 due to age and/or underlying medical conditions. BOP did so. The Court then ordered public filing of the names on that list. The Court has explained that this “includes all Elkton inmates 65 or older and those with documented, pre-existing medical conditions, including heart, lung, kidney, and liver conditions, diabetes, conditions causing a person to be immunocompromised (including, but not limited to cancer treatment, transplants, HIV or AIDS, or the use of immune weakening medications), and severe obesity (body mass index of 40 or higher).” (Order, ECF No, 22 PageID # 363.) This list is therefore made up of the highly personal and privileged information of hundreds of inmates who are not before the Court. Without a stay of any requirement to publish the list, an inmate’s name on a list of medically-vulnerable inmates will always be public and, even if the appeal is successful, there will be no way to retroactively protect their privacy. A stay is appropriate to prevent great and irreparable harm to their privacy. Moreover, inmates on the list may wish to opt out of the class action and may well object to a transfer from a minimum security facility like Elkton to a “single cell” facility.
Those harms to the public and to third parties outweigh any harms a stay would inflict on Petitioners. Even before Petitioners brought this action and before the Court issued a preliminary injunction, the BOP was acting urgently to mitigate the risks of COVID-19 within its facilities and to reduce prison populations, to the extent possible. The BOP was, for example, already prioritizing the use of home confinement as a tool for combatting the dangers that COVID-19 poses to vulnerable inmates pursuant to the Attorney General’s March 26, 2020 and April 3, 2020 Memoranda. (ECF No. 10-2 PageID # 192 at ¶ 17.) The BOP has also been assessing and, in appropriate instances, recommending to an inmate’s sentencing court to reduce
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a term of imprisonment under 18 U.S.C. § 4205. In addition to reducing prison populations, BOP has been taking extensive measures to
reduce the spread of COVID-19 among the inmates at Elkton, including providing inmate and staff education; conducting inmate and staff screening; testing, quarantine, and isolation procedures; enhanced cleaning and sanitization protocols; providing soap, cleaning supplies, and personal protective equipment (PPE) to inmates; and restricting inmates to their residential area with only one pod moving at a time. (ECF# 10-1 PageID # 178-185 at ¶¶ 19-54). These efforts have been working as the number of new cases has been reduced. BOP is committed to inmate safety and, even with a stay, will continue its efforts to reduce the inmate population at Elkton and to take measures to prevent the spread of COVID-19 within Elkton.
Further, Respondents submit that staying the brief schedule for class certification and any hearing or decision related thereto is in the public interest. A stay will conserve judicial resources and prevent a ruling in a case in which the Sixth Circuit may soon determine that this Court lacks jurisdiction. It would also prevent confusion among class members regarding whether they need to file their own requests under appropriate administrative procedures or whether their requests are governed by the orders of this Court.
CONCLUSION For the foregoing reasons, Respondents respectfully urge this Court to grant the Motion to Stay and suspend the preliminary injunction pending appeal.
(Signatures on the following page.)
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Respectfully submitted, JUSTIN E. HERDMAN United States Attorney By: /s/ James R. Bennett II James R. Bennett II (OH #0071663) Sara DeCaro (OH #0072485) Assistant United States Attorneys United States Courthouse 801 West Superior Ave., Suite 400 Cleveland, Ohio 44113 216-622-3988 - Bennett 216-522-4982 - Fax James.Bennett4@usdoj.gov Sara.DeCaro@usdoj.gov Attorneys for Respondents
CERTIFICATE OF COMPLIANCE Pursuant to Loc. R. 7.1(f), undersigned counsel certifies that the foregoing memorandum is 16 pages and within the limits of an unassigned matter.
/s/ James R. Bennett II James R. Bennett II (OH #0071663) Assistant United States Attorney
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Case: 4:20-cv-00794-JG Doc #: 30-2 Filed: 04/28/20 1 of 16. PageID #: 465

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

WILSON, ET AL, Petitioners
v. WILLIAMS, ET AL,
Respondents

*

*

*

CASE NO. 4:20-CV-00794

*

*

* *

JUDGE GWIN

*

DECLARATION OF KRISTY COLE

I, Kristy Cole, do hereby declare, certify and state as follows:

1. I am employed by the United States Department of Justice, Federal Bureau of Prisons

(BOP). I currently work as the Case Management Coordinator (CMC) at Federal Correctional

Institution (FCI) Elkton in Lisbon, Ohio. I have held this position since September, 2007. I have

been employed by BOP since March, 1997.

2. The CMC's Office is dedicated to providing oversight of case management activities

within the institution. This office works directly with the unit teams, providing training and

disseminating information to insure that the institution is in compliance with Correctional

Programs' policies and procedures. The CMC provides coordination and oversight of many

programs within the institution, including, but not limited to, Central Inmate Monitoring, ·

Financial Responsibility, Admission and Orientation, Inmate Performance Pay, Victim/Witness

Program and Adam Walsh Act compliance. The CMC also oversees the Correctional Systems

Department. The CMC Office at FCI Elkton has two staff members: myself and an Assistant

Case Management Coordinator.
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GOVERNMENT EXHIBIT
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Case: 4:20-cv-00794-JG Doc #: 30-2 Filed: 04/28/20 2 of 16. PageID #: 466
THE BOP'S DESIGNATION AUTHORITY UNDER 18 U.S.C. §362l(b)
3. Attached to this declaration is a true and correct copy of BOP Program Statement
5100.08, Inmate Security Designation and Custody Classification (the "Program Statement").
4. The BOP issued the Program Statement to provide guidance to staff on how to apply
Title 18 United States Code (U.S.C.) § 3621(b), which states in pertinent part:
The Bureau of Prisons shall designate the place of the prisoner's imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering-
(1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner; (4) any statement by the court that imposed the sentence (A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or correctional facility as appropriate; and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28.
See 18 U.S.C. § 3621(b) (Emphasis added).
OVERVIEW OF THE BOP'S DESIGNATION PROCESS
5. The BOP created the Designation and Sentence Computation Center (DSCC) to
centralize all determinations regarding inmate sentence computations and institution placements.
The DSCC is located in Grand Prairie, Texas.
6. Decisions regarding jnitial institution placements are referred to as designations.
7. DSCC is divided into 18 teams of staff, each identified by a name. Seventeen of these
teams are organized by sentencing district. Those 17 teams are responsible for all sentence
computations and classification of defendants from their sentencing districts. The remaining
)
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team is Hotel Team. It is responsible for designating the facility where those defendants will
serve their criminal sentences 8. Once a defendant is sentenced to a federal term of imprisonment,.staff of the United States Probation Office (USPO) upload documents to an electronic system known as "eDesignate". For cases involving original sentencing to·a term of imprisonment, these documents typically include the Judgement in a Criminal Case and the Presentence Investigation Report (PSR). For cases involving sentencing to a term of imprisonment based upon revocation of a term of supervised release, these documents typically include the order by which the court revoked supervised release and imposed a term of imprisonment, along with the revocation petition, which BOP staff also refer to as the violation report. 9. Once USPO staff have uploaded the relevant documents, the case is transferred on eDesignate to the United States Marshals Service (USMS). Typically, USMS staff then upload a copy of the defendant's USM-129, Individual Custody/Detention Report, to eDesignate and then use eDesignate to transfer the case to the BOP and to request that the DSCC either provide a release date for the defendant (in cases where the defendant received a short sentence and there is not sufficient time to transport him to a facility before his release date) or designate the defendant to a facility to serve the term of imprisonment. 10. Once a case has been transferred from the USMS to the BOP, staff of the DSCC team assigned to the defendant's sentencing district will open the case and begin the designation process. When the process has been completed, DSCC staff respond to the USMS request through eDesignate, usually by notifying the USMS where the inmate will serve the term of imprisonment. The USMS then transports the inmate to the designated facility or, if the
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defendant has been allowed to voluntarily surrender, the USMS will notify the defendant of the

facility at which he must appear on the scheduled date.

FACTORS IN THE DESIGNATION PROCESS

11. When making designations about inmate designations, the BOP follows the guidance

contained in the Program Statement which provides:

This Program Statement provides policy and procedure regarding the Bureau of Prisons inmate classification system. The classification of inmates is necessary to place each inmate in the most appropriate,se~urity level institution that also meets their program needs and is consistent with th~ Bureau's mission to protect society. The Bureau's classification, designation and redesignation procedures are consistent with the statutory authority contained in 18 U.S.C. § 3621(6). All classification, designation and redesignation decisions are made without favoritism given to an inmate's social or economic status.

PS 5100.08 at page 1.

12. Consistent with the Program Statement, DSCC staff on the team assigned to the

defendant's sentencing district consider the following primary factors when making a

designation decision: (1) the level of security and supervision the inmate requires; (2) the level of

security and staff supervision the institution is able to provide; and (3) the inmate's program

needs. PS 5100.08 at Chapter 1, page 1.

13. DSCC staff also consider additional factors including, but not limited to:

•

The inmate's release residence;

•

The level of overcrowding at an institution;

•

Any security, location or program recommendation made by the

sentencing court;

•

Any Central Inmate Monitoring issues (see Program Statement Central

Inmate Monitoring Program);

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•

Any additional security measures to ensure the protection of

victims/witnesses and the public in general; and,

•

Any other factor(s) which may involve the inmate's confinement; the

protection of society; and/or the safe and orderly management of a BOP

facility.

PS 5100.08 at Chapter 1, pages 1-2.

14. The designation process involves two parts. First, DSCC staff on the team responsible

for the inmate's sentencing district classify the inmate according to a security level (minimum,

low, medium or high) and assign the inmate a custody level (community, out, in, or maximum)..

Second, DSCC staff on Hotel Team designate the inmate to a particular facility commensurate

with their security level and custody level and the factors identified below.

15. An inmate's security level represents the level of security the inmate requires. It is based

on the Criminal History Points as noted in the Presentence Investigation Report, and, if these

points are contested, as ruled upon by the Court in the Statement of Reasons. The BOP has

created Public Safety Factors and Management Variables which may adjust the inmate's security

level up or down depending on the BOP's professional judgment. PS 5100.08 at Chapter 5.

16. An inmate's custody classification represents the amount of staff supervision the. inmate

requires. It is tied to an inmate's security level. PS 5100.08 at Chapter 1, page 2 and Chapter 2,

page 2.

THE REDESIGNATION PROCESS

17. Under some circumstances, the BOP may transfer an inmate to a different institution

following initial designation. This is referred to as a redesignation. Reasons for requesting

redesignation include, but are not limited to disciplinary or closer supervision reasons, institution 1

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classification reasons, institution adjustment reasons, medical/psychological reasons, programming or training reasons, or because an inmate is nearing release. PS 5100.08 at Chapter 7, pages 1-12. 18. If institution staff believe an inmate is no longer appropriate for his current institution based on any of the factors identified in Chapter 7 of the Program Statement, they submit a redesignation request to the DSCC. Ordinarily, the DSCC will decide whether to grant or deny the request. DSCC staff will consider redesignation requests using the same factors outlined in paragraphs 24-26. In deciding whether to grant or deny a redesignation request, DSCC staff also carefully review the inmate's institutional adjustment and program performance. PS 5100. 08 at Chapter 1, page 3 and Chapter 7. 19. If the request is granted, the DSCC will designate the inmate to another facility. If the request is denied, the inmate will remain at the same facility.
THE BOP'S AUTHORITY TO PLACE INMATES ON HOME CONFINEMENT 20. The BOP's statutory authority to transfer prisoners to home confinement rests in 18 U.S.C. § 3624(c)(2) and 34 U.S.C. § 60541. The BOP's policy and procedures regarding home confinement are outlined in BOP Program Statement 7320.01, Home Confinement and BOP Operations Memorandum, Home Confinement under the First Step Act, both of which are available on www.bop.gov via the Resources tab. Both statutes set forth certain limitations with respect to the BOP's transfer authority. See 18 U.S.C. § 3624(c)(2) and 34 U.S.C. § 60541. However, pursuant to the Attorney General's directives in light oft~e COVID-19 pandemic, dated March 26, 2020, and April 3, 2020, infra, and given the surge in positive cases at select site's, the BOP began immediately reviewing all inmates who have COVID-19 risk factors, as
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described by the Centers for Disease Control and Prevention (CDC), to determine which inmates are suitable for home confinement. Since the release of the Attorney General's original
,
memorandum dated March 26, 2020, the BOP is prioritizing transfers to home confinement of all suitable inmates as an appropriate response to the COVID-19 pandemic.
The Attorney General's Memorandum for the Director of the Bureau of Prisons, dated March 26, 2020
21. On March 26, 2020, the Attorney General issued a Memorandum for the Director of the Bureau of Prisons (the March 26, 2020, Memorandum) to ensure that, in light of the COVID-19 pandemic, BOP utilizes home confinement, where appropriate, to protect the health and safety of BOP personnel and people in BOP's custody. Pursuant to the March 26, 2020, Memorandum, BOP is prioritizing the use of its statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic. It was noted in the March 26, 2020, Memorandum that many inmates will be safer in BOP facilities where the population is controlled and there is ready access to doctors and medical care. But for some eligible inmates, home confinement might be more effective in protecting their health. 22. In assessing whether home confinement should be granted pursuant to the March 26, 2020, Memorandum, BOP considers the totality of circumstances for each individual inmate, the statutory requirements for home confinement, and the following non-exhaustive list of discretionary factors:
a. The age and vulnerability of the inmate to COVID-19, in accordance with the CDC guidelines;
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b. The security level of the facility currently holding the inmate, with priority given to inmates residing in low and minimum security facilities;
c. The inmate's conduct in prison, with inmates who have engaged in violent or gangrelated activity in prison or who have incurred a BOP violation within the last year not receiving priority treatment;
d. The inmate's score under PATTERN (the Prisoner Assessment Tool Targeting Estimated Risk and Need), 1 with inmates who have anything above a minimum score not receiving priority treatment;
e. Whether the inmate has a demonstrated and verifiable re-entry plan that will prevent recidivism and maximize public safety, including verification that the conditions under which the inmate would be confined upon release would present a lower risk of contracting COVID-19 than the inmate would face in his or her BOP facility;
f. The inmate's crime of conviction, and assessment of the danger.posed by the inmate to the community. Some offenses, such as sex offenses, will render an inmate ineligible for home confinement. Other serious offenses weigh heavily against consideration for home confinement.
23. In addition to setting forth these factors, the March 26, 2020 Memorandum stated that before granting any inmate discretionary release, the BOP Medical Director, or someone he designates, will, based on CDC guidance, make an assessment of the inmate's risk factors for severe COVID-19 illness, risks of COVID-19 at the inmate's prison facility, as well as the risk of COVID-19 at the location in which the inmate seeks home confinement. The BOP will not grant home confinement to inmates when doing so is likely to increase their risk of contracting
1 For more information on PATTERN, please visit www.bop.gov via Inmates/ First Step Act tab.
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COVID-19. The BOP will grant home confinement only when it has determined -- based on the totality of circumstances for each individual inmate -- that transfer to home confinement is likely not to increase the inmate's risk of contracting COVID-19. 24. Moreover, the March 26, 2020 Memorandum noted that for the protection of the public, any inmate to whom BOP grants home confinement is to be placed in a mandatory 14-day quarantine before that inmate is discharged from a BOP facility to home confinement. Inmates transferred to home confinement under this prioritized process are also subject to locaticm monitoring devices and, where a court order is entered, are subject to supervised release.

The CARES Act and the Attorney General's Memorandum for the Director of the Bureau of Prisons, dated April 3, 2020

25. The Coronavirus Aid, Relief, and Economic Security (CARES) Act, Public Law No. 116-

236 (enacted March 27, 2020), authorizes the Attorney General to expand the cohort of inmates

who can be considered for home confinement upon his finding of emergency conditions which

are materially affecting the function of the BOP. On April 3, 2020, the Attorney General made

'

---,

that finding, and in a Memorandum for the Director of the Bureau of Prisons (April 3, 2020

Memorandum), authorized the Director to immediately maximize appropriate transfers to home

confinement of all appropriate inmates held at BOP facilities where the Director determines that

COVID-19 is materially affecting operations.

26. The April 3, 2020 Memorandum specifically stated that the BOP must move with

dispatch in using home confinement, where appropriate, to move vulnerable inmates out of FCI

Oakdale, FCI Danbury, and FCI Elkton, and to give priority to those institutions, and others

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similarly affected, as the BOP continues to process the remaining inmates who are eligible for home confinement under pre-CARES Act standards. 27. The April 3, 2020 Memorandum directed that the BOP give priority in implementing the new standards to the most vulnerable inmates at the most affected facilities and was explicit that the BOP should begin implementing this directive immediately at the identified facilities and any other facilities at risk of similar problems. The April 3, 2020 Memorandum stated that the review should include 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. 28. For inmates deemed suitable candidates for home confinement, the April 3, 2020 Memorandum directed the BOP to immediately process these inmates for transfer and then immediately transfer them following a 14-day quarantine at an appropriate BOP facility. The April 3, 2020 Memorandum further authorized BOP to, in appropriate cases, require that the inmate being transferred undergo his or her 14-day quarantine in the residence to which the inmate is being transferred rather than in the BOP facility from which the inmate is being transferred. The assessment of all inmates remains guided by the factors in the March 26, 2020 Memorandum. 29. The April 3, 2020 Memorandum also recognized that the BOP has limited resources to monitor inmates on home confinement and that the U.S. Probation Office is unable to monitor large number of inmates in the community, and authorized the BOP to transfer inmates to home confinement even if electronic monitoring is not available, so long as it determines in every instance that doing so is appropriate and consistent with the obligation to protect public safety.
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30. Lastly, the April 3, 2020 Memorandum stated that it is essential for the BOP to continue making determinations for home confinement in a careful and individualized way that remains faithful to the duty of protecting the public and law enforcement officers.
The BOP's Implementation of the March 26, 2020 and the April 3, 2020 Memoranda 31. The BOP is devoting all available resources to executing the Attorney General's directives, with such resources tailored and prioritized according to the needs of individual institutions across the country. The BOP is assessing the inmate population to determine which inmates would be appropriate for transfer under this priority program. The BOP is then processing those inmates for transfer as expeditiously as possible. 32. The BOP is also frequently updating its public website to provide information and responses to frequently asked questions regarding its response to the COVID-19 pandemic, including providing information regarding its implementation of the Attorney General's directives. 33. The BOP has increased home confinement by 55.2% since March 2020, and is continuing to screen inmates for home confinement. 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 1,576 inmates on home confinement. See www.bop.gov (last viewed on April 27, 2020). 34. Inmates do not need to .apply to be considered for home confinement. BOP staff are reviewing all inmates to determine which ones meet the criteria established by the Attorney General. While all inmates are being reviewed for suitability for home confinement, any inmate who believes he or she is eligible may request to be r·eviewed for home confinement and provide a release plan to his or her Case Manager.
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35. It should be noted that for public safety reasons, in accordance with the March 26, 2020 Memorandum, and to ensure BOP is deploying its limited resources in the most effective manner, the BOP is currently assessing a number of factors to ensure that an inmate is suitable for home confinement including, but not limited to, reviewing the inmate's institutional discipline history for the last twelve months; ensuring that the inmate has a verifiable release pian; verifying that the inmate's primary or prior offense is not violent, a sex offense, or terrorism related; and confirming the inmate does not have a current detainer. 36. In addition, and in order to prioritize its limited resources, BOP has generally prioritized for home confinement those inmates who have served a certain portion of their sentences, or who have only a relatively short amount oftime remaining in those sentences. While these priority factors are subject to deviation in BOP's discretion in certain circumstances and are subject to revision as the situation progresses, 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. As BOP processes the inmates eligible for home confinement under these criteria and learns more about the
coyrD-19 pandemic and its effect on BOP facilities, it is assessing whether and how to
otherwise prioritize consideration. 37. If the incarcerated individual does not qualify for home confinement under BOP criteria, an inmate may be reviewed for placement in a Residential Reentry Center and home confinement at a later stage in accordance with applicable laws and BOP-policies.
Measures to Protect Inmate and Staff Safety 38. In response to the pandemic, BOP has taken significant measures to protect the health of the inmates in its charge. These steps include, but are not limited to the following:
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a. Beginning April 13, 2020, BOP implemented Phase VI of the Action Plan, which currently governs operations. The current modified operations plan requires that all inmates in every BOP institution be secured in their assigned
,,
cells/quarters for a period of at least 14 days, in order to stop any spread of the disease. Only limited group gathering is afforded, with attention to social distancing to the extent possible, to facilitate commissary, laundry, showers, telephone, and computer access. Further, BOP has severely limited the movement of inmates and detainees among its facilities. Though there will be exceptions for medical treatment and similar exigencies, this step as well will limit transmissions. b. All staff and inmates have been and will continue to be issued an appropriate face covering and strongly encouraged to wear the face covering when in public areas when social distancing cannot be achieved. c. Every newly admitted inmate is screened for COVID-19 exposure risk factors and symptoms. Asymptomatic inmates with risk of exposure are placed in quarantine. Symptomatic inmates are placed in isolation until they test negative for COVID-19 or are cleared by medical staff as meeting CDC criteria for release from isolation. In addition, in areas with sustained community transmission and at medical centers, all staff are screened for symptoms. Staff registering a temperature of 100.4 degrees Fahrenheit or higher are barred from the facility on that basis alone. A staff member with a stuffy or runny nose can be placed on leave by a medical officer.
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d. Contractor access to BOP facilities is restricted to only those performing essential services (e.g. medical or mental health care, religious, etc.) or those who perform necessary maintenance on essential systems. All volunteer visits are suspended absent authorization by the Deputy Director of BOP. Any contractor or volunteer who requires access will be screened for symptoms and risk factors.
e. Social and legal visits were stopped as of March 13, 2020, and remain suspended until at least May 18, 2020, to limit the number of people entering the facility and interacting with inmates. In order to ensure that familial relationships are maintained throughout this disruption, BOP has increased detainees' telephone allowance to 500 minutes per month. Tours of facilities are also suspended. Legal visits will be permitted on a case-by-case basis after the attorney has.been screened for infection in accordance with the screening protocols in place for prison staff, contractors, and visitors.
f. Further details and updates ofBOP's modified operations are available to the public on the BOP website at a regularly updated resource page: www.bop.gov/coronavirus/index.jsp Compassionate Release / Reduction in Sentence Procedures
44. The BOP lacks the authority to provide inrriates with a reduction in sentence through compassionate or "early release." Rather, only an Article III judge-·specifically, the inmate's sentencing judge-may authorize such a reduction of an inmate's federal ~entence. However, on an inmate's request, the Director of the BOP may make a motion to an inmate's sentencing court to reduce a term of imprisonment under 18 U.S.C. § 4205(g) and 18 U.S.C. §
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3582(c)(l)(A). The BOP uses these statutory authorities in "extraordinary or compelling circumstances" which could not reasonably have been foreseen by the court at the time of sentencing. This process is outlined in BOP Program Statement 5050.50, Compassionate Release/Reduction In Sentence Procedures for Implementation of18 US.C. §§ 3582 and 4205(g). (This BOP program statement is available at www.bop.gov via the Resources tab). 45. Additionally, the First Step Act specifies that an inmate may file a Motion for Reduction of Sentence directly in the sentencing court after exhaustion of administrative remedies, or 30 days from the date the warden receives such a request from the inmate, whichever is earlier. See 18 U.S.C. § 3582(c)(l)(A).
REQUIREMENTS OF THE PRELIMINARY INJUNCTION 46. I understand BOP has been ordered by the Court in Wilson, et al. v. Williams, et al., No. 4:20-cv-00794 (N.D. Ohio Apr. 22, 2020), to create a list of inmates at FCI Elkton identified by the CDC as being at higher risk of complications from COVID-19. I further understand that BOP has been ordered to evaluate each inmate that is identified for transfer out ofFCI-Elkton through any means, including but, not limited to, compassionate release, parole or community
supervision, transfer furlough, or non-transfer furlough within two weeks. i further understand
that BOP has been ordered to transfer any identified inmate who is ineligible for compassionate release, home release, parole, or community supervision to another BOP facility. I further understand that BOP has compiled a list of 837 inmates who are over the age 65 and/or have diagnosed medical conditions that are identified by the CDC as making an individual at higher risk of complications from COVID-19. 47. The CMC Office's preliminary evaluation of each inmate on the list of 837 inmates for transfer would likely take in excess of 418 man-hours-the equivalent of more than five CMC
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staff members working full time on compliance with this aspect of the district court's order for two weeks. This dedication of work does not include consideration of requests made by the other roughly 1,700 inmates not included on the list. This also does not include the normal operations of the CMC Office nor does this include the additional duties asked of each staff member across all BOP institutions during this world-wide pandemic. 48. Significant work is needed in order to further evaluate and process each inmate prior to the inmate leaving the institution. Importantly, this includes developing a release plan, and having an officer with the United States Probation Office investigate that plan. Moreover, BOP conducts multiple checks at a variety oflevels, for example, N.C.I.C. checks for warrants, victim/witness notifications, and health issues to ensure the continuing safety of the inmate and of the community, before the inmate's release date. Finally, in the case of a request for Compassionate Release, coordination with the U.S. Attorney's Office in the district where the inmate was sentenced is necessary so that a motion could be filed before the sentencing judge for Compassionate Release. Each of these stages with various entities makes it impossible to predict how many man-hours this would require and/or how long this process would take per inmate.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and accurate to the best of my knowledge and belief.
Executed on this 27th day of April 2020.
Case Manager Coordinator Federal Correctional Institution Elkton, Ohio
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

WILSON, ET AL, Petitioners

*

*

*

CASE NO. 4:20-CV-00794

*

v.

*

WILLIAMS, ET AL,

*

JUDGE GWIN

*

Respondents

*

______________________________________________________________________________

DECLARATION OF CORY CLARK

I, Cory Clark, do hereby declare, certify and state as follows:

1. I am employed by the United States Department of Justice, Federal Bureau of Prisons

(BOP). I currently work as a Senior Designator for the Designations and Sentence Computation

Center (DSCC) in Grand Prairie, Texas. I have held this position since January 2006. I have

been employed by BOP since January 1996.

THE BOP’S DESIGNATION AUTHORITY UNDER 18 U.S.C. §3621(b)

2. Attached to this declaration is a true and correct copy of BOP Program Statement

5100.08, Inmate Security Designation and Custody Classification (the “Program Statement”).

3. The BOP issued the Program Statement to provide guidance to staff on how to apply

Title 18 United States Code (U.S.C.) § 3621(b), which states in pertinent part:

The Bureau of Prisons shall designate the place of the prisoner’s imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering–

(1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of the prisoner;

GOVERNMENT EXHIBIT
B

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(4) any statement by the court that imposed the sentence – (A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or (B) recommending a type of penal or correctional facility as appropriate; and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28. See 18 U.S.C. § 3621(b) (Emphasis added). OVERVIEW OF THE BOP’S DESIGNATION PROCESS 4. The BOP created the DSCC to centralize all determinations regarding inmate sentence computations and institution placements. 5. Decisions regarding initial institution placements are referred to as designations. 6. Once a defendant is sentenced to a federal term of imprisonment, staff of the United States Probation Office (USPO) upload documents to an electronic system known as “eDesignate”. For cases involving original sentencing to a term of imprisonment, these documents typically include the Judgement in a Criminal Case and the Presentence Investigation Report (PSR). For cases involving sentencing to a term of imprisonment based upon revocation of a term of supervised release, these documents typically include the order by which the court revoked supervised release and imposed a term of imprisonment, along with the revocation petition, which BOP staff also refer to as the violation report. 7. Once USPO staff have uploaded the relevant documents, the case is transferred on eDesignate to the United States Marshals Service (USMS). Typically, USMS staff then upload a copy of the defendant’s USM-129, Individual Custody/Detention Report, to eDesignate and then use eDesignate to transfer the case to the BOP and to request that the DSCC either provide a release date for the defendant (in cases where the defendant received a short sentence and there is not sufficient time to transport him to a facility before his release date) or designate the defendant to a facility to serve the term of imprisonment.
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8. Once a case has been transferred from the USMS to the BOP, staff of the DSCC team assigned to the defendant’s sentencing district will open the case and begin the classification process. Once classified, the case is referred to the Hotel Team who is responsible for completing designations. When the process has been completed, DSCC staff respond to the USMS request through eDesignate, usually by notifying the USMS where the inmate will serve the term of imprisonment. The USMS then transports the inmate to the designated facility or, if the defendant has been allowed to voluntarily surrender, the USMS will notify the defendant of the facility at which he must appear on the scheduled date.
FACTORS IN THE DESIGNATION PROCESS 9. When making designations about inmate designations, the BOP follows the guidance contained in the Program Statement which provides:
This Program Statement provides policy and procedure regarding the Bureau of Prisons inmate classification system. The classification of inmates is necessary to place each inmate in the most appropriate security level institution that also meets their program needs and is consistent with the Bureau’s mission to protect society. The Bureau’s classification, designation and redesignation procedures are consistent with the statutory authority contained in 18 U.S.C. § 3621(b). All classification, designation and redesignation decisions are made without favoritism given to an inmate’s social or economic status. PS 5100.08 at page 1. 10. Consistent with the Program Statement, DSCC designation staff consider the following primary factors when making a designation decision: (1) the level of security and supervision the inmate requires; (2) the level of security and staff supervision the institution is able to provide; and (3) the inmate’s program needs. PS 5100.08 at Chapter 1, page 1. 11. DSCC designation staff also consider additional factors including, but not limited to:
Ɣ The inmate’s release residence;
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Ɣ The level of overcrowding at an institution; Ɣ Any security, location or program recommendation made by the
sentencing court; Ɣ Any Central Inmate Monitoring issues (see Program Statement Central
Inmate Monitoring Program); Ɣ Any additional security measures to ensure the protection of
victims/witnesses and the public in general; and, Ɣ Any other factor(s) which may involve the inmate’s confinement; the
protection of society; and/or the safe and orderly management of a BOP facility. PS 5100.08 at Chapter 1, pages 1-2. 12. The designation process involves two parts. First, DSCC staff on the team responsible for the inmate’s sentencing district classify the inmate according to a security level (minimum, low, medium or high). Second, DSCC staff on Hotel Team designate the inmate to a particular facility commensurate with their security level and custody level and the factors identified below. 13. An inmate’s security level represents the level of security the inmate requires. Security level is determined by several classification items, to include: an inmate’s voluntary status, months to release, severity of current offense, criminal history score, history of violence and escape, detainer/pending charges, age, education level, and drug and alcohol abuse. In addition, the BOP has created Public Safety Factors and Management Variables which may adjust the inmate’s security level up or down depending on the BOP’s professional judgment. PS 5100.08 at Chapter 5.
4

Case: 4:20-cv-00794-JG Doc #: 30-3 Filed: 04/28/20 5 of 8. PageID #: 485
14. An inmate’s custody classification represents the amount of staff supervision the inmate requires. It is tied to an inmate’s security level. PS 5100.08 at Chapter 1, page 2 and Chapter 2, page 2.
THE REDESIGNATION PROCESS 15. Under some circumstances, the BOP may transfer an inmate to a different institution following initial designation. This is referred to as a redesignation. Reasons for requesting redesignation include, but are not limited to disciplinary or closer supervision reasons, institution classification reasons, institution adjustment reasons, medical/psychological reasons, programming or training reasons, or because an inmate is nearing release. PS 5100.08 at Chapter 7, pages 1-12. 16. If institution staff believe an inmate is no longer appropriate for his current institution based on any of the factors identified in Chapter 7 of the Program Statement, they submit a redesignation request to the DSCC. Ordinarily, the DSCC will decide whether to grant or deny the request. DSCC staff will consider redesignation requests using the same factors outlined in paragraphs 24-26. In deciding whether to grant or deny a redesignation request, DSCC staff also carefully review the inmate’s institutional adjustment and program performance. PS 5100.08 at Chapter 1, page 3 and Chapter 7. 17. If the request is granted, the DSCC will designate the inmate to another facility. If the request is denied, the inmate will remain at the same facility.
REQUIREMENTS OF THE PRELIMINARY INJUNCTION 18. I understand BOP has been ordered by the Court in Wilson, et al. v. Williams, et al., No. 4:20-cv-00794 (N.D. Ohio Apr. 22, 2020), to create a list of inmates at FCI Elkton identified by the CDC as being at higher risk of complications from COVID-19. I further understand that
5

Case: 4:20-cv-00794-JG Doc #: 30-3 Filed: 04/28/20 6 of 8. PageID #: 486
BOP has been ordered to evaluate each inmate that is identified for transfer out of FCI Elkton through any means, including but, not limited to, compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough within two weeks. I further understand that BOP has been ordered to transfer any identified inmate who is ineligible for compassionate release, home release, parole, or community supervision to another BOP facility. I further understand that BOP has compiled a list of 837 inmates who are over the age 65 and/or have diagnosed medical conditions that are identified by the CDC as making an individual at higher risk of complications from COVID-19. Finally, I understand that inmates transferred from FCI Elkton are to be sent to another BOP facility where measures, such as single-cell placement or social distancing, may be accomplished. 19. There are several reasons why compliance with the Judge’s Order in this case is impossible. 20. The Judge has ordered that inmates transferred from FCI Elkton be sent to another BOP facility where measures, such as single-cell placement or social distancing, may be accomplished. However, inmates are not designated to particular cells. Rather, when a designation is made, DSCC considers the rated capacity and target populations of the prospective institution to determine whether there is enough space per inmate in the physical confines of the institution. The Warden of each institution determines how that space is to be used (single cell, double cell, etc.) depending on the number of inmates designated there and the available space. Thus, there is no way inmates could be transferred with any assurances that the inmate receive a single cell assignment at the new institution. 21. I believe BOP staff are doing their best during the pandemic to provide those social distancing measures that can be provided for the benefit of inmates and staff. However, there is
6

Case: 4:20-cv-00794-JG Doc #: 30-3 Filed: 04/28/20 7 of 8. PageID #: 487
no way to determine which institutions are appropriate to transfer inmates based on where social distancing measures could be accomplished. The measures put in place depend on the physical layout of the respective institution. For example, the measures in place at a BOP camp would certainly differ from those taken at one of BOP’s maximum security prisons. Thus, there can be no guarantee that a new facility can provide the measures desired by the Judge. 22. Additional factors besides space capacity and availability of social distancing must be considered by DSCC when re-designating inmates. These factors, including but not limited to programing needs such as the Residential Drug Abuse Program (RDAP), location recommendations from the inmate’s sentencing judge, care levels, and separatee/gang issues, care must be considered. These factors further limit the number of available options for transfer. 23. Should BOP attempt to comply with the Judge’s Order, it is expected that a substantive review of an inmate’s situation and needs would take between 30-40 minutes per inmate on average. Of course, simpler cases would require less time. Complicated cases, such as inmates who require special supervision (of which approximately 50 are housed at FCI Elkton), may require more time and levels of review. 24. Finally, even if the DSCC could comply in this instance with the Judge’s Order, it would be impossible to replicate this should any other Judges issue the same Order. In short order, BOP/DSCC would be unable to transfer inmates pursuant to one Court’s mandate without violating another Court’s similar order.
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true and accurate to the best of my knowledge and belief.
Executed on this 28th day of April 2020.
7

Case: 4:20-cv-00794-JG Doc #: 30-3 Filed: 04/28/20 8 of 8. PageID #: 488
Digitally signed by CORY
CORY CLARK CLARK Date: 2020.04.28 12:18:23
___________________-0_5_'0_0_' _____________ Cory Clark Senior Designator Designation and Sentence Computation Center
8

Case: 4:20-cv-00794-JG Doc #: 30-4 Filed: 04/28/20 1 of 4. PageID #: 489

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

WILSON, ET AL,

*

*

Petitioners

*

CASE NO. 4:20-CV-00794

*

v.

*

WILLIAMS, ET AL,

* *

JUDGE GWIN

Respondents

*

______________________________________*________________________________________

DECLARATION OF PETER POTTIOS

I, Peter Pottios, do hereby declare, certify and state as follows:

1. I am employed by the United States Department of Justice, Federal Bureau of Prisons

(BOP). I currently work as the Prisoner Transportation Coordinator for the Designations and

Sentence Computation Center (DSCC). I work in Kansas City, Missouri. I have held this

position since July 2016. I have been employed by BOP since May 1991.

2. As the Prisoner Transportation Coordinator, I work as the BOP’s liaison to the Justice

Prisoner & Alien Transportation System (JPATS). JPATS, managed by the United States

Marshals Service, is a system for transporting prisoners and criminal aliens between judicial

districts, correctional institutions and foreign countries. JPATS supports the federal judiciary

through its scheduling and transportation responsibilities. JPATS transports sentenced prisoners

who are in the custody of the BOP to hearings, court appearances and detention facilities.

3. I understand BOP has been ordered by the Court in Wilson, et al. v. Williams, et al., No.

4:20-cv-00794 (N.D. Ohio Apr. 22, 2020), to create a list of inmates at FCI Elkton identified by

the CDC as being at higher risk of complications from COVID-19. I further understand that

GOVERNMENT EXHIBIT

1

C

Case: 4:20-cv-00794-JG Doc #: 30-4 Filed: 04/28/20 2 of 4. PageID #: 490
BOP has been ordered to evaluate each inmate that is identified for transfer out of FCI-Elkton through any means, including but, not limited to, compassionate release, parole or community supervision, transfer furlough, or non-transfer furlough within two weeks. I further understand that BOP has been ordered to transfer any identified inmate who is ineligible for compassionate release, home release, parole, or community supervision to another BOP facility. I further understand that BOP has compiled a list of 837 inmates who are over the age 65 and/or have diagnosed medical conditions that are identified by the CDC as making an individual at higher risk of complications from COVID-19. Finally, I understand that inmates transferred from FCI Elkton are to be sent to another BOP facility where measures, such as single-cell placement or social distancing, may be accomplished. 4. Complying with the Judge’s Order would be exceptionally difficult if not impossible for a variety of reasons. 5. In the past, there have been occasions when BOP has had to transfer large numbers of inmates at one time due to natural disasters, such as damage caused to facilities from tornados or hurricanes. The most recent example occurred at FCI Estill in Estill, South Carolina earlier this month. In that situation, BOP was forced to transfer about the same number of inmates (832) that are involved in the list in this case. However, those inmates were transferred together and all brought to the same location, USP Lewisburg, which was able to accommodate the security level needed for those inmates. 6. Should BOP be forced to comply with the Judge’s Order, I do not believe there is a low security facility that would be able to house the FCI Elkton inmates as a group. Rather, smaller groups of inmates would be transferred together to a variety of BOP’s low security institutions
2

Case: 4:20-cv-00794-JG Doc #: 30-4 Filed: 04/28/20 3 of 4. PageID #: 491
around the nation. The list of low security facilities is further reduced when other factors, such as space capacity, programing needs, separatee requirements, and other issues are considered. 7. One of the Court’s concerns is that medically vulnerable inmates maintain social distancing. The ability to maintain this during transportation is almost impossible. If inmates are transported by bus from one institution to another, up to 40 inmates are transported together making social distancing between inmates and BOP staff impossible. Flights, which normally can carry up to 126 inmates, are now capped at 81 in an effort to reduce contact during the pandemic. Still, inmates/staff are around each other in an enclosed environment. Thus, eliminating the chances of the spread of disease is impossible. 8. Another impact with complying with the Judge’s Order is the monetary cost associated. JPATS charges BOP for the cost of transporting inmates. JPATS charges BOP $15,790 per flight hour to transport inmates on its planes. In Fiscal Year 2018, it cost an average of $863 per inmate to transport an inmate by air. It cost an average of $190 per inmate to transport an inmate by bus. 9. The mission to transfer the Estill inmates took BOP staff four days and cost in excess of $1,000,000. Transporting inmates to various institutions, as described above, would increase these costs tremendously. 10. The costs described above do not include the number of man-hours it would take to move the inmates, which obviously varies depending on the distance and mode of transportation. However, BOP can spend on average between $600-$2,000 in additional expenses and per diem costs for each group of 40 inmates transported by bus.
3

Case: 4:20-cv-00794-JG Doc #: 30-4 Filed: 04/28/20 4 of 4. PageID #: 492 Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and accurate to the best of my knowledge and belief. Executed on this 28th day of April 2020.
Digitally signed by PETER
PETER POTTIOS POTTIOS Date: 2020.04.28 13:14:34
_________________-_05_'0_0'________________ Peter Pottios Prisoner Transportation Coordinator Designation and Sentence Computation Center
4

 
 Case: 4:20-cv-00794-JG Doc #: 132 Filed: 06/23/20 1 of 5. PageID #: 1512

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CRAIG WILSON, et al.
Petitioners, v. MARK WILLIAMS, Warden of Elkton Federal Correctional Institution, et al.,
Respondents.

) CASE NO.: 4:20CV794 ) ) ) JUDGE JAMES S. GWIN ) ) ) ) RESPONDENTS’ OPPOSITION TO ) MOTION TO INTERVENE AS ) ADDITIONAL PLAINTIFF/AFFECTED ) PARTY ) ) )

INTRODUCTION

Now come Respondents Mark Williams, Warden of Elkton Federal Correctional

Institution and Michael Carvajal, Director of Federal Bureau of Prisons, in their official

capacities (“Respondents”), pursuant to the Court’s June 16, 2020 non-document order, and

hereby respectfully submit this response in opposition to the Emergency Motion to Intervene as

Additional Plaintiff/Affected Party (ECF No. 121) filed by proposed intervenor Eric Henderson

(“Movant”).

Movant claims that he should be a member of the medically-vulnerable subclass defined

by the Court in its April 22, 2020 preliminary injunction order because he was “diagnosed with

Keratoconus, he had eye surgery, and he has a prolonged use of…Prednisone.” (Mot. to

Intervene, ECF No. 121 PageID # 1479.) For the reasons explained below, the motion should be

denied.

1

Case: 4:20-cv-00794-JG Doc #: 132 Filed: 06/23/20 2 of 5. PageID #: 1513
LAW AND ARGUMENT I. MOVANT’S REQUEST TO INTERVENE SHOULD BE DENIED
Intervention is governed by Federal Rule of Civil Procedure 24. Initially, Movant does not seek to intervene as a matter of right under Rule 24(a). Rather, he seeks “permissive intervention as an additional Plaintiff/Interested Party under Fed. R. Civ. P. 24(b)(1)(B).” (Mot. to Intervene, ECF No. 121 PageID # 1479.) Therefore, this Court need not consider whether Movant can intervene as a matter of right.
Regarding permissive intervention, Rule 24 provides that “[o]n timely motion, the court may permit anyone to intervene who ... has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). Accordingly, the proposed intervenor must establish: (1) the motion is timely; and (2) the movant has a common claim or defense. Id.; United States v. Michigan, 424 F.3d 438, 445 (6th Cir. 2005) (“To intervene permissively, a proposed intervenor must establish that the motion for intervention is timely and alleges at least one common question of law or fact.”) If these two requirements have been established, the court must “balance undue delay and prejudice to the original parties, if any, and any other relevant factors to determine whether, in the court’s discretion, intervention should be allowed.” United States v. Michigan, 424 F.3d at 445; see also, Fed. R. Civ. P. 24(b)(3) (“In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.”)
A. Movant’s Motion is Untimely The Sixth Circuit has noted that Rule 24(b) provides no standard for timeliness. FMC Corp. v. Keizer Equip. Co., 433 F.2d 654, 656 (6th Cir.1970). Rather, the Sixth Circuit reviews five factors for timeliness:
(1) the point to which the suit has progressed; (2) the purpose for which 2

Case: 4:20-cv-00794-JG Doc #: 132 Filed: 06/23/20 3 of 5. PageID #: 1514
intervention is sought; (3) the length of time preceding the application during which the proposed intervenors knew or should have known of their interest in the case; (4) the prejudice to the original parties due to the proposed intervenors' failure to promptly intervene after they knew or reasonably should have known of their interest in the case; and (5) the existence of unusual circumstances militating against or in favor of intervention. Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir.1990) (discussing the factors of timeliness under Rule 24(a)); see also Michigan Ass'n for Retarded Citizens v. Smith, 657 F.2d 102, 105 (6th Cir.1981) (applying these timeliness factors to both Rules 24(a) and 24(b)). Importantly, “[t]he determination of whether a motion to intervene is timely should be evaluated in the context of all relevant circumstances.” Jansen, 904 F.2d at 340. In the context of this highly expedited case, Movant’s request is untimely. The parties have litigated this case for many months in this court, the Sixth Circuit Court of Appeals, and the United States Supreme Court. During this time, Movant was pursuing his own administrative and legal remedies. (Mot. to Intervene, ECF No. 121, PageID # 1481.) He also completed the Court’s questionnaire and returned it to the ACLU, seeming to avail himself of the class process arranged by the Court and without identifying separate legal counsel. (Redacted Henderson Questionnaire attached as Ex. A.) He remained on the sidelines until he was denied compassionate release by another Court. (Mot. to Intervene, ECF No 12.1 PageID #1482.) Now, he seeks to have a second bite at the apple by intervening in this case after receiving an adverse decision in another court. However, such a request is untimely in the context of these proceedings and his attempts at individual relief. B. Movant’s Alleged Claims are Highly Individualized Movant’s request that he intervene so that he can seek compassionate release, home confinement, furlough, and/or transfer is a highly individualized evaluation that does not share
3

Case: 4:20-cv-00794-JG Doc #: 132 Filed: 06/23/20 4 of 5. PageID #: 1515
common questions of law or fact with the other inmates at Elkton. Movant does not attempt to argue that he has common claims with the other inmates at Elkton. Rather, he claims that because of his unique health conditions, Respondents should grant him home confinement, furlough or transfer. Because BOP has to consider, among other things, Movant’s crime of conviction, sentence, disciplinary history, age, medical history, likelihood of recidivism, available housing, and the danger he poses to the community, Movant’s situation is not in common with any of the Plaintiffs in this action or any other inmate at Elkton. Thus, intervention is inappropriate.
C. Intervention Would Cause Undue Delay and Prejudice Allowing Movant to intervene at this stage would prejudice the parties by delaying and complicating these proceedings while providing no meaningful benefit to the Court, the existing parties, or the interests of justice. To allow such intervention would create a factual and procedural mess for the Court and the existing parties. Thus, intervention should be denied. D. Other Factors Weigh against Intervention Movant seeks to intervene because he claims that Respondents have disregarded and violated the Court’s preliminary injuction order as it relates to him. (Mot. to Intervene, ECF No. 121 PageID #1480.) Movant’s request fails to acknowledge that the United States Supreme Court has stayed enforcement of the preliminary injunction [ECF No. 111] and that, on June 9, 2020, the Sixth Circuit issued its ruling vacating the preliminary injunction. Wilson v. Williams, No. 20-3447, 2020 WL 3056217 (6th Cir. June 9, 2020). Accordingly, Movant’s request to intervene for purposes of enforcing the preliminary injunction order should be denied.
4

Case: 4:20-cv-00794-JG Doc #: 132 Filed: 06/23/20 5 of 5. PageID #: 1516
CONCLUSION For the foregoing reasons, Respondents respectfully submit that Mr. Henderson’s Motion to Intervene as Additional Plaintiff/Affected Party should be denied.
Respectfully submitted, JUSTIN E. HERDMAN United States Attorney By: /s/James R. Bennett II James R. Bennett II (OH #0071663) Sara DeCaro (OH #0072485) David M. DeVito (CA #243695) Assistant United States Attorneys United States Court House 801 West Superior Ave., Suite 400 Cleveland, Ohio 44113 216-622-3988 - Bennett 216-522-4982 - Fax James.Bennett4@usdoj.gov Sara.DeCaro@usdoj.gov David.DeVito@usdoj.gov Attorneys for Respondents
5

Case: 4:20-cv-00794-JG Doc #: 132-1 Filed: 06/23/20 1 of 2. PageID #: 1517

IN RESPONSE TO THE CORONAVIRUS (COVID-19) PANDEMIC, A FEDERAL JUDGE HAS ORDERED THAT CERTAIN MEDICALLY VULNERABLE PRISONERS BE TRANSFERRED OUT OF FCI ELKTON. WE WANT TO KNOW IF YOU ARE PART OF THE GROUP THAT CAN GET
TRANSFERRED.

The ACLU of Ohio and the Ohio Justice & Policy Center want to learn who is covered by the Court's order as part of a class action lawsuit. Please fill out this letter only if:

1. You are 65 years old or older OR

2. You have one or more documented medical conditions listed on the back of this page that puts you at high risk for getting very sick from COVID-19.

If you are in one of those 2 groups, please:

• Answer the questions on the back AND fill out the attached medical release .form

• Put the letter AND the form in the envelope and return it.

If you are not in one of those 2 groups, please do not return this letter.

f\ Name: f-:--;2; (> V"<ktt,fttY\

t BOP#: ' { ) /

</,Jr

Age:_' _ l--{--.('-_ __

Your Current Release Date: - - - -- - -0 - - - - - - - - - - - -

Your Lawyer's Name:--------- - - - - - - - - - - - - -

Your Lawyer's Phone or Email: ___.._ ..--_- _ _ _ _ _ _ _ _ _ __

Check this box only if you do NOT have a lawyer, and you cannot afford to pay for
D one:

D Have you asked the Warden for compassionate release? ifves

No

If yes, when did you apply? - -'-1+t_-_'1_-_v_· _o__________

If yes, have you gotten a response?

D Yes

No

What response did you get? ___U~U__________

The ACLU of Ohio and the Ohio Justice & Policy Center are not your attorneys as an
individual, though we do seek to represent the class of people seeking transfer, as a whole.
If you think you might be eligible for compassionate release, you should contact your lawyer or ask for compassionate release in writing to the Warden.

TURNOVER

Case: 4:20-cv-00794-JG Doc #: 132-1 Filed: 06/23/20 2 of 2. PageID #: 1518
Your medically documented, pre-existing condition (circle all that apply):

What treatment have you had for your condition? _ _ _ _ _ _ _ _ _ _ _ _ __

Does FJ-Elkton have access to medical records for your condition?

[J)Aes

D No

If you believe you may have a condition that puts you at risk, it is your responsibility to provide all medical records to the prison so that you can be included. We recommend that you contact your attorney. Ifyou choose to provide information using this letter, we may share it with other attorneys, consultants, or attorneys for the Bureau of Prisons as part of our efforts to pursue relief for the class.

You Can Choose to Stay at Elkton If You Want The judge's order in the class action lawsuit applies to all prisoners age 65 or older OR with certain medical conditions that put them at higher risk from the coronavirus. These people may be eligible for home confinement, furlough, compassionate release, or transfer out of Elkton to a different prison.

It is possible that the Warden, the Bureau of Prisons, or the court may find that you are not eligible for home confinement, furlough, or release, and that your only choice is to move to a different prison or stay at Elkton. That other prison could be higher security than Elkton, but would be better than Elkton for social distancing. IF THAT HAPPENS, YOU CAN DECIDE LATER TO STAY AT ELKTON.

Even though you can decide later, would you like to decide to stay at Elkton now

anyway? Checking "Yes" means you would NOT obtain any kind of release or

transfer as a result of this lawsuit.

Oves

D No

OJP

ACLU
Ohio

 
 Case: 4:20-cv-00794-JG Doc #: 113 Filed: 06/05/20 1 of 9. PageID #: 1421
FILED
1:14 pm Jun 05 2020 Clerk U.S. District Court Northern District of Ohio
Cleveland

Case: 4:20-cv-00794-JG Doc #: 113 Filed: 06/05/20 2 of 9. PageID #: 1422

Case: 4:20-cv-00794-JG Doc #: 113 Filed: 06/05/20 3 of 9. PageID #: 1423

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Case: 4:20-cv-00794-JG Doc #: 113 Filed: 06/05/20 6 of 9. PageID #: 1426

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Case: 4:20-cv-00794-JG Doc #: 113 Filed: 06/05/20 9 of 9. PageID #: 1429

Case: 4:20-cv-00794-JG Doc #: 113-1 Filed: 06/05/20 1 of 1. PageID #: 1430

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Case: 4:20-cv-00794-JG Doc #: 113-3 Filed: 06/05/20 1 of 1. PageID #: 1432
RECEIVED
1:12 pm, Jun 05 2020
Clerk U.S. District Court Northern District of Ohio
Cleveland

Case: 4:20-cv-00794-JG Doc #: 113-4 Filed: 06/05/20 1 of 1. PageID #: 1433

 
 Case: 4:20-cv-00794-JG Doc #: 159 Filed: 07/23/20 1 of 5. PageID #: 1618

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO

:

CRAIG WILSON, et al.,

:

:

Petitioners,

:

:

vs.

:

:

MARK WILLIAMS, et al.,

:

:

Respondents.

:

:

CASE NO. 4:20-cv-00794
ORDER [Resolving Docs. 113, 121]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE: Petitioners, inmates at Elkton Correctional Institution, sue Respondents, Elkton
officials, seeking relief, on behalf of themselves and other inmates, due to the spread of COVID-19 within the facility. Eric Henderson and George Winkleman, inmates at Elkton Federal Correctional Facility, have separately filed motions to intervene in the present litigation.1 Winkleman also requests an order to show cause why Respondents should not be held in contempt.2 Petitioners state that they do not take a position as to these motions.3 Respondents oppose.4
I. Motions to Intervene A party may intervene in an action by right under Rule 24(a) or with permission under Rule 24(b). Henderson seeks permissive intervention under Rule 24(b), while Winkleman does not specify which type of intervention he seeks. As such, the Court will consider Winkleman’s motion under Rule 24(a) and both motions under Rule 24(b).

1 Docs. 113 and 121. 2 Doc. 113. 3 Docs. 119 and 129. 4 Docs. 123 and 132. Winkleman filed a reply. Doc. 134.

Case: 4:20-cv-00794-JG Doc #: 159 Filed: 07/23/20 2 of 5. PageID #: 1619 Case No. 4:20-cv-00794 Gwin, J.
A. Intervention as of Right
In order to intervene as of right, Winkleman must establish four factors:
the motion to intervene is timely; (2) the proposed intervenor has a substantial legal interest in the subject matter of the case; (3) the proposed intervenor's ability to protect their interest may be impaired in the absence of intervention; and (4) the parties already before the court cannot adequately protect the proposed intervenor's interest.5
For ease of analysis, the Court starts with the fourth factor. Although Winkleman’s
burden as to the fourth factor is minimal, Winkleman fails to argue that the parties to the litigation cannot adequately protect his interest.6 Instead, he argues that Petitioners’
counsel may not represent his interest, which is not the relevant question.
Winkleman argues that Petitioners’ counsel might not represent all the potential
class members because each have diverse home confinement qualification factors and that he might be bound by a settlement against his interest. 7 To the extent these can be
interpreted as arguments that the parties cannot represent his interests, Winkleman still
does not satisfy his burden. Winkleman does not say how any potential settlement could
be detrimental to him. And Winkleman’s assertion that he qualifies for home confinement
and his request for the Court to compel Respondents to grant that relief misconstrue the
home confinement authority. The Court cannot grant Winkleman home confinement, nor
can it compel Respondents to do so.
For similar reasons, Winkleman fails to satisfy the third factor, which considers
whether his interests may be impaired without his intervention. Winkleman does not
5 Coal. to Defend Affirmative Action v. Granholm, 501 F.3d 775, 779 (6th Cir. 2007). 6 Ne. Ohio Coal. for Homeless and Serv. Emp. Int’l Union, Local 1199 v. Blackwell, 467 F.3d 999, 1007 (6th Cir. 2006). 7 Doc. 134 at 2.
-2-

Case: 4:20-cv-00794-JG Doc #: 159 Filed: 07/23/20 3 of 5. PageID #: 1620
Case No. 4:20-cv-00794 Gwin, J.
address this factor, but seemingly seeks to intervene only as a means of litigating the merits
of his individual home confinement and compassionate release claims.8 But this is not the
forum to do so. As stated previously, this Court cannot grant home confinement and only
Winkleman’s sentencing court can grant compassionate release.
Because, at a minimum, Winkleman does not satisfy the third and fourth
requirements, the Court denies his request to intervene as of right.9
B. Permissive Intervention
For permissive intervention, Winkleman and Henderson must each establish that
their motion to intervene is timely and that it alleges at least one common question of law
or fact.10 The Court “must then balance undue delay and prejudice to the original parties,
if any, and any other relevant factors to determine whether in the court’s discretion,
intervention should be allowed.”11
The timeliness inquiry requires the Court to consider the following factors:
(1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenors knew or should have known of their interest in the case; (4) the prejudice to the original parties due to the proposed intervenors' failure to promptly intervene after they knew or reasonably should have known of their interest in the case; and (5) the existence of unusual circumstances militating against or in favor of intervention.12 After weighing the above factors, the Court declines to exercise its discretion to
8 Doc. 113 at 7-8. 9 Coalition to Defend Affirmative Action, 501 F.3d at 779 (finding that because the proposed intervenors failed to meet one factor the motion to intervene should be denied). 10 United States v. Michigan, 424 F.3d 438, 445 (6th Cir. 2005). 11 Id. 12 Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990). The timeliness inquiry under the intervention as of right standard and the permissive intervention standard is the same. Kirsch v. Dean, 733 F. App’x. 268, 279 (6th Cir. 2018).
-3-

Case: 4:20-cv-00794-JG Doc #: 159 Filed: 07/23/20 4 of 5. PageID #: 1621 Case No. 4:20-cv-00794 Gwin, J. allow either Henderson or Winkleman to intervene in this case. While the litigation has only been pending for several months, the case’s emergency and expedited nature means that it has progressed beyond most cases pending for a similar amount of time. Furthermore, both intervenors appear to seek to intervene solely to obtain home confinement or compassionate release individually,13 but such relief is not available through this litigation. Finally, the somewhat unusual nature of this case—a class action habeas proceeding—counsels against allowing individual inmates to intervene absent compelling reasons for doing so, which neither potential intervenor presents. The Court denies both Henderson and Winkleman’s requests to intervene. II. Order to Show Cause
Winkleman also requests an order to show cause why Respondents should not be held in contempt for failing to comply with the Court’s injunction. Because the Sixth Circuit vacated this Court’s April 22, 2020 preliminary injunction order and the Supreme Court stayed the April 22, 2020 and May 19, 2020 preliminary injunction orders, Winkleman’s request is moot.14
III. Conclusion
For the foregoing reasons, the Court DENIES the motions to intervene and DENIES Winkleman’s request for an order to show cause.
13 Docs. 113 and 121. 14 Docs. 111 and 117.
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Case: 4:20-cv-00794-JG Doc #: 159 Filed: 07/23/20 5 of 5. PageID #: 1622 Case No. 4:20-cv-00794 Gwin, J.
IT IS SO ORDERED.

Dated: July 23, 2020

s/

James S. Gwin

JAMES S. GWIN

UNITED STATES DISTRICT JUDGE

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 Case: 4:20-cv-00794-JG Doc #: 164 Filed: 07/27/20 1 of 2. PageID #: 1636

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CRAIG WILSON, et al.,
Petitioners, v. MARK WILLIAMS, Warden of Elkton Federal Correctional Institution, et al.,
Respondents.

) CASE NO.: 4:20cv794 ) ) ) JUDGE JAMES S. GWIN ) ) ) ) MOTION TO DISMISS ) ) ) )

Now come Respondents Mark Williams, Warden of Elkton Federal Correctional Institution, and Michael Carvajal, Director of Federal Bureau of Prisons (“Respondents”), by and through their undersigned counsel, and, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, respectfully move this Honorable Court to dismiss Petitioners’ Emergency Petition for Writ of Habeas Corpus, Injunctive Relief, and Declaratory Relief. The grounds for this Motion are more fully set forth in the Memorandum in Support filed contemporaneously herewith and incorporated herein by this reference.

(Signatures on next page)

Case: 4:20-cv-00794-JG Doc #: 164 Filed: 07/27/20 2 of 2. PageID #: 1637
Respectfully submitted, JUSTIN E. HERDMAN United States Attorney By: /s/ David M. DeVito James R. Bennett II (OH #0071663) Sara DeCaro (OH #0072485) David M. DeVito (CA #243695) Assistant United States Attorneys United States Courthouse 801 West Superior Ave., Suite 400 Cleveland, Ohio 44113 216-622-3988 (Bennett) 216-522-4982 (Fax) James.Bennett4@usdoj.gov Sara.DeCaro@usdoj.gov David.DeVito@usdoj.gov Attorneys for Respondents
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Case: 4:20-cv-00794-JG Doc #: 164-1 Filed: 07/27/20 1 of 12. PageID #: 1638

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CRAIG WILSON, et al.,
Petitioners, v. MARK WILLIAMS, Warden of Elkton Federal Correctional Institution, et al.,
Respondents.

) CASE NO.: 4:20cv794 ) ) ) JUDGE JAMES S. GWIN ) ) ) ) MEMORANDUM IN SUPPORT OF ) MOTION TO DISMISS ) ) )

Case: 4:20-cv-00794-JG Doc #: 164-1 Filed: 07/27/20 2 of 12. PageID #: 1639
Pursuant to Fed. R. Civ. P. 12(b)(6), Respondents Mark Williams, Warden of Elkton Federal Correctional Institution, and Michael Carvajal, Director of Federal Bureau of Prisons (“Respondents”) hereby respectfully request that this Court issue an order dismissing Petitioners’ Emergency Petition for Writ of Habeas Corpus, Injunctive Relief, and Declaratory Relief (ECF No. 1, PageID # 1-38) (the “Petition”) for failure to state a claim upon which relief can be granted.
BACKGROUND On April 13, 2020, Petitioners Craig Wilson, Eric Bellamy, Kendal Nelson, and Maximino Nieves (collectively, “Petitioners”) filed the Petition. Invoking this Court’s habeas corpus jurisdiction pursuant to 28 U.S.C. § 2241, Petitioners, on behalf of themselves and a proposed class and subclass of medically-vulnerable inmates, sought “release” from Elkton based upon what they claimed were conditions of confinement that violated the Eighth Amendment. ECF No. 1, PageID # 2, 29, 35. The gravamen of Petitioners’ claim was their contention that social distancing is required to adequately mitigate the risk associated with COVID-19, that social distancing was not possible at Elkton, and that conditions at Elkton therefore denied them the minimal civilized measure of life’s necessities. Because Petitioners contended that there was “no set of internal protocols or practices that, in light of the current conditions and population levels, Elkton can use that will prevent further disease and death inside the prison,” Id., para. 4, PageID # 2, Petitioners sought injunctive relief requiring “immediate release of the Medically-Vulnerable Subclass and potentially more.” Id., para. 88, PageID # 33. Petitioners stressed, however, that by “release,” they did not mean unfettered discharge into society at large, and “not necessarily release from custody.” Id., PageID # 2 n.2. Instead,
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Case: 4:20-cv-00794-JG Doc #: 164-1 Filed: 07/27/20 3 of 12. PageID #: 1640
Petitioners defined release to include a variety of forms of relief in which inmates would nevertheless remain in BOP custody, but not physically confined at Elkton, including “release to parole or community supervision; transfer furlough (as to another facility, hospital, or halfway house); or non-transfer furlough, which could entail a released person’s eventual return to Elkton once the pandemic is over and the viral health threat is abated.” Id.
On April 22, 2020, after briefing and a hearing, the Court granted in part and denied in part Petitioners’ request for preliminary injunctive relief. ECF No. 22, PageID # 352-72. The Court found that inmates outside the medically-vulnerable subclass were asserting “a confinement conditions claim” that was not cognizable under § 2241 because they sought “the oversight of a public health expert to mitigate the risk COVID-19 poses to class members that remain incarcerated at Elkton.” Id., PageID # 362. Conversely, the Court found that inmates in the medically-vulnerable subclass were asserting a claim “closer to a challenge to the manner in which the sentence is served,” which the Court concluded was “cognizable under 28 U.S.C. § 2241.” Id. The Court went on to certify the medically vulnerable subclass as a “conditional class,” under Fed. R. Civ. P. 23(b)(2), but, finding Petitioners’ subclass definition “likely too broad,” the Court limited the subclass to “all Elkton inmates 65 years or older and those with documented, pre-existing medical conditions, including heart, lung, kidney, and liver conditions, diabetes, conditions causing a person to be immunocompromised (including but not limited to cancer treatment, transplants, HIV or AIDS, or the use of immune weakening medications), and severe obesity (body mass index of 40 or higher). Id., PageID # 363.
Although the Court found Respondents had undertaken “good efforts” to try to limit the spread of COVID-19 and had instituted “better practices” to reduce inmate contact, id., PageID # 356, it nonetheless concluded Petitioners were likely to succeed on the merits of their Eighth
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Amendment claim. Id., PageID # 367. The Court entered a preliminary injunction requiring that Respondents (a) “identify within one (1) day all members of the subclass,” (b) “evaluate each subclass member’s eligibility for transfer out of Elkton through any means, including, but not limited to, compassionate release, parole or community supervision, transfer furlough, or nontransfer furlough within two (2) weeks,” and (c) transfer subclass members found to be ineligible for compassionate release, home release, or parole or community supervision “to another BOP facility where appropriate measures, such as testing and single-cell placement, or social distancing, may be accomplished.” Id., PageID # 371-72.
On April 27, 2020, Respondents appealed the preliminary injunction to the Sixth Circuit. ECF No. 26, PageID # 394. While the appeal was pending, Respondents complied with the injunction’s first and second requirements (by identifying members of the subclass and evaluating each subclass member’s eligibility for transfer out of Elkton through any means). ECF No. 35, PageID # 521-22; ECF No. 63, PageID # 928-29. On June 4, 2020, the Supreme Court stayed the preliminary injunction, as well as this Court’s May 19 order enforcing the injunction, “pending disposition of the Government’s appeal in the United States Court of Appeals for the Sixth Circuit” and further order of Justice Sotomayor or of the Supreme Court. Order, Wilson v. Williams, No. 19A1047 (U.S. June 4, 2020). The Supreme Court’s stay remains in place.
On June 9, 2020, the Sixth Circuit issued its opinion vacating the preliminary injunction on the ground that Petitioners were unlikely to succeed on the merits. Wilson v. Williams, 961 F.3d 829 (6th Cir. 2020). For the reasons explained below, controlling precedent, including the Sixth Circuit’s ruling in this case, forecloses Petitioners’ claims and requires dismissal of the Petition.
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Case: 4:20-cv-00794-JG Doc #: 164-1 Filed: 07/27/20 5 of 12. PageID #: 1642
ARGUMENT I. Rule 12(b)(6) Standard of Review
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 663-64, 678 (2009); Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007). This standard requires that the factual allegations “raise a right to relief above the speculative level,” and “nudge[] the[] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 555. In deciding a motion to dismiss, a court must treat all factual allegations as true and construe the complaint in the light most favorable to the plaintiff. Lambert v. Hartman, 517 F.3d 433, 438-39 (6th Cir. 2008). The court “need not, however, accept conclusory allegations or conclusions of law dressed up as facts.” Erie County, Ohio v. Morton Salt, Inc., 702 F.3d 860, 867 (6th Cir. 2012). II. The Petition Fails to State a Claim for Relief
A. Petitioners Cannot Properly Invoke 28 U.S.C. § 2241 Because They Do Not Seek Release from BOP Custody and Would Have No Grounds for Doing So, as Their Claims Could Be Remedied Through Means Other than Release
As an initial matter, the Sixth Circuit determined that “[b]ecause petitioners outside the medically-vulnerable subclass sought improvement in the conditions at Elkton rather than release, the district court correctly concluded that the claims by these inmates were conditions of confinement claims not appropriately considered under § 2241.” Wilson, 961 F.3d at 838. That finding mandates dismissal of Petitioner Nieves’s claim, along with those brought on behalf of any potential class members outside the medically-vulnerable subclass.
Regarding the medically-vulnerable subclass (which allegedly includes Petitioners Wilson, Bellamy, and Nelson), the Sixth Circuit held that the Court had jurisdiction over their claims under § 2241 because – but only to the extent that – “they challenge the fact or extent of
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confinement by seeking release from custody.” Id. at 837. The court of appeals found that such a claim could proceed in habeas, but only so long as the petitioner “claims that no set of conditions would be constitutionally sufficient.” Id. at 838. It concurrently explained, however, that to the extent Petitioners sought “relief in the form of improvement of prison conditions or transfer to another facility,” their claims were “not properly brought under § 2241.” Id.
Thus, as the Sixth Circuit recognized, the decision to proceed under § 2241 “limit[ed] the type of relief available to petitioners.” Id. As the court of appeals cautioned, “[a] district court reviewing a claim under § 2241 does not have authority to circumvent the established procedures governing the various forms of release enacted by Congress.” Id.
Applying these carefully circumscribed parameters to Petitioners’ claims shows that Petitioners fail to state a claim compatible with the scope of § 2241 as defined by the Sixth Circuit. The Petition itself made clear that Petitioners were not seeking outright release from BOP custody. ECF No. 1, PageID # 2 n.2. The forms of relief mentioned in the Petition (and erroneously defined as “release”) included a variety of remedies, none of which actually involved BOP relinquishing custody of the inmate. Petitioners sought to be placed on parole, community supervision, transfer furlough, or non-transfer furlough. Id. Under any of those scenarios, however, the inmates—even if successful—would remain in BOP custody, and would not actually be “released.” Indeed, this Court concluded as much in its preliminary injunction decision, stating that what Petitioners really sought was “enlargement,” which the Court noted “is not release.” ECF No. 22, PageID # 359. And since the Sixth Circuit concluded that habeas jurisdiction exists under § 2241 only to the extent the petitioner necessarily seeks release from confinement, Petitioners’ claims fail as a matter of law.
To the extent the Petition sought relief that might relate more closely to actual release
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Case: 4:20-cv-00794-JG Doc #: 164-1 Filed: 07/27/20 7 of 12. PageID #: 1644
from custody – such as through compassionate release – any such claim is likewise foreclosed by the Sixth Circuit’s ruling. Regarding compassionate release, the Sixth Circuit explained that “although the BOP has the ability to recommend compassionate release, only the sentencing court is authorized to reduce a term of imprisonment.” Wilson, 961 F.3d at 844 (citing 18 U.S.C. § 3582(c)). Relief against BOP in this suit obviously would not compel a sentencing court to release Petitioners from custody, and, as noted above, Petitioners cannot use a habeas petition under § 2241 “to circumvent the established procedures governing the various forms of release enacted by Congress.” Id. at 838.
Even read generously, the factual allegations in the Petition do not support a plausible claim that release is the necessary remedy for Petitioners’ claims. Indeed, Petitioners have conceded (and this Court previously found) that the allegedly unconstitutional conditions at Elkton could be remedied by means other than release – such as transfer to another institution, which this Court ordered but the Sixth Circuit definitively held “was not proper under § 2241.” Wilson, 961 F.3d at 839. Because their claims are predicated on the assertion that the ability to maintain adequate social distancing is constitutionally mandated (a theory which, as explained below, cannot be squared with the Sixth Circuit’s decision), Petitioners cannot allege facts that could plausibly demonstrate that release from custody represents the only way to remedy the alleged violation – i.e., that “no set of conditions” of custody “would be constitutionally sufficient.” Id. at 838. On the contrary, transferring inmates (though not necessarily subclass members) to other BOP facilities, while not an available remedy in this habeas proceeding, would suffice to cure the alleged violation while keeping Petitioners in custody. Indeed, this Court acknowledged the sufficiency of transfer as a remedy in its preliminary injunction ruling, as well as Petitioners’ concession that release from custody was not necessary. ECF No. 22,
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Case: 4:20-cv-00794-JG Doc #: 164-1 Filed: 07/27/20 8 of 12. PageID #: 1645
PageID # 370 (“[I]t bears repeating that Petitioners are not asking the Court to dump inmates out into the streets. No one’s interest would be served in doing so. The Court is confident that the transfer of prisoners from Elkton to other means of confinement could accomplish the goal of protecting Elkton’s vulnerable population while also protecting public safety.”); ECF No. 37, PageID # 548 (“As noted by the Court, the change in confinement that Petitioners seek is not what many people refer to colloquially as ‘release,’ but rather a broader set of potential alterations in custody that would remove them ‘from the physical confines of Elkton’ but not necessarily from Respondents’ custody.”). Similarly, reducing the overall inmate population to a level that permitted social distancing (likewise achievable without releasing any subclass member) would also resolve Petitioners’ complaints about social distancing without resulting in the release of Petitioners themselves. Because the facts Petitioners allege would not entitle them to outright release from custody, their claims must be dismissed.
B. The Petition Fails to State an Eighth Amendment Violation Because Petitioners’ Allegations Cannot Establish Deliberate Indifference
Even if Petitioners were asserting claims for outright release that fit within the contours of § 2241 (which they are not), the Petition must be dismissed because Petitioners do not plausibly allege that Respondents have acted with deliberate indifference in violation of the Eighth Amendment, as the Sixth Circuit’s ruling underscores. Under the subjective prong of the Eighth Amendment analysis, to violate the prohibition on “cruel and unusual punishments,” an official must “know[] of and disregard[] an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). “[T]he Eighth Amendment prohibits mistreatment only if it is tantamount to ‘punishment,’ and thus courts have imposed liability upon prison officials only where they are so deliberately indifferent to the serious medical needs of prisoners as to unnecessarily and wantonly inflict pain.” Perez v. Oakland County, 466 F.3d 416, 423 (6th Cir.
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Case: 4:20-cv-00794-JG Doc #: 164-1 Filed: 07/27/20 9 of 12. PageID #: 1646
2006) (quotation marks omitted). “[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” Farmer, 511 U.S. at 844.
On appeal, the Sixth Circuit did not disturb any of this Court’s factual findings, but undertook de novo review of the mixed question of “whether the BOP’s conduct could constitute deliberate indifference.” Wilson, 961 F.3d at 840. The Sixth Circuit determined that “as of April 22, the BOP responded reasonably to the known, serious risks posed by COVID-19 to petitioners at Elkton.” Id. After noting the steps taken by BOP to combat the virus, the Sixth Circuit “agree[d]” that BOP’s “actions show it has responded reasonably to the risk posed by COVID-19 and that the conditions at Elkton cannot be found to violate the Eighth Amendment.” Id. at 841 (emphasis added). It further found that “BOP’s efforts to expand testing demonstrate the opposite of a disregard of a serious health risk.” Id. (emphasis added). Nothing in the Petition plausibly suggests that BOP’s assiduous efforts to respond to the COVID-19 pandemic reflect “deliberate indifference” to inmates’ health and safety, much less “deliberateness tantamount to intent to punish.” Miller v. Calhoun County, 408 F.3d 803, 813 (6th Cir. 2005).
Likewise, the Sixth Circuit conclusively rejected Petitioners’ assertion that Respondents acted unreasonably by not making “full use of the tools available to remove inmates from Elkton.” Wilson, 961 F.3d at 844. Acknowledging that courts “must take into account the ‘constraints facing the official[s],” the court of appeals held that the law does “not require prison officials [to] take every possible step to address a serious risk of harm.” Id. (quoting Wilson v. Seiter, 501 U.S. 294, 303 (1991)). Here, “[i]n light of the BOP’s other measures to prevent the spread of COVID-19, and given the limitations on the BOP’s authority to release inmates, its failure to make robust use of transfer, home confinement, or furlough to remove inmates in the
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Case: 4:20-cv-00794-JG Doc #: 164-1 Filed: 07/27/20 10 of 12. PageID #: 1647
medically vulnerable subclass from Elkton does not constitute deliberate indifference.” Id. (emphasis added).
Based on its review of the record, the court of appeals ruled that “petitioners’ argument that the BOP’s response to the COVID-19 virus has been so ineffective as to constitute deliberate indifference fails.” Id. at 843. Consequently, the Sixth Circuit vacated the preliminary injunction because Petitioners’ Eighth Amendment claim presented no likelihood of success on the merits, explaining: “[O]ur cases warn that a court must not issue a preliminary injunction where the movant presents no likelihood of merits success.” Id. at 844 (quoting Daunt v. Benson, 956 F.3d 396, 421-22 (6th Cir. 2020)) (emphasis added). Thus, the court of appeals concluded that this Court “erred in holding that petitioners had demonstrated a likelihood of success on their Eighth Amendment claim.” Id. The Sixth Circuit labeled this conclusion “dispositive.” Id. Accordingly, the Sixth Circuit’s holding reinforces not only that Petitioners were unlikely to succeed on the merits under controlling precedent, but that they cannot do so.1
As the foregoing discussion of the Sixth Circuit’s decision makes clear, the Petition does not, and Petitioners cannot, establish a violation of the Eighth Amendment. Consequently, the Petition fails to state a claim for relief and must, therefore, be dismissed.
CONCLUSION For the foregoing reasons, Respondents respectfully request that the Court enter an order dismissing the Petition.
1 In an even more recent decision, which applied and followed Wilson in vacating a preliminary injunction entered against the Oakland County, Michigan Jail, the Sixth Circuit made explicit its finding that the “Plaintiffs’ claims fail on the merits.” Cameron v. Bouchard, No. 20-1469, 2020 WL 3867393, at *4 n.1 (6th Cir. July 9, 2020). This further illustrates the case-dispositive nature of the Wilson majority’s Eighth Amendment holding.
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Case: 4:20-cv-00794-JG Doc #: 164-1 Filed: 07/27/20 11 of 12. PageID #: 1648
Respectfully submitted, JUSTIN E. HERDMAN United States Attorney By: /s/ David M. DeVito James R. Bennett II (OH #0071663) Sara DeCaro (OH #0072485) David M. DeVito (CA #243695) Assistant United States Attorneys United States Courthouse 801 West Superior Ave., Suite 400 Cleveland, Ohio 44113 216-622-3988 (Bennett) 216-522-4982 (Fax) James.Bennett4@usdoj.gov Sara.DeCaro@usdoj.gov David.DeVito@usdoj.gov Attorneys for Respondents
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Case: 4:20-cv-00794-JG Doc #: 164-1 Filed: 07/27/20 12 of 12. PageID #: 1649 CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7.1(f)
The undersigned certifies that this Memorandum in Support of Motion to Dismiss is within the 20-page limitation set by Local Rule 7.1(f) for unassigned cases.
/s/ David M. DeVito David M. DeVito Assistant United States Attorney
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